HCCW 19/1998
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
COMPANIES (WINDING-UP) NO. 19 OF 1998
____________
IN THE MATTER of WEIHONG PETROLEUM COMPANY LIMITED
and
IN THE MATTER of Section 276 of the Companies Ordinance, Cap. 32
____________
BETWEEN
DARACH E. HAUGHEY AND JOSEPH KIN CHING LO, THE JOINT AND SEVERAL LIQUIDATORS OF WEIHONG PETROLEUM COMPANY LIMITED (IN LIQUIDATION)
Applicants
and
LAI HONG SAN
1st Respondent
YUE CHUN SHAN
2nd Respondent
TONG CHI KEUNG
3rd Respondent
LIU YING SHING, CLAUDIUS
4th Respondent
WEIHONG INVESTMENT (HOLDINGS) COMPANY LIMITED
5th Respondent
____________
Before: Deputy High Court Judge Le Pichon in Chambers
Date of Hearing: 19 September 2012
Date of Judgment: 28 September 2012
______________
JUDGMENT
______________
1. This is an application by the first and fifth respondents to dismiss the action brought by the liquidators of Weihong Petroleum Company Ltd (“the Company”) against them for want of prosecution. The action arose following the compulsory winding up of the Company in 1998.
Background facts
2. The Company was incorporated in June 1995 and the second and fifth respondents became shareholders and were appointed its directors on 13 December 1995.
3. The fifth respondent is a company named Weihong Investment (Holdings) Company Ltd which, at all material times, the first respondent (a shareholder and director of the fifth respondent) controlled.
4. Initially each of the second and fifth respondents held 50% of the issued shares of the Company. On 22 August 1996, the second respondent transferred one half of his 50% holding to the fifth respondent, resulting in the second and fifth respondents being respectively the registered owners of 25% and 75% of the issued share capital of the Company.
5. Between 13 December 1995 and 29 October 1996, the second and fifth respondents were the directors of the Company. As the fifth respondent was a corporate director, the first respondent was the primary officer discharging the corporate functions of the fifth respondent, including its duties as a director of the Company.
6. In about August 1996, the third and fourth respondents became signatories of the Company’s bank accounts and remained such signatories until May 1997. They were appointed directors on 29 October 1996 but resigned on 20 November 1996.
7. The Company was wound up in 1998 on the petition of Pinemill Company Ltd (“Pinemill”), based on a default judgment arising from the Company’s failure to pay for supplies of oil to the value of approximately US $2.5 million and accrued interest of approximately US $0.4 million. Pinemill was and remains the Company’s sole creditor.
8. The liquidators obtained an order in May 2000 to conduct a private examination under section 221 of the Companies Ordinance, Cap 32 (“the Ordinance”) of the first to fourth respondents as well as of DS Cheung & Co, a firm of solicitors responsible for drawing up documentation relating to the transfer of the Company’s interest in a venture concerning the development and operation of a bonded oil terminal and pier in Daya Bay (“the DB Venture”) to Grand Petroleum Holdings Ltd (“Grand Petroleum”).
9. Subsequent to the examination, the liquidators obtained an order from Kwan J dated 8 October 2003 to commence proceedings under section 276 of the Ordinance against the respondents seeking compensation in respect of alleged breaches of fiduciary duties and/or duties of care as set out in the Points of Claim filed on 29 November 2003.
10. As pleaded, the complaints may be summarized as follows:
(1) Improper payments
The respondents had made substantial improper payments amounting to almost $217 million in the aggregate to themselves and/or parties with whom they were associated between 25 June 1996 and 16 January 1997. The payments complained of were particularized in six schedules attached to the Points of Claim.
(2) The DB Venture
a. The DB Venture was the Company’s interest acquired through a Joint Operation Contract made on 1 December 1995 and an equity joint venture contract made in May 1996, leading to the establishment of an equity joint venture company (“the EJV Company”). The Company was entitled to 70% of the pre-tax profits from the operation of the terminal and pier for the purpose of the import, storage and sale of petroleum products.
b. The respondents, in various subsequent agreements, acknowledged the receipt by the Company of substantial sums from investor (s) in return for an interest in or a portion of its interest in the DB Venture but failed to account for the same.
c. Notwithstanding the fact that the Company’s interest was acknowledged by the respondents to be of a substantial value amounting to HK $400 million, the respondents stripped the Company of its interest in the DB Venture for no consideration. Essentially, the DB Venture was not to be continued by the Company but by Grand Petroleum, a company then owned by the third and fourth respondents and one Alex Wong through nominees and corporate vehicles and which was allowed to operate the business on a trial basis from about August 1996.
d. Pinemill delivered 7 shipments of gasoil pursuant to contracts entered into with the Company in August 1996 and substantial amounts were outstanding thereunder.
e. In November 1996 the first, second, third and fourth respondents through their nominees and corporate vehicles entered into with a Shareholders’ Agreement allowing Grand Petroleum to undertake the DB Venture to the exclusion of the Company and undertook to procure that the Company cease to trade on or before 31 March 1997 at a time (ie November 1996) when the Company had substantial outstanding payments due to Pinemill for the gasoil shipments.
(3) The payment of $105 million
The respondents allowed the Company to pay a total amount of HK $105 million to nominees of the third respondent, Alex Wong and the fourth respondent, purportedly for the purpose of repaying alleged indebtedness when in fact the Company had not received any payments from those nominees in the first place or, if payments had been made to the Company, the same had been misapplied or misappropriated by the respondents.
The striking out application
11. The first and fifth respondents seek to strike out the action brought by the liquidators against them on the basis of inordinate and inexcusable delay resulting in real prejudice and abuse of process.
Delay
12. Although the winding up order was made in January 1998 and the events in question largely took place during the period of 14 months between December 1995 and January 1997, the absence of proper books and records, the lack of cooperation from the directors and the need for a section 221 examination made it impossible for the liquidators to have commenced the action any earlier than November 2003. Accordingly, it is not suggested that the liquidators were dilatory in commencing the action; the first and fifth respondents make no complaint in that regard.
13. Mr Yau (who with Ms Jo Siu appeared for the first and fifth respondents) complained of two periods of delay. The first is said to run from May 2006 until July 2010 and the second period from August 2010 to December 2011.
The first period
14. Mr Yau was unable to explain the relevance of May 2006 as a starting date. From the chronology he had prepared for the hearing, it is clear that the liquidators had taken out a summons on 31 July 2002 (re‑dated 23 July 2003) for directions for the filing and service of pleadings, discovery, the filing and service of witness statements as well as for an order that the transcripts of the section 221 examination of the first to fourth respondents, and of the transcripts of the examination and of the affidavits and affirmations filed by or on behalf of DS Cheung, Esq., pursuant to section 221 be admissible generally for the purpose of the application pursuant to section 276 of the Companies Ordinance against each and every one of the respondents.
15. By an order dated 8 October 2003 (“the 2003 order”), Kwan J gave detailed directions under the summons. On the admissibility of transcripts in evidence, Kwan J ordered that the transcript of the examination of a respondent under section 221 be admissible in evidence against that respondent subject to all just exceptions, but on the general admissibility of the transcripts as evidence against each and every one of the respondents,she directed that the matter be adjourned for argument.
16. In the result, the resolution of the general admissibility issue took some time. It culminated in her order dated 29 June 2006 (“the 2006 order”) dismissing the liquidators’ application. That order was filed on 19 July 2006.
17. From my perusal of the documents filed with the court, the period of inactivity only commenced after 19 July 2006 and not earlier and I so find.
18. The end date of the first period, July 2010, was the signing of the witness statement of Darach E. Haughey on behalf of the liquidators on 12 July 2010. That is a substantial document with no fewer than 130 exhibits. For present purposes, the first period complained of will be taken to relate to the period of 4 years from 20 July 2006 to 12 July 2010.
19. Between 20 July 2006 and 12 July 2010, the only events discernible from the record are a notice of change of name of solicitors on 18 February 2008 and a notice of intention to proceed dated 2 April 2009.
The second period
20. The end date of this period coincides with the taking out of a case management summons by the liquidators on 11 November 2011. However two months prior to that, on 2 September 2011, the liquidators had served a notice of intention to proceed. Since that was followed shortly by the case management summons, I do not consider that the second period should extend beyond August 2011. Accordingly, I find that the second period ran from 13 July 2010 to 31 August 2011, a period of 13 months.
21. That said, the rationale for dividing the delay into two separate periods is not apparent. Cumulatively, the two periods taken together span five years and that is the delay with which the present case is concerned.
Case management conference
22. To complete the chronology, it should be mentioned that a case management conference took place on 20 January 2012 following the liquidators’ summons. Harris J made a peremptory order for the filing and service of Points of Defence by 8 March 2012 by, inter alia , the first and fifth respondents, granted leave to the liquidators to serve the witness statement of Mr Haughey by 26 January 2012 and ordered that all interlocutory applications be made by 8 March 2012.
23. The first and fifth respondents filed their respective Points of Defence on 7 March 2012 and took out the present summons to strike out on 8 March 2012.
Whether the delay was excusable
24. The liquidators have exhibited a document (reproduced below) briefly chronicling the relevant events and action taken by them and their advisers from May 2006 to 2011.
From May 2006
· Preparation of application for, inter alia , the examination transcripts of the various respondents to be admitted as evidence against other respondents.
2007
· Change of solicitors from Holman Fenwich & Willan to DLA Piper.
2008
· Continuing preparation of the Liquidators’ witness statement.
2009
· Seeking advice from Senior Counsel on the action.
2010
· Finalising the Liquidators’ witness statement.
2011
· Obtaining Counsel’ opinion on merits.
25. As earlier noted, the application for the general admission of the transcripts as evidence against all respondents was dismissed by the 2006 order. Since the events relied on for 2006 had already occurred by the end of June 2006, they do not explain inaction for the second half of 2006.
26. However, the impact of the 2006 order on the action, from an evidential point of view, following the dismissal of the liquidators’ application regarding the general admissibility of the section 221 transcripts against the respondents would have had to be assessed and evaluated and I am prepared to accept that that exercise would have taken some time given that the section 221 examinations spanned some 20 days between July 2001 and February 2002 and would have covered a lot of ground. But it would seem from the chronology that there was a hiatus of at least 6 months when nothing was done. It was not until 2007 that counsel and senior counsel’s advice was sought on the action and the way forward.
27. It is Mr Haughey’s evidence that in the course of 2007 (without indicating the month), the liquidators changed solicitors to the present firm (DLA Piper) because the partner of the previous firm of solicitors (Holman, Fenwick & Willan) handling the matter was leaving Hong Kong on a permanent basis. There is no record in the court file showing the change of solicitors; there is only a “Notice of Change of Name (of solicitor)” filed on 18 February 2008 showing a change of name from “Dibb Lupton Alsop” to “DLA Piper”. The notice did not state on whose behalf that firm was acting.
28. In § 11 of Mr.Haughey’s affidavit, he referred to that notice as “in effect a Notice of Change of Solicitors”. With respect, that cannot be so as they are two distinct and different matters. Perhaps, through inadvertence, the need to file a Notice of Change of Solicitors had been overlooked.
29. Be that as it may, there is no reason to doubt that a change of solicitors did occur. I also accept that it would have taken the new firm a period of time to read into the case but I note that there is no evidence from the firm itself on the matter. If it be suggested that it took the new solicitors until February 2008 or 14 months to get up to speed as the chronology might imply, I would reject such a suggestion. A period of 14 months is way beyond what is reasonable and acceptable for the new firm to acquaint itself with the case.
30. Leaving aside the change of solicitors issue, the action taken by the liquidators from mid-2006 to August 2011 comprised the following:
(1) seeking advice from counsel and/or senior counsel;
(2) drafting and finalising the liquidators’ witness statement, collating, reviewing, finalising and/or approving exhibits for the same; and
(3) meeting twice with the funder of the action who is the petitioning creditor Pinemill, the sole creditor of the Company.
31. It is far from clear on how many occasions during this period counsel/senior counsel’s opinion(s) was/were sought. While the chronology appears to suggest four, it is difficult to understand why advice on the merits had to be sought on three different occasions, in the absence of new developments or material. Further, it is not suggested that any delay was attributable to delay on the part of counsel.
32. In any event, the bulk of the work related to the witness statement. That task began sometime in 2007 and, seemingly, took over 3 years to complete. No explanation has been given as to why the action then remained dormant for another year before directions were sought.
33. Making due allowance for the change of solicitors, I do not consider that the tasks the liquidators did accomplish should have taken them much beyond say the end of 2008 or early 2009 had the liquidators proceeded with reasonable diligence to prosecute the action. On any view, the time that they did take was grossly excessive recognising, as I do, that the witness statement is a substantial item that required considerable time and effort to put together.
34. It should be mentioned that in April 2009 as well as September 2010, the liquidators filed notices of intention to proceed. However, those notices, unlike the one sent in September 2011, were not followed by any positive step in the proceedings. Those notices took matters no further and did not have the effect of progressing the action. I fail to see their relevance in the context of excusable delay.
35. Looking at the matter broadly, I consider that the delay that has occurred in the present case in respect of which there is no reasonable excuse to be of the order of 30 months.
The applicable principles for striking out for want of prosecution
36. The applicable principles are to be found in Wing Fai Construction Co. Ltd (in liq) v Yip Kwong Robert [2012] 1 HKLRD 589. As the Court of Final Appeal made clear at §§ 80 and 88, the remedy the first and fifth respondents seek involves the exercise of a judicial discretion. The court must decide whether or not “in the circumstances, it is just to strike out”.
37. I will highlight several of the general points made in the judgment of the Chief Justice which are particularly pertinent in present case:
(1) Striking out for want of prosecution is a remedy of last resort and should only be made in “plain and obvious” cases, and where there has been abuse: § 73.
(2) Abuse can take many forms. Inordinate and inexcusable delay causing real prejudice would be an abuse: § 75 (3).
(3) It has never been thelawthat mere delay would be sufficient to justify an order to strike out: § 75 (5).
(4) In the court’s consideration of delay, regard is to be had to the factors enumerated by Neuberger J (as he then was) in Annodeus Ltd v Gibson (unrep., The Times, 3 March 2000): § 75 (5).
(5) Where abuse is clearly in clearly demonstrated, proceedings can be struck out even where prejudice to the defendants cannot be shown: § 75 (7).
(6) The conduct of the parties “will be relevant both to the critical question of abuse as well as to the overall justice in the case”: § 75 (8).
Real prejudice
38. This application is supported by two affirmations filed by Kwok Yuen Shan Rosetta, the solicitor for the first and fifth respondents. In § 6 of her first affirmation, Ms Kwok relied (by way of general statement) on the dimming of memories of witnesses and asserted that in the circumstances there is a substantial risk that a fair trial will not be possible. Her second affirmation added nothing to the first on the question of prejudice.
39. As regards the ‘dimming of memories of witnesses’, the Chief Justice had this to say in Wing Fai Construction at § 75 (8):
“If it is sought to be argued that time has dimmed the memories of witnesses, the court will usually want to know what steps have been taken by the defendant to take instructions, or proof or locate witnesses: cf the remarks of Ribeiro JA in Hymer v Mass Transit Railway Corp [2000] 2 HKLRD by 589, 610D-J. The court will certainly want to know what the true nature of the defence is, in order to assess the extent of the prejudice suffered by a defendant.”
40. Ms Kwok’s affirmations do not mention any steps having been taken by the first and fifth respondents to preserve relevant evidence.
41. During the section 221 exercise, the first respondent was examined extensively over a period of five days. Although the transcript is not admissible in evidence as against the other respondents, the first respondent is not prevented from refreshing his memory by reading the transcript of his own examination since that transcript is admissible in evidence against him, subject to all just exceptions. See § 4 of the 2003 order.
42. Two further matters might be mentioned. First, it is the first and fifth respondents’ stance that the witness statement is, in essence, no more than “a slightly expansive version of the Points of Claim”. See § 8 of Ms Kwok’s second affirmation. Second, the fact that the defences filed by the first and fifth respondents on 7 March 2012 (in compliance with the ‘unless order’ made by Harris J on 20 January 2012 on the liquidators’ case management summons) do not disclose the true nature of their defence in the sense that no positive case has been advanced, renders it difficult, if not impossible, for the extent of prejudice suffered to be assessed
43. In those circumstances, I do not consider that real prejudice has been made out or that there is a substantial risk that a fair trial will not be possible.
Abuse
44. A considerable part of the supporting affirmations of Ms Kwok is devoted to a change of shareholding in the fifth respondent. Prior to 21 March 2001, the first respondent and his wife, Leung Man Wa, held 900,000 and 100,000 shares respectively in the issued capital of 1 million ordinary shares in the fifth respondent.
45. On 21 March 2001, 9 million ordinary shares in the fifth respondent were allotted to Pinemill Holdings Ltd (“PHL”) by way of loan capitalisation, the amount of premium involved being $18.728 million. The allotment is reflected in the annual return of the fifth respondent dated 12 January 2002. PHL is the holding company of Pinemill. At all material times, PHL was owned by Yu Chung Wai and Ku Ping Ping.
46. PHL applied for de-registration on 11 September 2003 and was struck off the register in January 2004. PHL was restored to the register by an order dated 7 May 2010 made by consent. PHL’s shareholding in the fifth respondent was transferred to the wife of the first respondent on 2 July 2010. The papers do not reveal the consideration for the transfer although the letter from Pinemill’s solicitors, Messrs Keith Lam Lau & Chan, dated 11 April 2012, appears to suggest that the only condition was that all fees and expenses were to be paid by the first respondent.
47. In her first affirmation, Ms Kwok alleged that the liquidators’ inactivity between 2006 and late 2011 was deliberate, implying that there was an ulterior purpose for their refraining from advancing the proceedings. The veiled suggestion is that PHL was manipulating the case (presumably by causing Pinemill to withhold funding) so as to preclude itself from being liable while in control of the fifth respondent. It appears to be a deduction or inference made by Ms Kwok with no supporting evidence.
48. In her second affirmation, Ms Kwok went so far as to accuse the liquidators of a lack of bona fides in their prosecution of the action. Ms Kwok mentioned “new thinking by the funder and PHL”, but that was no more than pure speculation on her part, given the absence of any supporting evidence.
49. Then in § 16 of her second affirmation, Ms Kwok accused the liquidators of making a mis-statement in one of their affidavits “by stating that for a long time PHL did not realise it actually held shares of the fifth respondent”. Mr Yau was unable to identify the affidavit or passage in question and it would appear that there was no sound foundation for the allegation made.
50. If the only condition for the transfer of the 90% holding to the first respondent’s wife was the payment of the fees and expenses, then, seemingly, PHL would appear to have given away shares of value to the first respondent’s wife. The evidence (which was not challenged) shows the fifth respondent as the registered owner of two vehicles, one being, undeniably, a ‘luxury’ vehicle. That hardly gels with the sinister motives attributed to PHL.
51. In summary, the first and fifth respondents have not discharged the burden of showing that there has been any abuse of process on the part of the liquidators.
Conduct of the parties
52. The Civil Justice Reform (“CJR”) took effect on 2 April 2009. As from that date, all parties to the action and not only the liquidators came under an obligation to take positive steps to advance the proceedings. That is clear from the following passage from the judgment of the Chief Justice in Wing Fai Construction at §75(8) where it is stated that:
“…post-CJR, where all parties to the proceedings have the obligation to prosecute the proceedings and assist the Court in furthering the underlying objectives, it would be highly relevant to consider any failure on the part of the parties here. As far as the defendant is concerned, I would say once again that there is no place anymore for defendants to adopt the attitude of “letting sleeping dogs lie”. No longer will it be possible (if it ever was) for a defendant to sit idly by and do nothing, in the hope that sufficient delay would be accumulated so that some sort of prejudice can then be asserted.”
53. Accordingly, what the first and fifth respondents did or did not do after the introduction of the CJR is a relevant factor to be taken into account.
54. The only extant order at the relevant time was the 2003 order. Had the first and fifth respondents complied with the 2003 order, their respective defences would have been filed by early 2004. Instead, they took no steps to file those defences until some eight years later and only after the making of a peremptory order against them. In this regard, the liquidators are also to be criticised for letting so many years elapse before obtaining a peremptory order against the recalcitrant respondents.
Conclusion
55. While I have found that there has been inordinate and inexcusable delay in the present case, the substantial part of the relevant period of delay is post-CJR. Both sides are equally to blame as regards that period of delay.
56. This is a case where the first and fifth respondents have not been able to demonstrate real prejudice. Nor have they been able to make out a case of abuse by the liquidators. In those circumstances, the overall justice of the case does not mandate the exercise of the discretionary power to strike out.
57. Accordingly, the summons of the first and fifth respondents is dismissed. I also make an order nisi that costs be in the cause.
(Doreen
Deputy Judge of the Court of First Instance
Mr Ambrose Ho, SC, instructed by Messrs DLA Piper Hong Kong, for the applicants
Mr Albert Yau Ms Jo Siu, instructed by Messrs Jesse H.Y. Kwok & Co, for the 1st respondent and 5th respondent