SOREMI INVESTMENTS LTD v. CHINA NATIONAL GOLD GROUP HONG KONG LTD AND ANOTHER

HCA 797/2025

[2025] HKCFI 6417

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 797 OF 2025

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DECISION

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1.  This is an application of the 1^st Defendant (“CNG”)  pursuant to RHC O.59 r.2B for leave to appeal against my Decision (“the Decision”)[1] refusing to grant a permanent stay in favour of arbitration under s.20(1)  of the Arbitration Ordinance (Cap 609): [2025] HKCFI 4514. The application is opposed by the Plaintiff (“SIL”).

2.  CNG’s proposed grounds of appeal set out in the draft notice of appeal attached to its Summons dated 10 October 2025 (“the Summons”)  were grouped in its written submissions under three broad grounds.  CNG submitted that leave should be granted because (1)  its intended appeal has a reasonable prospect of success, or (2)  there is some other reason in the interests of justice why the appeal should be heard.

A.  WHETHER THE INTENDED APPEAL HAS REASONABLE PROSPECTS OF SUCCESS

A1.  Ground 1

3.  Under Ground 1, CNG submitted that the court wrongly focused on whether SIL was a “transacting” or “non-transacting” party, and the reason why it was named a party to the SHA, both being irrelevant considerations.

4.  The court’s observation about SIL not being a transacting party under the SHA (in the Decision [23])  was only one of the points taken into consideration when construing the arbitration agreement in clause 13.17 of the SHA: Decision [17] to [25].  It was made in the context of what the court considered to be the practical object of making SIL to be a party to the SHA, which is a relevant consideration when construing a document: Decision [14].  Insofar as CNG suggested that the court recognised a legal concept of “transacting” or “non-transacting” party in deciding whether the disputes between the parties fell within the ambit of the arbitration agreement,[2] that would be a misunderstanding of the Decision.  I am unable to agree with CNG that its intended appeal under Ground 1 has a reasonable prospect of success.

A2.  Ground 2

5.  Under Ground 2, CNG submitted that the court erred in mischaracterising the substance of SIL’s claims against CNG as being misappropriation of assets and ignoring that the cause of action relied on by SIL to substantiate that allegation (namely conversion)  engages the issue of whether CNG has breached clause 4 of the SHA, therefore bringing the dispute within the ambit of the arbitration agreement in clause 13.17 of the SHA.

6.  In this leave application, CNG suggested that the substance of SIL’s claims against CNG is conversion.[3]  However, this is not how the matter was argued before: Decision [29] to [38].  At the substantive hearing, CNG neither advanced any submission in relation to SIL’s claim for conversion, nor argued that the resolution of the disputes on conversion would require a determination of whether CNG had breached the SHA.[4]

7.  Be that as it may, having now considered CNG’s submissions made in this application, I do not think CNG has a reasonable prospect of success to contend that the substance of the disputes between SIL and CNG is conversion. 

(1)  CNG submitted that to make good its claim for conversion, SIL must prove that the Wrongful Transfers were made “without authority”.  CNG therefore argued that to determine whether or not it has committed the conversion, the relevant question is to ask whether the Wrongful Transfers were authorised by SIL’s board of directors, which engages clause 4 of the SHA.

(2)  Clause 4 of the SHA, amongst other things, draws a distinction between matters requiring approval by all of SIL’s directors, and those by a simple majority of SIL’s directors.  The way in which SIL’s conversion claim is currently pleaded does not involve a determination of whether all of SIL’s directors, or only a simple majority thereof, approved the Wrongful Transfers at the material times. Further, it is unclear how CNG’s position that the Wrongful Transfers were allegedly permitted under the SHA would provide any potential defence to the conversion claim.  As pointed out by SIL on the basis of the various authorities cited,[5] there are important legal differences between the authority conferred by the board of directors acting collectively and in the best interests of SIL, and the agreement between SIL’s shareholders in relation to corporate procedure under clause 4 of the SHA.  In other words, even if there was compliance under clause 4 of the SHA, it does not follow that CNG would have a valid legal defence to the claim of conversion.

(3)  CNG referred to the conclusion in Robotunits Pty Ltd v Mennel (2015)  49 VR 323[6] to support its position.  In this case, Croft J concluded that the matter in question fell within the arbitration clause because at the heart of the controversy between the parties in that case was whether the shareholders’ agreement, which contained the arbitration clause, provided a proper basis for the impugned payments ([54]-[55]).  This conclusion was based on the learned Judge’s view that “the heart of the controversy between the parties” involved the question of “[whether] the Shareholders Agreements provided a legal or equitable basis for Mennel to cause Robotunits to make the Share Payment” ([28]).  The decision turns on its own facts.  It does not lay down any legal principles which are relevant to this application.  Given that I do not consider that clause 4 of the SHA would negate SIL’s conversion claim, what Croft J said in the decision would not assist CNG. 

(4)  Accordingly, I do not agree that CNG has a reasonable prospect of success to contend that the determination of SIL’s conversion claim would depend on whether clause 4 of the SHA is breached.

(5)  In any event, in addition to the conversion claim, SIL has relied on other causes of action (namely dishonest assistance, unlawful act conspiracy and lawful act conspiracy)  against CNG.  These other claims do not in my view involve a determination of whether there was a simple majority or unanimous consent of SIL’s board of directors to approve the Wrongful Transfers: Decision [3(2)] to [3(4)], [34] to [38].  The fact that some references are made in SIL’s Statement of Claim to the acts of conversion as particulars for the other causes of action does not detract from this.  I therefore disagree with CNG’s submission that these are “parallel causes of action”.  CNG’s reliance of Re Sirnaomics Ltd[2025] HKCFI 4284 does not assist.  In that case, DHCJ Gary Lam considered whether the transfer of certain shares to the petitioners was governed by a members’ agreement (containing an arbitration agreement), or by a share exchange agreement (which did not have an arbitration agreement).  Having analysed the facts and evidence in that case, the learned Judge concluded that the substance of the petitioner’s claim was the enforcement of a clause in the members’ agreement and that the dispute should be stayed in favour of arbitration ([48]-[58]).  In my view, this authority again turns on its own facts and does not take CNG’s position any further.

8.  For these reasons, I do not think CNG’s intended appeal under Ground 2 has a reasonable prospect of success.

A3.  Ground 3

9.  Under Ground 3, CNG submitted that the court’s holding that the presumption in Fiona Trust does not assist or apply in the present case, or has otherwise been displaced by the parties’ contrary intention, is not supported by a proper application of Fiona Trust and contradicted by the broad terms of the arbitration agreement.

10.  The court’s conclusion in [39] of the Decision in relation to the Fiona Trust presumption was arrived at after its recognition of the relevant legal principles (Decision [12] to [15] & [17])  and its construction of the arbitration agreement in the SHA “on the particular facts of this case” (Decision [18] to [25]).  I do not think it is reasonably arguable that the court had misapplied the Fiona Trust presumption.  In these circumstances, CNG’s intended appeal under Ground 3 does not in my view have a reasonable prospect of success.

B.  WHETHER LEAVE SHOULD BE GRANTED IN THE INTEREST OF JUSTICE

11.  CNG suggested that the Decision has introduced a “novel concept” of “transacting party” in determining the application of an arbitration agreement in a shareholders’ agreement.  It submitted that leave should therefore be given so that the Court of Appeal can clarify whether the approach adopted in the Decision is the correct one in construing arbitration clauses.

12.  I repeat what I said in paragraphs 4 and 10 above.  Given that the Decision ultimately turned on a proper construction of the arbitration agreement on the basis of the particular facts in the present case, I cannot see how the Decision is “likely to have significant impact on future disputes of a similar nature”, as suggested by CNG.  I therefore decline to give leave on the basis that there is some other reason in the interests of justice why the appeal should be heard.

C.  DISPOSITION ON THE SUMMONS

13.  For all of the above reasons, I dismiss CNG’s Summons for leave to appeal. 

14.  For the avoidance of doubt, in dismissing CNG’s application for leave to appeal, the court has not taken into consideration SIL’s submissions that CNG’s stay application constituted an improper purpose and/or abuse of process.

15.  I make an order nisi that the costs of and occasioned by the Summons are to be paid by CNG to SIL, to be summarily assessed.  CNG is directed to lodge and serve a statement of opposition to SIL’s statement of costs dated 24 November 2025 (of not more than 3 pages)  on or before 31 December 2025.  SIL is directed to lodge and serve a statement of reply (of not more than 2 pages)  on or before 5 January 2026.

D.  CNG’S APPEAL AGAINST MASTER HUI’S ORDER

16.  In the materials to support the Summons for leave to appeal, CNG included a separate Notice of Appeal dated 7 November 2025 (“the Notice of Appeal”)  to set aside the order of Master Hui made on 6 November 2025, who refused to allow an extension of time for CNG to file its Defence herein until the final determination of the Summons, and only allowed an extension of time until 4 December 2025.  In their main submissions to support of the Summons filed on 10 November 2025, CNG’s counsel saw fit to ask the court to determine the appeal against the Master’s order and submitted that the Master was plainly wrong in making the order.

17.  In its supplemental submissions recently filed on 15 December 2025,[7] CNG acknowledged that (1)  this court had already ordered that the time for CNG to file and serve its Defence be extended to 28 days from 26 September 2025 (“the September Order”), and (2)  its current solicitors and counsel were not aware of the September Order until 11 December 2025. 

18.  Insofar as CNG considered that the appeal should be disposed of in a particular way, it should either have sought directions from the court or consulted the other party on the way forward.  It was highly inappropriate for CNG to unilaterally put the Notice of Appeal before this court in this paper application without seeking prior directions from the court or prior consent from SIL. 

19.  In their supplemental submissions, CNG acknowledged that “the [September] Order has been superseded by subsequent developments, including the Order made by Master Kwong at the [hearing on 11 December 2025], pursuant to which the time for CNG’s filing and service of its Defence has been extended to 8 January 2026”.  Given that CNG’s Summons dated 10 October 2025 for leave to appeal under RHC O.59 r.2B has now been dismissed (and finally determined), it follows that the Notice of Appeal should also be dismissed with costs.

20.  I dismiss CNG’s Notice of Appeal dated 7 November 2025.  I make an order nisi that the costs of and occasioned by the Notice of Appeal are to be paid by CNG to SIL, to be summarily assessed.  SIL is directed to lodge and serve its statement of costs for summary assessment on or before 29 December 2025.  CNG is directed to lodge and serve its statement of opposition (of not more than 3 pages)  on or before 31 December 2025.  SIL is directed to lodge and serve its statement of reply (of not more than 2 pages)  on or before 5 January 2026.

Mr Charles Manzoni SC, instructed by Karas So LLP and Mr Jason Karas, Solicitor Advocate, of Karas So LLP, for the Plaintiff

Ms Sara Tong SC and Ms Astina Au, instructed by Howse Williams, for the 1^st Defendant

[1]  All the abbreviations used in the Decision are adopted in this decision.

[2]  Cf §11 of CNG’s Submissions.

[3]  Cf §§14 and 15 of CNG’s Submissions.

[4]  CNG only argued in a general way that SIL’s claim of misappropriation of SIL’s assets was in substance a claim that the Wrongful Transfers were made in breach of clause 4 of the SHA: Decision [30].

[5]  See in particular the authorities cited in Billion Express Industrial Ltd v Tsang Hung Kong [2012] 5 HKC 51 at [94] – [97].

[6]  The case was not cited at the substantive hearing.

[7]  Leave to file and serve the supplemental submissions dated 15 December 2025 is granted to CNG.

HCA 797/2025

[2025] HKCFI 4768

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 797 OF 2025

________________________

BETWEEN

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DECISION

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1.  This is an application brought by the Plaintiff (“SIL”) for an inter partes Mareva injunction restraining the 1^st Defendant (“CNG”) from removing from Hong Kong any of its assets which are in Hong Kong up to the value of US$125,842,760, being the amount claimed in this action plus interest, including 34,103,729 shares (“CGI Shares”) in China Gold International Resources Corp. Ltd (“CGI”). SIL also seeks other orders for it to obtain control over (1) the bank accounts of SIL and a subsidiary of SIL, Société de Recherche et d’Exploitation Miniere Société Anonyme (“SSA”), and (2) the corporate governance of SSA.

2.  The background to these proceedings has been summarised in [2] to [4] of my earlier decision dated 26 September 2025 in relation to CNG’s application for a stay of proceedings under section 20 of the Arbitration Ordinance ([2025] HKCFI 4514), and will not be repeated here.

A. SIL’S APPLICATION FOR MAREVA INJUNCTION

3.  For the grant of a domestic Mareva injunction, it is common ground that the plaintiff must show that:

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

(2) there are assets within the jurisdiction;

(3) the balance of convenience in favour of grant;

(4) there is a real risk of dissipation of assets, or removal of assets from the jurisdiction, which would render the plaintiff’s judgment of no effect.

A1. A Good Arguable Case

4.  In order to show a “good arguable case” for the purpose of a Mareva injunction, the plaintiff must show that his case is one that is more than barely capable of serious argument, and yet not necessarily one which the judge believes to have a better than 50% chance of success; he need not go so far as to persuade the judge that he is likely to win: Grupo Pacifica Incorporada v Worldwide Marine Product Ltd (unreported, CACV 217/2015, 28 January 2016) [5.1] (Cheung JA).

5.  As mentioned in [1] of my earlier decision ([2025] HKCFI 4514), the essence of SIL’s claim is that the Defendants instructed the directors at SIL appointed by CNG (“CNG’s SIL Directors”) and SIL’s CEO, Shenghong Cheng (“Cheng”), to misappropriate at least US$109.2 million of cash from SIL to SSA in or around September 2023 (“the Wrongful Transfers”).

6.  It is common ground that SIL’s claim involves 2 elements: (1) the transfers totalling US$109.2 million from SIL to SSA in or around September 2023 were misappropriations of SIL’s assets and (2) the misappropriations were carried out by CNG’s SIL Directors and/or Cheng on the instruction of the Defendants.

A1a. Alleged misappropriations of SIL’s assets

7.  In paragraph 33 of its Statement of Claim, SIL has set out numerous grounds to support why it alleges that the Wrongful Transfers were misappropriations of SIL’s assets. They include the allegations that the Wrongful Transfers were (1) unauthorised, (2) against SIL’s best interest, (3) for collateral/improper purposes of putting SIL’s assets out of reach of SIL, Global Mining Development LP (“Global”) and Gerald Metals LLC (collectively as “theGerald Parties”) and frustrating the enforcement of the First Partial Award dated 8 February 2023 (“FPA”) of an arbitration between the parties (“the Arbitration”), (4) without any legitimate basis, purpose or consideration, and were out of the ordinary course of SIL’s business.

8.  The evidence adduced by SIL in support of the alleged Wrongful Transfers includes the following:

(1) Immediately after Mimmie Chan J had dismissed CNG’s application to set aside the FPA on 30 August 2023, in or around September 2023, CNG and/or the 2^nd Defendant (“CNGGC”) caused SIL to transfer at least US$109.2 million of cash from its bank account in Bank of China in Paris (“BoC Paris”) and the Export-Import Bank of China in Beijing (“EXIM Beijing”) to a new bank account in SSA’s name with EXIM Beijing.

(2) The Wrongful Transfers at least consisted of the following:

(a) On 11 September 2023, a transfer of US$91.96 million from SIL’s EXIM Beijing account to SSA’s EXIM Beijing account. Such funds were originally transferred from SIL’s BoC Paris account to SIL’s EXIM Beijing account on 26 April 2022 and 19 May 2022.

(b) On 4 and 11 September 2023, 8 transfers totalling US$17.24 million from SIL’s BoC Paris account to SSA’s BoC Paris account, and US$10 million out of which was further transferred to SSA’s EXIM Beijing account on 14 September 2023.

(c) On 14 September 2023, another US$20 million was transferred from SSA’s BoC Paris account to SSA’s EXIM Beijing account.

(d) As a result of the above, a total of US$121.96 million arrived at SSA’s EXIM Beijing account.

(e) On 19 September 2023, the US$121.96 million was transferred from SSA’s EXIM Beijing account into a newly opened EXIM Beijing account.

(f) On 29 January 2024, US$20 million was transferred from SSA’s BoC Paris account to SSA’s EXIM Beijing account.

(3) The Wrongful Transfers were unauthorised. Directors of SIL appointed by Global were not notified of and did not approve the Wrongful Transfers.

(4) The Wrongful Transfers were made in contravention of SIL’s ordinary business practice of keeping SIL Group’s cash reserves in SIL’s BoC Paris account. As at 31 December 2021, SIL held over 96% of the cash reserves for the SIL Group in SIL’s BoC Paris account. However, as at 29 February 2024, over 99% of SIL Group’s cash reserves was held by SSA and mostly in SSA’s EXIM Beijing account in Mainland China.

(5) The Wrongful Transfers were made despite the existence of an outstanding interest-bearing loan of over US$192 million owed by SSA to SIL.

(6) The proceeds received by SSA as a result of the Wrongful Transfers were not recorded and reflected in the audited financial statements of SSA for the year ended 31 December 2023.

(7) Apart from the fact that CNGGC is a major Mainland Chinese state-owned enterprise, there is no nexus between SIL and the Mainland China. There is no legitimate reason for SIL to transfer such a large amount of cash in US dollars to Mainland China, a jurisdiction subject to a strict foreign exchange control policy. SIL is a BVI company which has no legal and/or business presence in Mainland China.

9.  CNG did not dispute that SIL had transferred US$109.2 million to SSA’s account in Mainland China. However, CNG submitted that SIL has not shown a good arguable case on misappropriations because the funds did not leave the group, and there is nothing unusual in a holding company transferring funds to its operating subsidiary.

10.  I do not accept CNG’s submissions.

(1) It is clear that SIL’s assets have been diminished as a result of the alleged Wrongful Transfers to SSA. The fact that SSA is a subsidiary of SIL does not in my view change this fundamental position. It is trite that SIL and SSA have separate legal personality. SIL’s loss should prima facie be measured by the value of the assets it has lost, rather than by looking at the overall financial position of the group. I disagree with CNG’s submission that SIL has no loss because the transferred funds have remained in the group.

(2) Further, SIL has adduced evidence by way of a fund flow table to show that (a) for the entire year in 2022, funds had always flowed from SSA to SIL but (b) in September 2023, all the funds (namely the alleged Wrongful Transfers) flowed from SIL to SSA. This table suggests that the alleged Wrongful Transfers did not follow the previous pattern of fund flow between SIL and SSA. I am therefore unable to agree with CNG’s submissions that the alleged Wrongful Transfers were nothing unusual.

(3) Moreover, I note that no cogent evidence has been adduced by CNG as to (a) how the alleged Wrongful Transfers in fact benefited SIL, (b) why it was necessary to transfer SIL’s funds to Mainland China or why such funds had to be moved to a new account in the name of SSA, (c) the commercial rationale for the transfer of US$91.96 million from SIL’s EXIM Beijing account to SSA’s EXIM Beijing account that was newly opened on 11 September 2023.

(4) CNG sought to undermine the evidence of Mr Cosimo Borrelli (“Mr Borrelli”) adduced on behalf of SIL by describing it as “wholesale misstatement and exaggeration”. At the hearing, Mr Simon Chapman for CNG sought to give an example of the alleged misstatement in relation to the alleged Wrongful Transfers. He submitted that Mr Borrelli gave the false and misleading impression in his first affidavit that the Wrongful Transfers took place in September 2023, when the majority of funds were moved in April and May 2022. He argued that it is unsafe to take Mr Borrelli’s evidence on face value. I am unable to accept such a sweeping submission. As can be seen from Mr Borrelli’s first affidavit, the alleged Wrongful Transfers were defined as the transfers of funds to SSA. The movements of funds in April and May 2022 were between SIL’s BoC Paris account and SIL’s EXIM Beijing account, and did not involve any transfer to SSA. Therefore, I consider Mr Borrelli’s presentation of the evidence in relation to the alleged Wrongful Transfers (as summarised in paragraph 8(2) above) to be entirely fair and straightforward.

11.  In these circumstances, it appears to me that SIL has a good arguable case on the misappropriations of assets and Wrongful Transfers.

12.  Further, given that SIL’s cause of action in conversion is entirely based on the misappropriation of funds and that the transferred funds have not been returned to SIL, it follows that SIL has a good arguable case on its cause of action in conversion.

A1b. Alleged Wrongful Transfers were instructed and procured by the Defendants

13.  Another principal element in SIL’s case is that it was CNG and/or CNGGC who instructed CNG’s SIL Directors and Cheng to procure, cause and/or permit the Wrongful Transfers.

14.  In paragraph 34 of its Statement of Claim, SIL pleads that CNG’s SIL Directors and/or Cheng were accustomed to act in accordance with the instructions of CNG and/or CNGGC, and the Wrongful Transfers were carried out in accordance with the instructions of CNG and/or CNGGC.

15.  The evidence adduced by SIL in support of the allegation that the Wrongful Transfers were instructed and procured by CNG and/or CNGGC includes the following:

(1) Upon CNG’s acquisition of 65% shares in SIL (“the Acquisition”) in March 2014, CNG and/or CNGGC obtained control over the SIL Group. CNG and/or CNGGC exerted control over the SIL Group by occupying the majority of the seats in SIL’s board (4 out of 6) through the CNG SIL’s Directors and by appointing the executive officers of SIL and SSA through a management team (“the Soremi Management Team”) CNG and/or CNGGC had designated to the Republic of Congo (“RoC”). CNG’s and/or CNGGC’s personnel also had control over SIL’s and SSA’s bank accounts and had the authority to instruct SIL’s banks to make the Wrongful Transfers.

(2) At the time of the alleged Wrongful Transfers in or around September 2023,

(a) CNG’s SIL Directors were (i) Mr Liangyou Jiang (the Chairman of the board (“Jiang”); (ii) Mr Junhu Tong (“Tong”); (iii) Mr Wanming Wang; and (iv) Mr Shuiqing He;

(b) SIL’s officers included amongst others: (i) Cheng who was the CEO of both SIL and SSA and has been a core member of the Soremi Management Team based in RoC since March 2014; (ii) Mr Yongjun Yu (“Yu”), who was the Vice President in Finance for SIL and SSA and has been a core member of the Soremi Management Team since March 2014; and (iii) Ms Tingting Han (“Han”), who was the assistant of the CEO and the board secretary for SIL.

(3) Cheng, Yu and Han are all Chinese Nationals who were appointed by and reporting to CNG and/or CNGGC.

(4) CNGGC appointed directors to SIL and appointed the Soremi Management Team to SSA upon the completion of the Acquisition, even though these personnel were appointed by CNG on paper. The management of SSA, SIL, CNG and CNGGC also exhibits a high degree of overlap and is closely interlinked.

(5) Jiang was a director of SIL between October 2014 and September 2024. At the time of his appointment, he was employed by CNGGC and subsequently held the position as the manager of CNGGC’s overseas operations department from December 2015. Jiang was only appointed as a director of CNG from 15 October 2018 until he resigned from that position on 1 September 2022. Therefore, Jiang was in fact appointed as a director of SIL by CNGGC in October 2014. He had acted as a witness for CNG and SIL (controlled by CNG SIL’s Directors at that time) in the Arbitration.

(6) Tong was a director of SIL between March 2014 and September 2024. At the time of his appointment, he was the manager of CNGGC’s overseas resources department and had led the negotiation of the Acquisition. Tong was appointed as a Vice President of CNG in October 2018 and as a director of CNG between 25 April 2023 and 26 March 2024. Therefore, Tong was appointed as a director of SIL in March 2014 by CNGGC. He had acted as a witness for CNG and SIL (controlled by CNG SIL’s Directors at that time) in the Arbitration.

(7) Cheng has been employed by SSA since March 2014. Immediately before that, he served as a project manager in CNGGC’s department of overseas M&A between 2012 and March 2014. He was appointed as the CEO of both SIL (from 18 October 2022 to 18 September 2024) and SSA (since 18 October 2022) by SIL’s board of directors at the recommendation of CNG albeit he was already acting as CEO by the time his appointment was proposed. He had acted as a witness for CNG and SIL in the Arbitration.

(8) Cheng openly promotes himself as a “CNGGC person” and has written an article promoting CNGGC fulfilment of its social responsibility in the RoC through SSA. On 16 October 2024, he accompanied CNGGC’s senior executive in his meeting with the President of the RoC to explore further cooperation between the RoC and CNGGC.

(9) CNG’s SIL Directors and Cheng at the time of the Wrongful Transfers were and/or had been in the employ of CNG and/or CNGGC.

(10) The Soremi Management Team had been in the employ of CNG and/or CNGGC.

(11) CNG’s Statement of Claim filed on 8 March 2025 for an arbitration (known as the Dividend and Unjust Enrichment Arbitration) confirms that SSA and the mining and processing project in the RoC (“the Soremi Project”) are managed and operated by expatriates from CNG and/or CNGGC who are loyal to CNG and/or CNGGC and only prepared to stay on at the Soremi Project on the understanding that it is controlled by CNG.

(12) On CNG’s own case, the Mainland China employees expatriated from CNG and/or CNGGC for “all managerial roles and the vast majority of technical expertise and supervision” are either “lifers” loyal to CNG and/or CNGGC or individuals who were attracted by the key factor that the Soremi Project is a CNGGC-backed project.

(13) Until the appointment of the Receivers, CNG and SIL were represented by the same legal teams in the Arbitration.

(14) The Wrongful Transfers were made when Tong was both the director of CNG and SIL.

16.  In reliance of the above, the case advanced by SIL includes (1) CNG was able to instruct CNG’s SIL Directors and Cheng and cause SIL to carry out its instructions, (2) CNG did in fact instruct them to procure the Wrongful Transfers, (3) CNG was able to direct the Soremi Management Team to carry out its instructions, and (4) the Soremi Management Team controlled SSA and the Soremi Project.

17.  CNG submitted that SIL’s allegations that CNG’s SIL Directors and/or Cheng were accustomed to act in accordance with the instructions of CNG are bare and unparticularised assertions, and that SIL’s case involves heavy reliance on inadmissible evidence.

18.  I am also unable to accept these submissions.

(1) I do not think SIL is seeking to establish its case by relying on bare and unparticularised assertions. From a review of SIL’s evidence partially extracted in paragraph 15 above, it seems to me that SIL is trying to prove its case both by direct evidence and by drawing inferences from the circumstantial evidence. I do not consider any of the extracted evidence is inadmissible and none of which has been so suggested by CNG.

(2) When SIL filed its skeleton on 5 September 2025, it is true that certain without prejudice materials were mentioned to support a good arguable case. However, Mr Charles Manzoni SC orally informed the court (at the hearing on 16 September 2025 when the parties were before the court for CNG’s stay application) that SIL would no longer seek to rely on any without prejudice materials to support its application for injunction.

(3) CNG also complained that SIL has relied on numerous findings of fact and opinions of foreign courts to support the present injunction application, which CNG submitted to be inadmissible. As can be seen from the other parts of this decision, I have not sought to rely on the findings of fact or opinions of any courts outside of Hong Kong. The references in this decision to the different conclusions made by the BVI Court cannot be objectionable. In any event, the fact that such conclusions were made by the BVI Court can in any event be gleaned from the agreed chronology and the affirmation evidence filed on behalf of CNG.

19.  In these circumstances, I consider that SIL has a good arguable case that CNG and/or CNGGC instructed the Wrongful Transfers.

20.  Apart from conversion, SIL has the following additional causes of action:

(1) CNG’s SIL Directors and/or Cheng breached their equitable and/or fiduciary duties owed to SIL by procuring, causing and/or permitting the Wrongful Transfers of SIL’s funds;

(2) CNG and/or CNGGC dishonestly assisted in breaches of equitable and/or fiduciary duties by instructing CNG’s SIL Directors and/or Cheng to procure, cause and/or permit the Wrongful Transfers;

(3) CNG, CNGGC and CNG’s SIL Directors and Cheng (or any two or more together) are part of a lawful means, or alternatively an unlawful means, conspiracy, to put SIL’s assets out of reach of SIL and to frustrate the enforcement of the FPA.

21.  Having considered SIL’s Statement of Claim and affidavit evidence filed on behalf of SIL, I am also satisfied that SIL has a good arguable case in respect of its causes of action in dishonest assistance, unlawful means conspiracy and lawful means conspiracy. I note that CNG did not advance any specific submissions to suggest that there is no arguable case on any of the causes of action pleaded by SIL.

22.  CNG made a general point by submitting that 46 allegations have been made by SIL against “CNG and/or CNGGC” in its Statement of Claim, and SIL has therefore failed to demonstrate a good arguable case against CNG. I reject this submission. In ascertaining whether there is a good arguable case, the court does not look at the plaintiff’s statement of claim alone. As is clear from the above, I have considered SIL’s Statement of Claim together with the affidavit evidence from Mr Borrelli to determine whether SIL has a good arguable case against CNG. In particular, Mr Borrelli has referred to matters in paragraphs 22, 23 and 24 of his fourth affidavit to explain why SIL has a good arguable case against CNG. Ignoring the without prejudice materials mentioned in paragraphs 23.1 and 23.2.2 and the references to the BVI judgment in paragraph 23.2.1 of Mr Borrelli’s fourth affidavit, I do not think that the use of “CNG and/or CNGGC” in SIL’s Statement of Claim would negate a good arguable case against CNG.

23.  I conclude that SIL has a good arguable case on its pleaded claims against CNG in these proceedings.

A2. Assets within the Jurisdiction

24.  It is common ground that CNG has assets in Hong Kong consisting of shares in companies, including a 40.01% shareholding in CGI.

A3. Risk of Dissipation of Assets

25.  To satisfy this requirement, there is no dispute that the burden is on the plaintiff to show objectively that there is a solid basis for concluding that there is a real risk of unjustified dissipation of assets by the defendant: Convoy Collateral Ltd v Cho Kwai Chee [2020] 6 HKC 81 at [37], [53] (Lam VP).

26.  The question of whether or not there is solid basis for concluding that there is a real risk of dissipation involves an exercise of an evaluative and predictive judgment. Usually, it is a matter of drawing proper inference from a holistic consideration of all the circumstantial materials that are indicative of risk. See Convoy (above) at [40] (Lam VP).

27.  Where the underlying claim advanced against a defendant involves dishonest or fraudulent conduct or other serious wrongdoings, it is necessary to examine whether the conduct or wrongdoing in question is itself indicative of, or relevant to, the risk of dissipation: China Medical Technologies, Inc (in liq) v Samson Tsang Tak Yung[2022] HKCA 41 at [38] (Chow JA). See also Convoy (above) at [46] (Lam VP).

28.  SIL advanced several grounds to contend that there is a solid basis for concluding that there is a real risk of unjustified dissipation of assets by CNG. I will mention those which I regard to be the most cogent.

29.  First, SIL submitted that (1) SIL was part of CNG’s assets before the 65% Shares were ordered to be transferred to Global, (2) the assets of SIL were dissipated by way of the Wrongful Transfers shortly after Mimmie Chan J dismissed CNG’s application to set aside the FPA, and (3) there is a real risk that CNG will dissipate assets in Hong Kong if it were to perceive that this action will not be decided in its favour and that its Hong Kong situs assets would be subject to enforcement.

30.  CNG submitted that SIL’s reliance on the alleged Wrongful Transfers as evidence of risk of dissipation is circular and assumes that SIL will succeed on those allegations at trial.

31.  I do not agree that SIL’s submission is a circular argument. There are authorities to support the proposition that the wrongdoing in question may itself be indicative of or relevant to the risk of dissipation.

(1) In Lakatamia Shipping Co Ltd v Toshiko Morimoto [2020] 1 CLC 562, Haddon-Cave LJ at [51] said:

“In my view … the correct approach in law should be formulated in the following two propositions:

(1) Where the court accepts that there is a good arguable case that a respondent engaged in wrongdoing against the applicant relevant to the issue of dissipation, that holding will point powerfully in favour of a risk of dissipation.

(2) In such circumstances, it may not be necessary to adduce any significant further evidence in support of a real risk of dissipation; but each case will depend upon its own particular facts and evidence.”

(2) The above passage from Lakatamia was quoted with approval by Lam VP in Convoy (above) at [46]. His Lordship at [53] said that the approach of Haddon-Cave LJ would provide “good guidance”. At the end of [53], Lam VP said “[e]vidence of dishonest and fraudulent conducts or other serious wrongdoings which form the basis of the claims, and which reflect adversely on the integrity of the defendant could point powerfully towards an inference of such risk.” [emphasis added]

(3) Chow JA in China Medical (above) at [38] (referred to in paragraph 27 above) also said something similar.

32.  Bearing in mind these authorities, I consider that the alleged misappropriations of assets and Wrongful Transfers go to the very heart of the question of the risk of dissipation.[1] As mentioned above, SIL’s cause of action in conversion, which in my view has a good arguable case, bears directly on the question of dissipation itself. Further, it is also my view that SIL has a good arguable case that CNG instructed the misappropriations. I consider that these circumstances strongly point to the existence of a risk that CNG would do the same in relation to its assets to frustrate the enforcement of any judgment against it.

33.  In coming to this view, it is unnecessary for the court to assume that SIL’s allegations (on misappropriations of assets or the giving of instruction by CNG to misappropriate assets) will succeed. As demonstrated above, the fact that SIL has a good arguable case that the alleged Wrongful Transfers amounted to conversion of SIL’s funds for which CNG is liable, and that CNG instructed the alleged Wrongful Transfers, would, as a matter of common sense, be a cogent indicator of a real risk of dissipation of assets by CNG.

34.  Further, SIL submitted that (1) CNG has consistently demonstrated a low standard of commercial morality and (2) such lack of integrity would entitle the court to infer a real risk of dissipation.

35.  As stated in S Gee QC Commercial Injunctions (7^th ed, 2022) pp 451-453, “if there is a good arguable case in support of an allegation that the defendant has acted … with an unacceptably low standard of commercial morality, whether dishonest or not, giving rise to a feeling of uneasiness about the defendant, then it is often unnecessary for there to be any further specific evidence on risk of dissipation for the court to be entitled to take the view that there is a sufficient risk to justify granting Mareva relief”.

36.  Further, solid evidence of risk of dissipation of assets “may consist of direct evidence that the defendant has previously acted in a way which shows that his probity is not to be relied upon”: Ninemia Maritime Corporation v Trave SchiffahrtsgesellschaftmbH und Co KG [1983] 2 Lloyd’s Rep 600 at 606, cited with approval by Lam VP in Convoy (above) [38].

37.  On the basis of the matters mentioned below, I believe there is a good arguable case that CNG has acted in a way in its dealings involving SIL and the Gerald Parties which shows that CNG’s probity and integrity is not to be relied upon.

38.  First, CNG has failed to effect transfer of the 65% Shares to Global for more than 2.5 years after the FPA was made.

(1) On 8 February 2023, the Tribunal in the Arbitration issued the FPA ordering CNG to transfer the 65% Shares to Global (together with the Addendum to the FPA dated 31 March 2023).

(2) On 30 August 2023, Mimmie Chan J dismissed an application by CNG to set aside the FPA with indemnity costs for the Gerald Parties, noting in the written reasons which followed on 27 February 2024 that “[t]his is a typical example of a party which has agreed to submit its contractual disputes to the final and binding determination of an arbitral tribunal, but being aggrieved when the tribunal makes an award against it, makes all attempts to find loopholes and problems in the award”: [2024] HKCFI 575 at [1].

(3) With no voluntary compliance forthcoming, on 21 November 2023, the Tribunal issued the Partial Award on Specific Performance (“SP FPA”) ordering a mechanism for CNG to comply with the FPA.

(4) Both the FPA and SP FPA were recognised in the BVI pursuant to orders made by the BVI Court on 25 April 2023 and 20 December 2023 respectively (“BVI Recognition Orders”). CNG applied to set aside the recognition orders of the BVI Court. Between 9 and 15 April 2024, Wallbank J heard both applications to set aside the BVI Recognition Orders. On 15 April 2024, Wallbank J dismissed the setting aside applications with costs in favour of the Gerald Parties.

(5) CNG also procured SIL to apply to set aside the BVI Recognition Orders. That application was heard by Wallbank J on 21 September 2023 and was dismissed with costs.

(6) On 24 February 2025 and 21 March 2025, the FPA and SP FPA were recognised by the Hong Kong Court and recognition orders were made in their respective terms (“Hong Kong Recognition Orders”).

(7) On 8 April 2025, CNG filed an application with the Hong Kong court seeking to suspend the enforcement of Hong Kong Recognition Orders.

(8) On 16 July 2025, the BVI Court handed down a judgment rectifying the Register of Members of SIL to confirm that 65% Shares are held legally and beneficially by Global.

(9) Whilst CNG no doubt considered that it was within its right to pursue the various legal challenges, it seems tolerably clear to me that CNG had been taking extensive steps, and was determined, to delay the transfer of the 65% Shares to Global.

39.  Second, CNG has failed to comply with the costs orders made against it by the Tribunal.

(1) On 15 May 2025, the Tribunal issued the Interim Cost Order awarding more than US$16 million in costs to the Gerald Parties. According to the order, the payment should be made within 14 days from 15 May 2025.

(2) On 2 June 2025, CNG’s legal representatives wrote to indicate that CNG would not comply with the interim costs order by the Tribunal because of (a) CNG’s pending application for the recusal of the presiding arbitrator in the Arbitration before the Hong Kong court; and (b) CNG’s pending application before the BVI Court for stay of the proceedings in the BVI on the basis of suspected corruption by Tong.

(3) In his second affirmation, Mr Hou Chenguang (“Mr Hou”), the Chairman of CNG, appeared to suggest that CNG’s refusal to comply was simply “CNG’s exercise of its right to pursue available legal challenges”.

(4) This is another example of CNG making legal challenges in order to delay the Gerald Parties from getting their entitlement under the Arbitration.

40.  Third, CNG has been found by the BVI Court to be liable for contempt of court for non-compliance with a BVI court order.

(1) On 28 March 2024, the BVI Court granted a disclosure and worldwide freezing order against CNG and SIL up to US$200 million and an order directing SIL and SSA to take all necessary steps to repatriate any liquid sums that had been moved from SIL’s accounts in Paris without the consent of Global’s SIL Directors (“First BVI Freezing & Repatriation Order”).

(2) On 4 April 2024, SSA applied for and obtained from the RoC Court an injunction preventing it from transferring the funds to SIL’s bank accounts.

(3) On 3 July 2024, the BVI Court varied the First BVI Freezing & Repatriation Injunction to require the alleged misappropriated funds to be paid into the BVI Court (“Second BVI Freezing & Repatriation Order”, together with the First BVI Freezing & Repatriation Order, “BVI Freezing & Repatriation Orders”).

(4) On 26 July 2024, SSA applied for and obtained from the RoC Court a second injunction from complying with the Second BVI Freezing & Repatriation Injunction.

(5) On 1 May 2025, Global applied to the BVI Court for findings of contempt against, amongst others, CNG (“BVI Contempt Application”). The BVI Contempt Application was heard on 26 and 27 May 2025. It was alleged, amongst other things, that CNG did not make any effort to take all necessary steps to repatriate the SIL funds to SIL in accordance with the BVI Freezing and Repatriation Orders.

(6) On 16 July 2025, the BVI Court handed down the judgment for the BVI Contempt Application and CNG was found to be guilty of contempt. CNG was fined US$2.5 million.

(7) On 1 August 2025, CNG applied for leave to appeal and to stay the BVI contempt judgment.

(8) Despite the fact that CNG intends to appeal against the findings of contempt, the BVI contempt judgment remains valid and binding. As things presently stand, CNG has been found by the BVI Court to have breached a BVI court order not to repatriate the funds. It was a breach that is both relevant to the issue of dissipation and indicative of the risk of dissipation. It seems to me that an inference can be drawn from the BVI Court’s conclusion of contempt against CNG that (a) CNG’s integrity is not to be relied upon and (b) there is a real risk that a future judgment would not be met because of an unjustified dissipation of assets.

41.  It is common ground between the parties that the relevant question to ask is whether there is a solid basis for concluding that there is a real risk of unjustified dissipation of assets by a defendant. The question does not in my view turn on whether the defendant’s assets can be easily dissipated in secret. I therefore do not see much substance in CNG’s invitation to focus on its largest asset (namely 40.01% in CGI) for the purpose of determining whether such an asset can be easily dissipated in secret or whether CNG’s disposal of its controlling interest in CGI would trigger a mandatory offer or disclosure obligations under the relevant regulatory rules and legislations.

42.  CNG made a point on delay to suggest that there is no risk of dissipation. For the reasons below, I do not consider that the two periods of delay complained of would negative an inference of risk of dissipation.

(1) The two periods of delay are: (a) 7 months between the date when the Receivers were appointed over CNG’s 65% Shares (17 September 2024) and the date when the writ in this action was filed (23 April 2025); and (b) 7 weeks between the date when the writ was filed (23 April 2025) and the date when SIL issued the present application for injunctive relief (11 June 2025). CNG submitted that no explanation has been given on oath by SIL for the delay.

(2) As Lam VP said in Convoy (above):

“[78] … delay per se would not necessarily bar relief. The ultimate question is still whether the plaintiff could show a real risk of dissipation despite delay. … if the court is satisfied on the evidence that there remains a real risk of dissipation it should grant an order, notwithstanding delay, even if only limited assets are ultimately frozen by it.

[79] Thus, the significance of delay in each case must be considered on its own circumstances….”

(3) After the Receivers were appointed in September 2024, it is reasonable to expect that they would need to take time to familiarise themselves with the complicated background. It is also apparent from the agreed chronology that (a) on 27 November 2024, the Receivers obtained from the BVI Court an ex parte injunction against CNG prohibiting CNG from interfering in the operations of SSA and (b) on 14, 17 and 27 March 2025, the Receivers and SIL commenced an action for delivery up of documents against 3 firms of solicitors seeking production of documents.

(4) After the writ was issued on 23 April 2025, it is clear from the agreed chronology that on 4 May 2025, SIL’s solicitors notified CNG of SIL’s intention to seek injunctive relief by requesting a voluntary undertaking. The requested undertaking was refused by CNG’s solicitors on 9 May 2025.

(5) In these circumstances, it does not seem to me that time taken by the Receivers and SIL to make the present injunction application is unreasonable.

43.  Having looked at the matters mentioned above holistically, I conclude that there is a solid basis for concluding that there is a real risk of unjustified dissipation of assets by CNG.

A4. Balance of Convenience

44.  Given that SIL has shown a real risk of dissipation of assets, it seems to me that the balance of convenience should prima facie be in favour of a grant of injunction. Be that as it may, I proceed to consider the various points raised by CNG to contend that the balance of convenience should weigh against granting the injunction.

A4a. Whether the injunction lacks utility

45.  CNG submitted that the injunction sought by SIL lacks utility because SIL is already protected by the worldwide freezing order granted by the BVI Court.

46.  SIL submitted that a domestic injunction granted by the Hong Kong court is necessary because CNG has paid no regard to the orders made by the BVI Court, and has been found by the BVI Court to be in contempt of court.

47.  A court will not make any order in vain: New Brunswick and Canada Railway and Land Co v Muggeridge (1859) 4 Drew 686 at 699 (Kindersley VC). However, in the circumstances of the present case, I do not believe that an injunction granted by the Hong Kong court will be in vain and lacks utility.

(1) CNG is a Hong Kong incorporated company. As mentioned earlier, CNG has substantial assets in Hong Kong.

(2) Although Mr Hou has filed an affirmation in the BVI proceedings to say, amongst other things, that CNG is committed to adhering to the BVI Court’s orders and does not intend to act in defiance, I consider that such a statement provides little comfort to SIL and the Receivers in light of the fact that the BVI Court has found CNG to be in contempt of court for breaching its orders.

(3) Moreover, it is trite that breach of a Mareva injunction by the party restrained is a civil contempt and may give rise to contempt proceedings. Where a domestic Mareva injunction is granted against a defendant who has presence and assets within the jurisdiction, the incentive for the defendant to comply with the court order may be greater than a worldwide freezing order granted by a foreign court.

(4) For these reasons, I believe there are genuine purposes for SIL to seek the injunction sought against CNG.

A4b. Whether prejudice to third parties

48.  CNG submitted that if the injunction sought is granted, CGI is likely to be required to make a public announcement which may affect its share price, and which may in turn cause prejudice to third parties.

49.  I am not persuaded by this submission. Other than a bare assertion, there is no cogent evidence before the court that an order restraining CNG from disposing of part of its shareholding in CGI is likely to reduce CGI’s share price. I do not think CNG has demonstrated that the granting of the injunction is likely to cause prejudice to third parties.

A4c. Whether relief is unnecessarily broad

50.  CNG submitted that even if all the other criteria are met, the application should be refused because the relief sought extends beyond that which is necessary to protect SIL’s interest. It contended that SIL’s interests would be adequately protected by a notification injunction, requiring prior notice to SIL before CNG reduces the value of its shareholding in CGI to below US$125,842,760.

51.  In the present case, I do not believe a notification injunction would be appropriate where the parties’ previous dealings have generated so much distrust amongst them and where CNG has previously been held by the BVI Court to be in contempt for disobeying a court order.

A4d. Whether the grant breaches the BVI Injunction

52.  At the hearing, CNG raised a new point to argue why the court should not grant the injunction sought. CNG submitted that the present application for injunction is a breach of the undertaking given at paragraph 7 of Schedule 2[2] of the First BVI Freezing and Repatriation Order dated 28 March 2024. It argued that there was an undertaking to the effect that the BVI’s Court prior permission would be required before an order similar to the First BVI Freezing and Repatriation Order is sought, but SIL has failed to seek such permission.

53.  I do not accept these arguments. First, the undertaking was given to the BVI Court by the applicants of the First BVI Freezing and Repatriation Order, who were the Gerald Parties. SIL was the second respondent in those proceedings and the undertaking was not given by it. Further, the orders sought in the BVI by the Gerald Parties were a worldwide freezing order and a mandatory injunction for the repatriation of funds. I do not consider the present injunction sought by SIL is an order similar in nature to the orders granted by the BVI Court. In any event, there is some illogicality behind this argument: CNG appeared to now consider it appropriate to pray in aid of the undertaking provisions in the First BVI Freezing and Repatriation Order, but had previously considered it inappropriate to comply with the order to repatriate the funds.

A5. Conclusion on Injunction Application

54.  For all the above reasons, I grant the Mareva injunction sought by SIL.

B. OTHER ORDERS SOUGHT BY SIL

55.  In addition to the Mareva injunction, SIL seeks the following disclosure orders against CNG:

“3. The 1^st Defendant must, by its director, inform the Plaintiff in writing at once of:

(a) the manner in which the CGI Shares are held, including at where, via which depository(ies), with which brokerage(s), under whose account(s) and what account number(s) they are held, and

(b) the identity of the bank signatories of all bank accounts of the Plaintiff and [SSA] which are under the control of the 1^st Defendant, including through its servants or agents.[3]

4. This information, to be provided in accordance with paragraph 3 above, must be confirmed in an affidavit duly sworn by a director of the 1^st Defendant, which must be served on the Plaintiff’s solicitors within 14 days after this Order has been served on the 1^st Defendant.”

56.  CNG accepted that the order sought in (a) in relation to the manner in which the CGI Shares are held is a true ancillary order, and would stand or fall with the injunction application. I am satisfied that the proposed order is an appropriate ancillary order.

57.  As to the order sought in (b), it relates to the identity of the bank signatories of all bank accounts of SIL and SSA. CNG objected to the making of such an order on the basis that it is unrelated to the Mareva injunction. I agree with CNG that the order sought is not a proper ancillary order.

(1) It is well established that a Mareva injunction may be granted in an order which includes ancillary orders to assist the efficacy of the injunction, e.g. orders for the disclosure of assets, search orders relating to documents or articles which require preservation, orders in relation to banker’s record under section 21 of the Evidence Ordinance (Cap 8), or even orders restraining the defendant personally from leaving the jurisdiction: S Gee QC Commercial Injunctions (7^th ed, 2022) §4-018.

(2) The injunction sought by SIL restrains CNG from removing from Hong Kong any of CNG’s assets up to US$125 million odd. What is being sought under (b) is information concerning the bank accounts of SIL and SSA. It is not SIL’s case that CNG’s assets have been deposited into the identified bank accounts of SIL and SSA, or that the injunction should extend to the assets in such bank accounts. It follows that the order sought is not an order to assist the efficacy of the injunction.

(3) I appreciate that it is SIL’s case that CNG still has control over the management of SSA and the bank accounts of SIL and SSA. However, I do not believe it would be right to grant the order sought in (b) when the underlying issues do not truly arise out of the injunction application.

58.  SIL further sought the following orders[4] on the basis that they are ancillary orders:

“6. The 1^st Defendant, whether by itself, or through any of its affiliates, agents representative and/or third parties (whether officially appointed or not), must not directly and/or indirectly intervene, interfere with, participate or take part in an directors’ and/or shareholders’ meeting of SSA save for the sole purpose of facilitating and effecting the removal of Mr CHENG Shenghong (程胜紅), Mr LENG Shuguang (冷曙光), Mr ZHANG He (張河), Ms CHEN Guanghua (陈广华 ) and Ms SUN Jing (孙婧) as director’s representatives, directors and/or officers of SSA and the appointment of the director’s representatives, directors and/or officers of such person(s) designated by Mr Cosimo Borrelli.

7. Within 72 hours after this Order has been served on the 1^stDefendant, it must take all steps which are necessary to change the bank signatories of all bank accounts of the Plaintiff and SSA, including but not limited to the bank accounts identified in Schedule 3, to Mr Cosimo Borrelli or such person(s) designated by him.”

59.  These proposed orders relate to the business to be carried out at the directors’ and/or shareholders’ meeting of SSA and the change of signatories of bank accounts of SIL and SSA. For the reasons similar to those given above, I do not regard them as orders to assist the efficacy of the injunction. I therefore decline to grant them.

C. CONCLUSION

60.  For the reasons given above, I grant the Mareva injunction and the disclosure orders sought by SIL. Upon the undertakings set out in Schedule 2 of the draft order handed up by SIL at the hearing, I make an order in terms of paragraphs 1 to 4(1), 5 and 8 to 18 of the draft order.

61.  I also make an order nisi that the costs of SIL’s summons dated 11 June 2025 are to be in the cause.

62.  It is right to record that after the conclusion of the hearing, both parties have lodged further written submissions pursuant to the leave granted by the court. The court has considered SIL’s List of Alleged Breaches and CNG’s Reply when determining the outcome of the present application.

Mr Charles Manzoni SC, instructed by Karas So LLP and Mr Jason Karas, Solicitor Advocate, of Karas So LLP, for the Plaintiff

Mr Simon Chapman, Solicitor Advocate, of Herbert Smith Freehills Kramer, for the 1^st and 2^nd Defendants

HCA 797/2025

[2025] HKCFI 4514

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 797 OF 2025

________________________

________________________

_______________

DECISION

_______________

1.  This is an application brought by the 1^st Defendant (“CNG”) pursuant to section 20(1) of the Arbitration Ordinance (Cap 609) for a permanent stay of the action herein in favour of arbitration.

A.  SIL’S CLAIMS AND THEIR BACKGROUND

2.  It is convenient to start by summarising the claims brought by the Plaintiff (“SIL”) in this action. In essence, SIL claims that the Defendants instructed the directors at SIL appointed by CNG (“CNG’s SIL Directors”) and SIL’s CEO, Shenghong Cheng (“Cheng”), to misappropriate at least US$109.2 million of cash from SIL to a subsidiary of SIL, Société de Recherch et d’Exploitation Miniere Société Anonyme (“SSA”), in or around September 2023 (“the Wrongful Transfers”).

3.  The main allegations of SIL include the following:

(1)  the Wrongful Transfers amounted to conversion of SIL’s funds for which CNG and/or the 2^nd Defendant (“CNGGC”) are directly or vicariously liable;

(2)  CNG’s SIL Directors and/or Cheng breached their equitable and/or fiduciary duties owed to SIL by procuring, causing and/or permitting the Wrongful Transfers of SIL’s funds;

(3)  CNG and/or CNGGC dishonestly assisted in breaches of equitable and/or fiduciary duties by instructing CNG’s SIL Directors and/or Cheng to procure, cause and/or permit the Wrongful Transfers;

(4)  CNG, CNGGC and CNG’s SIL Directors and Cheng (or any two or more together) are part of a lawful means, or alternatively an unlawful means, conspiracy, to put SIL’s assets out of reach of SIL and to frustrate the enforcement of the First Partial Award dated 8 February 2023 (“FPA”).

4.  The background of the claims is described by SIL to be as follows. It is right to record that some of these matters are disputed by CNG.

(1)  SIL holds 90% of the shares in SSA, a company incorporated under the laws of the Republic of Congo (“RoC”). SSA operates a mining and processing project in the RoC called the Soremi Project.

(2)  Originally, SIL was wholly owned by Global Mining Development L.P. (“Global”). Global and Gerald Metals LLC (“Gerald Metals”) (together as “Gerald Parties”) at all material times are and were subsidiaries of Gerald International Limited.

(3)  On 17 March 2014, pursuant to a share purchase agreement, CNG acquired 65% of SIL’s shareholding (“65% Shares”) from Global. Global remained a 35% shareholder of SIL.

(4)  In March 2020, a dispute arose between the Gerald Parties and CNG in relation to the ownership of the 65% Shares. On 13 November 2020, the Gerald Parties commenced arbitration proceedings in Hong Kong. On 8 February 2023, the arbitration tribunal (“Tribunal”) issued the FPA. On 31 March 2023, the Tribunal ordered CNG to transfer the 65% Shares to Global.

(5)  On 26 May 2023, CNG applied to set aside an order of the BVI Court enforcing the FPA, which was dismissed by Mimmie Chan J on 30 August 2023: CNG v G [2024] 2 HKLRD 152 ([2024] HKCFI 575).

(6)  In September 2023, shortly after CNG’s application to set aside was dismissed but whilst SIL remained under the control of CNG and/or CNGGC, CNG and/or CNGGC allegedly instructed CNG’s SIL Directors and/or Cheng to make the Wrongful Transfers from SIL to SSA. The transfers came to light in March 2024 after Global’s SIL directors applied for disclosure order in the BVI to obtain the relevant bank statements.

(7)  CNG did not comply with the Tribunal’s award. Instead, CNG and/or CNGGC have continued to assert control over SIL, SSA and the Soremi Project through CNG’s SIL Directors, a management team sent by CNG and/or CHGGC (“the Soremi Management”), and/or Cheng.

(8)  The Gerald Parties had to take out multiple applications in Hong Kong and in the BVI to recognise the FPA, effect the transfer of the 65% Shares and preserve the assets of SIL, including an application to rectify the register of members of SIL on 13 June 2024.

(9)  On 13 September 2024, the Gerald Parties applied to the BVI Court for the appointment of interim receivers over the 65 Shares. On 17 September 2024, the BVI Court appointed Messrs Cosimo Borrelli and Colin Wilson as interim receivers (“Receivers”) over the 65% Shares pending resolution of the rectification application.

(10)  On 16 July 2025, the BVI Court handed down a judgment rectifying the Register of Members of SIL to confirm that 65% Shares are held legally and beneficially by Global.

(11)  The Receivers and SIL felt they had no option but to bring the proceedings in Hong Kong (being the jurisdiction of domicile and incorporation of CNG) to, amongst other things, seek the return of removed assets.

B.  CNG’S POSITION IN THIS APPLICATION

5.  In this application, CNG relies on the arbitration agreement contained in the Shareholders’ Agreement dated 17 March 2014 (“SHA”). The parties to the SHA are (1) CNG as “Shareholder A”, (2) Global as “Shareholder B”, (3) SIL and (4) Gerald Metals.

6.  The arbitration agreement is contained in clause 13.17 of the SHA, which relevantly provides:

“(a) Any dispute, controversy or claim arising out of or relating to this Agreement, including the existence, validity, interpretation, performance, breach or termination thereof or any dispute regarding non-contractual obligations arising out of or relating to it shall be referred to and finally resolved by arbitration ....”

7.  CNG contends that all of SIL’s claims in this action arise out of or relate to the SHA, and should be referred to arbitration. It therefore seeks a permanent stay of these proceedings.

C.  THE RELEVANT PRINCIPLES

8.  Section 20(1) of the Arbitration Ordinance (Cap 609) reproduces Article 8 of the UNCITRAL Model Law on International Commercial Arbitration:

“Article 8 of the UNCITRAL Model Law, the text of which is set out below, has effect—

“Article 8. Arbitration agreement and substantive claim before court

(1) A court before which an action is brought in a matter which is the subject of an arbitration agreement shall, if a party so requests not later than when submitting his first statement on the substance of the dispute, refer the parties to arbitration unless it finds that the agreement is null and void, inoperative or incapable of being performed.

(2) Where an action referred to in paragraph (1) of this article has been brought, arbitral proceedings may nevertheless be commenced or continued, and an award may be made, while the issue is pending before the court.”.”

9.  It is common ground that the court should ask four questions when approaching an application for stay under section 20(1) of the Arbitration Ordinance:

(1)  Is the arbitration clause an arbitration agreement?

(2)  Is the arbitration agreement null and void, inoperative or incapable of being performed?

(3)  Is there in reality a dispute or difference between the parties?

(4)  Is the dispute or difference between the parties within the ambit of the arbitration agreement?

See Chu Kong v Lau Wing Yan [2019] 1 HKLRD 589 at [11] (Poon JA).

10.  There is no dispute that the burden is on the applicant (CNG in the present case) to show a prima facie case that the arbitration clause covers the claims in question: Magnus Leonard Roth v Vitaly Petrovich Orlov[2021] HKCA 639 at [13] (Au JA).

11.  SIL does not appear to dispute that the answer to the first three questions is in the affirmative. Further, the parties accept that the present application only concerns the fourth question.

D.  WHETHER DISPUTES ARE WITHIN AMBIT OF ARBITRATION AGREEMENT

12.  In Fiona Trust and Holding Corporation v Privalov [2007] Bus LR 1719, Lord Hoffmann at [13] said:

“… the construction of an arbitration clause should start from the assumption that the parties, as rational businessmen, are likely to have intended any dispute arising out of the relationship into which they have entered or purported to enter to be decided by the same tribunal. The clause should be construed in accordance with this presumption unless the language makes it clear that certain questions were intended to be excluded from the arbitrator's jurisdiction.”

13.  It is common ground between the parties that what Lord Hoffmann said in Fiona Trust at [13] is a starting point or presumption, and it is ultimately a matter of contractual construction in determining the ambit of the arbitration agreement: Magnus Leonard Roth (above) at [24] (Au JA).

14.  The principles on construction of a document are trite. As Lord Hoffmann NPJ said in Jumbo King Ltd v Faithful Properties Ltd (1999) 2 HKCFAR 279 at 296D-E,

“[t]he construction of a document is … an attempt to discover what a reasonable person would have understood the parties to mean. And this involves having regard, not merely to the individual words they have used, but to the agreement as a whole, the factual and legal background against which it was concluded and the practical objects which it was intended to achieve…”

15.  Further, Lord Hoffmann in Investors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 WLR 896 at 912H said that “[i]nterpretation is the ascertainment of the meaning which the document would convey to a reasonable person having all the background knowledge which would reasonably have been available to the parties in the situation in which they were at the time of the contract”.

D1.  CNG’s Submissions

16.  CNG submitted that on its proper construction, the arbitration agreement covers disputes concerning the approval of corporate actions, disputes concerning shareholder control over SIL and the Soremi Project, and disputes arising from the SIL joint venture generally. CNG therefore submitted that SIL’s four causes of action concern matters arising out of or relating to the SHA because:

(1)  they involve the allegation that the Wrongful Transfers were misappropriations;

(2)  they hinge on SIL’s allegation of wrongful instruction; and

(3)  they are inextricably tied to SHA which regulates in detail the basis on which the parties would operate the SIL joint venture and the Soremi Project.

D2.  Scope of the Arbitration Agreement and Substance of the Claims

17.  I would start by recognising that the phrase “any dispute, controversy or claim arising out of or relating to this Agreement” in the arbitration agreement is potentially very wide in scope. However, the width of such a clause can only be decided upon a proper construction of the SHA by reference to the subject matter of the contract in which the clause is found. As Mimmie Chan J said in VK Holdings (HK) Ltd v Panasonic Eco Solutions (Hong Kong) Co Ltd (unreported, HCCT 19/2014, 19.12.2014) at [24], “each arbitration clause must be construed in the context of the contract as a whole, and the meaning of a particular formula may be broader or narrower depending on the nature of the transaction, the circumstances in which the arbitration clause came into existence, and the other provisions of the contract”.

18.  Some of the relevant background of the SHA is set out in the recitals.

(1)  Recital (A) records that pursuant to a sale and purchase agreement dated 18 December 2013 between CNG as purchaser and Global as seller, CNG agreed to purchase 65% of all outstanding equity interests in SIL.

(2)  Recital (C) records that the parties wished to enter into the SHA to set out the terms regulating the participation of CNG and Global as shareholders in SIL, and that the SHA would supplement the shareholders’ rights under the memorandum and articles of SIL.

19.  Further, on 17 March 2014 (the date when the SHA was entered into), CNG acquired 65% shareholding in SIL from Global. Following the sale, Global remained a 35% shareholder of SIL.

20.  From the above relevant background, it can be seen that at the time when the SHA was entered into, CNG had just become the majority shareholder of SIL, with Global becoming the minority shareholder. CNG and Global naturally became parties to the SHA. And they entered into the SHA (a shareholders’ agreement) to provide for certain terms to regulate their participation as shareholders of SIL, as recorded in the first sentence of Recital (C).

21.  The second sentence of Recital (C) reinforces the notion that the purpose of the SHA is to supplement the rights of the two shareholders (CNG and Global) under the memorandum and articles of SIL. Further, as provided under clause 13.3 of the SHA, insofar as any provisions in the SHA conflict with the provisions of the memorandum and articles of association, the provisions in the SHA shall prevail as between the two shareholders.

22.  It appears that the reason why Gerald Metals became a party to the SHA was to provide irrevocable and unconditional guarantees to CNG for the due and punctual performance of all obligations of Global under the SHA: see clause 11 of the SHA.

23.  In his oral submission, Mr Simon Chapman for CNG drew my attention to clause 2.15 to demonstrate the relationship between SIL and the shareholders under the SHA. That clause provides that in the event that SIL has more cash and cash equivalents than it requires to meet its debt service requirements and its projected operating requirements, then either CNG or Global may demand SIL to declare and pay, and SIL shall so declare and pay, a dividend in an amount up to such excess. Because SIL has a separate legal personality, SIL needs to be a party to the SHA in order to give proper effect to the agreement between CNG and Global under clause 2.15. This is what I consider to be the practical object[1] of making SIL a party to the SHA. Accordingly, having considered the SHA as a whole, it seems to me that Mr Charles Manzoni SC (with Mr Jason Karas) for SIL were correct to submit that (1) SIL is not a transacting party under the SHA and (2) SIL was only named a party to the SHA because it was the subject of the investment between CNG and the Gerald Parties.

24.  As far as the terms of the SHA are concerned, they appear to reinforce the wishes of the parties as recorded in Recital (C). They suggest that the SHA was intended to be a contractual document between the two shareholders of SIL to regulate their conduct to participate, as shareholders, in SIL; they govern the relationship between the two shareholders inter se. For instance, clause 3 sets out the two shareholders’ agreement, amongst other things, on how directors may be appointed, removed or nominated by each of CNG and Global as shareholders. Further, clause 4 and Schedule 2 set out the two shareholders’ agreement that they would procure that certain acts cannot be undertaken without approval of all the directors of SIL.

25.  In the light of the background, context and purpose of the SHA as set out above, I am unable to accept CNG’s submission that the SHA was intended by the parties to “regulate in detail the basis on which the parties would operate the SIL joint venture and the Soremi Project”.

26.  As mentioned earlier, the arbitration agreement is set out in clause 13.17 of the SHA, which refers to (1) any dispute arising out of or relating to the SHA and (2) any dispute regarding non-contractual obligations arising out of or relating to the SHA. In order to fall within the scope of the arbitration agreement, the dispute in question, whether contractual or non-contractual, must in my view arise out of or relate to the SHA.

27.  Both parties accepted that in determining whether the dispute before the court is the subject of the arbitration agreement, the focus is on the substance of the dispute: Polytec Overseas Ltd v Grand Dragon International Holdings Co Ltd [2017] 3 HKLRD 258 at [25] (Mimmie Chan J).

28.  It is also common ground that the ascertainment of the substance of dispute between the parties involves “looking at the claimant’s pleadings but not being overly respectful to the formulations in those pleadings which may be aimed at avoiding a reference to arbitration by artificial means. The exercise involves also a consideration of the defences, if any, which may be skeletal as the defendant seeks a reference to arbitration, and the court should also take into account all reasonably foreseeable defences to the claim or part of the claim”: Republic of Mozambique v Privinvest Shipbuilding SAL (Holdings) [2023] Bus LR 1359 at [72] (Lord Hodge DPSC).

29.  I consider the substance of the dispute in the present action concerns the misappropriations of SIL’s assets. In paragraph 33 of its Statement of Claim, SIL has set out numerous grounds to support why it alleges the Wrongful Transfers were misappropriations of SIL’s assets. They include the allegations that the Wrongful Transfers were (1) unauthorised, (2) against SIL’s best interest, (3) for collateral/improper purposes of putting SIL’s assets out of reach of SIL and the Gerald Parties and frustrating the enforcement of the FPA, (4) without any legitimate basis, purpose or consideration, and were out of the ordinary course of SIL’s business. These issues do not in my view concern CNG’s rights or liabilities under the SHA because they are questions about the discharge by CNG’s SIL Directors and Cheng of their equitable and fiduciary duties to SIL: ACD Tridon Inc v Tridon Australia Pty Ltd [2002] NSWSC 896 at [173] (Austin J). “Even giving a generous interpretation to the words of the arbitration agreement, presuming that the parties would not have intended some matters of dispute arising in connection with the SHA to fall within the arbitration agreement but other related matters to fall outside it”,[2] I do not consider the dispute regarding the misappropriations of SIL’s assets to be a dispute arising out of or relating to the SHA.

30.  CNG submitted that the substance of SIL’s claims in this action concerns a breach of the SHA. In particular, CNG submitted that SIL’s allegation of misappropriations of SIL’s assets is in substance an allegation that the alleged Wrongful Transfers were made in breach of the reserved matters set out in clause 4 and Annexure 2 of the SHA.

31.  I am unable to accept this submission. As explained above, I consider the substance of SIL’s claims as being misappropriations of SIL’s assets.

32.  The fact that references to the SHA have been made in the Statement of Claim (e.g. at paragraph 33.5) does not mean that SIL’s claims are brought under the SHA or in substance based on a breach of the SHA.

33.  As explained by Lord Hodge DPSC in the Mozambique case (above):

“… a “matter” is a substantial issue that is legally relevant to a claim or a defence, or foreseeable defence, in the legal proceedings, and is susceptible to be determined by an arbitrator as a discrete dispute. If the “matter” is not an essential element of the claim or of a relevant defence to that claim, it is not a matter in respect of which the legal proceedings are brought. I agree with the statement of Sundaresh Menon CJ in para 113 of Tomolugen that a “matter” requiring a stay does not extend to an issue that is peripheral or tangential to the subject matter of the legal proceedings. I agree with Foster J’s third proposition in WDR Delaware that a “matter” is something more than a mere issue or question that might fall for decision in the court proceedings or in the arbitral proceedings.” [75]

“… the exercise involving a judicial evaluation of the substance and relevance of the “matter” entails a question of judgment and the application of common sense rather than a mechanistic exercise. It is not sufficient merely to identify that an issue is capable of constituting a dispute or difference within the scope of an arbitration agreement without carrying out an evaluation of whether the issue is reasonably substantial and whether it is relevant to the outcome of the legal proceedings of which a party seeks a stay whether in whole or in part. …” [77]

34.  The various causes of action of SIL are set out in its Statement of Claim (and summarised in Section A above). It does not appear to me that any of the causes of action is based on a breach of the SHA, or requires a determination of whether the SHA has been breached by CNG. SIL’s causes in action in conversion and conspiracy are tortious claims; its cause of action in dishonest assistance is a claim in equity. The breach of the SHA cannot therefore be a substantial issue that is legally relevant to SIL’s claims.

35.  Further, I am not persuaded by the various arguments advanced on behalf of CNG.

36.  First, Mr Chapman referred to paragraphs 89.5 and 92.2 of the Statement of Claim to support CNG’s argument that SIL needs to establish breach of the SHA to prove dishonesty in SIL’s dishonest assistance claim. I disagree that the references to the SHA pleaded in the two paragraphs are matters essential to the SIL’s claim in dishonest assistance. It is trite that dishonesty is not determined by reference to whether or not a contract has been breached.

37.  Further, Mr Chapman submitted that the breach of the SHA is legally relevant to CNG’s potential defences. Relying on the evidence filed on behalf of CNG, he argued that CNG intends to contend that the alleged Wrongful Transfers were neither misappropriations nor dishonest, and were permitted and consistent with the terms of the SHA. However, even if the transfers were allowed pursuant to the SHA, CNG has not provided any explanation on how this contention can provide a legal defence to SIL’s allegations summarised in paragraph 29 above, and to SIL’s other causes of action such as lawful means conspiracy. I am therefore not satisfied that the issue of breach of the SHA can constitute a reasonably substantial and relevant issue in CNG’s potential legal defence.

38.  Moreover, CNG submitted that SIL’s allegation that CNG instructed the Wrongful Transfers involves an examination of CNG’s rights and obligations under the SHA, and SIL’s causes of action therefore fall within the ambit of the arbitration agreement. This submission cannot be accepted because the substance of SIL’s case on wrongful instruction is not based on the rights and obligations of CNG under the SHA. As can be seen from the evidence sought to be relied upon by SIL, SIL’s case on wrongful instruction is in substance based on the contentions that (1) CNG was able to instruct CNG’s SIL Directors and Cheng and cause SIL to carry out its instructions and (2) CNG did in fact instruct them to procure the Wrongful Transfers.

39.  Finally, on the particular facts of this case, I am unable to accept CNG’s submission that the Fiona Trust presumption would assist so that SIL’s claims herein are permanently stayed in favour arbitration.

(1)  I fully accept the general proposition that any arbitration agreement must be construed with the Fiona Trust presumption in mind.

(2)  As mentioned above in paragraph 23, it is my view that SIL is a non-transacting party to the SHA and only became a party to the SHA to give effect to the various agreements between CNG and Global. Given there is in my view no substantive relationship between CNG and SIL under the SHA, I do not believe the Fiona Trust presumption would assist in determining whether SIL’s present disputes fall within the scope of the arbitration agreement under the SHA.

(3)  In any event, as Au JA said in Magnus Leonard Roth (above) at [24], the Fiona Trust presumption does not assist in circumstances where the parties are considered to have clearly intended that disputes in question are not intended to be caught by the arbitration agreement. Having regard to the background, context and purpose of the SHA as set out in paragraphs 18 to 25 above, it seems to me that a dispute between SIL and CNG on the misappropriations of SIL’s assets is not intended to be within the ambit of the arbitration agreement in the SHA.

40.  I conclude that the disputes in the present action fall outside the scope of the arbitration agreement in the SHA.

41.  SIL also argued that CNG cannot rely on the arbitration agreement to seek a stay when it should have transferred the 65% Shares to Global by either 30 March 2020 or 8 February 2023. To support the argument, SIL relied on the prevention principle that “a person is not permitted to take advantage of his own wrong”: Kensland Realty Ltd v Whale View Investment Ltd (2001) 4 HKCFAR 381. It would appear that SIL’s argument involves rewriting the facts so that the SHA would have become terminated after 30 March 2020 or at the latest soon after 8 February 2023. Neither Kensland Realty nor any of the authorities cited therein supports the proposition the prevention principle would allow the court to reconstitute the facts. Accordingly, I am not persuaded that the prevention principle can be invoked to support SIL’s alternative argument.

42.  SIL further argued that the stay sought is an improper purpose of causing delay and incurring additional costs, or otherwise constitutes an abuse of process. Relying on the Mozambique case (above) at [110], SIL submitted that the court should exercise its discretion to refuse the stay. This is a fallback argument because it is premised on the present disputes falling within the scope of the arbitration agreement. In the light of my above conclusion that the present disputes fall outside the scope the arbitration agreement, this fallback argument does not arise and it is unnecessary for me to express any view on it.

E.  CONCLUSION

43.  For the above reasons, I consider that CNG has not shown a prima facie basis that the disputes between the parties are within the ambit of the arbitration agreement. There is no basis for the court to grant a stay in favour of arbitration. Accordingly, I dismiss CNG’s summons dated 3 June 2025.

44.  As to costs, I make an order nisi that the costs of and occasioned by the application are to be paid by CNG to SIL, to be taxed if not agreed. In the event that either party wishes to vary the costs order nisi (including to apply for summary assessment of costs in lieu of taxation), such application(s) will be dealt with and determined at the start of the hearing on 29 September 2025.

Mr Charles Manzoni SC, instructed by Karas So LLP and Mr Jason Karas, Solicitor Advocate, of Karas So LLP, for the Plaintiff

Mr Simon Chapman, Solicitor Advocate, of Herbert Smith Freehills Kramer, for the 1^st and 2^nd Defendants