SHOZO FURUTA v. YU HAI PO ALIAS YU HOI PO ALIAS PEARL YU

IN THE HIGH COURT OF HONG KONG

COURT OF FIRST INSTANCE

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JUDGMENT

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1. The parties last came before me in August of last year when the Plaintiff applied for summary judgment against the Defendant. The claim involves two properties in Guangzhou. I refused summary judgment because I was not satisfied that it had been clearly established that the Plaintiff was the beneficial owner of those properties.

2. The properties were registered in the name of the Defendant, who, however, does not claim to be beneficial owner of those properties. I was not satisfied at the time that the Plaintiff was the beneficial owner because from the evidence it appeared that it was possible that the beneficial owner was ACT or Unic. Both companies which apparently were controlled by the Plaintiff, Mr. Furuta.

3. I am told, since my judgment in August of last year, Mr. Furuta, ACT and Unic had written to the Defendant asking the Defendant to transfer those properties, I think into the name of Mr. Furuta. That request was not complied with. In the meantime, it seems that Mr. Furuta had managed to arrange to have the properties transferred to his personal name in Guangzhou. The Defendant complains of that and by a summons dated 11th July seeks an injunction

"That the Plaintiff whether by himself his assigns, servant or agents or any of them or otherwise howsoever, be restrained from either dealing with the properties (and these are the Guangzhou properties) or the proceeds thereof until the identify of the owner of the said properties has been clarified or until further order"

4. The matter came before the court today on summons day and I am told that Mr. Clark who appeared for the Plaintiff was informed by those instructing Mr. Beaumont that today's hearing was meant to be a call-over. The parties now agree that the substantive hearing of this summons should take place on 31st October. The long delay I am told is not at the request of the Plaintiff. The Plaintiff is quite happy to proceed with this matter sooner but for reasons that I would not go into, the day which is convenient to both parties is the 31st October.

5. Mr. Beaumont asks that in the meantime, an injunction in terms of the summons should be granted. That is opposed to by Mr. Clark. He made the point that the Defendant really has no arguable case and that in any event the Defendant would not suffer any irreparable harm.

6. The Defendant has a counter-claim and in the counter-claim, she claims to be entitled to 30% of ACT or she claims to be a 30% shareholder in ACT. And then she counter-claims 30% of the proceeds of sale of the properties which it seems according to her are beneficially owned by ACT.

7. First, ACT is not a party to the present proceedings. Secondly, even if she is a 30% shareholder in ACT, that would not give her any claim to either the properties or to the proceeds of sale of these properties. It is admitted by the Defendant that she is not a beneficial owner of these properties. I must say I find it difficult to see how the Defendant can have a claim against the properties or the proceeds of sales of these properties.

8. Perhaps realizing the difficulty, in the summons, it is asked that the injunction should be "until the identity of the owner of the said properties has been clarified". I find it difficult to see so far as the counter-claim is concerned, what is the relevance of the identity of the owner. But that seems to confirm my view that the Defendant perhaps realizes that she can have no claim to either the ownership of the properties or the proceeds of sale.

9. Turning to the question of irreparable damage if an injunction is not granted and if the Plaintiff should sell the properties in the meantime. Again, I find it difficult to see what loss the Defendant can say she will suffer if the properties were sold. Since I have said I do not think she has an arguable case to any interest in the properties or to the proceeds of sale, that being the case, I have decided not to accede to Mr. Beaumont's request and I would make no order, save that this matter be adjourned to 31st October 1997 10:00 a.m. before the summons judge. Costs of the application for injunction pending of the hearing of the summons to the Plaintiff in any event.