CHEN HONGQING v. The persons whose names are set out in the second column of the Schedule to the Re-amended Writ of Summons filed on 26 March 2018 AND OTHERS

HCA 2648/2017 and
HCA 1282/2017
(Heard Together)
[2019] HKCFI 2122

HCA 2648/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 2648 OF 2017

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ACTION NO 1282 OF 2017

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(Heard Together)

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D E C I S I O N

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The
“Receivership Decision”

This Decision and my Jurisdiction Decision

1.  At the same time when I handed down this Decision (which I refer to as the “Receivership Decision”), I also handed down my Decisions on the SHD Jurisdiction Summons and the Jinan Group Jurisdiction Summons (the“Jurisdiction Decision” [1] ), and my Decisions on the SHD Injunction Summons (the “SHD Injunction Decision” [2] ).  For the reasons set out in the Jurisdiction Decision, I acceded to the jurisdiction challenges brought by the SHDs and Jinan Group (the “Jurisdiction Challenge”). For the reasons set out in the SHD Injunction Decision, I dismissed the SHD Injunction Summons.

2.  This Receivership Decision has to be read in conjunction with my Jurisdiction Decision and SHD Injunction Decision, as they are related. I also use in this Decision the same terms and abbreviations as they are used in those Decisions.

The applications

3.  This is another set of many complicated interlocutory applications relating to the fight over the control of China Shanshui Investment Company Limited (“CSI”) (and through it the listed company China Shanshui Cement Group Limited (“CSCG”)).

4.  This time, there are three matters before me:

(a)  On 8 February 2018, Chen HQ took out a summons (the “Receivership Summons”) for (1) the appointment of interim receivers over 369,002 shares in CSI; and (2) further and/or in the alternative, interlocutory injunctions to restrain 2,263 of the defendants from inter alia selling, transferring, or otherwise dealing with those Shares.  It first came before me on 15 February 2018 when I made certain interim-interim orders.  The substantive hearing took place before me on 30 and 31 May 2018.  However, given the subsequent Jurisdiction Challenge brought by the SHDs and Jinan Group, parties have agreed that I should consider not delivering my decision on the Receivership Summons until after I have also heard the SHD Jurisdiction Summons and Jinan Group Jurisdiction Summons, as the issues overlapped;

(b)  On 20 April 2018, 1,691 of the SHDs took out a Summons in HCA 1282/2017 (the “Direction Summons”) for an Order to direct the Former Receivers to inter alia vote certain shares of CSI subject to this Court’s directions.  The summons had been adjourned to be heard before me together with the Receivership Summons;

(c)  There was also a summons dated 25 May 2018 taken out by those SHDs before me for leave to adduce the 3^rd affirmation of Liu Shuqing.  On the second day of the hearing, I granted leave for the filing of a redacted version of the same.

5.  For the purpose of this hearing, upwards of 30 box files of affirmations, exhibits and submissions were placed before me.  The factual background and some of the issues however overlapped with that of the Jurisdiction Challenge subsequently brought.  Having set out the full background in my Jurisdiction Decision and having considered some of the related issues therein, I may perhaps be forgiven for being briefer when dealing with these applications. 

The Jurisdiction Challenge of the SHDs and Jinan Group

6.  For reasons set out in my Jurisdiction Decision, I acceded to the Jurisdiction Challenges and set aside the Service Out Order and the related service.  I also discharged the ASI.

7.  I have set out in my Jurisdiction Decision the background relevant to, and the reasons for setting aside the Service Out Order and the ASI.  I will not repeat them.

8.  Given my Jurisdiction Decision and the setting aside of the Service Out Order (and the related service), the substratum for any application for appointment of interim receivers (or in the alternative an interim injunction) has in effect gone.  The substratum having gone, the Receivership Summons has to be dismissed.  For the following additional reasons, I would in any event have dismissed it.

Chen HQ’s case for receivership in gist

9.  On 10 November 2017, G Lam J refused Chen HQ’s Trust Actions Joinder Application.  After that refusal, Chen HQ on 17 November 2017 commenced the present action.  His stated reason for doing so, as put by Mr Mok SC (who together with Mr Martin Kok and Ms Stephanie Wong appeared for Chen HQ) [3], was “to protect his interests in the Shares, seeking inter alia for an Order for the transfer and assignment of the Shares to [Chen HQ] in the event of and upon the pronouncement of the judgment of the Trust Action in favour of the Employees.”

10.  Chen HQ’s interests in the Stake were said to be subject to “risk or jeopardy” [4]. Those risk or jeopardy relied upon by him were primarily the purchase by the Jinan Group of the Stake, described on behalf of Chen HQ as follows [5] :

“ 15.  Subsequent to [Chen HQ’s] full payment of the Shares in 3.2017, there have recently been numerous wrongful attempts by many (if not all) of the Employees to sell, dispose of, or surrender their respective interests in the Shares to third parties, in the absence of [Chen HQ’s] consent or authorisation …

16.  Since around 9.2017, many Employees have been subject to lure and/or pressure, by persons actually acting as the senior management of their employer, to sign documents to purportedly sell, transfer and/or surrender their respective interests in the CSI Shares to [the Jinan Group] …

…

20.  The aforesaid risk of jeopardy to the Shares is further reinforced (and indeed exacerbated) by vexatious proceedings commenced in Jinan (‘Jinan Proceedings’) in 12.2017 …”

11.  On 8 February 2018, Chen HQ took out the Receivership Summons.

The parties’ submissions

12.  On behalf of Chen HQ, Mr Mok submitted that “there are plainly serious issues to be tried as to [Chen HQ’s] beneficial and/or equitable interests in the Shares and/or whether [Chen HQ] is contractually entitled to have the Shares transferred and assigned to him” [6], that “interim receivers ought to be appointed as a matter of necessity, and there are no less intrusive measures available in the present case” [7], and that balance of convenience was in favour of interim receivership [8].

13.  In the course of his oral submissions, Mr Mok summarised his position and gave three “necessities” (which I will call respectively “Alleged Necessity #1”, “Alleged Necessity #2” and “Alleged Necessity #3”for ease of reference) which he submitted justified the appointment of interim receivers to hold the Shares.  The effects of Mr Mok’s submissions are as follows:

(a)  In respect of the Alleged Necessity #1: at the moment the Shares are registered in the name of the former EY Receivers. That arrangement is inadequate where it becomes necessary for the actual or the newly appointed receivers to attend EMGs or any other meetings of the company and be counted in the quorum;

(b)  In respect of the Alleged Necessity #2: even though as a matter of normal course of event, any interim receivers to be appointed should abstain from voting, there may be exceptional circumstances where their voting may be required, and that in a situation like that, they would have to apply to court for direction on how to vote; and

(c)  In respect of the Alleged Necessity #3: in case of urgency, for example if there is to be a proposal to have the Shares diluted, they should be at liberty to come to court for some sort of urgent applications, and if necessary on an interim basis, for the court to see whether any urgent relief should be granted.

14.  Mr Mok’s application was hence not for the appointment of any interim receivers with unrestricted powers to vote.  It was envisaged that any interim receivers appointed should come to court for directions first before they could vote.  This was also reflected by the more restricted scope of the order which Mr Mok actually intended to seek (as opposed to and compared with the terms originally set out in the Receivership Summons):

(a)  In the Receivership Summons, any interim receivers to be appointed were originally intended to possess inter alia the following wide powers as set out in Schedule 2 thereto:

“ 2(b)  Take control of, exercise or refrain from exercising any or all of the voting rights in respect of the Shares or any part thereof in such manner and on such terms as the Receives think fit and to take all such stems as may be necessary to preserve the value of the Shares;

2(c)  Take control of, exercise or refrain from exercising any or all of the rights to which a registered holder of the Shares is entitled, including the powers to attend meeting;”

(b)  In the course of his submissions, Mr Mok informed me that Clause 2(b) would no longer be pursued, and that Clause 2(c) would be amended as follows (as underlined):

“ 2(c)  Subject to the exercise of the voting right as provided below, take control of, exercise or refrain from exercising any or all of the rights to which a registered holder of the Shares is entitled, including the powers to attend meeting (and be counted as quorum) but to abstain from voting, subject to any application to court made under paragraph 6 hereinbelow [9] ;”

15.  On behalf of the SHDs, Mr Westbrook SC (who together with Mr Alexander Tang and Ms Sharon Yuen appeared for the SHDs) submitted [10] that receivership ought not to be granted because Chen HQ’s case herein had been so contradictory and unworkable that there was no serious issue to be tried, and that the balance of convenience was in any event against the appointment of receiver.  It was submitted that the true purpose of seeking receivership was not to protect the value of the Stake, but to entrench Tianrui’s control over CSCG.

16.  On behalf of the Jinan Group, Mr Wong SC (who together with Mr Ross Li and Ms Rosa Lee appeared for the Jinan Group) submitted [11]that the Receivership Summons should be dismissed for the reasons that there was no serious issue to be tried, and that further or in any event, Chen HQ had failed to demonstrate that it was necessary and proportionate to appoint receivers.

Legal principles on ordering interim receivership

17.  The fact that a dispute exists over a property does not necessarily call for the appointment of a receiver of that property.  This is axiomatic. A proper basis has to be alleged and established.  As explained by Susan Kwan J (as Kwan VP then was) in Re Zealot & Co Ltd [2008] 1 HKLRD 386 at §§30, 34 – 35:

“ 30.  The principles for the appointment of interim receivers are well established. I apply by analogy the principles for granting interlocutory injunctions in American Cyanamid Co v Ethicon Ltd [1975] AC 396. I need to consider if there is a serious case to be tried, if there is proper basis for appointing receivers such as a jeopardy to assets, and where does the balance of convenience lie.

…

34.  Ms Chan submitted that the court should be slower to appoint interim receivers than to grant an interlocutory injunction, as this form of relief is more intrusive, more expensive and less reversible than the granting of an injunction. Hence, the applicant must show that the appointment of receivers is appropriate because other less invasive remedies would be inadequate (Steven Gee, Commercial Injunctions(5^th ed., 2004) para.16-008; Goldlion Properties Ltd & Others v Regent National Enterprises Ltd (unrep., HCMP 5273/2003, 21 September 2006) para.38). I was also reminded that the courts have always recognised the need for great circumspection in granting such relief, as the appointment of interim receivers is an extremely serious matter for a company (Bond Brewing Holdings Ltd & Others v National Australia Bank Ltd & Others (1990) 1 ASCR 445 at pp.456–457, 471; Re Chime Corp Ltd (unrep., HCMP 4146/2001, 25 June 2003) para.41).

35.  I bear these principles in mind. …”

18.  As explained in Kerr & Hunter on Receivers and Administrators (12^th ed), at §§1-6 to 1-8, there are two main classes of cases in which receivers may be appointed: appointment to enforce right, and appointment to preserve property:

(a)  Examples of the first class include appointment at the instance of a mortgagee, cases of equitable execution, appointment made under a statutory provision, and appointment over the assets of a dissolved partnership.  It has been commented [12] that:

“ In such cases, the appointment is made as a matter of course, as soon as the applicant’s right is established; it is unnecessary to allege any danger to the property, for the appointment of a receiver is necessary to enable the applicant to obtain that to which he is entitled.”

(b)  In respect of the second class:

“ 1-8 Appointment to preserve property.

The second class of cases include those in which the appointment is made to preserve property and, where required, to ensure its proper management, pending litigation to decide the rights of the parties, or:

(1) to prevent a scramble among those entitled, as where a receiver is appointed, pending a grant of probate or administration;

(2) to preserve property of persons under disability; or

(3) where there is danger of the property being damaged or dissipated by those with the legal title, such as executors or trustees, tenants for life, persons with a partial interest, such as partners, or the persons in control, as where the directors of a company with equal powers are at variance.

In all cases within this second class, it is necessary to allege and prove some peril to the property; the appointment then rests on the discretion of the court. In exercising its discretion, the court proceeds with caution, and is governed by a view of all the circumstances. No rule can be laid down as to whether the court will or will not interfere by this kind of interim protection of the property. Where, indeed, the property is, as it were, in medio, in the enjoyment of no one, it is the common interest of all parties that the court should prevent a scramble, and a receiver will readily be appointed: as, for instance, over the property of a deceased person,pending litigation as to the right to probate or administration.

1-9 Balancing the rights claimed by the parties.

Where the object of the claimant is to assert a right to property of which the defendant is in enjoyment, the case presents more difficulty.  The court, if it takes possession at the instance of the claimant, may be doing a wrong to the defendant; in some cases an irreparable wrong …”

Discussion

19.  I have in my Jurisdiction Decision dealt with in some details the merits of Chen HQ’s case.  I have reached the conclusion that Chen HQ had and has failed to establish a good arguable case for leave to serve out under Order 11, rule 1(1)(b). 

20.  Given the fundamental and drastic differences between the cases which Chen HQ has run (as I have explained in details in the Jurisdiction Decision), I reach the further conclusion, and in this regard accept Mr Westbrook’s submissions, that Chen HQ’s case herein is so contradictory that there is no serious issue to be tried [13].  I further accept Mr Westbrook’s submission that “… the Loan/Conditional Purchase Case and the Purchasing Agent Case are squarely contradictory.  Chen HQ’s failure to square the two shows that neither case is sustainable.” [14]

21.  Having reached that conclusion, there is in fact no need for me to consider the other two issues (whether a proper basis for appointing receivers has been established, and where the balance of convenience lies). I proceed nonetheless to consider them in case I were wrong in my conclusion that Chen HQ has failed to demonstrate any serious issue to be tried. 

22.  I have set out above the three Alleged Necessities relied upon by Mr Mok.  For the following reasons, I am of the view that they,individually or collectively, do not afford any basis for the appointment of interim receivers:

(a)  As submitted by Mr Wong, and fully supported by the authorities discussed above, it is for Chen HQ to put forward and establish a proper basis for the appointment of interim receivers;

(b)  I accept Mr Wong’s submissions that the three Alleged Necessities were put forward in a vacuum;

(c)  In connection with Alleged Necessity #1, Chen HQ has pointed to no specific EMG or other meeting. I see no basis to appoint interim receivers just so that they could be in the position in some unspecified future point of time to make up the quorum of some unspecific meetings with unknown agendas;

(d)  In connection with Alleged Necessities #2 and 3, the existence of any exceptional situations for any interim receivers to vote or to apply to court for reliefs is entirely speculative;

(e)  Specifically in respect of Alleged Necessity #2:

(i)  Mr Wong, relying upon In re Rondahl, Henderson v Executor Trustee Australia Ltd & Ors [2005] SASC 477, at §§56 – 66, submitted that where the beneficial ownership of the shares is in dispute, the nominee/trustee of the shares should refrain from voting;

(ii)  Rondahl was a probate case.  The testatrix held certain shares in a company.  She had made three wills.  Which of those will was her true will was disputed by the potential beneficiaries.  The company was subsequently subject to a takeover offer, and the potential beneficiaries disagreed as to whether the offer should be accepted.  The issue before the Supreme Court of South Australia was whether the first instance judge was correct in directing that the administrator should not exercise voting rights in respect of those shares hold by him.  In holding that the judge was correct and dismissing the appeal, Debelle J observed that (with emphasis added):

“ 56.  The question whether or not the administrator should be directed to vote these shares must be determined by a reference to the circumstances in which he was appointed. Those circumstances may be briefly summarised in these terms.

1.  There is a dispute as to which of the three wills of the testatrix is the true will of the testatrix. …

2.  The administrator holds the shares of the testatrix in Coopers knowing that, until the Court decides which is the true will of the testatrix, it is not possible to determine who has the beneficial interest in the shares.

3.  The potential beneficiaries who are litigating the issue as to which is the true will have different views as to how to vote …

…

58.  If the potential beneficiaries had agreed how the voting rights attached to the shares should be exercised, the Court could have directed the administrator to vote in accordance with this agreement. Failing agreement, the Court is not in a position to give any directions as to how the voting rights attached to the shares should be exercised. To do so would prefer the interests of one group of potential beneficiaries over another.

…

65.  … while a dispute continues to exist as to which is the true will of the testatrix and who are her true beneficiaries, it is not possible in the absence of agreement to exercise the voting rights attached to the shares.  The Court has no alternative but to maintain the position that no person may exercise those rights.”

(iii)  In the present case, “the circumstances” in which any voting right may need to be exercised are completely unknown.  I repeat also the commentary from Kerr & Hunter which I have cited above, that “[i]n exercising its discretion, the court proceeds with caution, and is governed by a view of all the circumstances.”  I see no basis to exercise my discretion in favour of the present application when “the circumstances” are entirely unknown;

(iv)  In any event, no justification has at this stage been, and indeed can be, given as to why and how the court can be in the position to give any interim receiver any direction on voting;

(v)  In my view, Alleged Necessity #2 is again entirely speculative;

(f)  Specifically in relation to Alleged Necessity #3, it is no less speculative.  No cause for relief has arisen, and none has been threatened.  To suggest that an interim receiver should be appointed in anticipation of some unspecified cause so that the interim receiver can act immediately as and when that cause arises (if arises at all) is in my view a non-starter.

23.  Balance of convenience is also against the appointment of any interim receivers:

(a)  I am entitled to bear in mind the contradictory nature of the different cases which Chen HQ has run even if my conclusion above on merits (that no serious issue to be tried having been established) were wrong and that it could somehow be suggested and argued that he has marginally demonstrated a serious issue to be tried on merits — see Kung Cheong Kai v Kung Cheong Ki & Ors HCA 704/2013 (31 May 2013), at §30 per M Chan J, Hong Kong Civil Procedure 2019, at §29/1/16, and Series 5 Software Ltd v Clarke & Ors [1996] 1 All ER 853, 865 – 866, per Laddie J.  In this regard, I accept Mr Westbrook’s submissions that “even if there is just barely a serious issue to be tried, Chen HQ’s case on the SPA Shares is so dubious that it should be a material factor tiling the balance against the grant of any interim relief, let alone a draconian receivership order” [15] ;

(b)  I have in Hau Cho Shing v Hau Chi Wing & Ors [2018] HKCFI 686 at §§44 – 46 considered the relevance of the doctrine of clean hands when it comes to considering the balance of convenience.  The Court may refuse to grant interlocutory relief if the grime on the applicant’s hands is sufficiently closely connected with the equitable remedy that is being sought [16] ;

(c)  I have set out in my Jurisdiction Decision the evidence on Chen HQ’s consistent failure to provide full details about the source of his funds said to have been made available to the 11 Representatives to purchase the Stake.  In this regard, I also respectfully repeat and adopt the observations made by G Lam J in this regard in his Decision handed down on 7 May 2018 in HCA 1282/2017, that:

“ 16.  Further, I have expressed serious concerns in the Discharge Decision [2018] HKCFI 194 at §§62 – 66 that the transfer of the interests of the plaintiffs in CSI shares in August 2015 (of which Chen HQ now claims to be the beneficiary), among other vital information, had been withheld from the court (both DHCJ Seagroatt and the Court of Appeal on appeal from him) and that a misleading picture had been presented to the court when it granted orders for the Receivers to become involved in the management of CSCG, with the result that the board of the listed company became thereafter dominated by Tianrui and the Receivers. I have also both in the Joinder Decision (at §21) and in the Discharge Decision (§§35 – 37) referred to the evidence including banking documents that the RMB700 million (paid to a large number of plaintiffs as the first tranche (70%) of the price)came from Tianrui, not Chen HQ.

17.  Chen HQ has not addressed any of these concerns.  What he said in his latest affirmation dated 4 May 2018 (for joinder in the trust actions) is that ‘I do not wish to disclose too much of my personal financial information’, saying he will address that matter in the CIETAC arbitration in due course.  But by simply parroting he paid the money and he was independent from Tianrui in his affirmations, he cannot expect this court to suspend its critical faculty and simply to believe anything that has been penned for him to sign.”

(d)  This refusal to disclose details about the source of the funds has particular implications on the issue as to whether the whole transaction was an attempt by Tianrui to circumvent the obligation to make a mandatory general offer under the Takeover Code.  As observed again by G Lam J at §20 of the 962 Discharge Decision:

“ 20.  Secondly, if Chen HQ had indeed acquired the employee- plaintiffs’ interests in the CSI shares in question from the outset, there might be requirements under securities regulations such as for disclosure of interest, since CSI held a 25.09% interest in the listed company, China Shanshui Cement Group Ltd. In the receivership application before Mimmie Chan J, when faced with the criticism that he had not made any disclosure of interest filings, Chen HQ categorically said he had ‘not yet acquired the Purchased Shares’, which is to be contrasted with his statement in the joinder application in the Trust Actions that he had ‘become the full beneficial owner of the CSI Shares … from around March 2017’. Moreover, the point had been raised by the defendants before Mimmie Chan J that Chen HQ was a front-man for Tianrui. If in fact Chen HQ had already purportedly acquired interests in CSI shares, that would bring into sharp focus whether or not the whole transaction was an attempt by Tianrui to circumvent any obligation to make a mandatory general offer under the Takeover Code, which would be relevant to whether the court’s discretion should be exercised to assist Chen HQ by appointing interim receivers.”

(e)  On this basis alone, I would in any event have refused to exercise my discretion to appoint any interim receivers.

Conclusion on the appointment to appoint interim receivers

24.  For the reasons set out above, I would in any event have refused Chen HQ’s application for appointment of interim receivers.

The alternative application for an interim injunction

25.  For the same reasons, which are primarily failure to establish any series issue to be tried and balance of convenience, I would in any event also have refused Chen HQ’s alternative application for an interim injunction.

Overall conclusion on the Receivership Summons

26.  I therefore dismiss the Receivership Summons in its entirety.

The Direction Summons

27.  HCA 1282/2017 was one of the Trust Actions.

28.  Mr Westbrook summarised his stance at §66 of his written submissions, that:

“ In [respect of the Direction Summons], the proper Order to be made under that Summons depends on this Court’s findings in the instant receivership application:

(a) If this Court takes the view that Chen HQ’s case presents no serious issue to be tried, or Chen HQ is otherwise not worthy of any interim protection, an order compelling the EY Receivers to vote in accordance with the employees’ wish could be granted.

(b)   If this Court decides otherwise and also decides that no voting should take place in the interim while the ownership of the Shares is disputed, then there will no longer be a need for any Order thereunder.”

29.  I have made my ruling on the Receivership Summons above. However, in my view, what the EY Receivers should do ought to be governed by the results of the Trust Actions and the related Orders made by G Lam J in those Actions.  I have since acceded to the Jurisdiction Challenge.  This is also a relevant consideration.  Consequential upon those decisions of mine, and due to the complicated background of this case, I have granted the parties liberty to seek any consequential orders or directions which they may deem appropriate.  I have further directed that if necessary, a hearing date may be sought for that purpose.  In all the circumstances, I have decided not to make any order in respect of the Direction Summons.  I however grant parties similar liberty as I have done in the Jurisdiction Decision.  In my view, that should be the most effective and expeditious way of dealing with the matter.

Disposition

30.  For the reasons set out above:

(a)  I dismiss the Receivership Summons in its entirety; and

(b)  I make no order in respect of the Direction Summons.

Costs

31.  On the question of costs, I make the following order nisi:

(a)  Chen HQ should bear the costs of the Receivership Summons, with certificate for two counsel; and

(b)  there be no order as to costs in respect of the Direction Summons.  I bear in mind that the vast majority of the time spent was spent on the Receivership Summons.

Any party who seeks any variation or summary assessment should lodge their submissions within 14 days from the date hereof, response within 14 days upon receipt, and reply within 7 days thereafter.

In respect of the hearing on 15 February 2018 of HCA 2648/2017:

In respect of the hearing on 30 and 31 May 2018 of HCA 2648/2017 and HCA 1282/2017: