CHEN YUNG NGAI KENNETH AND ANOTHER v. HO YUK WAH DAVID (A BANKRUPT) AND OTHERS

HCA 971/2012

[2020] HKCFI 2518

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 971 OF 2012

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BETWEEN

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J U D G M E N T

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Introduction[1]

1.  This is the trial of the Action.

2.  The Plaintiffs bring this Action in order to recover assets which they claim to belong to David Ho’s bankruptcy estate.  In a nutshell, the Plaintiffs allege that since 1996^[2], David Ho has always beneficially owned/controlled and still owns/controls through nominees the 6th Defendant and other companies within the so-called Asia-Pac Group which were incorporated or acquired by David Ho.  28 such Asia-Pac Group companies were named in the Schedule (“Schedule”) to the Re-Amended Statement of Claim including inter alia all the corporate Defendants in this Action ie the 2nd to 11th Defendants (“Corporate Defendants”) as well as Ferdinan Limited (“Ferdinan”), Asia-Pac Infrastructure (Holdings) Limited (“APIHL”), Bestwin Asia Limited (“Bestwin”) and Greater Beijing Region Expressways Limited (“GBRE”).

3.  While that is the essence of the Plaintiffs’ general case, in the prayer for relief[3] in the Re-Amended Statement of Claim, the Plaintiffs’ claims in this Action are limited to:

(1) A declaration that the 2nd to 5th Defendants held and hold all the shares in the 6th Defendant (registered in the names of the 2nd to 5th Defendants) on behalf and for the benefit of David Ho.

(2) A declaration/declarations that:

(a)  the 2nd Defendant held and holds the share in the 9th Defendant (registered in the name of the 2nd Defendant) on behalf and for the benefit of David Ho;

(b) the 6th Defendant held and holds the shares in the 10th and 11th Defendants (registered in the name of the 6th Defendant) on behalf and for the benefit of David Ho.

(3) An order/orders that:

(a) the 2nd to 5th Defendants do transfer their respective shareholdings in the 6th Defendant;

(b) the 2nd Defendant do transfer its shareholding in the 9th Defendant;

(c) the 6th Defendant do transfer its shareholding in the 10th and 11th Defendants;

to the Plaintiffs within 28 days.

4.  From the above, it is reasonably clear that the Plaintiffs’ targets for relief are against the shares in the 6th and 9th to 11th Defendants.  With regard to these 4 companies, the Plaintiffs claim that David Ho or his nominees had set them up or acquired them and had never parted with beneficial ownership of them. Rather, he had masked his beneficial ownership with layers of nominee shareholders and masked his control of them with his corporate and personal nominees. 

5.  In the premises, this court will focus its analysis of the issues raised in the pleadings and the evidence, including any inferences, if any, which can be drawn for or against the parties, in so far as they pertain to the relief sought.  This court will also only make such findings of fact in so far as they are necessary for the purpose of adjudicating upon the relief sought. 

6.  Specifically, in relation to the 6th Defendant, 2 particular transactions feature prominently in this case as, according to the Plaintiffs, part of the means by which David Ho masked his beneficial interest in the 6th Defendant.  These 2 transactions are known as (i) the Sham Sale of the 6th Defendant via the sale of APIHL[4] in November 2004 to Bestwin (“Sham Sale”) and (ii) the Sham Re-capitalisation of the 6th Defendant in December 2007 involving the payment to and injection of assets into the 6th Defendant and the allotment of the 6th Defendant’s shares to the 3rd and 4th Defendants (“Sham Re-capitalisation”).      

David Ho and family

7.  David Ho was formerly a solicitor practising in Hong Kong.  In around December 1994, he set up his own law firm viz David YW Ho & Co (“Firm”) as its sole proprietor.  Ms Jade Ho Yuk Kuen (“Jade Ho”) is the younger sister of David Ho.  By an agreement dated 17 November 2004, David Ho allegedly sold the Firm to her for HK$1.2 million.  Jade Ho is alleged to be a nominee of David Ho. Mr Yu Yang (“Yu Yang”) was David Ho’s former brother-in-law—David Ho and Yu Yang’s younger sister got married in 2010 in the PRC.  They eventually divorced in 2015.  Yu Yang is also alleged to be a nominee of David Ho.

8.  In August 2011, on David Ho’s own petition, a bankruptcy order was granted against him in HCB 3819 of 2011.  In September 2011, the Plaintiffs were appointed joint and several trustees of the property of David Ho.  David Ho’s debts, according to his Statement of Affairs, exceeded HK$160 million.  He had declared only negligible assets.

9.  Prior to his bankruptcy, David Ho or his alleged corporate nominees was involved in a number of litigation, some of which will feature in this Judgment.  They were:

Action No
HCA 14674/1999	“Mak Case”
HCA 1212 & 2915/2002	“New World Case”
CACV 242/2009	“New World Appeal Case”
HCA 16778/1999	“Ing Case”[5]
HCA 806/2006	“Shearman Case”[6] or “Professional Negligence Case”

10.  The Ing Case was settled in 2011 at a substantial loss according to Yu Yang.  The result of another ie the Mak Case was very unfavourable to David Ho: after trial, the court granted a judgment of HK$32 million against him on 12 November 2004.  The Shearman Case was, according to Yu Yang, in a state of delay owing to insufficient funding, and, according to Ms Lam SC and not disputed by Mr Kwok, is still on-going.  However, the significance of these cases lie in the fact that evidence had been given by David Ho in them and/or the Courts’ assessment of it which, as shall be seen, lends support to the Plaintiffs’ case. 

Relevant companies within the Asia-Pac Group

11.  The network of the Asia-Pac Group of companies allegedly set up by David Ho is highly complex.  What follows is a simplified table showing the corporate information of those companies which are relevant to the Plaintiffs’ case.[7]

12.  The 2nd Defendant (Gladius Limited, previously known as D Ho Nominees Limited)^[8]:

From	Shareholders	Directors
27 June 2002-4	N/A[9]	David Ho, Jade Ho, William Stephen Sorensen
27 June 2005	David  Ho, D Ho Corporate Services Limited	William Stephen Sorensen, Chan Man Ho Brian (“Brian Chan”)
27 June 2006	D Ho Corporate Services Limited,  Bright Spirit International Limited[10]	William Stephen Sorensen, Fong King Yiu (“Fong”)
27 June 2007	D Ho Corporate Services Limited, Grand Asia Group Holdings Limited[11]	D Ho Corporate Services Limited, Fong
27 June 2008	Ferdinan, Yu Yang[12]	Ferdinan, Pei Xin Yu (“Pei”)
27 June 2012	Ditto	Ferdinan, Liu Shu

13.  Ferdinan (previously known as D Ho Corporate Services Limited)[13]:

From	Shareholders	Directors
27 June 2002	N/A[14]	David Ho, Jade Ho
27 June 2003	Ditto	David Ho, D Ho Nominees Limited
27 June 2004	Ditto	Ditto
27 June 2005	David Ho, Bright Spirit International Limited	Brian Chan, D Ho Nominees Limited
27 June 2006	Bright Spirit International Limited, DH Consultants Limited[15]	D Ho Nominees Limited, Fong
27 June 2007	DH Consultants Limited, Grand Asia Group Holdings Limited[16]	Fong, D Ho Nominees Limited
27 June 2008	Venation Limited (“Venation”), Yu Yang[17]	Gladius, Yu Yang
27 June 2009	Ditto	Ditto
27 June 2010-2012	Gladius, Yu Yang	Ditto

14.  Grand Asia Group Holdings Limited[18]:

From	Shareholder	Director
21 June 2001	Optic Holdings Limited	David Ho, Jade Ho
20 May 2003	Jade Ho	Ditto
17 December 2004	Ditto	Jeff Li Chak Fu (“Jeff Li”)
3 May 2005	Chen Hong	Ditto
27 September 2005	Ditto	Peter Lo Hung Hing (“Peter Lo”)
16 October 2006	Ditto	Fong
15 November 2007	Yu Yang	Ditto
26 November 2007	Ditto	Nina Jia Yin
22 September 2008	Ditto	Yu Yang

15.  The 3rd Defendant (Ontrade Properties Limited)[19]:

From	Shareholder	Director
12 July 2004	Carl Michael Clarke	Carl Michael Clarke
26 November 2007	Ditto	Pei
20 May 2008	Yu Yang	Ditto
3 February 2012	Ditto	Liu Shu

16.  The 4th Defendant (King Ocean Development Inc)[20]:

From	Shareholder	Director
4 February 2002	Ruby Pond Limited	Lam Kwong Shu, Symond (“Symond Lam”), Jeff Li
22 March 2002	Ditto	Symond Lam, Jeff Li, Jade Ho
10 December 2002	Worldstar Limited	Jeff Li
30 September 2005	Ditto	Peter Lo
16 October 2006	Ditto	Wong Kwok Wing
15 June 2007	Grand Asia Group Holdings Limited	Ditto
26 November 2007	Ditto	Nina Jia
22 September 2008	Ditto	Yu Yang
8 January 2010	Yu Yang	Ditto

17.  The 5th Defendant (Asia-Pac Group Investments Limited or APGIL)[21]:

From	Shareholder	Director
28 April 1998	Asia-Pac Pacific Region Properties (Holdings) Limited ie the 7th Defendant	David Ho
13 January 1999	Bright Lens Investments Group Limited [22]	Ditto
9 July 2001	Faith Express Limited	Ditto
19 October 2001	Ditto	David Ho ceased to act on 19 October 2001.  No director shown on record.
3 April 2006	Ditto	Peter Lo
16 October 2006	Ditto	Fong
20 June2007	Grand Asia Group Holdings Limited	Ditto
28 September 2007	Jade Ho (on trust for Yu Yang)	Ditto
22 June 2008	Ditto	Pei
30 June 2010	Yu Yang	Ditto
3 February 2012	Ditto	Liu Shu

18.  The 6th Defendant (Asia-Pac Infrastructure Development Limited)[23]:

From	Shareholder	Director
18 January 2004	D Ho Nominees Limited (1 share), APIHL (999,999 shares)	David Ho, Universal Winner Limited (“Universal Winner”) [24]
18 January 2005	Ditto	Jeff Li, Universal Winner
18 January 2006	Ditto	Peter Lo, D Ho Corporate Services Limited (Ferdinan)
18 January 2007	Ditto	D Ho Corporate Services Limited (Ferdinan), D Ho Nominees Limited (Gladius)
22 June 2007	D Ho Nominees Limited (1 share), the 5th Defendant (999,999 shares)[25]	Ditto
31 December 2007	the 2nd Defendant (1 share), the 5th Defendant (999,999 shares), the 3rd Defendant (500,000 shares), the 4th Defendant (250,000 shares)	Gladius, Ferdinan
18 January 2008	Ditto	Ditto
18 January 2012-3	Ditto	Gladius, Ferdinan, Liu Shu

19.  The 8th Defendant (Grand Asia Capital Services Limited)[26]:

From	Shareholder	Director
31 December1996	D Ho Nominee Limited	Plaxo Limited
13 November 2000	Asia-Pac Corporate Finance (Holdings) Limited	David Ho
21 March 2001	Ditto	David Ho, Jade Ho
23 June 2001	Logistic Link Limited[27]	Ditto
15 March 2002	Grand Ocean Trading Limited	Ditto
2 July 2002	Grand Asia Group Holdings Limited	Ditto
10 December 2002	Worldstar Limited	Ditto
6 March 2003	Ditto	David Ho
15 December 2004	Ditto	Peter Lo
16 October 2006	Ditto	Fong
15 October 2007	Grand Asia Group Holdings Limited	Ditto
26 November 2007	Ditto	Nina Jia Yin
22 September 2008	Ditto	Yu Yang
After 1 April 2011	Yu Yang	Ditto

20.  The 9th Defendant (Pacific Shine Limited)[28]:

From	Shareholders	Directors
8 February 2003 & 2004	Precious Moment Offshore Limited, Rich Capital Trading Limited[29]	Precious Moment Offshore Limited, Rich Capital Trading Limited
17 November 2004	D Ho Corporate Services Limited, Grand Asia (China Media) Group Limited	D Ho Limited, D Ho Nominees Limited
8 February 2005	Ditto	Ditto
8 February 2006	Fong, Peter Lo	Fong, Peter Lo
8 February 2007 & 2008	D Ho Nominees Limited / Gladius, D Ho Corporate Services Limited / Ferdinan	D Ho Nominees Limited/ Gladius D Ho Corporate Services Limited/ Ferdinan
8 February 2009-2011	Gladius, Ferdinan	Gladius, Ferdinan

21.  The 10th Defendant (Sparkle Lanes Limited)[30]:

From	Shareholder	Director
18 December 1997	Winning Express Group Limited	David Ho
5 December 2000	Ditto	David Ho, Jade Ho (ceased to act on 6 March 2003)
30 November 2001	Newcast Group Limited	David Ho, Jade Ho
6 March 2003	Ditto	David Ho
17 December 2004	Ditto	Jeff Li
30 September 2005	Ditto	Peter Lo
16 October 2006	Ditto	Fong
4 June 2007	Grassmere Services Limited (“Grassmere”)[31]	Ditto
18 June 2008	Ditto	Pei
30 June 2010	The 6th Defendant	Ditto

22.  The 11th Defendant (Tsun King Group Limited)[32]:

From	Shareholder	Director
12 March 1998	Channery Limited	David Ho (ceased to act on 16 October 2001)
8 May 1998	Bright Talent Holdings Limited	Ditto
29 January 2001	Ditto	David Ho, Jade Ho (ceased to act on 16 October 2001)
16 October 2001	Ditto	Faith Overseas Limited
15 March 2002	Faith Overseas Limited[33]	Ditto
15 May 2003	Ditto	Faith Overseas Limited, Jade Ho
3 October 2003	Ditto	Wong Kwok Wing
14 September 2004	Ontrade	Ditto
16 February 2006	Ditto	Carl Michael Clarke, Mohammed Ishaq (ceased appointment on the same day)
26 November 2007	Ditto	Pei
31 December 2007	The 6th Defendant	Ditto

23.  As far as APIHL is concerned, the only available evidence shows that it was incorporated in the BVI on 8 May 1996 in the name of Multi Input Systems Limited and changed its name to APIHL on 30 December 1996.  David Ho was its sole shareholder at least from 22 May 2003 to 18 November 2004 when Bestwin became its sole shareholder from 18 November 2004 onwards[34].

24.  David Ho was the sole director of APIHL who signed the director’s resolution dated 18 November 2004 approving the Sham Sale.  As the register of directors is not available, there is no evidence of any change of APIHL’s director since 18 November 2004. The Company was struck off the BVI Register of Companies on 1 November 2007.

25.  As far as Bestwin is concerned, the available evidence shows that it was incorporated in the BVI on 11 November 2003 and struck off the BVI Register of Companies on 1 May 2008.  Joshua Chan Tak Lam (“Joshua Chan”) was its director at the time of the Sham Sale and signed the Instrument of Transfer on behalf of Bestwin.  Joshua Chan was a business associates of David Ho—they were co-directors, at least in 2002 and 2003, of Beijing Jun Ya Property Management Company Limited 北京骏亚物业发展有限公司 (“Beijing Jun Ya”), a sino-foreign cooperative venture established in 1998.  Joshua Chan is alleged to be a nominee of David Ho.

26.  Lastly, as for the current position, suffice it to note that

(1) Yu Yang is a 50% registered shareholder of the 2nd Defendant and sole registered shareholder of the 3rd to 5th Defendants —this is maintained by the Active Defendants in paragraph 68 of their Closing Submissions;

(2) the 6th Defendant’s registered shareholders are the 2nd, 3rd, 4th and 5th Defendants—there being no suggestion from the Active Defendants or 6th Defendant that they have ceased to be so after the Sham Re-capitalisation on 31 December 2007;

(3) the 9th Defendant’s registered shareholders are the 2nd Defendant and Ferdinan—this is maintained by the Active Defendants in paragraph 119 of their Closing Submissions;

(4) the 10th Defendant has been struck off the BVI Register of Companies—this is common ground between the parties; and

(5) the 11th Defendant’s sole registered shareholder is the 6th Defendant—there being no suggestion there has been any change to that after the Sham Re-capitalisation on 31 December 2007.

David Ho’s personal nominees

27.  Of the 9 persons pleaded as David Ho’s nominees, the following persons had responded to the Plaintiffs’ investigation in correspondence.  They were all at some stage associated in a salaried position with the Firm, the 6th Defendant or GBRE when David Ho was in charge. 

28.  All the following persons had confessed, in one way or another, they had indeed acted in accordance with the instructions of David Ho or the Firm in relation to the affairs of the Asia-Pac Group of companies.  They are:

(1) Brian Chan.  He was an admitted nominee of David Ho.  He joined the Firm in February 1995 as assistant solicitor, then as salary partner and consultant until about 2007.  On his own admission, his company Punto Limited (“Punto”) received HK$3 million from David Ho on 11 November 2004. On 18 November 2004, in accordance with David Ho’s instructions, he issued a cashier order of HK$2 million to him in order to pay for the Sham Sale of APIHL from David Ho to Bestwin[35].  He was a former director of the 2nd Defendant and Ferdinan in 2005. 

(2) Jeff Li.[36]

(a) Jeff Li was an admitted nominee of David Ho.  He was employed as the 6th Defendant’s accountant—corporate from 1 December 1998 to 4 October 2005.  He described David Ho his “boss” during the time of his employment with the 6th Defendant and said he understood David Ho was its owner.  He also said David Ho was the owner of inter alia the 9th Defendant, Grand Asia Group Holdings Limited and Faith Overseas Limited. 

(b) By his own admission, he was instructed by David Ho to act as director and/or authorised signatory of the companies at (a) above and made fund transfers and payments on behalf of the companies as instructed by David Ho. 

(c) He was also a director of Grand Asia Group Holdings Limited in 2004 and 2005, the 4th Defendant in 2002, the 6th Defendant in 2005 and the 10th Defendant in 2004 and 2005.

(d) Given his admission above, his formal employment was with the 6th Defendant and his relationship with his boss David Ho, it is reasonable to infer that he was only David Ho’s nominee director of the companies at (c) above. 

(3) Peter Lo.[37]

(a) He was senior accounting manager and later financial controller of GBRE, its subsidiaries, affiliates and associates (“GBRE Group”) from September 1997.  In 2005, he replaced Jeff Li as the financial controller of the GBRE Group.  He resigned in 2006.  According to him, GBRE was founded by inter alia David Ho in about 1996 and since November 1999, David Ho became the majority shareholder of GBRE. 

(b) He admitted that he was instructed by David Ho to act as his nominee director of inter alia the 6th and 9th Defendants, Grand Asia Capital Investments Limited, Asia-Pac Infrastructure Finance Limited (“APIFL”), etc and as nominee shareholder of the 9th Defendant. 

(c) He also admitted he was instructed by David Ho to act as bank signatories of Grand Asia Group Holdings Limited, and the 6th and 9th Defendants.

(d) According to the corporate information of 4th, 5th, 6th, 8th and 9th Defendants, he was their director in 2004, 2005 and 2006 respectively.  Given his admission that sometimes staff of the GBRE Group were asked to act as nominee directors or even shareholders of the Asia-Pac Group companies, and given his formal employment was with GBRE Group all along, it is reasonable to infer that he was only a nominee director of those Defendants on the instructions of David Ho.

(e) This court finds Peter Lo to be a nominee of David Ho and was accustomed to act in accordance with his instructions.

(4) Fong.

(a) He was employed by the Firm from 1995 to 2004.  He was a low ranking member of the Firm responsible for clerical and administrative work.

(b) After he had left the Firm in 2004, he was a director in 2006 and 2007 and a 50% shareholder from February to June 2008 of the 2nd Defendant, a director of the 5th and 8th Defendants in 2006 and 2007, a 50% shareholder and a director of the 9th Defendant in 2006 and a director of the 10th Defendant from 2006 to 2008.  Fong was also a director of Ferdinan in 2007 and Grand Asia Group Holdings Limited in 2006.

(c) Given (i) his formal employment was only with the Firm and his supposed relationship with David Ho ended in 2004, (ii) his low ranking position whilst in the Firm, and (iii) the absence of evidence from the Active Defendants the circumstances under which he became associated with the above companies, there was no explanation for him to be a director or shareholder of the above companies at all other than on the instructions of and as a nominee of David Ho.

(d) He did not deny having signed the Sham Re-capitalisation Agreements dated 31 December 2007 referred to below on behalf of the 6th Defendant.  Since he had no formal position in the 6th Defendant at that time and given the absence of evidence from the Active Defendants that he was in any way associated with the registered shareholders or directors of the 6th Defendant, it is reasonable to infer that he only did so on other’s instructions, most likely David Ho his former boss.

(e) On the basis of the above, this court finds that Fong was a nominee of David Ho and was accustomed to act in accordance with his instructions.

29.  To conclude, this court finds the Plaintiffs have made out their case that Brian Chan, Jeff Li, Peter Lo and Fong were among the numerous nominees of David Ho who were accustomed to act in accordance with his instructions.  In the course of this court’s deliberation, more nominees will be identified. 

30.  This court also finds that David Ho is the kind of person who exhibited a distinct tendency to use nominees in his business dealings.  In the absence of evidence of any innocuous purpose coming from him, the reason for this tendency is, on balance of probabilities, to hide his relationship with companies under his control.  Indeed, he admitted almost as much in relation to the 6th Defendant in his 2nd affirmation dated 14 December 2010 filed in New World Appeal Case at paragraph 7. 

The parties’ pleaded cases

31.  The Plaintiffs’ pleaded case is this.

32.  David Ho has set up a network of companies ie the Asia-Pac Group companies which he has always beneficially owned and controlled including inter alia the Corporate Defendants.  Apart from using some of the companies as his corporate nominees, David Ho also used a number of personal nominees to hold shares and/or act as directors of the Asia-Pac Group companies. 

33.  The Sham Sale of the 6th Defendant (via APIHL) and the Sham Re-capitalisation of the 6th Defendant were shams and for that reason were void and of no legal effect.  These sham transactions were orchestrated by David Ho using his nominees.

34.  The shares in APIHL and hence the 6th Defendant were and are being held on resulting trust by Bestwin for David Ho as no consideration had ever been paid by Bestwin.

35.  David Ho was and is the beneficial owner of the 9th to 11th Defendants.

36.  The 2nd to 5th, 8th and 9th Defendants (“Active Defendants”) together with the 10th Defendant have filed an Amended Defence which consists mostly of non-admissions and bare denials.  In particular, they have made a bare denial that the 9th to 11th Defendants are beneficially owned by David Ho. 

37.  Importantly, they do not plead to the Plaintiffs’ plea about (i) David Ho’s beneficial interest in the 6th Defendant and other Asia-Pac Group companies ie those set out in the Schedule including inter alia the Active Defendants themselves[38], and (ii) the Sham Sale of the 6th Defendant in November 2004.[39]    

38.  There is also no positive plea as to the circumstances under which Yu Yang came to own the 2nd to 5th Defendants, notwithstanding the fact that after the Sham Re-capitalisation exercise on 31 December 2007, the 6th Defendant’s registered shareholders were the 2nd to 5th Defendants and their positive plea below that Yu Yang was the ultimate owner of and controlled the 6th Defendant.

39.  Their only substantive positive pleas are these.

40.  They admit the agreements concerning the Re-capitalization of the 6th Defendant in 2007 but aver they were not a sham since the 3rd and 4th Defendants had agreed to fund the 6th Defendant for the substantial legal costs and any security for costs order against it in the Ing Case and the Shearman Case.  The 3rd and 4th Defendants agreed to do on the basis that the main assets of the 6th Defendant were its claims in the Ing Case and the Shearman Case where substantial amounts were involved.  If the 6th Defendant succeeded at trial, the value of its shares would increase.

41.  Yu Yang was the ultimate owner of and controlled the 6th Defendant. 

42.  The 10th Defendant is a wholly owned subsidiary of the 6th Defendant and not beneficially owned by David Ho.

43.  The Joint and Several Liquidators of the 6th Defendant has filed an Amended Defence which consists largely of denials and non-admissions.  At trial, it takes a neutral stance.

The Defendants’ conduct in the Action/trial  

44.  David Ho has not taken part in the Action.

45.  The Active Defendants are the only entities defending the Plaintiffs’ claims at the trial.

46.  The 6th Defendant is in creditors’ voluntary liquidation and adopts a neutral stance.  It was, at its own request, excused from attending the trial. 

47.  The 7th Defendant has been struck off the BVI Register of Companies in May 2003.  The action against it has been discontinued.

48.  The 10th Defendant has ceased to be legally represented by Order of Master J Wong dated 12 April 2019 and did not take part in the trial.  According to Mr Kwok, which is not disputed by Ms Lam SC, it has been struck off the BVI Register of Companies.

49.  The 11th Defendant has not taken part in the Action.

The parties’ witnesses at the trial

50.  The Plaintiffs have called 1 live witness viz Mr Arthur Ip Pui Lam (“Ip”) and also seek to rely on the witness statement of Peter Lo as hearsay evidence. 

51.  Ip has no personal knowledge of the material factual events.  As Ms Lam SC put it, the Plaintiffs’ case is based on the evidence, documentary as well as admissions from previous employees of the Firm and the Asia-Pac Group companies, obtained in the course of their investigation into the financial affairs of David Ho and their case is about what can or cannot be established by or inferred from such evidence.

52.  While the Active Defendants have participated at the trial, they have not called any live witnesses to testify on their behalf. Instead, they choose to rely on the witness statements of (i) Yu Yang, (ii) Liu Shu and (iii) Hou Chung Man Anita (“Hou”) filed in these proceedings as hearsay evidence[40].

53.  Since the parties do not dispute the admissibility of those witness statements, this court is prepared to admit them as hearsay evidence, subject to submissions by the parties on weight.  But first, some preliminary observations should be made about these hearsay statements.

54.  As far as Peter Lo is concerned, the gist of his evidence can be found in the section entitled “David Ho’s personal nominees” above.

55.  Yu Yang is pleaded as a nominee of David Ho.

56.  In his witness statement, Yu Yang makes a bare assertion that he is the direct or indirect shareholder or beneficiary of the 2nd to 6th and the 8th to 10th Defendants as well as the former indirect shareholder of the 11th Defendant. 

57.  At paragraphs 81 to 85 of Mr Kwok’s Closing Submissions, it is submitted that Yu Yang and his sister agreed to invest in inter alia David Ho’s (or strictly speaking the 6th Defendant’s) litigation projects at the end of 2007.  Since David Ho was familiar with the projects, Yu Yang and his sister agreed that David Ho continued to manage them.  In return, David Ho proceeded to arrange the transfer of companies which he said were owned by his UK relatives to Yu Yang from 2008 to 2010.  These companies included the 2nd to 5th Defendants.

58.  But the fact is that Yu Yang has never explained clearly in his witness statement the circumstances under which he became the (direct or indirect) shareholder or beneficiary of the 2nd to 5th Defendants and thus the 6th Defendant, or the 8th to 11th Defendants for that matter, after he and his sister had decided to make the investment.  Mr Kwok relies on paragraphs 10, 11 and 31 of Yu Yang’s witness statement as evidential support of his submission.  But those paragraphs, apart from being bare assertions, are vague on the identity of the companies that Mr Yu was actually referring to - they simply do not provide the necessary evidential support that Mr Kwok needs to make good his submissions.  For ease of reference, they are reproduced below:

“10. By the end of 2007, after discussion, my younger sister and I decided to invest and support the projects and cases managed by David. He also agreed to consolidate all projects and cases. With the consent of his relatives in UK, he transferred the companies owned by his relatives in UK to me and closed the money-losing and unpromising projects and cases.

11. David, being a lawyer with rich experience in managing investment and litigation cases, was our family member. My younger sister and I agreed that all investment and case projects should be completely managed by David. He also required us to take care of the daily expenses incurred by him personally, his ex-wife (separated for years by 2008) and his children in Hong Kong. Subsequently, he remitted money to Hong Kong to repay part of his borrowings afterwards.

…

31. Before I invested with my younger sister in 2008, I had known that David’s UK family had been investing in David’s projects and cases at that time.  His mother, eldest sister, brothers and other relatives and friends had invested in his projects and cases.  David also clearly told me at that time that the companies running the above projects belonged to his UK family.  After I invested with my younger sister in 2008, the ownership of such companies was transferred to me. David managed such companies for me and my younger sister only because of his familiarity with the project background and rich experience.  The bank statements of many of my companies in Hong Kong disclosed by LWLWIC clearly show the records of the investment funds from David’s UK family (Yuk Ying Wong, Eddie Ho, Helen Ho, Simon Chen Ning Chung, Mak Wai Ki, Frankie Tsang Wing, Stephen Ho Yuk Fong, Han Bing, Ho Yuk Kuen and H.B. Chung) and the funds remitted from my partners in Beijing (Beijing Global Alliance Property Leasing Co. Ltd, Global Alliance (Beijing) Property Leasing Co. Ltd, Beijing Jue Xian Xing Consulting Ltd and Beijing Guang Yu Tian Hua Property Co. Ltd) and me to my staff in Hong Kong (Chan Hau Yu, Yim Mei Ling and Fong King Yiu) through my relatives and staff.  The investments from such companies in Hong Kong and from their shareholders actually belonged to me and my younger sister, which were definitely not David’s investment.  David was only my senior consultant.  His and his family’s reasonable living expenses in Hong Kong were paid by companies in Hong Kong.”

59.  From the corporate information, Liu Shu is a director of the 2nd, 3rd, 5th and 6th Defendants.  In her witness statement, she says since May 2006, she was employed by the Beijing branch of the Asia Pacific Group to handle administrative and finance matters.  When David Ho moved to Beijing in 2007, they became colleagues and got familiar with each other due to work.  They also discussed the litigation projects handled by David Ho and later invested in by Yu Yang and his sister.

60.  Hou is one of the joint and several Liquidators of the 6th Defendant together with Alan Tang Chung Wah appointed in April 2013.  In her witness statement, Hou says in her view, this Action is a matter between the Plaintiffs and the 2nd to 5th Defendants regarding the beneficial ownership of the 6th Defendant and the 6th Defendant is in a passive position in this regard.  She claims to have no knowledge of the Sham Sale and Sham Re-capitalisation of the 6th Defendant.  As this court sees it, Hou’s evidence is fairly peripheral and of no or little probative value. 

Drawing of Inferences / Adverse Inferences

61.  As Ms Lam SC points out, the Plaintiffs’ case is based on the evidence obtained in the course of their investigation into the financial affairs of David Ho and their case is about what can or cannot be established by or inferred from such evidence. 

62.  In Ming Shiu Chung v Ming Shiu Sum (2006) 9 HKCFAR 334 Ribeiro PJ (Bokhary and Chan PJJ and Fuad and Sir Thomas Eichelbaum NPJJ agreeing) set out the proper approach to the drawing of inferences as follows:

“78. Whether, at the end of the day, the court is entitled to draw the inference sought by the plaintiffs therefore depends on the evidence as a whole, the evidence both for and against such inference. Mr Grossman correctly accepts that the plaintiffs bear the burden of showing that when the father signed the 12 documents, he did not know what he was doing. That is a matter of inference and what I stated in Nina Kung alias Nina T H Wang v Wang Din Shin (FACV No 12 of 2004, 16 September 2005), albeit there stated in relation to drawing an inference of forgery, equally applies in the present case:

‘Where ...... the court is invited to reach a conclusion of forgery as an inference to be drawn on the basis of circumstantial evidence, any such inference must be properly grounded in the primary facts found. The court guards against indulging in conjecture under the guise of drawing an inference where the primary evidence does not logically and reasonably justify the particular inference in question.’ (§185)” (emphasis added)

63.  As for adverse inference, it is well established that if a party against whom a prima facie case is established omits to call an available witness, then unless there is some plausible explanation for the omission, adverse inferences can be drawn against him.

64.  In Li Sau Keung v Maxcredit Engineering Ltd [2004] 1 HKC 434 at [28], Le Pichon JA set out the proper approach to the drawing of adverse inference in this way:

“28. …In Cavendish Funding Ltd v Henry Spencer & Sons Ltd [1998] 6 EG 146 at 148-149, Aldous LJ cited the following passage from the judgment of Newton and Norris JJ in O’Donnell v Reichard [1975] VR 916 at 929:

‘It is sufficient to say that in our opinion for the purposes of the present case the law may be stated to be that where a person without explanation fails to call as a witness a person who he might reasonably be expected to call, if that person’s evidence would be favourable to him, then, although the jury may not treat as evidence what they may as a matter of speculation think that that person would have said if he had been called as a witness, nevertheless it is open to the jury to infer that that person’s evidence would not have helped that party’s case; if the jury draw that inference then they may properly take it into account against the party in question for two purposes, namely:

(a) in deciding whether to accept any particular evidence, which has in fact been given, either for or against that party, and which relates to a matter with respect to which the person not called as a witness could have spoken; …’” (emphasis added)

65.  In Prest v Petrodel Resources Ltd & Ors [2013] 2 AC 415 at [44], Lord Sumption JSC explained the principle on the drawing of adverse inference by reference to 2 well-known authorities:

“44 In Herrington v British Railways Board [1972] AC 877, 930-931, Lord Diplock, dealing with the liability of a railway undertaking for injury suffered by trespassers on the line, said:

‘The appellants, who are a public corporation, elected to call no witnesses, thus depriving the court of any positive evidence as to whether the condition of the fence and the adjacent terrain had been noticed by any particular servant of theirs or as to what he or any other of their servants either thought or did about it. This is a legitimate tactical move under our adversarial system of litigation. But a defendant who adopts it cannot complain if the court draws from the facts which have been disclosed all reasonable inferences as to what are the facts which the defendant has chosen to withhold. … As the appellants elected to call none of the persons who patrolled the line there is nothing to rebut the inference that they did not lack the common sense to realise the danger. A court is accordingly entitled to infer from the inaction of the appellants that one or more of their employees decided to allow the risk to continue of some child crossing the boundary and being injured or killed by the live rail rather than to incur the trivial trouble and expense of repairing the gap in the fence.’

… For my part I would adopt, with a modification which I shall come to^[41], the more balanced view expressed by Lord Lowry with the support of the rest of the committee in R v Inland Revenue Comrs, Ex p TC Coombs & Co [1991] 2 AC 283, 300:

‘In our legal system generally, the silence of one party in face of the other party’s evidence may convert that evidence into proof in relation to matters which are, or are likely to be, within the knowledge of the silent party and about which that party could be expected to give evidence. Thus, depending on the circumstances, a prima facie case may become a strong or even an overwhelming case. But, if the silent party’s failure to give evidence (or to give the necessary evidence) can be credibly explained, even if not entirely justified, the effect of his silence in favour of the other party, may be either reduced or nullified.’” (emphasis added)

66.  In the sections below, this court will endeavour to explain why certain adverse inferences can and should be drawn against the Active Defendants for not calling (i) Yu Yang who claims to be the direct or indirect shareholder or beneficiary of the 2nd to 6th and the 8th to 10th Defendants as well as a former indirect shareholder of the 11th Defendant, and (ii) Liu Shu who actually signed the statement of truth in support of their Amended Defence which includes the positive plea that the Re-capitalization of the 6th Defendant in 2007 were not a sham since the 3rd and 4th Defendants had agreed to fund the 6th Defendant for the substantial legal costs and any security for costs order against it in the Ing Case and the Shearman Case on the basis that the main assets of the 6th Defendant were its claims in the Ing Case and the Shearman Case where substantial amounts were involved. 

67.  In particular, Yu Yang is pleaded as a nominee of David Ho. His failure to come forward to rebut this allegation is most telling.

Deliberation

David Ho’s beneficial ownership and control of the 6th Defendant & other related companies from 1996 to 2004

68.  David Ho set up the 6th Defendant in 1996. In his 2nd affirmation dated 14 December 2010 filed in New World Appeal Case in which he was the 1st Respondent, he stated in paragraph 7 as follows:

“7. APIDL was a Hong Kong company set up by me in about 1996 as an operating company to support my various proposed investment into China projects via separate BVI companies. APIDL was held by me through a number of BVI intermediate companies. APIDL was always intended to be a cost-center based in Hong Kong supporting the investment activities into China. Any valuable assets or investment would be held by separate associated BVI companies. This was a very common structure for investment into China in order to avoid double taxation both in Hong Kong and China.” (emphasis added)

69.  Around the time of the Sham Sale of APIHL in November 2004, the registered shareholders of the 6th Defendant were APIHL and D Ho Nominees Limited (subsequently changed its name to Gladius), while shortly before or after the Sham Sale, David Ho, Universal Winner and Jeff Li were the 6th Defendant’s directors.  Further, APIHL’s registered sole shareholder was David Ho. D Ho Nominees Limited’s registered shareholders were likely to be David Ho and his company D Ho Corporate Services Limited (subsequently changed its name to Ferdinan): see corporate information on the 2nd Defendant.

70.  According to Brian Chan, D Ho Nominees Limited was a corporate service company set up by the Firm like another company with similar name viz D Ho Corporate Services Limited. 

71.  By a board resolution of the 6th Defendant dated 6 December 2004, David Ho signed on behalf of himself and Universal Winner as directors of the 6th Defendant in order to add Jade Ho and Jeff Li as the bank signatories of the 6th Defendant. 

72.  In the same 2nd affirmation filed in New World Appeal Case, David Ho stated at paragraph 14 that:

“14. … Universal Winner Limited was clearly a corporate director within the Asia-Pac Group. When my ultimate beneficial ownership in the Asia-Pac Group (including APIDL) was sold, the ownership of Universal Winner Limited must have also been transferred simultaneously to the new purchasers at the time.”

73.  Lastly, in a letter from Dao Heng Bank dated 20 February 2008, the Bank confirmed that the 5th, 6th and 7th Defendants were its valued customers and were part of the Asia-Pac Group of companies of which the controlling shareholder was David Ho.

74.  Hence, simply based on the above, it can reasonably be inferred that prior to November 2004, David Ho beneficially owned and controlled APIHL and the 2nd Defendant and, via them as his nominees, the 6th Defendant, as well as D Ho Corporate Services Limited/Ferdinan.

75.  There is also at least a prima facie case that he also controlled Universal Winner, the 5th Defendant and the 7th Defendant as his nominees directors or shareholders. 

Sham Sale of APIHL in November 2004

76.  By an Instrument of Transfer dated 18 November 2004 signed by David Ho for himself and Joshua Chan as director on behalf of Bestwin, David Ho purportedly transferred 1 share of APIHL to Bestwin for HK$2 million.  The HK$2 million was paid to David Ho by a HSBC cashier order dated 18 November 2004.

77.  The first thing to note is that no Defendants have come forward to rebut the allegation that the sale was a sham.  In particular, the Active Defendants take the position that it has nothing to do with them and do not even plead to it in their Amended Defence.

78.  The Plaintiffs submit that, based on a number of objective facts, one can reasonably infer that the sale was a sham orchestrated by David Ho.  Suffice it for this court to mention the following for the present purpose. 

79.  First, the available evidence suggests that the consideration of HK$2 million allegedly paid by Bestwin to David Ho was actually his own monies.

80.  In his 10th affirmation filed in June 2011 in the Shearman Case, David Ho had exhibited a HSBC Cashier Order 849525 dated 18 November 2004 for HK$2 million (“Cashier’s Order”) and claimed it was the purchase price paid by Bestwin.

81.  In Brian Chan’s letter dated 16 May 2012 to the Plaintiffs, he explained how the HK$2 million came about. In November 2004, David Ho told Brian Chan that he would like to entrust some monies to him to hold the same for him to pay for litigation expenses to be incurred by him or his companies in a number of on-going litigation. On 11 November 2004, David Ho arranged to pay HK$3 million into the bank account of Brian Chan’s own company Punto. Then 1 week later, on or about 18 November 2004, David Ho asked Brian Chan to issue 2 cashier’s orders in favour of him, 1 for HK$2 million and the other for HK$1 million.  The HK$2 million cashier order was in fact the Cashier’s Order.

82.  In other words, Bestwin did not pay anything to David Ho.  Unless David Ho was making a gift to Bestwin, which narrative no one has ever put forward, the reasonable inference is that the so-called sale was not a genuine sale at all. 

83.  Second, the confusing accounts of the sale (i) as shown in the contemporaneous documents and (ii) as put forward by David Ho in prior sworn testimony.

84.  The available contemporaneous documents ie the Instrument of Transfer and APIHL’s director’s resolution simply show the sale of 1 share of APIHL for HK$2 million from David Ho to Bestwin, a BVI company with an obscure background.  There is no available evidence from David Ho (who would be the best person to explain the sale) as to why David Ho would choose to sell to Bestwin or why Bestwin would choose to buy from David Ho.

85.  By contrast, from the transcript of his oral testimony on behalf of the 6th Defendant on 7 January 2011 in the Ing Case before Stone J, David Ho claimed that in 2004, he divested himself of the entire Asia-Pac business, which included APIHL (as David Ho was its sole shareholder and director) and the 6th Defendant (since 999,999 shares were held by APIHL) to a group of Chinese investors, one of them was a wealthy tycoon Mr Wang Hanguang.  The name Bestwin was not mentioned at all. There is no explanation from David Ho for this anomaly.

86.  Third, there was no discernible commercial reason for Bestwin to purchase David Ho’s interest in APIHL (and hence his indirect interest in the 6th Defendant) for HK$2 million in November 2004.  There is no evidence that APIHL had any assets other than its 999,999 shares in the 6th Defendant.  However, based on its audited accounts, the 6th Defendant was a loss-making company with no turnover for the years ending 31 December 2003 and 2004 and with net liabilities of around HK$5.7 million in both years.

87.  Fourth, the involvement of Joshua Chan as director of Bestwin and represented it in the sale. 

88.  David Ho was the chairman of Beijing Jun Ya at the time of its establishment in 1998. David Ho and Joshua Chan were business associates- they were co-directors of Beijing Jun Ya at least in 2002 and 2003. 

89.  Beijing Jun Ya was a company closely associated with David Ho.  On 12 March 1998, 9 companies, including the 11th Defendant, purchased a number of units in the Hua Yuan Apartments (subsequently called Lihua Gardens).  The 9 sales contracts all showed David Ho was the legal representative of the 9 companies including the 11th Defendant.  On 15 May 1998, Beijing Jun Ya was authorized by the 9 companies to manage the Hua Yuan Apartments and receive rentals on its behalf.  The letter of authorization was on the 7th Defendant’s letterhead and signed by David Ho on behalf of the 9 companies. 

90.  It can thus be inferred from the above that Joshua Chan was associated with David Ho. This lends support to the proposition that Bestwin was not an independent buyer.

91.  The oft-cited definition of a sham was given by Diplock LJ in Snook v London and West Riding Investments Ltd [1967] 2 QB 786 at 802:

“… it means acts done or documents executed by the parties to the ‘sham’ which are intended by them to give to third parties or to the court the appearance of creating between the parties legal rights and obligations different from the actual legal rights and obligations (if any) which the parties intend to create…for acts or documents to be a ‘sham’, with whatever legal consequences follow from this, all the parties thereto must have a common intention that the acts or documents are not to create the legal rights and obligations which they give the appearance of creating. …” (emphasis added)

92.  In the Australian case of Raftland Pty Ltd v FCT (2008) 238 CLR 516 at [111], Kirby J cited the following passage in Sharrment Pty Ltd v Official Trustee in Bankruptcy (1988) 18 FCR 449 at 454:

“A ‘sham’ is … for the purposes of Australian law, something that is intended to be mistaken for something else or that is not really what it purports to be. It is a spurious imitation, a counterfeit, a disguise or a false front. It is not genuine or true, but something made in imitation of something else or made to appear to be something which it is not. It is something which is false or deceptive.” (emphasis added)

93.  At [112], Kirby J continued:

“Important to this description is the idea that the parties do not intend to give effect to the legal arrangements set out in their apparent agreement, understood only according to its terms. In Australia, this has become essential to the notion of sham, which contemplates a disparity between the ostensible and the real intentions of the parties. The courts must therefore test the intentions of parties, as expressed in documentation, against their own testimony on the subject (if any) and the available objective evidence tending to show what that intention really was.” (emphasis altered)

94.  Testing the intentions of the parties to the sale ie David Ho and Bestwin as expressed in the contemporaneous documentation, against (i) their own testimony, which is not available in this trial, (ii) the available objective evidence relied upon by the Plaintiffs outlined above, and (iii) the absence of any credible explanation of a number of features of the sale e.g. how the HK$2 million was arrived at, why David Ho would choose to sell to Bestwin or why Bestwin would choose to buy from David Ho, this court is of the view that the sale in November 2014 was not what it purported to be ie a genuine arm’s length sale and thus was a sham. The logical and reasonable inference is that it was the means by which David Ho masked his beneficial interest in the 6th Defendant.

95.  The consequence of a finding that a transaction is a sham is that it is null and void.  As noted by Arden LJ in Hitch v Stone (Inspector of Taxes) [2001] EWCA Civ 63, [2001] STC 214, at para [87]:

“… No authority has been cited to us which would suggest that a sham transaction could on its own be other than a void transaction. There being no statutory provision in point here, that consequence would in my judgment follow.”

96.  Since this court has ruled the sale was null and void and of no effect, David Ho continued to own, legally and beneficially his 1 share in APIHL and beneficially, via APIHL, 999,999 shares in the 6th Defendant.  This court further finds the sale was but an attempt on the part of David Ho to mask his beneficial interest in the 6th Defendant. 

97.  Lastly, given this court’s conclusion that the sale from David Ho to Bestwin was a sham, it is also prepared to infer that Joshua Chan, as director of Bestwin at the time, was a willing participant in the Sham Sale as a nominee of David Ho.  This is yet another example of David Ho’s tendency to use nominees for his clandestine purposes.

Post-Sham Sale—Transfer of 999,999 shares in the 6th Defendant from APIHL to the 5th Defendant in June 2007

98.  After the Sham Sale in November 2004, David Ho continued to own and control APIHL and hence the 6th Defendant.

99.  On 22 June 2007, APIHL transferred its 999,999 shares in the 6th Defendant to the 5th Defendant. 

100.  Given this court’s finding that David Ho continued to own and control APIHL after November 2004, in the absence of any evidence that his control of APIHL really had changed hands between 2004 and 2007, it would also follow that the transfer 999,999 shares in the 6th Defendant by APIHL was orchestrated by David Ho himself, albeit Bestwin was APIHL’s registered shareholder.

101.  As for the 5th Defendant, from April 1998 to October 2001, David Ho was its sole director.  On 3 April 2006, Peter Lo, a nominee of David Ho, became its sole director until he was replaced by Fong, another nominee of David Ho, in October 2006.  Fong remained the sole director of the 5th Defendant until June 2008.  Hence, at the time of the transfer in June 2007, Fong was the 5th Defendant’s sole director. 

102.  Further, at the time of the transfer in June 2007, Grand Asia Group Holdings Limited was the 5th Defendant’s sole shareholder.  Fong was Grand Asia Group Holdings Limited’s sole director.  According to the understanding of Jeff Li, another nominee of David Ho, David Ho was the owner of inter alia Grand Asia Group Holdings Limited.  This court is prepared to infer that Grand Asia Group Holdings Limited was, by reason of the fact that its sole director was David Ho’s nominee, also a nominee of and accustomed to act in accordance with David Ho’s instructions.

103.  Based on the above, this court is further prepared to infer that the 5th Defendant was David Ho’s nominee, by reason of the fact that its director and shareholder as at 22 June 2007 were all David Ho’s nominees.

104.  To conclude, this court finds that the transfer was another transaction between connected parties ie APIHL and the 5th Defendant arranged by David Ho.  It also follows that after June 2007, David Ho continued to beneficially own and control the 6th Defendant, via the 5th Defendant as his nominee in place of APIHL.

Sham Re-capitalisation in December 2007

105.  The material events relating to the purported re-capitalization of the 6th Defendant in December 2007 can be summarised as follows.

106.  On 26 October 2007, the 1st to 8th defendants in the Shearman Case took out a security for costs application against the plaintiffs in that action.  the 6th Defendant was the 1st plaintiff in the Shearman Case and the application against it was under s 357 of the then Companies Ordinance, Cap 32.

107.  On 12 December 2007, the 6th Defendant purportedly entered into a preliminary agreement with the 3rd Defendant and the 11th Defendant.  Under this preliminary agreement, the 3rd Defendant agreed to subscribe for HK$50 million worth of shares in the 6th Defendant to be paid for by transferring the entire issued share capital of the 11th Defendant.  At the time, the 11th Defendant was said to be the owner of parts of Hua Yuan Apartments valued at RMB 53.23 million. The 3rd Defendant, for a period of 5 years, also guaranteed the 11th Defendant’s annual income from its Hua Yuan Apartments would not fall below HK$5 million.

108.  On 12 December 2007, the 6th Defendant purportedly entered into another preliminary agreement with the 4th Defendant. Under this preliminary agreement, the 4th Defendant agreed to subscribe for HK$25 million worth of shares in the 6th Defendant payable by 5 instalments of HK$5 million each over 5 years.

109.  Both preliminary agreements were signed by Fong, a nominee of David Ho, for and on behalf of D Ho Nominees Limited ie the 2nd Defendant as director of the 6th Defendant.

110.  On 13 December 2007, 1 day after the 2 preliminary agreements were entered into, David Ho filed his 3rd affirmation in the Shearman Case on behalf of the 6th Defendant in opposition to the security for costs application.  In it, David Ho set out the details of the 6th Defendant’s efforts in expanding its capital base by negotiating with a number of potential “new” investors including the signing of the 2 preliminary agreements in the purported Re-capitalization exercise.  David Ho also claimed that the 6th Defendant, upon completion of the Re-capitalization exercise, would be a substantial company with a significant amount of paid up capital, holding marketable property of over HK$50 million and generating annual income of at least HK$10 million.

111.  On 31 December 2007, formal Re-capitalisation Agreements (“Ontrade Sham Agreement” and “King Ocean Sham Agreement” respectively) were executed.  The material terms of the Ontrade Sham Agreement were essentially the same as the preliminary agreement.  The material terms of the King Ocean Sham Agreement were essentially the same as the preliminary agreement save that under Clause 11.1, the 8th Defendant provided a continuing guarantee to the 6th Defendant for the payment of all amounts and the performance of all obligations of King Ocean under it.

112.  In January 2008, David Ho filed his 5th affirmation in the Shearman Case on behalf of the 6th Defendant, stating that the Re-capitalization exercise was completed and claimed that the 6th Defendant’s net assets as at 31 December 2007 based on its management accounts were worth HK$171 million. 

113.  The security for costs application in the Shearman Case was first granted by Master on 30 January 2008.  On appeal to Poon J, as he then was, the order of security for costs against the 6th Defendant was overturned: Asia-Pac Infrastructure Development Limited & Ors v Shearman & Sterling (a firm) & Ors unrep, HCA 806 of 2006, 23 December 2008. The reasoning of Poon J can be found in the following passages of his Judgment:

“13. Here, the evidence on the 1st plaintiff’s financial position reveals this.

14. When the defendants took out the application for security for costs in October 2007, the 1st plaintiff appeared to be an empty shell, holding no property and carrying on no business activity. Its bank statements show that its account had been inactive for at least two years with minimal finds.

15. According to Mr Ho, the 1st plaintiff had spent the last few months negotiating with a number of potential new investors. On 12 December 2007, the 1st plaintiff entered into two preliminary agreements with (a) Ontrade Properties Limited (‘Ontrade’) and Tsun King Group Limited (‘Tsun King’) and (b) King Ocean Development Inc. (‘King Ocean’). Formal agreements were then executed 31 December 2007.

16. I do not need to go into details of these transactions. Briefly stated, Ontrade transferred to the 1st plaintiff the sole share in Tsun King, which owns a Beijing property worth RMB53 million in return for 500,000 shares in the 1st plaintiff. King Ocean subscribed 250,000 new shares in the 1st plaintiff at HK$100 each payable by five instalments. And King Ocean has already paid the 1st instalment of HK$5 million to the 1st plaintiff. In short, the 1st plaintiff’s financial position has now markedly improved. It has net assets of over HK$68 million and receivables worth in the excess of HK$21 million.

17. The defendants do not accept that these transactions are genuine. But they have not adduced any evidence in support of their contention. They merely said in substance that the transactions were not at arm’s length and the circumstances pertaining to them were dubious and asked the court to draw the inference that they were sham.

18. On the evidence before me, I do not think such an inference can be drawn …”

114.  In other words, Poon J was persuaded by David Ho’s evidence on the genuineness of the Re-capitalisation exercise and its effect on the financial health of the 6th Defendant.

115.  On 6 December 2011, DHCJ Mayo handed down a decision granting the 1st to 8th defendants’ renewed security for costs application in the Shearman Case against the 6th Defendant: Asia-Pac Infrastructure Development Limited & Ors v Shearman & Sterling (A firm) & Ors unrep, HCA 806 of 2006, 6 December 2011. The reasoning of DHCJ Mayo was essentially this:

“36. Following [Poon J’s] judgment, the defendants undertook a series of inquiries and investigations in an endeavour to make good their allegation that the negotiations and transactions referred to by Poon J were indeed sham.

37. The starting point in the defendants’ investigation was to consider the surrounding circumstances of the Ontrade & King Ocean Transactions referred to in the passage cited from Poon J’s judgment.

38. It is apparent from the affirmation of Mr Yuyang, the principal shareholder in P1, that he also owns the entire interest in Ontrade.

39. On the face of Poon J’s judgment, an impression is obtained that P1 was negotiating with potential new investors.

40. It would appear that the reality of the situation was that various paper transactions were being effected to give a false impression of the financial wellbeing of P1.

41. It is also necessary to consider the position concerning the Beijing property which was allegedly valued at RMB53 million.

42. P1 relied on Ontrades sale of its shares in Tsun King Group Limited (‘Tsun King’) which apparently held the said property. The consideration for the transaction was the subscription of 500,000 shares in P1 which was apparently a shell company.

43. The Formal Agreement was dated 31 December 2007.

44. Under the Agreement Ontrade guaranteed that the income by the Beijing property would be not less than HK$5 million over the next five years.

45. Ontrade would be obliged to make good any short fall to P1.

46. What will be noted from all of this is that in effect Ontrade is giving up ownership in this very valuable property in exchange for shares in a shell company.

47. It has now transpired that P1 has sold its share in Tsun King, the registered owner of the Beijing property for RMB12 million.

48. The reasons given for the disparity between the alleged value of the property and the amount obtained on this sale was unconvincing.

…

66. What is very clear from all of this is that there must be grave doubts concerning the reliability of the evidence which was before Poon J and that rather than being arms length transactions they were simply dishonest attempts by P1 and those associated with it to defeat the security for costs applications.

67. I am satisfied that in dealing with these summonses, I should follow the guidance of Sir Donald Nicholls earlier cited[42] and draw necessary inferences and not allow ‘common sense to fly out the window’.

68. In adopting this approach, I have no doubt whatever that section 357 does apply to those applications and that P1 must provide appropriate security for all the defendants’ costs.” (emphasis added)

116.  The Plaintiffs submit it can be inferred from a number of objective factors that the Re-capitalisation exercise was a sham arrangement orchestrated by David Ho.  For the present purpose, this court shall only recite the following.

117.  First, the timing of the Sham Re-capitalization exercise was such that it was likely orchestrated by David Ho in order to give the appearance that the 6th Defendant, supposedly a shell company, had substantial assets after the exercise in order to resist the applications for security for costs in the Shearman Case.  This was in fact the conclusion reached by DHCJ Mayo at paragraph 66 of his Judgment cited above. 

118.  Second, the use by the 3rd Defendant of its sole share of the 11th Defendant as consideration for the Ontrade Sham Agreement. 

119.  The 11th Defendant was one of the 9 companies used by David Ho to acquire the Hua Yuan Apartments in March 1998.  From 1998 to October 2001, David Ho was its sole director and hence controlled it.

120.  The 3rd Defendant was the sole registered shareholder of the 11th Defendant until 31 December 2007 ie the date of the Ontrade Sham Agreement while its sole director at that time was Pei. There is no evidence from the Active Defendants as to the circumstances under which the 3rd Defendant became the sole registered shareholder of the 11th Defendant from September 2004 to 31 December 2007 or how Pei came to be its sole director as from 26 November 2007 and remained to be so as at 31 December 2007.

121.  This is telling since the Active Defendants are expected to call witnesses to rebut the Plaintiffs’ case that (i) the 3rd Defendant was one of David Ho’s nominee companies within the Asia-Pac Group and (ii) Pei was David Ho’s personal nominee. Alternatively, the Active Defendants are expected to come up with an explanation for not doing so. They fail to do either and an adverse inference can be drawn against the Active Defendants that they simply cannot rebut the Plaintiffs’ case. 

122.  By contrast, David Ho’s ongoing control of the 11th Defendant after September 2004 is evidenced from what Brian Chan told the Plaintiffs ie on 24 November 2004, David Ho passed a cheque issued by the 11th Defendant for HK$3 million to Brian Chan’s company ie Punto.  The cheque was signed by Jade Ho albeit she was then no longer a director of the 11th Defendant.  Mr Brian Chan, in his letter dated 16 May 2012 to the Plaintiffs, also said as at 21 November 2004, the 11th Defendant was controlled by David Ho. 

123.  Given the above and in particular the Active Defendants’ silence, one can reasonably infer that the 3rd Defendant was acting in accordance with David Ho’s instructions as his nominee at the time of the Re-capitalisation exercise. 

124.  Third, the Sham Re-capitalisation Agreements were executed by David Ho’s nominees and/or persons associated with him.

125.  The Ontrade Sham Agreement was executed by Fong on behalf of the 6th Defendant and Pei as director on behalf of the 3rd Defendant. The King Ocean Sham Agreement was executed by Fong on behalf of the 6th Defendant and Nina Jia on behalf of both the 4th Defendant as investor and the 8th Defendant as guarantor. 

126.  As far as Fong is concerned, this court has already found him to be David Ho’s nominee.

127.  As far as Pei is concerned, this court is prepared to draw an adverse inference against the Active Defendants that they cannot rebut the Plaintiffs’ case that he was also David Ho’s nominee.

128.  As for Nina Jia, according to the Plaintiffs, Nina Jia is 賈音 who, according to Jeff Li in his letter to the Plaintiffs’ solicitors dated 23 November 2012, was an administrative and sales manager of Grace Court in Beijing whose owner and building management company was 北京骏亚物业发展有限公司 ie Beijing Jun Ya. Importantly, according to Peter Lo in an email reply to the Plaintiffs’ solicitors dated 12 October 2012, she was a personal assistant to David Ho in Beijing. She was a director of the 4th and 8th Defendants in November 2007 but there is no evidence from the Active Defendants as to the circumstances under which she, from being a property sales manager and David Ho’s personal assistant to becoming a director of the 4th and 8th Defendants.

129.  As what this court sees as a rather desperate submission, the Active Defendants raise some doubt as to whether Nina Jia is the same person as 賈音.  Desperate because the names Nina Jia and Nina Jia Yin appeared in the corporate records of the 4th and the 8th Defendants as a director in November 2007 with an address in Beijing.  It would be too much of a co-incidence that Nina Jia, Nina Jia Yin and 賈音 all resided in Beijing at the time but were different persons. 

130.  While she is not pleaded as David Ho’s nominee, it seems to this court that she can properly regarded as a person closely associated with David Ho.

131.  Last but not least, there was a distinct lack of commercial sense for the 3rd and 4th Defendants to invest in the 6th Defendant in November 2007.

132.  According to the audited accounts of the 6th Defendant, it incurred a net loss of around HK$230,000 for the year ended 31 December 2006 and a net loss of HK$2.69 million for the year ended 31 December 2007.  It had liabilities of HK$3,953,905 while its only assets were cash and bank balance of HK$11,993 as at 31 December 2006.  Note 12 of the 2006 audited accounts referred to the 6th Defendant being involved in litigation but the amount of legal costs and claims could not be determined at that stage.  There was also no provision for contingent assets.  While there was provision for contingent assets in note 16 of the 2007 accounts, it was confined to HK$5 million paid into court as fortification of an injunction obtained in a legal action against a former director and certain third parties.  There was no provision for contingent assets based on any potential judgment or settlement sums in favour of the 6th Defendant in the litigation in which it was involved.

133.  The Plaintiffs submit that it made no commercial sense for the 3rd or 4th Defendant to make such a substantial investment in the 6th Defendant in the form of (i) the entire shareholding in the 11th Defendant whose assets were said to be worth RMB 53.23 million and (ii) cash consideration of HK$25 million, in exchange for what was in effect a shell company.  This is the point made by DHCJ Mayo at paragraph 46 of his Judgment cited above.

134.  The Active Defendants disagree.  Their pleaded case is that the 3rd and 4th Defendants agreed to invest in the 6th Defendant on the basis that its main assets were the Ing Case and the Shearman Case.  Their evidence, in the form of the witness statement of Yu Yang, is that it was Yu Yang and his younger sister who decided to invest and fund inter alia the 2 cases after discussion at the end of 2007.  He said David Ho was very optimistic and confident about the Ing Case while the Shearman Case had a great prospect of success. 

135.  By way of observation, how Yu Yang and his sister’s investment in the 6th Defendant became the 3rd and 4th Defendants’ investment is wholly unclear from his statement, unless the 3rd and 4th Defendants were beneficially owned and controlled by Yu Yang.  But there is no evidence to that effect save for a bare assertion in his statement that he was and is the indirect shareholder or beneficiary of inter alia the 2nd to 6th Defendants.

136.  The credibility of the Active Defendants’ explanation must be examined in its proper context. 

137.  The Ing Case was commenced by the 6th Defendant in October 1999.  By December 2007, more than 8 years had passed and there was still no end in sight.  The Shearman Case was only commenced by the 6th Defendant in April 2006 and it was still at a relatively early stage by December 2007.  Indeed, the Shearman Case is still on-going.  There was no objective evidence as to the prospect of success of the 2 cases.  All that Yu Yang claimed he had was David Ho’s subjective assessment.  In effect, the Active Defendants are saying the 3rd and 4th Defendants, or rather Yu Yang, together with his sister, agreed to make such a substantial investment in the 6th Defendant in the hope that what David Ho said would eventually turn out to be right. 

138.  As a matter of inherent probabilities, this court does not find such an explanation credible. 

139.  To start with, the explanation came in the form of bare assertions in Yu Yang’s and Liu Shu’s witness statements.  Nevertheless, Yu Yang refused to come forward to testify in support of the explanation despite having made a witness statement on their behalf.  The same can be said of Liu Shu.  Yu Yang’s sister, on the other hand, was not even prepared to make a witness statement at all.  Ms Lam SC submits and this court agrees that their evidence would be highly contested and there are very pertinent and legitimate questions which she would be entitled to ask if given the opportunity to cross-examine them. 

140.  Further, there is no contemporaneous documentation setting out the actual terms or even the gist of the agreement between Yu Yang, his sister and David Ho to invest in the 6th Defendant’s litigation projects.

141.  Lastly, according to Yu Yang’s and Liu Shu’s witness statements, whatever meagre returns were obtained from the litigation projects managed by David Ho, they all went to pay for the daily expenses of David Ho, his ex-wife and children in Hong Kong, repayment of David Ho’s UK family’s investment capital or were “reinvested” in the ongoing litigation projects.  No returns have been shown to have been made to Yu Yang or his sister. 

142.  In the circumstances, this court must reject the Active Defendants’ explanation of how and why the Re-capitalisation exercise came about.

143.  To conclude, this court accepts the Plaintiffs’ submission that the Re-capitalisation exercise was a sham arrangement orchestrated by David Ho principally to resist the applications for security for costs in the Shearman Case and on a more general level to continue masking David Ho’s beneficial interest in the 6th Defendant, but definitely not as a genuine investment by the 3rd or 4th Defendant (or Yu Yang and his sister) in the 6th Defendant as contended by the Active Defendants.  

144.  The Active Defendants argue that it is not enough for only David Ho to intend the Re-capitalisation agreements to be a sham.  For an agreement to be a “sham”, there must be such a common intention by all principal parties to the agreement and there is no evidence that the parties to the preliminary agreements or the Re-capitalisation Agreements—ie the 3rd, 4th, 6th and 8th Defendants—intended these to be shams as well, citing Artech Development Ltd v Posismo Ltd [2018] HKCFI 344.

145.  In Artech Development Ltd v Posismo Ltd [2018] HKCFI 344, this court observed:

“12. For the defence of sham agreement, the relevant principles have been succinctly summarized in Hui Cheung Fai v Daiwa Development Ltd unrep, HCA 1734/2009, 8 April 2014, DHCJ Eugene Fung SC, at [71]:

‘… A sham exists where (1) the parties intended that the documents or acts they have done would not create the legal rights or obligations they appear to create; and (2) it was intended that the documents or acts would mislead a third party into believing the parties had created those rights and obligations.’

13. At [72], the learned Deputy Judge further observed:

‘In Hitch v Stone [2001] STC 214, Arden LJ at 230a-e gave the following guidance as to whether an act or document is a sham:

…

Fifth, the intention must be a common intention…’”

146.  The Active Defendants’ submission that there must be a common intention is trite and is correct as far as it goes. But what is required to establish common intention?  

147.  In A v A [2007] 2 FLR 467 at [50] and [52], Munby J observed:

“[50] … In Midland Bank plc v Wyatt [1995] 1 FLR 696, [1996] BPIR 288, the deputy judge, Mr David Young QC, said at 699 that:

‘a sham transaction will still remain a sham transaction even if one of the parties to it merely went along with the ‘shammer’ not either knowing or caring about what he or she was signing. Such a person would still be a party to the sham and could not rely on any principle of estoppel such as was the case in Snook.’

…

[52] In Re Esteem the Royal Court had in fact been referred to Midland Bank plc v Wyatt [1995] 1 FLR 696, [1996] BPIR 288. The deputy bailiff in Re Esteem explained matters as follows:

‘[58] … In our judgment the court in Wyatt was simply confirming that a party who goes along with a sham neither knowing or caring what he is signing (ie, who is reckless) is to be taken as having the necessary intention.’

I agree with that analysis. What is required is a common intention, but reckless indifference will be taken to constitute the necessary intention.” (emphasis added)

148.  In these circumstances, it can reasonably be inferred that the 3rd, 4th, 6th and 8th Defendants did not intend the Re-capitalisation exercise to be a genuine investment in the 6th Defendant.  If so, their intention [43]was likely to be to assist David Ho to achieve his purposes of resisting the applications for security for costs in the Shearman Case and continuing to mask his beneficial interest in the 6th Defendant.

149.  The Active Defendants further submit that even Ip himself, during cross-examination on Day 3, accepted that the Re-Capitalisation exercise was not a sham since he agreed with the contents of paragraphs 11-12 of David Ho’s 3rd affirmation in the Shearman Case. In particular, paragraph 12 of that affirmation stated that: “Upon completion of the recapitalization exercise described above, the 1st Plaintiff [ie the 6th Defendant] will be a substantial company with a significant amount of paid up capital, holding marketable property with a value over HK$50 million and generating an annual income of at least HK$10 million.”

150.  As this court sees it, whether the Re-Capitalisation exercise is a sham or not is a question of mixed fact and law to be determined by this court, rather than by a witness who has no personal knowledge of the material factual events and whose opinion on how the law should be applied to the facts is irrelevant. While Ip’s answer appears to undermine the Plaintiffs’ case of Sham Re-Capitalisation, it is far from sufficient to defeat it.

151.  To conclude, this court is of the view that the Re-capitalisation exercise in December 2007 was not what it appeared to be and hence a sham and this court shall so find.  This court further finds the 3rd, 4th, 6th and 8th Defendants were willing participants of the Sham Re-capitalisation exercise acting in accordance with David Ho’s instructions and as his nominees.

152.  The consequence of these findings is that the entire exercise including the preliminary agreements and the Re-capitalisation Agreements were null and void and of no effect, as correctly submitted by Mr Kwok in his Closing Submissions. 

153.  This means the allotment of the 6th Defendant’s shares to the 3rd and the 4th Defendants was null and void and that the 2nd and 5th Defendants remained the only shareholders of the 6th Defendant after the whole exercise.  Of course, it also means that the transfer of the 11th Defendant’s share from the 3rd Defendant to the 6th Defendant was also null and void and the 3rd Defendant remained the registered shareholder of the 11th Defendant.[44]

Summary of David Ho’s beneficial interest in and control of the 2nd, 5th and 6th Defendants

The 2nd Defendant

154.  This court has already found that prior to November 2004, David Ho beneficially owned and controlled the 2nd Defendant as his nominee.

155.  As at 27 June 2005, the 2nd Defendant’s registered shareholders were David Ho and his company D Ho Corporate Services Limited (later Ferdinan). 

156.  In July 2005, David Ho’s 1 share was transferred to Bright Spirit International Limited which was shown in the 2006 annual return.  In June 2007, the 1 share was transferred to Grand Asia Group Holdings Limited and then in February 2008 it was transferred to Fong.  Lastly, the 1 share was transferred from Fong to Yu Yang in June 2008.    

157.  No legitimate purpose can be discerned from the available evidence for such frequent transfers of David Ho’s 1 share in the 2nd Defendant from at least 27 June 2005 up to February 2008 when the share ended up with Fong, his nominee and none have been put forward by the Active Defendant. In these circumstances, one can but infer that all these transfers were orchestrated by David Ho for the purpose of masking his beneficial ownership and control of the 2nd Defendant. 

158.  Regarding the transfer from Fong to Yu Yang in June 2008, Yu Yang would be the best person to explain the reason for the transfer of the share to him yet his witness statement is silent on this.  He simply made a bare assertion that he is the direct, indirect shareholder or beneficiary of the 2nd Defendant. 

159.  Further, Yu Yang is pleaded as a nominee of David Ho.  As he has not come forward to testify on behalf of the Active Defendants, an adverse inference can and should be drawn against the Active Defendants, in the absence of an explanation for not calling him ie (i) there was no legitimate commercial purpose for the transfer of David Ho’s 1 share from Fong to him in June 2008 and (ii) that he was just a nominee shareholder of David Ho. 

160.  In these circumstances, this court finds that it was David Ho who orchestrated all the transfers mentioned above and that Yu Yang was and is his nominee shareholder of the 2nd Defendant. 

161.  As for the other shareholder of the 2nd Defendant ie D Ho Corporate Services Limited/Ferdinan, according to Brian Chan, it was set up by David Ho.  The same should be self-evident from its original name.  D Ho Corporate Services Limited/Ferdinan has never ceased to hold 1 share in the 2nd Defendant from 27 June 2005 onwards.

162.  If one looks deeper into D Ho Corporate Services Limited/Ferdinan’s corporate information, one can find the same pattern of frequent changes of its registered shareholders from June 2005 onwards resulting in Yu Yang being a shareholder of Ferdinan as of June 2008 up to June 2012: see corporate information on Ferdinan above.

163.  In these circumstances and for the similar reasons stated above, one can but infer that all these transfers were orchestrated by David Ho for the purpose of masking his beneficial ownership of Ferdinan.  It can also be reasonably inferred that the transferees up to and including Yu Yang were all his nominee shareholders of Ferdinan. This again reinforces this court’s finding that Yu Yang was and is but another nominee shareholder of David Ho.

164.  The conclusion that can be drawn from the above is this.  Notwithstanding the fact that Yu Yang and Ferdinan since 27 June 2012 have been and are the current registered shareholders of the 2nd Defendant, it was and still is David Ho who beneficially owns and controls the 2nd Defendant as his nominee.

The 5th Defendant

165.  In the Section “David Ho’s beneficial ownership and control of the 6th Defendant & other related companies from 1996 to 2004”, this court has already found a prima facie case that prior to November 2004, David Ho controlled the 5th Defendant as his nominee. 

166.  In the Section “Post-Sham Sale—Transfer of 999,999 shares in the 6th Defendant from APIHL to the 5th Defendant in June 2007”, this court is prepared to infer that, as of June 2007, the 5th Defendant was under David Ho’s control as his nominee and accustomed to act in accordance with his instructions.

167.  From its corporate information, in June 2007, the 5th Defendant’s registered shareholder was Grand Asia Group Holdings Limited, held by this court to be a nominee of David Ho.  Thereafter, the 1 issued share of the 5th Defendant was held by Jade Ho on trust for Yu Yang and then held by Yu Yang himself.  As at 30 June 2010, Yu Yang was the 5th Defendant’s sole registered shareholder.  As at 3 February 2012, the 5th Defendant’s director was Liu Shu.

168.  This court has already found Yu Yang to be a nominee of David Ho to hold the shares of the 2nd Defendant and Ferdinan.  As this court emphasised before, his failure to come forward to rebut the allegation that he is David Ho’s nominee is mostly telling and, in the present context, an adverse inference can and should be drawn against the Active Defendants ie Yu Yang held and holds the 1 share in the 5th Defendant as David Ho’s nominee.

169.  As far as Liu Shu is concerned, since she was the sole director of the 5th Defendant in February 2012, she would be in a position to rebut the Plaintiffs’ pleaded case that the 5th Defendant was part of of the Asia-Pac Group companies set up by David Ho and acted as his nominee.  The fact that the Active Defendants have failed to call her as a witness is also ample ground for drawing an adverse inference against them ie the 5th Defendant was and still is David Ho’s nominee and under his control.[45]

170.  To conclude, notwithstanding the fact that Yu Yang was and is the 5th Defendant’s sole shareholder, it was and still is David Ho who beneficially owns and controls it.

The 6th Defendant

171.  This court has already found that (i) prior to November 2004, David Ho beneficially owned and controlled APIHL and the 2nd Defendant and, via them as his nominees, the 6th Defendant,  (ii)  the sale of APIHL by David Ho to Bestwin in November 2004 was a sham so that David Ho continued to beneficially own his 1 share in APIHL and, via APIHL, 999,999 shares in the 6th Defendant, and (iii) after June 2007, David Ho continued to beneficially own and control the 6th Defendant, via the 5th Defendant as his nominee in place of APIHL.

172.  Since this court has found the Re-Capitalisation exercise in December 2007 to be a sham, the allotment of the 6th Defendant’s shares to the 3rd and 4th Defendants was null and void and the 2nd and 5th Defendants remained the only shareholders of the 6th Defendant after 31 December 2007.  There has been no change to that since. 

173.  Given this court’s finding above that the 2nd and 5th Defendants were beneficially owned by David Ho and under his control as his nominees, it is reasonable to infer that that they also held and hold the 6th Defendant’s shares as nominees of David Ho. 

174.  Further, all the directors of the 6th Defendant from January 2004 to January 2012 were either David Ho or his nominees as held by this court viz Universal Winner, Jeff Li, Peter Lo, D Ho Corporate Services Limited/Ferdinan, D Ho Nominees Limited/Gladius.[46] In these circumstances, this court has no difficulty in finding that the 6th Defendant was and still is under David Ho’s control as his nominee.

175.  To sum up the matter, this court finds (i) both the 2nd and 5th Defendants were and are beneficially owned and controlled by David Ho as his nominees in holding the shares of the 6th Defendant, and (ii) the 6th Defendant was and still is under David Ho’s control as his nominee. 

Summary of David Ho’s beneficial interest in and control of the 3rd and 11th Defendants, as well as the 9th Defendant

The 3rd and 11th Defendants

176.  The case of the 3rd and the 11th Defendants is relatively straightforward. 

177.  In the Section “Sham Re-Capitalisation in December 2007”, this court has already found that the 3rd Defendant was a willing participant in the Sham Re-Capitalisation acting in accordance with David Ho’s instructions and as his nominee.   

178.  From the corporate information of the 3rd Defendant, Yu Yang was its sole registered shareholder and director as of 20 May 2008.  Yu Yang, already held by this court to be David Ho’s nominee, remains its sole registered shareholder as of now. If so, this court has no difficulty finding that Yu Yang was and is holding its share in the 3rd Defendant as David Ho’s nominee.

179.  Putting the two and two together, this court is of the view that the 3rd Defendant was and still is beneficially owned and controlled by David Ho as his nominee and shall so find.

180.  As for the 11th Defendant, it was one of the 9 companies used by David Ho to acquire the Hua Yuan Apartments in March 1998.  From 1998 to October 2001, David Ho was its sole director and hence controlled it.

181.  The 3rd Defendant became the sole registered shareholder of the 11th Defendant from September 2004 to 31 December 2007 when the Ontrade Sham Agreement was executed.  As stated earlier, there is no evidence from the Active Defendants as to the circumstances under which the share of the 11th Defendant was registered in the 3rd Defendant’s name. Given this court’s ruling that the 3rd Defendant was and still is beneficially owned and controlled by David Ho as his nominee, it would follow that the 11th Defendant was beneficially owned and controlled by David Ho via the 3rd Defendant as his nominee.

182.  Importantly, since this court has found the transfer of the 11th Defendant’s its 1 share from the 3rd Defendant to the 6th Defendant in December 2007 to be null and void, the 3rd Defendant remained and remains the sole shareholder of the 11th Defendant up to now.  It follows that the beneficial ownership and control of the 11th Defendant remains with David Ho via the 3rd Defendant as his nominee. 

183.  But for the fact that the Plaintiffs have chosen to make a claim only against the 6th Defendant for the 1 share in the 11th Defendant, this court would have no difficulty in granting an order against the 3rd Defendant to transfer its share in the 11th Defendant to the Plaintiffs. However, since the Plaintiffs have failed to pray for such an order against the 3rd Defendant, it would be unfair to the 3rd Defendant and inappropriate for this court to grant such an order in favour of the Plaintiffs.

The 9th Defendant

184.  From the corporate information of the 9th Defendant, at least since 8 February 2006, its registered shareholders and directors have been David Ho’s nominees as found by this court viz Fong, Peter Lo, D Ho Nominees Limited/Gladius and D Ho Corporate Services Limited/Ferdinan.  Further, by their own admissions, Fong and Peter Lo accepted they had been instructed to act as David Ho’s nominee shareholders and directors of the 9th Defendant and disclaimed any beneficial interest in the 9th Defendant’s shares.

185.  The current position in respect of the 9th Defendant is that the 2nd Defendant and Ferdinan each holds 1 share in it.  This court has already found above that David Ho was and still is the one who beneficially owns and controls the 2nd Defendant and Ferdinan.  In these circumstances, this court has no difficulty in finding that the 2nd Defendant was and is holding its 1 share in the 9th Defendant as David Ho’s nominee. Since Ferdinan is not a Defendant in this Action, this court shall refrain from making a finding against it in relation to its 1 share in the 9th Defendant, although this court would have done so had the Plaintiffs included Ferdinan as a Defendant.

The 10th Defendant

186.  In Cheung Man Wai v Director of Social Welfare [2000] 3 HKLRD 255 at 259I-260A, Godfrey V-P (Ribeiro JA, as he then was agreeing) stated:

“The Court, even in public law proceedings, is loath to make any declaration in the nature of an advisory opinion as to the true construction or effect of legislation. … And the Court will certainly not make a declaration unless it is satisfied that the making of that declaration will serve some useful purpose.”

187.  Since the 10th Defendant has been struck off the BVI Register of Companies, a fact accepted by both parties, it is difficult to see what useful purpose can be served by granting the declaration sought by the Plaintiffs and none has been put forward by Ms Lam SC in her Closing Submissions.  It is clearly pointless in making an order for transfer of the 10th Defendant’s share to the Plaintiffs. In these circumstances, it is equally futile to make any findings in relation to the beneficial ownership or control of the 10th Defendant.

Disposition and costs

188.  In the premises, this court hereby grants the following relief to the Plaintiffs:

(1) a declaration that the 2nd and 5th Defendants held and hold all the shares of the 6th Defendant registered in their names on behalf and for the benefit of David Ho;

(2) an order that the 2nd and 5th Defendants do take all necessary steps to transfer their respective shareholdings in the 6th Defendant to the Plaintiffs within 56 days;

(3) an order that the 6th Defendant do take all necessary steps to cancel the allotment of its shares to the 3rd and 4th Defendants on 31 December 2007;

(4) a declaration that the 2nd Defendant held and holds its share of the 9th Defendant registered in its name on behalf and for the benefit of David Ho;

(5) an order that the 2nd Defendant do take all necessary steps to transfer its share of the 9th Defendant to the Plaintiffs within 56 days.

189.  As far as costs are concerned, in the absence of agreement between the parties within 14 days, the parties are directed to obtain a hearing date for submissions on costs. 

190.  Liberty to Apply.

Postscript

191.  For completeness, the Plaintiffs seek leave from the Court to amend the name of the 6th Defendant under the Writ of Summons, the Re-Amended Statement of Claim and the Reply by removing “(HK)” at the end of its name.  As there is no dispute between the parties as to the identity of the company being referred to, leave is hereby granted.