YAU WAI AND OTHERS v. MARK HONOUR LTD

HCA 9627/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 9627 OF 2000

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(Consolidated pursuant to the Order of Master Wong dated
24th January 2002)

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J U D G M E N T

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Introduction

1. These two actions, having been consolidated as one action on 24 January 2002, were tried by me together. For the sake of convenience, Mark Honour Limited - the Defendant in HCA 9627/2000 ("the 1st action") and the Plaintiff in HCA 1519/2001 ("the 2nd action") was referred to at the trial and will continue to be referred to in this judgment as "the Defendant" or simply "Mark Honour". The individuals involved in these two actions - the Plaintiffs in the 1st action and the Defendants in the 2nd action - were and will continue to be referred to as "the Plaintiffs" or simply "the purchasers". In fact, the 1st, 6th, 7th and 14th Plaintiffs have settled their claims against Mark Honour in the 1st action and Mark Honour's claims against them in the 2nd action before the commencement of the trial, and did not take part in it. Although the two actions have been formally consolidated as one, again for the sake of convenience, I will continue to refer to them as the 1st and 2nd actions respectively.

2. Mark Honour is a member of a group of companies (the Asia Standard group), carrying on the business of property development in Hong Kong. It was the developer of a multi-storey building known as Bayshore Apartments situated at No. 244 Aberdeen Main Street, Hong Kong, the subject building in these two actions.

3. Bayshore Apartments is a high-rise residential building. It comprises 5 carparking floors, a club house/swimming pool and 31 residential floors. The property's main entrance abuts Aberdeen Main Street, whereas its back entrance faces the Aberdeen cemetery. Vehicular access to the development is via the back entrance. The access road leads both to the back entrance as well as the cemetery.

4. Mark Honour started marketing the sale of the residential units as well as carparking spaces in Bayshore Apartments - then yet to be constructed - in late 1997 and it continued doing so in 1998. The commencement of sale was after the onset of the Asian economic crisis by which Hong Kong has been hard-hit. But at the time when the uncompleted units and carparking spaces in Bayshore Apartments went on sale in the market, the effect of the crisis had not yet been fully felt in the society and property prices were, relatively speaking, still much higher than what they have subsequently become within the following few years.

5. The Plaintiffs were all purchasers of residential units in Bayshore Apartments, with the exception of the 14th Plaintiff (who has since settled her case with Mark Honour) - a purchaser of a carparking space in Bayshore Apartments. They all signed formal sale and purchase agreements with Mark Honour. Messrs Chan, Lau and Wai, the solicitors appointed by Mark Honour, represented both sides in the transactions. The purchase prices of the residential units bought by the Plaintiffs ranged between 3.2 million and 4.9 million. The single carparking space purchased by the 14th Plaintiff cost $680,000.00. All purchasers paid the agreed purchase prices in full by instalments in 1998. Some of them paid with their own money, some borrowed from banks and financial institutions (including a finance company within the Asia Standard group), and some paid by other means.

6. All the formal sale and purchase agreements provided, amongst other things, that:

"[Mark Honour] shall complete the Development [i.e. Bayshore Apartments] ... on or before the 31 day of May 2000 subject to such extensions of time as may be granted by the Authorised Person in accordance with sub-clause 5(a)." (Clause 4(1)(c))

7. Clause 4 in each of these sale and purchase agreements went on to provide as follows:

"(3) If the Vendor fails to apply for and obtain any extension of time for completing the Development under sub-clause (2) and fails to complete the Development by the expiry date of the period allowed by the Redevelopment Order or such extension period as may have been granted, the Purchaser shall be entitled, in addition to any other remedy that he may have, to give the Vendor notice in writing in that behalf to rescind this Agreement and upon service of such notice, this Agreement shall be rescinded within 7 days thereafter and the Vendor shall repay to the Purchaser all amounts paid by the Purchaser hereunder together with interest thereon at the rate of 2% per annum above the prime rate specified by The Hongkong and Shanghai Banking Corporation Limited from time to time from the date or dates on which such amounts were paid to the date of repayment, the payment of such amounts and interest to be in full and final settlement of all claims by the Purchaser against the Vendor hereunder.

(4) (a) Subject to sub-clause (4)(b), if the Vendor fails to complete the Development by the date specified in sub-clause (1)(c) as extended by any extensions of time granted by the Authorized Person under sub-clause (5)(a), the Purchaser shall be at liberty by notice in writing to the Vendor to rescind this Agreement and upon service of such notice, this Agreement shall be rescinded within 7 days thereafter and the Vendor shall repay to the Purchaser all amounts paid by the Purchaser hereunder together with interest thereon at the rate of 2% per annum above the prime rate specified by The Hongkong and Shanghai Banking Corporation Limited from time to time from the date or dates on which such amounts were paid up to the date of repayment, the payment of such amounts and interest to be in full and final settlement of all claims by the Purchaser against the Vendor hereunder.

...

(5) (a) The Vendor shall be entitled to such extensions of time for completion of the Development beyond the date stated in sub-clause (1)(c) as shall be granted by the Authorized Person and appear to him to be reasonable having regard to delays caused exclusively by any one or more of the following reasons:-

...

(vi) Inclement weather and for the purpose of this Agreement inclement weather means rainfall in excess of 20 millimetres in a twenty-four hour period (midnight to midnight) as recorded at the Royal Observatory, a Rainstorm Black Warning is issued or the hoisting of Typhoon Signal No. 8 or above at any time between the hours of 8:00 am to 5:00 pm.

...

(6) For the purposes of this Clause, the Development is deemed to be completed on the date on which the Occupation Permit is issued."

Clause 15 in each of the formal agreements provided that time shall in every aspect be of the essence of the respective agreements.

8. According to the evidence of those purchasers who testified at the trial, during their negotiations with Mark Honour for the purchase of units in Bayshore Apartments, they had been told that construction of the property was then expected to be completed by the end of November 1999, but in no event later than 31 May 2000, which was the deadline for completion provided in the standard formal sale and purchase agreements. This allegation was not or not seriously challenged by Mark Honour, and I have no difficulty in accepting the evidence of the purchasers in this regard. On the other hand, having listened carefully to the evidence of the witnesses called by Mark Honour, including those responsible for marketing the sale of the units in Bayshore Apartments, I have no doubt either that the estimated completion date was so represented to the intending buyers in good faith by Mark Honour, without any intention to mislead them on the true position.

9. But things did not proceed according to plan. In short, Mark Honour claims that because of exceptional difficulties encountered in the foundation works due to the geographical nature of the site, and also as a result of exceptional inclement weather, progress of the construction was seriously delayed right from the outset. This resulted in the authorised person ("AP") of the development - Mr Ronald Liang of LWK and Partners, granting 5 extensions of time ("EOT") in respect of the completion date of the development, pursuant to the provisions in the formal sale and purchase agreements. The net effect of the 5 EOTs was that the completion date was extended to 27 August 2000.

10. In these two actions, the Plaintiffs do not challenge the validity of the 5 EOTs. They accept 27 August 2000 as the deadline for completion of the construction of Bayshore Apartments, i.e. the obtaining of the occupation permit ("OP") as per the provisions in the formal agreements. That said, it must be pointed out immediately that the grant of these 5 EOTs did form part of the relevant background to the actions of the Plaintiffs (or some of them) - the subject of these two actions - which will be discussed in greater detail below. At this stage, all I need say is that the repeated extensions of time so obtained by Mark Honour regarding the completion time of the construction of Bayshore Apartments were simply perceived by the Plaintiffs (and some other purchasers - see below) - so they claimed in evidence - as evidence of sheer incompetence, negligence and irresponsibility on the part of Mark Honour in constructing the building, after it had pocketed in full the purchase prices from the purchasers in as early as 1998.

11. Pausing here, I have been referring to the Plaintiffs as purchasers of the units (and a carparking space) in Bayshore Apartments. Quite obviously, there were many other purchasers of units and carparking spaces in Bayshore Apartments, apart from the Plaintiffs. According to the evidence, Mark Honour continued to market the sale of units and carparking spaces in Bayshore Apartments during the course of 1998, and indeed lowered the selling prices of the units in line with the continuing and painfully drastic drop in property prices in Hong Kong throughout that period of time. More specifically, apart from the Plaintiffs, there are four other purchasers of residential units in Bayshore Apartments who are in litigation with Mark Honour, arising from the late completion of Bayshore Apartments, against whom Mark Honour has made allegations similar to those made against the Plaintiffs in the present actions. The High Court action involved is HCA 9838/2000, the trial of which was originally scheduled to commence immediately after the trial of the present two actions, but was subsequently adjourned to new dates to be fixed due to a revision of the trial length estimate.

12. And apart from these 4 purchasers, according to Mark Honour's own admission, there were another 9 purchasers of 9 other residential units in Bayshore Apartments with whom Mark Honour had had disputes arising out of the late completion of the property - which were all eventually settled.

13. Returning to the construction of Bayshore Apartments. Despite the 5 EOTs, Mark Honour did not manage to obtain the occupation permit by the extended deadline of 27 August 2000. It was only obtained on 20 October 2000.

The 1st action

14. It is the Plaintiffs' case that in those circumstances, they were, pursuant to the provisions in the respective formal sale and purchase agreements, entitled to rescind the respective agreements and the return of the respective purchase prices from Mark Honour. They all purported to exercise their rights to rescind accordingly by letters sent by their then respective solicitors. Mark Honour denied their rights to do so and refused to refund the purchase prices. This eventually became the subject matter of the 1st action which was commenced on 24 October 2000, in which the Plaintiffs seek both declaratory and monetary relief against Mark Honour.

15. Initially Mark Honour denied the Plaintiffs' claim on two grounds: First, they relied on a 6th EOT granted by the AP on 11 September 2000. Based on inclement weather and its subsequent effects on the construction works, the AP certified an additional 75 days' extension of time in addition to the previously granted extensions of 88 days. It thus extended the completion deadline from 27 August 2000 well into November 2000. As mentioned above, Mark Honour managed to obtain the occupation permit on 20 October 2000, and was thus within time, provided that the 6th EOT was a valid one.

16. But this did not turn out to be the case. The application for extension of time which eventually led to the grant of the 6th EOT was made in August 2000, prior to the expiry of the original deadline of 27 August 2000. But as mentioned above, the AP only granted the extension on 11 September 2000. After litigation arose in the 1st action, there was a trial of a preliminary issue regarding the validity of the 6th EOT. By judgment dated 5 March 2001, Deputy High Court Judge Muttrie ruled that the 6th EOT, having been issued only after the lapse of the original deadline of 27 August 2000, simply came too late for the purposes of the respective formal sale and purchase agreements. The learned judge ruled that the 6th EOT was invalid. From that judgment, there was no appeal. So much for the second defence raised by Mark Honour in the 1st action.

17. The second defence raised by Mark Honour, which in substance forms the backbone of its own claim in the 2nd action (which was commenced by Mark Honour on 3 April 2001) is that the Plaintiffs (or at least some of them) "conspired" together or "acted in concert" to disrupt, mainly by making complaints of all sorts to various Government departments and authorities against Mark Honour and its construction team (i.e. the AP and contractors) and the site, the completion of Bayshore Apartments in time. It is Mark Honour's case that as a result of these disruptive acts and the resulting interventions by the various Government departments and authorities, progress of the construction works at site was very much disrupted and delayed, so much so that the contractors simply could not complete the construction and obtain the occupation permit by 27 August 2000, as was originally scheduled. Mark Honour claims (and indeed set out to prove at trial) that but for the disruptive acts of the Plaintiffs under complaint, Bayshore Apartments would have been completed and the occupation permit issued on or before 27 August 2000. As has been explained above, because of the failure of its first defence, Mark Honour was forced to fight its case at trial on the footing that 27 August 2000 was the deadline by which it had to complete the construction works and obtain the occupation permit. The date has also become crucial in the determination of the causative effect of the alleged disruptive acts of the Plaintiffs.

The 2nd action

18. This case of a conspiracy forms not only, in substance, the defence of Mark Honour to the Plaintiffs' claim for rescission and return of the purchase prices in the 1st action, but also the cornerstone of Mark Honour's claim in the 2nd action. It is Mark Honour's case that as a result of the alleged conspiracy and disruptive acts, it has suffered loss and damage. An obvious part of Mark Honour's case on loss and damage is that if it should go down on liability in the 1st action by reason of its failure to complete by 27 August 2000, that would have been caused by the alleged conspiracy, and the resulting judgment in favour of the Plaintiffs in the 1st action should therefore become part of its loss and damage flowing from the conspiracy sued on in the 2nd action. Mark Honour therefore claims an indemnity (in the form of declaratory relief) in the 2nd action. However, Mark Honour has not otherwise particularised its alleged loss and damage, despite the lapse of almost 3 years after the commencement of the 2nd action. On the 1st day of trial, Mark Honour through counsel applied unsuccessfully for a direction of split trial of liability and quantum in relation to the 2nd action. Despite the indication from leading counsel for Mark Honour to the Court, following the failed application, that Mark Honour would seek to amend its pleadings by supplying the necessary particulars of its alleged loss and damage, no such application to amend was ever made. Mark Honour through counsel accepted in final submission that the only substantive loss and damage that Mark Honour is seeking this Court to give relief on relates to its liability towards the Plaintiffs in the 1st action and/or the 4 other purchasers (as plaintiffs) in HCA 9838/2000, if any.

19. In the light of the above, the only real and live issue before this Court relates to the alleged conspiracy. Plainly, Mark Honour bears the burden of proof, which was reflected in the order of speeches and presentation of cases at trial.

20. Before I move on to deal with the evidence - and I have no less than 23 witnesses giving evidence at trial, I should give a more precise description of Mark Honour's case, or more correctly, respective cases, in the two actions, although I will, for the sake of convenience, continue to refer to Mark Honour's case or cases as a case of conspiracy in this judgment.

Mark Honour's defence based on implied terms

21. In the 1st action, in which Mark Honour is the Defendant, Mark Honour by its pleading alleges that there were implied terms in each of the practically identical formal sale and purchase agreements. According to the original defence (paragraph 4), the implied terms, which were said to be implied out of necessity to give business efficacy to the respective agreements or by operation of law, were that "the Plaintiffs shall not take advantage of their own wrong" and "the Plaintiffs shall cooperate and not to engage in acts of disruption in relation to the construction of the Development".

22. By a partially successful application made on the 18th day of the trial, the implied terms were amended to read as follows:

" (i) The Plaintiffs would not engage in any acts or omissions or series of acts or omissions that would or might prevent the Defendant from performing its side of the agreement;

(ii) The Plaintiffs would not engage in any acts or omissions or any series of acts or omissions that would or might jeopardise the timeous completion of the Development".

23. According to Mark Honour's pleading in the 1st action, in breach of the implied terms, the Plaintiffs and others "acting in concert had committed a series of acts during the construction of the Development", which resulted in "severe disruption of the site progress of the construction" and caused "undue delay in the completion of the Development". It is also alleged that the same "resulted in pressure being put on the construction team" of Bayshore Apartments, "thereby preventing them from timeously discharging their duties". The amended defence alleges resulting delays and that but for the disruptive events, the completion of Bayshore Apartments would be "well before the 27 August 2000". See paragraphs 15 to 17 of the amended defence.

24. Paragraph 18 of the amended defence goes on to plead that:

"The acts of the Plaintiffs amount to unconscionable conduct. The enforcement of legal rights (if any) by the Plaintiffs could and should be restrained if there was unconscionable conduct on the part of the Plaintiffs or any one of them."

25. As regards the allegation of unconscionable conduct, Mr Clive Grossman SC, who together with Mr Simon Lui appeared for Mark Honour at the trial, confirmed with the Court that Mark Honour was not proceeding with unconscionable conduct by way of defence to the Plaintiffs' action. No submission whatsoever was made based on unconscionable conduct and it is thus unnecessary to say anything further about it in this judgment.

Mark Honour's claim based on conspiracy

26. Whilst the word "conspiracy" does not appear in the defence or amended defence in the 1st action - and Mr Grossman only said in submission that his case in the 1st action was one, in substance, of conspiracy, no such ambiguity arose in respect of Mark Honour's claim in the 2nd action. Conspiracy is fairly and squarely relied on by Mark Honour in its own statement of claim. But what should be carefully noted is that in Mark Honour's statement of claim, there is no reference whatsoever to the alleged implied terms in the respective formal sale and purchase agreements or the respective breaches thereof. Put another way, breaching the alleged implied terms by the purchasers does not as such form part of the case of conspiracy alleged by Mark Honour against these purchasers in the 2nd action.

27. Paragraph 9 of the statement of claim alleges that the purchasers "combined to achieve a common objective, by unlawful means, of not to complete the sale and purchase of their respective properties in the Development".

28. Paragraph 11 alleges the joining of the combination by some other purchasers.

29. Paragraph 12 pleads that the plan of the purchasers was to "disrupt the construction progress of the Development, mainly by unlawful means, so that [Mark Honour] would not be able to complete the construction of the Development on or before 31May 2000 or such further time as may be extended by the Authorised Person". Such disruptive activities were to include the making of written and oral complaints to various Government departments and authorities.

30. Paragraph 14 pleads a number of acts said to have been done pursuant to the "conspiracy".

31. Paragraph 15 of the statement of claim goes on to plead that "the means employed by the [purchasers] were unlawful" because of a number of matters.

32. Paragraph 16 pleads that the series of acts committed by the purchasers and others acting in concert caused delays.

33. Paragraph 17 pleads that but for the disruptive acts, completion of Bayshore Apartments would have taken place well before 27 August 2000.

34. Paragraph 18 goes on to deal with loss and damage, a matter which I have already mentioned above.

35. At this juncture, it is sufficient to note that despite some initial confusion, Mr Grossman SC said in no uncertain terms in final submission that he did not rely on "unlawful" means as forming part of his case on conspiracy. He expressly abandoned all references to "unlawful" means in the statement of claim, and in particular he abandoned paragraph 15 of the statement of claim in its entirety. I will return to this topic when I come to deal with the law on conspiracy later on in this judgment.

Mark Honour's case and evidence

36. I now turn to the case and evidence of Mark Honour. Apart from voluminous documentary evidence, Mark Honour called as its witnesses at trial two company directors (Dr Lim and Mr Kwan), its in-house project manager (Kevin Leung), the AP (Ronald Liang), a company director of the super-structure sub-contractor - Speedform Construction Company Limited ("Speedform") (Francis Ho), two foremen (Mr Yu and Mr Lau), a building and construction expert (Mr Cheng) and an undercover (Mr Chan).

37. The gist of Mark Honour's case and the evidence of its witnesses may be summarised as follows.

Mark Honour, Winfast and Speedform

38. Mark Honour was the developer of Bayshore Apartments. By a main building contract dated 11 September 1997, Mark Honour contracted with an associated company within the same group, Winfast Engineering Limited ("Winfast") for the construction of Bayshore Apartments. According to the building contract, the date of possession of the site was 1 October 1997, and the date for completion was 30 November 1999 - this no doubt reflected the estimated completion date represented by Mark Honour to the purchasers when the latter contracted to buy units in the development. In the main building contract, clause 23 contained provisions, on terms similar but not identical to those in the formal sale and purchase agreements, for the grant of extension of time by the architect for the completion of the construction works by reason of inclement weather or the subsequent effects of such inclement weather. (Although the formal sale and purchase agreements did not say as such that the "subsequent effects" of inclement weather could justify an extension of time, no such point was taken by the purchasers - both inclement weather and its subsequent effects were accepted as good grounds for an extension of time.)

39. Speedform in turn sub-contracted the super-structure construction work to Winfast, an outside company. Francis Ho, a director of Winfast and an architect by training, was in charge of the construction project. The sub-contract between Winfast and Speedform was not disclosed in the proceedings. But according to the evidence, under the sub-contract, there was a similar clause for extension of time for completion of works by reason of inclement weather and its subsequent effects. According to Francis Ho, the completion date provided in the sub-contract was not 30 November 1999 (as was provided in the main contract), but rather 31 May 2000 - the completion date specified in the formal sale and purchase agreements.

Initial construction difficulties encountered - extended deadline of 27 August 2000

40. As mentioned above, according to the evidence from Mark Honour's side, including the evidence from the AP and Kevin Leung - the project manager, soon after commencement of the foundation work, unexpected extraordinary engineering difficulties were encountered due to the peculiar geographical features of the site, resulting in very substantial revision of the original building plans and scheduled engineering and construction works. Coupled with inclement weather in terms of heavy rainfall, the construction programme or schedule was substantially pushed back. As mentioned above, by the time Speedform, the super-structure sub-contractor, came onto the scene in February 1999 when the site was delivered to it, the sub-contractor was working under a building programme with a completion deadline of 31 May 2000. In other words, the sub-contractor had about 14 to 15 months to complete the construction of the super-structure. It was accepted in evidence that this was a tight though manageable schedule.

41. According to the evidence of those involved in the construction works at site, as well as objective documentary evidence from the Hong Kong Observatory, the construction project continued to be affected by inclement weather and its subsequent effects throughout 1999 and 2000. As mentioned before, the AP (Mr Liang) altogether granted five EOTs, totalling 88 days, in respect of inclement weather from April 1998 to early May 2000, resulting in the further postponement of the deadline for completion to 27 August 2000.

42. According to the evidence, by late May or early June 2000, concreting of the roof of the multi-storey building had been completed. According to Speedform's revised programme as at 25 May 2000 (see the "As-built bar chart" prepared by Francis Ho - exhibit "D6"), completion of the construction of the building and obtaining of the occupation permit ("OP") was scheduled to take place on 12 August 2000, i.e. about 2 weeks before the extended deadline of 27 August 2000.

43. All the professionals called by Mark Honour to give evidence at trial - i.e. Kevin Leung, Francis Ho, Ronald Liang and Mr Cheng (the expert) maintained that given the progress actually made on site by late May or early June as described above, construction of the building could have been completed, and the OP obtained, by 27 August 2000.

Unprecedented visits and inspections resulting from complaints

44. It is their case and evidence that things seriously went wrong after late May/early June, with disastrous consequences.

45. All of the factual witnesses called by Mark Honour claimed in evidence that since late May/early June, the site and the construction works were the subject of complaints, visits and inspections, which were unprecedented in terms of numbers, frequencies and intensities, by various Government authorities and departments, including the Buildings Department, Highways Department, Labour Department, Fire Services Department, Environmental Protection Department ("EPD"), Drainage Department and the Police. Moreover, complaints were made to the ICAC, a District Board member, the Consumer Council, the Law Society (against Messrs Chan, Lau and Wai), the Institute of Architects (against Ronald Liang and his firm), and even the Office of the Chief Executive. There were also complaints to the press and a local magazine both with wide circulations. All these were on top of direct approaches made to Mark Honour and the AP. Included as a schedule to this judgment is a chronology of all these complaints and related actions that were either admitted or evidenced in one way or another by the material presented by Mark Honour at trial, which took place between 2 May and 15 October 2000. The chronology is largely based on a chronology very helpfully prepared by junior counsel acting for Mark Honour for the purpose of the final submission.

46. It is quite unnecessary to deal with each individual complaint or action. It is sufficient to elaborate on some of the more important ones. But before I do so, I should record that although originally many complaints and the resulting visits and inspections carried out by various Government departments and authorities were relied on in support of Mark Honour's case, during the course of evidence - particularly the evidence of Francis Ho - it was accepted that the actions taken by the Labour Department and that taken by the Drainage Department cannot be said to have been abnormal; as a result, they were no longer relied on by Mark Honour in respect of its case on disruption.

47. However, Mark Honour's witnesses complained bitterly in evidence about the actions taken by the Highways Department, the Environmental Protection Department, the Buildings Department and the Police, which they said were done as a result of complaints made to them.

Difficulties caused

48. In particular, for instance, both Kevin Leung and Francis Ho mentioned the rear entrance of the development facing the cemetery. As mentioned before, the only vehicular access to the construction site was via the rear access road, which led not only to the rear entrance of the development but also the cemetery. The rear entrance of the development was a very narrow space which did not cater well for unloading of necessary building materials and loading of construction debris and refuse by vehicles. Inevitably the loading and unloading work, as well as the temporary storage of the delivered building materials, would require utilizing part of the cemetery access road, resulting in a partial blockage of the road. Although by the nature of things, the cemetery access road was not particularly busy during most of the time of the year, it did, so it appears from the documentary evidence, give rise to complaints and interventions by the Highways Department right from the outset, which had, even according to Mark Honour's case, nothing to do with the purchasers. However, it is Mark Honour's case that by May 2000, the problem had been solved to the mutual satisfaction of all parties concerned, including the cemetery management and the Government departments involved: see exhibit "D5".

49. Yet that notwithstanding, according to the evidence of both Francis Ho and the foreman, Mr Yu, which was backed respectively by Francis Ho's record of disruption and Mr Yu's contemporaneous site diary, since June 2000, the Highways Department as well as the Environmental Protection Department kept intervening in the use of the rear entrance and the rear access road for loading and unloading purposes. Both Francis Ho and Mr Cheng, the expert, pointed out in evidence that this caused serious delays to the construction work, because of the "domino effect" of delaying delivery of materials. In short, because of the size of the construction site, there was only one material hoist for delivering building materials required for use in the upper-storeys from the rear entrance. Any intervention by the Government departments in the unloading and temporary storage of materials at the rear entrance and rear access road would result in disruption of the tight timetable for hoisting the building materials to the upper floors. Taking into account the time required to re-arrange delivery by the material supplier to the site, and the time needed for the affected sub-contractor to queue up for the use of the hoist again, a single act of intervention would result in delay of the affected item of work requiring the affected building materials to an extent well beyond the time lost by the actual intervention itself.

50. The problem was compounded if one takes into account the "knock-on" effect of a delay in a particular item of work on other related items of work, if the first item of work happened to be on the critical path of the construction programme. Thus to take an actual example, according to Francis Ho's evidence and report, the Highways Department's site inspection on 7 June 2000 actually caused a setback of the construction programme by 3 days. Similarly, a site checking by the Environmental Protection Department on 4 July 2000 relating to accumulation of building materials and debris at the rear access road and noise at night caused a total delay of 3 days in the construction programme.

51. Apart from the problems with the rear access work and rear entrance, a single complaint regarding the temporary storage of dismantled bamboo scaffolding poles at the sides of a rarely-used staircase next to the construction site leading from Aberdeen Main Street to the cemetery, which resulted in a site inspection by the Highways Department on 25 July 2000, alone caused a delay of 4 days.

52. Francis Ho explained in evidence that the dismantled bamboo poles caused no practical obstruction to anybody, as after all the staircase was rarely used by pedestrians at that time of the year. Yet the Highways Department's instructions to the contractors to remove the poles from the staircase immediately after they were dismantled would require the deployment of so such manual labour to carry the poles (once they were dismantled) up the long staircase to the rear entrance where they could be transported away by vehicles that the sub-contractor was forced to temporarily suspend the dismantling work altogether, because it simply could not afford the manual labour required and could not arrange for delivery trucks to be ready in such a short notice.

53. Another example of difficulty faced by the contractor was in relation to the police visits to the site after receiving complaints relating to, say, objects falling from height, illegal immigrants working on site, and so forth. According to the evidence, invariably the police required all workmen to be gathered at ground level for the purpose of checking their identity cards. According to Francis Ho and the other witnesses involved in the actual construction work, this practice created exceptional hardship and difficulty for the contractor and its workmen during the external wall tiling phase of the construction works. Workmen working at great heights by means of the scaffolding had to climb literally hundreds of feet down from where they were working to the ground level in order to comply with the identity card checking. After the checking, they had to climb up again to where they had been to continue with their work, if time allowed (before the end of their shift). The whole exercise wasted time, increased the danger to and physically exhausted the workmen who had to climb up and down, and gave rise to considerable frustration if not resentment amongst the workmen so much so that according to the evidence, some workmen actually disliked working at the construction site because of the frequent checks.

54. According to Mark Honour's case and the evidence of its witnesses, considerable delay was thereby caused, particularly if one takes into account the "knock-on" effects of these checks. They also alleged that each time the police came, the workmen would be ordered to stop all works at the site. But this was, according to the documents, denied by the police.

55. Yet another example related to the Buildings Department. According to the evidence, no doubt because of some complaints made to the Buildings Department concerning the quality of the construction works, the department carried out a comprehensive hammer test on the structural concrete in mid-September 2000, involving all residential typical floors with 4 to 6 test areas per floor (i.e. some 150 test locations in total), plus all the locations previously used for the tower cranes. According to Francis Ho and Kevin Leung, all this was unprecedented and unheard of before.

56. The inspections by the Buildings Department for the purpose of the OP application involved, according to the evidence, a 100% inspection of all the floors and units in the building, whereas the standard inspection rate was no more than 30%. Needless to say, this consumed time.

Remarkable events between 21 and 24 August 2000

57. What happened between 21 and 24 August was also quite remarkable. At that time, the contractor was carrying out work day and night at the site, with a view to finishing the building for inspections by the Fire Services Department and the Buildings Department for the issue of an OP, hopefully before the lapse of the deadline on 27 August 2000, despite the mounting disruptive acts targeted at the construction works at the site which had become obvious to all those involved in the construction works. As can be seen from the chronology scheduled to this judgment, one complaint after another was received by the police as well as the Fire Services Department relating to miscellaneous matters of all sorts, like working at night without a noise permit, falling objects, fire hazards. Coupled with the extremely difficult weather - the black rainstorm warning was hoisted, all this practically frustrated the carrying out of the scheduled works, particularly the hoarding removal work scheduled to be carried out at night which was on the critical path of the construction schedule. The delay resulted in corresponding delays in the various items of work scheduled to be carried out at daytime.

58. The saga in the small hours of 24 August did not come to an end, according to the factual witnesses called by Mark Honour, until the police gave Mr Yau Wai, the first-named Plaintiff, a verbal warning not to make any false complaints anymore, who thereafter left the vicinity of the site with some of those gathering with him. But by then, more than sufficient damage had been done to the scheduled work programme, so much so that no fire services inspection could be carried out at site on the following day, resulting in the losing of all hopes to obtain the OP by the deadline of 27 August 2000.

Complaints and government attitude

59. During evidence, Kevin Leung, Francis Ho and Ronald Liang were all asked about the various complaint letters sent behind the back of the construction team to various Government departments, particularly the Buildings Department, such as the "letter by an informer" ("告密信") sent to the Buildings Department on 4 August 2000, which complained about the quality of the construction works and suspected bribery, and another letter apparently received by the Buildings Department on 8 September 2000, which made various allegations of poor workmanship and quality of work against the sub-contractor. The witnesses all denied the various allegations made in these letters with obvious indignation. They and the expert called by Mark Honour, however, all suggested that these complaint letters provided an explanation for the extraordinary steps taken by the Buildings Department regarding the construction works at the site and the OP application for the development.

60. Francis Ho explained in evidence that in the light of the numerous complaints made to the various Government departments and authorities, and the resulting attitude taken by them, they was no room for negotiation between the contractor and the Government people, which would not have been the case had there not been these complaints. The result was that the Government people took a bureaucratic and sometimes unwarrantedly strict approach towards any possible infringement of Government rules and regulations, regardless of practical considerations and the reality of the situations. Things that would have been tolerated in normal situations were made subjects of intervention.

Delays caused

61. According to Francis Ho's calculations, which with a minor adjustment downward by two days became the official stance of Mark Honour by the time of final submission at the trial, the disruptive events described above resulted in a total delay of 62.5 days in the construction work. This was clearly shown in an "As-built bar chart" prepared by France Ho, which was exhibited as "D6" at trial. Counsel for Mark Honour accepted in final submission that in counting the days of delay, there was a duplication of two days. The net delay was only 60.5 days.

62. Francis Ho's calculation of the period of delay was substantially endorsed by Mr Cheng, the expert instructed by Mark Honour, who was formerly a Deputy Director of Buildings of the Buildings Department prior to his retirement in December 1999 and who confirmed in evidence that the actions taken by the Buildings Department in this case were quite extraordinary and could only be explained by reference to the numerous complaints and the resulting pressure they brought on those concerned.

63. Out of the 60.5 days calculated by Francis Ho, there were a total of 24 days delay caused by the alleged disruptive events that occurred prior to the lapse of the deadline of 27 August 2000. According to Ronald Liang's evidence and the documentary evidence regarding rainfall, from late May/early June to mid-August 2000, there were 15 days of inclement weather and another 19 days of subsequent effects resulting from the inclement weather, which formed the basis of part of the EOTs granted by the AP. According to Ronald Liang's evidence, apart from two days, there was no over-lapping between the inclement weather during this period of time and the alleged delays pinpointed by Francis Ho that resulted from the disruptive events that took place prior to the lapse of the deadline on 27 August. However, these two days of over-lapping did not fall on the critical path, and neither side asked the Court in final submission to deduct these two days from the 60.5 days of total delay calculated by Francis Ho.

64. In other words, for all practical purposes, the upshot of Mark Honour's case and evidence is that the alleged disruptive events caused a total delay of 60.5 days, of which 24 days of delay resulted from alleged disruptive events that occurred prior to the lapse of the deadline on 27 August 2000. It is Mark Honour's case and the claim of its witnesses that but for the delays, or more precisely, the 24 days of pre-27 August 2000 delay, Mark Honour would have completed the construction of Bayshore Apartments and obtained the OP on or before 27 August 2000.

65. Furthermore, it is Mark Honour's case that the disruptive events were caused or contributed to by the concerted acts or conspiracy of the Plaintiffs (or at least some of them), and thus Mark Honour's defence to the Plaintiffs' claim in the 1st action and its claim based on conspiracy in the 2nd action.

The Plaintiffs' case and evidence

66. It is convenient at this juncture to turn to the case of the purchasers. As I mentioned at the outset, all the purchasers, with the exception of the 14th Plaintiff, were purchasers of units in Bayshore Apartment. The 14th Plaintiff was the purchaser of a carparking space. In other words, 14 residential units were involved since in relation to some of the units, more than 1 individual (usually a couple) were the co-purchasers, so in fact there were more than 14 individual purchasers of the residential units, and there have been in fact more than 15 individual Plaintiffs in these two actions, although so far as numbering is concerned, one only has the 1st to 15th Plaintiffs and the 1st to 15th Defendants in the two actions.

67. As I have also said, the 3rd, 6th, 7th and 14th Plaintiffs have since dropped out of the picture. At this trial, one is only concerned with the remaining Plaintiffs. All the remaining Plaintiffs either gave oral evidence in Court or had made witness statements and affirmations, which were by agreement admitted as evidence at the trial.

68. Whilst I have carefully considered the case of each individual Plaintiff separately, I will only briefly describe their evidence here. The acts of these Plaintiffs have been set out in the chronology scheduled to this judgment, and I will not repeat myself here.

Mr So's evidence

69. For the sake of convenience, and perhaps chronologically, I will deal with the case of the 5th Plaintiff (Mr So) first. Mr So was the purchaser of Flat B on the 12/F of Bayshore Apartments. He paid for the purchase price of the flat from his own means, although initially he took out a mortgage in relation to part of the purchase price - he redeemed the mortgage in full on 1 September 2000. He said that he noted that the construction progress of Bayshore Apartments was very slow in 1999 and by April 2000, there were still 10 odd floors uncompleted. He was worried that the development could not be completed on time. He was concerned because he wanted to know whether he had the right to rescind the agreement upon the developer's breach of the contractual completion date. He said that therefore he placed an advertisement in the Southern District News, which was published on 2nd and 9th May 2000 on the following terms:

"香港仔海豐華軒業主聯合踢契行動，電：9882 3456洽"

("Aberdeen Bayshore Apartments owners [united] action to rescind contracts, telephone: 9882 3456")

In the second advertisement, he actually named himself as Mr So.

70. As a result of the two advertisements, Mr So came into contact with Mrs Lo, the wife of the 2nd Plaintiff, Mr Yau Wai (the 1st-named 1st Plaintiff), the Lai family (the 4th Plaintiffs), Mr Cheng For Shing (the 1st-named 13th Plaintiff) as well as Mr Sze (the 1st-named 12th Plaintiff). Through the suggestion of Mr Yau, there was a meeting held at a church in late May. Mr Yau brought along a solicitor from Messrs Au-Yeung Cheng Ho and Tin ("Messrs Au Yeung") to the meeting. In the meeting, the solicitor generally advised those present, i.e. Mr So, Mr Yau, Mrs Lo, Mr Cheng and one of the Mr Lai's (Mr Sze did not join), about the right of a purchaser to rescind the formal sale and purchase agreement if the developer could not complete the construction and obtain the occupation permit by the deadline (as extended). By then, the deadline had already been extended, by reason of the EOTs granted by the AP, from 31 May to 27 August 2000.

71. According to the evidence of those present at the meeting, the meeting was no more than for the purpose of obtaining legal advice in general, and an exchange of information and concerns regarding the slow completion of the development.

72. Mr So explained in the box that by the time he placed the two advertisements, he had decided not to take the flat. However, he said that not everyone who attended the meeting at the church in late May had so decided; some were simply feeling very concerned about the slow progress of the construction work.

73. Mr So (and Mrs Lo) both accepted in evidence that on the first occasion when the two of them met, because Mr So was due to travel to the Mainland for a short period of time, they agreed that he would forward his mobile phone number which he gave in the advertisements to Mrs Lo in case somebody interested in the advertisements should ring up the number, in which case Mrs Lo could answer on his behalf.

74. Mr So also accepted that in the meeting at the church in late May, he was aware that Mrs Lo had drafted several concern letters to various Government departments relating to the slow progress of construction of Bayshore Apartments, on which she sought the solicitor's views at the meeting. Furthermore, the two of them said in evidence that at the request of Mrs Lo, Mr So agreed to open a post office box in Central Post Office on behalf of Mrs Lo (out of convenience), which box would act as the contact address in the concern letters to be sent out by Mrs Lo.

75. Mr So, and indeed all those who had attended the meeting at the church, denied that they had agreed to act in concert to disrupt the construction works of Bayshore Apartments (whether by means of making complaints or otherwise). In essence, they said that what they did thereafter was done respectively on their own initiative. What they did together was merely to instruct Messrs Au-Yeung to write letters on their behalf to Messrs Chan, Lau and Wai (the developer's solicitors who were then also acting for the purchasers in the conveyancing transactions), querying about the EOTs. The solicitors' fees were shared equally amongst these several purchasers.

76. Mr So accepted that in about mid-July, he went together with Mrs Lo and Mr Cheng to see a District Board member to inquire about their right, but obtained no real assistance. Furthermore, Mr So said that in early August, some of these Plaintiffs including himself attended a meeting with the Consumer Counsel as a follow-up on one of the concern letters sent by Mrs Lo after the church meeting in late May, hoping that the Consumer Counsel could assist them.

77. Mr So said that in the afternoon of 23 August, whilst he was walking past the site, he was almost hit by a falling object from the site, and he reported the matter to the police. The police came, made inquiries, and gave some general verbal warnings to those responsible for the site. No further action was taken.

78. Mr So denied in the box that he was present at the site between 21 and 24 August when the various activities and complaints took place, and when a group of persons were seen gathering at the street opposite to the site (as per Mark Honour's witnesses). He denied the identification of himself by Mr Lau (a foreman) as one of those who were present.

79. However, Mr So accepted that on 24 August, he went with Mr Yau, Mrs Lo and Mr Cheng to the Fire Services Department to express concerns about two reported fire incidents at the site in August, the quality of the construction works at the site and the fire services inspection process.

80. As can be seen from the chronology, a number of meetings took place after the lapse of the completion deadline of 27 August 2000. According to Mr So and the other purchasers who were together since May, as from 28 August, more purchasers joined the group in taking action against the developer in relation to its failure to complete the construction works by 27 August. I will not repeat what happened after 27 August here; the relevant events have been set out in the chronology.

81. Mr So agreed that he had a conversation with an undercover (Mr Chan) employed by Mark Honour in January 2001. Both Mr So and Mr Chan had given lengthy accounts of the conversation in their respective witness statements, which I will not repeat here. In substance, there was not much difference between the two accounts. Certainly some of what Mr Chan said he had been told by Mr So during the conversation could be interpreted as an admission on the part of Mr So that there was some form of a "joint venture" on the part of the purchasers to make complaints to the various departments and authorities and not to complete the sale and purchase of their respective units, with each purchaser "doing his or her own part" in lodging complaints. However, on a fair reading, there was, even on Mr Chan's account of the conversation, no clear-cut or conclusive admission on the part of Mr So. Furthermore, I can add at this stage that one must approach the conversation with some caution: it took place in January 2001 when litigation was already on foot. What was said about what had been done or what had happened was said no doubt with the benefit of hindsight, and was coloured by the fact that by then all the purchasers had joined force in fighting litigation with the developer.

Mrs Lo's evidence

82. Mrs Lo is the wife of the 2nd Plaintiff. It is accepted on all sides that her actions could be wholly attributed to the 2nd Plaintiff, and no distinction should be drawn between the two of them. The 2nd Plaintiff was the purchaser of Flat D on 21/F. The purchase price was paid with the assistance of a mortgage. The flat was purchased for self-use. Mrs Lo lived in the Aberdeen area and walked past the site regularly. She said she was greatly concerned by the slow progress of the construction works at the site. She was also deeply disturbed by an incident in late 1998 involving a development in Fanling, in which the balcony of a three-storey building in the development collapsed. The matter was widely reported in the media. It was then generally (and mistakenly) thought that the development was constructed by the Asia Standard group to which Mark Honour belongs. Mrs Lo said that thus alarmed, she was most concerned about the quality of the construction works at Bayshore Apartments. She said her concern was aggravated by the fact that the developer was patently behind the construction schedule, and she feared that in trying to rush through the construction so as to meet the completion deadline, quality of the construction works would be sacrificed.

83. Mrs Lo, who was said to have been suffering from depression for quite a while at the time of the trial and who was, therefore, according to Mr Grossman SC appearing for Mark Honour, subjected to less vigorous cross-examination than would otherwise have been the case, said that in the light of the above matters, she started drafting concern or complaint letters to various Government departments to express her concerns. Quite importantly, she maintained in evidence that that was done prior to her seeing the two advertisements placed by Mr So and meeting the other purchasers in the church. Indeed, she said that by the time of the meeting at the church, she had already got the draft letters prepared and at the meeting she asked the lawyer for his views regarding whether she could send the letters out. She said she did not discuss directly her concern letters with the other purchasers present at the meeting, but said that if they had listened, they would be aware of the concern letters. She accepted, as mentioned above, that at her request, Mr So agreed to open for her a mailbox in the Central Post Office as the contact address in the concern letters.

84. Mrs Lo said that she got the names of the various Government departments to which she was going to send the concern letters from a copy of the Sales Descriptions of Uncompleted Residential Properties Bill, which she happened to notice in the newspapers and television. The names appeared in a schedule to the Bill. She explained that in the concern letters, she stated that the letters were written by a group of purchasers because she did not wish to reveal her own identity in fear of trouble or inconvenience. She gave the same explanation for using a Post Office box number as the contact address. She said she had not formally obtained the consent of the other purchasers for writing the concern letters, although some of them would be aware of the concern letters if they had listened to what she asked the lawyer in the meeting at the church. She said that she wrote in the way she did, so as to attract more attention from the departments.

85. Mrs Lo accepted that by the time of the meeting at the church in late-May, she had already decided not to take the flat if it was lawful so to do. She accepted that after the meeting, apart from sending out the concern letters, she also acted as the coordinator regarding the writing of letters by Messrs Au-Yeung on their behalf to the developer's solicitors concerning the EOTs, and collection of legal fees. She also kept some of the purchasers (particularly the Lai family) informed about the progress. She however denied any plan to act in concert with the other purchasers, beyond what she had admitted in evidence.

86. In early August, Mrs Lo personally visited the Consumer Council as a follow-up action of one of her earlier letters (she probably wrote the anonymous letter to the Consumer Council dated 1 August 2000 although she was not specifically asked about it during evidence).

87. Mrs Lo explained that after she became aware of a fire incident at the site in early August, she felt alarmed, fearing that somebody might use the fire incident to create an excuse for further extending the deadline for completion. Thus she wrote to the Fire Services Department on 8 August, again in the name of a group of purchasers of Bayshore Apartments. This led to a meeting at the Fire Services Department on 24 August referred to above. After the meeting, Mrs Lo, Mr Yau and Mr Cheng decided on the spot to visit the Buildings Department to ask for advice on what, as purchasers, they should watch out for when they were given possession of the units after completion by the developer.

88. Mrs Lo explained that although she had already made up her mind by then not to take the flat if lawfully possible, there was no guarantee that she could lawfully do so, and she might well be faced with a situation where she had to accept the flat. It was therefore in her interest to ensure that the development was completed according to acceptable standard and was of a satisfactory quality. That was why she continued to be concerned about the construction works at the site.

89. Mrs Lo denied any knowledge of the actions taken by Mr Yau or Mr So at or near the site or the complaints they made or allegedly made. She said that on her part, she had by chance over-heard conversations of workmen involved in the construction works, whilst walking past the site, about possible problems encountered in the construction process, and that was why in her letter to the Fire Services Department on 26 August 2000, she mentioned those problems.

Mr Yau's evidence

90. Mr Yau Wai, the 1st-named 1st Plaintiff, together with his wife, the 2nd-named 1st Plaintiff, were the joint purchasers of Flat A on the 26/F. They paid the purchases price with the assistance of a mortgage loan. He came into contact with the other purchasers via the advertisements placed by Mr So. It was he who through research on the internet noticed that Messrs Au-Yeung had been doing a similar case on behalf of some purchasers in another development involving the Asia Standard group. He thus invited a lawyer from that firm of solicitors to attend the meeting at the church. He said that during the meeting, he heard about Mrs Lo's intended concern letters, but he did not read them.

91. It is quite clear from the chronology scheduled to this judgment that Mr Yau was the complainant in quite a number of complaints made to the police and Fire Services Department. In particular, he was present near the site between 21 and 24 August. He was positively identified by Mark Honour's foreman (Mr Lau). Indeed, according to the known records, Mr Yau started making complaints to the police and Labour Department on as early as 9 June about workmen not wearing safety helmets whilst working at the site.

92. Mr Yau defended his complaints in the box by saying that he was generally concerned about the subject matters of his complaints, including noise pollution, objects falling from height, fire hazards. He said he was also concerned about the quality of the construction works.

93. But apart from the known complaints, Mr Yau denied that he was the complainant behind the anonymous complaints referred to in the chronology. He also denied ever telling Mr Lau, the night foreman, on 21 August that he and the other purchasers did not want the occupation permit to be issued in time. He denied Mr Lau's account of what had happened on those few days. Mr Yau also denied that he was accompanied by other purchasers (particularly the other Plaintiffs) at any time outside the site.

94. Mr Yau denied that he was the leader of the group of purchasers or their representative. He denied knowledge of the subsequent complaint letters written in September.

95. Mr Yau said that he had wanted to complete the sale and purchase of the flat up to the lapse of the deadline on 27 August, and he only decided not to take the flat on 28 August.

Mr Cheng's evidence

96. Mr Cheng, the 1st-named 13th Plaintiff, together with his wife, were the joint purchasers of Flat A on the 16/F. He paid the full purchase price with a mortgage loan. In April 1998, he successfully negotiated with Mark Honour for a reduction of the purchase price by $400,000 on account of the drop in market price.

97. In April 2000, because of his concern for the slow progress in the construction works, he instructed a solicitors' firm, Messrs William Sin and Co., to represent him in place of Messrs Chan, Lau and Wai, so as to protect his own interest.

98. In May, through Mr So's advertisements, he came into contact with the other purchasers. He was present at the church meeting in late-May. He did not, however, switch to Messrs Au-Yeung, because he had already got his own lawyers to represent him. He was, however, kept informed of the progress by Mrs Lo regarding the EOTs and the queries raised by the group of purchasers. He was also aware of the concern letters sent by Mrs Lo to various Government departments. As mentioned above, he took part in the meeting with the District Board member in July, and the meetings with the Fire Services Department and the Buildings Department in late-August 2000.

99. Mr Cheng denied that there was any plan or that he had joined any plan to disrupt the construction works. He denied that he was present near the site between 21 and 24 August, despite a positive identification by Mr Lau, the foreman. He said he was not aware of the complaints made by others, apart from the letters sent by Mrs Lo.

100. According to Mr Cheng, it was only upon receiving the advice of Messrs William Sin and Co. that it would be more economical to join the other purchasers in instructing Messrs Au-Yeung that he decided to switch from the former to Messrs Au-Yeung on 29 August 2000.

101. Mr Cheng said that personally he made no complaints whatsoever to anybody, including during the meetings with the Fire Services Department and the Buildings Department.

102. Mr Cheng said that if the property could not be completed in time, he would not want to take up the flat. However, he said that his decision was not affected by the dropping market prices.

The Lais' evidence

103. As regards the Lai family (the 4th Plaintiffs), the two Lais are father and son. The son gave evidence at trial together with his elder brother, who was not one of the purchasers. The father and sons attended some of the meetings of the purchasers, but by and large because of their background and education, they took no or merely an inactive part in the whole matter. This was confirmed by all the other purchasers present who gave evidence.

104. The Lais made no complaints, nor were they aware of any complaints to anybody. They were just kept informed by Mrs Lo, who also interpreted to them the letters from the solicitors which were written in English, concerning the EOTs. They were not present near the site between 21 and 24 August, and they were not identified by anyone from Mark Honour to be present.

Mr Sze's evidence

105. Now I move onto the so-called second group of purchasers who did not "join" the first group until after the lapse of the completion deadline on 27 August.

106. I have already mentioned Mr Sze (the 1st-named 12th Plaintiff) above. He and his wife were the joint purchasers of Flat D on 22/F. The purchase price was paid for by mortgages.

107. He was aware of the advertisements placed by Mr So, and had called Mr So twice during the period between May and July 2000. But he did not meet Mr So or the rest of his group.

108. In his evidence, Mr Sze said that prior to 28 August, he had done nothing. On 28 August, Mr So called him and told him that they were attending the solicitors' office. He joined the group on that day when they went to see Messrs Chan, Lau and Wai regarding whether any extension of time would be given on that day.

109. Except going to the Consumer Council on 29 August together with the other Plaintiffs, he made no individual complaints of his own.

Patty Keung's evidence

110. Patty Keung, the 2nd-named 10th Plaintiff, together with her husband, were the joint purchasers of Flat C on the 15/F. She said that the flat was originally her "dream-house". However, her dream turned into a nightmare, when the developer dragged its feet in the construction of the building, and she received one EOT after another. She also heard about the incident of a collapsed balcony in late-1998, involving, so she then believed, the Asia Standard group, and she was much alarmed by it.

111. She also felt bitter that starting from March 2000, she had to make monthly payments in respect of a second mortgage over her flat with a finance company in the Asia Standard group, when quite plainly completion of the construction works would still be months away.

112. On 22 August 2000, she learned from an estate agent advertisement that completion of Bayshore Apartments might be as late as early 2001. She said that she felt so desperate that she called up the Next Magazine hotline to make a complaint. Through Next Magazine, she learned that on 26 August, Oriental Daily published an article regarding the late construction of Bayshore Apartments and the dispute regarding the correct method to count the days of inclement weather that some purchasers had with the AP and developer.

113. On 28 August, through Oriental Daily, she came into contact with Mr Yau Wai, and thus joined the rest of the Plaintiffs in attending Messrs Au-Yeung's office and subsequently Messrs Chan, Lau and Wai's office on that day.

114. She accepted that the purchasers had a dinner together that night and some of them went to see the building afterwards. She said that nothing particular was discussed, and the purchasers only exchanged their individual concerns and information. The matter was then in the hands of lawyers and a letter of rescission was written on their behalf to rescind the respective formal sale and purchase agreements following the failure of Mark Honour to complete the construction by 27 August and in the absence of any further EOT.

115. Patty ( as she was called by the other purchasers ( accepted in evidence that on 6 and 9 September, she wrote to the AP challenging his grant of the EOTs and making veiled attacks on the AP. She purported to write on behalf of all the Plaintiffs (with the exception of the 15th Plaintiff who had not joined by then).

116. On 9 September, Patty also wrote a letter of complaint to the Chief Executive's Office. According to the evidence, she wrote a follow-up letter of complaint to the Chief Executive's Office on 5 October 2000, after receiving a reply on 20 September 2000.

117. Patty said in evidence that she did all this on her own initiative. She had briefly mentioned about these letters to some of the other Plaintiffs, but did not find it necessary to obtain their prior consent before writing these letters purportedly on their behalf. She said she thought none of them would object, and in fact she was, as it were, "doing them a favour" by including their names in the letters. She believed that she was merely expressing a common concern of all the Plaintiffs. (In evidence, some of the other Plaintiffs said that they were aware of the letters at the time, and some others said they learned of them subsequently, and none of them said that they objected to the letters' contents.) Patty further explained that even though lawyers had been instructed by them, she saw no reason to ask the lawyers to write the letters on her behalf, when she could write them herself at no cost. It should be noted that Patty is obviously highly educated and can write in excellent English and express herself clearly in words.

118. She said that despite her decision to rescind, she was still concerned about the quality of the construction works (and thus the complaint letters), because there was no certainty that she could successfully rescind the sale and purchase of her flat.

119. She accepted that she, together with Mrs Lo, acted as kind of coordinators for the purchasers in general. However, she vigorously denied that there was any conspiracy on the part of the purchasers to delay the completion of the construction works, which were not completed until mid-October when the OP was eventually issued. In this regard, it should also be pointed out that at that time, nobody knew or knew for certain that on the true construction of the formal sale and purchase agreements, an extension of time granted after the lapse of the deadline on 27 August would not be a valid extension ( - an extension was indeed granted by the AP on 11 September, as mentioned above). Patty also denied any knowledge of a prior conspiracy amongst the purchasers before she joined the group.

Mr Wun's evidence

120. Mr Wun (the 11th Plaintiff) was the purchaser of Flat D on the 11/F. The delay in the completion of the construction of Bayshore Apartments gave him difficulty in making payment of the balance purchase price, because he had planned to sell his existing flat in order to finance the payment. In April and May 2000, he wrote to the developer enquiring about the expected completion date and the rainfall records pertaining to the EOTs.

121. Mr Wun accepted in evidence that he had wandered into the site on occasions. He defended his actions by maintaining that as a purchaser of a flat in the building under construction at the site, he had a right to enter the site.

122. On 26 August, he read the article in Oriental Daily, and on 28 August, through the newspaper reporter concerned, he came into contact with Mr Yau. It was thus that he joined the other Plaintiffs and met them for the first time at the office of Messrs Au-Yeung on that day. He attended the meeting with Messrs Chan, Lau and Wai as well as the dinner afterwards in the evening. He went to the Consumer Council together with others on the following day.

123. He said that on 6 September 2000, on his own initiative, he went to the ICAC to make "inquiries" about possible conflict of interest between the AP, the main contractor and the developer, in the repeated grant of EOTs. He accepted in cross-examination that he did make a complaint to the ICAC to that effect. He said that he did it all by himself, and had told no other purchasers about what he did. He said he did not tell his lawyers either.

124. During the course of trial, Mr Wun also admitted via counsel and confirmed his admission in the box that he was the author of an anonymous letter of complaint sent to the Buildings Department on 8 September 2000, in which, claiming (falsely) as someone who had taken part in the construction of Bayshore Apartments, he made a number of complaints regarding the construction works, procedure and quality. As mentioned before, all these complaints were strenuously denied by Kevin Leung, Francis Ho and the AP. Mr Wun said that he had forgotten about the letter until it was first disclosed by the Buildings Department on the first day of the trial pursuant to a subpoena. He said that although he had not taken any part in the construction works, given his professional training (as an engineer), he was in a position from his own observation of the construction works at the site to make the various complaints in the anonymous letter. He denied that it was not written bona fide. Like his complaint to the ICAC, he said that he wrote the letter on his own initiative, and the other purchasers were not aware of it. He did not consult the lawyers either.

125. On the same day, Mr Wun also wrote to the AP, enclosing a copy advice from a quantity surveyor to challenge the AP's grant of EOTs.

Mr Shek's evidence

126. Mr Shek (the 1st-named 9th Plaintiff) together with his wife were the joint purchasers of Flat C on the 11/F.

127. He said in the box that from the outset, he was concerned about the progress of the construction works, as well as the method of counting the days of inclement weather based on which the EOTs were granted. In particular, Mr Shek was concerned that the rainfall record of the Aberdeen area, rather than the rainfall record of Hong Kong as a whole, was not used by the AP for computing the EOTs. Because of that, he wrote a number of letters to Messrs Chan, Lau and Wai, the AP, the Consumer Council and the Law Society, and eventually a letter of complaint to Oriental Daily on 4 July 2000, expressing his concern and setting forth his case. The complaint to the newspaper eventually led to the publication of the article by the newspaper on 26 August. On 28 August, through Oriental Daily, he came into contact with Mr Yau and his group of purchasers. That was how he and his wife joined the group and attended the solicitors' office as well as the dinner afterwards.

128. Mr Shek said that as he was so upset by the whole matter and the unreasonable grant of EOTs, he wrote a further letter of complaint to the Hong Kong Institute of Architects regarding the professional behaviour of the AP. Furthermore on 6 September 2000, he wrote a letter to the chairman of the Asia Standard group to which Mark Honour belongs, making veiled threats of further actions against the group, with a view to bringing maximum pressure on the group to settle with the purchasers. Mr Shek said that he had since regretted writing the letter, and as a matter of fact, none of the threatened actions were taken.

129. Although the letters were written purportedly on behalf of the other purchasers as well, Mr Shek said that in fact he had not obtained the consent of the others before he wrote the letters. He said that he simply included the other purchasers' names in his letters so as to add weight to what he wrote.

130. Mr Shek maintained that there was no plan or conspiracy to disrupt the progress of work, and that he did not know the other Plaintiffs until 28 August. He did not authorise others to act for him, nor was he authorised by others to act for them.

131. He denied the positive identification by the night foremen (Mr Lau) of his presence near the site in mid to late August.

132. Like Patty, Mr Shek is highly educated and is a management professional. Quite plainly, he can write and express himself well in good English.

The 8th Plaintiffs' evidence

133. Both Tang Wai Ying and Chui Wai Hung, the 2nd- and 3rd-named 8th Plaintiffs gave evidence. They were two of the three co-purchasers of Flat A on 11/F.

134. They came to know the rest of the Plaintiffs after reading the article in Oriental Daily. On 28 August, they were given the contact number of Mr Yau Wai, and thus joined the other purchasers in instructing Messrs Au-Yeung in writing the letter of rescission.

135. Apart from attending the Consumer Council on the 29th, they made no separate or individual complaints of their own. Madam Tang said that she was aware of Patty's letters to the AP and the Office of the Chief Executive. She had no objection to the contents. She said that the letters were simply written to vent their grievances and feelings. Mr Chui, her husband, denied that he was at or near the site with Yau Wai on 21 to 24 August, despite the positive identification by the foreman Mr Lau. He maintained that he and his wife only came to know the other purchasers through Oriental Daily on 28 August.

Mr Shen's evidence

136. Lastly, Mr Peter Shen, the 1st-named 15th Plaintiff, was the purchaser of Flat D on the 9/F. According to his evidence, it was only after 27 August when he contacted Messrs Chan, Lau and Wai expressing his intention not to complete the sale and purchase because the developer had failed to obtain the OP by the deadline, that he was told by Messrs Chan, Lau and Wai that some other purchasers adopting a similar stance had already instructed Messrs Au-Yeung to represent them. On 31 August, he contacted Messrs Au-Yeung, who had by then written letters of rescission on behalf of the other Plaintiffs, instructing the solicitors to write a similar letter of rescission on his behalf as well.

137. Mr Shen said that he took no individual actions of his own, and simply joined the other Plaintiffs for the purpose of rescission and fighting the litigation.

138. He denied that he was present at or near the site together with Mr Yau Wai and other purchasers in mid to late August, despite a positive identification by the night foreman Mr Lau. He maintained that he first met the other Plaintiffs in September 2000 only.

Others' written evidence

139. Apart from these purchasers who gave oral evidence at trial, as I said, the remaining purchasers' witness statements and affirmations were all, by agreement, put in evidence before the Court, without cross-examination by Mark Honour's side. They have been, like the other documentary evidence, taken into account by me in making the relevant findings of fact.

A case of conspiracy - agreement or combination

140. As discussed above, in Mark Honour's action (the 2nd action), it relies on a case of conspiracy. In Mark Honour's defence of the purchasers' action (the 1st action), a case of the purchasers acting in concert in breaching the alleged implied terms is run. Although the terminologies used are different, Mr Grossman has confirmed with the Court that indeed in substance, a conspiracy is relied on in defence of the 1st action as well. It is not difficult to see why in the 1st action, a case of the purchasers' breaching the implied terms without an allegation that the purchasers acted in concert in so breaching the implied terms will not be sufficient. If all that Mark Honour is able to establish is that an individual purchaser has breached the implied terms in his formal sale and purchase agreement with Mark Honour, the consequence flowing from that breach would, given the facts in the present case, be quite insufficient to cause delay to such an extent that Mark Honour was unable to complete the construction of the building and obtain the OP by 27 August. This would be the position even with the case of, say, Mr Yau Wai who without doubt was the most active purchaser in respect of the alleged disruptive acts. It has never been suggested by Mark Honour that the alleged disruptive acts that Mark Honour says were attributable to Yau Wai were by and of themselves sufficient to cause the delay in question. In those circumstances, in order to succeed in its defence, Mark Honour must somehow link and connect the entire alleged disruptive acts by all the purchasers together, in order to overcome the question of causation. The means by which to do so is the allegation of the purchasers acting in concert in breaching the implied terms with a view to disrupting the construction programme, and causing Mark Honour to miss the completion deadline.

141. Thus analysed, it is quite clear that common to Mark Honour's respective cases in the two actions is the allegation of an agreement or plan of the purchasers. Here, one needs to go briefly into the law of conspiracy regarding the requisite agreement as an essential element of the tort. The tort of conspiracy requires an agreement, combination, understanding, or concert to injure, involving two or more persons. It has been suggested that the word "combination" is a word to be preferred, as compared with "agreement", which might be thought to require some agreement of a contractual kind, whereas all that is needed is a combination and common intention: Belmont Finance Corp. v William Furniture Ltd (No. 2) [1980] 1 All ER 393, 404 (per Buckley LJ); Clerk and Lindsell on Torts (18th ed.) paras 24-118 to 24-120.

142. Although Mr Grossman did not elaborate on the meaning of "acting in concert" in relation to Mark Honour's defence in the first action, it was quite apparent that he was content to rely on the same definition of agreement or combination for the purpose of Mark Honour's defence.

143. Bearing in mind the meaning of an agreement or combination, I will proceed to make findings on the alleged disruptive acts and the alleged agreement or combination in relation to the same.

Chronology

144. First, there can be no real dispute, and Mr Benjamin Chain, appearing for the purchasers, made no serious submission to the contrary in the final submission, that the events set out in the chronology, other than those against which a question mark has been placed, had indeed taken place. As I said, they were either admitted by the Plaintiffs, or were evidenced in one way or another by the documents. I have no difficulty in finding that they (i.e. those without a question mark placed against them) did take place.

Broad approach

145. The more crucial question is the respective roles played by the purchasers and the alleged combination or agreement. In this regard, I fully bear in mind the submission of Mr Grossman. In particular, I bear in mind the various matters he set out on pages 27 to 45 of his detailed written final submission regarding the alleged agreement, and the parts played by the individual purchasers. I wish to say specifically that I have taken into account carefully what he (and his junior) submitted on those pages, as well as what he submitted orally during final submission in supplement to what had been written. I will not repeat what he said here.

146. I agree that given the existence of a conspiracy as claimed with the objective as alleged, and given the extraordinary energy and haste with which Government departments sought to deal with the complaints, it is only natural that there is no evidence of every single act done by the purchasers or the complainants. I accept that common sense and logic suggest that there may well have been other actions or complaints etc. on which Mark Honour has no knowledge. I can understand that Mark Honour's case is constructed from individual actions which its detective work has unearthed.

147. Mark Honour's approach is to ask this Court to take a broad view of the activities of the Plaintiffs ( what their individual and combined motivation was, the highly suspicious nature of much of the proven activities, the timing, the alleged evasiveness under cross-examination and their general behaviour, and to find inferentially that each of the Plaintiffs (or some of them) conspired to cause disruption to the construction process, with a view to preventing Mark Honour from completing the construction work and obtaining the OP on time.

148. I am quite receptive to taking a broad view of the matter. I can understand that given the nature of things, direct evidence of an agreement or combination is difficult to find. Mark Honour's case is really a case of inference. Yet the burden of proof does not shift: it is for Mark Honour to establish the alleged conspiracy or agreement. Nor does the standard of proof change, i.e. the civil standard of proof. The difficulties faced by Mark Honour in proving its case do not affect any of this; they simply mean that Mark Honour has a difficult case to run.

Second group of purchasers

149. I can say at once that so far as the so-called "second" group of purchasers who only joined the other Plaintiffs on or after 28 August 2000 is concerned, i.e. Mr Wun, Patty Keung, Mr Shen, Madam Tang and Mr Chui, Mr Shek, and I would include within it Mr Sze, as well as their co-purchasers of their respective units, I have no doubt, having listened carefully to their evidence and having considered the entirety of the evidence, that they were not involved in whatever plan that may have been in being or actions that took place prior to their joining the "first" group of purchasers on or after 28 August, save for the individual acts done by themselves respectively - such as, for instance, the various letters written by Mr Shek himself, and the complaint to the Next Magazine by Patty.

150. I have no hesitation in accepting their evidence that prior to 28 August, they (with the exception of Mr Sze) did not know any of the other Plaintiffs. If they featured in the chronology regarding events prior to 28 August, they were acting individually.

151. I reject the rather vague suggestion made during the course of trial that when they joined the first group on or after 28 August, they somehow "adopted" or "ratified" what had been done by the others in the first group prior to their joining. There is no or no sufficient evidence of any such adoption or ratification. In any event, I find against the suggestion on the evidence before me. In other words, their joining had no retrospective effect.

152. The above finding is in fact quite sufficient to defeat Mark Honour's case against this second group of purchasers, once one takes into account the question of causation, which will be dealt with at greater length below. But at this stage, I can briefly say that because the deadline for completion was 27 August, their only joining the group (with no retrospective effect) on 28 August or thereafter must mean that whatever they did together with others after their joining did not have any causative effect on the failure of Mark Honour to complete the construction and obtain the OP on or before 27 August. For that reason alone, Mark Honour's case on conspiracy against these Plaintiffs must fail.

153. But for the sake of completeness, I will make findings on what happened subsequently. Having heard the purchasers' evidence and having considered the evidence in its entirety, I am far from satisfied, even on a balance of probabilities, that there was any conspiracy, agreement or combination amongst the purchasers, on or after 28 August, to disrupt the construction works, which were still being carried on until October when the OP was eventually obtained.

154. Their actions of seeing lawyers, going to the Consumer Council, meeting with the developer, commencing litigation with Mark Honour, and so forth, were, in my judgment, natural and understandable reactions to the rapidly developing events after the lapse of the original deadline on 27 August. I am unable to conclude from the available evidence - particularly taking into account the oral evidence given by the Plaintiffs in the box, that on the balance of probabilities, there was any agreement or combination, reached amongst the purchasers on or after 28 August, to disrupt the construction works.

Patty, Mr Wun and Mr Shek's individual actions

155. As regards the various individual letters sent by Patty, Mr Wun and Mr Shek in September, as well as Mr Wun's report to the ICAC, having carefully considered their evidence in Court (as well as the entirety of the evidence), I believe their explanations. I should add that although on paper - particularly when one reads some of the complaint letters - the cases of some of them do not look particularly attractive or promising, I did, at the trial, have the benefit of observing these purchasers giving oral evidence in the box, including their evidence given under probing and vigorous cross-examination skilfully conducted by Mr Grossman, and I have come to the firm view that so far as credibility is concerned, these purchasers (i.e. Mr Wun, Mr Shek and Patty) were all honest and credible witnesses, who have been harbouring a lot of grievances and frustrations arising out of the whole event.

156. At this juncture, I also wish to say something in response to the repeated submissions of counsel and suggestions from Mark Honour's side. In my judgment, it is over-simplistic to use the drastic drop of market prices (according to the evidence, the prices dropped by as much as 40 to 50%) as the motive behind the alleged conspiracy of the purchasers. I do accept that the dropping market price was one material and even important factor that operated on the minds of most if not of all of these Plaintiffs (although some of them were reluctant to admit it in the box). However, one cannot under-estimate the frustrations and grievances felt by these purchasers arising out of the delay in completion of the construction process - regardless of why Mark Honour was late. As I say, I do accept their evidence that when they bought the units back in early 1998, they were indeed promised a likely completion date of 30 November 1999. When they signed the formal sale and purchase agreements, they found out that the deadline for completion was 6 months later than they had once been given to believe, i.e. 30 May 2000. When May 2000 approached, they could see, according to the evidence which I accept, with their layman's eyes, that the building under construction was nowhere near its completion in order to meet the completion deadline. Then one after another EOT arrived. Their plans for raising finance, moving houses, etc. were thus seriously disrupted, while all the time the property market continued to slide. Worse still, from a layman's point of view, these purchasers no doubt felt most helpless in having no meaningful say in the grant of further EOTs by the AP (whom the purchaser understandably regarded as being on the side of the developer, as were Messrs Chan, Lau and Wai). The responses that they got from Mark Honour, the AP and the solicitors (who were supposedly also their solicitors) were hardly model examples of good PR. The ever-mounting frustrations, grievances and hard feelings that they felt and experienced is not difficult to imagine and understand.

157. Whilst all this may also have given an additional motive for the purchasers combining together as alleged by Mark Honour, it does, alternatively, provide a possible explanation for the (individual) actions of the purchasers, such as Patty's making a complaint to the Next Magazine regarding her "dream house" turning into a nightmare.

158. Returning to this so-called second group of purchasers, as I said, I have no doubt, and I so find, that the various letters and complaints written and made by Mr Wun, Mr Shek and Patty in September and early October, had nothing to do with an alleged conspiracy, agreement or combination. They were written and made for reasons that were explained by these purchasers in the box. I believe their explanations. In particular, I should point out that I agree with Patty that if individual purchasers are themselves competent enough to write the complaint letters, I do not see why they must ask their lawyers to write them on their behalf, thereby incurring unnecessary legal costs. I do not see why instructing a lawyer in one's dispute with Mark Honour should exclude other actions of self help.

159. That the contents of these complaint letters and the visit to the ICAC may not be objectively justified is certainly a matter that I should take into account in deciding whether I should believe these purchasers' explanations. Indeed I did. In my view, these complaints obviously reflected the perceptions of the hapless purchasers from their angles at the time. A lot of conjectures and misunderstandings were involved. So were their emotions and grievances.

160. I have also carefully taken into account the fact that the letters were purported to have been written on behalf of other purchasers. I accept the purchasers' explanations. It is not difficult to understand why they wanted to say that they represented others, so as to attract more attention to what they were complaining about from the recipients. On balance, I do not accept that they evidenced, whether by themselves or together with other evidence, a conspiracy or agreement amongst the purchasers.

161. Mr Shek's letter to the chairman of the Asia Standard group is, in my judgment, no more than an immature and impulsive letter written out of anger and frustration, rather than any conspiratorial intent. To be fair, he never carried out any of the threats set out in the letter. I accept his evidence that he had since regretted writing the letter.

162. As regards Mr Wun's anonymous letter faxed to the Buildings Department on 8 September, I believe his evidence that he had forgotten about the letter before it was disclosed, amongst many other papers, by the Buildings Department on the first day of the trial. In fact, if he was dishonest, there was no need on his part to confess the authorship of the fax, thereby exposing himself to vigorous cross-examination in the box. Having closely observed his demeanour in the box, particularly during cross-examination, I believe his evidence and explanation.

163. Finally, as I observed earlier, both Patty and Mr Shek are highly educated and sophisticated persons, who are capable of writing and expressing themselves well in English. They are more than capable of making the complaints that they did make by themselves. Whilst this does not by itself mean that they would therefore not enter into any agreement or combination with others, it does provide a possible explanation for the complaint letters. And as I say, on the whole I believe their explanations.

Mr Chui, Mr Shen and Mr Sze

164. Before I leave this group of purchasers, I should first make a mention of Mr Chui, the last-named 8th Plaintiff. He was identified positively by Mr Lau, the foreman, as being present near the site during mid to late August, when the complaints about the site reached their height. Mr Shen was likewise identified. The identification was made from copy identity cards of the purchasers kept by Mark Honour. I have looked at the actual copies used by Mr Lau for identification. The quality of the photocopies was most average. Having considered the evidence as a whole, and particularly the circumstances under which Mr Lau claimed that he managed to identify the purchasers in question, I have no difficulty in concluding by way of findings that firstly, the identification is far from conclusive, and secondly, so far as Mr Chui and Mr Shen are concerned, Mr Lau's identification was mistaken.

165. As regards Mr Sze, although he was aware of the advertisements placed by Mr So, and he was in contact with Mr So prior to 28 August, I accept his evidence that he did not take part in any of the meetings of the first group of purchasers, and he only joined them on 28 August. His evidence was corroborated by the evidence of those involved in the first group. The evidence has not been challenged or challenged effectively. I find in favour of Mr Sze's evidence. No case of conspiracy, whether pre-27 August or post-27 August, has been made out against him.

Conclusion regarding the second group of purchasers

166. For the above reasons, Mark Honour's case against this group of purchasers must fail. In any event, because of the difficulty with causation (already outlined above), regardless of this part of my findings, Mark Honour's case against the second group must fail.

Conspiring the impossible?

167. It thus becomes quite unnecessary for me to deal with Mr Grossman's submission on whether it was possible for this second group of purchasers to commit the tort of conspiracy when the aim of the conspiracy (i.e. to prevent Mark Honour from obtaining the OP by the contractual deadline as per the requirements of the formal sale and purchase agreements) had already been achieved before the conspiracy - by definition formed on or after 28 August - was entered into. (It should be remembered that the 6th EOT was granted on 11 September 2000 and if it was valid - nobody knew it was not until Muttrie DJ ruled on the point many months afterwards - Mark Honours would have had until November 2000 to obtain the OP.)

168. Mr Grossman referred me to the law on criminal conspiracy, as he said this is a novel point. Counsel thus took me to Archbold (41st ed.) p. 2040 and the cases discussed on that page. I need not express any views on the so-called novel point raised by Mr Grossman, as it does not arise on the facts as they have been found by me, save to observe that criminal conspiracy is quite different from civil conspiracy because in the former, the crime was committed once the agreement was reached, whereas in the latter, the tort was not complete unless the combination or agreement was followed by overt acts done pursuant to the same, which resulted in loss and damage to the victim. I can foresee real difficulty on the part of a plaintiff seeking to establish a case of civil conspiracy against alleged conspirators who only combined together after the aim of combination had, independent of their combination (and unbeknown to them), been achieved, or had become impossible to achieve, in terms of the requisite elements of the tort regarding overt acts and causation of loss. But as I say, this point does not arise on the facts as I have found them, and I do not wish to express any definite view on the matter.

169. So much for the case against the 8th Plaintiffs, the 9th Plaintiffs, the 10th Plaintiffs, the 11th Plaintiffs, the 12th Plaintiffs and the 15th Plaintiffs.

First group of purchasers

170. I now turn to the so-called first group of purchasers.

The Lais

171. I would start with the Lais (the 4th Plaintiffs). I have no doubt, after seeing the Lai brothers in the box, that given their education and background, they played a most inactive role in the whole matter. Apart from attending several meetings and making contributions (of several hundreds per occasion) towards the costs of writing letters regarding the EOTs by Messrs Au-Yeung, they did nothing. It is true that Mrs Lo kept them informed about the general progress, and explained to them the letters written in English regarding the EOTs from the developer's solicitors, on the evidence they did not do anything of their own in response. As has been explained by Clerk and Lindsell in para. 24-120:

"On the other hand, persons who participated in meetings which formed part of the combination but who played no active role will not be parties to the conspiracy. The question is whether a particular defendant, having regard to his knowledge, utterances and actions, was sufficiently a party to combination and the common design."

172. On the facts, whatever conspiratorial intent there might have been on the part of the other purchasers in the first group, I am quite sure, and I so find, that the Lais were not parties to any such conspiracy or combination.

173. Mark Honour's case of a conspiracy amongst the purchasers or their acting in concert, insofar as it relates to the 4th Plaintiffs, must fail on that ground.

The rest

174. As for the rest, namely Mr Yau, Mr So, Mr Cheng and Mrs Lo, I have seriously considered, particularly bearing in mind the chronology of events and complaints, the contents of the various complaint letters, the various complaint records, the evidence - documentary and oral (from the Buildings Department) - of the Government authorities and departments, and the entirety of the evidence, whether there existed at any one stage an agreement or combination amongst them (or some of them) to disrupt the construction works, with the ultimate aim of preventing Mark Honour from obtaining the OP on or before 27 August, thereby giving them a pretext not to complete the sale and purchase agreements.

Mr Yau and the anonymous complaints

175. On the individual complaints made by Mr Yau, I must say I find his explanations for making the complaints quite unsatisfactory and indeed disingenuous. In my judgment, and I so find, the individual complaints made by Mr Yau were made by him with an ulterior motive, namely to disrupt the construction works, the ultimate aim of which was to prevent Mark Honour from completing in time. In particular, I prefer Mr Lau's evidence to Mr So's denial that he did, on 21 August, admitted to Mr Lau that he (and his fellow purchasers - whoever they may have been) did not want Mark Honour to obtain the OP on time. Whether the conversation is sufficient to prove a conspiracy between Mr Yau and some others is another matter.

176. However, there were other anonymous complaints, as has been set out in the chronology. I am unable to conclude, on the entirety of the evidence before me, that these other complaints were made by Mr Yau. After all, apart from Mr Yau, there were also Mr So, Mrs Lo and Mr Chan. And apart from the three of them, there were also, even based on Mark Honour's own case, another 4 disgruntled purchasers who are the plaintiffs in the other High Court action awaiting trial. And apart from those 4 purchasers, there were another 9 purchasers between whom and Mark Honour disputes had arisen out of Mark Honour's failure to meet the deadline of 27 August, which disputes were subsequently settled. On the evidence, there was at least one known complaint to the Buildings Department which was made by one of these other purchasers who have subsequently settled their disputes with Mark Honour (Bundle D, p. 84).

177. Despite the dim view I took of Mr Yau's credibility in the box, and notwithstanding the vigorous cross-examination that he went through in evidence, I am unable to find, on a balance of probabilities, that he was the maker of the other anonymous complaints. An undeniable objective fact is that Mr Yau has made many complaints in his own name to the authorities. Concealing his identity does not seem to have been a matter of particular concern to him when he made the complaints.

178. For similar reasons, I am unable to conclude that the anonymous complaints were made by Mr So, Mr Cheng or Mrs Lo. From the evidence, I am simply unable to make any such finding. Nor am I able to find, on the evidence, that these anonymous complaints (or some of them) must have been (in the civil sense) made by one or more of them (including Mr Yau), whether in conjunction with some other unknown persons or not, and whether pursuant to any combination or not.

Mrs Lo and her complaints

179. I have also approached the matter from another angle, i.e. to see whether I can find, as counsel for Mark Honour has urged me to, a conspiracy or agreement or combination amongst the four of them (or some of them) from the known evidence and complaints. I have given much thought to the role or part actually played by Mrs Lo. She has no doubt played a very active part in the whole matter. She was the coordinator of the purchasers. She drafted the concern letters, and after seeking advice from a lawyer, she sent them out to various Government departments. She wrote the letters in the name of a group of purchasers. She used a post office box as the contact address, which was opened on her behalf by Mr So. On the other hand, Mr So had transferred his mobile line to Mrs Lo on the first occasion when they allegedly met as strangers after the placing of advertisements. Mrs Lo did not stop with her initial concern letters, but continued to write to the Consumer Council as well as the Fire Services Department, and visited the department and the Buildings Department together with Mr So, Mr Yau and Mr Cheng at the height of the activities both on and off site. The complaint letters lacked objectivity and were quite inaccurate in terms of the subject matters of complaint. Although written anonymously, the letter of complaint dated 11 September 2000 to the Institute of Architects must also have been written by Mrs Lo - see the post box number used.

180. On paper, I must agree with Mr Grossman's submission that all this painted a very bad case against Mrs Lo.

181. On the other hand, I have had the opportunity of watching closely Mrs Lo give evidence at the trial. Counsel said on her behalf that she had been suffering from depression, and Mr Grossman very gentlemanly conducted his cross-examination in a way which was much milder than it would have been the case if Mrs Lo were not said to have been suffering from depression. Mr Grossman has repeatedly asked this Court to bear that in mind in assessing the credibility of Mrs Lo in the box. I wish to say expressly that I have borne that in mind very carefully and seriously. But of course there is a limit to what this Court can or should do. On the facts and circumstances of this case, it would be quite unfair to Mrs Lo for me to speculate on how she would have fared and what she would have said in cross-examination, if she had not been suffering from depression, and if she had been subjected to more vigorous cross-examination that Mr Grossman was fully capable of meting out to her. There is simply no way that this Court can postulate the possibilities. I should also add, lest it be misunderstood, that Mr Grossman's cross-examination, though relatively "mild" in form, was nonetheless probing and searching in content.

182. I must say that having seen and heard Mrs Lo in the box, particularly having listened to her grievances and hard feelings arising out of the very much delayed construction of Bayshore Apartments, I can see the whole matter from a rather different light. I have already explained above, that in my view, it is wholly over-simplistic to use money as the sole motive for the suggested conspiracy. In fact, much frustration and grievances were involved. This was as true with purchasers like Patty as it was, in my judgment, in the case of Mrs Lo. It is her evidence that she in fact prepared the draft letters to the various departments prior to learning of the advertisements placed by Mr So. She explained why she was prepared to have the mobile line of Mr So transferred to her for a few days while Mr So was away, so as not to miss any calls by any interested purchasers made in response to the advertisements. She explained in the box that she did, in the presence of everyone, openly consult the lawyer from Messrs Au-Yeung regarding her draft letters to the various departments. She explained why she asked Mr So to do her a favour by opening a post-box as the contact address for her letters to be sent out. She said in the box that she was apprehensive of trouble and inconvenience if she used her real name and address in the concern letters. She explained that she wrote in the name of a group of purchasers so as to add weight to what she wrote. She gave evidence on the events in August and what prompted her (and some other purchasers) to attend the Fire Services Department and the Buildings Department on 24 August.

183. Whilst all this may not read very convincing on paper, her story did sound credible to me during trial whilst watching Mrs Lo in the box and listening carefully to the evidence that she gave. She impressed me as a credible and honest witness, who was caught up in a very difficult situation arising from the delay in construction of Bayshore Apartments. The important thing to remember here is that her actions could be explained not only by a conspiracy theory, but also as the responses of a frustrated and desperate purchaser, seeking help and assistance - with the exertion of due or undue pressure - from Government authorities, against a property developer, in respect of a property that she had purchased with millions of dollars. Her actions may well not have been justified on their merits. But to say that she was engaged in a conspiracy with other purchasers, and those actions formed part of the plan or agreement, is quite another matter.

184. I have of course not forgotten that apart from her oral evidence in Court, I must also take into account the rest of the entire evidence, before I should make any finding on whether she was a party to any conspiracy. Furthermore, whilst I am discussing the various purchasers one by one out of necessity in this judgment, I do not reach my findings on fact in a pigeon-hole manner. I bear in mind the entirety of the evidence and make my findings. Having thus explained my approach, I should say that having applied the burden and standard of proof, I am not satisfied that a case of conspiracy has been made out against Mrs Lo. In other words, I find against the suggestion of any conspiracy against Mrs Lo on the facts.

Mr Yau, Mr So and Mr Cheng

185. The cases of Mr Yau, Mr So and Mr Cheng are quite different. Their respective cases on paper do not look good, just like the case of Mrs Lo. In the box, as I mentioned, Mr Yau Wai did not impress me as a witness at all. Mr So fared better, so did Mr Chan. But on the entirety of the evidence, I am prepared to find that sometime after the meeting in late May, the three of them, possibly with some others, did gang together to make complaints to authorities regarding the construction works at site, with a view to preventing, if they could, Mark Honour from completing the construction by 27 August. As I say, all three of them were positively identified by Mr Lau at the site. Despite my reservation regarding the quality of the identification, considering the picture as a whole, I accept Mr Lau's identification and reject their evidence of denial. In other words, I find as a fact that these three gentlemen, possibly with some others, were present near the site together at one time or another between 21 and 24 August, the object of which was to make complaints to the authorities, with a view to causing disruption to the construction works. I cannot exclude the possibility that some of the anonymous complaints were made by Mr So or Mr Cheng. But as I say, I am unable, on the evidence before me, to make any such finding in favour of Mark Honour.

186. This finding of mine is totally consistent with my earlier finding that Mrs Lo was not a party to any conspiracy, despite the fact that the three gentlemen did go together with Mrs Lo to the Fire Services Department and then two of them went with her to the Buildings Department on 24 August. In my judgment, and I so find, Mrs Lo made these complaints on her own initiative, quite independent from the combination of the three gentlemen. Quite understandably, she found it desirable to invite them to accompany her to the two departments in relation to her own complaints. I should add that in considering whether Mrs Lo was a party to any conspiracy, I have carefully borne in mind what I find against the three gentlemen and how that finding would impact on the question of whether Mrs Lo was a party to the combination. In particular, I have carefully considered the probability (and improbability) of the three gentlemen not inviting Mrs Lo to join them in their combination, and that of Mrs Lo being unaware of their combination. I have come to the conclusion that Mrs Lo was not a party to it.

187. It is quite impossible for me to find, on the evidence, on when the three gentlemen agreed to disrupt the construction works. It could be anytime between the meeting at the church in late May and 21 August. I am unable to pinpoint the time, and I make no finding. It is possible and indeed probable, but I am unable to make any finding, that this idea of combining together to cause disruption to the construction works, was one that developed with time. At first, it might simply have been the own idea of Mr Yau, who started making complaints to the Labour Department and the police on as early as 9 June. As I say, I cannot exclude the possibility of Mr Yau or the other two being the makers of the anonymous complaints (or at least some of them) - I am unable to make any finding on the evidence as a whole. But by the time the three were seen by Mr Lau near the site on 21 August and the following few days, and given Mr Yau Wai's conversation with Mr Lau, I have no doubt (in the civil sense) that by then the three must have combined together with a view to disrupting the construction works at site.

188. A distinct possibility regarding the anonymous complaints and the resulting visits and inspections - and in this regard, it should be noted that according to the records of the relevant departments, some of the visits and inspections were not carried out as a result of any complaints, contrary to the assertions of Francis Ho and Mr Yu (the foreman), is that the visits and inspections by the authorities and departments were in fact the result of the concern letters written by Mrs Lo in late May or early June. That would reconcile the differences between the authorities' records and Francis Ho's and Mr Yu's assertions of what they had been told by those carrying out the visits and inspections. And of course, if Mrs Lo was not a party to the alleged conspiracy, all these so-called anonymous complaints - in so far as they were attributable to Mrs Lo's letters of concern, cannot be counted towards the alleged conspiracy.

189. Regarding the case of Mr So, the avowed intention of his two advertisements was to take concerted action to rescind the sale and purchase agreements. Although I do not accept Mark Honour's argument that everybody who responded to the advertisements must have had the necessary intent to rescind by means good or bad the agreements in concert with others, it would indeed be a small step for Mr So personally to take from placing the advertisements to being involved in some form of combination or agreement with some like-mind purchasers to take actions in concert with a view to rescinding the agreements. Again from that, it would be another small step for Mr So and any such purchaser or purchasers to take by adopting disruption of the construction process as the means to achieve the aim to rescind the agreements. And another small step to take would be to adopt the making of complaints as the means to cause disruption.

Further considerations

190. I have already referred to the conversation in January 2001 between Mr So and the undercover. When Mr So referred to the purchasers as "a group" in his conversation with the undercover, he was, in my judgment, using the phrase rather loosely, without any differentiation between those who were there from the outset (i.e. the first group) and those who only "joined" on or after 28 August (the second group). What he said must be understood in the context. I have already set out my caveat on the conversation and whatever admissions that Mr So may have made in the conversation, regarding the effect of the benefit of hindsight. Statements like "everyone did his or her part in making complaints" would suggest, if read out of context, that there was indeed a conspiracy or combination among the purchasers. In considering whether there was any pre-27 August or post-27 August combination or agreement, I have carefully taken into account the conversation and its context as part of the whole picture. I have come to the conclusion that whether by the conversation itself or in combination with the rest of the evidence, there was insufficient material for me to find any such combination or agreement against the purchasers save to the limited extent involving Mr Yau, Mr So and Mr Cheng.

191. I have also considered the appearance of or the increase in activities and complaints after the meeting at the church in late May. I accept that this is a piece of circumstantial evidence of the existence of an agreement or combination of some sort to disrupt the construction works by complaints. On the other hand, this is not the only possible inference to be drawn, particularly when there were quite a few anonymous complaints involved. Moreover, the fact that there was in existence a conspiracy or combination of some sort does not necessarily mean that all the participants of the meeting at the church in late May were parties to the combination. I have borne all this in mind in reaching my findings.

192. Mr Grossman has urged me during final submission to draw an adverse inference of the existence of a conspiracy or combination from the lies told by some of the Plaintiffs in the box.

193. While I agree that in so far as I find the Plaintiffs or some of them to be lying on a particular point, the lies would be evidence against them based on which, together with all other evidence, I could, if satisfied on the burden and standard of proof, draw the appropriate inference, the lies themselves could by no means be conclusive of anything.

194. I accept the evidence of the purchasers that their not wanting to complete the sale and purchase of the flats, the construction of which had been very much delayed, if lawfully so entitled to do, was not mutually inconsistent with their maintaining a serious concern about the quality of construction. For after all, even up to the time of the trial, there was no guarantee that the purchasers would be successful in their effort to rescind the sale and purchase agreements. In those circumstances, understandably they were also concerned about the quality of construction. In my judgment, the apprehension that when faced with a deadline to meet, the developer might choose to sacrifice quality for expediency was a real one. The complaint letters, which might not be totally justified in terms of the merits of their subjects of complaint, must be read in such a context.

195. While I can understand the anguish, frustrations and grievances felt by the construction team on Mark Honour's side regarding the disruptions to the construction works, the ultimate question to ask and answer remains whether there was indeed a combination or agreement as alleged on the part of the Plaintiffs (or some of them) which gave rise to the alleged disruptions.

Conclusion regarding the first group of purchasers

196. In conclusion, on the facts, I find that sometime between late May and 21 August 2000, Mr Yau, Mr Cheng and Mr So combined together with a view to causing disruptions to the construction works, the ultimate aim of which was to prevent Mark Honour from obtaining the OP on time.

197. The above, I am afraid, is the extent to which I am prepared to go along with Mark Honour's case on conspiracy. I am unable to be more specific with my findings regarding the alleged conspiracy.

Delays and causation

198. I now move on to the alleged delays and the causation of the same.

The "but for" test

199. As mentioned before, the net effect of the evidence of Kevin Leung, Ronald Liang, Francis Ho and Mark Honour's expert (Mr Cheng) is that as a result of the alleged disruptions, the project was delayed by a total of 60.5 days, of which 24 days took place prior to the lapse of the deadline on 27 August. It is Mark Honour's case, and the evidence of its witnesses, that but for the delays so caused, Mark Honour would have beaten the deadline. Indeed, as mentioned above, according to the revised programme of works as at 25 May 2000 (see exhibit "D6"), the OP was scheduled to be obtained on 12 August. That revised programme is of particular significance because it was prepared immediately before or at around the time when the alleged disruptions started taking place. It provides a ready and contemporaneous reference point for determining what would have happened if the alleged disruptions had not taken place.

200. The "but for" element in Mark Honour's case, as outlined above, is an essential element in that unless Mark Honour should succeed in establishing, on a balance of probabilities, that as a matter of fact, "but for" the alleged disruptions, it would have obtained the OP on or before 27 August, Mark Honour's case on conspiracy would collapse in total, by reason of a missing link between the alleged disruptions and the resulting inability to obtain the OP by the deadline (and thus the right on the part of the purchasers to rescind the agreements). Passing the "but for" test is an essential, though not sufficient requirement in terms of causation: McGregor on Damages (17th ed.) paras 6-006 and 6-007.

201. According to the revised programme as at 25 May 2000, both the removal of the hoarding/scaffolding and the issue of OP (work items 22 and 24) lay on the critical path of the construction works. The revised programme scheduled the removal of the hoarding/scaffolding between 19 and 27 July, whereas the OP application procedure was to last from 24 July until 12 August, when the OP was expected to be granted. Given the overlap in terms of time between the two items, i.e. the OP application would be made even prior to the completion of the removal of the hoarding/scaffolding, one way of reading the revised programme is that between the completion of the removal work and the expected issue of the OP, there would be 16 days.

202. Another relevant yardstick in the present context is the evidence given on behalf of Mark Honour regarding the approximate time between completion of the concreting work of the roof and the issue of the OP. All the relevant witnesses, including Francis Ho, gave an estimate of between 90 and 100 days in normal circumstances.

203. Yet another important piece of information here is that between June and mid August 2000, there were a total of 15 days of inclement weather together with another 19 days of subsequent effects due to the inclement weather. Indeed a corresponding extension of time was granted by the AP in the (invalid) 6th EOT in respect of the inclement weather and its subsequent effects during this period of time. In other words, weather directly and indirectly affected works by a total of 34 days during this period of time.

204. Based on the witnesses' own estimations as well as these objective figures, Mark Honour seeks to prove a case, on a balance of probabilities, that "but for" the alleged disruptions, it would have completed the construction works and obtained the OP by the deadline of 27 August.

205. In respect of Mark Honour's case as thus outlined, the first thing to note is that even according to the revised programme as at 25 May, prior to the alleged disruptions, the obtaining of the OP was scheduled to take place on 12 August only, i.e. 15 days prior to the lapse of the deadline on 27 August. From any angle, that was a very tight schedule, as has been admitted repeatedly by witnesses called by Mark Honour.

206. According to the "As-built bar chart with critical activities affected" prepared by Francis Ho (see exhibit "D6"), as a result of the alleged disruptions and also as a result of the inclement weather (and its subsequent effects) between late May and August, the hoarding/scaffolding removal work was only completed on 29 August, whereas it had been scheduled to complete on 27 July as mentioned before. As I said, up to the expiry of the deadline on 27 August, there were, according to Francis Ho's bar chart, 24 days' delay resulting from the alleged disruptions. According to the evidence, up to 29 August, when the removal work was completed, there were 26 days' delay. Working backward - if these 26 days' delay had not taken place, the removal work ought to have been completed on 3 August.

207. Pausing here, a word must be said regarding the inclement weather and its subsequent effects. It should be noted that the "As-built bar chart" has already taken into account the inclement weather and its subsequent effects. Put another way, once the 26 days have been deducted, the delay in completing the hoarding removal work from 27 July (as scheduled on 25 May) to 3 August (after the deduction) may be understood as delay that was wholly attributable to inclement weather and its subsequent effects. On the face of it, this was quite some achievement on the part of the contractors because there were in fact a total of 34 days of inclement weather and its subsequent effects during the relevant period of time. But this achievement must be viewed in the peculiar context of the disruptions - see paragraphs 213 and 214 below.

208. Returning to the analysis of the dates, according to the revised programme as at 25 May, as I pointed out above, between completion of the removal work and the issue of OP, there should be 16 days. In other words, if everything had gone according to schedule, given that the hoarding should have been completed on 3 August, the OP ought to have been issued on 19 August or thereabout. In other words, on this analysis, "but for" the disruptions, Mark Honour should have been able to obtain the OP before the deadline of 27 August, beating it by 8 days or thereabout.

209. However, this analysis is subject to quite a number of other factors or considerations. First, the margin of 8 days is an extremely narrow one, given a scheduled construction period of 15 months, and an actual construction period of about 20 months (February 1999 to October 2000) regarding the super-structure only. The Court is in effect being asked to make a finding, albeit on the civil standard of proof, that Mark Honour would have, but for the alleged disruptions, beaten the deadline by a margin of that sort of magnitude. I should emphasize here that of course, the Court need not make a finding that is as precise as 8 days or any other number of days in order to conclude, if it deems right, that Mark Honour would have, but for the disruptions, obtained the OP by the deadline. Yet, the Court must decide whether it can reach such a conclusion as a factual finding given the sort of margin one is talking about here. The burden of proof certainly lies on the shoulder of Mark Honour. The very narrow margin alone gives me much reservation on whether the Court can come to a finding that Mark Honour would have beaten the deadline, but for the alleged disruptions, basing on the above analysis of the figures and dates.

210. Mr Lui, junior counsel for Mark Honour, submitted in final submission that the figures and dates in the revised programme as at 25 May 2000, based on which the above analysis was done, were only estimated figures. It could have taken, for instance, less than 16 days to obtain the OP after completion of the hoarding removal work. I entirely agree. But a similar argument may equally be run in respect of the opposite possibility of things not working according to plan. It is for Mark Honour to prove its case by evidence, on a balance of probabilities. The fact that given the nature of things and because of uncertainties of all sorts, Mark Honour may have a very difficult case to run and prove is neither here nor there, and certainly does not lower the standard of proof which Mark Honour has to overcome.

211. According to, for instance, Kevin Leung's evidence, the normal period of time for obtaining the OP would be three to four weeks from the date of application. Yet according to Francis Ho's revised programme as at 25 May 2000, the time allowed for obtaining the OP was only 20 days. To be fair, he scheduled the issue of OP on 12 August, more than two weeks before the deadline. But this does illustrate my point that in fact even on a balance of probabilities, one cannot say that in normal circumstances, and without the disruptions, everything would work according to plan (i.e. Francis Ho's revised programme), so that the OP could be obtained within 20 days time. Given that we are talking about a margin of a magnitude of 8 days or thereabout, any over-running beyond the 20 days period scheduled by Francis Ho in his programme would quite fatally affect Mark Honour's case on causation. Kevin Leung's own estimate of three to four weeks is by itself sufficient to give Mark Honour's best case scenario much cause for concern.

212. Mark Honour's difficulties certainly do not stop with the above analyses. As mentioned before, Mark Honour's own witnesses all estimated that the normal time needed for obtaining the OP after the completion of the concreting work of the roof would be 90 to 100 days. The concreting work of the roof was completed, according to the evidence, by late May or early June. From 1 June to 27 August, there were 88 days. Yet as mentioned before, there were a total of 34 days of inclement weather and its subsequent effects, leaving a net period of 54 days, as opposed to the normal 90 to 100 days required to obtain the OP counting from the time of completion of the concreting work of the roof.

213. Mr Chain, on behalf of the Plaintiffs, did not go so far as to say in final submission that in no circumstances could a contractor manage to obtain the OP within such a period of time. But he emphasised that the burden of proof lies with Mark Honour. I agree. It is for Mark Honour to convince this Court, on a balance of possibilities, that but for the disruptions, its contractor would have overcome the shortage of time and managed to obtain the OP in a net period of 54 days (or thereabout).

214. At the trial, there was some evidence that because of the disruptions to the construction works, Mark Honour and its contractors had deployed extra manpower to work at the site and resorted to working at night (very often without the requisite noise permits), in order to beat the deadline. However, one must remember the context in which one discusses whether Mark Honour would have beaten the deadline. The present discussion is aimed at finding out whether, but for the alleged disruptions, Mark Honour would have completed on time. In other words, one has to place oneself in the hypothetical situation where there had been no disruptions and ask oneself whether Mark Honour would have obtained the OP on time. By definition, there had not been any disruptions. And on that hypothesis, there is simply very little if any evidence as to what Mark Honour and its contractors would have done in terms of increasing manpower and working day and night at the site in order to beat the deadline.

215. Put another way, the focus of inquiry is: if there had not been any disruptions, and if Mark Honour and its contractor had not perceived (as they did at the time as a matter of fact) that there was some plan or conspiracy to disrupt the programme of work on site with a view to enabling the purchasers to rescind their agreements, whether Mark Honour and its contractors would have deployed extra manpower and worked overtime at the site in order to obtain the OP by 27 August, particularly bearing in mind the inclement weather (its subsequent effects) during that period of time which would have entitled Mark Honour (and the contractors) to an extension of the deadline in the normal course of events. In this regard, it must not be forgotten that nobody claims that at that time anyone realised that any such extension of time would have to be granted prior to the expiry of the original deadline in order to be valid.

216. Given that sort of context in the hypothetical situation in question, can one really safely conclude, even on a balance of probabilities, that Mark Honour would have expended extra effort on the site in order to complete the construction work and obtain the OP on or before 27 August - when ex hypothesi, both Mark Honour and its contractors would have been quite entitled to obtain - yet would have likely failed to obtain by reason of lateness in application - an extension of time from the AP by reason of the inclement weather?

217. It is true that the witnesses called by Mark Honour all claimed that they believed that but for the disruptions, Mark Honour would have obtained the OP on time. I bear in mind what they said, particularly given their personal as well as professional knowledge and experience in the matter and in building and construction works generally. However, I do bear in mind also that Kevin Leung, Francis Ho and Ronald Liang were all personally and directly involved in the project, and were obviously still feeling aggrieved by the disruptions as well as the complaints and allegations that had been levelled to varying extent against them personally and their companies. As for the expert evidence, having read the expert reports as well as listened to the oral evidence given, I have to say that I could sense a general readiness, if not over eagerness, on the part of the expert to agree with almost everything that was put forward on behalf of Mark Honour in relation to the disruptions and the alleged delays. I thus approach the expert's evidence with some caution.

218. Perhaps more importantly, however, is that none of these witnesses, apart from asserting their general belief, went into the type of analyses of the hard facts and figures as I have tried to do in the above paragraphs.

219. As I said, I do pay due regard to what these witnesses said about what Mark Honour would have been able to do but for the disruptions, but what they said only forms part of the evidence that I must consider as a whole in order to arrive at a finding.

Conclusion (1)

220. Having considered the entirety of the evidence, I am not satisfied, on a balance of probabilities, that Mark Honour would have, but for the alleged disruptions, beaten the deadline.

Loss of a chance - a quantum question

221. Factual causation (i.e. the "but for" test) is a question of fact to be decided by the Court according to the standard of proof, i.e. on a balance of probabilities. The Court is not concerned with, at this factual causation stage, the loss of a chance to complete the construction works and obtain the OP by 27 August 2000 as such, which is a question of quantum of loss that would only be relevant if the issue of causation (both factual and legal) has been overcome. See Allied Maples Group Ltd. v. Simmons & Simmons [1995] 1 WLR 1602, 1608b/c to 1611a.

222. In so far as Mark Honour's submission was to the contrary, I reject it.

Further difficulties on delays and causation

223. Conclusion (1) is quite sufficient to dispose of Mark Honour's case. But in fact, Mark Honour's difficulties with proving delays and their causation do not stop there.

224. In the above analyses and conclusion, I proceeded on the assumption that the alleged disruptions did cause a total delay of 60.5 days as claimed by Francis Ho and confirmed by Mark Honour's expert, and more importantly, that all these alleged disruptions could be attributed to the Plaintiffs (or some of them) pursuant to a conspiracy.

First discount - anonymous complaints

225. However, according to my findings above, important discounts have to be made to the claimed delays. First, as I said, I am not prepared to find that the Plaintiffs (or some of them) were the maker(s) of the anonymous complaints referred to in the chronology, particularly those that took place prior to 27 August. This of itself has a fatal effect on Mark Honour's case on causation, regardless of my conclusion (1) above. This is because a substantial part of the 24 days' pre-deadline delay was, even according to Francis Ho's case and evidence, due to the anonymous complaints. Once delays caused by the anonymous complaints were taken out from the calculations, there can be no doubt that on any analysis and even on Mark Honour's own case, it could not have beaten the deadline. Put another way, if one only takes into account (as one should in the light of my above findings) those delays that were caused by disruptions attributable to the Plaintiffs themselves only, and works backward, one will inevitably conclude, even on Mark Honour's own case, that it would not have obtained the OP by 27 August.

226. To illustrate my point, take June as an example. Francis Ho claimed that a delay of 3 days was caused by the Highways Department's site inspection on 7 June. Francis Ho and Mr Yu (the foremen) claimed that they were told by the Highways Department people that the inspection was made as a result of a complaint. This was contradicted by the information directly obtained from the Highways Department. Leaving that aside for the time being, there was simply no direct evidence that this complaint was made by any of the Plaintiffs. As I said, I am unable to make such a finding in favour of Mark Honour. In other words, the claimed delay of 3 days must be taken out from the formula. Likewise, the police site checking on 1 June, which according to Francis Ho, resulted in 1 day's delay, must be taken out. (Similarly, according to the police record, the checking was not due to any complaint, and certainly I make no finding that the complaint, if there was one, was made by any of the Plaintiffs.) In other words, 4 days are knocked off.

227. Moving onto July, the EPD site checking on 4 July, the Highways Department's inspection on 20 July and the site inspection on 25 July caused a total delay of 10 days. The records of the two departments suggest that they were not done pursuant to any complaint. But even if they were, the complaints were anonymous and I am not prepared to make any finding in favour of Mark Honour against the Plaintiffs. Again, these delays have to be discounted.

Conclusion (2)

228. Given the margin of 8 days (or thereabout) that one is concerned with in the above analysis, the preceding illustration would be more than sufficient to throw Mark Honour's case on causation out of the window. In other words, I conclude that based on the discount under discussion, Mark Honour's case on factual causation must fail, regardless of my conclusion (1).

Second discount - Miss Lo's complaints

229. A second discount, in any event, is this: even assuming that I had been prepared to make a finding in favour of Mark Honour that all the inspections and site visits were caused by complaints, and all these complaints were made by some of the Plaintiffs, nonetheless, as I found above, Mrs Lo was not a party to the alleged combination or agreement. In other words, one must, in the analysis, discount the effects of the individual complaints made by Mrs Lo to the various departments from the delays that Mark Honour relies on in its case of conspiracy, because Mrs Lo's complaints and the delays resulting from those complaints did not form part of the delays caused by the conspiracy, to which Mrs Lo was not a party as per my finding above.

230. Given the way the delays are presented and calculated, it is impossible to quantify precisely the resulting delays caused by the individual actions of Mrs Lo in complaining to the various departments. But as a matter of common sense and indeed it forms part of Mark Honour's case that Mrs Lo's complaints caused, directly or indirectly, substantial delays, because they caused the various departments to be unduly cautious and stringent regarding the construction works. In my judgment, this was indeed the case. The effect of Mrs Lo's complaints, and I so find, was substantial. Although it is quite impossible to quantify it in terms of days of delay, a substantial discount must be made to the period of delays claimed by Mark Honour as resulting from the alleged conspiracy. I would put it at anything between 20 and 50 percent.

Conclusion (3)

231. Given this sort of discount, and given the type of narrow margin that one is talking in this case as per my above analyses, and remembering always that Mark Honour bears the burden of proof albeit on a balance of probabilities, this discount by itself would also justify my finding that on a balance of probabilities, Mark Honour has not proven to the satisfaction of the Court, that but for the delays attributable to the disruptions resulting from the conspiracy (as found by me above), it would have obtained the OP by the deadline of 27 August.

Summary of conclusions

232. In summary, I find as follows:

(1) Even on the assumption that all the alleged disruptions were caused by the conspiracy of the Plaintiffs, and they resulted in a total delay of 60.5 days, I am not satisfied, on a balance of probabilities, that Mark Honour would have successfully obtained the OP on or before 27 August 2000. This is so regardless of my findings on whether some of the visits and inspections were done by the authorities pursuant to complaints, and whether those complaints were made by the Plaintiffs. This finding is also independent of my finding that Mrs Lo was not a party to the conspiracy.

(2) On the assumption that all the visits and inspections were the results of complaints received by the departments and authorities, but on my finding that the anonymous complaints cannot be attributed to the Plaintiffs, I am not satisfied, on a balance of probabilities, and even on Mark Honour's own case (i.e. disregarding my finding in sub-paragraph (1) above), that Mark Honour would have obtained the OP on or before 27 August 2000.

(3) On the assumption that all the visits and inspections were caused by complaints, and all these complaints were made by the Plaintiffs, but based on my above finding that Mrs Lo was not a party to the conspiracy, I am not satisfied, on a balance of probabilities, and on Mark Honour own case (i.e. disregarding my findings in sub-paragraphs (1) and (2) above), that Mark Honour would have obtained the OP on or before 27 August 2000.

233. In other words, each of the above three findings is by itself a sufficient ground for rejecting Mark Honour's case on delays and causation, and thus fatal to Mark Honour's case, save to an insignificant extent that I will return to.

Alternative approach

234. Neither side favours the approach of using 20 October 2000, the date the OP was eventually issued, as a yardstick for measuring whether Mark Honour would have obtained the OP on or before 27 August, had there been no disruptions. The idea would be to work backward by using the total delay of 60.5 days, and see when, if the total delay had not occurred, Mark Honour would have obtained the OP: Deducting 60.5 days from 20 October would give a date of 21 August. Put another way, but for the 60.5 days of delay, the OP would have been obtained by Mark Honour on or around 21 August. This analysis would, therefore, on figures, produce a remarkably similar result to the analysis based only on the pre- deadline delays of 24 days.

235. However, there are at least two unknowns in this analysis: first, the number of days of inclement weather and its subsequent effects post-27 August, on which there is no evidence; secondly, the assumption that Mark Honour and its contractor proceeded with the construction works up to the obtaining of the OP with as much effort, no more and no less, as it had expended prior to the lapse of the original deadline on 27 August.

236. For these reasons and perhaps other reasons as well, neither side asked this Court to adopt this analysis.

237. In reaching my conclusions above, I have not placed any significant reliance on this analysis, although it is nonetheless relevant as part of the entire evidence that I must bear in mind before reaching my findings on the question of causation.

Further issue on factual causation

238. It is quite unnecessary for me to consider further the causal connection between the making of the complaints to the various government departments and authorities and the actions, such as visits, inspections and tests, and the attitude that they took. Neither side made any submission to me on causation, which, to some extent, would, so it appears to me, bear some resemblance to the discussion of what is a prosecution and who is the prosecutor in the tort of malicious prosecution: see Clerk & Lindsell, paras.16-07 to 16-14. I do not wish to express any view on this less than straight-forward question, and there is no necessity for doing so in this judgment. No submission along those lines were made, and certainly no authorities were submitted to me, apart from some general discussion and references in the written final submission of Mark Honour's counsel.

Legal causation

239. Given my conclusion on the so-called factual causation, I need not move on to consider the more difficult question of legal causation. I would only make several observations. So far as legal causation is concerned, a distinction, at least in theory, must be drawn between tortuous causation and contractual causation. Insofar as Mark Honour's own action (i.e. the 2nd action) is based on the cause of action of conspiracy, no doubt one is concerned with tortuous causation. However, so far as Mark Honour's defence in the 1st action is concerned, as analysed above, Mark Honour's case is based on the purchasers' acting in concert to breach the respective implied terms in their respective formal sale and purchase agreements, and the prevention principle - a person is not permitted to take advantage of his own wrong: see Kensland Realty Ltd v. Whale View Investment Ltd (2001) 4 HKCFAR 381, 410 to 418. There one is really concerned with contractual causation.

240. Secondly, Mr Chain argued that regardless of the Court's finding on factual causation, as a matter of legal causation, Mark Honour's inability to obtain the OP prior to the lapse of the deadline was caused, as a matter of law, not by any disruptions or their resulting delays, but rather by Mark Honour's failure to obtain the necessary extension of time, which it was quite entitled to obtain (as evidenced by the 6th EOT), prior to the lapse of the original deadline on 27 August. Put another way, Mark Honour only had itself to blame in failing to obtain the OP prior to the deadline, which should have been extended well into November but was not.

241. I need not and do not intend to deal with this argument in the light of my findings on factual causation. In particular, I am most reluctant to do so because for reasons of their own, and despite this Court's invitation, counsel on both sides did not present to the Court in their final submissions any detailed arguments and analyses of the law on the issue of legal causation raised. I should add here that Mr Grossman, on behalf of Mark Honour, simply refused in final submission to deal with this argument, on the basis of a pleading objection: i.e. that the argument raised by Mr Chain ought to have been specifically pleaded as a defence, which was not done. Mr Chain's argument in reply was that although by not pleading the point specifically, he was not entitled to run a positive case on legal causation, nonetheless by having put Mark Honour to strict proof of the causation of the alleged loss, he was still quite entitled to run the argument, citing Palamistosa v. Ocean Insurance Limited [1972] 2 QB 625, 647D to E, an admiralty case, in support of his argument.

242. The law on legal causation, in the context of Mr Chain's argument, is by no means straightforward. Apart from the dichotomy between contract and tort, a possible distinction may be involved between an intervening act and an intervening omission (see Clerk & Lindsell at para. 2-57). Furthermore, it is debatable whether the omission to obtain the 6th EOT in time should be classified as an omission on the part of Mark Honour or a third party (i.e. the AP). On all this I have heard no legal argument or submission. I do not find it comfortable to express any view on Mr Chain's argument in those circumstances. For the general principles of law on legal causation, see McGregor, para. 6-004 et seq. (tort) and para. 6-125 et seq. (contract); Clerk & Lindsell, chap. 2.

243. There is no point in dealing with Mr Grossman's pleading objection in those circumstances either.

Mark Honour's implied terms - the 1st action

244. I will now deal more specifically with Mark Honour's defence of the 1st action and its claim in the 2nd action respectively.

245. First, Mark Honour's defence in the 1st action. As analysed more than once above, Mark Honour's case here is that: there were implied terms to the sale and purchase agreements. The purchasers all breached the implied terms. Not only did they do so, they breached the implied terms in concert with each other. This resulted in delays to the construction works, so much so that Mark Honour was unable to obtain the OP on time. Although the prevention principle, as a result of the late amendment, disappeared from Mark Honour's amended defence, it would have been applicable as a general legal principle, if the defence could indeed be established, to stop the purchasers from taking advantage of their own wrong and claiming that because Mark Honour failed to obtain the OP on or before the deadline, they could, in exercise of their contractual rights under the respective sale and purchase agreements, rescind them. Although counsel never put forward Mark Honour's case in the 1st action, whether in the opening submission or final submission, precisely in those terms, I believe I have set out in gist what Mark Honour has really sought to argue by way of defence in the 1st action.

246. Apart from all the fatal objections and difficulties that I have discussed at length above and my findings against Mark Honour on the facts, Mark Honour's defence in the 1st action must also fail on the first hurdle, namely the alleged implied terms.

247. As I mentioned earlier on in this judgment, originally, Mark Honour pleaded in its defence the implied terms that the purchasers shall not take advantage of their own wrong and they shall co-operate and not engage in acts of disruption in relation to the construction of Bayshore Apartments.

248. As regards the prevention principle so pleaded as an implied term, the principle is a principle of law; it is only useful and relevant when a contracting party seeks to take advantage of his own "wrong". Its application presupposes, in the present context, the presence of a "wrong". Mark Honour's original pleaded case, based on the prevention principle as an implied term, was by and of itself quite insufficient, because the principle would only operate if the purchaser had, independent of the prevention principle, committed a wrong in the first place.

249. This leads me to an examination of the other implied term originally pleaded in the defence, namely that the purchaser should co-operate and not engage in acts of disruption in relation to the construction of Bayshore Apartments. It has been quite authoritatively analysed - if I may say so with respect - by Devlin J (as he then was) in Mona Oil Equipment & Supplies Company Limited v. Rhodesia Railways, Limited [1949] 2 All ER 1014, 1016 to 1018, that an "implied" term of that sort is simply too vague, imprecise, confusing and unhelpful - and should not be implied into a contract at all. See also Chitty on Contracts (29th ed.) vol. 1 para. 13-011.

250. No doubt because of all that and possibly other considerations, Mark Honour applied to amend the implied terms on the 18th day of the trial, which was partially successful. I have already set out the latest implied terms in the judgment above. In my judgment, the latest implied terms are simply too indiscriminate in content to be implied.

251. The suggestion that the purchasers should not "engage in any acts or omissions or series of acts or omissions that would or might prevent [Mark Honour] from performing its side of the agreement" is simply too sweeping. Likewise, the allegation that the purchasers should not "engage in any acts or omissions or any series of acts or omissions that would or might jeopardise the timely completion of [Bayshore Apartments]" attracts the same criticism.

252. In my judgment, no term should be implied into the formal sale and purchase agreement which would prevent the purchaser from making a bona fide complaint or a justified complaint. By a "bona fide" complaint, I refer to a complaint which the purchaser believes subjectively to be justified on its merits, regardless of whether objectively speaking, the complaint is justified. By a "justified" complaint, I refer to a complaint that is objectively justified on its merits, regardless of whether the complainant makes the complaint with or without any ulterior motive. Any implied term which would have the effect of preventing a purchaser from making such a bona fide complaint or a justified complaint is, in my judgment, not justified by the known principles on implied terms. Certainly an implied term having an effect that would go beyond what I have just mentioned was not obvious, and there was no necessity or business efficacy concerned requiring the implication of an implied term going beyond the above scope.

253. In the circumstances, I reject the contended implied terms contained in the amended defence.

254. It is not for the Court to refine the implied terms contended for by Mark Honour, particularly when the latest alleged implied terms were only introduced on the last but one day of the trial. Mark Honour must either succeed or fail with its pleaded implied terms. It fails.

255. In other words, for this reason alone, regardless of all my previous findings and holdings, Mark Honour fails on the first hurdle in its defence of the 1st action.

Mark Honour's case of conspiracy - the 2nd action

256. Turning to Mark Honour's case on conspiracy in the 2nd action, as I mentioned at the outset, there was some initial confusion on the true case of conspiracy that Mark Honour relied on. I have already referred to Mark Honour's pleading in the 2nd action, and counsel's clarification in final submission, including the abandonment of paragraph 15 in the statement of claim.

257. As has been pointed out by Clerk & Lindsell in para. 24-117,

"The two forms The tort of conspiracy therefore takes two forms: conspiracy to use unlawful means, and "conspiracy to injure". The latter does, but the former does not, require a predominant purpose to injury. Today, the "two types of actionable conspiracy, conspiracy to injure by lawful means and conspiracy to injure by unlawful means ... [are] to be treated as different torts". Liability for "conspiracy to injure", where the acts would without combination be lawful, forms a qualification to the general rule that the mere agreement of many persons to act in concert cannot make the act of any one or more wrongful, if it would not be wrongful when done by each alone independently. Indeed: "Why should an act which causes economic loss to A but is not actionable at his suit if done by B alone become actionable because B did it pursuant to an agreement between B and C?" The conventional reply (made particularly in the cases on trade unions after 1875) was that "numbers may annoy and coerce where one may not" and that a combination could make oppressive what in a single person was not. It is unrealistic

"to suggest today that acts done by one street-corner grocer in concert with a second are more oppressive and dangerous to a competitor than the same acts done by a string of supermarkets under a single ownership or that a multinational conglomerate ... does not exercise greater power than any combination of small businesses."

This form of the tort, however, although "anomalous", is too well-established to be "discarded"."

258. In a nutshell, as per counsel's clarification in final submission, Mark Honour's case on conspiracy is one based on a "conspiracy to injure", i.e. the second type of conspiracy discussed in Clerk & Lindsell above. In other words, one is not concerned with the lawfulness of the means adopted by the alleged conspirators. Rather, the focus is on the purpose, or predominant purpose, of the alleged conspiracy.

259. All this means that the Court must find out whether the conspirators' purpose was to injure the victim, as opposed to forwarding or defending the legitimate interest of themselves. Furthermore, the Court must decide, in case of mixed purposes and objectives, what was the predominant purpose. This has been explained by Clerk & Lindsell in para. 24-130 and para. 24-134:

"Conspiracy to injure; the wrongful object being intent to injure We now turn to combinations which employ no acts or means that are in themselves unlawful, commonly known as "conspiracies to injure". Everything here turns on the distinction "between the case where the object is the legitimate benefit of the combiners and the case where the object is deliberate damage without any ... just cause". Earlier cases must now be read in the light of this principle clearly established by the House of Lords in Crofter Hand Woven Harris Tweed Co. v Veitch.

"Lord Cave L.C. in Sorrel v Smith when what he called "the famous trilogy of cases ... were submitted to a close examination ... formulated as a result two propositions of law which he stated as follows:

(1) A combination of two or more persons wilfully to injure a man in his trade is unlawful and, if it results in damage to him, is actionable.

(2) If the real purpose of the combination is, not to injure another, but to forward or defend the trade of those who enter into it, then no wrong is committed and no action will lie, although damage to another ensues."

This is the cause of action now regarded by the House of Lords as "a highly anomalous cause of action" but "too well established to be discarded however anomalous it may seem today.

...

It is plain that a combination may have more than one object or purpose. If so:

"liability must depend on ascertaining the predominant purpose. If that predominant purpose is to damage another person and damage results that is tortious conspiracy. If the predominant purpose is the lawful protection or promotion of any lawful interests of the combiners (no illegal means being employed) it is not a tortious conspiracy even though it causes damage to another person."

In ascertaining that predominant purpose the court can have regard to both the short- and the longer-term objectives of the combiners."

260. On the facts as alleged by Mark Honour in the present case (regardless of my above findings), it is debatable whether the purchasers' real purpose or object was to injure Mark Honour as such, or rather to advance their own interests in making use of a contractual provision in their respective formal sale and purchase agreements to rescind through, ex hypothesi - as per Mr Grossman's concession in final submission, lawful means.

261. However, Mr Chain, appearing for the Plaintiffs, no doubt for good reasons of his own, did not see fit or find it necessary to make submission on this essential element of the tort (predominant purpose).

262. Nor, despite the Court's invitation, did Mark Honour's side make any submission on this requirement of a predominant purpose to injure, in its final submission.

263. In the absence of assistance from counsel, apart from outlining the issue and the general principles involved, I do not intend to say anything about it, still less to make any determination on this essential element of the cause of action relied on by Mark Honour in the 2nd action.

264. Indeed it is quite unnecessary to do so given my above findings and holdings.

No loss proven re Mr Yau, Mr So and Mr Cheng's limited conspiracy

265. Before leaving Mark Honour's case on conspiracy in the 2nd action, I should deal with one matter: I have, in my findings above, concluded that Mr Yau, Mr So and Mr Cheng were involved in a combination or agreement to disrupt the construction works at the site. I have, on the other hand, concluded that the disruptions caused by these three gentlemen, whether by themselves or even taken together with all the other disruptions, did not as a matter of fact, cause Mark Honour miss the deadline on 27 August (the "but for" test).

266. For this reason, in so far as Mark Honour seeks relief, in respect of consequences flowing from its failure to meet the deadline on 27 August, against these three gentlemen, its claim must fail.

267. However, in so far as Mark Honour seeks relief against these three gentlemen in respect of the actual delays caused by disruptions attributable to the three of them, independent of the question of obtaining the OP by the deadline of 27 August, Mark Honour would only succeed if it could establish some loss, so as to complete the cause of action based on the tort of conspiracy. To that end, no loss or damage whatsoever has been pleaded. More importantly, no such loss has been proved. Of course, one could infer from the general circumstances that any delay in the construction works would result in an increase in overheads and so forth at the site. However, one is concerned with loss to Mark Honour, not the main contractor, and still less the subcontractor. Mark Honour has already received, according to the evidence, the purchase prices in full, well in advance of the completion of the construction works. On the existing material, Mark Honour itself, as opposed to other companies involved in the construction and development of Bayshore Apartments, does not seem to have suffered any loss as a result of the delays experienced during the construction process. At least, even up to final submission, apart from the possibly increased overheads, no other loss has been pointed out by counsel on behalf of Mark Honour to this Court.

268. In those circumstances, even from the angle of the delays per se (as opposed to the inability to obtain the OP by the deadline), the tort of conspiracy has not been established on the evidence against Mr Yau, Mr So and Mr Cheng.

Outcome

269. For all the above reasons, I have come to the conclusion that Mark Honour's defence of the Plaintiffs' claim in the 1st action must fail, and likewise, Mark Honour's own claim in the 2nd action must also fail.

270. So far as relief is concerned, Mark Honour through its counsel has not made any real submission in opposition to the relief sought by the Plaintiffs in the event of Mark Honour losing the 1st action, which it does. The relief sought on behalf of each of the Plaintiffs is, for all practical purposes but subject to necessary adjustments of the figures, identical. I order that judgment be entered in favour of each of the Plaintiffs in terms of the relief sought in sub-paragraphs (a) (a declaration on the rescission), (c) and (d) (return of the purchase price together with interest calculated up to the date of judgment), and (f) (a declaration of an equitable lien pending the repayment of money and interest) in the prayer for relief in the re-amended statement of claim. Furthermore, I award in favour of each of the Plaintiffs against Mark Honour post-judgment interest on the judgment sum at the judgment rate until the date of full payment.

271. I dismiss Mark Honour's claim in the 2nd action.

272. At the request of counsel, I make an order nisi that the costs of both actions (which have been consolidated as one), including all costs previously reserved, be paid by Mark Honour to the Plaintiffs (excluding the 3rd, 6th, 7th and 14th Plaintiffs), such costs are to be taxed if not agreed. The 2nd Defendant is on legal aid, and I order that his own costs be taxed in accordance with the Legal Aid Regulations (Cap. 91). Unless any party should apply to vary the order nisi within 14 days after this judgment is handed down, the same shall become absolute upon the expiry of the 14-day period.

273. It only remains for me to thank counsel on both sides as well as their supporting teams for the assistance that has been rendered to the Court in this rather unusual case.

SCHEDULE

CHRONOLOGY

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