HO WING HUNG v. INTELL MOTOR TRADING LTD

HCA 183/2016

[2019] HKCFI 1013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 183 OF 2016

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J U D G M E N T

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A. Introduction

1.  This plaintiff claims against the defendant in this action for breach of an agreement for the sale and purchase of the entire shareholding of a Hong Kong incorporated company known as Elcentro Enterprises Limited (坤雄企業有限公司) (“Elcentro”).

2.  The defendant, a Hong Kong incorporated company said to be carrying on the business of trading in Mainland Hong Kong cross-border vehicle permits, had all along been legally represented and attended the pre-trial review through counsel on 21 August 2018.  No indication was given by the defendant’s counsel at that hearing that it would be unrepresented at the trial.

3.  On 28 September 2018, the defendant’s solicitors ceased to act, and no replacement solicitors have been appointed.  Moreover, no leave was sought for any of the defendant’s directors to appear on its behalf, nor did any representative of the defendant appear on the first day of trial.  In the circumstances, the court proceeded in the absence of the defendant.

B. The plaintiff’s case

4.  From the pleadings and the undisputed contemporaneous documents, the following matters are not in serious dispute.

5.  On 7 January 2013, the plaintiff and the defendant entered into a one-page written agreement in Chinese entitled 現貨交易合同 (Sale and Purchase Agreement of commodity goods) (the “Sale and Purchase Agreement”), whereby the plaintiff agreed to purchase and the defendant agreed to sell the entire shareholding of Elcentro, at a purchase price of HK$1,600,000.  It was expressly stated in the agreement that Elcentro was the holder of a Mainland Hong Kong cross-border vehicle permit, namely, plate no 粵ZE001港 (the “Permit”).

6.  It is helpful to set out the precise wording of the main provisions of the Sale and Purchase Agreement as follows:

「 A. 甲方現持有坤雄企業有限公司 (香港公司編號：76649) (下稱坤雄企業有限公司) 所有已發行股份(100% 股普通股) 。

B. 坤雄企業有限公司持有粵港兩地機動車輛往來牌照(粵ZE001港) (下稱中港牌) 。批文編號：0031675。

C. 甲方同意向乙方出售而乙方亦同意向甲方，依據本合同之條款，收購坤雄企業有限公司所有已發行的股份。」

English translation:

“ A. Party A is currently holding all the issued shares (100% of ordinary shares) of Elcentro Enterprises Limited (Hong Kong Company Number: 76649), hereinafter referred to as Elcentro (the ‘Company’).

B. Elcentro is the holder of a Mainland-Hong Kong cross-‌border motor vehicle permit, namely, licence plate number 粵ZE001港 (hereinafter referred to as the ‘Mainland–HongKong permit’), whose approval notice is numbered 0031675.

C. Pursuant to the terms and conditions of this Agreement,Party A agrees to sell to Party B and Party B agrees to purchase from Party A all the issued shares of Elcentro Enterprises Limited (坤雄企業有限公司).”

7.  Pursuant to the Sale and Purchase Agreement, in the period between 7 January and 18 March 2013, the plaintiff paid by cheques in favour of the defendant sums totalling HK$623,000, which included a commission of HK$23,000 to the defendant.

8.  On 18 March 2013:

(1)  The plaintiff and the defendant entered into a further written agreement in Chinese entitled 委託協辦及轉介貸款申請服務協議書 (Agreement for engaging services in relation to loan application assistance & referral) (the “Loan Referral Agreement”), whereby, amongst other things, the plaintiff appointed the defendant as his agent to assist him to obtain a mortgage loan of HK$1,470,000 with a repayment period of 60 months and an expected interest rate of 9.6% per annum.  Upon approval of such mortgage loan, amongst other things, a service fee of HK$470,000 would be payable by the plaintiff to the defendant.  The remaining HK$1,000,000 would be payable to the defendant as the balance of the purchase price;

(2)  The plaintiff signed a document in Chinese entitled 關於還款期限、違約金支付、退還服務費的協議書 (Agreement concerning repayment term, payment of penalty in case of breach of agreement & refund of service fee) (the “Repayment Term Agreement”), where it was acknowledged that an application had been made by the plaintiff with 中國南粵銀行 (深圳市南山區海德三道天利中央廣場支行) (the Shenzhen Nanshan District sub-branch of China [Guangdong] Nanyue Bank) (“Nanyue Bank”) for a loan of HK$1,000,000, and that the repayment was to be by 60 instalments of HK$30,931 each;

(3)  The plaintiff entered into two agreements in Chinese with the defendant acting as agent for one 陳永浩 (“Mr Chen”) entitled 委託協議中港牌租賃服務協議書 (Agreement for engaging leasing services in relation to a Mainland–Hong Kong permit) whereby it was agreed that the said Mr Chen would lease the Permit for the periods from 20 March 2013 to 19 March 2014 and 20 March 2014 to 19 March 2015 at a monthly rental of HK$12,500 and HK$13,000 respectively (the “Rental Agreements”).

9.  On 19 March 2013, the plaintiff, as borrower, entered into a (somewhat peculiar) tripartite agreement in Chinese entitled 委託貸款合同 (Agreement for the entrusting of a loan) with one 鍾想娣 (“Madam Zhong”) as the principal and Nanyue Bank as the agent (the “Tripartite Loan Agreement”), whereby it was agreed that Madam Zhong would entrust Nanyue Bank to lend the sum of RMB 1,180,410 to the plaintiff for a term of 60 months with interest at 9.6% per annum.  The sum of RMB 1,180,410 was the equivalent of HK$1,470,000 at the time.

10.  On 25 March 2013, on the defendant’s instructions, the plaintiff remitted the loan proceeds of RMB 1,180,410 to one 王娟 (“Madam Wang”) whom the plaintiff understood to be the defendant’s nominee.

11.  On 24 April 2013, Elcentro increased its nominal share capital from 100 shares of HK$10 each (the “Original Shares”) to 200 shares of HK$10 each and allotted the 100 new shares (the “New Shares”) to Dragon Max Corporation Limited (“Dragon Max”), a company wholly-‌owned by the plaintiff.  On the same day, Intell Finance and Mortgage Limited (“Intell Finance”), in its capacity as a corporate director of Elcentro, filed with the Companies Registry a Notification of Increase in Nominal Share Capital and Return of Allotments showing the increase in nominal capital and allotment.

12.  I observe here that the increase in share capital and allotment of the New Shares to Dragon Max does not appear to have been provided for in, or contemplated by, the Sale and Purchase Agreement, which simply provided for the acquisition by the plaintiff of the entire shareholding of Elcentro from the defendant.  I will return to the significance of this later.  

13.  Other than the allotment of the New Shares (which are no longer registered to Dragon Max—see below), neither the plaintiff nor Dragon Max ever received the Original Shares.  The plaintiff claims, therefore, that notwithstanding the payment of the full purchase price to the defendant, he never received the transfer of the entire shareholding of Elcentro from the defendant as agreed in the Sale and Purchase Agreement.

C. The defendant’s case

14.  In its pleaded defence, the defendant contended, however, as follows.

15.  In addition to the documents mentioned above, on 19 March 2013 the plaintiff executed the following additional documents:

(1)  As borrower an agreement entitled 中港牌按揭貸款合同 (Mortgage Loan Agreement concerning a Mainland–Hong Kong permit) (the “Alleged Mortgage Agreement”) with Madam Zhong as the lender and a company known as Central Southwood Limited (正南有限公司) (“Central Southwood”) as guarantor, whereby the plaintiff agreed, amongst other things, to charge the Permit and the shareholding of Elcentro to the lender as security for repayment of the loan of RMB 1,180,410 under the Tripartite Loan Agreement;

(2)  A written document in Chinese entitled simply as 同意書 [Agreement] (the “Alleged Instalment Agreement”), whereby the plaintiff acknowledged that he had borrowed RMB 1,180,410 from Madam Zhong and would make monthlyrepayments of RMB 24,848.53 which, for convenience, would be treated as equivalent to HK$30,931;

(3)  On behalf of Dragon Max as transferor, bought and sold notes and an instrument of transfer with the name of the transferee left in blank in relation to the New Shares (the “Alleged Blank Transfer Documents”).

(collectively, the “Alleged Documents”)

I pause here to note that the Alleged Documents above have been discovered by the defendant and purports to bear the signatures of the relevant parties. Significantly, however, the plaintiff denies ever having executed any of these documents.

16.  Pursuant to the terms of the Alleged Mortgage Agreement, the plaintiff agreed that 50% of the shares of Elcentro were to be held by Madam Zhong’s nominee, which Madam Zhong appointed to be Intell Finance for that purpose.  Hence, Intell Finance held the Original Shares on behalf of Madam Zhong.

17.  Pursuant to the Rental Agreements, the defendant leased the Permit to Mr Chen.  However, in around June 2015, Mr Chen informed the defendant that his vehicle together with the Permit had been detained by his creditor in Shenzhen and therefore could not be returned to Hong Kong.  Further, in or around August 2015, Mr Chen asked whether he could renew the lease of the Permit at a reduced rent.  The plaintiff refused, demanded the immediate return of the Permit and stopped paying instalments under the Tripartite Loan Agreement after the last instalment on 20 October 2015.

18.  As a result of the plaintiff’s default in the Tripartite Loan Agreement, Madam Zhong enforced her security by exercising the power ofsale under the Alleged Mortgage Agreement.  From documents discovered by the defendant, it appears that:

(1)  On 22 December 2015, the New Shares were transferred to one 陳美華 (Chen Mei Hua) (“Madam Chen”) pursuant to the Alleged Blank Transfer Documents;

(2)  On 10 January 2017, Madam Zhong as the seller, Madam Wangas the buyer and Central Southwood as the agent, entered into a written agreement in Chinese whereby it was agreed that, amongst other things, Madam Zhong would sell the entire shareholding of Elcentro to Madam Wang for the price of RMB 316,019.  It was provided in the agreement that the sale included the Permit, although the Permit could not at present return to Hong Kong, and neither the Madam Zhong nor Central Southwood would bear any responsibility for the same;

(3)  On 24 January 2017, Madam Chen transferred the New Shares to Madam Wang, and on the same day, Intell Finance transferred the Original Shares also to Madam Wang. Madam Wang thereby became the sole registered shareholder of the entire shareholding of Elcentro.

D. Evidence and findings

19.  The plaintiff filed two witness statements made by himself and gave evidence at the trial.  The defendant filed witness statements from one 周世匡 (“Mr Chow”) and one 黃偉傑, both of whom were said to be employees of the defendant.  Neither of the defendant’s witnesses appeared at the trial.

20.  I observe in passing that from the contemporaneous documents before the court, there is likely to be more to the story than is advanced or admitted to by the plaintiff.  For instance, the Loan Referral Agreement did refer to the loan to be obtained by the defendant as a “按揭貸款” [mortgage loan], although the plaintiff now denies ever having executed the Alleged Mortgage Agreement.  That said, given that the plaintiff has denied executing any of the Alleged Documents, the burden is on the defendant to prove the same.  Since the defendant has chosen not to appear at the trial or adduce any evidence without explanation, it has plainly failed to discharge that burden.  It follows that the alleged effect and consequences of the Alleged Documents, insofar as they concern the plaintiff, must also be disregarded.

21.  Moreover, whether or not the plaintiff has defaulted in repaying any instalments under the Tripartite Loan Agreement is irrelevant,as that agreement is solely between the plaintiff, Nanyue Bank and MadamZhong and does not impact upon the defendant’s obligations to the plaintiff. As far as the defendant is concerned, he has received payment in full under the Sale and Purchase Agreement.

22.  I am therefore satisfied that the defendant has acted in breach of the Sale and Purchase Agreement in refusing and/or failing to transfer the entire shareholding of Elcentro to the plaintiff.

E. Reliefs sought and specific performance

23.  In his Re-Amended Statement of Claim, the plaintiff seeks, amongst other things, the following reliefs: (1) an order that the defendant shall transfer the plaintiff all the shares of Elcentro; (2) an order that the defendant shall return and deliver up the Permit “which belongs to” Elcentro to the plaintiff; (3) an order that the defendant shall return the related documents of the Permit; and (4) damages to be assessed, comprising the value of the shareholding of Elcentro and “loss of profit for renting out [the Permit] by the plaintiff when [the Permit] was not in use by the plaintiff”.

24.  At the trial, I pointed out to Mr Ryan Law, counsel for the plaintiff, that the Permit belongs to Elcentro and not the plaintiff, and therefore, the plaintiff has no entitlement (at least on the plaintiff’s case as pleaded) to the delivery up of the Permit.  By the same token, the plaintiff is not entitled to any damages for the loss of use of the Permit.  Although the plaintiff personally entered into the Rental Agreements with the defendant, the defendant was expressly acting as Mr Chen’s agent in the agreements.  In any event, no claim has been pleaded by the plaintiff for the breach of those agreements.

25.  Mr Law then indicated to the court that the only relief he would be pursuing was for specific performance of the Sale and Purchase Agreement.  In particular, he seeks the following orders:

(1)  The defendant do deliver up and transfer all the shares of Elcentro to the plaintiff and do cause or procure the documents, through its servant, agent, nominee or otherwise, to be executed for such transfer within 14 days from the date of this order;

(2)  An order that the Defendant do pay the Plaintiff the costs of this action to be taxed if not agreed;

(3)  There be liberty to the parties to apply in relation to the enforcement of the order.

26.  It is well established that specific performance is a discretionary remedy.  At the trial, I had some initial reservations as to whether specific performance would be appropriate given that the defendant is not a registered shareholder of Elcentro (indeed, it does not appear that it ever was a registered shareholder), and hence, there is likely to be difficulty enforcing any order of specific performance against the defendant.

27.  Mr Law submitted, however, that:

(1)  In the Sale and Purchase Agreement, the defendant expressly represented that it was the holder of the entire shareholding of Elcentro;

(2)  Further, in Mr Chow’s witness statement filed by the defendant, he stated that the shares of Elcentro were previously held by Intell Finance on behalf of the defendant.  Mr Chow also stated that the defendant procured Intell Finance to allot the New Shares to Dragon Max;

(3)  The transfer of the Original and the New Shares by Intell Finance and Madam Chen respectively to Madam Wang took place only after the commencement of the action.  More importantly, Madam Wang was the defendant’s nominee who received the loan proceeds of RMB 1,180,410 under the Sale and Purchase Agreement.  The defendant has not adduced any evidence to show that she is no not or no longer its nominee;

(4)  In the circumstances, the defendant must be regarded as remaining in control of both the New and Original Shares andhas the power to procure the transfer of the same to the plaintiff.

28.  Mr Law also cited to me a number of authorities to support the proposition that an order of specific performance can be made against a party who has it in his power to compel another person to convey the property in question: see eg Coles (Trustees of the Ward Green Working Mens Club) v Samuel Smith Old Brewery (Tadcaster) [2007] EWCA Civ 1461 (CA); Jones v Lipman [1962] 1 WLR 832.

29.  Having considered Mr Law’s submissions, I agree that the plaintiff is entitled in principle to an order for specific performance.  It is for the defendant to demonstrate any impossibility or hardship in complying in specifically performing the contract, which it has chosen not to do.

30.  There is another potential hurdle, however.  On the date of the of the Sale and Purchase Agreement (ie 7 January 2013), Elcentro only had a nominal share capital of 100 shares, all of which were registered to Intell Finance.  As mentioned above, on 24 April 2013, some three monthsafter the Sale and Purchase Agreement, Elcentro increased its share capitaland allotted the New Shares to Dragon Max, which had not been providedfor or contemplated in the Sale and Purchase Agreement.  The New Shareshave since been transferred from Dragon Max to Madam Chen and then to Madam Wang.  On the plaintiff’s case, the transfer to Madam Chen must be null and void, if indeed, he never executed the Alleged Blank Transfer Documents.  The question that arises is whether any order for specific performance should relate only to the Original Shares or would include the New Shares.

31.  After some deliberation, I am satisfied that I should make an order for specific performance against the defendant for the transfer of the entire shareholding of Elcentro, that is, both the Original and the New Shares,for the following reasons:

(1)  Whilst it is undoubtedly correct that only the Original Shares existed at the time of the Sale and Purchase Agreement, the intention of the parties is clear, that is, the plaintiff was to acquire the entire shareholding (see the repeated references to “所有已發行的股份”) of Elcentro;

(2)  Although the Sale and Purchase Agreement does not appear tohave provided for or contemplated the issue of the New Shares,those shares were allotted to Dragon Max, the plaintiff’s nominee, and therefore, the allotment was not inconsistent with the intention of the Sale and Purchase Agreement;

(3)  Significantly, both the Original Shares and the New Shares are now registered to Madam Wang, who is the defendant’s nominee. Hence, in order to give full effect to the Sale and Purchase Agreement, it is just and appropriate that I should order the defendant to transfer the entire shareholding of Elcentro, which includes both the Original and the New Shares,to the plaintiff.

F. Conclusion

32.  In the circumstances, I give judgment to the plaintiff and make the orders sought by the plaintiff in paragraph 25 above.

33.  There is no reason why costs should not follow the event.  The plaintiff shall have the costs of the action, to be taxed if not agreed.

34.  Last but not least, I thank Mr Law for his assistance.