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HCA 1227/2020
[2026] HKCFI 3495
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
ACTION NO. 1227 OF 2020
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| BETWEEN |
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YU YUK HING (余毓興) |
1st Plaintiff |
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AEG ENTERTAINMENT GROUP LIMITED |
2nd Plaintiff |
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and |
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CHEUNG PAK CHI, CECILIA (張柏芝) |
Defendant |
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| Before: |
Hon H. Au-Yeung J in Court |
| Dates of Hearing: |
3 – 5 & 8 – 11 December 2025 and 13 January 2026 |
| Date of Judgment: |
16 June 2026 |
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JUDGMENT
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A. INTRODUCTION
1. This is the Judgment on liability[1] in relation to a contractual dispute between the parties.
B. UNDISPUTED / INDISPUTABLE BACKGROUND[2]
B1. The plaintiffs and the related corporations
2. The 1st plaintiff is and was the sole director and sole shareholder of the 2nd plaintiff, a limited company incorporated in the British Virgin Islands (“BVI”).
3. Yu Yuk Ming Samson (余毓明) (“Samson”) is the younger brother of the 1st plaintiff.
4. Asia Entertainment Group Limited (新亞洲娛樂聯盟集團有限公司) (“HKAEG”) is a limited company incorporated in Hong Kong on 23 August 1999. The 1st plaintiff was its director before 1 June 2013.
5. HKAEG went into liquidation on 21 August 2013 and liquidators were appointed (“the Liquidators”).
6. On 17 October 2011, Cecilia Cheung Workshop Limited (張柏芝工作室有限公司) was incorporated in the BVI (“BVI CC Workshop Ltd”) with the 1st plaintiff being its sole director and the 1st plaintiff, the defendant, Chow Ching Yi Emily (周靜儀) (personal assistant of the defendant since 2000) (“Emily”) and one Yu Yuk Lan (余毓蘭) being its shareholders.
B2. The defendant and the related corporations
7. The defendant is and was a well-known artiste / actress based in Hong Kong.
8. Easy Jet Corporation Limited (便利捷有限公司) (“Easy Jet Ltd”) was a limited company incorporated in Hong Kong on 13 August 2010 with the defendant being its sole director and sole shareholder. Through Easy Jet Ltd, the defendant purchased a landed property in Hong Kong on 11 July 2011 at HK$128,000,000 (“the Property Transaction”).
9. Newwell Agents Limited (“Newwell Ltd”) is and was a limited company incorporated in BVI, with the defendant being its sole shareholder.
10. Star Lucky Holdings Limited (裕星集團有限公司) (“Star Lucky Ltd”) is and was a limited company incorporated in Hong Kong on 4 February 2005, with Emily and the defendant being its directors and Newwell Ltd being its sole shareholder.
11. On 7 July 2014, a company known as Cecilia Cheung Workshop Limited (張柏芝工作室有限公司) was incorporated in Hong Kong (“HK CC Workshop Ltd”) with the defendant and Emily being its directors and the defendant being its sole shareholder.
B3. Relevant background
12. On 10 July 2011, HKAEG and the defendant signed a 《全球獨家經理人合約》(“the HKAEG Contract”). The defendant had put her thumbprint thereon. At that time, the 1st plaintiff, the defendant and Samson were all in Xiangshan (象山), Ningbo City, Zhejiang Province, Mainland China.
13. Two other documents dated 10 July 2011 were also executed:-
(1) HKAEG, the defendant and博納影視娛樂有限公司 entered into《張柏芝電影片約合約》, under which博納影視娛樂有限公司 agreed to fully pay a sum of RMB17,000,000 to the defendant by noon on 11 July 2011 as remuneration for her to perform in two movies during the period from 1 July 2011 to 30 June 2014.
(2) 北京博納影視文化交流有限公司, 博納影視娛樂有限公司 (“the 2 Bona Companies”), the 2nd plaintiff and 小馬哥制作有限公司entered into《聯合投資影片《河東獅吼2》協議書之補充協議書》, under which the 2 Bona Companies agreed to pay a sum of RMB16,000,000 to Yam & Company by noon on 11 July 2011.
14. On 11 July 2011, the defendant received a total sum of HK$40,000,000 through Yam & Company to complete the Property Transaction. Receipts were issued by Yam & Company to Easy Jet Ltd on 11 July 2011 and 12 July 2011.
15. Between late July and early August 2011, a Chinese document entitled《全球獨家演藝經紀協議 (補充合約)》was signed by (1) HKAEG; (2) Star Lucky Ltd & Newwell Ltd; and (3) the defendant (“the Newwell Agreement”).
16. On 16 May 2012, three documents had been executed:-
(1) 《張柏芝兩部電影片約合約》which was entered into among the 1st plaintiff, HKAEG and the defendant (“the Two Movies Contract”);
(2) A document entitled《張柏芝工作室合作協議》 which was entered into between the 1st plaintiff and the defendant (“the 2012 Co-Op Agreement”); and
(3) 《張柏芝工作室就電視劇《裸愛時代》拍攝合作協議》which was entered into by the 1st plaintiff and the defendant (“the Naked Love Era Agreement”).
17. As far as the 2012 Co-Op Agreement is concerned, while the parties agreed that this agreement had been executed, 2 different versions of this agreement had been disclosed by the parties respectively in this action. The only difference in the 2 versions is at the Preamble thereof:
(1) In the plaintiffs’ version, the Preamble reads: “茲因甲乙雙方在簽訂全球獨家經理人合約的基礎上，現甲乙雙方共同成立張柏芝工作室 (‘該公司’)，該公司將參與歌影視等各方面娛樂項目的策劃、投資及制作發展” (emphasis added) (“the plaintiffs’ Preamble”);
(2) In the defendant’s version, the Preamble reads: “茲因甲乙雙方共同成立張柏芝工作室 (‘該公司’)，該公司將參與歌影視等各方面娛樂項目的策劃、投資及制作發展” (“the defendant’s Preamble”).
18. In other words, the words “在簽訂全球獨家經理人合約的基礎上，現甲乙雙方” (i.e. the bolded part under paragraph 17(1) above) were omitted.
19. In early July 2014, the defendant signed the 《全球獨家演藝經紀協議(補充合約)》(“the Global Exclusive Performing Arts Agent Agreement”) (which was dated 10 July 2011), and delivered it to the plaintiff. The parties to this agreement were the 2nd plaintiff and the defendant.
20. On 23 July 2014:-
(1) Angela Lau Law Office (“AL Law Office”), the defendant’s solicitor at the time, sent a letter to HKAEG (via the 1st plaintiff) to terminate the HKAEG Contract (“the 1st Termination Letter”);
(2) Ms Panda Cheung of HKAEG (“Panda”) emailed a PDF copy of the Global Exclusive Performing Arts Agent Agreement to Emily.
21. On 24 July 2014, AL Law Office sent a letter to HKAEG (via the Liquidators) to terminate the HKAEG Contract (“the 2nd Termination Letter”).
22. On 25 July 2014, AL Law Office sent a letter to HKAEG (via the Liquidators) and the 2nd plaintiff, claiming that the defendant would not recognize the Global Exclusive Performing Arts Agent Agreement.
23. On 5 August 2014, a meeting took place at the Private Clubhouse of Pacific Palisades, No.1 Braemar Hill Road, Hong Kong, which was attended by the 1st plaintiff, the defendant, Emily and Ms Katty Tsang (“Katty”) (who was the defendant’s solicitor) (“the Pacific Palisades Meeting”).
24. On 4 September 2014, Katty sent a draft agreement prepared by her to the 1st plaintiff and Emily by email. In the draft agreement, the only parties are the 1st plaintiff and the defendant (“the Draft Agreement”).
C. PARTIES’ RESPECTIVE CASES AND ISSUES IN DISPUTE
C1. The Global Exclusive Management Agreement and the Global Exclusive Performing Arts Agent Agreement
25. The first claim in this action is brought by the 2nd plaintiff pursuant to the Global Exclusive Performing Arts Agent Agreement.
26. In this regard, one of the main disputes between the parties concerns the authenticity of an artiste management agreement, namely《全球獨家經理人合約》 (“the Global Exclusive Management Agreement”), which was allegedly entered into between the 1st plaintiff in his personal capacity and the defendant on 10 July 2011. It is noted that the Chinese name of this agreement is exactly the same as the HKAEG Contract.
27. The parties’ respective cases on this will be set out in more detail below.
C1.1. The plaintiffs’ case
28. A few days before the 1st plaintiff and the defendant entered into the Global Exclusive Management Agreement, the defendant informed the 1st plaintiff that she needed a sum of HK$40,000,000 by 11 July 2011 to complete the Property Transaction. They further agreed that the said sum of HK$40,000,000 would be provided to the defendant as advance payment for her performance in 4 movies (i.e. HK$10,000,000 for each movie) to be arranged by the 1st plaintiff during the term of the said agreement (“the Advance Payment”).
29. On 10 July 2011, the 1st plaintiff, in his personal capacity, entered into the Global Exclusive Management Agreement with the defendant, which appointed him as the defendant’s global and exclusive manager/agent (“唯一及獨有的全球地區的經紀人”) for 8 years between 10 July 2011 and 9 July 2019. Clause 5 thereof states that the 1st plaintiff would pay the Advance Payment to the defendant on 11 July 2011.
30. In order to make available the Advance Payment in Hong Kong by 11 July 2011, the 1st plaintiff made financial arrangements with the 2 Bona Companies by entering into a number of agreements, including《聯合投資影片《河東獅吼2》協議書之補充協議書》and《張柏芝電影片約合約》(see [13] above).
31. Pursuant to the Global Exclusive Management Agreement, the Advance Payment was remitted to Yam & Company on 11 July 2011 to complete the Property Transaction.
32. Upon entering into the Global Exclusive Management Agreement, the following documents were also executed:-
(1) By virtue of his authority as the defendant’s global and exclusive manager/agent, the 1st plaintiff entered into a《經紀代理合約書》with the 2nd plaintiff on 10 July 2011 to appoint the latter as the defendant’s agent (經紀工作代理人) in China (Hong Kong, Macau and Taiwan included) for a period of 8 years between 10 July 2011 and 9 July 2019 (“the First Agency Agreement”);
(2) By another《經紀代理合約書》dated 17 July 2011, the 2nd plaintiff appointed HKAEG as the defendant’s agent (經紀工作代理人) in China (Hong Kong, Macau and Taiwan included) for a period of 1 year between 17 July 2011 and 16 July 2012 with a priority to extend for another year (“the Second Agency Agreement”).
33. Between 10 July 2011 and mid-July 2014, the 1st plaintiff and the defendant acted in accordance with the Global Exclusive Management Agreement:
(1) The 1st plaintiff and the 2nd plaintiff (as an agent of the 1st plaintiff) arranged entertainment works for the defendant and the latter had performed in the same. This is supported by various agreements entered into between the 2nd plaintiff and the relevant clients.
(2) The 1st plaintiff and the defendant shared the defendant’s net income arising from her entertainment works.
(3) On 17 October 2011, the 1st plaintiff incorporated BVI CC Workshop Ltd pursuant to Clause 2A of the Global Exclusive Management Agreement.
(4) In 2012, the defendant performed in a movie arranged by the 1st plaintiff with a total remuneration of HK$10,000,000 and the same had been set off from the Advance Payment.
34. By a《終止合作協議書》dated 31 March 2013, the 2nd plaintiff and HKAEG terminated the Second Agency Agreement by mutual consent.
35. In about mid-July 2014, the Global Exclusive Management Agreement was novated in favour of the 2nd plaintiff (“the Novation”):
(1) In about mid-May 2014, the 1st plaintiff, in his personal capacity and in his capacity as the director of the 2nd plaintiff, agreed with the defendant to substitute the 1st plaintiff as “Party A” in the Global Exclusive Management Agreement by the 2nd plaintiff.
(2) In early July 2014, the defendant signed and delivered the Global Exclusive Performing Arts Agent Agreement to the 1st plaintiff. The 1st plaintiff, in his capacity as the director of the 2nd plaintiff, also appended his signature to it.
(3) On 23 July 2014, a copy of the duly signed Global Exclusive Performing Arts Agent Agreement was sent to Emily for the defendant’s record.
(4) As a result of the Novation:
(a) the Global Exclusive Management Agreement was replaced by the Global Exclusive Performing Arts Agent Agreement;
(b) the 2nd plaintiff replaced the 1st plaintiff as the global and exclusive manager/agent of the defendant since about mid-July 2014; and
(c) all of the defendant’s obligations previously owed to the 1st plaintiff under the Global Exclusive Management Agreement were owed to the 2nd plaintiff from then on.
36. The Global Exclusive Performing Arts Agent Agreement contained the following express terms on the exclusivity of the manager-artiste relationship between the 2nd plaintiff and the defendant:
Clause 1.2.1
“甲、乙雙方所簽訂的 (1.1.1 至1.1.3 條文) 為本協議獨家排他協議，乙方未經甲方書面允許，不得與除甲乙雙方外任意第三方就本協議1.1.1至1.1.3 條項下所涉及任何範圍及內容進行任何形式上的合作，亦不得在未經甲方書面同意的前提下，自行行使和處置相關權利，進行業務安排及與第三方達成任何協議。”
Clause 2.4.3
“乙方應嚴格遵守本協議的獨家排他性，未經甲方書面允許，不得與任意第三方進行本協議規定範圍內的任何方面在法律上或其他形式上的合作(乙方之私人業務不在此限);”
Clause 7.3
“出現以下情況之一的，甲方可以隨時解除本協議：(1) 乙方未守甲方為實施本協議而指定的規定、規劃安排或甲方代表乙方對外簽訂的合約的，或者乙方違反本協議的獨家排他性，未經甲方書面允許，與第三方進行本協議規定範圍內的任何方面或形式合作的…”
37. From around mid-July 2014 onwards:
(1) Acting as the defendant’s global and exclusive manager/agent, the 2nd plaintiff arranged entertainment works for the defendant pursuant to the Global Exclusive Performing Arts Agent Agreement and the defendant had performed the same. This is supported by various agreements entered into between the 2nd plaintiff and the relevant clients.
(2) The 2nd plaintiff and the defendant shared the net income arising from the defendant’s jobs in accordance with the Global Exclusive Performing Arts Agent Agreement.
(3) The 2nd plaintiff handled the defendant’s public relations, personal image and reputation.
38. The defendant had been in breach of the Global Exclusive Performing Arts Agent Agreement since around late May 2015:
(1) The 2nd plaintiff had been unable to arrange any entertainment works for the defendant despite being ready and willing to do so when the defendant began to avoid contact with the 2nd plaintiff in around late May 2015.
(2) In breach of Clauses 1.2.1 and 2.4.3 of the Global Exclusive Performing Arts Agent Agreement, the defendant had, since August 2015 at the latest, accepted entertainment works through herself or unknown third parties without the 2nd plaintiff’s prior written consent.
39. The 2nd plaintiff accepted the defendant’s repudiation of the Global Exclusive Performing Arts Agent Agreement in around August 2015 and terminated the same or treated it as terminated by ceasing to represent/act for the defendant in the entertainment industry and/or arrange any entertainment works for her.
C1.2. The defendant’s case
40. The defendant denies that she had ever signed or entered into the Global Exclusive Management Agreement with the 1st plaintiff. She contends, inter alia, that:
(1) The signature appearing on the Global Exclusive Management Agreement does not belong to her, and she had never signed it.
(2) On 10 July 2011, she only signed the HKAEG Contract with HKAEG. Under the HKAEG Contract, HKAEG was appointed as the defendant’s exclusive global agent for 5 years.
(3) She had received the sum of HK$40,000,000 on 11 July 2011 to finance the Property Transaction under the HKAEG Contract.
(4) Since neither the 1st plaintiff nor the 2nd plaintiff was ever the defendant’s exclusive agent, the First Agency Agreement and the Second Agency Agreement must be false, forged or otherwise null and void.
(5) The defendant only cooperated with HKAEG and shared profits with HKAEG. She had never cooperated with or shared profits with the 1st plaintiff in his personal capacity.
(6) While the 1st plaintiff had resigned as a director of HKAEG on 1 June 2013 and HKAEG was wound up on 21 August 2013, the defendant was not aware of the same until 23 July 2014.
(7) When the defendant was getting entertainment works through the 1st plaintiff in February 2014, she was under the impression that he was arranging work for the defendant for and on behalf of HKAEG pursuant to the HKAEG Contract.
(8) BVI CC Workshop Ltd was established pursuant to the HKAEG Contract.
(9) The defendant terminated the HKAEG Contract on about 24 July 2014 by the 1st Termination Letter and/or the 2nd Termination Letter.
41. As for the Global Exclusive Performing Arts Agent Agreement, the defendant only signed it under the plaintiffs’ fraudulent misrepresentation and/or her mistaken belief:
(1) On around 15 May 2014, Samson, acting for and on behalf of the plaintiffs, represented to the defendant (via Emily) that for “tax arrangement reasons”, the 1st plaintiff and HKAEG would like to have the HKAEG Contract novated in favour of the 2nd plaintiff and that the defendant would have to sign contractual documents and have them backdated to 10 July 2011 in order to effect the novation and produce lawful tax benefits (“the Representation”).
(2) The Representation was known to the plaintiffs to be false because:
(a) Samson and the 1st plaintiff had no authority or locus to act or speak on behalf of HKAEG.
(b) After HKAEG went into liquidation, the benefits of the HKAEG Contract had fallen into the hands of the Official Receiver and then the Liquidators. Samson and the plaintiffs were trying to deceive the Liquidators into believing that they (the Liquidators) had no right to enforce the HKAEG Contract or to take its benefits.
(c) Their proposal was never meant to and could never produce any lawful tax benefit of any kind for anyone.
(3) The Representation was made by the plaintiffs to the defendant fraudulently because:
(a) The plaintiffs, via Samson, made the Representation to the defendant knowing the same to be false.
(b) The plaintiffs, via Samson, made the Representation to deceive the defendant into signing documents which she would otherwise have refused to sign and to obtain benefits for the plaintiffs to the detriment of the defendant.
(4) Relying on the Representation, the defendant signed the Global Exclusive Performing Arts Agent Agreement which was identical to the HKAEG Contract except that the contracting party was changed from HKAEG to the 2nd plaintiff. But for the Representation, the defendant would never have signed the said Agreement.
(5) Further or alternatively, known to the plaintiffs, the defendant only signed the said Agreement under a mistaken belief that such an agreement was requested by HKAEG to be signed for lawful reasons.
(6) Accordingly, the Global Exclusive Performing Arts Agent Agreement was void ab initio or is avoided by the service of defendant’s Defence in this Action.
42. Consequentially, the defendant avers that:
(1) She had never acted in breach of any term of any contract.
(2) She took the view that the plaintiffs were fraudsters and therefore she deliberately avoided the plaintiffs’ direct contact. That said, at all material times, she remained reachable via her solicitors. However, the 1st plaintiff had never asked, through the Liquidators or the defendant’s solicitors, that she should act in any movie.
(3) The plaintiffs never had any locus to sue her.
C1.3. The plaintiffs’ reply
43. The plaintiffs deny that the signature on the Global Exclusive Management Agreement was not signed by the defendant. They refer to two subsequent documents which made clear reference to it, including:
(1) the preamble of 2012 Co-Op Agreement; and
(2) the Draft Agreement prepared by Katty (i.e. the defendant’s solicitor).
44. In respect of the HKAEG Contract, the plaintiffs admit that it was indeed executed by HKAEG and the defendant on 10 July 2011. However, the plaintiffs allege that:-
(1) The HKAEG Contract was made without any intention on the part of HKAEG and the defendant to create any legal relations. It was executed by Samson on behalf of HKAEG pursuant to an authorization letter dated 10 July 2011, in which it was stated that the 1st plaintiff authorized Samson to execute the HKAEG Contract without transferring the 1st plaintiff’s rights under the Global Exclusive Management Agreement.
(2) The HKAEG Contract was signed solely for the purpose of satisfying the 2 Bona Companies’ request that a sum of RMB17,000,000 (as part of the Advance Payment) shall be secured by an agreement of the defendant to perform in two movies for the 2 Bona Companies and that such an agreement shall be signed by companies incorporated in Hong Kong. This purpose was expressly communicated by the 1st plaintiff to the defendant in the morning of 10 July 2011 when the 1st plaintiff and the defendant signed the Global Exclusive Management Agreement.
(3) In the circumstances, the liquidation of HKAEG did not affect the relationship between the plaintiffs and the defendant or the parties’ obligations and duties under the Global Exclusive Management Agreement. Thus, the plaintiffs were not obliged to inform the defendant about HKAEG’s liquidation or the 1st plaintiff’s resignation as a director of HKAEG.
(4) That said, the defendant knew or ought to have known that HKAEG was in liquidation prior to 15 May 2014 through media reports and via Emily’s inquiry with the 1st plaintiff on around 3 September 2013.
45. As for the Global Exclusive Performing Arts Agent Agreement:
(1) The plaintiffs do not admit that Samson had made the Representation. Even if it had been made, the plaintiffs contend that the Representation was immaterial, and that the defendant was not induced by and/or did not rely on the same. The defendant simply did not enter into the Global Exclusive Performing Arts Agent Agreement under any form of misrepresentation or mistaken belief.
(2) The plaintiffs further contend, inter alia, that:
(a) At all material times, the defendant knew that the HKAEG Contract was not binding on the 1st plaintiff and the defendant and the Global Exclusive Performing Arts Agent Agreement would novate the Global Exclusive Management Agreement.
(b) Prior to 15 May 2014, there had been discussions and eventually a consensus had been reached between the 1st plaintiff and the defendant on re-affirming the relationship between the 1st plaintiff (via the 2nd plaintiff) and the defendant. This was prompted by a dispute in around November 2013 between the 1st plaintiff and the defendant, during which the defendant repeatedly claimed that she was only an artiste of Newwell Ltd by virtue of the Newwell Agreement, which was signed in around late July 2011 for the defendant’s own tax purposes.
(c) The defendant was clearly aware that HKAEG went into liquidation.
(d) The Global Exclusive Performing Arts Agent Agreement was substantially the same as the Newwell Agreementbut not the HKAEG Contract.
(3) In any event, the defendant had affirmed the Global Exclusive Performing Arts Agent Agreement by expressly declaring her intention to proceed with it in the Pacific Palisades Meeting and conducting herself in accordance with it thereafter.
46. As for the defendant’s contention that she considered the plaintiffs as fraudsters and deliberately avoided their direct contact, the plaintiffs state that even if this was true, this only happened in around late May 2015. Prior to that, the defendant had maintained direct contact with them and even recorded a video to send the 1st plaintiff her congratulations on the opening of his restaurant in Hong Kong in around October 2014.
47. Further, the plaintiffs had also made attempts to reach the defendant herself or via her solicitors.
C1.4. The defendant’s Rejoinder and the plaintiffs’ Surrejoinder
C1.4.1 The 2012 Co-Op Agreement
48. While the defendant admits that she had executed two originals of the 2012 Co-Op Agreement, she denies that either of them bears the plaintiffs’ Preamble:
(1) She maintains that the preamble on the originals of the 2012 Co-Op Agreement she executed and retained contains the defendant’sPreamble only.
(2) Hence, the 2012 Co-Op Agreement disclosed by plaintiffs in this Action is a “mixed” document, bearing her genuine signature on the last page, but with previous pages replaced without her consent, knowledge or approval.
(3) She did not mention this earlier because the contents of the 2012 Co-Op Agreement were irrelevant until 6 October 2022 when plaintiffs raised this in their Amended Reply.
49. The defendant’s allegations are strenuously denied by the plaintiffs. Their case is that:
(1) The 1st plaintiff had never signed/seen an original copy of the 2012 Co-Op Agreement with the defendant’s Preamble until the defendant disclosed an alleged original copy of it on 22 February 2023.
(2) While the 2012 Co-Op Agreement with the defendant’s Preamble bears the 1st plaintiff’s genuine signature on the last page thereof, the plaintiffs are unable to say with certainty how the whole document came about.
(3) The 2012 Co-Op Agreement with the plaintiffs’ Preamble is not a “mixed” document as alleged because:
(a) The 1st plaintiff had a habit of affixing a “paging seal” on the original documents kept by him; and
(b) A similar preamble (the plaintiffs’ Preamble) can also be found in the Naked Love Era Agreement executed on the same day.
(4) Notwithstanding that the parties had repeatedly referred to the 2012 Co-Op Agreement with the plaintiffs’ Preamble since it was first disclosed on 30 June 2021, no objection had ever been raised by the defendant in respect of the authenticity or accuracy of it until the filing of the Rejoinder on 22 February 2023.
C1.4.2 Other matters
50. The defendant further contends that:
(1) She had never heard of anyone suggesting that the HKAEG Contract was signed solely for the purpose of satisfying the 2 Bona Companies’ request.
(2) Neither she nor Emily was aware of HKAEG’s liquidation on around 3 September 2013.
(3) The plaintiffs’ alleged discussions or consensus in around early May 2014 did not exist.
(4) She had never made any request for her own tax purposes in around late July 2011.
(5) She had never alleged that she was only an artiste of Newwell Ltd.
C2. The Two Movies Contract
51. The second claim is brought by the 1st plaintiff against the defendant pursuant to the Two Movies Contract.
C2.1. The 1st plaintiff’s case
52. In May 2012, the defendant asked the 1st plaintiff for help to alleviate her financial difficulties. On this basis and in view of the Second Agency Agreement which was subsisting at the material time, the 1st plaintiff (in his personal capacity), HKAEG and the defendant entered into the Two Movies Contract, by which the defendant agreed to, inter alia, perform in two movies for the 1st plaintiff for the consideration of HK$13,800,000.
53. The Two Movies Contract contains the following terms:-
Clause (5)(i)
“於本合約簽訂三日內甲方支付乙方及該演員每部電影的百份之二十( 20% )片酬作為簽約訂金，即港幣肆佰萬圓正(HKD2,760,000)(稅後淨額)”
Clause (5)
“合約有效期為一年，從簽約日起開始計算，如甲方在合約期內未能完成拍攝本合約訂立之兩部電影，仍須支付乙方演員本合約之全數酬金；但如果是因為不抗力因素或是非甲方所能控制的因素（包括不限於報批立項的問題、演員檔期問題、劇本修改問題、場地氣候的問題等）而造成的兩部電影未能在合約期內完成，則雙方在本合約內之責任和義務可以順延”
54. Pursuant to Clause (5)(i) of the Two Movies Contract, the 1st plaintiff duly remitted HK$2,760,000 (“the Two Movies Payment”) to the defendant.
55. As the Two Movies Payment was intended to alleviate the defendant’s financial difficulties, HKAEG did not take any commission from it.
56. While the 1st plaintiff was ready and prepared to produce two movies within the 1-year term, the defendant repeatedly informed the 1st plaintiff that she was not available to perform in the same and suggested deferring their productions.
57. Due to the defendant’s unavailability to perform in the two movies, which was a factor beyond the 1st plaintiff’s control, the production of the two movies could not commence and the obligations and duties of the 1st plaintiff and the defendant under the Two Movies Contract had been postponed beyond the 1-year term with their mutual understandings.
58. The defendant evinced an intention no longer to be bound by the Two Movies Contract and/or not to fulfil her obligations to perform in the two movies when the 1st plaintiff became unable to contact the defendant since around late May 2015. The 1st plaintiff therefore accepted the defendant’s repudiation by ceasing to pursue her for performance in the two movies.
C2.2. The defendant’s case
59. While the defendant accepts that she had signed the Two Movies Contract, she denies the 1st plaintiff’s case in relation thereto. She contends that:
(1) As stated in Clause (1) of the Two Movies Contract, the defendant’s exclusive agent was HKAEG but not the 1st plaintiff;
(2) Clauses (5) and (8) of the Two Movies Contract state that the consideration of HK$13,800,000 must be paid by the 1st plaintiff to HKAEG, rather than to the defendant.
(3) The defendant has received no money from the 1st plaintiff whatsoever.
(4) Through no fault of the defendant whatsoever, no movie had been produced under the Two Movies Contract. Therefore, the defendant had never acted in breach of any clause thereunder.
(5) The production of the two movies under the Two Movies Contract would be subject to the creation of supplemental contracts and the consent of HKAEG and the defendant. No supplemental contract had ever been created and no consent from HKAEG or the defendant had ever been sought or secured by the 1st plaintiff.
(6) Further or alternatively, to give business efficacy to the Two Movies Contract, there is an implied term in the Two Movies Contract that it would only be valid and effective as long as the 1st plaintiff cooperated with HKAEG and the defendant honestly and in complete good faith.
(7) By reason of the 1st plaintiff’s fraudulent misrepresentation and/or the 1st plaintiff’s commencement of this action against the defendant, the 1st plaintiff must be in breach of the said implied term and repudiated the Two Movies Contract.
C2.3. The 1st plaintiff’s reply
60. In reply, the 1st plaintiff’s case is that:
(1) HKAEG was stated as the defendant’s exclusive agent in Clause (1) of the Two Movies Contractonly because at the time of creating the Two Movies Contract, HKAEG was still the defendant’s agent pursuant to the Second Agency Agreement.
(2) The 1st plaintiff had paid the Two Movies Payment to the defendant directly by cheque without going through HKAEG.
(3) Even if the Two Movies Contract consisted of the alleged implied term, which is not admitted, the 1st plaintiff was not in breach of it by acting in bad faith and/or made any fraudulent misrepresentation to the defendant and/or in any way.
D. CREDIBILITY OF WITNESSES
D1. Legal principles
61. The approaches for assessing the credibility of witnesses are well established, and are summarised as follows[3]:
(1) Generally speaking, contemporaneous written documents and documents which came into existence before the problems in question emerged are of the greatest importance in assessing credibility;
(2) Importance should also be attached to the inherent likelihood or unlikelihood of an event having happened, or the apparent logic of events;
(3) In addition, the court will attach importance to the shift of a party’s case, consistency of the witnesses’ evidence with undisputed or indisputable evidence, and the internal consistency of the witnesses’ evidence. The latter type of consistency may be tested by a comparison between the witnesses’ oral testimony and their respective witness statements, and also their answers given to different questions during examination at the trial;
(4) The court should consider a witness’ motive for deliberately not giving truthful testimony. For example, telling the truth may prejudice his interest, or a just determination of the litigation may affect his interest;
(5) It is essential to have regard to the entirety of a witness’ evidence. A witness can make mistakes, but the mistakes do not necessarily affect other parts of his/her evidence. Likewise, a witness may lie. However, lies themselves do not necessarily mean that the entirety of that witness’ evidence is to be rejected. A witness may lie in a stupid attempt to bolster his/her case, but the actual case nevertheless remains good irrespective of the lie;
(6) Having said that, where it is shown that a witness has been discredited over one or more matters to which he/she has testified, this fact is relevant to the assessment of his/her overall credibility;
(7) The court should also consider whether a witness is evasive, argumentative and/or tends to give tangential speeches so as to avoid questions while being cross-examined;
(8) While the court is entitled to take demeanour into account when assessing testimony, it should be borne in mind that demeanour can be deceptive and is therefore to be approached with care.
D2. Assessment of the factual witnesses
62. 4 factual witnesses had given evidence at the trial, namely, the 1st plaintiff, Samson, the defendant and Emily.
D2.1 The 1st plaintiff
63. I find that, generally speaking, the 1st plaintiff is an incredible witness. I will not accept his evidence lightly unless his evidence is corroborated with reliable evidence.
64. My reasons are as follows:
(1) He has from time to time given very long answers to the questions asked by the defendant’s counsel but those answers were actually not directed at answering those questions. In my view, that is because he simply had no answer to counsel’s questions on those occasions;
(2) He had been evasive on many occasions. For example, when he was queried why he did not tell the defendant the special request of the 2 Bona Companies before she was asked to sign any contract but chose to inform her only after she had allegedly signed the Global Exclusive Management Agreement;
(3) Some of his evidence was obviously incredible because they were internally inconsistent. For example:
(a) While he initially admitted the relationship between his resignation as a director of HKAEG and the copyright litigation which led to the winding up of HKAEG, he subsequently denied that his resignation was caused by his anticipation of the said winding up;
(b) He was also inconsistent in his evidence as to whether he trusted the defendant. On one hand, he said he entered into contract with the defendant because of their mutual trust. However, on the other hand, he said he had doubts as to whether she was trustworthy;
(c) While the 1st plaintiff was named as “Party A” at the top of the Global Exclusive Management Agreement, the name of the 2nd plaintiff was also included right beneath his name. Furthermore, the 2nd plaintiff’s name was referred to as “Party A” at the end of the said agreement, above the signature of the 1st plaintiff. In this regard, he had given inconsistent evidence in paragraph 21 of his witness statement as to whether the 2nd plaintiff was regarded as a party to the Global Exclusive Management Agreement. Although he emphasised therein that the said agreement was only between the defendant and himself and had nothing to do with the 2nd plaintiff, he stated in the very same paragraph that the 2nd plaintiff’s name was added so as to “provide more protection”;
(d) Such inconsistency continued while the 1st plaintiff was giving oral evidence at the witness box at the trial. Initially, he maintained that it was only he himself who was a party to the Global Exclusive Management Agreement. He even supported this assertion by saying that it was his usual practice to enter into agency agreement with artists in his own name, and then delegate his power to his companies in relation to different geographical areas. He then blamed the urgency of the matter at the relevant time, and alleged that he thought it was not a problem to leave the name of the 2nd plaintiff there. However, he changed his evidence subsequently, and alleged that because of his doubts on the defendant’s trustworthiness, it would be “safer” and would offer him more protection if the 2nd plaintiff was added as a party;
(e) It should be highlighted that his reliance on the urgency of the matter clearly does not sit well with his evidence that the 2nd plaintiff’s name was added for the purpose of providing more protection. At least part of his evidence on this must have been made up;
(f) Although it had always been his pleaded case that the HKAEG Contract was made pursuant to the request of the 2 Bona Companies that an agreement be entered into by a company incorporated in Hong Kong, he changed his evidence in the witness box, and alleged that the said contract was created at the suggestion of the defendant. In my view, this was obviously made up by the 1st plaintiff. This is because if this were the truth, for sure he would have mentioned it in his witness statement since this would have strengthened his case that the HKAEG Contract did not have legal effect. At the end, he even went as far as to say that the 2 Bona Companies did not make any request at all, and that the fact that they were willing to enter into an agreement with the defendant had nothing to do with the HKAEG Contract, which was totally contradictory to his long-standing pleaded case and his witness statements;
(g) Although he had undoubtedly suggested to make false documents during his meeting with Emily on 5 August 2014, he alleged in court that he had only used a wrong description. He explained that he had used a wrong word since he was angry at the material time. However, upon listening to the audio recording of the said meeting, it is clear that his tone at the time was calm. In my view, he was obviously lying in court when he gave the aforesaid explanation.
(4) It is evident that he is a person with low business morality. For example, as shown by audio recordings of his WeChat communications with Emily, he had no hesitation in creating false document so as to deceive the Inland Revenue Department;
(5) It can also be seen that the 1st plaintiff had no hesitation to lie in court. For example, he alleged that although his younger brother Samson had mistakenly admitted to Emily on 15 May 2014 by his WeChat message that it was HKAEG which paid HK$40 million to the defendant, he did not correct him (as he was in the same chat group) because he was sometimes busy, and that it was unnecessary. With respect, I have no doubt that he was lying and the excuses given simply do not represent the truth. If the HK$40 million was not really coming from the account of HKAEG, there was no need for them to discuss how to deal with the matter. Furthermore, the fact that the HK$40 million was really coming from the account of HKAEG is obviously supported by his own audio recording on the same day at around 1:37pm[4].
65. I should make it clear that, when I consider the credibility of the 1st plaintiff’s evidence, I have specifically taken into account the fact that all key events happened more than 10 years ago. However, having done that, I have come to the conclusion that would not affect my assessment on the 1st plaintiff’s credibility.
D2.2 Samson
66. I regret to say that Samson is also an incredible witness. It appears to me that he was only interested to say in the witness box whatever would be favourable to the plaintiffs’ case, rather than the truth.
67. An obvious example related to the cross-examination on the Two Movies Contract. When he was initially asked to confirm that he had read and confirmed the content thereof before he executed the same, he had no hesitation in doing so. However, only a few minutes later, when it was pointed out to him a provision in the said agreement which might be unfavourable to the plaintiffs’ case, he changed his evidence immediately, and alleged that he actually did not pay attention to the details of the agreement and that he only signed the same at the instruction of the 1st plaintiff.
68. What is even more remarkable was that he then gave another incomprehensible explanation, namely, that he did not read the said agreement because it was not drafted by him. This simply does not make any sense.
69. Some of his evidence is also clearly incredible. For example, for the purpose of explaining that he had made a mistake when he admitted to Emily on 15 May 2014 by his WeChat message that it was HKAEG which paid HK$40 million to the defendant, he alleged in court that he actually did not have much to do with HKAEG’s finance matter in Hong Kong because he was always staying in the Mainland, even though he stated in his witness statement that he had joined HKAEG in 1999 and had been mainly responsible for its finance management matter. I do not accept this evidence because:
(1) It in inherently improbable that he would have made a mistake when he made the stated admission by WeChat, because HK$40 million is a large amount of money. Moreover, according to his recollection, he was the administrative director (行政總監) of HKAEG, and he was the most senior staff other than directors. It is thus incredible that he could have made a mistake about the said sum of money, particularly if, as he alleged now, that the HK$40 million had absolutely nothing to do with HKAEG;
(2) It appears that it was the 1st plaintiff who was mainly responsible for the matter (for example, Samson suggested that he only did what he was instructed by the 1st plaintiff to do). If so, it would be very strange (and very unlikely) that Samson would take the initiative in saying something in the chat group which he himself was not familiar with;
(3) If he indeed did not have much to do with the Hong Kong office of HKAEG, he would have put that in his witness statement when he explained his mistake. However, he did not do so.
70. Furthermore, Samson is also a person with low business morality. For example, he had initiated to backdate the Global Exclusive Performing Arts Agent Agreement which was executed in July 2014 to 10 July 2011 so as to deceive the Inland Revenue Department into thinking that the 2nd plaintiff had always been the defendant’s agent since 10 July 2011. In his WeChat messages, he also suggested that he would be open to making false contracts[5].
71. For the avoidance of doubt, the above conclusion was reached after taking into account the fact that the evidence given concerned matters which happened many years ago.
D2.3 The defendant
72. Generally speaking, I accept that the defendant is an honest witness. This conclusion is reached despite the fact that she was sometimes quite long-winded and not directly to the point when she gave her answers, because it is my view that she was not trying to avoid answering the questions but simply to tell the Court the full picture of the matter. She has also impressed this court to be a straight forward and forthcoming witness, even though she were sometimes mindful not to mention names of people who are not directly related to this action, worrying that doing so would affect those people adversely. After all, it is her unchallenged evidence that she had been affected by unfavourable media reports. Subject to the above caveat, I find that she did not mince her words, and did not have to think much when she was confronted with questions under cross-examination, because she was, in my view, telling the truth.
73. Be that as it may, her evidence is not as helpful as one may wish even though she is a party to this action, because of her very heavy reliance on Emily in respect of both her personal life and business matters. Indeed, she has given me an impression that all along she did not care about the details of her own matters which had been neatly arranged by Emily, and she would do whatever Emily told her to do. For example, she would sign a contract without paying attention to the content thereof if Emily advised her that it would be alright for her to sign. That is the reason why it seems to me futile for the plaintiffs’ counsel to cross-examine her at great length, because she simply did not have much knowledge at the material time on the actual arrangements of various matters. That is also the reason why she from time to time could only say that Emily should be asked to give the relevant answers instead. To me, by saying so, she was not evasive. Indeed, in this regard, she was very consistent in her evidence – she always emphasized that it was Emily who had been dealing with her personal and business affairs for her. Even when she was shown documents which might be to her advantage, she did not jump at the opportunity but maintained that counsel should ask Emily about it.
74. All in all, I am satisfied that generally speaking she is a much more credible witness than the 1st plaintiff and Samson. Hence, where her evidence conflicts with the evidence of the 1st plaintiff and/or Samson, her evidence would be preferred.
D2.4 Emily
75. It is not an easy task to assess the credibility of Emily.
76. At times, she seemed to be a straight forward witness. However, on the other hand, there were many occasions when she used “she had forgotten” as an answer to the questions under cross-examination. While I can understand that she had been asked to recall matters which happened quite a number of years ago, I have doubt whether she was truthful on all those occasions when she said she could not remember the subject matters asked.
77. Another incident which troubles this Court is her allegation that she had dropped her mobile phone into the toilet in July 2022 such that she was unable to produce certain WeChat audio recordings of herself upon the request of the plaintiffs. It is quite difficult to accept that the incident was a pure coincident instead of her attempt to avoid making disclosure. This shows that she was very eager to do (or omit to do) something for the purpose of not disclosing some of her own audio recordings. As it will be revealed under Section E1.3 below, it appears that she would like to cover up her involvement in the 1st plaintiff and Samson’s game plan in “making” documents for the purpose of misleading the Inland Revenue Department. Therefore, when considering Emily’s evidence relating to the contents of the WeChat communications, the Court has to be particularly cautious.
78. Subject to the above, I do not think Emily is a totally incredible witness. Hence, where her evidence conflicts with the evidence of the 1st plaintiff and/or Samson, her evidence would be preferred.
E. DISCUSSION
E1. The Global Exclusive Management Agreement
E1.1 Did the 1st plaintiff and the defendant enter into the Global Exclusive Management Agreementon 10 July 2011
79. The first factual dispute which this Court has to resolve is whether the 1st plaintiff and the defendant had ever entered into the Global Exclusive Management Agreement on 10 July 2011.
80. In gist, the plaintiffs allege in their pleadings that it was the 1st plaintiff in his personal capacity who entered into an exclusive agency agreement with the defendant on 10 July 2011, and that the HKAEG Contract (which bears the defendant’s thumbprint) was signed only for the purpose of satisfying the requirement of the 2 Bona Companies. It is further alleged that the parties knew well all along that the HKAEG Contract did not have legal effect as they did not have intention to create legal relations. In paragraph 3 of their Amended Reply, they pleaded that:
“As to paragraph 4 of the Re-Amended Defence, the Plaintiffs aver that:
(1) As to sub-paragraph 4.3 thereof, the 1st Plaintiff and the Defendant entered into the Global Exclusive Management Agreement on 10 July 2011, and the 1st Plaintiff signed the Global Exclusive Management Agreement in his personal capacity.
(2) As to sub-paragraphs 4.6 and 4.7[6] thereof,:
(a) It is admitted that HKAEG and the Defendant signed the HKAEG Contract (as defined by the Defendant) on 10 July 2011.
(b) However, the HKAEG Contract was made without any intention on the part of HKAEG and the Defendant to create any legal relations. The HKAEG Contract was executed by Mr. Samson Yu on behalf of HKAEG pursuant to an authorisation letter (《授權書》) dated 10 July 2011, in which the 1st Plaintiff authorised Mr. Samson Yu to execute the HKAEG Contract without transferring the 1st Plaintiff’s rights under the Global Exclusive Management Agreement.
(c) The HKAEG Contract was signed solely for the purpose of satisfyingBona’s request that a sum of RMB¥17,000,000 (as part of the Advance Payment to be made available to the Defendant under the Global Exclusive Management Agreement by 11 July 2011) should be secured by an agreement of the Defendant to perform in two feature films (as pleaded in paragraph 7(3) of the Re-Amended Statement of Claim) and that such agreement should be signed by companies incorporated in Hong Kong. Therefore, Bona entered into such agreement (i.e.《張柏芝電影片約合約》) through 博納影視娛樂有限公司 (a limited company incorporated in Hong Kong) while the 1st Plaintiff entered into such agreement through HKAEG.
[…]”
(emphasis added)
81. On the other hand, the defendant maintains that she has signed only one contract – the HKAEG Contract – on 10 July 2011, and that she had not signed any other exclusive agency contract on that day.
82. I have no hesitation in coming to the conclusion that the only contract which the defendant entered into on 10 July 2011 was the HKAEG Contract, and that she did not sign the Global Exclusive Management Agreement at all on that day. In other words, it is my finding that the defendant’s only exclusive agent from 10 July 2011 onwards was HKAEG rather than the 1st plaintiff in his personal capacity nor the 2nd plaintiff.
83. The reasons are as follows.
84. Firstly, as aforesaid, whenever there is conflict between the evidence of the 1st plaintiff and the defendant, I would prefer the defendant’s evidence.
85. Secondly, in relation to the purpose of the HKAEG Contract, although it is the plaintiffs’ pleaded case that the HKAEG Contract was signed “solely for the purpose of satisfying [the 2 Bona Companies’] request”, the 1st plaintiff said in Court that this plea actually is incorrect. He also confirmed that the 2 Bona Companies had not made any request as such, and that the 2 Bona Companies had agreed to enter into an agreement with the defendant simply because the defendant was taking part in the filming of 《河東獅吼2》.
86. In such circumstances, the whole basis of the plaintiffs’ case that the parties did not have any intention to create any legal relations by entering into the HKAEG Contract has fallen apart.
87. For the sake of completeness, I should also mention that, on this matter, the plaintiffs also rely on an authorisation letter dated 10 July 2011 by which the 1st plaintiff allegedly authorised Samson to execute the HKAEG Contract without transferring the 1st plaintiff’s rights under the Global Exclusive Management Agreement. It was also said that the HKAEG Contract was made without any intention on the part of HKAEG and the defendant to create any legal relations for the reasons stated. The authorisation reads:
“本人余毓興身分證號碼[…] 與張柏芝小姐於2011年07月10日於象山已經簽署全球獨家經理人合約，乃張柏芝小姐全球獨家經理人合約的唯一合法及最終權利擁有人， 為期八年。
基於中國大陸的工作及稅務安排需要以公司形式進行， 所以本人現授權余毓明先生以新亞洲娛樂聯盟集團有限公司名義與張柏芝小姐另行簽署一份經理人合約， 此授權純屬為配合上述工作所作的權宜安排， 並非本人余毓興與張柏芝小姐全球獨家經理人合約權利和利益的轉移， 因此余毓明先生以新亞洲娛樂聯盟集團有限公司名義與張柏芝小姐另行簽署的經理人合約並不具法律效應。”
88. Apart from the fact that the plaintiffs are bound by their pleaded case, I do not accept the plaintiffs’ evidence that this authorisation letter was as a matter of fact executed on 10 July 2011 as alleged. For reasons which I will further explain below, I find that the 1st plaintiff and Samson simply would not have any hesitation to “create” documents so as to serve their own purpose. Further, it must be borne in mind that it has always been the plaintiffs’ pleaded case that the HKAEG Contract was signed for the sole purpose of satisfying the 2 Bona Companies’ requirement. However, surprisingly this authorisation letter has not mentioned the 2 Bona Companies at all.
89. Therefore, I would not give any weight to this authorisation letter.
90. Thirdly, it is common ground that sometime before 11 July 2011, the defendant was eager to see whether she could obtain a cash flow of HK$40 million so that she could use the same to complete the Property Transaction. It is also undisputed that, upon her entering into an agency agreement, a sum of HK$40 million had been paid to a solicitors’ firm in Hong Kong for the above purpose on 11 July 2011.
91. It is evident that the aforesaid HK$40 million came from HKAEG’s account:
(1) This was expressly confirmed by Samson in his WeChat message sent on 15 May 2014 at 5:21pm (see Section E1.3.2 below);
(2) This was also confirmed by the 1st plaintiff in his messages sent on the same day;
(3) Indeed, the WeChat messages disclosed in this action show that there had been lengthy explanations by the 1st plaintiff as to the steps which should be taken by way of “making” contracts so as to cover up the fact that the HK$40 million had been paid out by HKAEG (see further below).
92. It is also noteworthy that the plaintiff was not able to plead any positive case as to where the HK$40 million was paid out from: While it was pleaded in paragraph 4.8 of the Re-Amended Defence that “the defendant received the said HK$40 million from HKAEG, through a solicitors’ firm called Yam & Company, on 11 July 2011”, this particular sub-paragraph was not replied to at all in the Amended Reply.
93. If the HKAEG Contract really had no legal effect as alleged by the plaintiffs, then the 1st plaintiff and Samson did not have to worry so much about being investigated by the Inland Revenue Department for not reporting the transaction in the tax return.
94. When coming to the above conclusion on the basis of WeChat messages, I have not forgotten the fact that Emily had concealed some of her WeChat messages from this Court. However, I do not think that matters. This is because no matter what Emily stated in her messages, that would not change the fact that there were clear representations on the part of both the 1st plaintiff and Samson that the sum of HK$40 million did come from HKAEG (which on occasions were referred to as a “Hong Kong company”) and that something had to be done (for example, by “making some contracts”) so as to enable them to explain to the Inland Revenue Department that HKAEG only paid the sum on behalf of a BVI company.
95. More importantly, it is evident[7] that the WeChat chat group among the 1st plaintiff, Samson and Emily (from which the instant messages were extracted and placed before this Court) was only set up by the 1st plaintiff on 15 May 2014 at 1:03pm, and upon which it was the 1st plaintiff himself who had sent no less than a total of 7 audio messages before Emily replied for the first time. In such circumstances, the interpretation and understanding of those 7 messages can in no way be said to be depending on the content of Emily’s messages. In those 7 messages, the 1st plaintiff’s intention and game plan were already clearly expressed, namely to create false agreement(s) so as to mislead the Inland Revenue Department into accepting that the defendant’s agent was not HKAEG (which is a Hong Kong company) but in fact an “AEG company” which is a BVI company. For example, the 1st plaintiff stated that:
“者係呢… 我哋簽呢嗰陣時係用香港公司簽㗎嘛。係啦… 咁呀… 所以依家呢… 我哋之後呢我哋冇follow，所以我哋解釋番呢就話俾佢知: 「喔… 唔係呀… 嗰陣時呢， 其實我哋係… 係一間AEG 呢個…BVI 公司簽嘅。係啦， 其實呢就…佢先至係佢嘅Management 公司嚟嘅， 其實唔係香…唔係呢個新亞洲娛樂」。係啦。因為呢… 如果唔係呢變咗我哋冇報上去啲錢嘅話呢， 依家呢… 如果追起上嚟就好大鑊嘅， 因為呢喺香港…新亞洲娛樂係香港公司嚟㗎嘛。”
“所以呢… 第一呢， 你嗰邊就唔好報呢條數， 咁呀我哋依家呢嗱嗱聲補救呢， 就係點樣呢? 即係呢我哋就當新亞洲嗰份呢我哋唔…當存在， 然後呢我哋簽一份呢就係新…香…er…呢個AEG 嘅。係呢嗰公司嘅。但係呢個AEG 呢就係一間BVI 公司嚟嘅，就唔係香港公司嚟嘅。咁樣嘅話呢就解釋清楚啦。 咁呀就唔會出現咗到時候又驚我哋…尤其係你又追阿Ceci 呢拍嗰4 千萬嘅稅嘅問題呀。”
“係啦所以呢… 你嗰邊呢就唔好報嗰個新亞洲上去啦，就當冇報，記住千祈唔好報啦。 以後呢… 嚟緊就算佢哋追上嚟呢… 我哋可以報番去呢… 我哋就俾佢依家補簽嗰份，但係嗰…嗰份呢就係我哋當喺嗰陣時簽嘅， 用番嗰個時間2010 年簽嘅咁樣。你明唔明呀？用番嗰個時間… 咁呀就話俾佢知：「呀! 係呀呢個係BVI 嚟嘅，所以呢同香港冇關係囉」。咁樣囉。”
(emphasis added)
96. The above messages also show clearly that, as a matter of fact, the defendant’s agent at the material time was “a management company” (“佢先至係佢嘅Management 公司嚟嘅， 其實唔係香…唔係呢個新亞洲娛樂”). There was simply no mention of the agent being an individual person (i.e. the 1st plaintiff as alleged).
97. I have not lost sight of the plaintiffs’ case that, upon entering into the Global Exclusive Management Agreement:
(1) the 1st plaintiff entered into the First Agency Agreement with the 2nd plaintiff on 10 July 2011 to appoint the latter as the defendant’s agent in China (Hong Kong, Macau and Taiwan included) for a period of 8 years between 10 July 2011 and 9 July 2019; and
(2) the 2nd plaintiff then entered into the Second Agency Agreement on 17 July 2011, and appointed HKAEG as the defendant’s agent in China (Hong Kong, Macau and Taiwan included) for a period of 1 year between 17 July 2011 and 16 July 2012 with a priority to extend for another year.
98. However, the above appointments, even if real (which I do not accept – I will come back to this point at Section E1.3.3 below) cannot explain why HKAEG was involved in a payment made on 11 July 2011, that is, before it was allegedly appointed as the 2nd plaintiff’s agent on 17 July 2011.
99. Fourthly, the 1st plaintiff alleged that the defendant entered into the Global Exclusive Management Agreement with him in his personal capacity without the involvement of Emily at all. In my view, even if the defendant had always been in the Mainland during the entirety of July 2011 as contended by the plaintiffs (as opposed to the defendant’s case that she had come back to Hong Kong briefly in early July 2011), that is inherently improbable and I reject the 1st plaintiff’s evidence in this regard. I do not believe that the defendant, who has always heavily relied on Emily in relation to all the former’s personal and business matters, would enter into an exclusive agency agreement with someone for as long as 8 years without asking Emily to at least take a look at the draft agreement.
100. I can of course appreciate that there was great urgency on the matter at the material time, in the sense that if the defendant could not get HK$40 million within a very short period of time, the Property Transaction would fall through, and any deposit previously paid by her would be forfeited. She might even have to face a claim of the vendor of the said transaction for breach of contract. However, with the assistance of technology, it would not take long for the defendant to send the document over to Emily for her comments. To say that the defendant did not even take that simple step is something which is simply incredible.
101. Fifthly, the plaintiffs’ position is contradicted by the terms of the Two Movies Contract entered into by the 1st plaintiff, the defendant and HKAEG on 16 May 2012 which provides that HKAEG was the defendant’s sole manager/agent (“唯一經理人”). Although the plaintiffs attempt to rely on the First Agency Agreement and the Second Agency Agreement so as to explain away the discrepancy, as I will explain further under Section E1.3.3 below, such an explanation is unacceptable and rejected.
102. Sixthly, the defendant’s case is supported by the fact that, when Emily was interviewed by the Inland Revenue Department on 23 April 2013 (i.e. when the parties were apparently still on good terms), she clearly told the officers that the defendant’s agent since 2011 was HKAEG[8]. There was no reason why Emily had to tell any lie in respect of the identity of the defendant’s agent at the material time.
103. Lastly, it can also be seen that the defendant’s tax representative had provided the Inland Revenue Department with the HKAEG Contract[9] for reference. If it was the understanding on the part of the defendant that the HKAEG Contract had no legal effect as alleged by the plaintiffs, there was no reason why the defendant’s tax representative would supply the same to the Inland Revenue Department. In fact, if the HKAEG Contract was a contract created for the purpose of, in effect, deceiving the 2 Bona Companies (at the defendant’s suggestion as alleged by the 1st plaintiff), I do not believe that the defendant or Emily would be silly enough to provide this contract to the Inland Revenue Department through the defendant’s tax representatives.
104. Given the above conclusion, it is my finding that the plaintiffs have failed to prove that the defendant had entered into the Global Exclusive Management Agreement with the 1st plaintiff on 10 July 2011 as alleged.
105. As a result, the 2nd plaintiff’s claim which is made under the Global Exclusive Performing Arts Agent Agreement is bound to fail, because there could not be any valid novation as such. In other words, the Global Exclusive Performing Arts Agent Agreement is not a valid agreement between the 2nd plaintiff and the defendant upon which the 2nd plaintiff may sue.
106. Be that as it may, I would briefly discuss the Global Exclusive Performing Arts Agent Agreement in Section E2 below.
E1.2 Handwriting expert evidence
107. Because of the defendant’s denial of having ever signed the Global Exclusive Management Agreement, handwriting expert evidence has been adduced by both sides. In gist, the plaintiffs’ expert, Mr John Paul Osborn, opines that it is probable that the signature on the Global Exclusive Management Agreement is genuine, whereas the defendant’s expert, Mr SC Leung, takes the view that the said signature does not belong to the defendant.
108. Handwriting expert opinion is of course one of the matters which this Court may take into account when resolving the factual dispute in the present case. However, this is not the only matter which affects the ultimate finding.
109. In the present case, without disrespect to counsel and the experts, I do not think the Court is required to make a definite finding on whose expert opinion should be accepted. This is because, as explained above, the plaintiffs have simply failed to prove that the defendant did sign the Global Exclusive Management Agreement on 10 July 2011 as alleged. That would be the end of the 2nd plaintiff’s claim made under the Global Exclusive Performing Arts Agent Agreement.
110. Moreover, as I will further explain under Section E1.3 below, it appears that the defendant did sign the Global Exclusive Management Agreement at some stage, although it is clear that she did not do so on 10 July 2011.
111. Indeed, at the trial, even the defendant herself admitted that:
(1) She could not tell whether the signature on Global Exclusive Management Agreement belongs to her;
(2) If she had to sign 10 times, all 10 signatures would not be the same.
E1.3 The plaintiffs’ arguments on subsequent conduct
E1.3.1 The conduct
112. I should also explain why I do not accept the submissions made by the plaintiffs’ counsel that the subsequent conduct of the parties show that:
(1) The defendant must have signed the Global Exclusive Management Agreement with the 1st plaintiff on 10 July 2011; and
(2) the HKAEG Contract could not have been intended to be legally binding.
113. The plaintiffs rely on the followings:
(1) the First Agency Agreement and the Second Agency Agreement;
(2) the Newwell Agreement in late July 2011;
(3) The 2012 Co-Op Agreement and the Naked Love Era Agreement on 16 May 2012;
(4) The defendant regarded the 1st plaintiff as her global and exclusive manager/agent since 10 July 2011;
(5) the draft agreement sent by Katty to the 1st plaintiff on 4 September 2014;
(6) Katty’s email dated 24 November 2014; and
(7) The defendant’s inaction for more than 2 months after receiving a partly redacted copy of the Global Exclusive Management Agreement from the Liquidators.
E1.3.2 The communications
114. Before I deal with the above conduct and documents, I should first of all refer to some events which took place between 15 May 2014 and 2 July 2014 which in my view shed important light on the truth of the whole matter. These events include the sending of a number of WeChat messages by the 1st plaintiff, Samson and Emily. As explained, although some of Emily’s messages have not been disclosed, I take the view that that would not affect the Court’s understanding of the messages of the 1st plaintiff and Samson, because they are self-explanatory. I therefore reject the plaintiffs’ submission that the Court cannot ascertain the context of the conversation and what was truly discussed. Indeed, while the plaintiffs complain about the missing messages, neither of them attempted to suggest even roughly how the existence of those “missing messages” of Emily would assist in the understanding of the messages sent by the 1st plaintiff and Samson. This is of course understandable, because, as we can see, it was all along the 1st plaintiff and Samson who had been explaining to Emily what she had to do.
115. I would now set out some of the relevant WeChat messages below[10]:
15 May 2014 at around 1:37pm
The 1st plaintiff:
“係啦， 咁呀嗰啲生財嗰啲我哋都冇報㗎， 我哋都冇㗎， 完全都冇呀。只不過而家呢， 即係之前呢佢哋查緊或者咩， 我哋咪將嗰個合約點樣去砌囉。砌到好似同我哋無關咪得囉。好嗎？”
Emily: […]
The 1st plaintiff:
“係啦係啦， 因為依家都係呀。我哋都唔報嗰4 千萬，但係佢就會話我哋嘛，因為之前有…有出入過呢筆數吖嘛。咁呀就話俾佢知呢個係AEG 嘅，係一間BVI公司囉，唔係我哋呢個er…新亞洲囉。所以我哋到時要簽返，如果唔係一對番返嚟呢就死啦。對唔…對唔上囉而家。係啦所以你哋呢總之呢， 交上去之前呢，做好晒，將啲合約呢全部對好晒、做好晒之後呢，你哋再對一對，你明唔明呀？ 彼此之間夾一夾，唔好你嗰邊我呢邊到時候呢， 佢哋兩邊一check 呢， 對唔上呢就就…麻煩囉。好嗎？ 辛苦你同阿Samson 啦， 好嗎？ Samson，係啦，你…即係你擺多少少精力啦。好嗎？ 呢一part 唔係講笑㗎，真係。費事出事啦，係嗎？”
15 May 2014 at around 1:53pm
The 1st plaintiff:
“而家咩呢？ 因為呢我哋公司出咗條數啦嘛… 所以咪佢咪會計師嗰度咪報上去條數咪見到， 咪要解釋點解會有依筆數出去、出去俾邊個呢? 點解入去嗰度呢？ 係咪啊？ 所以咪變咗咪就話囉，呢個係唔係香港嘅，係er…呢個另外一間BVI 公司嚟嘅。所以呢我哋呢條數佢見唔到嘛，但係我哋都冇報嘛，你明唔明呀？ 係啦，所以而家大家咪要做番份contract 囉。咁咪要完咗呢個說法囉。如果唔係？ 佢話：「嘩！ 你呢筆數原來係入㗎點解呢？ 」俾咗嗰個， 咁咪死啦！ 你嗰邊又大鑊， 我呢邊又大鑊。”
Emily: […]
The 1st plaintiff:
“你明唔明呀？ 因為我哋依家我哋啲數從銀行出㗎嘛。你明唔明呀？ 咁你話公司戶口出到見到呀嘛。呢啲嘢。咁er 問你你解釋囉。佢話你點解攞筆咁大嘅數呢？ 去俾俾邊個呢？ 係咪呀？ 咁吖點解出咗去邊度呢？ 係咪呀？ 咁我哋依家就講話，依家依家就唔係囉，依家就係BVI公司嘅。係啦，其實呢唔關我哋香港呢間公司嘅，係啦，咁係無關嘅。咁呀佢哋要我哋提供， 我話：「係呀我哋係同嗰個簽嘅係BVI 公司簽約嘅」。咁囉。咁會計師咪同我咁樣去解釋囉。咁呀佢要提供啲contract 啊果啲盛囉。咁呀， 到時呢以備不時之需嘛， 我哋一定要定先囉。如果唔係到時…嘩死啦！呢邊我哋份contract 一彈出嚟咁呀死啦！ 你嗰度4 千萬。我哋呢邊就係er...瞞稅。”
“係啦，你明唔明呀？ 所以我要解釋嘛，所以我就話呢，如果佢哋依家話，咁呀…因為之前呢有新聞嗰啲盛呀嘛，咁呀依家就會係話囉…啫係我哋呢筆數係咪俾咗嗰個你哋架嗎? 我話唔係呀。其實我哋唔係呢間公司，呢間公司同佢哋唔係management 公司嚟㗎。我哋只不過係呢… 係人哋授權，係另外一間BVI 公司授權我哋呢幫忙佢哋㗎咋。咁樣囉。係呀，所以呢我哋就唔係呢樣嘢…咁樣咪將呢個答案推番去BVI 公司囉。咁樣囉。所以咪要做呢樣嘢囉。如果唔係我哋呢邊contract 人…人哋一一嗱出嚟， 嘩！ 新亞洲同嗰個第二間公司簽，咁呢筆數死得啦。大家兩個我哋兩個都死得啦。”
15 May 2014 at around 1:57pm
The 1st plaintiff:
“係啦！所以我哋咪要做啲合約囉。而家就係咁樣囉。如果唔係就換唔到過去呀嘛。大佬。呢啲數攤開嚟咪死！ 係咪呀？ 依家唔係交稅嘅問題呀，而家叫做話我哋兩邊串通，到時話我哋兩個串通嚟呃稅瞞稅，咁呀大鑊啦嘛。你明唔明呀？ 所以咪要撇開香港公司囉。係咪呀？ 同埋呢我哋依家撇開呢就直情係唔關呢壇嘢， 即係唔關事囉。係呀， 所以煩到死囉依家。[…]”
15 May 2014 at around 2:03pm
The 1st plaintiff:
“係囉係囉。咁呀依家就咁樣囉。總之er...我哋咪做晒啲人哋可以人哋要嗰啲嘢咪得囉。係咪呀？ 將啲嘢橫點我哋自己去做之嘛contract。係咪呀？ 咁呀將我哋個風險放到最低啦。係啦。咁呀總之嚟緊呢有啲要俾呀俾，唔俾嘅就...唔做，就唔好主動提出去喇。係啦。咁呀邊啲你報上去嘅，邊啲我哋冇報上去嘅，咁你哋再夾一夾囉。好嗎？ 即係譬如嗰啲乜嘢...嗰啲er...因為我哋經過好多全部都經過我哋戶口出㗎嘛，所以佢哋要我哋解釋㗎…都要我哋解釋㗎嘛。係呀，咁呀總之解釋到就解釋到。解釋唔到要做contract 咪做contract 囉。好嗎？”
15 May 2014 at around 2:08pm
The 1st plaintiff:
“係啦。所以冇問題。總之依家er 諗到方式嚟做， 總之照番我哋解釋去做。主要做番er 份合約，咁樣就過到骨㗎喇。就冇問題㗎喇。所以呢你哋將呢個要…要contract大家做一做咪得囉。”
15 May 2014 at around 2:09pm
The 1st plaintiff:
“係啦。所以依家咪我就話囉，同嗰個management 呢我哋間公司呢其實唔係management 嗰part 囉。你明唔明呀？ 唔係… 唔係呢個er 香港公司嘅。嗰筆錢應該係AEG 嘅咁樣囉。如果唔係點解釋呀？解釋唔到呀。呢筆數打去俾嗰個嗰間公司係做乜㗎？係咪呀？ 所以依家咪仲要解釋番點解呢筆數， 呢一筆數公司出咗， 呢筆數係for 乜嘢嘅。”
“係喇，所以咪依家要做啲假嘅嘢，然後瞞咗過去咪算囉。”
Emily: […]
The 1st plaintiff:
“所以我話好彩你冇報囉，如果你話你報咗嘅話呢，我就話俾佢知唔係咁嗰囉。真係大鑊啦。咁呀真係對唔上囉。所以我咪頭先即刻問你，呀你有冇報啊？ 你冇報就好好多囉。咁呀因為我哋都唔係講…講緊呢樣嘢呀嘛。所以依家咪要解釋返囉。所以煩到死囉。我就話唔係呀唔關我呢間香港公司㗎。係嗰間BVI 公司㗎。係啦， BVI。所以咪而家做Contract ，要做番同BVI 個公司囉。咁就冇…冇關係啦。咁呀呢筆數就因為你冇報嘛，我而家圓咗過去，咁呢件事就冇…冇問題囉。咁呀會計師係教我哋咁樣做囉。”
[…]
15 May 2014 at around 2:14pm
Samson:
“er 另外就係話呢你嗰邊呢如果有一啲Contract 你需要我呢度配合嘅話呢，你可以同我講，或者我睇吓我點樣去配合你去再…去整俾你。好嗎？ 咁呀…我食完飯返去我先同你溝通。”
The 1st plaintiff:
“係囉，呢啲係我哋解釋囉。所以呢依家就點解呢？ 變咗我哋我哋呢邊…嗰個好重要囉。如果我哋呢邊點解check ：「喂， 唔係喎， 佢係一份Contract 香港公司㗎喎， 喺呢啲Con…Contract 入邊俾嘅預付嚟喎， 俾咗錢㗎喎」。咁我…因為我哋實實在在有依筆數佢哋見到有呀嘛，所以咪呢樣嘢就比較麻煩囉。所以咪依家就講呢，總之呢我哋嚟緊簽呢就咩呢？總之唔係香港公司，我哋簽都係我哋BVI 公司，同BVI 公司簽咋嘛。係咪？ 唔牽涉到香港公司嘅。係呀，就算有啲咩數啊盛啊都係可以解釋得番囉。”
(All emphasis are mine)
116. Then on 15 May 2014 at around 3:20pm, Samson sent an email to Emily, with which the unsigned version of the Global Exclusive Performing Arts Agent Agreement was attached – the parties to this agreement are the 2nd plaintiff and the defendant.
117. The WeChat communications continued as follows:
15 May 2014 at around 5:21pm
Samson:
“Emily, Emily 我啱啱send 咗個mail 俾你。咁呀入面呢就係有三份合約嘅，咁你先望一望。咁er…我解釋返俾你聽啦，其實呢主要呢就係因為er…之前呢新亞洲香港公司呢，其實呢即嗰四仟萬呢就係從新亞洲香港公司個賬戶嗰度呢所支出去嘅。咁呀，所以依家呢稅局嗰邊呢就要求公司呢就交代呢，就係話呢啫係嗰筆數嘅相關嘅明細。咁呀於是乎呢會計嗰度呢咁er 就教咗我哋一個方式啦。咁佢哋就係話啦er…由er…香港公司呢其實只係代BVI 公司去支付即係er 果筆錢啦，其實只係由香港公司代BVI 公司去支付嘅啫，咁樣用咁呢作為一個解釋。”
“所以呢就…為咗呢一個咁嘅情況呢，咁我哋需要準備一啲相關嘅一啲文件嘅。係啦，咁呀其實呢嗰幾份合約呢其實之前已經簽過，但係用香港公司簽㗎。咁呀但係呢為咗宜家嗰個解決宜家嗰個問題呢，咁可能我哋會轉返用BVI 公司去簽。咁樣嘅話呢，就可以避免咗嗰四仟萬嗰個問題啦。因為佢只係代付嘅啫。係啦。”
“而嗰間BVI 公司呢，其實呢響香港係冇任何報稅嘅，亦都唔需要向稅局作出任何交代， 因為我哋冇報稅嘅。所以呢er 如果用BVI 公司宜家重簽嘅話呢，咁就變咗er 嗰四仟萬冇問題啦。咁呀同埋呢er 中間如果牽涉到嘅所有嘅合約其實都有咗一個轉彎嘅餘地囉。就係咁樣囉。”
“Er…咁er 至於嗰三份contract 呢，其實我就係按照之前嗰個內容嘅， 咁冇做過任何修改嘅， 你再望一望，睇一睇，好唔好呀？ 咁er 如果冇問題嘅話呢，咁可能要麻煩你睇吓柏芝呢重新再簽一簽咁樣囉er”
“咁呀同埋er…即係關於你需要交俾稅局嗰啲contract呢， 咁呀Panda 係到整緊㗎啦。咁呀…如果吓…如果你覺得有需要嘅話呢， 咁其實呢我呢邊呢可以用er…BVI 公司呢去配合er…去做一啲contract 嘅。咁er 到時你再交俾稅局囉， 咁er 就中間應該就可以解決咗好多嘅不必要嘅即係香港因稅務產生嘅問題喇。”
15 May 2014 at around 5:49pm
Emily:
“啊好呀，我…我check 吓email 先，不過我聽日先check 到呀，今日成日喺醫院，er…我聽日返office 我er 睇過晒啲文件，跟住我就er 話番哂俾你聽，我手頭上有啲乜嘢文件交咗俾税局嘅，咁就好清楚啦，就知道税局有啲…有啲乜嘢文件係我嗰邊出過，嗰度唔出錯，夾得到，match 得到。”
(All emphasis are mine)
118. On 20 May 2014 at 3:35pm, Samson sent an email to Panda, and attached 2 WORD documents. The file names thereof are “張柏芝獨家演藝經紀協議2…717”[11] and “張柏芝全球獨家經理人合約” respectively.
119. Pausing here, it should be noted that the file name of the first WORD document, if we ignore the numbers at the end, is as same as the Newwell Agreement, save that the words “補充合約” were omitted at this stage. On the other hand, the file name of the second WORD document is nearly identical to the name of the Global Exclusive Management Agreement and the HKAEG Contract, save that the defendant’s name was added thereto.
120. On 20 May 2014 at 3:46pm, Samson sent an email to Panda and copied the same to Emily, with a message “Sorry, 經紀補充合約以此為准!”. The name of the file is not shown in the email which is included in the trial bundle. However, since it is undisputed that the Global Exclusive Performing Arts Agent Agreement which was eventually executed by the defendant in July 2014 bore the name “補充合約” as part of its name, I would infer that this version attached to the email at 3:46pm had, inter alia, revised the name of the agreement.
121. The WeChat communications continued:
30 May 2014 at around 12:39pm
Samson:
“哦Sorry,可能出邊頭先嗰環境唔係幾好。唔係， 我話Emily, Emily 我想問呀啊Ceci 呢啫係同公司重新簽嗰份AEG 嗰份呢er… contract 嗰度攪成點樣呀？ 係呀，因為呢啊Panda 同我講呢税局嗰邊一路喺度追啊，追得好緊呀。咁我哋呢依家要遞…er 要遞嗰啲文件上去啦…係呀…所以我就睇吓你嗰度攪成點樣，你話番俾我知好。”
30 May 2014 at around 1:09pm
Emily:
“哦，依家佢追呢， 佢依家税局追er…未追到去我AEG 嗰個management 嗰個contract。佢淨係追之前我哋AEG 同出邊幫啊Ceci 接job 嗰啲contract 緊要啲依家，我要俾咗嗰啲先，即係譬如話我之前已經同啊Panda 講咗，譬如er 簽俾你哋之後，每個月你哋入錢落我哋户口，即係收入喇，收入即係job 喇，嗰啲job 嘅contract 先。佢冇問我er 攞同AEG 簽management contract, 所以嗰個可以擱置，即係唔…唔…唔使理佢住，因為啊Panda 話税局追係嗰個email 係我forward 俾佢㗎。”
Samson:
“er…唔係呀，Emily，其實税局呢依家呢係除左追嗰啲數呢，追緊我哋呢嗰四仟萬嘅出處er，你明唔明啊？所以點解我同你講，我哋要…要…要咁樣去轉一轉，咁嘅意思， 咁er 所以變咗即係話， er 如果我哋唔轉嘅話，咁我哋點樣去解釋嗰四仟萬呢？ 咁呢個就可能會影響到呀…呀…呀Ceci 嗰度咯，所以我係點解喺度追你就係因為咁嘅原因咯。”
30 May 2014 at around 1:13pm
Emily:
“我一陣俾呢個電話我嗰個會計師，er 問清楚佢税局依家究竟追我邊份contract 先。”
“以我所知，佢就...佢就冇提過要我provide 提供我哋同AEG 簽嗰份約嘅。佢冇叫我... 即合約，佢冇叫我俾佢哋嘅，佢淨係叫我俾er…我哋job 嗰啲嗰啲名…嗰啲嗰啲contract 嘅啫。”
The 1st plaintiff:
“依家呢我發覺呢你哋呢溝通度有啲問題。Emily 呢你嗰度呢俾人地追緊，我哋呢度呢俾人追緊，其實我哋兩邊都俾人追緊，你嗰度追緊係嗰啲數，我哋呢度呢俾人追緊嗰四仟萬嗰筆數， 所以要解釋。”
Samson:
“哦， 我都聽明白喇。Emily 你領…領悟錯咗喇。我意思唔係講緊你追緊Statement 嗰啲， 我係講緊我哋要交代四仟萬嗰條數呀，係呀，我嘅意思係我哋要交代四仟萬嗰條數呀，所以我先同你講喺度追緊話要簽嗰份嘅啫, 係咁嘅意思呀。我諗你理解咗， 即可能er…誤解咗我嘅意思。”
30 May 2014 at around 2:59pm
Emily:
“哦嗰份就要er…點講呢？因為啱啱我哋做完上海嗰壇嘢，啱啱先至settle 一壇嘢，所以基本上呢兩日都冇機會，即係，我諗就唔...not a good timing 俾佢簽，er…六月十幾號我哋再去做嗰個Mamamia final, 我拎…就er 拎俾佢簽囉，因為佢唔係香港吖嘛，係新加坡，所以嗰陣時我先可以攞俾佢簽，交返嚟。”
“哦，兩part 嘢，你有你嗰part，我有我嗰part，因為我嗰part又係稅局追我攞返佢嘅job 有收入嗰啲contract,即其實佢話 er job 嘅contract 都要囉。”
Samson:
“係啊，係啊，Emily，講緊係兩樣嘢嚟㗎，係呀。咁呀，基本上呢， 你嗰邊追緊嗰啲statement 啦, 我叫呀Panda 係度準備緊㗎喇， 你明唔明呀？ 咁呀我哋呢邊呢，係因為稅局，稅局已經追咗好耐㗎啦，咁呀我哋要解釋，所以我就係用呢個方法，諗住搞掂嗰四仟萬，咁呀等大家都唔使煩囉。咁亦都唔會牽涉到呀Ceci 嗰度囉。其實係咁樣嘅，咁er 你幫我跟進囉，好唔好？麻煩你吓。”
18 June 2014 at around 5:49pm
Samson:
“Emily Emily…呀… 聽日柏芝會去上海呀嗎？ 咁你到時記得將Management 嗰兩份約俾呀柏芝簽喎， 你記得喎… OK?”
Emily:
“我print 咗出嚟㗎啦。咁er 聽日再俾佢睇一次囉，如果睇完冇問題嘅咪簽囉。我聽日我print…print 咗兩份出嚟㗎。同埋我哋嗰啲税局要知嗰啲job 嗰啲contract，send 咗俾我未呀？係…其實基本上佢，因為erm 每個月Newwell… 個statement 我俾咗税局㗎喇。啫係每個月er…AEG 過錢俾Newwell 嗰個statement 嗰個job，其實我要返嗰啲job 嘅contract 俾佢哋睇呀得㗎啦。最重要係要知道唔關香港事囉。唔關香港事佢冇得challenge 我嘛。”
The 1st plaintiff:
“OK OK 呢嗰呢嗰Emily 呀，另外呢你將嗰個statement呢你都send 一次俾我哋吖。我哋呢邊要對番呢， 我哋要報上去㗎。我驚我…我報多咗， 你呢度報少咗，或者係報啲乜嘢咁樣， 我哋亂咗， 所以你將個statement 係最好就俾一次， 俾多一次俾呀Samson，或者呀Panda 咁樣。係喇， 咁呀然後Panda 同埋Sam…Samson 要盡快將嗰個statement 入面嘅所有contract 呢補返，盡快俾番呀Emily 好嗎？”
Emily:
“啊~ Statement 有㗎喇，呀.. 呀…呀…呀Panda 全部有。因為我都係按返佢俾我哋嗰個statement 報返上去之嘛。因為佢er…税局有check 嗰啲日數嘛，所以Panda 全部有㗎喇，係Panda 俾我㗎嘛。”
The 1st plaintiff:
“OK OK 咁呀…知啦我知啦。因為呢， 今日呢， 就嗰個…
都同我講緊話er…會計師嗰邊呢，喺度追緊我哋，即係依
家嗰啲數呀， 跟著尤其係C eci 嗰條數呀， 咁呀， 所以而
家都比較麻煩，所以我哋兩邊呢一定要det ail 啲，唔好出
任何差錯咁樣囉。”
“所以呢Samson 嗰邊你跟緊啲，同埋呀Emily 嗰度呢，你嗰個…嗰邊呢…你嗰啲合約呢你嗱嗱聲都俾埋佢。係啦，咁呀然後呢，你呢邊呢報返去俾會計師嗰度呢，記住都唔好出錯喎，係喇，費事到時俾人兜住就麻煩。”
18 June 2014 at around 5:55pm
Emily:
“唔會，唔會，暫時全部都係按番佢嗰個要求而俾返數佢睇嘅。所以er，所以嗰啲contract 唔喺…唔喺香港做呢，係大陸做呢，就OK 囉，可以俾佢哋睇囉。”
Samson:
“係呀係呀，我已經處理咗㗎啦。咁er 因為呢有啲呢係講緊係1-2 年嘅合約嚟㗎，咁er 所以就比較麻煩囉。咁我之前呢又要揾呀，要摷呀，咁樣囉。咁呀有啲仲要同阿叮當嗰度，er…大家去睇吓，究竟係佢keep 咗，定係我keep 咗咁樣囉。所以， 基本上差唔多攪掂㗎啦。咁我會…er 寄番去俾呀Panda 囉。咁到時呀Panda會俾番阿Emily 囉， 好唔好呀？”
23 June 2014 at around 4:53pm
Samson:
“Emily Emily…er 我想問一問呢…嗰兩份contract 呢，Ceci 嗰度大概er 幾時可以簽番嚟呀? 另外呢… 仲有一份係statement 嗰個…即係簽收嘅， 咁嗰份嘢就比較趕嘅…係啦， 咁你可唔可以幫我扱咗印先呢？”
Emily: […]
30 June 2014 at around 3:01pm
Samson:
“Emily Emily er… Samson… 我想話呢我收到咗嗰個你寄過去公司呀Ceci 簽嗰份Management 嘅補充協議啦。但係我想話呢，仲有一份呢係第一份兩頁紙嗰張第一份嘅Management 嗰份協議呢， er 你應該係未簽俾我嘅。咁呀，因為嗰份嘢呢仲比較緊要係因為佢上面有寫到嗰四仟萬呢， 其實就係由AEG 係支付俾呢個Ceci 嘅咁樣， 咁所以你嗰份嘢可能要…麻煩你再同呀Ceci 講， 咁呀要佢再簽番俾我， 好唔好？”
Emily:
“吓？ 仲有咩？ 得一份因為我…我哋簽嗰份我都睇咗， 嗰度裹面都有寫嗰喎…有寫嗰四仟萬喎。有寫嘅喎 er… 我以為得一份咋… 點樣樣啊！ 你可唔可以再email 俾我睇呀？ 因為我正式嗰份簽咗啦， 咁呀我有睇哂成份， 咁裡面都有提到嗰四仟萬，er 乜嘢乜嘢金，預繳定係保證金，定乜鬼嘢， 嗰份囉。裡面都有提呀嘛。”
Samson:
“哦~ 係呀係呀，我再E 俾你睇啦好唔好？ 咁呀因為呢其實呢哩份呢係一個補充協議嚟㗎， 上面都有寫嘅。咁所以呢必需要有一個前面做咗一份係原始件嘅。咁呀如果唔係嘅話呢，變咗補充協議就冇咗嗰個…根據㗎啦，係啦，咁我再E 俾你，你再望一望啦好嗎？ 咁呀因為其實第一份係最簡單，得兩頁纸，我E 俾你呀。”
30 June 2014 at around 3:08pm
Samson:
“我已經E 咗俾你啦， 你再望一望呀好嗎？ 唔該”
2 July 2014 at around 4:51pm
“Samson, Samson, 你可唔可以er… Email 呢, 你而家連公司名都轉埋呢AEG Entertainment Group Limited 嗰個呢，你有冇嗰個CI 可以email 到俾我，即係er 都係2011 年，你其實間公司已經成立咗，我要make sure 呢樣嘢呀嘛。你可唔可以Email 埋公司嗰張，er 應該唔會係BR 啦？你話呢間係BVI 公司，嗰張cert 俾我呀。”
(All emphasis are mine)
122. I have quoted the WeChat communications at great length because that would demonstrate what actually was going on in mid-2014. In my view, such communications show that:
(1) The HK$40 million was paid to HKAEG in the first place before it was paid out to the defendant’s designated account on 11 July 2011;
(2) HKAEG did not include the transaction concerning the said HK$40 million in its tax return at the material time;
(3) In around 2014, the Inland Revenue Department was investigating the tax liability in relation to various payments including the payment of HK$40 million on 11 July 2011;
(4) The 1st plaintiff was very worried about the consequence which would be brought by such investigation;
(5) The 1st plaintiff considered that something had to be done about it so as to explain away the payment;
(6) The 1st plaintiff decided that certain documents should be “made” and “re-signed” for the above purpose. In gist, he attempted to conceal HKAEG’s involvement in the matter by creating and back-dating a contract to be signed by the 2nd plaintiff and the defendant, so as to misrepresent to the Inland Revenue Department that it was the 2nd plaintiff rather than HKAEG which was the management company of the defendant from the outset (10 July 2011), and that HKAEG was only an agent acting for the 2nd plaintiff when HKAEG made the payment of HK$40 million on 11 July 2011;
(7) The 1st plaintiff therefore instructed Samson to “make” a number of contracts;
(8) One of those contracts is the Global Exclusive Performing Arts Agent Agreement;
(9) It is highly likely that another document which the 1st plaintiff caused Samson to make is the Global Exclusive Management Agreement, because:
(a) The file name of the second WORD document (“the Second WORD document”) attached to the email dated 20 May 2014 is identical to the name of the Global Exclusive Management Agreement (except that the defendant’s name was not included);
(b) The Global Exclusive Management Agreement is of 2 pages only. This matches Samson’s description of the document which he chased Emily on 30 June 2014 for arranging the defendant to sign;
(c) The sum of HK$40 million was referred to in this agreement;
(d) According to Samson, it was not enough for a “補充協議” to be made; an originating document should also be made (“必需要有一個前面做咗一份係原始件”).
(10) Emily had arranged the defendant to sign the newly made agreements accordingly.
123. I do not accept that the Global Exclusive Performing Arts Agent Agreement was intended to replace or novate the Newwell Agreement as suggested by the plaintiffs’ counsel, because:
(1) As revealed by Emily in the WeChat messages, she has at the material time already provided certain monthly statements of Newwell Ltd to the Inland Revenue Department. If the Newwell Agreement is to be replaced or novated by another agreement without Newwell Ltd being a party thereof, the payments received by Newwell Ltd could no longer be explained;
(2) There was no need to do so if, as alleged by the plaintiffs, the Newwell Agreement was of no legal effect;
(3) If, as suggested by the plaintiffs’ counsel, the whole problem stemmed from the fact that Newwell Ltd did not report the transaction concerning the HK$40 million to the Inland Revenue Department, the 1st plaintiff would not have been so eager to solve the problem. From the messages, as between himself and Emily, it is apparent that he was the one who was much more keen to “make” the contract, and that Emily was only being cooperative.
124. The plaintiffs’ counsel also tried to rely on Emily’s evidence in cross-examination in supporting their case concerning the purpose and details of the arrangement which were discussed in the said WeChat messages. On my part, I would not place any weight on Emily’s evidence in that regard. This is because she apparently had something to hide concerning the same. One of the probable reasons is that she was minded to conceal her own involvement in the matter. I do not accept that her oral evidence given in Court in relation to those WeChat messages is reliable at all.
125. One particular answer given by Emily which the plaintiffs’ counsel relied on is her evidence that “the AEG management contract” which she was referring to in her message sent on 30 May 2014 at 1:09pm was the Newwell Agreement. However, in my view, that cannot be the truth. This is because, if that is so, there is no reason why Newwell Ltd was not included as a party to the Global Exclusive Performing Arts Agent Agreement.
126. With the above in mind, I would now move to consider the 7 “conduct” as set out in Section E1.3.1 above.
E1.3.3 The First Agency Agreement and the Second Agency Agreement
127. The plaintiffs submitted that it is the 1st plaintiff’s unchallenged evidence that he had signed the First Agency Agreement with the 2nd plaintiff on 10 July 2011and arranged for Samson to represent the 2nd plaintiff to sign the Second Agency Agreement with HKAEG on 17 July 2011, as he allegedly had to use different companies for the purpose of arranging entertainment works for the defendant. It was also said that Samson’s evidence in this respect is also unchallenged.
128. The defendant’s counsel disagreed that such evidence had been unchallenged, as it had been specifically put to the 1st plaintiff during cross-examination that he considered creation and usage of false documents to be okay.
129. No matter whether the evidence of the 1st plaintiff and Samson is unchallenged, this Court is not bound to accept their evidence.
130. On my part, I would not accept the First Agency Agreement and the Second Agency Agreement as documents which existed on 10 July 2011 and 17 July 2011 respectively. As revealed in the WeChat communications as quoted above, the 1st plaintiff and Samson were talking about creating all necessary contracts so as to support their explanation to the Inland Revenue Department that HKAEG was only an agent of a BVI company. In my view, the “BVI company” is the 2nd plaintiff. It is more likely than not that the First Agency Agreement and the Second Agency Agreement were created in around 2014 for this purpose. Hence, I do not think it is right to put any weight on these documents.
131. In fact, the 1st plaintiff’s explanation on the circumstances under which the First Agency Agreement and the Second Agency Agreement were executed is totally unconvincing and I do not accept the same. In his witness statement, he stated that:
“28. 本人雖然是被告人唯一及獨有的全球地區的經紀人，全權代表被告人管理其演藝活動，但在工作的安排策劃上本人需要透過不同的公司進行洽談和簽約。由於第二原告人是本人全資擁有的公司，所以代表本人進行相關工作是最理想不過的。為此，我與第二原告人於2011年7月10日簽訂《經紀代理合約書》(下稱「第二原告人《經紀代理合約書》」)，委託第二原告人擔任被告人的經紀工作代理人，負責為被告人在中國大陸(包括港、澳、台)安排工作，為期8年，與《全球獨家經理人合約》的合約年期一樣。因此,第二原告人實質上也是代表本人執行《全球獨家經理人合約》的公司。
29. 第二原告人《經紀代理合約書》的第4.1.1條提及由第二原告人接洽的經紀活動及有收入的宣傳活動，第二原告人可得淨收入的8%，而餘款的92%則歸本人所有(第二原告人只得淨收入8%的原因見下文第37段)。
30. 由於新亞洲當時亦有在中國大陸 (包括港、澳、台)為藝人安排工作,所以本人隨後也安排余毓明代表第二原告人與新亞洲於2011年7月17日簽訂《經紀代理合約書》 (下稱「新亞洲《經紀代理合約書》」)，委託新亞洲擔任被告人的另一經紀工作代理人，負責為被告人在中國大陸 (包括港、澳、台) 安排工作，為期1年，由2011年7月17日至2012年7月16日，合約期滿經第二原告人同意新亞洲可優先續約1年。新亞洲《經紀代理合約書》的年期只訂為1年是本人各地的分公司當時的慣例:本人當時跟很多來自中國內地、香港、台灣及韓國四地的藝人簽約，為方便運作，本人各地的分公司都是以一年一簽的形式成為藝人的經紀代理公司之一，香港的新亞洲公司亦是如此。”
132. In the above explanation, he admitted that both the 2nd plaintiff and HKAEG were both responsible for arranging the defendant’s entertainment work in the Mainland including Hong Kong, Macau and Taiwan. If that is the case, why was it necessary for him to appoint HKAEG after delegating his power to the 2nd plaintiff? On this matter, it should be remembered that both companies belonged to him at the material time.
133. What is even more puzzling is, if the 1st plaintiff had the practice of delegating his power to companies in different countries for a year (with the right to extend for another year) only, why did he delegate his power to the 2nd plaintiff for 8 years?
134. These questions show that his story on the delegation of power is incredible.
135. Furthermore, if these agency agreements really existed at the material time, Emily must have known about them and she without doubt must have heard the 2nd plaintiff’s name. However, in her WeChat message sent on 2 July 2014, she had the following to say:
“Samson, Samson, 你可唔可以er… Email 呢, 你而家連公司名都轉埋呢AEG Entertainment Group Limited 嗰個呢，你有冇嗰個CI 可以email 到俾我，即係er 都係2011 年，你其實間公司已經成立咗，我要make sure 呢樣嘢呀嘛。你可唔可以Email 埋公司嗰張，er 應該唔會係BR 啦？你話呢間係BVI 公司，嗰張cert 俾我呀。”
136. This shows that she had not heard of the 2nd plaintiff’s name before 2 July 2014.
137. The plaintiffs’ arguments made on the basis of the First Agency Agreement and the Second Agency Agreement are therefore rejected.
E1.3.4 The Newwell Agreement
138. The plaintiffs submitted that the Newwell Agreement, which had a term of 8 years) shows that it was the Global Exclusive Management Agreement rather than the HKAEG Contract which was a binding contract between the parties, because the Global Exclusive Management Agreement also had a term of 8 years, whereas the HKAEG Contract only had a term of 5 years.
139. In this regard, both the defendant and Emily explained that while the HKAEG Contract indeed provided that it would only last for 5 years, such a term had been extended to 8 years by virtue of the Newwell Agreement upon the request of the 1st plaintiff.
140. The plaintiffs’ counsel argued that the evidence of the defendant and Emily in this regard is inherently incredible and illogical. He submitted that:
“It is perplexing for D and Emily to accept P1’s alleged request to extend the term for 3 additional years without even asking for a reason. Notably, it is D’s case that the parties just signed a binding HKAEG Contract with a 5+2 mechanism. There was neither the urgency nor necessity for D to bind herself to a manager with whom she had only just begun cooperating for an additional 3 years without any clear benefits.”[12]
141. I do not accept the plaintiffs’ submissions for the following reasons:
(1) I do not understand why it was said that it would only make sense if the defendant and Emily had asked for a reason before agreeing to a longer agency period. I do not know what “reason” they would like to get from the 1st plaintiff. From the defendant’s perspective, it is totally understandable that the 1st plaintiff (through his company) would like to have an exclusive agency right as long as possible, because obviously he must have a very high expectation at the material time of the defendant being able to bring profit to his company;
(2) It is also undisputed that the HKAEG Contract was signed quite hastily. It is therefore inherently probable that the parties were expecting to enter into a supplemental agreement so as to include more terms for the purpose of governing their relationship. It is entirely credible that the 1st plaintiff would like to have a longer period in which he could enjoy an exclusive agency right. Given the 1st plaintiff’s ability to solve the defendant’s cashflow problem within such a short period of time, it is more likely than not that the defendant indeed believed at the material time that the 1st plaintiff was a person whom she could rely on to further develop her career as an artiste. Viewed in such light, it is highly likely that she would agree to commit herself to a longer period of time under the management of a company of the 1st plaintiff;
(3) It should also be borne in mind that, according to the plaintiffs’ own case theory, the defendant was willing to commit herself to an 8-year agency relationship with the 1st plaintiff at the material time (because that is the term of the alleged Global Exclusive Management Agreement). It is thus totally unsurprising that the defendant was willing to extend the agency period from 5 to 8 years.
142. To conclude, I accept the evidence of the defendant and Emily in that the Newwell Agreement had provided a term of 8 years which was in effect an extension of the contractual period of the HKAEG Contract upon the 1st plaintiff’s request.
143. Therefore, the fact that the Newwell Agreement had a term of 8 years does not assist the plaintiffs.
E1.3.5 The 2012 Co-Op Agreement
144. It may be recalled that while the parties agreed that the 2012 Co-Op Agreement had been executed, 2 different versions of this agreement had been disclosed by the parties respectively in this action. The only difference in the 2 versions is at the Preamble thereof:
(1) The plaintiffs’ Preamble reads: “茲因甲乙雙方在簽訂全球獨家經理人合約的基礎上，現甲乙雙方共同成立張柏芝工作室 (‘該公司’)，該公司將參與歌影視等各方面娛樂項目的策劃、投資及制作發展” (emphasis added);
(2) The defendant’s Preamble reads: “茲因甲乙雙方共同成立張柏芝工作室 (‘該公司”)，該公司將參與歌影視等各方面娛樂項目的策劃、投資及制作發展”.
145. I do not think there is any dispute between the parties that the 1st plaintiff and the defendant could only have signed the 2012 Co-Op Agreement with one of the versions of the Preamble. In other words, the other version must have been created afterwards.
146. It is the plaintiffs’ submissions that the version that was signed bore the plaintiffs’ Preamble, and that that would support their case that the Global Exclusive Management Agreement was already in existence by the time the 2012 Co-Op Agreement was signed on 16 May 2012.
147. By reason of the WeChat communications referred to in Section E1.3.2 above, I am of the view that out of the 1st plaintiff and the defendant/Emily, the 1st plaintiff is far more likely to be a person who would “create/make” false contract for his own purpose. I therefore find that it is more likely than not that the 2012 Co-Op Agreement which the parties signed on 16 May 2012 bore the defendant’s Preamble rather than the plaintiffs’ Preamble.
148. In fact, as revealed by the WeChat communications, it is likely that the 2012 Co-Op Agreement which bore the plaintiffs’ Preamble was created in 2014 among other agreements, and it is at least possible that the defendant had signed such a newly created 2012 Co-Op Agreement which bore the plaintiffs’ Preamble. That may well explain why Emily did not raise any issue concerning the defendant’s signature thereon when the plaintiffs’ solicitors provided the defendant’s solicitors with the 2012 Co-Op Agreement which bore the plaintiffs’ Preamble for the purpose of asking for the latter’s agreement to use the same as one of the sample signatures of the defendant.
149. All in all, the plaintiffs’ reliance on the 2012 Co-Op Agreement is futile.
E1.3.6 The Naked Love Era Agreement
150. It is undisputed that, on the same day of the signing of the 2012 Co-Op Agreement, the plaintiff and the defendant also signed the Naked Love Era Agreement.
151. The permeable of the Naked Love Era Agreement states that it was entered into by the 1st plaintiff and the defendant on the basis that they have incorporated BVI CC Workshop Ltd.
152. According to the Naked Love Era Agreement, it is the 1st plaintiff who was solely responsible for investing RMB10 million in the production of the drama Naked Love Era, preparing the script, obtaining government approval and producing the drama. The parties further agreed to procure BVI CC Workshop Ltd to pay consultancy fee to the defendant and Emily, and the 2012 Co-Op Agreement, particularly Clause 3 on the profit distribution mechanism, shall apply to the Naked Love Era Agreement.
153. It can also be seen that there was no mention of HKAEG participating in the project in the Naked Love Era Agreement and HKAEG was precluded from receiving any profits from production of the drama.
154. Relying on the above, the plaintiffs submitted that, had the HKAEG Contract been intended to bind the parties, the defendant would be in breach of the same.
155. With respect, this submission had totally disregarded the reality that HKAEG was the 1st plaintiff’s own company.
156. This argument is therefore totally unmeritorious and must be rejected.
E1.3.7 The defendant regarded the 1st plaintiff as her global and exclusive manager/agent since 10 July 2011
157. It is argued by the plaintiffs’ counsel that the evidence shows that so long as the work which had been arranged by the 1st plaintiff met the defendant’s criteria, the defendant and Emily would accept it without bothering about which company signed the relevant contracts.
158. Insofar as it is the plaintiffs’ argument that, for the above reason, the exclusive agency agreement which the defendant entered into must have been the Global Exclusive Management Agreement rather than the Global Exclusive Performing Arts Agent Agreement, the logic is simply incomprehensible. Given HKAEG is indisputably the 1st plaintiff’s company, it is equally possible, to say the least, that it had been used by the 1st plaintiff to enter into an exclusive agency agreement with the defendant.
159. The plaintiffs then alleged that a number of entertainment works had been arranged by the 1st and 2nd plaintiffs, which had been accepted and performed by the defendant. Insofar as it is said that this supports the plaintiffs’ case, I would reject the submission. I will explain why below.
160. The first document relied on is an authorization letter (《授權書》) dated 2 July 2012, pursuant to which, it was said, that the 1st plaintiff authorized a 北京恒星世纪文化傳播有限公司to enter into a written agreement for the defendant’s performance in a concert entitled《六大巨星中秋演唱會》on 29 September 2012.
161. The circumstances under which this authorization letter was signed were suspicious to say the least. It may be recalled that it was the 1st plaintiff’s evidence that it was his practice to delegate his agency power to his company after he himself had entered into an agency agreement with an artiste, such that all management work in relation to the artiste would then be undertaken by such a company thereafter. With that alleged “long-standing practice” in place, why would he bother to sign the alleged authorisation letter at all? Why wasn’t it signed by the 2nd plaintiff or even HKAEG which, according to the plaintiffs’ case, had been delegated the power pursuant to the First Agency Agreement and the Second Agency Agreement to deal with the defendant’s entertainment work in the Mainland?
162. I would therefore not give any weight on such an authorization letter.
163. The second document which the plaintiffs relied on is a written agreement entered into between the 2nd plaintiff and a 星空華文中國傳媒有限公司on 31 January 2013, pursuant to which the defendant performed in a variety show entitled《舞出我人生》. In relation to the defendant’s performance of this agreement, the plaintiffs’ counsel also referred this Court to a statement of commission account dated 28 February 2013 issued by HKAEG.
164. What I do not understand is why the said statement of account was issued by HKAEG but not the 2nd plaintiff. The circumstances under which the said agreement dated 31 January 2013 are so suspicious that I do not think any weight should be attached to it.
165. The third agreement relied on by the plaintiffs is a written agreement allegedly entered into between the 2nd plaintiff and a MCM Nube (HK) Limited on 24 February 2014, pursuant to which the defendant participated in two opening events of MCM Flagship Stores. Strangely, it was Emily who signed the said written agreement for and on behalf of the 2nd plaintiff.
166. I do not believe that the said written agreement was indeed signed by Emily on 28 February 2014 as alleged. On this matter, it should be borne in mind that she had raised an enquiry by WeChat message on 2 July 2014 regarding the 2nd plaintiff[13]. In my view, the above WeChat message shows that Emily has never heard about “AEG Entertainment Group Ltd” by 2 July 2014. There is therefore no way that she would have signed the said agreement on 28 February 2014 as alleged. I would therefore place no weight on this alleged agreement.
167. The fourth document relied on by the plaintiffs is a written agreement allegedly entered into between the 2nd plaintiff and a 上海嬴華瓏盛文化體育發展有限公司, for the alleged performance by the defendant in a variety show entitled《媽媽咪呀》between 4 March 2014 and 22 June 2014. The said written agreement has not been dated at all, not to mention that the party to this agreement was “AEG Entertainment Ltd” rather than “AEG Entertainment Group Ltd” (i.e. the 2nd plaintiff).
168. I would therefore place no weight on this document.
169. The next document relied on is a written agreement allegedly entered into between the 2nd plaintiff and a 廣州市大陽摩托車有限公司on 12 June 2014. As demonstrated by various WeChat messages quoted in Section E1.1 and Section 1.3.2 above, by then, the 1st plaintiff was already trying to create a false impression on the part of the Inland Revenue Department that it was the 2nd plaintiff which was the management company of the defendant’s entertainment affairs. The said agreement dated 12 June 2014 therefore would not assist the plaintiffs’ case.
170. The same logic applies to the last document relied on by the plaintiffs on this topic which is a written agreement allegedly entered into between the 2nd plaintiff and a 浙江藍象傳媒有限公司dated 12 June 2014 in relation to the defendant’s performance in the recording of a show entitled《媽媽在這兒》.
171. All in all, I do not consider that the arguments advanced on behalf of the plaintiffs under this Sub-section would assist them at all.
E1.3.8 The draft agreement sent by Katty to the 1st plaintiff on 4 September 2014
172. It is undisputed by the parties that they had had a meeting on 5 August 2014 (i.e. Pacific Palisades Meeting).
173. On 4 September 2014, Katty (i.e. the defendant’s solicitor) sent an email to the 1st plaintiff and attached the Draft Agreement (see Section B3 above) for his comment, and suggested that parties could sign this agreement if he had no comment to this draft.
174. The plaintiffs submitted that the draft agreement which was prepared by Katty clearly refers to the Global Exclusive Management Agreement, and that this shows that the parties had indeed entered into the Global Exclusive Management Agreement back on 10 July 2011. It was also pointed out that the said draft agreement did not refer to HKAEG at all.
175. The defendant explained, among other things, that she did not want to provoke the 1st plaintiff at the material time, and therefore she had instructed Katty to draft the agreement like that so as to appease the 1st plaintiff.
176. I accept the defendant’s evidence in this regard. Indeed, as revealed by the WeChat messages, it was only not too long ago that Emily was cooperating with the 1st plaintiff in creating a “new” agreement so as to conceal the involvement of HKAEG in the defendant’s entertainment management. It would be strange if, within 2 months or so, parties would revert to mention about HKAEG in further agreements to be signed.
177. To conclude, I reject the plaintiffs’ submissions under this sub-heading.
E1.3.9 Katty’s email dated 24 November 2014
178. On 24 November 2014, Katty issued an email to the 1st plaintiff, and stated, inter alia, “閣下和/或所代表的經理人公司會否願意與張小姐和平解除經理人關係”.
179. Seizing upon the above wordings, the plaintiffs argued, inter alia, that:
“192. It is D’s case that the HKAEG Contract was the only exclusive management contract D had ever entered. It is also her own case that she became aware of HKAEG’s liquidation on 23 July 2014 and even terminated the HKAEG Contract on 23 or 24 July 2014.
193. If D’s case is true, it must again be clear to D by 14 November 2014 that (1) P1 no longer had any capacity to represent HKAEG over the HKAEG Contract and (2) the HKAEG Contract already ceased to have any effect on her. Accordingly, there is simply no reason to ask P1 to peacefully terminate any manager-artiste relationship between him or his company with D.
194. […]
195. In Ps’ submission, the only logical explanation is that at the time of this email, there was still an ongoing and binding manager-artiste relationship between P1 (or a company that he represents) and D which was not the one under the HKAEG Contract.”
180. I do not agree that the above arguments would assist the plaintiffs.
181. This is because:
(1) It is at least arguable that, by the time of November 2014, the Two Movies Contract was still subsisting between the 1st plaintiff and the defendant. Therefore, the fact that Katty asked the 1st plaintiff whether “he and/or his company(ies)” would be willing to terminate the manager-artiste relationship does not mean that the Global Exclusive Management Agreement was in existence on 10 July 2011;
(2) Given the fact that the parties had signed various contracts in mid-2014, it is indeed unclear how they viewed their contractual relationship at the material time. In my view, it is not enough for the plaintiffs to establish that Katty was not referring to the HKAEG Contract at the material time.
182. To conclude, I reject the plaintiffs’ arguments under this sub-heading.
E1.3.10 The defendant’s inaction
183. The last conduct which the plaintiffs wanted to rely on is the allegation that the defendant had not acted for more than 2 months after receiving a partly redacted copy of the Global Exclusive Management Agreement from the Liquidators.
184. With respect, this is a desperate argument.
185. In my view, nothing can be made out of the alleged “more than 2 months of inaction”, which is quite a short period of time.
186. This point is rendered even more useless if one has considered the WeChat communications set out in Section E1.1 and Section E1.3.2 above.
E2. Global Exclusive Performing Arts Agent Agreement
187. In light of the finding under Section E1 above that the defendant did not enter into the Global Exclusive Management Agreement on 10 July 2011 as alleged, there had never been any direct legal relationship between the 1st plaintiff and the defendant at the material time, and there was no contract to be “novated”.
188. In other words, strictly speaking, no further discussion is required in relation to the Global Exclusive Performing Arts Agent Agreement.
189. Be that as it may, I would like to say a few words on this “agreement”.
190. First of all, the plaintiffs alleged that, prior to 15 May 2014, there had been discussions and eventually a consensus between the 1st plaintiff and the defendant on re-affirming the relationship between the 1st plaintiff (via the 2nd plaintiff) and the defendant, and that this was prompted by a dispute in around November 2013 between the 1st plaintiff and the defendant, during which the defendant repeatedly claimed that she was only an artiste of Newwell Ltd by virtue of the Newwell Agreement, which was signed in around late July 2011 for the defendant’s own tax purposes.
191. With greatest respect, this explanation given by the 1st plaintiff is a complete nonsense, which is not accepted. It simply does not make sense to say that because the defendant had breached the Global Exclusive Management Agreement that the said agreement had to be novated by another one, still less for the Global Exclusive Performing Arts Agent Agreement to be backdated to 10 July 2011.
192. The 1st plaintiff also alleged that, in order to get the defendant’s agreement in entering into another contract with him, he agreed to “concede” by agreeing to abandon his “personal agency right” (“作為讓步本人亦願意放棄個人的權利改由第二原告人與被告人個人簽署”[14]). This also does not make sense. I cannot see why it was necessary for the 1st plaintiff to abandon his personal right if he was the party who entered into an exclusive agency agreement with the defendant in the first place. I find that this is just something made up by the 1st plaintiff.
193. The truth of the matter has been revealed in the WeChat messages, part of which have been quoted under Section E1.3 and Section E1.3.2 above – it was the intention of the 1st plaintiff and Samson to make a false contract so as to misrepresent to the Inland Revenue Department that it was a BVI company (i.e. the 2nd plaintiff) which acted as the exclusive agent of the defendant from day 1 (i.e. 10 July 2011), and that HKAEG only acted as the 2nd plaintiff’s agent (as opposed to of its own right) to deal with the HK$40 million paid on 11 July 2011.
194. From the WeChat messages, it can be seen that Emily did cause the defendant to sign and return the executed Global Exclusive Performing Arts Agent Agreement to the 1st plaintiff and Samson. However, there is no doubt that this was only signed for the said purpose. There is no way that it could be said that the parties regarded this as a valid contract between themselves. Hence, apart from the fact that there was no contract to be “novated”, this is another reason why the 2nd plaintiff simply cannot attempt to sue on this agreement.
195. For the above reasons, the 2nd plaintiff’s claim made on the basis of the Global Exclusive Performing Arts Agent Agreement must fail.
196. In the course of the trial, there was also a dispute as to the timing when the defendant knew the liquidation of HKAEG. I do not think, in light of the findings hereinabove, detailed discussion on this issue is still required. However, insofar as it is necessary, it is my finding that neither the defendant nor Emily knew about it until 23 July 2014. This is because, if they had been informed about the winding up of HKCEG earlier, AL Law Office would not have been instructed to send the 1st Termination Letter to HKAEG for the purpose of terminating the HKAEG Contract on 23 July 2014 (i.e. the 1st Termination Letter). It should also be borne in mind that, the undisputed fact is that, AL Law Office sent the 2nd Termination Letter to HKAEG’s Liquidators on the following day (i.e. the 2nd Termination Letter). In my view, this is clearly an act which was done for rectifying the mistake of sending the notice of termination to the wrong recipient. This further supports the defendant’s factual assertion that neither she nor Emily knew earlier (as alleged by the plaintiffs) that the HKAEG had indeed been wound up.
E3. The Two Movies Contract
E3.1 Introduction
197. There is no dispute that the 1st plaintiff, the defendant and HKAEG entered into the Two Movies Contract on 16 May 2012.
198. To recap, it is the 1st plaintiff’s case that:
(1) The defendant had received the Two Movies Payment (i.e. HK$2,760,000) from the 1st plaintiff under the Two Movies Contract; and
(2) The defendant had evinced an intention not to be bound by the Two Movies Contract and/or not to fulfil her obligations to perform in the two movies since about late May 2015 or thereabout and the 1st plaintiff had accepted the repudiation.
E3.2 The Two Movies Payment
199. It is indisputable that, in order to prove that the defendant had breached the Two Movies Contract, the 1st plaintiff has to prove that the defendant had received the Two Movies Payment, which is denied by the defendant.
200. The 1st plaintiff is unable to adduce the actual cheque or any other evidence which proves directly that the defendant has received the Two Movies Payment. All he could do was to:
(1) produce a cheque stub showing that a cheque no. 818203 was issued to “Cheung Pa Chi Cecilia” on “15-6-12” for a sum of “2,760,000”; and
(2) produce a bank statement dated 30 June 2012 showing that a sum of HK$2,760,000 was withdrawn on 19 June 2012 under cheque no. 818203.
201. The 1st plaintiff also asks this Court to infer that the payment must have been made to the defendant at the material time because Emily emphasised by an email dated 22 March 2012 that:
“其實這兩部片約都不是重點，重點是需要搵錢，因為現在公司都沒有接到廣告”
202. It was said that, in the above circumstances, and given it had been provided under Clause (5)(i) of the Two Movies Contract that the 1st plaintiff shall pay the Two Movies Payment to the defendant and HKAEG within three days of signing the said contract, it is inherently improbable that the defendant had not received the said payment accordingly. The plaintiffs’ counsel also drew this Court’s attention to the fact that Emily did not chase the 1st plaintiff for payment even when she discussed another payment of HK$4 million in May 2013.
203. Having considered all the evidence, I find that the 1st plaintiff has failed to discharge his burden to prove that the defendant had ever received the Two Movies Payment:
(1) Given the 1st plaintiff’s incredibility, I do not think much weight should be attached to his self-serving evidence in the form of cheque stub. In fact, if the payee of the cheque (No. 818203) was indeed stated to be “Cheung Pa Chi Cecilia” (as written on the cheque stub), the possibility is that it could not be drawn successfully because of the spelling mistake of the defendant’s name;
(2) The bank statement relied on by the 1st plaintiff only shows that the cheque had been presented for payment successfully from an account but does not show who the recipient is;
(3) In fact, Clause 8 of the Two Movies Contract provides that the payments thereunder should be paid into a specific bank account of HKAEG with Hang Seng Bank;
(4) The 1st plaintiff has failed to produce the Statement of Commission Account of HKAEG issued for June 2012 (it was alleged there was no such document) to prove that HKAEG has paid the money to the defendant.
204. Although it is evident that Emily has requested that HKAEG would not take any commission from the payments made under the Two Movies Contract, I do not see how it can then be said that it is likely that the 1st plaintiff had paid the defendant directly. If this logic is correct, the said contract would have provided that all payments thereunder should be paid to the defendant (or her designated account) in the first place.
205. The 1st plaintiff’s claim made under the Two Movies Contract must therefore fail on this ground alone.
E3.3 The defendant’s alleged renunciation
206. For the sake of completeness, I would also discuss whether the defendant had ever evinced any intention not to perform the Two Movies Contract.
207. The plaintiffs’ counsel argued the plaintiffs’ case in the following way:
“313. Ultimately, the question is whether D renunciate the Two Movies Contracts since about late May 2015 or thereabout.
314. As a matter of law, a renunciation of a contract occurs when one party by words or conduct evinces an intention not to perform, or expressly declares that he is or will be unable to perform his obligations under the contract in some essential respect: Chao Keh Lung v Don Xia [2004] 2 HKLRD 11 at §26(1) per Cheung JA.
315. A renunciation may occur before (an anticipatory breach) or at the time fixed for performance (actual breach). An absolute refusal by one party to perform his side of the contract will entitle the other party to treat himself as discharged, as will also a clear and unambiguous assertion by one party that he will be unable to perform when the time for performance should arrive: Chao Keh Lung (supra)at §26(2).
316. Short of an express refusal or declaration, the test is to ascertain whether the action or actions of the party in default are such as to lead a reasonable person to conclude that he no longer intends to be bound by its provisions:Chao Keh Lung (supra) at §26(3).
317. P1’s evidence is that because D ceased to be contactable (“失去聯絡”) with him and P2, it became impossible for him to negotiate with her and arrange her to perform in the two movies under the Two Movies Contract.
318. In this regard, P1 could not be blamed for not seeking to ask D to perform in the two movies through Katty or Emily:-
(1) As stated in §296 above, Emily tendered her resignation to P1 on 10 March 2015. Emily admitted under cross-examination that she ceased to have any contact with P1 since March 2015.
(2) It is also P1’s unchallenged evidence that it was unrealistic and abnormal to arrange entertainment works through D’s solicitor or even the Liquidators. In fact, P1 had contacted Katty by his email dated 26 March 2015 highlighting that there were five movies yet to be performed by D. D admitted that Katty had conveyed P1’s message to her but P1 had never received any reply.
319. While there was no express refusal or declaration from D, it is submitted that the fact that D became uncontactable in the circumstances of this case would lead a reasonable person to conclude that she no longer intended to be bound by the provisions of the Two Movies Contract.”
(emphasis added)
208. With greatest respect, the 1st plaintiff’s arguments are hopeless:
(1) It is evident (see, for example, the 1st plaintiff’s email to Katty dated 26 March 2015) that the 1st plaintiff knew that he could convey messages to the defendant through Katty. It is therefore misconceived for him to claim that the defendant was “uncontactable” at the material time;
(2) However, it is undisputed that (at least since 26 March 2015) had never provided the defendant with any movie scripts for her to consider. In such circumstances, the defendant could not be blamed at all;
(3) The 1st plaintiff’s own decision not to further pursue the defendant for filming any movie since late May 2015 could only be described as he having given up his own right (if any), rather than renunciation of the Two Movies Contract on the part of the defendant;
(4) In fact, I do not understand how the reference point of “late May 2015” came about. Even the plaintiffs’ counsel could not explain where this “late May 2015” came from, save that it is the plaintiffs’ pleaded case.
209. To conclude, the 1st plaintiff’s claim on the Two Movies Contract must fail.
F. ORDER
210. By reasons of the aforesaid, the plaintiffs’ claims are hereby dismissed.
G. COSTS
211. I make a costs order nisi that the plaintiffs shall bear the costs of the action, to be taxed if not agreed.
212. The above order nisi shall become absolute in the absence of application to vary (which, if any, will be disposed of on paper) within 14 days hereof.
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( H. Au-Yeung )
Judge of the Court of First Instance
High Court |
Mr Valentine Yim (3 & 4 December and 5 December 2025 (morning) only), Mr Tang Lik Hang, and Mr Isaac Ng (13 January 2026 only), instructed by Y. K. Lau & Chu, for the plaintiffs
Mr Kenneth K Y Lam and Ms Colette Wong, instructed by Cheng & Ng, for the defendant
[1] An order for split trial was made by Master Hui on 2 June 2022
[2] This Section is adopted from the plaintiffs’ Closing Submissions, which the defendant’s counsel have confirmed to be accurate in court
[3] Hu Lan v David Golden [2023] HKCFI 873 at [36], and Painter v Hutchison [2007] EWHC 758 (Ch) at [3]
[4] At [D/1090]: “係啦係啦， 因為依家都係呀。我哋都唔報嗰4 千萬，但係佢就會話我哋嘛，因為之前有…有出入過呢筆數吖嘛。咁呀就話俾佢知呢個係AEG 嘅， 係一間BVI公司囉，唔係我哋呢個er…新亞洲囉。所以我哋到時要簽返，如果唔係一對番返嚟呢就死啦。對唔…對唔上囉而家。係啦所以你哋呢總之呢， 交上去之前呢，做好晒，將啲合約呢全部對好晒、做好晒之後呢，你哋再對一對，你明唔明呀？ 彼此之間夾一夾，唔好你嗰邊我呢邊到時候呢， 佢哋兩邊一check 呢， 對唔上呢就就…麻煩囉。好嗎？ 辛苦你同阿Samson 啦， 好嗎？ Samson，係啦，你…即係你擺多少少精力啦。好嗎？ 呢一part 唔係講笑㗎，真係。費事出事啦，係嗎？” (emphasis added)
[5] See, for example, his messages sent on 15 May 2014 at [D/1110] and [D/1112] and [D/1126]
[6] Paragraph 4.6 of the Re-Amended Defence reads: “The truth is, on 10 July 2011, D signed on and thus entered into a written agreement with [HKAEG].”
Paragraph 4.7 of the Re-Amended Defence reads: “By the [HKAEG Contract],D appointed HKAEG as her exclusive global agent from 10 July 2011 to 9 July 2016, and HKAEG agreed to pay a lump sum advancement of HKD 40 million to D on 11 July 2011.”
[7] See [D/1083]
[8] See the minutes of a meeting held on 23 April 2013 between the Inland Revenue Department and Emily and the defendant’s tax representatives at [D/1064]
[9] See the minutes of a meeting held on 15 May 2017 between the Inland Revenue Department and Emily and the defendant’s tax representatives at [D/1645]
[10] See Section E1.1 above for some messages sent by the 1st plaintiff on 15 May 2014 which started off the discussion
[11] The words between “2” and “717” cannot be seen in the trial bundle
[12] Paragraph 150 of the plaintiffs’ Closing Submissions
[13] Her message has been quoted under Section E1.3.3 above
[14] Paragraph 62 of the 1st plaintiff’s witness statement
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