KWAN KIN WAI v. TO CHO KEI

HCA 7239/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 7239 OF 2000

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J U D G M E N T

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1. This is a claim for specific performance of a contract by which the defendant undertook to reward the plaintiff for financial services to be provided; alternatively, for damages for breach of that contract.

2. The plaintiff, Kwan Kin Wai (Mr Kwan), describes himself as a financial adviser and consultant, carrying on business as such in Hong Kong. The defendant, To Cho Kei (Mr To) at the material time, which was in October 1999 and a few months thereafter, was the founder, majority shareholder and a director of a private company in Hong Kong called Systek Information Technology Limited (Systek).

3. Since its incorporation in 1989, Systek's principal business has been the development and trading of software products and the provision of training services in the IT field. Its customers over the years have included major banks and financial institutions. In 1990 it was to become an approved supplier to the Hong Kong Government.

4. By 1999 with sales exceeding $20 million and there being much public interest in IT and internet related companies, Mr To believed the time was right for Systek's expansion by a listing on the Growth Enterprise Market (the GEM) operated by the Hong Kong Stock Exchange. When he mentioned these intentions to Mr Kwan, a fellow Rotarian, he told him that was in his field, and he offered to assist by introducing Mr To to potential venture capitalists to provide pre-listing capital, and to merchant banks which might agree to sponsor a listing. The upshot of that was that the parties entered into an agreement dated 5 October 1999 (the agreement). The precise purpose and intent of the agreement and the extent if any to which it incorporated implied terms is disputed by the parties, giving rise to these proceedings.

5. The terms and meanings of the terms being crucial to the outcome of this dispute I repeat them verbatim, in which Mr Kwan is referred to as the Consultant:-

"DEFINITION

The "Company" means SYSTEK Information Technology Limited, of Room 2429-32, Sun Hung Kai Centre, 30 Harbour Road, Hong Kong

1. TERM OF ENGAGEMENT

Mr. TO hereby engages the Consultant to act as financial adviser for the engagement under the terms of Clause 3, and in the case of Clause 3(a) to the exclusion of all others, for an initial fixed period of 6 months commencing from October 5, 1999 and shall continue for another 6-month period if the Consultant procures for the Company a mandate in accordance with Clause 3(a) hereof.

2. DUTIES

The scope of services of the Consultant in connection with the Engagement shall be to:

a) review and analyze the Company's financial position with a view to forming an opinion on the valuation of the Company;

b) review the business strategy and prospects of the Company;

c) assist Mr. TO in connection with procuring investors (including venture capitalists) to subscribe for or purchase shares in the issued share capital of the Company;

d) assist Mr. TO in the negotiations with potential investors on the terms and structure of their investments;

e) procure investment bank(s) to act as sponsor(s) of the Company for its listing on, including but not limited to the Growth Enterprise Market ("GEM") of the Stock Exchange of Hong Kong; and

f) carry out other duties as may be agreed with Mr. TO and which are appropriate, having regard to the nature of the Engagement.

3. REMUNERATION

The remuneration of the Consultant shall be:-

a) in the event that investment bank(s) is/are procured to act as sponsor(s) of the Company which is eventually listed on, including but not limited to the GEM, through the Consultant's direct engagement, the Consultant will receive 8% of the total shares of the Company (which shall include all the shares in issue and additional shares created by the Company for the purpose of offering to the public upon listing), which shares shall rank pari passu in all respects with the existing shares in the authorized share capital of the Company, and shall be allotted and issued to the Consultant credited as fully paid; or

b) in the event that investors are procured to purchase shares in the Company, through the Consultant's direct engagement, the Consultant shall receive such number of shares in the Company equivalent to 10% of the total amount of the purchase moneys paid by the investors, which shares shall rank pari passu in all respects with the existing shares in the authorized share capital of the Company, and shall be allotted and issued to the Consultant credited as fully paid.

4. MR. TO'S OBLIGATIONS

a) Mr. TO will provide the Consultant with all material information in his possession or control that the Consultant may reasonably require for the purpose of his performance of duties under the Engagement, and undertakes that such information supplied shall be true and accurate in all material respects and not misleading, whether by omission or otherwise;

b) Mr. TO will not disclose to any third party any advice (whether oral or written) rendered by the Consultant or any communications between Mr. TO and the Consultant in connection with the Engagement. All correspondence and other papers held by the Consultant in relation to the Engagement shall be the sole property of the Consultant.

5. MISCELLANEOUS

a) Neither Party to this Agreement may assign or transfer all or any of its/his rights or obligation under this Agreement without the prior written consent of the other Party.

b) No failure or delay by either Party to exercise any right hereunder shall operate as a waiver thereof nor shall any single or partial exercise of any right preclude any other or further exercise thereof, and the rights and remedies provided herein are not exclusive of any rights or remedies provided by law.

c) This Agreement shall be governed by and construed in accordance with the laws of Hong Kong.

6. The circumstances surrounding the signing of the agreement are in dispute, but that is not material. Suffice to say that Mr Kwan with the assistance of a legal friend drafted and produced the document. Mr To having read it required the words in clauses 3(a) and 3(b) 'through the Consultant's direct engagement' to be incorporated into the document. Mr Kwan agreed to the amendment; so the agreement was signed.

7. The following matters emerge from it:-

(a) Mr Kwan's appointment as financial adviser for the engagement of an investment bank to act as Systek's sponsor for public listing was to the exclusion of all others until 5 April 2000;

(b) Mr Kwan owed a duty to assist in procuring and negotiating with potential investors;

(c) Mr Kwan owed a duty to procure investment banks to act as a sponsor for public listing;

(d) Mr To owed a duty to provide Mr Kwan with such material information as he may reasonably require to perform his duties;

(e) Mr To owed a duty of confidentiality;

(f) remuneration was dependent upon Mr Kwan directly engaging a sponsor resulting in the public listing of Systek, and/or in the alternative his directly engaging an investor or investors to purchase shares in Systek.

8. It is not disputed that it was an implied term that if under clause 3(a) a listing was achieved but by a holding company incorporated for the purpose the promised remuneration should be paid.

9. It is Mr Kwan's case that forthwith after 5 October 1999 he complied with his obligations under the agreement as specifically required of him under clauses 2(a) to (f). Whilst there may be dispute as to specifics it is either agreed or not materially in dispute that from material provided he prepared a business plan and financial model for Systek and then arranged meetings with various banks and financial institutions with a view to promoting interest to invest in Systek and with a view to attracting a sponsor for a public listing. Many of his preliminary forays produced no result. But what was achieved as a direct result of his efforts included:-

(a) an agency agreement with Vickers Ballas Capital Limited (Vickers Ballas) to procure venture capital;

(b) a written proposal by Vickers Ballas to act as a sponsor for a listing on the GEM;

(c) an offer by a Frank Liu to subscribe for shares in Systek thus to provide pre-listing capital of up to US$1 million;

(d) a pre-listing advance by one Eric Wu of $2 million with an option to convert to capital post-listing on terms;

(e) an indication 'in principle' that Dresdner Kleinwort Benson (Dresdner) would be willing to accept a mandate to sponsor Systek for a proposed listing on the GEM.

10. As matters of fact, what transpired which gave rise to this litigation was the following:-

(a) Frank Liu's offer to invest was not taken up;

(b) Eric Wu was 'bought out' from his option;

(c) A merchant bank called Core Pacific-Yamaichi Capital Limited (Core Pacific) was, by the signing by Mr To of an engagement letter dated 17 February 2002, engaged to sponsor Systek's prospective listing on the GEM. The net result was that in September 2000 a newly incorporated holding company called Systek Information Technology Holdings Limited (Systek Holdings) came to be listed on the GEM board;

(d) Mr Kwan received no remuneration from Mr To under the agreement or otherwise.

11. These proceedings resulted.

12. Mr Kwan's claim as pleaded is that he is entitled to be remunerated under clauses 3(a) and (b) of the agreement. Under 3(a) he claims that he introduced Systek to Core Pacific as a direct result of which Core Pacific was engaged to act as its sponsor and Systek Holdings came to be listed on the GEM. He was thus entitled to 8% of the shares in Systek Holdings. Alternatively if, which is denied, Core Pacific came to be engaged by somebody else, Mr To acted in breach of the exclusivity provision of clause 1 of the agreement and he is thus entitled in damages to 8% of the shares' worth on listing. Under 3(b) he claims that he procured two investors, Messrs Liu and Wu, who were ready, willing and able to subscribe for shares on terms that should have been acceptable to Mr To. By declining to accept, Mr To was in breach of implied terms not to do anything to prevent Mr Kwan from performing his duties under the agreement and not to act so as to frustrate the agreement, thus entitling Mr Kwan in damages to the fees that acceptance would have earned him.

13. There are several defences as pleaded. The first is that Mr Kwan was not at the material time registered as an investment adviser under the Securities Ordinance (the SO) and in so holding himself out as such he was in breach. The agreement amounted to an illegal contract and is unenforceable. The second is that Core Pacific came to be introduced to Systek by one Jack Chow, a partner of KPMG who had been introduced to Mr To as having significant contacts in the merchant banking field. (Following the listing of Systek Holdings KPMG were appointed its auditors). In the engagement of Core Pacific Mr Kwan played no material part. And the words 'through the Consultant's direct engagement' gave Systek and To the right to engage others to secure a sponsorship without being in breach of the agreement. Third it is admitted that inter alia Mr Kwan introduced Messrs Wu and Liu as prospective investors. Otherwise it is denied that Mr To by declining to complete with them was in breach of any implied terms or otherwise. The proposal by Mr Liu was not commercially acceptable. And under the terms of the agreement with Mr Wu he was repaid the principal, interest and a specified premium in lieu of the matter proceeding. Thus Mr Kwan earned nothing at all from the transaction.

14. I propose first to deal with the defence that the agreement is illegal and thus unenforceable. I find otherwise. Clause 49 of the SO requires that a person who acts as or holds himself out to be an 'investment adviser' so-called must be registered; indeed if he is not he is guilty of an offence. 'Investment adviser' is defined as a person who is in the business of advising others concerning securities, and related activity. 'Securities' in the context means shares, stocks, bonds and the like but excludes shares in a private company. It is Mr To's case as argued by Mr Sham on his behalf that by the wording of clause 2(c) of the agreement Mr Kwan's role was to assist in the procuring of investors once Systek (or its holding company) came to be listed. In his words 'that was the whole object of the exercise'. Thus it would not by then be a private company and there would be no exclusion from liability for the so-called investment adviser to be registered. I do not accept this submission. First of all, from the undisputed evidence, the need for investors was pre-listing, to provide for the cost of that. Secondly there is nothing in clause 2(c) or elsewhere in the agreement to suggest the procuring of investors was to take place after listing. Thirdly, the procuring of an investor is not to provide investment advice.

15. Mr Kwan's claim that it was he who engaged Core Pacific to become sponsor and the defence of express denial, alternatively that there was a breach of the exclusivity provision in clause 1 requires a review of the evidence about this; I come to that next.

16. Mr Kwan in his witness statement, which he adopted as his evidence, said of his role in being instrumental in attracting Core Pacific the following at paragraph 11:-

"11. In or about early October 1999, I called my friend, Mr. Terry Cheung, Sales Director of Core Pacific Yamaichi Capital Limited ("Core Pacific") and made an appointment to meet him on 14 October 1999. However, we did not meet on 14 October 1999 due to Mr. Terry Cheung's other commitments. I met Mr. Terry Cheung in or about the end of October 1999. On that occasion, I managed to make a brief introduction to him on the business plan of Systek. He showed much interest in Systek and thought that Core Pacific might assist Systek in its listing. He agreed to introduce me to their corporate finance team to further explore the possibility of listing Systek on the GEM. After the meeting, I mentioned to the Defendant that I would arrange him to meet Core Pacific."

17. And then at paragraph 20:-

"20. On or about early November 1999, I had a meeting with the Defendant and Mr. Frank Li at Dynasty Club, Wanchai. During the meeting, the Defendant told me that he was considering to sell 37 to 38% of the shares of Systek to Mr. Frank Li and a company introduced by Mr. Frank Li at the consideration of around HK$17,500,000.00. Mr. Frank Li said that he knew I was helping Systek in its listing and he had read and appreciated my work. He said that he had a friend named Mr. Jack Chow, a partner of KPMG, who had connections with investment banks including but not limited to DBS and Core Pacific. I told Mr. Frank Li that I was also arranging for the Defendant to meet Core Pacific. Mr. Frank Li said that we should all work together to achieve the listing so that we could all make money. Mr. Frank Li told me that Mr. Jack Chow had some very senior friends in some investment banks including Core Pacific. In addition, Mr. Jack Chow should be able to give good assistance during the due diligence process. Mr. Frank Li also said that Mr. Jack Chow should be able to convince the top management while I worked closely with the staff of the investment bank who actually performed the due diligence process. If both the top management and the staff were positive on Systek, Systek could get a better valuation.

18. Then at paragraph 22 after a meeting held at DBS mid-November:-

"22. ......After the meeting, the Defendant asked me to go ahead to contact my connection in Core Pacific. He said that he wanted to ensure that the presentation to Core Pacific would be smoother than that to DBS."

19. And at paragraph 27:-

"27. At the meeting on 29 November 1999, I met Messrs. Terry Cheung and David Ho of Core Pacific by myself. Originally, the Defendant and I were supposed to show up together but the Defendant informed me a day or two prior to the meeting that he was too busy to attend the meeting. The Defendant asked me to go to the meeting by myself. At the meeting, I handed to Messrs. Terry Cheung and David Ho each a copy of the presentation I had prepared on Systek and made a presentation to them. They both were very positive in helping Systek to be listed on the GEM. At the end of the meeting, it was understood that Mr. David Ho would bring the matters to the attention of Mr. D. C. Lee, the Head of Investment Banking of Core Pacific. However, when I informed the Defendant about the progress, the Defendant asked me to withhold from further liaison with Core Pacific. He explained that he did not have time to meet so many investment banks for the time being. Therefore, I did not follow up with Core Pacific thereafter. In the other week, Mr. David Ho called me at my office and left a message to my assistant, but I did not return his call and he did not call me again."

20. In support of his cause he called Terry Cheung. He confirmed his position at Core Pacific at the time as Sales Director. He confirmed the meeting of 29 October, and his promise to introduce Mr Kwan to the Corporate Finance Department of his company. He confirmed the meeting of 29 November and that Mr Kwan handed over a presentation that he had prepared on Systek which attracted David Ho's interest and attention. Thereafter, he played no direct role save that he had follow-up discussions with David Ho and Mr D. C. Lee, Core Pacific's managing director, whose position made him the final arbiter in the matter. At the end of February 2000 he left Core Pacific.

21. I come now to the evidence in defence. First, evidence adduced by Mr To. He, too, had made a witness statement which he adopted as his evidence in chief. I reproduce excerpts:-

"29. In or about October 1999, a Mr. Lee Wo Hing introduced me to Mr. Jack Chow Siu Lui ("Mr. Jack Chow"), a partner of KPMG, one of the "Big 5" accountancy firms. Mr. Jack Chow then introduced me to a qualified valuer. On behalf of Systek, I duly instructed the valuer to carry out a proper valuation of Systek's business.

30. Further, Mr. Jack Chow discussed the identity of an appropriate listing sponsor with me. In due course, in early November 1999, he recommended me to consider DBS Asia Capital Limited ("DBS") and Core Pacific-Yamaichi Capital Limited ("Core Pacific"). I stress that it was Mr. Jack Chow who, for no fee, introduced me and thereby to Systek to these two listing sponsors, and not Mr. Kwan.

31. On or about 2nd November 1999, Mr. Jack Chow, myself and Mr. Frank Lee, a director of Systek, attended a meeting with DBS which was arranged by Mr. Jack Chow. Mr. Kwan asked me to let him attend the meeting in order, he said, to learn something. I agreed that he could come along on that basis.

32. Mr. Frank Lee and I were both unimpressed by DBS at that meeting. We asked Mr. Jack Chow to arrange a meeting with Core Pacific. On or about 2nd December 1999, Mr. Jack Chow, Mr. Frank Lee and I attended a meeting, arranged by Mr. Jack Chow, with Mr. D. C. Lee, the managing director of Core Pacific at their offices. When I told him about it, Mr. Kwan once again asked me to let him attend so he might learn something. Once again I agreed that he could join us, on that basis.

33. During December 1999 and January 2000, Systek's discussions and negotiations with Core Pacific went on, naturally without any participation by Mr. Kwan.......

......

36. Mr. Jack Chow, Mr. Frank Lee and I agreed that Core Pacific's proposal seemed to be the best Systek had seen. On 17th February 2000, I signed an Engagement Letter for application for its shares to be listed for sale to the public, on 8th September and on behalf of Systek to engage Core Pacific as the lead sponsor for the listing of Systek.

......

40. Lastly, I wish to stress to this Court that all along, Mr. Kwan has known full well that Mr. Jack Chow of KPMG introduced both DBS and Core Pacific to me and thereby to Systek. Mr. Kwan also understands that he had no role whatsoever to play in the sponsorship engagement with Core Pacific. Even on the terms of the amended Agreement, if it turns out to be enforceable, he is not entitled to any payment because Core Pacific was not directly engaged by him......"

22. In a supplementary statement he went on to say that he did not know about the meeting Mr Kwan stated, at paragraph 27 of his witness statement, he had had at Core Pacific. Mr Kwan made no mention of it to him.

23. Mr Chow in his witness statement on the topic stated:-

"7. On or about 2nd December 1999, I made an appointment for the Defendant to meet Core Pacific. I know Mr. D. C. Lee, the managing director of Core Pacific personally. Both Mr. D. C. Lee and myself had been involved in the same deals a number of times. That was why I recommended the Defendant to use Core Pacific at the beginning. When making the appointment, I explained to Mr. D. C. Lee the background and expected future growth of Systek. He was quite confident that Core Pacific could assist Systek to be listed on the Growth Enterprises Market. In my telephone conversation with Mr. D. C. Lee, he has never said he had heard Systek or that another person has mentioned Systek to him or to his staff.

8. The first meeting between Core Pacific and Systek took place on 2nd December 1999. I took directors of Systek including the Defendant and Mr. Frank Lee to see Mr. D. C. Lee in his office. The Plaintiff was also present. Again, he did not speak much in the meeting and had not produced any documents for the inspection.

9. Mr. D. C. Lee said he was very familiar with the software industry and did not need detailed explanations from the directors of Systek. In the meeting, he said he would ask his colleagues to prepare a proposal to Systek. Following the meeting, Core Pacific and Systek discussed the listing plan further and a service proposal was prepared by Core Pacific and sent to Systek direct. In early February 2000, Systek granted a mandate to Core Pacific for the listing of Systek on the Growth Enterprises Market.

10. That was how Core Pacific was introduced to Systek. Subsequently, KMPG became the auditors of Systek and assisted Systek Information Technology (Holdings) Limited to be listed on the Stock Exchange of Hong Kong Limited. In my working with Systek, I am not aware of any materials prepared by the Plaintiff."

24. And Mr D. C. Lee in his stated:-

"2. On or about 2nd December 1999, Mr. Chow Siu Lui, a Partner of KPMG rang me. Mr. Chow and myself had worked together in a number of deals. In that telephone conversation, Mr. Chow said he had been approached by Mr. Lee Wo Hing who introduced Mr. Frank Lee, a director of Systek Information Technology Limited ("Systek") to him. Systek was considering applying to be listed in the Growth Enterprise Market of the Stock Exchange of Hong Kong Limited ("GEM Board"). Mr. Chow said he had recommended Core Pacific to Systek and would wish to arrange a meeting to further discuss the details. In the telephone conversation, Mr. Chow explained to me the background and expected future growth of Systek. As Core Pacific had assisted a number of high tech company to be listed, I was confident Core Pacific could assist Systek to be listed in the Gem Board. An appointment was made and the directors of Systek were met in the office of Core Pacific.

3. The first meeting with the directors was on or about 2nd December 1999. Mr. Chow, the directors of Systek, including the Defendant and Mr. Frank Lee were present. The Plaintiff was also present. He did not speak much in the meeting and had not produced any documents during the meeting. So far as I am aware, the Plaintiff did not attend any other meetings after the first meeting. In my working with Systek, I had never come across any materials prepared by the Plaintiff.

4. In the meeting, I said I was very familiar with the software industry and did not need detailed explanation from the directors of Systek. I would ask my colleagues to prepare a proposal to Systek. Following the meeting, Core Pacific and Systek discussed the listing plan further and a service proposal was prepared by Core Pacific and sent to Systek. On 15th February 2000, Systek granted a mandate to Core Pacific for the listing of Systek in the GEM Board.

5. A few months later, Core Pacific successfully assisted Systek Information Technology (Holdings) Limited to be listed in the GEM Board.

6. Prior to that telephone conversation, no one, whether within or outside Core Pacific, had ever introduced Systek to me. While working on the case, no one within Core Pacific told me that he had introduced Systek to Core Pacific. I have always regarded Mr. Chow as the introducer."

25. It can be seen and I so find that there really is not much dispute as to the history of events leading to the ultimate engagement of Core Pacific as Systek's sponsor. Mr To says he was not told of the meeting Mr Kwan says he had on 29 November but he does not deny that it was held. Mr Cheung backs up Mr Kwan's account of that. What does emerge is that Mr Kwan's involvement with Core Pacific was preliminary and peripheral. Furthermore, it seems to me he has somewhat overstated the impact he made. Mr D. C. Lee to whom any proposal would have to have been referred for vetting, says he was handed no written presentation, nor does he recall being spoken to in-house by any colleague on the subject. In his mind and, it would seem, with some justification, Jack Chow was the introducer. Going now back to the agreement and giving the appropriate words therein their usual meaning I am unable to find that Mr Kwan by direct engagement procured Core Pacific to act as sponsor. Jack Chow to whom Mr To had been introduced (and whose firm KPMG were later to win the position of Systek Holdings' auditors) achieved that goal. Mr Kwan had in effect been sidelined.

26. So, what of the claim of exclusivity? I come to that next.

27. Mr Sham makes the point that the appointment of a sole agent to undertake a duty does not preclude the principal from himself pursuing that course thus to escape meeting the agent's fee. Mr To was entitled, as he did, to procure the sponsor ultimately leading to the GEM listing. The difficulty about that is that on the evidence adduced in the defence and as is apparent it was not Mr To but Jack Chow who undertook the role of engaging D. C. Lee's attention which led to Core Pacific's commitment. Mr To says as much in paragraphs 30 and 40, Jack Chow in paragraph 7 and D. C. Lee in paragraphs 2 and 6. Whether or not he was directly rewarded is neither here nor there. Applying the ordinary meaning to the words, by allowing Jack Chow to pursue and procure Core Pacific's sponsorship within six months of 5 October 1999, Mr To was in breach of the exclusivity provision of clause 1 of the agreement. The words Mr To required to be added to clause 3(a) before he signed do not affect the position at all.

28. Did that breach cause loss? That depends on the likelihood of Mr Kwan finding a sponsor himself within the time allotted. On the undisputed evidence I believe he could have. He was certainly active in doing the rounds of prospective banks. He secured a mandate from Vickers Ballas. Mr Ngai in his capacity as a vice president of Dresdner, who gave evidence of Mr Kwan making a presentation to him, expressed the belief that had the matter moved forward as expected his company would have submitted a viable offer. Above all he did initiate an audience with Core Pacific. Given his performance, there is a likelihood he would have pressed on had he not, as happened, been sidelined by Jack Chow and Mr To. On a balance of probabilities I am satisfied that he would have secured a sponsor on terms that would have been acceptable to Mr To. He is thus entitled to damages assessed at 8% of the issued shares' worth on placement in a manner that will have to be determined after evidence adduced at a resumed hearing unless the parties agree.

29. I come now to Mr Kwan's claims under clause 3(b). The short point about these is that whilst under the clause Mr Kwan was entitled to be remunerated on a scale bearing to the purchase price of shares bought by an investor he procured, neither of Messrs Liu and Wu bought any. And that is the end of it. Mr Harris for Mr Kwan submitted that there being an implied term (as admitted in the pleadings) that Mr To would not act so as to prevent Mr Kwan from earning a remuneration, his election not to proceed amounted to a frustration. I do not agree. Mr To stated his reasons for not completing. But he needed none. As long as there was no agreement binding the vendor and purchaser he was and remains under no obligation to his agent. These claims fail.

30. The result is that there shall be judgment for Mr Kwan for damages to be assessed; with liberty to apply for the matter to come back before me if the parties cannot agree.

31. As to costs; these shall be nisi at first instance. Mr Kwan having won as to part but the bigger part shall have two-thirds of his costs including any reserved, taxed if not agreed.