CARMON REESTRUTURA-ENGENHARIA E SERVICOS TÉCNICOS ESPECIAIS(SU) LIMITADA v. CARMON RESTRUTURA LTD AND ANOTHER

HCA 1812/2022

[2026] HKCFI 620

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1812 OF 2022

________________________

________________

__________________

DECISION

__________________

A.  Introduction

1.  The 9-day trial of this action has been fixed for a speedy trial on 29 April 2025 by Deputy High Court Judge Kenneth Wong. The first day of trial is scheduled for today, ie Monday, 26 January 2026.

2.  A Pre-trial Review (“PTR”) took place before DHCJ Gary CC Lam on 14 October 2026.

3.  The defendants (“Ds”) on Wednesday, 21 January 2026 filed a summons under RHC O.1B, rr.1 and 2 and inherent jurisdiction (“Ds Summons”) for (1) leave to Ds to file and serve the draft 3^rd List of Documents (“Ds’ Draft 3^rd LOD”); (2) Ds be granted leave to adduce and rely on the documents in Part 1, Schedule 1 of Ds Draft 3^rd LOD; and (3) costs to the Plaintiff (“P”) to be taxed if not agreed.

4.  Ds’ Summons is supported by the 10^th Affidavit of the 2^nd Defendant (“10^th Cuenda”).

5.  Ds’ Summons has been fixed to hear before me at 10:00 am today, prior to the commencement of the trial itself. 15 minutes was estimated as the time needed for dealing with the Summons by Ds’ solicitors.

6.  10^th Cuenda consisted of 6 pages and 22 paragraphs. Ds now wish to make discovery of a total of 187 pages of new documents. Clearly 15 minutes will not be sufficient to dispose of the matter and the estimate given by D’s solicitors was grossly inaccurate.

7.  No skeleton submissions have been filed or lodged by Ds’ counsel, presumably they did not think one was necessary because they estimated that the entire application would take 15 minutes only.

8.  With respect, not only that was a gross and unrealistic underestimation, it was clearly designed to circumvent the requirement under PD5.4 that written skeleton argument would be required for any hearing more than 30 minutes before a judge sitting in chambers. I find such conduct unreasonable and unacceptable.

B.  P’s objections

9.  P’s counsel Mr Norman Hui, appearing with Ms Natalie So, opposed to Ds’ Summons on behalf of their client both as a matter of procedure and substance.

10.  As a matter of procedure, they say that Ds’ Summons is an obvious and tactically timed ambush of P.

11.  I agree with them.

12.  First, Ds’ Summons was issued on Wednesday, 21 January 2026 (at 3:46 pm according to the Registry’s record) together with the supporting affirmation of Ds’ solicitors (which exhibited 10^th Cuenda). This was precisely 2 clear days before trial, the minimum amount of time required for a summons to be heard without leave of the court for abridging of time. No explanation was given as to why it was issued at such late stage.

13.  Second, although Ds’ counsel had indicted to the court at the PTR hearing which took place before DHCJ Gary CC Lam on 14 October 2025 that Ds might “possibly filing a short witness statement”, nothing was mentioned that they would be filing an application to discover a substantial volume of new documents before the trial commenced. As the court had made it clear to Ds’ counsel at the time, until there is a summons and supporting affirmation before the court (for the purpose of a possible short supplemental witness statement at the time), the court would not be prepared to deal with any application. The learned deputy judge specifically mentioned that the court is “always skeptical of any late application”. Counsel for P also specifically stated for the record at that hearing that that there should not be any attempt for making any last-minute applications.

14.  Although the present application is dressed up as a discovery of documents application, in essence, D2 is trying to put in a “supplemental witness statement” in the form of 10^th Cuenda in order to introduce those documents and bolster Ds’ defence. In my view, this is a “back door” way of trying to do something that they had been specifically warned by the court not to do at the PTR. The court do not and should not condone to this kind of litigation conduct.

15.  As to the substance of the application, P opposes the entire contents of Ds’ Summons.

16.  First, §17 of 10^th Cuenda claims that the documents do not cause prejudice to P or delay to trial since they do not raise new issues or should have been disclosed by P. Mr Brown, appearing with Mr Jeremy Yau, for Ds repeated the above claims in his oral submissions before the court this morning.

17.  I strongly disagree with such statement made by D2 and his counsel.

18.  As submitted by Mr Hui, not only is this plainly untrue, but this is besides the point as P has had no time to consider, investigate and potentially respond to these documents. P does not (and has no reason to) accept what Ds say on face value as a matter of common sense, particularly given how Ds (i.e. D2 / Cuenda) have been conducting this litigation so far. If the court allows Ds’ Summons, in my view, it will inevitably cause an adjournment to the trial as P will need time to study those documents and to respond to them, including filing supplemental witness statements and/or making further discovery, and possibly amending their pleadings also. Under the CJR, this is not going to happen as the dates reserved for the trial are “milestone dates” which cannot be moved unless there are special circumstances. Late discovery of documents by the defendants in the case is not one of them.

19.  More importantly, as submitted by P, I agree that the explanations provided by D2 at §18 of 10^th Cuenda are simply untenable:

(1)  First, Ds claim that certain documents recently came to light following a retrieval of archived electronic data. This is no explanation as to why the documents could not have been retrieved earlier. There is no suggestion that there was any malfunction of any electronic devices like computers or servers which made earlier retrieval impossible.

(2)  Second, Ds claim the relevance was not appreciated earlier. I agree with P that this is incredible: Ds have always been legally represented, and the nominee issue has always been at the forefront of this action from the outset. Given the fact that the first interlocutory injunction order was made by the court in December 2022 and the statement of claim was filed and served on them was in March 2023, Ds have more than 3 years to discover any relevant documents in this case and to consider what relevant documents should be discovered for the purpose of the trial. In any event, as the speedy trial order was made by the court back in April 2025, there is simply no reason why the discovery of those new documents could not have been made earlier.

(3)  Third, Ds claim this is merely complying with ongoing discovery obligations. In my view, this is a very lame excuse. With respect, ongoing obligations do not mean that last minute discovery, which acts as an ambush to the opponent and to take the court by surprise, should be allowed. In my judgment, the discovery should have been done earlier as none of the new documents Ds now seek to discover (save for pp.184-185) came about post-PTR. All those documents (save for those 2 pages) were available months if not years before.

20.  I agree with Mr Hui that the unexplained delay in itself provides sufficient reason to dismiss Ds’ Summons, because of the significant prejudice that has been occasioned to P, namely, for distracting P’s legal team from trial preparation at the eleventh hour.

21.  In any event I find the new documents are highly questionable.

22.  10^th Cuenda explains there are 4 categories of documents that seek to be adduced, namely, (i) WhatsApp Messages; (ii) Emails; (iii) PowerPoints; and (iv) Angolan Court Documents.

(i)  WhatsApp Messages

23.  I agree with Mr Hui that the provenance of these Whatsapp Messages is highly disputed:

(1)  They are not in sequence and are not presented as “standard” WhatsApp messages (e.g. in screenshot format – see [E3/55/685- 690]). There is no clarity as to whether these purported records show the complete / properly constituted conversation(s) between Cuenda and Mr Christopher Hartung – or whether the records may have been edited.

(2)  Certain messages appear to be in Portuguese (pp.1 – 20).

(3)  Notably pp. 21-96 of “AJC-27” onward are unexplained documents. It is not clear how they relate to the WhatsApp Messages.

(ii)  Emails

24.  Again, their relevance is questionable, as Ds are trying to assert a negative inference on the basis there is an absence of references to “nomineeship”. I agree with P that the point goes nowhere as there are other emails (already disclosed) where P and D1’s relationship is explained. In my view, it is not helpful to the court to allow a party to provide self-serving documents to allegedly try to prove something they say do not exist.

(iii)  PowerPoints

25.  Again, the relevance is questionable. There is also no explanation as to how such PowerPoints came into being and/or their purpose. In any event, part of it (pp. 137-140 of Exhibit “AJC-27”) is not even translated.

(iv)  Angolan Court Documents

26.  I agree with Mr Hui that the relevance is questionable especially as these concern entirely different legal systems, different proceedings, and different allegations. It is also noted that the first half of these documents were translated on 23 June 2025 (see p.141 of Exhibit “AJC-27”) but inexplicably not produced by Ds until the last minute. The second half of the new documents are still in Portuguese.

27.  In my judgment, the sloppy way in which Ds have tried to introduce over 180 pages of new documents at the eleventh hour is totally unacceptable. It is unfair for P and its witnesses to have to suddenly deal with completely new matters without any forewarning, right before trial is to start.

C.  Late applications for discovery

28.  I would like to emphasis that, in the post-CJR era, late applications to amend or to introduce new evidence has a fairly high threshold to pass: see Wise Union Industries Limited v Hong Kong Science and Technology Parks Corporation (unrep., HCAL 12/2009, 21 September 2009) per A Cheung J (as the CJ then was) at §2. At §9, the learned judge also held:

“I do not accept that in this new era, the fact that the innocent party can ask for an adjournment (even if one that was to be paid by the other side) would mean that there was no prejudice. In my view, at least nowadays, an adjournment itself is a prejudice. Equally, the fact that a party, not wanting to lose a hearing date, refrains from asking for an adjournment, does not mean that there was no prejudice. The unenviable position that such a party finds himself in is itself a prejudice.” (Emphasis added).

29.  I cannot agree more with the above statement.

D.  Ruling & Order of the Court

30.  In the aforestated premises, I find there is absolutely no merits contained in Ds’ last minute application and it amounts to an abuse of process. Ds’ Summons is hereby dismissed with costs on an indemnity basis, with certificate for two counsel, in favour of P. Such costs to be taxed if not agreed.

Mr Norman Hui and Ms Natalie So, instructed by Messrs CMS Hong Kong LLP for the Plaintiff

Mr Toby Brown and Mr Jeremy Yau, instructed by Messrs Gall for the 1st and 2nd Defendants

HCA 1812/2022

[2026] HKCFI 404

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1812 OF 2022

__________________

BETWEEN

__________________

__________________

D E C I S I O N

__________________

I.  INTRODUCTION

1.  Before me is the 1^st and 2^nd Defendants’ (collectively, the “Defendants”) application by Summons filed on 19 December 2025 for video conferencing facilities (“VCF”) in respect of their expert witness and one of the factual witnesses.

II.  LEGAL PRINCIPLES

2.  The legal principles in relation to a VCF application have been set out by Anthony Chan J (as he then was) in Re Chow Kam Fai [2004] 2 HKLRD 260; Mahajan v HCL Technologies (Hong Kong) Ltd [2010] 5 HKLRD 119 and Daimler AG v Leiduck (No2) [2013] 2 HKLRD 822 at §9:-

“(1) The giving of evidence by video conferencing facilities (“VCF”) is an exception;

(2) The starting point is that proceedings are conducted in court. I would add that this is more important when it comes to a trial;

(3) Sound reason is required to justify a departure from the starting point;

(4) The solemnity of court proceedings and its atmosphere is highly important in the taking of evidence;

(5) The court may be more disposed to exercise its discretion to allow evidence by VCF in respect of technical or purely factual evidence which involves no serious issue on credibility or relatively unimportant evidence;

(6) Where the credibility of the witness is seriously contested, it is important for the witness to be examined under the solemn atmosphere of the court;

(7) Costs and convenience may be important considerations which the court will have to weigh in the determination of the application;

(8) Ultimately, it is a matter of judgment of the court choosing the course best calculated to achieve a just result by taking into account all the material considerations, including whether the witness is capable of attending the proceedings, any prejudice to the other party, the Underlying Objectives, any delay to the proceedings and practical considerations like the availability of the facilities (see Practice Direction 29).”

III.  DELIBERATION AND DISPOSITION

3.  The Plaintiff itself obtained a VCR order from me on 16 December 2025 for its expert witness who is resident in Angola. The Defendants’ expert witness is also resident in Angola. Travelling time and costs have been identified as the difficulty for the Defendants’ expert witness to come to Hong Kong. Given that the Plaintiff’s neutral stance and that the Plaintiff’s expert witness would also give evidence via VCR, I am satisfied to, and so I do, grant an order of VCF for the Defendants’ expert witness.

4.  In respect of the VCR application for the factual witness Mr Patrick Kwai On Law (“Patrick Law”), the Plaintiff also takes a neutral stance. He lives in Hong Kong. The reason for the application is that he “would encounter difficulties in giving evidence in person due to his personal obligation to look after his son, particularly as he has to supervise him for his schooling and is unable to acquire a substitute caretaker [during the trial period] from 26 January to 5 February 2026”.

5.  While I agree that his evidence for trial should be brief and he is not the main witness, I am unable to accept the alleged difficulties as a sufficient reason in support of an application of VCF for a witness living in Hong Kong. While I would understand that a parent has onerous and time-consuming duty towards his or her children, at least in the circumstances of the present case, I do not see this as a good reason for VCF because:-

(1)  The trial dates have been fixed a long time ago. There is no evidence as to what arrangement has been attempted for finding a substitute caretaker (e.g. his parents, his parents-in-law, his relatives, his friends).

(2)  There is also no evidence as to why he could not even take a few hours for giving evidence in Court.

(3)  In any event, his child will have to be in school during school time. Given the brevity of his evidence, parties should be able to agree to a time slot specifically for his evidence to be taken during the school time so that the least disturbance would be caused to the witness’ duty to take care of his child.

6.  Although Patrick Law’s evidence is brief and he is not the main witness, however, bearing in mind that “The solemnity of court proceedings and its atmosphere is highly important in the taking of evidence” (see §2(4) above), that he is resident in Hong Kong, and that his alleged difficulty is, as I found, not a good reason for VCF, and in any event, his difficulty could be addressed by assignment of a time slot for him specifically, I refuse the application for VCF for Patrick Law.

Mr Eugene Wong, of CMS Hong Kong LLP, for the Plaintiff

Mr Ronald Wong, of Gall, for the 1^st and 2^nd Defendants

HCA 1812/2022

[2025] HKCFI 2163

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1812 OF 2022

____________

____________

_____________

D E C I S I O N

_____________

A. INTRODUCTION

1.  There are two applications before me:

(1)  the 1^st and the 2^nd Defendants’ (“D1” and “D2” respectively, and “Ds” collectively) application by their summons dated 2 December 2024 for security for costs (“Ds’ Security Application”); and

(2)  D2’s application by his summons dated 29 November 2024 for an order setting aside the ex parte leave granted to the plaintiff (“P”) on 5 September 2024 to issue committal proceedings against D2 (“D2’s Setting Aside Application”) on the ground of material non-disclosure (“MND”).

2.  Pursuant to the Order of Fung J dated 4 December 2024, these two applications are heard by the same judge.

3.  In these two applications, P is represented by Mr Norman Hui and Ms Natalie So, and Ds are represented by Mr Toby Brown.

B. BACKGROUND

4.  On 22 February 2024, DHCJ Le Pichon dismissed Ds’ application for an order to discharge the injunction orders made by

5.  P is an Angolan company carrying on business in construction, civil engineering and public works in Angola.

6.  D1 is a company limited incorporated in Hong Kong on 1 December 2016, with D2 being its sole shareholder and sole director.  D1 maintains an account with DBS Bank (Hong Kong) Limited (“DBS A/C”).

7.  Until August 2022, D2 was a “Director General” and “director” of P.

8.  In 2016, P’s engineering director was introduced to a Chinese company known as CR20.  D2, in his capacity as a director and/or P’s employee, together with P’s engineering director, had discussions with CR20.  As a result of the discussions, P and CR20 entered into 2 memoranda of cooperation (“MOCs”) respectively dated 11 February 2016 and 17 October 2016 for cooperation in public tender for construction projects relating to access to a new airport in Luanda.

9.  P’s case is as follows:

(1)  Since the majority of payments by CR20 would be in USD, in view of the difficulties with international remittances outwards from Angola, P decided to set up a subsidiary in Hong Kong (ie D1) to maintain an offshore account in USD and receive relevant project fees from CR20.

(2)  At that time, D2 was an employee trusted by P, and hence P named D2 as the sole shareholder and the sole director of D1.  P also instructed D2 to cause D1 to open the DBS A/C.

(3)  In view of P’s need to settle the costs incurred in rendering the relevant construction services vis-à-vis CR20, and D1’s role as designated payee, on 30 January 2017, P and D1 entered into a consortium agreement (“the Consortium Agreement”) which defined and delineated their respective roles.

(4)  In May 2022, in order to maintain control over D1 held in D2’s name by setting up a bank account with Compagnie d’Investissements et de Gestion Privée in Switzerland, P was asked to justify the transfer of funds from D1 to P.  As a result, to evidence the arrangement amongst P, D1 and D2, a Nominee Services Agreement (“NSA”) was executed in or around May 2022 (and backdated to 16 November 2016).

(5)  From June 2022 onwards, the relationship between P and D2 turned sour.  D2 resigned as both an employee and director on 9 August 2022.  Despite P’s repeated requests, D2 refused to transfer back the shareholding in D1 to P.  In early November 2022, D2 also refused to facilitate transfers from the DBS A/C as he had done previously.

(6)  On or about 7 December 2022, P’s Director of Accounting and Finance, Ms Adelina Marisa Dos Anjos Faria Martins (“Ms Martins”), discovered that she was unable to access the DBS A/C at all.

(7)  D2 had changed the online banking log-in details and then caused transfers totalling USD 22,549,975 from the DBS A/C to his personal accounts on various dates from 19 to 30 December 2022.

10.  On 21 December 2022, P issued the writ of summons herein.

11.  On 30 December 2022, P obtained an ex parte injunction order against Ds (“the December 2022 Injunction Order”) before Recorder William Wong SC, viz. a domestic proprietary injunction over the funds in the DBS A/C (“the Funds”) and a domestic Mareva injunction up to the value of USD 23,679,195.60.  §1(b) of the Order required Ds to inform P’s solicitors of the location, nature and value of all assets which represented in whole or in part or are derived from the proceeds or fruits of the Subject Funds within 7 calendar days of service of a copy of the Order.

12.  On 13 January 2023, P obtained an order before Fung J continuing the December 2022 Injunction Order until 17 March 2023.

13.  On 19 January 2022, P obtained a further ex parte worldwide injunction order against Ds (“the January 2023 Injunction Order”) before Peter Ng J, targeting the traceable proceeds of the Funds, including the funds in D2’s two bank accounts (“401 A/C” and “402 A/C”, collectively “the Emirates A/Cs”) held with Emirates NBD Bank PJSC.  §1(b) of the Order required D2 to inform P’s solicitors of the location, nature and value of all assets which represented in whole or in part or are derived from the proceeds or fruits of the Funds within 7 calendar days of service of a copy of the Order.

14.  Thereafter, there was correspondence passing between P’s solicitors Messrs Lau, Horton & Wise LLP (“LHW”) and Ds’ then solicitors Messrs Cheung & Liu (“CL”).  In their letter dated 22 February 2023, Cl said they had “certainly have advised [Ds] to comply with the discovery Orders and the consequences of contempt of Court”.

15.  By their letter dated 28 February 2023, which was issued “in compliance with paragraph 1(b) of the Orders”, CL said that various assets were “money withdrawn from or still remains at [DBS A/C]”, including (a) AED 3.7 million (approximately USD 1 million) in the 401 Account; and (b) USD 17 million in the 402 Account.

16.  On 10 March 2023, P filed the statement of claim, in which P claims:

(1)  against D1, breach of trust by effecting transfers of approximately USD 22.6 million to D2’s various accounts;

(2)  against D2, (a) breach of the NSA and/or director’s duties; (b) breach of trust by failing to transfer the shareholding in D1 to the Plaintiff; (c) knowing receipt and/or dishonest receipt of the monies transferred out of D1 DBS Account into his various personal accounts; and (d) unjust enrichment.

17.  On 14 March 2023, D2 filed his 1^st Affidavit (“D2’s 1^st Aff”), in which he said:

(1)  As of the date of D2’s 1^st Aff (ie 14 March 2023), around USD 1.18 million remained in the DBS A/C.

(2)  Around USD 899,000 (AED 3.3 million) had been transferred from the DBS A/C to the 401 Account; and USD 17.4 million had been transferred from the DBS A/C to the 402 Account.

18.  On 16 March 2023, P obtained the March 2023 Injunction Orders, by which D2 is prohibited from disposing of or diminishing the value of the funds up to the value of approximately USD 23.6 million held in the DBS A/C or traceable proceeds thereof until final judgment or until further order of the Court.

19.  Subsequently, P came to know that as of 14 March 2023, the balances in the Emirates A/Cs were much less than the amounts stated in D2’s 1^st Aff.  The position was summarized by DHCJ Le Pichon in at §17 of the Reasons for Decision dated 5 February 2024[1]:

	Balance
	14 March 2023 (per D2’s 1st Aff)	14 March 2023 (actual position)	End July 2023
401 A/C	AED 3,300,000 (~USD 899,000)	AED 1,058,415.14	AED 82,120,68
402 A/C	USD 17,400,000	~USD 4,000,000	USD 848,046.08

20.  On 6 November 2023, P issued a summons seeking an ancillary disclosure order against D2 in respect of proceeds of the funds in the Emirates A/Cs (“the Further Disclosure Application”).

21.  On 29 January 2024, DHCJ Le Pichon allowed the Further Disclosure Application and ordered D2 to provide further disclosure on inter alia the location, nature and value of traceable proceeds of funds in the Emirates A/Cs within 14 days (“the Further Disclosure Order”).

22.  On 22 February 2024, DHCJ Le Pichon made an unless order (“the Unless Order”) extending the time for compliance with the Further Disclosure Order by 7 days.  The material terms of the Unless Order are as follows:

“1. Unless [D2] do file and serve an affidavit/affirmation in compliance with paragraph 1 of [the Further Disclosure Order] within 7 days from the date hereof, D1 and D2 may fact contempt proceedings;

2. Unless [D2] do produce copies of the documents in compliance with paragraph 2 of [the Further Disclosure Order] within 7 days from the date hereof, [D1] and [D2] may face contempt proceedings”

23.  On 29 February 2024:

(1)  CL provided further bank statements (“the Dubai Bank Statements”) in respect of several Dubai bank accounts held by D2 (including the bank statements of the Emirates A/Cs, covering the period from 20 December 2022 to 29 January 2024) to LHW.

(2)  CL also ceased to act for Ds

24.  On 1 March 2024, Ds started to be represented by Gall in these proceedings.  An affirmation made by Ds’ solicitors was filed, exhibiting a notarised copy of D2’s 5^th Affidavit (“D2’s 5^th Aff”). The purpose of D2’s 5^th Aff is to comply with the Further Disclosure Order.  In D2’s 5^th Aff,

(1)  D2 admitted that that certain payments were made out of the Emirates A/Cs notwithstanding the injunction orders, albeit it was not D2’s intention to breach the injunction orders, and those transfers were not deliberate.

(2)  D2 said that he was in the process of arranging for sums to be repaid back into the Emirates A/Cs.

(3)  He could not give a full explanation given the limited time.

25.  On 21 March 2024, D2’s 6^th Affidavit (“D2’s 6^th Aff”) was filed (under the cover of a solicitor’s affirmation).  In that affidavit, D2 said that he had an honest belief and made a mistake as to the scope of the Hong Kong injunction orders, and that he was actively taking steps to arrange for funds to be repaid back into the Emirates A/Cs.  He also said that he had arranged to credit USD 1 million to the 401 Account as of 20 March 2024.

26.  On 22 May 2024, P made an ex parte application for leave to commence committal proceedings against D2.  According to the Order 52 Statement filed, which was verified by Ms Martins’ affidavit filed on 6 June 2024 (mistakenly under a new HCMP number, instead of within HCA 1812/2022), the application is made on the basis of D2:

(1)  making false statements in D2’s 1^st Aff as to the balances of the Emirates A/Cs;

(2)  failing to comply with the ancillary disclosure obligations in the December 2022 Injunction Order and January 2023 Injunction Order (given the inaccuracy in D2’s 1^st Aff);

(3)  breaching the abovementioned injunction orders by dissipating proceeds of the Funds, including in particular by disposing of and dissipating monies transferred to the Emirates A/Cs;  and

(4)  breaching the Further Disclosure Order due to, inter alia, D2’s still inadequate disclosure, since at least some USD 16.9 million of funds which were transferred out of the Emirates A/Cs remains unaccounted for.

27.  On 27 June 2024, Registrar KW Wong directed P to re-submit the relevant papers under the proper procedure and action number.

28.  On 28 June 2024, D2’s 7^th Affidavit (“D2’s 7^th Aff”) was filed (again under the cover of a solicitor’s affirmation).  In that affidavit, D2 said that he had replenished a total of some USD 7.24 million odd into the Emirates A/Cs.

29.  On 5 July 2024, the same papers in support of P’s application for leave to commence committal proceedings against D2 were re-filed in HCA 1812/2022.

30.  On 2 September 2024, P filed the 5^th Affirmation of Chen Mengyi[2] (“Chen 5^th Aff”) to provide an update to the Court, including informing the Court the filing of D2’s 7^th Aff.

31.  On 5 September 2024, Fung J granted leave to P to commence committal proceedings against D2.

32.  On 19 September 2024, pursuant to the leave granted by the Court, P commenced committal proceedings against D2 under HCMP 1803/2024.

33.  On 29 November 2024, D2 took out D2’s Setting Aside Application.

34.  On 2 December 2024, Ds took out Ds’ Security Application.

35.  In these proceedings, Ds’ case is that D2 is the sole owner of D1.  D2 denies that he held D1 on trust for P, and he also denies that the monies in DBS A/C are being held on trust for P.  D2’s stance is that at all time, he has been the ultimate owner of D1, which was set up by him on his own volition and pursuant to the business arrangement that D2 himself had made with CR20.  D2 also challenges the authenticity of the NSA.  He denies that he ever signed the same or agreed to the terms thereof in any way.

36.  By the Order of DHCJ Kenneth Wong dated 29 April 2025, it is directed that there be a speedy trial in this case, and the trial will commence on 26 January 2026, with 9 days reserved.

C. Ds’ SECURITY APPLICATION

37.  Since Mr Brown made submissions on Ds’ Security Application first in the hearing, I would first deal with this application.

38.  In Ds’ Security Application, Ds are seeking an order requiring P to offer security for Ds’ costs incurred in these proceedings up to and including the exchange of factual witness statements by paying a sum into court. According to the updated bill of costs submitted by Ds in the hearing, the sum proposed by Ds is HKD 2,493,895.  Ds say that since P is ordinarily resident out of Hong Kong, P ought to provide security for Ds’ costs incurred in these proceedings.

39.  There is no dispute that P is ordinarily resident out of Hong Kong.  P’s position is that Ds’ Security Application should be refused, for there are strong merits in P’s case.  Alternatively, the sum to be paid into court as security as proposed by Ds is excessive, and should be significantly reduced.

C1. The parties’ respective submissions

40.  While a plaintiff is trying to oppose an application for an order security for costs on the ground that it has strong merits in its case, the plaintiff would need to demonstrate that it has a high degree of probability of success, and the Court should approach the matter in a broad-brush manner.  The relevant principles have been set out by B Chu J in Hannelore de Lasala-Debring v Ernest Ferdinand Perez de La Sala[3], in which the learned judge said (footnotes omitted):

“8. Although the merits of a plaintiff’s claim may be a relevant consideration in deciding whether security should be ordered, this is to be approached in a broad-brush manner. It is not the function of the court to make a preliminary run at deciding the ultimate success or failure of the claim and parties shall not attempt to go into the merits of the case unless it can be clearly demonstrated that the plaintiff has a high degree of probability of success.

9. In Lim Yi Shen v. Wong Yuen Yee [2012] 3 HKLRD 505, Recorder Horace Wong SC has cautioned against forming any view on the merits simply on paper, especially if the facts are likely to be sensitive to oral evidence, and he held that the threshold of demonstrating probability of success in the context of a security for costs application is “very high”, and that the practice of going into the merits of the case in such application is “to be deplored” unless the merits are clear.

10. Similarly, although the Court will also consider whether the defendant has an arguable defence, this should also be approached in a broad-brush manner rather than embarking on an assessment exercise as though it were considering an application for summary judgment.” (Emphasis in original)

41.  Mr Brown for D submits that:

(1)  The only ground relying upon by P in opposing Ds’ Security Application is that P is having strong merits in its case.  Bearing the relevant principles in mind, unless P can show that clearly it has a high degree of probability of success at the trial, P’s objection should be overruled.  The Court should not go into the details of the evidence to examine the merits of P’s case.

(2)  It is an indisputable fact that D2 is the sole shareholder and the sole director of P. It is presumed that the beneficial interest would follow the legal title. Hence, it is presumed that D1 is beneficially owned by D2.  The burden to rebut this presumption is on P.  Clearly, by a broad-brush approach, it cannot be said that it is so clear that P would succeed in its claim against Ds in the trial.

(3)  Ds are disputing the authenticity of the NSA.  Accordingly, in assessing whether it is plain that P has a strong case and hence P is not required to provide any security for Ds’ costs, no weight should be given to the NSA.

(4)  P cannot rely upon the comments made in the March 2024 Reasons in support of its opposition to Ds’ Security Application.  The March 2024 Reasons are the reasons for the decision dealing with Ds’ application for discharging the March 2023 Injunction Orders and Ds’ challenge as to the jurisdiction of the Hong Kong Court.  In those applications, it would not be necessary to assess whether P has a very high degree of probability of success at the trial.

(5)  In any event, in the March 2024 Reasons, the learned judge pointed out that there is evidence in support of either side’s case.  The evidence is not overwhelmingly one way. See March 2024 Reasons §§32-34.  

(6)  The fact that P has never made an application for summary judgment against Ds in these proceedings shows that P does not regard that its case against Ds is so strong.

(7)  For all these reasons, P’s opposition to Ds’ Security Application must be overruled.

(8)  Regarding the quantum, the Court may summarily assess the appropriate sum to be paid into court as security for Ds’ costs.

42.  Mr Hui for P submits that:

(1)  It is clear that P has a high degree of probability of success at the trial.

(2)  P’s case is clearly supported by various provisions in the Consortium Agreement (which was signed by D2 on behalf of D1)[4]:

(a)  Clause 1.3

“Under this Agreement, [D1] may contract in its own name, any engineering services, once executed in the Angolan market, acting as on international platform of [P].” (Emphasis added)

(b)  Clause 1.4

“[D1] may also, within the scope of the Consortium, make payments of [P] invoices in any territory, on account and on behalf of [P], without any tax or contractual liability for those payments.” (Emphasis added)

(c)  Clause 1.5

“This Agreement authorizes [D1] to assume obligations for and on behalf [P] by delegation, except those that are expressly prohibited on this agreement or on a specific document.” (Emphasis added)

(d)  Clause 1.7

“[P] is identified as the leader of this CONSORTIUM.”

(e)  Clause 3.2

“All technical and commercial decisions of the CONSORTIUM AGREEMENT shall be taken by [P].”

Clause 6.2

“The Head of the CONSORTIUM will be the one who issues the invoices by the global value and will receive the total amount, but should only report in the accounting the value that reflects their percentage of participation. Likewise, the consortium member, by means of a credit note (received) issued by the head of the consortium, shall record in its accounts the income related to its percentage of participation.” (Emphasis added)

(3)  That the Consortium Agreement is clearly in support of P’s case is also highlighted by DHCJ Le Pichon in §§29 and 30 of the March 2024 Reasons.

(4)  The NSA is another document in support of P’s case.

(5)  Ds’ case is inherently improbable.  It is inherently improbable that D2, being a high-ranking employee and director of P, was allowed to set up, own and operate D1 in order to independently maintain business relations and negotiations with CR20, with which P was also doing business.

(6)  In view of the strong merits in P’s case, Ds’ Security Application should be refused.

(7)  Without prejudice to the above and if security is ordered, the quantum proposed by Ds is excessive and should be reduced significantly.

C2. Discussion

43.  I bear the principles as set out in §40 above in mind.

44.  In my view, even putting aside the NSA, P’s case is clearly supported by the provisions in the Consortium Agreement as submitted by Mr Hui.

45.  Further, as pointed out by DHCJ Le Pichon in the March 2024 Reasons, there are indeed strong merits in P’s case.  In the March 2024 Reasons, the learned judge said:

“25. [P] and CR20 are parties to the MOCs and not D2. §15 of D2’s 2^nd affirmation dated 16 August 2023 (“D2 2^nd”) set out what D2 described is the business strategy and arrangements he had made with CR20 (“the Arrangement”). One feature of the Arrangement involved D2 setting up an independent company vehicle (which according to D2 later became D1) to maintain business relations and negotiations with CR20.

26. D2 did not adduce any evidence (other than his bald assertions) to substantiate the existence of the Arrangement.

27. Mr Norman Hui and Ms Natalie So, counsel for [P], referred to §14 of the 1st affidavit of Ms Martins dated 15 February 2023 (“Martins 1^st ”) which explained how the expenses incurred for setting up D1 were settled. Ms Martins also exhibited a letter from CR20 to [P] dated 30 January 2018 together with D1’s incorporation documents. They show that CR20 (and not D2) had arranged for the incorporation of D1 and settled the expenses incurred for setting up D1.

28. The matters set out in the preceding paragraph contradict and undermine a key element of the Arrangement. Further, D2 remained [P]’s employee until sometime in August 2022. It is, to say the least, far from clear how his duties and obligations as an employee can be reconciled with his being party to the Arrangement.

29. As regards the consortium agreement (to which D2 is also not a party), the Plaintiff invited attention to §§1.7, 3.2 and 5.4 which provide as follows:

‘1.7 [P] is identified as the leader of this CONSORTIUM.

…

3.2 All technical and commercial decisions of the CONSORTIUM AGREEMENT shall be taken by [P].

…

5.4 The payments that must be provided by [D1] shall have previous approval of the shareholders of [P], under the presentation of a formal budget that might list all the transfers and payments requested by the Chief of the Consortium.’

30. The consortium agreement was made between [P] and D1 approximately 2 months after D1’s incorporation. It is clear from the provisions set out in the preceding paragraph that [P] had the ultimate say in all matters concerning the consortium and whose prior approval is required for payments to be made by D1. That arrangement shows that D1 had to abide by [P]’s decisions. That does not support D2’s claim to be the sole owner of D1.

……

32. One of the factors D2 relied to show his control over D1 is the operation of the D1 DBS Account. D2 exhibited messages exchanged between the Ms Martins, [P]’s CFO and D2. Completion of each transaction required a code, that being the modus operandi for the account. For each transaction, D2 provided the code and Ms Martins carried out the transaction.

33. [P] submitted that what the exchanges actually show is that D2 was merely a conduit for payments to service providers, wages etc.

34.     The messages themselves are ambiguous and could support either reading.  That D2 as director of D1 was in control of the code is hardly surprising since he was the authorised signatory of that account.  That fact of itself is not determinative: it has to be evaluated against the backdrop of the provisions in the consortium agreement set out in §29 above.  Against that backdrop the Plaintiff’s reading is the more probable.”

46.  Reading the March 2024 Reasons as a whole, I do not think that the learned judge was saying that the evidence would support either side’s case. On the contrary, I am of the view that the learned judge is clearly of the view that P’s case is meritorious, and Ds have not put forward a plausible case.

47.  I have asked Mr Brown whether any observation made on the merits of the parties’ respective cases by the learned judge in the March 2024 Reasons should be revisited in the light of the evidence now before me and the submissions made by the parties in this hearing.  Mr Brown has not invited me to revisit any observation made by the learned judge on the merits of the parties’ respective cases.

48.  I have independently considered the evidence before me and the submissions made by the parties, and I come to the conclusion that by reason of the provisions of the Consortium Agreement as identified in Mr Hui’s submissions, and by reason of the matters set out in §§25 to 34 of the March 2024 Reasons, P has clearly demonstrated that it has a high degree of probability of success at the trial.  I am also in agreement with Mr Hui that Ds’ case is inherently improbable.  In the circumstances, I would refuse Ds’ Security Application.

49.  As a matter of completeness and without prejudice to the above, if I were wrong in refusing Ds’ Security Application, I am of the view that the appropriate quantum of the sum to be paid into court as security should be HKD 700,000.

(1)  Even if security for costs is ordered, a party would only be entitled to sufficient security, not complete security.[5]

(2)  If Ds succeed at the trial, costs awarded to Ds would be taxed on party and party basis only. Ds have not suggested any reason that costs would be taxed on any other basis.

(3)  In the updated bill of costs produced by Ds[6]:

(a)  The hourly rates of the partner and the associate should be reduced to HKD 5,200 and HKD 3,200 respectively.

(b)  In Part A, costs in relation to the pleadings are set out.  Since counsel is involved, the time costs of the solicitors should be substantially reduced.

(c)  In Part B, costs in relation to disclosure are set out.  Given that counsel is involved, the time costs of the solicitors should also be substantially reduced.  Further, only the fees of one counsel is allowed.

(d)  In Part C and Part D, the time costs claimed by the solicitors is excessive and should be substantially reduced.

(e)  Part E and Part H are costs of D2’s Setting Aside Application.  Those costs would be taken care of by the costs order made in that setting aside application.

(f)  Part F, Item 11(1) – the time costs of the solicitors are clearly excessive and should be reduced.

(g)  Part F, Item 11(2) is “Taking out interlocutory application(s) including but not limited to specific discovery (if so advised)”.  Mr Brown has fairly told me that Ds are not minded to take out further interlocutory application(s).  That being the case, I would ignore this item.

(h)  Part G, Item 12(4) is “Time incurred by Jacquemoud Stanislas, [Ds]’ global advisors …” In response to the question from the Court, Mr Brown told me that Ds’ global advisors are some lawyers in Switzerland.  Mr Brown has confirmed that there would be no issue on Switzerland law in this case.  In the circumstances, I am of the view that there is no basis in support of Ds’ claim for the costs in this item.

(i)  In Part G, in the other items, since counsel is involved, the time costs of the solicitors should be significantly reduced.

(4)  Bearing all the aforesaid in mind, and by a broad-brush approach, I am of the view that the appropriate amount to be paid into court as security for Ds’ costs (assuming that Ds are entitled to have security for costs) should be HKD 700,000.

C3. Conclusion on Ds’ Security Application

50.  For the reasons above, I would dismiss Ds’ Security Application.  Costs should follow the event.  There is no doubt that Mr Hui and Ms So have provided me very helpful assistance.  However, the complexity of Ds’ Security Application would not be sufficient for the purpose of justifying a certificate for 2 counsel.  There be a costs order nisi that costs of Ds’ Security Application be to P forthwith, and those costs be summarily assessed on paper without an oral hearing.  There be leave to P to lodge and to serve a bill of costs for summary assessment (limited to 3 pages) within 7 days after the costs order nisi becoming absolute, and leave to Ds to lodge and serve a list of objections (limited to 3 pages) within 7 days thereafter.

D. D2’s SETTIG ASIDE APPLICATION

D1. The principles

51.  The principles concerning MND have been set out by DHCJ Le Pichon in the March 2024 Reasons at §55, where the learned judge adopted the formulation of Coleman J in Hwang Joon Sang v Golden Electronics Inc[7]. The principles are as follows:

(1)  An applicant making an ex parte application must act fairly in all material aspects when preparing and presenting the application.

(2)  This includes the duty to disclose to the Court all matters which are material, meaning those matters material to the court’s assessment and decision whether or not to grant the relief without notice, and if so on what terms.

(3)  The test as to materiality is an objective one, and ultimately a question for the court. Hence, it is no excuse for an applicant subsequently to say that he was generally unaware, or did not believe, that the facts were relevant or important.

(4)  Non-disclosure may be material even if its effect is just to give a seriously different ‘flavour’ to the case.

(5)  The duty of full and frank disclosure is a stringent one, designed to protect the absent party.

(6)  Therefore, if material non-disclosure has occurred at the ex parte application, the order obtained at such an application would likely be set aside automatically without going into the merits.

(7)  Nevertheless, there is a discretion to re-grant the same order.  That jurisdiction should be only sparingly exercised, taking into account the need to protect the administration of justice and uphold the public interest in requiring full and fair disclosure.

(8)  Hence, an assessment will be made as to the degree and extent of the culpability with regards to the non-disclosure.  The more serious or culpable the non-disclosure, the more likely the court is to set its order aside and not renew it, however prejudicial the consequences.

(9)  It is therefore relevant that the breach was innocent, but there is no general rule that an innocent breach will not attract the sanction of discharge.  Nor is there a general rule that a deliberate breach will attract that sanction.

(10)  The application of principles which seek to uphold the integrity of the judicial process should not be carried to such lengths as will allow them to become the instrument of injustice.

(11)  Because of the penal nature of the jurisdiction, the court should have regard to the proportionality between the punishment and offence.

(12)  When exercising the discretion whether to re-grant the order, the court should take into account all relevant circumstances.

D2. Grounds of the Application

52.  Mr Brown submits that the leave granted to P to commence committal proceedings should be set aside by reason of P failed to disclose the following in the ex parte application:

(1)  D2’s 7^th Aff, in which D2 has set out the steps taken by him to purge any inadvertent breaches of the injunction orders;

(2)  the fact that the ex parte freezing order obtained by P in the Dubai International Financial Centre Court (“DIFC proceedings”) on 24 July 2023 was set aside on 27 December 2023, and P had withdrawn its complaint of contempt against D2 in the Dubai Court on the same basis;

(3)  that P wrongly alleged D2 of breaching the Unless Order; and

(4)  the remedial steps taken by D2 to purge the breaches of the injunction orders.

53.  In the hearing before me, Mr Brown has helpfully confirmed that the grounds relied upon by D2 are confined to those set out in counsel’s submissions.

54.  Mr Hui submits that there is no merit in these grounds, and the ex parte leave should not be set aside by reason of these matters.

D2.1 Ground 1 – D2’s 7^th Aff

55.  Mr Brown submits that:

(1)  P did not include D2’s 7^th Aff in the papers placed before the Court in the ex parte application for leave.  D2’s 7^th Aff is of paramount importance, in which D2 has clearly stated:

(a)  D2’s honest mistake that the December 2022 and the January 2023 Injunction Orders did not prevent him from dealing within his own bank accounts;

(b)  D2’s immediate efforts in purging the breaches as soon as he learned of his error;

(c)  D2’s replenishment of the Emirates A/Cs in the sum of USD7,244,023.97 on his own accord and initiative; and

(d)  D2 volunteering further information to P in regard to his other frozen assets to provide P full security of its claims including his various global assets, bank account details, remaining balances and estimated value of other non-cash assets.

(2)  P only drew the Court’s attention to D2’s 7^th Aff on 2 September 2024 (66 days after D2’s 7^th Aff was first provided to P) and only then by a brief reference in Chen 5^th Aff.

56.  Mr Hui submits that:

(1)  The Order 52 Statement was prepared and originally filed with the Court on 22 May 2024, before the filing of D2’s 7^th Aff on 28 June 2024.  Due to an inadvertent mistake, when P refiled the papers on 5 July 2024 (as directed by Registrar KW Wong o

HCA 1812/2022 [2025] HKCFI 2163 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE ACTION NO 1812 OF 2022 ____________ BETWEEN       CARMON REESTRUTURA-ENGENHARIA E SERVIÇOS TÉCNICOS ESPECIAIS (SU) LIMITADA Plaintiff   and     CARMON RESTRUTURA LIMITED 1st Defendant   ANTONIO JOAO CATETE LOPES CUENDA 2nd Defendant ____________ Before: Deputy High Court Judge MK Liu in Chambers (Open to Public) Date of Hearing: 7 May 2025 Date of Decision: 23 May 2025 _____________ D E C I S I O N _____________ A. INTRODUCTION 1.  There are two applications before me: (1)  the 1st and the 2nd Defendants’ (“D1” and “D2” respectively, and “Ds” collectively) application by their summons dated 2 December 2024 for security for costs (“Ds’ Security Application”); and (2)  D2’s application by his summons dated 29 November 2024 for an order setting aside the ex parte leave granted to the plaintiff (“P”) on 5 September 2024 to issue committal proceedings against D2 (“D2’s Setting Aside Application”) on the ground of material non-disclosure (“MND”). 2.  Pursuant to the Order of Fung J dated 4 December 2024, these two applications are heard by the same judge. 3.  In these two applications, P is represented by Mr Norman Hui and Ms Natalie So, and Ds are represented by Mr Toby Brown. B. BACKGROUND 4.  On 22 February 2024, DHCJ Le Pichon dismissed Ds’ application for an order to discharge the injunction orders made by Au-Yeung J on 23 March 2023 against Ds (“the March 2023 Injunction Orders”), and Ds’ application to dispute the jurisdiction of this Court in favour of the Court of Luanda, Angola.  Reasons for the Decision were handed down on 8 March 2024 (“the March 2024 Reasons”).  The factual background leading to the dispute between the parties herein has been succinctly set out by the learned judge in the March 2024 Reasons.  Below is a summary of the background facts as set out in the March 2024 Reasons. 5.  P is an Angolan company carrying on business in construction, civil engineering and public works in Angola. 6.  D1 is a company limited incorporated in Hong Kong on 1 December 2016, with D2 being its sole shareholder and sole director.  D1 maintains an account with DBS Bank (Hong Kong) Limited (“DBS A/C”). 7.  Until August 2022, D2 was a “Director General” and “director” of P. 8.  In 2016, P’s engineering director was introduced to a Chinese company known as CR20.  D2, in his capacity as a director and/or P’s employee, together with P’s engineering director, had discussions with CR20.  As a result of the discussions, P and CR20 entered into 2 memoranda of cooperation (“MOCs”) respectively dated 11 February 2016 and 17 October 2016 for cooperation in public tender for construction projects relating to access to a new airport in Luanda. 9.  P’s case is as follows: (1)  Since the majority of payments by CR20 would be in USD, in view of the difficulties with international remittances outwards from Angola, P decided to set up a subsidiary in Hong Kong (ie D1) to maintain an offshore account in USD and receive relevant project fees from CR20. (2)  At that time, D2 was an employee trusted by P, and hence P named D2 as the sole shareholder and the sole director of D1.  P also instructed D2 to cause D1 to open the DBS A/C. (3)  In view of P’s need to settle the costs incurred in rendering the relevant construction services vis-à-vis CR20, and D1’s role as designated payee, on 30 January 2017, P and D1 entered into a consortium agreement (“the Consortium Agreement”) which defined and delineated their respective roles. (4)  In May 2022, in order to maintain control over D1 held in D2’s name by setting up a bank account with Compagnie d’Investissements et de Gestion Privée in Switzerland, P was asked to justify the transfer of funds from D1 to P.  As a result, to evidence the arrangement amongst P, D1 and D2, a Nominee Services Agreement (“NSA”) was executed in or around May 2022 (and backdated to 16 November 2016). (5)  From June 2022 onwards, the relationship between P and D2 turned sour.  D2 resigned as both an employee and director on 9 August 2022.  Despite P’s repeated requests, D2 refused to transfer back the shareholding in D1 to P.  In early November 2022, D2 also refused to facilitate transfers from the DBS A/C as he had done previously. (6)  On or about 7 December 2022, P’s Director of Accounting and Finance, Ms Adelina Marisa Dos Anjos Faria Martins (“Ms Martins”), discovered that she was unable to access the DBS A/C at all. (7)  D2 had changed the online banking log-in details and then caused transfers totalling USD 22,549,975 from the DBS A/C to his personal accounts on various dates from 19 to 30 December 2022. 10.  On 21 December 2022, P issued the writ of summons herein. 11.  On 30 December 2022, P obtained an ex parte injunction order against Ds (“the December 2022 Injunction Order”) before Recorder William Wong SC, viz. a domestic proprietary injunction over the funds in the DBS A/C (“the Funds”) and a domestic Mareva injunction up to the value of USD 23,679,195.60.  §1(b) of the Order required Ds to inform P’s solicitors of the location, nature and value of all assets which represented in whole or in part or are derived from the proceeds or fruits of the Subject Funds within 7 calendar days of service of a copy of the Order. 12.  On 13 January 2023, P obtained an order before Fung J continuing the December 2022 Injunction Order until 17 March 2023. 13.  On 19 January 2022, P obtained a further ex parte worldwide injunction order against Ds (“the January 2023 Injunction Order”) before Peter Ng J, targeting the traceable proceeds of the Funds, including the funds in D2’s two bank accounts (“401 A/C” and “402 A/C”, collectively “the Emirates A/Cs”) held with Emirates NBD Bank PJSC.  §1(b) of the Order required D2 to inform P’s solicitors of the location, nature and value of all assets which represented in whole or in part or are derived from the proceeds or fruits of the Funds within 7 calendar days of service of a copy of the Order. 14.  Thereafter, there was correspondence passing between P’s solicitors Messrs Lau, Horton & Wise LLP (“LHW”) and Ds’ then solicitors Messrs Cheung & Liu (“CL”).  In their letter dated 22 February 2023, Cl said they had “certainly have advised [Ds] to comply with the discovery Orders and the consequences of contempt of Court”. 15.  By their letter dated 28 February 2023, which was issued “in compliance with paragraph 1(b) of the Orders”, CL said that various assets were “money withdrawn from or still remains at [DBS A/C]”, including (a) AED 3.7 million (approximately USD 1 million) in the 401 Account; and (b) USD 17 million in the 402 Account. 16.  On 10 March 2023, P filed the statement of claim, in which P claims: (1)  against D1, breach of trust by effecting transfers of approximately USD 22.6 million to D2’s various accounts; (2)  against D2, (a) breach of the NSA and/or director’s duties; (b) breach of trust by failing to transfer the shareholding in D1 to the Plaintiff; (c) knowing receipt and/or dishonest receipt of the monies transferred out of D1 DBS Account into his various personal accounts; and (d) unjust enrichment. 17.  On 14 March 2023, D2 filed his 1st Affidavit (“D2’s 1st Aff”), in which he said: (1)  As of the date of D2’s 1st Aff (ie 14 March 2023), around USD 1.18 million remained in the DBS A/C. (2)  Around USD 899,000 (AED 3.3 million) had been transferred from the DBS A/C to the 401 Account; and USD 17.4 million had been transferred from the DBS A/C to the 402 Account. 18.  On 16 March 2023, P obtained the March 2023 Injunction Orders, by which D2 is prohibited from disposing of or diminishing the value of the funds up to the value of approximately USD 23.6 million held in the DBS A/C or traceable proceeds thereof until final judgment or until further order of the Court. 19.  Subsequently, P came to know that as of 14 March 2023, the balances in the Emirates A/Cs were much less than the amounts stated in D2’s 1st Aff.  The position was summarized by DHCJ Le Pichon in at §17 of the Reasons for Decision dated 5 February 2024[1]:   Balance   14 March 2023 (per D2’s 1st Aff) 14 March 2023 (actual position) End July 2023 401 A/C AED 3,300,000 (~USD 899,000) AED 1,058,415.14 AED 82,120,68 402 A/C USD 17,400,000 ~USD 4,000,000 USD 848,046.08 20.  On 6 November 2023, P issued a summons seeking an ancillary disclosure order against D2 in respect of proceeds of the funds in the Emirates A/Cs (“the Further Disclosure Application”). 21.  On 29 January 2024, DHCJ Le Pichon allowed the Further Disclosure Application and ordered D2 to provide further disclosure on inter alia the location, nature and value of traceable proceeds of funds in the Emirates A/Cs within 14 days (“the Further Disclosure Order”). 22.  On 22 February 2024, DHCJ Le Pichon made an unless order (“the Unless Order”) extending the time for compliance with the Further Disclosure Order by 7 days.  The material terms of the Unless Order are as follows: “1. Unless [D2] do file and serve an affidavit/affirmation in compliance with paragraph 1 of [the Further Disclosure Order] within 7 days from the date hereof, D1 and D2 may fact contempt proceedings; 2. Unless [D2] do produce copies of the documents in compliance with paragraph 2 of [the Further Disclosure Order] within 7 days from the date hereof, [D1] and [D2] may face contempt proceedings” 23.  On 29 February 2024: (1)  CL provided further bank statements (“the Dubai Bank Statements”) in respect of several Dubai bank accounts held by D2 (including the bank statements of the Emirates A/Cs, covering the period from 20 December 2022 to 29 January 2024) to LHW. (2)  CL also ceased to act for Ds 24.  On 1 March 2024, Ds started to be represented by Gall in these proceedings.  An affirmation made by Ds’ solicitors was filed, exhibiting a notarised copy of D2’s 5th Affidavit (“D2’s 5th Aff”). The purpose of D2’s 5th Aff is to comply with the Further Disclosure Order.  In D2’s 5th Aff, (1)  D2 admitted that that certain payments were made out of the Emirates A/Cs notwithstanding the injunction orders, albeit it was not D2’s intention to breach the injunction orders, and those transfers were not deliberate. (2)  D2 said that he was in the process of arranging for sums to be repaid back into the Emirates A/Cs. (3)  He could not give a full explanation given the limited time. 25.  On 21 March 2024, D2’s 6th Affidavit (“D2’s 6th Aff”) was filed (under the cover of a solicitor’s affirmation).  In that affidavit, D2 said that he had an honest belief and made a mistake as to the scope of the Hong Kong injunction orders, and that he was actively taking steps to arrange for funds to be repaid back into the Emirates A/Cs.  He also said that he had arranged to credit USD 1 million to the 401 Account as of 20 March 2024. 26.  On 22 May 2024, P made an ex parte application for leave to commence committal proceedings against D2.  According to the Order 52 Statement filed, which was verified by Ms Martins’ affidavit filed on 6 June 2024 (mistakenly under a new HCMP number, instead of within HCA 1812/2022), the application is made on the basis of D2: (1)  making false statements in D2’s 1st Aff as to the balances of the Emirates A/Cs; (2)  failing to comply with the ancillary disclosure obligations in the December 2022 Injunction Order and January 2023 Injunction Order (given the inaccuracy in D2’s 1st Aff); (3)  breaching the abovementioned injunction orders by dissipating proceeds of the Funds, including in particular by disposing of and dissipating monies transferred to the Emirates A/Cs;  and (4)  breaching the Further Disclosure Order due to, inter alia, D2’s still inadequate disclosure, since at least some USD 16.9 million of funds which were transferred out of the Emirates A/Cs remains unaccounted for. 27.  On 27 June 2024, Registrar KW Wong directed P to re-submit the relevant papers under the proper procedure and action number. 28.  On 28 June 2024, D2’s 7th Affidavit (“D2’s 7th Aff”) was filed (again under the cover of a solicitor’s affirmation).  In that affidavit, D2 said that he had replenished a total of some USD 7.24 million odd into the Emirates A/Cs. 29.  On 5 July 2024, the same papers in support of P’s application for leave to commence committal proceedings against D2 were re-filed in HCA 1812/2022. 30.  On 2 September 2024, P filed the 5th Affirmation of Chen Mengyi[2] (“Chen 5th Aff”) to provide an update to the Court, including informing the Court the filing of D2’s 7th Aff. 31.  On 5 September 2024, Fung J granted leave to P to commence committal proceedings against D2. 32.  On 19 September 2024, pursuant to the leave granted by the Court, P commenced committal proceedings against D2 under HCMP 1803/2024. 33.  On 29 November 2024, D2 took out D2’s Setting Aside Application. 34.  On 2 December 2024, Ds took out Ds’ Security Application. 35.  In these proceedings, Ds’ case is that D2 is the sole owner of D1.  D2 denies that he held D1 on trust for P, and he also denies that the monies in DBS A/C are being held on trust for P.  D2’s stance is that at all time, he has been the ultimate owner of D1, which was set up by him on his own volition and pursuant to the business arrangement that D2 himself had made with CR20.  D2 also challenges the authenticity of the NSA.  He denies that he ever signed the same or agreed to the terms thereof in any way. 36.  By the Order of DHCJ Kenneth Wong dated 29 April 2025, it is directed that there be a speedy trial in this case, and the trial will commence on 26 January 2026, with 9 days reserved. C. Ds’ SECURITY APPLICATION 37.  Since Mr Brown made submissions on Ds’ Security Application first in the hearing, I would first deal with this application. 38.  In Ds’ Security Application, Ds are seeking an order requiring P to offer security for Ds’ costs incurred in these proceedings up to and including the exchange of factual witness statements by paying a sum into court. According to the updated bill of costs submitted by Ds in the hearing, the sum proposed by Ds is HKD 2,493,895.  Ds say that since P is ordinarily resident out of Hong Kong, P ought to provide security for Ds’ costs incurred in these proceedings. 39.  There is no dispute that P is ordinarily resident out of Hong Kong.  P’s position is that Ds’ Security Application should be refused, for there are strong merits in P’s case.  Alternatively, the sum to be paid into court as security as proposed by Ds is excessive, and should be significantly reduced. C1. The parties’ respective submissions 40.  While a plaintiff is trying to oppose an application for an order security for costs on the ground that it has strong merits in its case, the plaintiff would need to demonstrate that it has a high degree of probability of success, and the Court should approach the matter in a broad-brush manner.  The relevant principles have been set out by B Chu J in Hannelore de Lasala-Debring v Ernest Ferdinand Perez de La Sala[3], in which the learned judge said (footnotes omitted): “8. Although the merits of a plaintiff’s claim may be a relevant consideration in deciding whether security should be ordered, this is to be approached in a broad-brush manner. It is not the function of the court to make a preliminary run at deciding the ultimate success or failure of the claim and parties shall not attempt to go into the merits of the case unless it can be clearly demonstrated that the plaintiff has a high degree of probability of success. 9. In Lim Yi Shen v. Wong Yuen Yee [2012] 3 HKLRD 505, Recorder Horace Wong SC has cautioned against forming any view on the merits simply on paper, especially if the facts are likely to be sensitive to oral evidence, and he held that the threshold of demonstrating probability of success in the context of a security for costs application is “very high”, and that the practice of going into the merits of the case in such application is “to be deplored” unless the merits are clear. 10. Similarly, although the Court will also consider whether the defendant has an arguable defence, this should also be approached in a broad-brush manner rather than embarking on an assessment exercise as though it were considering an application for summary judgment.” (Emphasis in original) 41.  Mr Brown for D submits that: (1)  The only ground relying upon by P in opposing Ds’ Security Application is that P is having strong merits in its case.  Bearing the relevant principles in mind, unless P can show that clearly it has a high degree of probability of success at the trial, P’s objection should be overruled.  The Court should not go into the details of the evidence to examine the merits of P’s case. (2)  It is an indisputable fact that D2 is the sole shareholder and the sole director of P. It is presumed that the beneficial interest would follow the legal title. Hence, it is presumed that D1 is beneficially owned by D2.  The burden to rebut this presumption is on P.  Clearly, by a broad-brush approach, it cannot be said that it is so clear that P would succeed in its claim against Ds in the trial. (3)  Ds are disputing the authenticity of the NSA.  Accordingly, in assessing whether it is plain that P has a strong case and hence P is not required to provide any security for Ds’ costs, no weight should be given to the NSA. (4)  P cannot rely upon the comments made in the March 2024 Reasons in support of its opposition to Ds’ Security Application.  The March 2024 Reasons are the reasons for the decision dealing with Ds’ application for discharging the March 2023 Injunction Orders and Ds’ challenge as to the jurisdiction of the Hong Kong Court.  In those applications, it would not be necessary to assess whether P has a very high degree of probability of success at the trial. (5)  In any event, in the March 2024 Reasons, the learned judge pointed out that there is evidence in support of either side’s case.  The evidence is not overwhelmingly one way. See March 2024 Reasons §§32-34.   (6)  The fact that P has never made an application for summary judgment against Ds in these proceedings shows that P does not regard that its case against Ds is so strong. (7)  For all these reasons, P’s opposition to Ds’ Security Application must be overruled. (8)  Regarding the quantum, the Court may summarily assess the appropriate sum to be paid into court as security for Ds’ costs. 42.  Mr Hui for P submits that: (1)  It is clear that P has a high degree of probability of success at the trial. (2)  P’s case is clearly supported by various provisions in the Consortium Agreement (which was signed by D2 on behalf of D1)[4]: (a)  Clause 1.3 “Under this Agreement, [D1] may contract in its own name, any engineering services, once executed in the Angolan market, acting as on international platform of [P].” (Emphasis added) (b)  Clause 1.4 “[D1] may also, within the scope of the Consortium, make payments of [P] invoices in any territory, on account and on behalf of [P], without any tax or contractual liability for those payments.” (Emphasis added) (c)  Clause 1.5 “This Agreement authorizes [D1] to assume obligations for and on behalf [P] by delegation, except those that are expressly prohibited on this agreement or on a specific document.” (Emphasis added) (d)  Clause 1.7 “[P] is identified as the leader of this CONSORTIUM.” (e)  Clause 3.2 “All technical and commercial decisions of the CONSORTIUM AGREEMENT shall be taken by [P].” Clause 6.2 “The Head of the CONSORTIUM will be the one who issues the invoices by the global value and will receive the total amount, but should only report in the accounting the value that reflects their percentage of participation. Likewise, the consortium member, by means of a credit note (received) issued by the head of the consortium, shall record in its accounts the income related to its percentage of participation.” (Emphasis added) (3)  That the Consortium Agreement is clearly in support of P’s case is also highlighted by DHCJ Le Pichon in §§29 and 30 of the March 2024 Reasons. (4)  The NSA is another document in support of P’s case. (5)  Ds’ case is inherently improbable.  It is inherently improbable that D2, being a high-ranking employee and director of P, was allowed to set up, own and operate D1 in order to independently maintain business relations and negotiations with CR20, with which P was also doing business. (6)  In view of the strong merits in P’s case, Ds’ Security Application should be refused. (7)  Without prejudice to the above and if security is ordered, the quantum proposed by Ds is excessive and should be reduced significantly. C2. Discussion 43.  I bear the principles as set out in §40 above in mind. 44.  In my view, even putting aside the NSA, P’s case is clearly supported by the provisions in the Consortium Agreement as submitted by Mr Hui. 45.  Further, as pointed out by DHCJ Le Pichon in the March 2024 Reasons, there are indeed strong merits in P’s case.  In the March 2024 Reasons, the learned judge said: “25. [P] and CR20 are parties to the MOCs and not D2. §15 of D2’s 2nd affirmation dated 16 August 2023 (“D2 2nd”) set out what D2 described is the business strategy and arrangements he had made with CR20 (“the Arrangement”). One feature of the Arrangement involved D2 setting up an independent company vehicle (which according to D2 later became D1) to maintain business relations and negotiations with CR20. 26. D2 did not adduce any evidence (other than his bald assertions) to substantiate the existence of the Arrangement. 27. Mr Norman Hui and Ms Natalie So, counsel for [P], referred to §14 of the 1st affidavit of Ms Martins dated 15 February 2023 (“Martins 1st ”) which explained how the expenses incurred for setting up D1 were settled. Ms Martins also exhibited a letter from CR20 to [P] dated 30 January 2018 together with D1’s incorporation documents. They show that CR20 (and not D2) had arranged for the incorporation of D1 and settled the expenses incurred for setting up D1. 28. The matters set out in the preceding paragraph contradict and undermine a key element of the Arrangement. Further, D2 remained [P]’s employee until sometime in August 2022. It is, to say the least, far from clear how his duties and obligations as an employee can be reconciled with his being party to the Arrangement. 29. As regards the consortium agreement (to which D2 is also not a party), the Plaintiff invited attention to §§1.7, 3.2 and 5.4 which provide as follows: ‘1.7 [P] is identified as the leader of this CONSORTIUM. … 3.2 All technical and commercial decisions of the CONSORTIUM AGREEMENT shall be taken by [P]. … 5.4 The payments that must be provided by [D1] shall have previous approval of the shareholders of [P], under the presentation of a formal budget that might list all the transfers and payments requested by the Chief of the Consortium.’ 30. The consortium agreement was made between [P] and D1 approximately 2 months after D1’s incorporation. It is clear from the provisions set out in the preceding paragraph that [P] had the ultimate say in all matters concerning the consortium and whose prior approval is required for payments to be made by D1. That arrangement shows that D1 had to abide by [P]’s decisions. That does not support D2’s claim to be the sole owner of D1. …… 32. One of the factors D2 relied to show his control over D1 is the operation of the D1 DBS Account. D2 exhibited messages exchanged between the Ms Martins, [P]’s CFO and D2. Completion of each transaction required a code, that being the modus operandi for the account. For each transaction, D2 provided the code and Ms Martins carried out the transaction. 33. [P] submitted that what the exchanges actually show is that D2 was merely a conduit for payments to service providers, wages etc. 34.     The messages themselves are ambiguous and could support either reading.  That D2 as director of D1 was in control of the code is hardly surprising since he was the authorised signatory of that account.  That fact of itself is not determinative: it has to be evaluated against the backdrop of the provisions in the consortium agreement set out in §29 above.  Against that backdrop the Plaintiff’s reading is the more probable.” 46.  Reading the March 2024 Reasons as a whole, I do not think that the learned judge was saying that the evidence would support either side’s case. On the contrary, I am of the view that the learned judge is clearly of the view that P’s case is meritorious, and Ds have not put forward a plausible case. 47.  I have asked Mr Brown whether any observation made on the merits of the parties’ respective cases by the learned judge in the March 2024 Reasons should be revisited in the light of the evidence now before me and the submissions made by the parties in this hearing.  Mr Brown has not invited me to revisit any observation made by the learned judge on the merits of the parties’ respective cases. 48.  I have independently considered the evidence before me and the submissions made by the parties, and I come to the conclusion that by reason of the provisions of the Consortium Agreement as identified in Mr Hui’s submissions, and by reason of the matters set out in §§25 to 34 of the March 2024 Reasons, P has clearly demonstrated that it has a high degree of probability of success at the trial.  I am also in agreement with Mr Hui that Ds’ case is inherently improbable.  In the circumstances, I would refuse Ds’ Security Application. 49.  As a matter of completeness and without prejudice to the above, if I were wrong in refusing Ds’ Security Application, I am of the view that the appropriate quantum of the sum to be paid into court as security should be HKD 700,000. (1)  Even if security for costs is ordered, a party would only be entitled to sufficient security, not complete security.[5] (2)  If Ds succeed at the trial, costs awarded to Ds would be taxed on party and party basis only. Ds have not suggested any reason that costs would be taxed on any other basis. (3)  In the updated bill of costs produced by Ds[6]: (a)  The hourly rates of the partner and the associate should be reduced to HKD 5,200 and HKD 3,200 respectively. (b)  In Part A, costs in relation to the pleadings are set out.  Since counsel is involved, the time costs of the solicitors should be substantially reduced. (c)  In Part B, costs in relation to disclosure are set out.  Given that counsel is involved, the time costs of the solicitors should also be substantially reduced.  Further, only the fees of one counsel is allowed. (d)  In Part C and Part D, the time costs claimed by the solicitors is excessive and should be substantially reduced. (e)  Part E and Part H are costs of D2’s Setting Aside Application.  Those costs would be taken care of by the costs order made in that setting aside application. (f)  Part F, Item 11(1) – the time costs of the solicitors are clearly excessive and should be reduced. (g)  Part F, Item 11(2) is “Taking out interlocutory application(s) including but not limited to specific discovery (if so advised)”.  Mr Brown has fairly told me that Ds are not minded to take out further interlocutory application(s).  That being the case, I would ignore this item. (h)  Part G, Item 12(4) is “Time incurred by Jacquemoud Stanislas, [Ds]’ global advisors …” In response to the question from the Court, Mr Brown told me that Ds’ global advisors are some lawyers in Switzerland.  Mr Brown has confirmed that there would be no issue on Switzerland law in this case.  In the circumstances, I am of the view that there is no basis in support of Ds’ claim for the costs in this item. (i)  In Part G, in the other items, since counsel is involved, the time costs of the solicitors should be significantly reduced. (4)  Bearing all the aforesaid in mind, and by a broad-brush approach, I am of the view that the appropriate amount to be paid into court as security for Ds’ costs (assuming that Ds are entitled to have security for costs) should be HKD 700,000. C3. Conclusion on Ds’ Security Application 50.  For the reasons above, I would dismiss Ds’ Security Application.  Costs should follow the event.  There is no doubt that Mr Hui and Ms So have provided me very helpful assistance.  However, the complexity of Ds’ Security Application would not be sufficient for the purpose of justifying a certificate for 2 counsel.  There be a costs order nisi that costs of Ds’ Security Application be to P forthwith, and those costs be summarily assessed on paper without an oral hearing.  There be leave to P to lodge and to serve a bill of costs for summary assessment (limited to 3 pages) within 7 days after the costs order nisi becoming absolute, and leave to Ds to lodge and serve a list of objections (limited to 3 pages) within 7 days thereafter. D. D2’s SETTIG ASIDE APPLICATION D1. The principles 51.  The principles concerning MND have been set out by DHCJ Le Pichon in the March 2024 Reasons at §55, where the learned judge adopted the formulation of Coleman J in Hwang Joon Sang v Golden Electronics Inc[7]. The principles are as follows: (1)  An applicant making an ex parte application must act fairly in all material aspects when preparing and presenting the application. (2)  This includes the duty to disclose to the Court all matters which are material, meaning those matters material to the court’s assessment and decision whether or not to grant the relief without notice, and if so on what terms. (3)  The test as to materiality is an objective one, and ultimately a question for the court. Hence, it is no excuse for an applicant subsequently to say that he was generally unaware, or did not believe, that the facts were relevant or important. (4)  Non-disclosure may be material even if its effect is just to give a seriously different ‘flavour’ to the case. (5)  The duty of full and frank disclosure is a stringent one, designed to protect the absent party. (6)  Therefore, if material non-disclosure has occurred at the ex parte application, the order obtained at such an application would likely be set aside automatically without going into the merits. (7)  Nevertheless, there is a discretion to re-grant the same order.  That jurisdiction should be only sparingly exercised, taking into account the need to protect the administration of justice and uphold the public interest in requiring full and fair disclosure. (8)  Hence, an assessment will be made as to the degree and extent of the culpability with regards to the non-disclosure.  The more serious or culpable the non-disclosure, the more likely the court is to set its order aside and not renew it, however prejudicial the consequences. (9)  It is therefore relevant that the breach was innocent, but there is no general rule that an innocent breach will not attract the sanction of discharge.  Nor is there a general rule that a deliberate breach will attract that sanction. (10)  The application of principles which seek to uphold the integrity of the judicial process should not be carried to such lengths as will allow them to become the instrument of injustice. (11)  Because of the penal nature of the jurisdiction, the court should have regard to the proportionality between the punishment and offence. (12)  When exercising the discretion whether to re-grant the order, the court should take into account all relevant circumstances. D2. Grounds of the Application 52.  Mr Brown submits that the leave granted to P to commence committal proceedings should be set aside by reason of P failed to disclose the following in the ex parte application: (1)  D2’s 7th Aff, in which D2 has set out the steps taken by him to purge any inadvertent breaches of the injunction orders; (2)  the fact that the ex parte freezing order obtained by P in the Dubai International Financial Centre Court (“DIFC proceedings”) on 24 July 2023 was set aside on 27 December 2023, and P had withdrawn its complaint of contempt against D2 in the Dubai Court on the same basis; (3)  that P wrongly alleged D2 of breaching the Unless Order; and (4)  the remedial steps taken by D2 to purge the breaches of the injunction orders. 53.  In the hearing before me, Mr Brown has helpfully confirmed that the grounds relied upon by D2 are confined to those set out in counsel’s submissions. 54.  Mr Hui submits that there is no merit in these grounds, and the ex parte leave should not be set aside by reason of these matters. D2.1 Ground 1 – D2’s 7th Aff 55.  Mr Brown submits that: (1)  P did not include D2’s 7th Aff in the papers placed before the Court in the ex parte application for leave.  D2’s 7th Aff is of paramount importance, in which D2 has clearly stated: (a)  D2’s honest mistake that the December 2022 and the January 2023 Injunction Orders did not prevent him from dealing within his own bank accounts; (b)  D2’s immediate efforts in purging the breaches as soon as he learned of his error; (c)  D2’s replenishment of the Emirates A/Cs in the sum of USD7,244,023.97 on his own accord and initiative; and (d)  D2 volunteering further information to P in regard to his other frozen assets to provide P full security of its claims including his various global assets, bank account details, remaining balances and estimated value of other non-cash assets. (2)  P only drew the Court’s attention to D2’s 7th Aff on 2 September 2024 (66 days after D2’s 7th Aff was first provided to P) and only then by a brief reference in Chen 5th Aff. 56.  Mr Hui submits that: (1)  The Order 52 Statement was prepared and originally filed with the Court on 22 May 2024, before the filing of D2’s 7th Aff on 28 June 2024.  Due to an inadvertent mistake, when P refiled the papers on 5 July 2024 (as directed by Registrar KW Wong on 27 June 2024), P did not revise the Order 52 Statement to mention D2’s 7th Aff therein. (2)  However, P did file Chen’s 5th Aff on 2 September 2024 to provide the Court an update, including informing the Court the existence of D2’s 7th Aff and the points made by D2 in that affirmation. (3)  Leave was granted by the Court on 5 September 2024.  Prior to the granting of the leave, the Court had already been provided all the relevant information material to P’s application. 57.  I agree with Mr Hui and accept his submissions. (1)  In Chen’s 5th Aff, it is stated: “5. In [D2’s 7th Aff], [D2] claims that, among other things:- a. he has now replenished the 401, 402, 403, 404 and 405 Accounts (the “Dubai Accounts”) to an amount totalling approximately USD7,244,023.97. Copies of these Dubai Accounts as of 11 June 2024 were exhibited to [D2’s 7th Aff]; and b. he made an “inadvertent error” in the calculation of the total amount of assets subject to various freezes and that the amount is actually in the approximate range of USD l7,295,107.00 to USD 17,303,l07.00 (rather than USD 12,404,7l7.00 as previously stated in [D2’s 6th Affirmation]). This error was apparently caused by an omission of the aggregate value of assets owned by him in Angola and subject to seizure warrants by the Angolan authorities. [D2’s 7th Aff] provides a summary of these properties and their respective value. 6. As a result of the inclusion of the additional properties, Cuenda now avers he has provided full security in the range of USD 24,539,130.97 to USD 24,547,130.97 in purported compliance of the Jan 2023 Injunction Order. 7. Subsequently, Gall sent a letter dated 28 June 2024 to LHW (“Gall’s 28 June 2024 Letter") requesting that the Dec 2022 Injunction Order and Jan 2023 Injunction Order be varied having regard to [D2’s 7th Aff]. 8. LHW responded to Gal1’s 28 June 2024 Letter on 27 August 2024 disagreeing to the request on the basis that it is pre-mature and not appropriate in the circumstances for the reasons stated therein. Copies of these correspondence are exhibited at pages 1 to 5 of CM-8. 9. [P] a takes the view that the assertions in [D2’s 7th Aff] do not change the three breaches identified in Section F of the Statement of Contempt in that: a. [D2]’s assertion that he had made an “inadvertent error” in the calculation of the total assets is unconvincing and implausible. At all material times, [D2] was advised by CL and Gall in Hong Kong as well as various other law firms in other jurisdictions. b. The properties seized in Angola are in relation to local criminal proceedings in respect of, inter alia, [D2]’s wrongful conduct as a former director of [P]. These proceedings and the relevant properties are separate from the Action. In this regard, the properties were seized pending potential confiscation/forfeiture of the Angolan government, rather than as “security” that can be enforced by [P] in Angola. Meanwhile, the purported value of the properties set out in [D2’s 7th Aff] is without basis or justification. The purported value of the properties is mere conjecture without any supporting documents. c.   Gall’s 28 June 2024 Letter alludes to Switzerland bank accounts of [D2].  However, no bank statements have been disclosed or exhibited in [D2’s 7th Aff] verifying or corroborating the figures stated in the aforesaid letter.” (2)  As submitted by Mr Hui, all the points made by D2 in D2’s 7th Aff have been mentioned in Chen’s 5th Aff.  D2 in fact has not identified any salient parts of D2’s 7th Aff, which according to him, ought to have been, but were not drawn to the Court’s attention. (3)  Regarding the other assets mentioned in D2’s 7th Aff, those assets in fact are the properties seized by the Angolan government and the alleged deposits in the Switzerland bank account.  All these have been mentioned in Chen’s 5th Aff. (4)  Chen’s 5th Aff was filed on 2 September 2024, before the Court granting leave on 5 September 2024.  The existence of D2’s 7th Aff and the points made by D2 in that affirmation had been drawn to the Court’s attention before the Court making a decision on P’s ex parte application for leave. (5)  In the circumstances, in my view, it would not be reasonable to say that there is a MND because D2’s 7th Aff is not mentioned in the Order 52 Statement. 58.  There is no substance in Ground 1. D2.2 Ground 2 - DIFC Proceedings 59.  Mr Brown submits that: (1)  In the Order 52 Statement, P relied upon the DIFC proceedings and emphasized that P had successfully obtained an ex parte freezing order from the Dubai Court against D2 in respect of the funds in the Emirate A/Cs.  However, P failed to mention that the freezing order was set aside on 27 December 2024. (2)  P also failed to mention that in the DIFC proceedings, P complained to the Dubai Court on 28 June 2024 that D2 had breached the freezing order made by the court.  However, once P was provided with the documents from D2, including D2’s Dubai bank account statements, D2’s 6th Aff and D2’s 7th Aff, P withdrew the complaint from the Dubai Court.  These events are crucial in demonstrating P’s continuously oppressive behavior throughout its allegations of contempt against D2, and ought to be disclosed in the ex parte application for leave to commence committal proceedings against D2.  See Tiong King Sing v Sam Boon Peng Yee[8], §27. 60.  Mr Hui submits that: (1)  The DIFC proceedings, including the freezing order in those proceedings, are not material to the Court’s decision to grant leave to issue committal proceedings against D2.  The existence of the DIFC proceedings is only mentioned in the Order 52 Statement at §§27-28 as background to the Further Disclosure Application, for the fact that D2 had given contrary evidence as to the balance of the Emirates A/Cs as of March 2023 and for shedding light on the remaining funds as of July 2023.  P has never relied on any order(s) or developments in the DIFC proceedings as part of its case against D2 for the committal proceedings in the Hong Kong Court. (2)  In the circumstances, it cannot be said that there has been a MND by P since the setting aside of the freezing order in the DIFC proceedings is not mentioned in the ex parte application. (3)  Regarding D2’s complaint that P did not mention the withdrawn statement of alleged contempt in the DIFC proceedings, the DIFC proceedings are independent of the present action, and the orders made in the two jurisdictions are different.  An allegation of breach of an order made in the DIFC proceedings (withdrawn or otherwise) has nothing to do with whether D2 may have committed breaches of various Hong Kong orders mentioned in the Order 52 Statement. (4)  In circumstances where P does not rely on breach of any order made against D2 in the DIFC proceedings in support of P’s application for leave to issue contempt proceedings against D2 in Hong Kong, the alleged contempt and the subsequent withdrawal of the same in the DIFC proceedings is simply irrelevant and not material.  It is plainly not material to consideration of whether P’s application for leave in the Hong Kong proceedings was oppressive. 61.  Having considered the parties’ respective submissions, I am in agreement with Mr Hui. (1)  The DIFC proceedings are only mentioned in §§27 and 28 of the Order 52 Statement, the contents of which are as follows: “27. Separately, on 24 July 2023, [P] applied, and obtained, an ex parte freezing order from the Dubai International Financial Centre (“DIFC”) Court in respect of funds in the Emirates Accounts held by [D2].  ln such order, [D2] was also required to inform [P]’s legal representatives within 7 days of service of such order the balance of funds held in the Emirates Accounts and details of any transfers made therefrom since 19 January 2023. 28. At the return date hearing of the said ex parte freezing order on 4 August 2023, inter alia, [D2]’s legal representatives in Dubai served an unsigned witness statement from him together with copies of bank statements relating to various accounts held by him with the Emirates Bank, which revealed: (1) As of July 2023, the balance of Account 401 had been reduced to some AED 82, l 20.68; and the balance of Account 402 had been reduced to some USD 848,046.08. (2) Significant amounts had already been withdrawn from both the Emirates Accounts as of 14 March 2023.” (2) Mr Hui is correct in saying that P only mentioning the DIFC proceedings in the Order 52 Statement as background to the Further Disclosure Application.  P is not relying upon any order made in the DIFC proceedings in support of its ex parte application for leave to commence committal proceedings against D2. (3) Save and except alleging that P’s conduct in the DIFC proceedings is oppressive, D2 is unable to say that there is anything in the DIFC proceedings which may be relied upon by him in resisting the contempt proceedings proposed by P, and hence would need to be drawn to the Court’s attention in the ex parte application. (4) As to D2’s complaint that P’s conduct in the DIFC proceedings is oppressive, I am unable to agree.  Once the necessary information and documents were provided to P, P withdrew the complaint of contempt in the DIFC proceedings without delay and did not pursue the same. (5) In my judgment, D2 cannot make out a case of MND by relying upon the DIFC proceedings. 62.  There is no merit in Ground 2. D2.3 Ground 3 – wrongly alleged D2 of breaching the Unless Order 63.  §§34 and 53 of the Order 52 Statement is relevant to the parties’ respective arguments under this head, which is as follows: “34. On 22 February 2024, DHCJ Le Pichon made an Order extending time for compliance with the Further Disclosure Order by 7 days, on an unless basis (the “Unless Order”). …… F3. Breach of paragraph 1(a) of the Further Disclosure Order and the Unless Order – failure to provide further disclosure. 53. Particulars of breach: (1) By paragraph 1(a) of the Further Disclosure Order, [D2] was required to file and serve an affidavit/affirmation stating with full particulars the location, nature and value of all assets representing or derived from the traceable proceeds of funds held in the Emirates Accounts (which in turn constitute traceable proceeds of funds in the [DBS A/C]).  The time for such compliance was extended by the Unless Order to 29 February 2024. (2) However, in breach of paragraph 1(a) of the Further Disclosure Order and the time limit imposed by the Unless Order: (i) [D2] did not file or serve any such affidavit as of 29 February 2024.  Instead, it was only on 1 March 2024 that a notarized version of [D2’s 5th Aff] was purportedly filed and served under cover of the Affirmation of Wong Ronald Ka Long.  Notably, no further remedial steps to rectify the foregoing shortcomings of only filing the Affirmation of Wong Ronald Ka Long have been taken to date. (ii) On 29 February 2024, only the Disclosed Dubai Bank Statements were provided to LHW under cover of [CL]’s letter, but without any covering or verifying Affidavit by [D2] or otherwise.  Again, no further remedial steps to rectify the foregoing shortcomings of only filing the Disclosed Dubai Bank Statements without any Affidavit by [D2] or otherwise have been taken to date. Further, and in any event, the information purportedly disclosed by [D2] in [D2’s 5th Aff] (read together with the Disclosed Dubai Bank Statements) has failed to disclose with full particulars the location(s) and/or present nature and value of all traceable proceeds of funds in the Emirates Accounts constituting traceable proceeds of funds in the [DBS A/C]: (i) The total aggregate value of funds held in the accounts held with Emirates Bank disclosed by [D2] to date is approximately USD 1.1 million. (ii) However, the total traceable proceeds transferred to the Emirates Accounts from the [DBS A/C] are some USD 18 million …… (iii) In other words, there is a balance of at least some USD 16.9 million which had been paid out of or otherwise disposed from the Emirates Accounts which remains unaccounted for, the location and/or value of which has not been disclosed by [D2].” 64.  Mr Brown submits that: (1)  P included a factually incorrect statement in §53(1) of the Order 52 Statement, which stated “the time for such compliance [of the Further Disclosure Order] was extended by the Unless Order to 29 February 2024.”  P then, based on its own wrong calculation of the deadline, wrongly accused D2 of breaching the Unless Order in the Order 52 Statement. (2)  In the Order 52 Statement, P failed to disclose that on 6 March 2024, Gall wrote to LWH and pointed out that the deadline for complying with the Unless Order should be 1 March 2024. (3)  P did not update the Court at any time after realizing that it made a mistake in computing the time pursuant to its ongoing duty of full and frank disclosure. 65.  In the hearing before me, there is no dispute that the deadline for complying the Unless Order should be 1 March 2024.  However, Mr Hui submits that: (1)  The crux of the breach set out at §53(2)-(3) of the Order 52 Statement is that D2’s 5th Aff and/or the Dubai Bank Statements produced on 29 February 2024  did not provide full disclosure of the traceable proceeds of funds in the Emirates A/Cs as required in the Further Disclosure Order. (2)  Further, even on the basis of a 1 March 2024 deadline, D2 had not filed any further affidavit by that date, as D2’s 5th Aff was only filed on 4 March 2024. (3)  After all, in the Order 52 Statement, P had set out the contents of the Unless Order made on 22 February 2024, which extended time for compliance by 7 days;  and the precise dates of (a) CL’s disclosure of bank statements; and (b) the filing of the solicitor’s Affirmation exhibiting D2’s 5th Aff.  The duty of giving full and frank disclosure of material facts has been done. (4)  Even if the inaccuracy of the deadline imposed by the Unless Order as stated in the Order 52 Statement is potentially relevant, this would not justify setting aside the ex parte leave, as it is at most a pure technicality that has not caused any prejudice to D2 in any way.  D2 has not been affected in any way by the reference to 29 February 2024 as a deadline or to the omission of Gall’s letter dated 6 March 2024 in the Order 52 Statement.  The point now being put forward by D2 is an example of nit-picking. 66.  In my view, reading §53 of the Order 52 Statement as a whole, the real complaint made by P is that D2 has not fully complied with the Further Disclosure Order at any time.  The true meaning of the complaint has been clearly set out in §53(3).  The crux of the breach is not late disclosure, but no full compliance with the Further Disclosure Order at any time.  In the circumstances, I would not regard the wrong reference to the deadline imposed by the Unless Order in the Order 52 Statement, and the omission of Gall’s letter dated 6 March 2024 in the Order 52 Statement, as material matters in P’s ex parte application. 67.  I do not accept Ground 3. D2.4 Ground 4 – failure to mention the remedial steps taken by D2 to   purge the breaches of the injunction orders 68.  Mr Brown refers me to RACP Pharmaceutical Holdings Ltd v Li Xiaobo[9], in which DHCJ Gill said: “5. The application being made ex parte it behoves the applicant to make full and frank disclosure of all pertinent issues. If there is material non-disclosure that will amount to strong grounds for setting aside leave already granted, the more so in the case of an application for leave to bring committal proceedings. This also applies to the situation where information comes to light post the application and before the substantive hearing; for instance, where the threat of disposition has been removed by steps taken by the contemnor to purge his contempt.” (Emphasis added by counsel) 69.  Mr Brown submits that: (1)  In March 2024, Gall replaced CL as solicitors acting for Ds.  D2 was then immediately advised by Gall that his actions (of transferring funds within his own accounts) would amount to breaches of the injunction orders and since then, D2 has made continuous efforts to take remedial steps and purge these breaches. (2)  D2 disclosed Dubai Bank Statements by exhibiting these to D2’s 6th Aff, which was filed and served under the cover of the 2nd Affirmation of Wong Ronald Ka Long on 21 March 2024 and the original notarised version was filed and served on 28 March 2024.  P has wrongly stated in §53 of the Order 52 Statement that the Dubai Bank Statements were filed without any affidavit by D2 or otherwise. 70.  With respect, there is no substance in Ground 4.  In my view, what D2 has done and has not done have been accurately summarized in the Order 52 Statement and Chen’s 5th Aff.  It is clear that D2 has not purged all his breaches of the injunction orders.  71.  Regarding the Dubai Bank Statement, D2 said in §4 of D2’s 6th Aff that he produced “the documents [CL] provided to [LHW] under cover of their letter dated 29 February 2024” as an exhibit.  The Dubai Bank Statements are among the documents under the cover of that letter.  However, P’s complaint in §53(2)(ii) of the Order 52 Statement is that there has been no affidavit made by D2 verifying the disclosed Dubai Bank Statements.  I do not read §4 of D2’s 6th Aff as a paragraph verifying the disclosed Dubai Bank Statements.  In my view, what has been said by P in §53(2)(ii) of the Order 52 Statement is correct. D3. Conclusion on D2’s Setting Aside Application 72.  In my judgment, there is no merit in any of the grounds in support of D2’s Setting Aside Application.  The application ought to be dismissed with costs. 73.  For the reasons above, I would dismiss D2’s Setting Aside Application. Costs should follow the event.  Again, the assistance rendered by Mr Hui and Ms So to this Court is much appreciated.  However, there is no sufficient complexity in this application justifying a certificate for 2 counsel. There be a costs order nisi that costs of D2’s Setting Aside Application be to P forthwith, and those costs be summarily assessed on paper without an oral hearing.  There be leave to P to lodge and to serve a bill of costs for summary assessment (limited to 3 pages) within 7 days after the costs order nisi becoming absolute, and leave to D2 to lodge and serve a list of objections (limited to 3 pages) within 7 days thereafter. E. DISPOSITION 74.  I make the orders as set out in §§50 and 73 above. 75.  Lastly, it remains for me to thank all counsel for the helpful assistance rendered to the Court.   (MK Liu)   Deputy High Court Judge    Mr Norman Hui and Ms Natalie So, instructed by CMS Hong Kong LLP, for Plaintiff Mr Toby Brown, instructed by Gall, for 1st and 2nd Defendants [1] On 29 January 2024, DHCJ Le Pichon allowed P’s application for an ancillary disclosure order against D2.  On 5 February 2024, the learned judge handed down Reasons for the Decision. [2][2] Chen Mengyi is a solicitor in LHW. [3] HCMP 1029/2013, 8 July 2015 [4] The accuracy of the English translation of the Consortium Agreement is not in dispute. [5]Cupiday (Tianjin) Mobile Network Technology Co Ltd v Ping An Bank Co Ltd[2024] HKCFI 3229, per Tam J at §8 [6] Exhibited in the 9th Affirmation of Wong Ronald Ka Long dated 30 April 2025 [7][2021] HKCFI 2425, §37 [8] [2015] 1 HKLRD 981 [9] [2008] HKEC 627:    [2024] HKCFI 715-EN-2024-03-08 CARMON REESTRUTURA-ENGENHARIA E SERVICOS TÉCNICOS ESPECIAIS(SU) LIMITADA v. CARMON RESTRUTURA LTD AND ANOTHER HTML content HCA 1812/2022 [2024] HKCFI 715 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE ACTION NO 1812 OF 2022 ____________________ BETWEEN   CARMON REESTRUTURA-ENGENHARIA Plaintiff   E SERVICOS TÉCNICOS ESPECIAIS(SU)     LIMITADA     and     CARMON RESTRUTURA LIMITED 1st Defendant   ANTONIO JOAO CATETE LOPES CUENDA 2nd Defendant ____________________ Before: Deputy High Court Judge Le Pichon in Chambers (Open to Public) Date of Hearing: 22 February 2024 Date of Decision: 22 February 2024 Date of Reasons for Decision: 8 March 2024 _________________________________ R E A S O N S  F O R  D E C I S I O N _________________________________ Introduction 1.  This was the application by summons dated 8 June 2023 (“the Summons”) taken out by Carmon Restrutura Limited (“D1”) and Antonio Joao Catete Lopes Cuenda (“D2”) (collectively “the Defendants”) against Carmon Reestrutura-Engenharia E Servicos Técnicos Especiais (Su) Limitada (“the Plaintiff”) (1) to discharge the injunction orders made by Au-Yeung J on 16 March 2023 (the “Injunction Orders”) against the Defendants; (2) to dispute the jurisdiction of this Court in favour of the Court of Luanda, Angola (the “Angolan Court”); and (3) that time for compliance with §2 of the order dated 11 May 2023 of Master Phoebe Man (“the May Order”) for the Defendants to file their defence and counterclaim be extended to 28 days after the final disposal of the Summons. 2.  On 20 February 2024, two days prior to the hearing of the Summons, the Defendants took out a summons (“the 2nd Summons”) to extend time for the Defendants to comply with §1 of the order this Court made on 29 January 2024 (“the January Order”). They sought 21 days from the date of the order herein for compliance notwithstanding the time to do so has expired. 3.  At the conclusion of the hearing, this Court made the following orders: (A) The Summons: (1)  the Summons be dismissed; and (2)  unless the Defendants do file and serve their defence and counterclaim within 28 days from the date hereof, the Defendants be debarred from so doing; (3)  the costs of and occasioned by the Summons, including all costs reserved, be to the Plaintiff with certificate for 2 counsel, such costs to be summarily assessed and payable forthwith. (B) The 2nd summons (1)  unless the 2nd Defendant do file and serve an affidavit/affirmation in compliance with paragraph 1 of the Order of Deputy High Court Judge Le Pichon dated 29 January 2024 (“the Order”) within 7 days from the date hereof, the 1st and 2nd Defendants may face contempt proceedings; (2)  unless the 2nd Defendant do produce copies of the documents in compliance with paragraph 2 of the Order within 7 days from the date hereof, the 1st and 2nd Defendants may face contempt proceedings; and (3)  the costs of the 2nd Summons be paid by the 1st and 2nd Defendants to the Plaintiff with certificate for 2 counsel, such costs to be summarily assessed and payable forthwith. Background 4.  The Injunction Orders granted a proprietary injunction prohibiting D2 from disposing of or diminishing the value of the funds up to the value of approximately USD 23.6 million held in an account in the name of D1 with DBS Bank (Hong Kong) Limited (the “D1 DBS Account”) or traceable proceeds thereof. The prohibition extended to funds transferred from the D1 DBS Account into various accounts specified the Injunction Orders until final judgment or until further order of the Court. 5.  The Plaintiff is an Angolan company carrying on business in construction, civil engineering and public works in Angola. 6.  Until sometime in August 2022, D2 was at all material times a “Director General” and “director” of the Plaintiff. 7.  Sometime in 2016, the Plaintiff’s engineering director came to be introduced to a Chinese company known as CR20. D2 (in his capacity as a director/employee of the Plaintiff) then engaged in discussions with CR20 alongside the engineering director. This culminated in the Plaintiff and CR20 entering into 2 memoranda of cooperation (“MOCs”) respectively dated 11 February 2016 and 17 October 2016 for cooperation in public tender for construction projects relating to access to a new airport in Luanda. 8.  During subsequent negotiations for the subcontract arrangements with CR20, the Plaintiff was informed that the majority of payments by CR20 would be in USD. Given the difficulties with international remittances outwards from Angola, the Plaintiff decided to set up a branch/subsidiary in Hong Kong to maintain an offshore account in USD and receive relevant project fees from CR20. 9.  According to the Plaintiff, given D2’s role at the time as a trusted employee, the Plaintiff further decided that as a matter of convenience and efficiency D2 should set up the branch/subsidiary as its registered sole shareholder and director. The Plaintiff also instructed D2 to cause D1 to open the D1 DBS Account. 10.  D2 maintains that he is the sole owner of D1. D2 denies that he held D1 on trust for the Plaintiff and further denies that the monies in D1 DBS Account were held on trust for the Plaintiff. D2 maintains that he has always been the ultimate owner of D1 which he set up on his own volition and pursuant to the business arrangement that D2 had made with CR20. 11.  D1 was incorporated in Hong Kong on 1 December 2016. D2 is the sole director and shareholder of D1. 12.  Given the Plaintiff’s need to settle expenses/costs incurred in rendering the relevant construction services vis-a-vis CR20, and D1’s role as designated payee, on 30 January 2017, the Plaintiff and D1 entered into a consortium agreement which defined and delineated their respective roles. It contained an exclusive jurisdiction clause (“EJC”) in favour of the Angolan court. 13.  For example, D1 was authorised (a) to make payments of the Plaintiff’s invoices on the latter’s behalf; and also pay directly the salaries, remunerations and bonuses of the Plaintiff’s employees (§§1.4 and 1.6); (b) to assume obligations for and on behalf of the Plaintiff by delegation (§1.5). Certain other provisions are considered in §§21, 23 and 29 below. 14.  According to the Plaintiff, in May 2022, in order to maintain control over D1 held in D2’s name by setting up a bank account with Compagnie d’Investissements et de Gestion Privée (“CIGP”) in Switzerland, the Plaintiff was asked to justify the transfer of funds[1] from D1 to the Plaintiff. As a result, to crystallise the arrangement amongst the Plaintiff, and the Defendants, the Nominee Services Agreement (“NSA”) was executed in or around May 2022 (and backdated to 16 November 2016). It contains an EJC and provided that the place of performance of the NSA, exclusive place of jurisdiction for lawsuits and any other kind of legal proceedings shall be Hong Kong SAR. 15.  D2 challenges the authenticity of the NSA and denies that he ever signed or agreed to its terms in any way. 16.  From June 2022 onwards, the relationship between the Plaintiff and D2 began to sour. D2 resigned as both an employee and director on 9 August 2022. However, despite the Plaintiff’s requests, D2 failed to transfer back to the Plaintiff the shareholding in D1. Then in early November 2022, D2 also failed to facilitate transfers from the D1 DBS Account as he had done previously. 17.  On or about 7 December 2022, the Plaintiff’s Director of Accounting and Finance, Adelina Marisa Dos Anjos Faria Martins (“Ms Martins”) discovered that she was unable to access the D1 DBS Account at all. 18.  It transpired that D2 had changed the online banking log-in details and then caused transfers totalling USD 22,549,975 from the D1 DBS Account to various of his personal accounts on various dates from 19 to 30 December 2022. 19.  The Plaintiff filed a writ against the Defendants on 21 December 2022. It then obtained the Injunction Orders as well as a banker’s order against DBS Bank. 20.  The claims made in the statement of claim (“SOC”) filed on 10 March 2023 are: (1)  against D1, breach of trust by effecting transfers of approximately USD 22.6 million to D2’s various accounts (2)  against D2, (a) breach of the NSA and/or director’s duties; (b) breach of trust by failing to transfer the shareholding in D1 to the Plaintiff: (c) knowing receipt and/or dishonest receipt of the monies transferred out of D1 DBS Account into his various personal accounts; and (e) unjust enrichment. Jurisdiction 21.  Mr Alan CL To, counsel for the Defendants, submitted that only the Angolan court has jurisdiction to decide the Plaintiff’s claims because of the EJC in the consortium agreement. 22.  The Defendants submitted that as the consortium agreement governs the relationship of D1 and the Plaintiff, whether or not a trust exists between the Plaintiff and Defendants is related to issues arising from the consortium agreement. 23.  For that proposition, Mr To relied on one of the recitals and §§ 1.1 and 1.1 (a) which are in the following terms: “WHEREAS, the companies [the Plaintiff and D1] (hereinafter referred to individually as a “Party” and jointly as “the Parties”), although having their own legal personality and its own assets, maintain among themselves an economic relationship, since they are under the control of the same Direction, having a convergence of interests, which leads them to act in a regime of financial and commercial cooperation; 1. Subject of the Contract 1.1 The Parties wish to promote an integration of their capacities and experiences for the purpose of incorporate the present Consortium Agreement, under the terms of Article 12 of Law no 19/03 of the 12 August (hereinafter simply “CONSORTIUM”), as follows: a) To establish the bases and principles according to which the Parties, under the integration of their capacities and experiences; the establishment of strategic alliances; the sharing of obligations and benefits in common projects, specially projects and works in which [the Plaintiff] is performing at the Republic of Angola, to execute the contracted services with quality.” 24.  He emphasized the fact that the consortium agreement delineated the respective roles of the Plaintiff and D1, that D1 was “not a simple subsidiary[2]”, and that it was incorporated at the time the consortium agreement was created. The Defendants’ position is that the interpretation of the consortium agreement supports D2’s case that he set up D1 as an independent company which he owns. 25.  The Plaintiff and CR20 are parties to the MOCs and not D2. §15 of D2’s 2nd affirmation dated 16 August 2023 (“D2 2nd”) set out what D2 described is the business strategy and arrangements he had made with CR20 (“the Arrangement”)[3]. One feature of the Arrangement involved D2 setting up an independent company vehicle (which according to D2 later became D1) to maintain business relations and negotiations with CR20. 26.  D2 did not adduce any evidence (other than his bald assertions) to substantiate the existence of the Arrangement. 27.  Mr Norman Hui and Ms Natalie So, counsel for the Plaintiff, referred to §14 of the 1st affidavit of Ms Martins dated 15 February 2023 (“Martins 1st”) which explained how the expenses incurred for setting up D1 were settled. Ms Martins also exhibited a letter from CR20 to the Plaintiff dated 30 January 2018 together with D1’s incorporation documents. They show that CR20 (and not D2) had arranged for the incorporation of D1 and settled the expenses incurred for setting up D1. 28.  The matters set out in the preceding paragraph contradict and undermine a key element of the Arrangement. Further, D2 remained the Plaintiff’s employee until sometime in August 2022. It is, to say the least, far from clear how his duties and obligations as an employee can be reconciled with his being party to the Arrangement. 29.  As regards the consortium agreement (to which D2 is also not a party), the Plaintiff invited attention to §§1.7, 3.2[4] and 5.4 which provide as follows: “1.7 [The Plaintiff] is identified as the leader of this CONSORTIUM. 3.2 All technical and commercial decisions of the CONSORTIUM AGREEMENT shall be taken by [the Plaintiff]. 5.4 The payments that must be provided by [D1] shall have previous approval of the shareholders of [the Plaintiff], under the presentation of a formal budget that might list all the transfers and payments requested by the Chief of the Consortium.” 30.  The consortium agreement was made between the Plaintiff and D1 approximately 2 months after D1’s incorporation. It is clear from the provisions set out in the preceding paragraph that the Plaintiff had the ultimate say in all matters concerning the consortium and whose prior approval is required for payments to be made by D1. That arrangement shows that D1 had to abide by the Plaintiff’s decisions. That does not support D2’s claim to be the sole owner of D1. 31.  As regards the Plaintiff’s execution of projects for CR20 based on the consortium agreement, Ms Martins explained[5] the invoicing mechanism between D1 and CR20 and between the Plaintiff and D1 that resulted in the 90/10 split between the Plaintiff and D1 of sums received from CR20. Experience showed that 90% of the sum received from CR20 in D1 DBS Account would be roughly sufficient to satisfy the daily cash flow need of the Plaintiff. The remaining 10% in the D1 DBS Account was for satisfying the Plaintiff’s ongoing obligations arising from the CR20 subcontracting agreements. 32.  One of the factors D2 relied to show his control over D1 is the operation of the D1 DBS Account. D2 exhibited messages exchanged[6] between the Ms Martins, the Plaintiff’s CFO and D2. Completion of each transaction required a code, that being the modus operandi for the account. For each transaction, D2 provided the code and Ms Martins carried out the transaction. 33.  The Plaintiff submitted that what the exchanges actually show is that D2 was merely a conduit for payments to service providers, wages etc. 34.  The messages themselves are ambiguous and could support either reading. That D2 as director of D1 was in control of the code is hardly surprising since he was the authorised signatory of that account. That fact of itself is not determinative: it has to be evaluated against the backdrop of the provisions in the consortium agreement set out in §29 above. Against that backdrop the Plaintiff’s reading is the more probable. 35.  Turning to the NSA, it is the Plaintiff’s case that it was executed sometime in May 2022 and backdated to 16 November 2016. The parties to it are D2 as “Nominee” and the Plaintiff as “Real Owner”. As noted in §14 above, it has an EJC giving exclusive jurisdiction to the Hong Kong court. 36.  The Defendants accept that parties are free to backdate a contract such that it takes effect retrospectively: Achieve Goal Holdings Limited v Zhong Xin Ore-Material Holding Company Limited[2018] HKCFI 2718 at §267. 37.  They question the authenticity and existence of the NSA. Martins 1st (at §13(1)[7]) stated that D2 and the Plaintiff signed the NSA on 16 November 2016, prior to D1’s incorporation. However, SOC §13[8] stated that it was entered into sometime in May 2022 but was backdated to 16 November 2016. 38.  As noted in §14 above, the need for the NSA was in relation to the establishment of an account at CIGP[9]. Exhibited to Martins 2nd is CIGP’s letter dated 23 May 2022[10] referring to the opening of the Plaintiff’s account as well as 3 sets of messages exchanged between (1)  Ms Martins and Christopher Hartung (“Mr Hartung”) of CIGP[11]; (2)  Ms Martins and D2[12]; and (3)  Mr Hartung and Mayra Isungi Campos Costa (“Ms Costa”)[13], the owner of the Plaintiff. 39.  The first two sets of exchanges took place on 13 May 2022 and the third on 20 June 2022. 40.  The Defendants’ written submissions stated that D2 confirmed that he never agreed to the NSA nor signed it and that the NSA is a forged document[14]. In light of the matters set out in §§38 and 39 above, the Defendants’ claims do not appear to be well-founded. As far as forgery is alleged, it remains pure conjecture as D2 has not adduced any evidence in support. 41.  As regards the EJC in the NSA, Mr To went so far as to submit that there are “strong reasons to effectively ignore” that EJC. Apart from the matters raised in §37 above, he relied on other matters in relation to forum non conveniens considered in §§46-52 below. 42.  The EJC in the consortium agreement is not engaged unless there are “issues arising out of [the consortium agreement]”. 43.  The issues the SOC[15] raises concern the ownership of shares in a Hong Kong company. The claims made against the Defendants relate to Hong Kong trust law. The question whether or not D1 is the Plaintiff’s nominee is a question of trust law not an issue that arises out of the consortium agreement. 44.  As D2 is not even a party to the consortium agreement, it is difficult to see on what basis he could invoke the EJC. Although the Defendants sought to suggest that D2’s ‘interest’ in D1 would somehow enable D2 to invoke the EJC, having considered the matters relied on in support[16] they do not advance the Defendants’ case at all. 45.  Be that as it may, I turn to consider the other issue raised. Forum non conveniens (“FNC”) 46.  The Defendants made much out of the fact that the resolution of the issues in the present case involves Angolan law and thus evidence from Angolan law experts. 47.  The manner in which Angolan law reared its head in the present case is ‘unconventional’ to say the least. The Plaintiff invited attention to the fact that it first arose in D2 2nd. At §66, after stating: “… I have been advised by my Angolan lawyers that …” D2 proceeded to set out 3 propositions representing D2’s understanding of the legal advice he received. This was followed by more statements on Angolan law in §§68, 69 and 79. 48.  Instead of addressing an Angolan legal expert report, the Plaintiff’s Angolan law expert Silvino Domingos (“Mr Domingos”) had to deal with a layman’s allegations on Angolan law. 49.  Mr Domingos’s affidavit dated 28 September 2023 addressed (1)  the “trust” issue[17] from the perspective of Angolan law of “mandate without representation” regulated by the Angolan Civil Code[18]; and (2)  the issue raised in §§67-69 of D2 2nd that Luanda is the proper forum also from the perspective of Angolan law[19]. 50.  Contrary to what the Defendants submitted, the Plaintiff’s expert addressed those issues under Angolan law and not Portuguese law as the Defendants’ written submissions sought to suggest. Mr Hui submitted that the Defendants’ assertion of the Plaintiff’s expert using only Portuguese law is entirely fallacious. I agree. 51.  The primary documents and witnesses necessary for the determination of the claims raised in the SOC are as follows: (1)  documents identified in the SOC (a)  in Angolan: D2’s employment agreement, the consortium agreement and Angolan Companies Law (SOC §§3, 16 and 40) (b)  in English: a DBS account document, the NSA, and the DBS bank balance document of 31 October 22 (SOC §§11, 13 and 29) (c)  in Angolan and English: MOCs (§§4, 5 & 14) (d)  in English and Chinese: Sub-contract agreements (SOC §15) (2)  witnesses include Ms Martins, Ms Costa, Mr Hartung, the DBS manager Kenneth Sit (“Mr Sit”) and Chen Lei (“Mr Chen”) of CR20. 52.  None of the documents is in Portuguese. The affidavits of Ms Costa and Ms Martins do not have a translation clause. This means that they are conversant with English. The messages Mr Hartung exchanged with Ms Costa are in English. The emails passing between Mr Sit and Ms Martins are in English. Mr Chen’s language is Chinese. It is unclear whether he is conversant with English. Conclusion on jurisdiction 53.  None of the factors considered points to Angola rather than Hong Kong as the appropriate forum. The causes of action arising in these proceedings and the determination of the issue of beneficial ownership of shares of D1, a Hong Kong company, all point to Hong Kong as the most appropriate forum. Further, there is no valid reason for not giving effect to the EJC in the NSA. 54.  In my view, the Defendants have failed to show any proper basis for granting a stay of these proceedings. Discharge application 55.  It is common ground that the relevant principles concerning material non-disclosure were summarised (without reference to previous authority) by Coleman J in Hwang Joon Sang v Golden Electronics Inc[2021] HKCFI 2425 at §37[20]: “(1) An applicant making an ex parte application must act fairly in all material aspects when preparing and presenting the application. (2) This includes the duty to disclose to the Court all matters which are material, meaning those matters material to the court’s assessment and decision whether or not to grant the relief without notice, and if so on what terms. (3) The test as to materiality is an objective one, and ultimately a question for the court. Hence, it is no excuse for an applicant subsequently to say that he was generally unaware, or did not believe, that the facts were relevant or important. (4) Non-disclosure may be material even if its effect is just to give a seriously different ‘flavour’ to the case. (5) The duty of full and frank disclosure is a stringent one, designed to protect the absent party. (6) Therefore, if material non-disclosure has occurred at the ex parte application, the order obtained at such an application would likely be set aside automatically without going into the merits. (7) Nevertheless, there is a discretion to re-grant the same order. That jurisdiction should be only sparingly exercised, taking into account the need to protect the administration of justice and uphold the public interest in requiring full and fair disclosure. (8) Hence, an assessment will be made as to the degree and extent of the culpability with regards to the non-disclosure. The more serious or culpable the non-disclosure, the more likely the court is to set its order aside and not renew it, however prejudicial the consequences. (9) It is therefore relevant that the breach was innocent, but there is no general rule that an innocent breach will not attract the sanction of discharge. Nor is there a general rule that a deliberate breach will attract that sanction. (10) The application of principles which seek to uphold the integrity of the judicial process should not be carried to such lengths as will allow them to become the instrument of injustice. (11) Because of the penal nature of the jurisdiction, the court should have regard to the proportionality between the punishment and offence. (12) When exercising the discretion whether to re-grant the order, the court should take into account all relevant circumstances.” 56.  The Defendants submitted that the injunction should be discharged for material nondisclosure of (a) the annex to the consortium agreement; (b) the draft assignment given to D2 on 2 August 2022; and (c) the backdating of the NSA. (a) the annex 57.  The complaint relates to the Plaintiff’s failure to produce the annex referred to in §4.1 of the consortium agreement which specified the share ratio of the Plaintiff and D1 of 90:10. The Plaintiff’s position is that the annex was not part of the consortium agreement but was an internal document produced to explain the fund flow[21] of payments received from CR20. 58.  Irrespective of the above, the Plaintiff submitted that the omission of the annex was not material to the Court’s assessment and the decision at the ex parte stage in granting the injunctions. The injunction application was predicated upon serious issues to be tried as to the proprietary interest in the D1 DBS Account. The share ratio between the Plaintiff and D1 within the consortium agreement does not impinge on the Plaintiff’s breach of trust claim. 59.  Further, Martins 1st at §18 filed in support of the injunction application disclosed that for the purpose of §6.2 of the consortium agreement, the Plaintiff’s “percentage of participation” was 90%. That necessarily reflected a 10% stake for D1. (b) the draft assignment 60.  This was raised in §§29 and 32 of D2’s 4th affidavit dated 20 December 2023 filed in reply to the Plaintiff’s affidavits without any opportunity for the Plaintiff to respond. 61.  As submitted by the Plaintiff, the draft as such has no evidential value. D2’s counterparty in the draft assignment is an entity known as “SST Participacoes SA” which is not Plaintiff. 62.  Further, the contemplated transfer of D2’s shares in D1 was HK$10,000, an amount that in all likelihood reflects the par value of those shares. It does not assist D2’s case of absolute ownership of a valuable company. (c) backdating of the NSA 63.  As earlier considered (in §35-40 above), backdating has no bearing on the validity of the NSA, a document that gives expression to the parties agreement that it should take effect as of 16 November 2016, prior to the incorporation of D1. What is stated in Martins 1st at §13 (1) aligns with the legal effect and reality of the agreement. 64.  In any event, on 10 March 2023, prior to the Injunction Orders in question, the Plaintiff filed its SOC and pleaded in detail the backdating of the NSA. In those circumstances, when the Injunction Orders were granted, the judge would have been aware of this fact. Conclusion on the discharge application 65.  Applying the relevant principles to those matters, I consider that the Defendants have failed to make out a case of material nondisclosure that would warrant the discharge of the Injunction Orders.     (Doreen Le Pichon) Deputy High Court Judge Mr Norman Hui and Ms Natalie So, instructed by Lau, Horton & Wise LLP, for the Plaintiff Mr Alan C L To, instructed by Cheung & Liu, for the 1st and 2nd Defendants [1]  See §32 below. [2]  The meaning of this phrase is unclear. [3]  While no specific date was mentioned, it would have preceded the MOCs made in 2016 mentioned in §8 above. [4]  Although numbered as §4.2 in the consortium agreement, it is clear from perusing the numbering used under §3 (page 5) of the document, that it was a typographical error for §3.2. [5]  Martins 1st at §18. [6]  AJC-11 at B/51/814-818. [7]  Dated 15 February 2023. [8]  Dated 10 March 23. [9]  See §14 above. [10]  B4/46/728. [11]  B4/62/891 where, following the caption "Nominee agreement [Plaintiff] 25.11. 2016 PDF", Ms Martins requested Mr Hartung to correct D2’s name. [12]  B4/63/892-893 where, Ms Martins informed D2 that Mr Hartung was not online and asked whether D2 wished to call him, adding that she had forwarded the NSA to Mr Hartung for the correction. [13]  B5/77/1046-1047 where Mr Hartung confirmed that the document was signed and all was in order. [14]  The Defendants' written submissions at §30. [15]  See §20 above. [16]  See §§21-40 above. [17]  Raised in D2 2nd at §§66. [18]  Mr Domingos's affidavit at §§28-35. [19]  At §§36-43. [20]  Cited in Han Jaejoon v Lee Sang Young[2023] HKCFI 2202 at §39. [21]  Martins 5th dated 28 September 2023 at §20. [2024] HKCFI 435-EN-2024-02-05 CARMON REESTRUTURA-ENGENHARIA E SERVICOS TÉCNICOS ESPECIAIS(SU) LIMITADA v. CARMON RESTRUTURA LTD AND ANOTHER HTML content HCA 1812/2022 [2024] HKCFI 435 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE ACTION NO 1812 OF 2022 ____________________ BETWEEN   CARMON REESTRUTURA-ENGENHARIA E SERVICOS TÉCNICOS ESPECIAIS(SU) LIMITADA Plaintiff   and     CARMON RESTRUTURA LIMITED 1st Defendant   ANTONIO JOAO CATETE LOPES CUENDA 2nd Defendant ____________________ Before: Deputy High Court Judge Le Pichon in Chambers (Open to Public) Date of Hearing: 29 January 2024 Date of Decision: 29 January 2024 Date of Reasons for Decision: 5 February 2024 ______________________________ REASONS FOR DECISION ______________________________ 1.  This was the Plaintiff’s application by an inter partes summons dated 6 November 2023 (“the 2023 Summons”). The application arose out of proprietary injunctions P had obtained in respect of its funds in D1’s account held with DBS Bank (“D1 DBS account”). 2.  P’s application is for ancillary disclosure from D2 in respect of assets which represent or are derived from the proceeds of the assets held in the D2’s bank accounts held with Emirates NBD Bank PJSC (referred to as “the 401 account” and “the 402 account”, collectively, “the Emirates Accounts”). Funds in those accounts represent traceable proceeds of funds held in the D1 DBS account. P also sought documents described in the Schedule to the Summons relating the Emirates Accounts. 3.  At the conclusion of the hearing, I made an order in terms of the Summons. My reasons appear below. Background facts 4.  The Plaintiff is an Angolan company engaged in construction and civil engineering works in Angola. D1 is a Hong Kong company intended to be a branch/subsidiary of the Plaintiff to facilitate receipts and payments from a business partner. 5.  D2 was a Director General and director of the P until August 2022. As a matter of convenience, when D1 was set up, D2 became its sole registered shareholder and director. Pursuant to the P’s instructions, D2 caused D1 to open the D1 DBS account for receipt of funds by D1 on behalf of D2. 6.  Between June and August 2022, the relationship between P and D2 deteriorated, with D2 resigning as employee and director on 9 August 2022. However, D2 failed to transfer back to P its shareholding in D1. 7.  On 7 December 2022, P was unable to access the D1 DBS account at all as a result of D2 having changed the online banking login details after which D2 caused transfers in excess of USD $22.5 million to be made from the D1 DBS account to various of his personal accounts including the Emirates accounts. 8.  When the above came to P’s knowledge, on 28 December 2022, P filed a summons (“the 2022 Summons”) for a Mareva injunction as well as a summons for a bankers books disclosure order (“the 2nd 2022 Summons”). 9.  On 30 December 2022, P obtained the following orders from Recorder William Wong SC: (a)  On the 2022 Summons, an injunction order (i) granting a domestic proprietary injunction over the funds held in the D1 DBS account (“the Subject Funds”); (ii) requiring Ds to inform P’s solicitors of the location, nature and value of all assets that represented the proceeds or fruits of the Subject Funds; and (iii) granting a domestic Mareva injunction against D2 to the value of approximately USD 23.7 million (“the 2022 Injunction order”); and (b)  On the 2nd 2022 Summons, a Bankers books order against DBS Bank in respect of the D1 DBS account (“the Bankers books order”). 10.  The 2022 Injunction order and the Bankers books order are collectively referred to as “the December 2022 orders”. 11.  On 19 January 2023, P obtained a further ex parte injunction order obtaining relief similar to that granted in the 2022 Injunction order but on a worldwide basis (“the January 2023 order”). 12.  D2 filed his affidavit on 14 March 2023 (“Cuenda 1st”) purportedly complying with the 2022 Injunction order and the January 2023 order confirming that (a)  approximately USD 1.18 million remained in the D1 DBS account as of the date of Cuenda1st ; and (b)  approximately USD 899,000 (AED 3.3 million) had been transferred from the D1 DBS account to the 401 account and USD 17.4 million had been transferred from the D1 DBS account to the 402 account. 13.  On 16 March 2023, Au-Yeung J made 2 orders by consent effectively continuing the 2022 Injunction order and the January 2023 order (collectively “the March 2023 orders”). 14.  The 2022 Injunction order, the January 2023 order and the March 2023 orders are collectively referred to as “the Mareva orders”. 15.  On 20 July 2023, P applied ex parte to the Dubai International Financial Centre (“DIFC”) Court for a freezing order and obtained the same on 24 July 2023. After hearing the parties on the return date, on 7 September 2023, Justice Wayne Martin continued the freezing order until further order. Appended to that order were the Reasons. 16.  In the Reasons at §37, Justice Martin noted that D2’s Dubai legal representatives had served an unsigned witness statement from D2 together with several bank statements including ones relating to the Emirates Accounts. Based on those matters, it was recorded (at §39 of the Reasons) that the statement for the 401 account as of 27 July 2023 showed a balance of AED 82,120,068, and the statement for the 402 account had a balance of approximately USD $848,000 as of late July 2023 (at §§40-41). 17.  On the face of the Reasons describing the facts as found by Justice Martin, there appeared to be significant dissipations from the Emirates Accounts since Cuenda 1st was filed[1] as shown in the following table:   Balance   14.3.2023 (per Cuenda 1st) 14.3.2023 (per Reasons) End July 2023 A/c 401 AED 3,300,000 (~USD 899,000) AED 1,058,415.14 AED 82,120,68 A/c 402 USD 17,400,000 ~USD 4,000,000 USD 848,046.08 Legal principles 18.  The principles on ancillary disclosure were considered in Liao Chen Toh v Loyal International Enterprises Co Ltd[2021] HKCFI 164. The following may be highlighted: (1)  The function of ancillary orders in aid of interim orders to preserve assets in which a plaintiff claims to have an equitable proprietary interest and their potentially traceable proceeds is to enable a plaintiff and the court to ascertain at an early stage what (if anything) has happened to the original assets and their potentially traceable proceeds (if any). This is to enable interim preservation orders to be effective (§§17-18). (2)  While a preservation order might be framed along the lines of restraining the disposition of the original assets “and/or their fruits or proceeds (if any)”, such an order would not be able to achieve its objective if neither the court nor the parties are clear as to the identity and whereabouts of the assets sought to be preserved (§20). (3)  It will thus be necessary to ascertain from the defendant and sometimes 3rd parties through compulsory orders what has happened to the original assets and their potentially traceable proceeds. Courts have long recognised these to be strong orders. However, it is said that the courts of equity have “… never hesitated to use the strongest powers to protect and preserve a trust fund in interlocutory proceedings on the basis that if the trust fund disappears by the time the action comes to trial, equity will have been in vain.” (§21). (4)  Such orders serve an important subsidiary purpose: they require clear and precise framing of the injunction order so that the defendants subject to the order and relevant 3rd parties know precisely what they can and cannot do (§22). (5)  The intrusive nature of such orders requires the court to consider carefully potential prejudice caused to the defendants and a fortiori 3rd parties (§24). (6)  While the court’s equitable discretion is wide and flexible, the discretion is a principled one and it must guard against being used as an instrument of oppression, such as, for instance, allowing the plaintiff’s roving enquiry into the defendant’s affairs in search of other potential claims (§26). Need for ancillary disclosure 19.  Ms Natalie So, counsel for P, submitted that even taking Cuenda 1st at face value, it is evident (if not also a necessary inference) from the table[2] that monies have been dissipated from the Emirates Accounts between 14 March 2023 and July 2023. Such dissipations included traceable proceeds of the Subject Funds. 20.  If the March 2023 orders are to be effective, ancillary disclosure orders are indispensable. They would enable P to identify the whereabouts of further dissipations from the Emirates Accounts and to trace the Subject Funds misappropriated from the D1 DBS account. Without ancillary disclosure orders, the tracing exercise as regards dissipations from the Emirates accounts would be rendered nugatory. 21.  For P to be able to trace those dissipations, it needs to know the exact location and value of those monies. Only D2 has that knowledge given that the Emirates Accounts are his personal accounts. Accordingly, the ancillary disclosure order the 2023 Summons seeks requires D2 to produce information/documents that shed light on dealings with the Emirates Accounts. This would enable P to take further action as may be necessary such as other preservation orders. 22.  In addition to an order similar in terms to the orders for ancillary disclosure of 2022 Injunction order and January 2023 order, P seeks production of the documents set out in the Schedule to the 2023 Summons. They are (1) bank statements for the Emirates Accounts; (2) correspondence/communication between D2 and the Emirates Bank; and (3) further bank statements accounts holding traceable proceeds of the Subject Funds. 23.  Documents sought under (2) and (3) above are designed to track the fund flow of dissipations from the Emirates Accounts. D2’s case (A) Breach of express undertakings 24.  In opposing the application, Mr Alan CL To, counsel for D2, referred to the following 2 undertakings[3] in the December 2022 order: “(6) [P] will not without the leave of the Court begin proceedings against [Ds] in any other jurisdiction or use information obtained as a result of an order of the Court in this jurisdiction for the purpose of civil or criminal proceedings in any other jurisdiction. (“Undertaking 6”) (7) [P] will not without the leave of the Court seek to enforce this Order outside Hong Kong or seek an order of a similar nature including orders conferring a charge or other security against [Ds] or [Ds’] assets (“Undertaking 7”)” 25.  D2 relied heavily on the Decision of DHCJ To in Agritrade Resources Ltd v Ashok Kumar Sahoo[2021] HKCFI 685 and the analysis of those undertakings, in particular, Undertaking 6 in the 2022 Injunction order. Agritrade concerned the plaintiff’s application to vary the undertakings in a worldwide Mareva injunction against the defendant to allow proceedings to be commenced in Singapore. At the hearing, the plaintiff contended that leave was not required so long as the plaintiff did not seek direct enforcement of the injunction in Singapore. 26.  In the present case, D2 accepts that the Dubai proceedings did not constitute “enforcement” of the Hong Kong injunction. In other words, D2 accepted that P’s application in Dubai for a freezing order did not constitute a breach of Undertaking 7. 27.  As regards Undertaking 6, D2 adopted the Agritrade analysis (at §124) that it imposes a blanket on two activities: (1) commencing proceedings against the defendant in any foreign jurisdictions; and (2) use of information obtained from the injunction order in Hong Kong. The words “begin proceedings” are to be restrictively construed to mean “proceedings in respect of the same subject matter” (§126). To do so against the same defendant in another jurisdiction is potentially oppressive (§127). 28.  For the prohibition against use of information, Agritrade accepted that the word “information” must necessarily include all information contained in the affirmations and exhibits filed as well as information disclosed pursuant to any order made in the proceedings (§128). 29.  Accordingly, D2 submitted that the fact that P had produced and exhibited Cuenda 1st and the disclosures made in support of its ex parte application in Dubai was in breach of the restriction on use imposed by Undertaking 6. It was further submitted that the fact that the Reasons referred to Cuenda 1st and commented on it was a collateral use of information contrary to Undertaking 6. 30.  When considering the validity of the objections based on a breach of Undertaking 6, it is necessary to construe the December 2022 orders (and hence also the March 2023 orders) in their proper context. As earlier noted[4], on 30 December 2022, the Court made not one but two orders, namely the December 2022 orders (comprising the 2022 Injunction order and the Bankers books order). Undertakings 6 and 7 are set out in the Schedule to the 2022 Injunction order, there being before the Court the two summonses referred to in §8 above. 31.  The Bankers books order (made by the same judge) recited (inter alia) P’s undertakings, inter alia, that: “(1) [t]he information obtained pursuant to this Order will not be used for the purpose of proceedings (actual or contemplated) against the Defendants outside Hong Kong unless with leave from the Court.” 32.  The Court then ordered that “(4) The Plaintiff do have leave to use information and documents obtained as a result of this Order for the purpose of proceedings (actual or contemplated): (i) Against the Defendants in Hong Kong; (j) Investigating the whereabouts of all or any of the money or assets transferred out of the Carmon HK Account, and the identities and/or wrongdoings of the persons or entities involved in the receipt, handling, transfers or disposals of such money or assets; and/or (k) Commencing and pursuing new legal proceedings or pursuing existing legal proceedings, whether in Hong Kong or elsewhere, against such persons implicated in any wrongdoings as revealed upon the carrying out of such investigation. …” (Emphasis added) 33.  D2 invited the Court to look exclusively at the 2022 Injunction order that contains Undertaking 6. It was submitted that P should have obtained leave from the Hong Kong court before making its ex parte application in Dubai. 34.  But that submission effectively ignores or overlooks the fact that the 2nd 2022 Summons was part and parcel of the application heard by the Court on 30 December 2022 culminating in the 2 orders made on that occasion. In other words, P did obtain the requisite leave to commence proceedings in other jurisdictions on that occasion. 35.  The absurdity of D2’s submissions on breaches of Undertaking 6 is patent and requires no further elaboration. (B) Breach of implied undertaking 36.  D2’s fallback position is that “P is not entitled to rely on the findings or descriptions, or summation of the Dubai Disclosures contained in the Reasons, nor can P rely on any information obtained from the Dubai Disclosures as doing so would be a breach of its implied undertakings to the Dubai courts[5]”. 37.  D2 submitted that P’s application relies on the discovery of further transfers of the Subject Funds made by D2. Use of D2’s disclosures made pursuant to the DIFC Court’s orders in the Dubai proceedings without leave of that Court would breach P’s implied undertaking to not use the documents obtained from discovery in the Dubai proceedings in Hong Kong or other actions (“the implied undertaking”). 38.  Based on there being an implied undertaking, D2 submitted that P’s application would be unsupported by any evidence and, hence, must be dismissed. 39.  The short answer to this submission is that given the terms of paragraph (4) (iii) of the Bankers books order granting express leave to commence/pursue new or existing proceedings in Hong Kong and elsewhere, any implied undertaking (assuming its existence) would have been subsumed or overtaken by the provision granting express leave to commence/pursue proceedings outside Hong Kong. Conclusion 40.  For the reasons set out above, I had no hesitation in granting the relief sought by P’s Summons with costs, and ordered that such costs be summarily assessed. Directions were given at the hearing that regard.   (Doreen Le Pichon) Deputy High Court Judge Ms Natalie So, instructed by Lau, Horton & Wise LLP, for the Plaintiff Mr Alan C L To, instructed by Cheung & Liu, for the 1st and 2nd Defendants [1]  This is on the assumption that the information stated in Cuenda 1st is accurate. [2]  See P's written submissions at §20, set out in §17 above. [3]  P gave the same undertakings in the Mareva orders but in the January 2023 order those undertakings were numbered differently i.e. (5) and (6) instead of (6) and (7). [4]  See §9 above. [5]  D2’s written submissions at §7.