SUPER WORTH INTERNATIONAL LTD AND OTHERS v. COMMISSIONER OF THE INDEPENDENT COMMISSION AGAINST CORRUPTION AND ANOTHER

HCMP 1320/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1320 OF 2012

________________________

____________________

____________________

________________

JUDGMENT

________________

Introduction

1.  On 3 May 2012, the Independent Commission Against Corruption (ICAC) conducted a search, pursuant to a warrant, at the offices of Super Worth International Ltd (Super Worth) in Hong Kong.  A number of documents were seized.  Arrangements had been made to enable the sealing of any documents for which legal professional privilege (LPP) might be claimed. 

2.  It is convenient to refer to the 2^nd plaintiff as May Wang as that is the name she used during the course of the factual circumstances leading to the criminal charges she now faces.

3.  LPP is claimed in respect of six documents or groups of documents[1]:

1.  Fee note issued by Sargent Lawyers to NZ Dairy Trustee Ltd (NZ Dairy Trustee) dated 30 June 2011; (page 1),

2.  Correspondence bundle:

(a) letter from Patrick Mak & Tse:

(i) to Natural Dairy (NZ) Holdings Ltd, (Natural Dairy) dated 8 December 2011; (pages 2-6, and 2A-6E[2]),

(ii) to Natural Dairy dated 8 December 2011; (Pages 7 and 7A),

(iii) to Natural Dairy dated 20 December 2011, and attached schedules; (pages 8-36),

(b) letter from NZ Dairy Trustee to Natural Dairy dated 12 December 2011; (page 37),

(c) letter from Natural Dairy to Computershare Hong Kong Investor Services Limited dated 10 September 2010; (page 38),

(d) copy email, Jodie Chu to Joseph Tong dated 27 September 2010; (pages 39-40),

(e) letter from Computershare Hong Kong Investor Services Limited to Natural Dairy dated 3 September 2010; (page 41),

(f) ICBC (Asia) Nominee Ltd, Conversion Notice dated 26 July 2010; (page 42),

3.  Undated document headed “UBNZAH Cattle Ownership Options” prepared by Knight Coldicutt (Law Firm); (pages 43-45),

4.  Draft fax from Nigel Milton to Michael MacDonald dated 13 September 2011; (pages 46-47),

5.  E-mail from Kerry Knight of Knight Coldicutt to May Wang dated 13 September 2011; (pages 48-51),

6.  E-mail from Kerry Knight to May Wang dated 31 August 2011; (pages 52-55).

4.  A claim for LPP was made in respect of an exhibit to an affirmation of Hau Pak Sun, filed in the proceedings by way of the 2^nd affirmation of Jiang Ping. It was agreed that if the claims to LPP in respect of items 1-6 are not upheld, this claim would fall away.

5.  Initially, both Super Worth and May Wang (represented by Mr Tang) and NZ Dairy Trustee and New Zealand Dairy Processing, (represented by Mr Hui), claimed LPP in respect of each of the six groups of documents.

6.  By the conclusion of the trial Mr Tang claimed privilege in respect of item 1, and made no submissions, but no concession in respect of items 2 and 3.  In respect of items 4-6, the claim for LPP was abandoned by Mr Tang.  Mr Hui claimed LPP in respect of items 1, and 4-6.  Mr Hui abandoned the claim in respect of items 2 and 3.

The appointment of a special advocate:

7.  Neither side was concerned about me seeing the documents, (the bundle contained only 62 pages).  I understand however that the Commissioner was anxious that appropriate submissions should be able to be made in respect of the content of the documents, but recognised that those submissions could only be made by counsel who had seen the documents.  At the same time, understandably, the plaintiffs were concerned that prosecuting counsel, Ms Draycott, should not see the content of the documents in case the claim of privilege was upheld.

8.  By a consent order, Mr Newman Wong was appointed Special Advocate to make submissions on behalf of the Commissioner and the Secretary for Justice.  Mr Wong was given full access to the documents on a confidential basis, with both the Commissioner and the Secretary acknowledging that that access did not constitute a waiver of any privilege.  Mr Wong made submissions on the documents to assist me.  Both those submissions, and the reply from Mr Tang and Mr Hui to those submissions, were heard in camera.  This procedure broadly adhered to the procedure subsequently proposed by the Court of Appeal in CITIC Pacific Ltd v Secretary for Justice & Anor (unreported, 29 June 2015, CACV 7/2012).

9.  It was Mr Wong’s submission that in the context of this case the documents were not protected by LPP by reason of the fraud exception.

The extension of legal professional privilege to accountants:

10.  One of the documents in respect of which privilege was claimed was a draft letter prepared by a partner in a worldwide network of public accounting firms, in which taxation advice of a legal nature is given.  Mr Hui sought to extend LPP to accountants who gave legal advice.  In support of his submission Mr Hui relied upon a dissenting judgment of Lord Sumption in the decision of the United Kingdom Supreme Court in R (Prudential plc & Anor) v Special Commissioner of Income Tax & Anor [2013] 2 AC 185.  The majority of the Court rejected the extension of privilege to accountants giving legal advice, holding that the matter appeared to be one that was appropriately dealt with by the legislature.

11.  The judgment of Lord Sumption is powerful, and is, to an extent, supported by Lord Neuberger who recognised that the argument for extending the privilege is strong both in terms of principle and logic.

12.  Compelling though the argument is, I am not persuaded that this is an appropriate case to consider such a change.  As Mr Hui was obliged to concede, even if privilege did attach to accountants giving legal advice, the fraud exception would still apply.  If the fraud exception is established in this case, the argument becomes entirely academic.

Lex fori or lex causae:

13.  The usual rule is that the law applied to determine an issue of privilege is the lex fori, that is Hong Kong law: Lawrence v Campbell (1859) 4 Drew 485, 62 ER 186, and Re Duncan [1968] P 306.  Mr Hui sought to argue that as the documents emanated from New Zealand the law to determine the issue of privilege should not be the lex fori, but the lex causae, New Zealand law.  I acknowledge that academic writers[3] record that there are strong grounds for the reconsideration of the principle in Re Duncan. But for the reasons set out in §15 below, it is not necessary for me to resolve this issue in these proceedings.

14.  Before the court was an erudite opinion from a specialist tax counsel in New Zealand, Mr G D Clews, who demonstrated that in New Zealand there is a statutory right of Tax Advice Non-Disclosure which may result in documents containing legal advice which are prepared by an accountant, being clothed with a level of privilege.  The defendants’ expert advice did not dispute Mr Clews’ advice in this respect.

15.  Again however, Mr Hui was obliged to concede that even if that privilege existed, the fraud exception would still apply.  If the fraud exception is established in this case the argument becomes academic, and it is simply not necessary for me to examine the issue in the context of this set of facts.

16.  Consequently I do not propose to give any further detailed consideration to Mr Hui’s well researched and well presented arguments, but to consider first whether the fraud exception applies in this case.

The fraud exception:

17.  LPP is a basic right under Article 35 of the Basic Law, and consequently constitutionally entrenched.  The Court of Final Appeal has reiterated repeatedly that LPP is a fundamental right which the courts will jealously protect: see Solicitor v Law Society of Hong Kong (2006) 9 HKCFAR 175 [14-17]; Akai Holdings Ltd v Ernst & Young (2009) 12 HKCFARE 649 [66-69]; Secretary for Justice v Florence Tsang Chiu Wing (2014) 17 HKCFAR 739 [27-29].

18.  In so far as any document seized may be subject to LPP, the case for the Commissioner, advanced by Ms Draycott, was that by virtue of what is commonly known as the fraud exception, LPP had been lost.  The classic statement of the fraud exception, cited with approval by the Court of Appeal in Citic Pacific Ltd v Secretary for Justice [2012] 2 HKLRD 701 at 721, §77, comes from R v Cox and Railton (1884) 14 QBD 153 at 165 per Stephen J:

“The question, therefore, is whether, if a client applies to a legal adviser for advice intended to facilitate or to guide the client in the commission of a crime or fraud, the legal adviser being ignorant of the purpose to which his advice is wanted, the communication between the two is privileged? We expressed our opinion at the end of the argument that no such privilege existed. If it did, the result would be that the man intending to commit treason or murder might safely take legal advice for the purpose of enabling himself to do so with impunity, and that the solicitor to whom the application was made would not be at liberty to give information against his client for the purpose of frustrating his criminal purpose. Consequences so monstrous reduce to an absurdity any principle or rule in which they are involved.”

19.  A further passage from the judgment of Stephen J, at p 167, is equally instructive:

“In order that the rule (as to legal professional privilege) may apply there must be both professional confidence and professional employment, but if the client has a criminal object in view in his communications with his solicitor one of those elements must necessarily be absent. The client must either conspire with his solicitor or deceive him. If his criminal object is avowed, the client does not consult his adviser professionally, as it cannot be the solicitor’s business to further any criminal object. If the client does not avow his object he reposes no confidence, for the state of facts, which is the foundation of the supposed confidence, does not exist. The solicitor’s advice is obtained by a fraud. To return to our former illustration. If A., proposing to forge a will, says to B., a solicitor, ‘forge for me a will in the name of C.’, he asks B to commit a crime which is not B’s professional business. If he says, ‘I am C, and I want you to make my will for me’ he reposes no confidence in B., but on the contrary, commits a gross fraud upon him.”

20.  The discretion to order disclosure of legally professionally privileged documents by way of the fraud exception is one which is to be exercised with considerable caution: see Citic Pacific, p 721 §78, citing O’Rourke v Darbishire [1920] AC 581 at 604.

21.  It is now clear from Citic Pacific, (see §§77-79), that there must be a clear prima facie case that the offence existed and that the documents concerned came into existence as part of the offence.  In Citic Pacific the offence was fraud.  In the present case the allegation is that there are, inter alia, offences of fraud and money-laundering.

The evidence as to the offences:

22.  The defendants in the criminal proceedings, who include May Wang, face two counts.  The factual circumstances surrounding the charges is complex and so it is convenient to set those charges out in full.

“Count 1 (against all Defendants)

Statement of Offence

Conspiracy to defraud, contrary to Common Law and punishable under section 159C(6) of the Crimes Ordinance, Cap 200

Particulars of Offence

CHEN Keen (alias Jack CHEN), HAO May (formerly known as WANG May Yan) (alias May WANG) and YEE Wenjye (also known as YU Wenjie) (alias Eric YEE), between the 7^th day of May 2009 and the 8^th day of September 2009, both dates inclusive, in Hong Kong, conspired together to defraud the Stock Exchange of Hong Kong Limited (“SEHK”) by dishonestly:

(a) falsely representing that UBNZ Trustee Ltd (“UTCL”), UBNZ Funds Management Ltd and their respective ultimate beneficial owners were independent third parties to China Jin Hui Mining Corporation Ltd (“CJHM”) and its connected persons;

(b) falsely representing that there was no existing or prior relationship or understanding between the said CHEN Keen and said HAO May with respect to the acquisition of the entire issued share capital of UBNZ Assets Holdings Ltd by CJHM from UTCL (“the Acquisition”);

(c) concealing or failing to declare that the said CHEN Keen had an interest in the Acquisition in that the said KEEN Chen and the said HAO May were parties to an agreement signed between them and Latitude Asia Ltd dated the 8^th day of October 2008 to share the commission arising from or received through the sale and purchase of dairy farms owned by the CraFarms Group in New Zealand;

(d) falsely representing that the gross profit of the properties and fixed assets relating to the dairy farms owned by the CraFarms Group in New Zealand(“the Properties”) for the year ended 31^st day of May 2009 was approximately $92,520,000 Hong Kong currency;

(e) concealing or failing to disclose the true financial position of the Properties;

(f) causing SEHK to allow the publication by CJHM of the announcement dated the 4^th day of June 2009 and the circular dated the 8^th day of September 2009 in relation to the Acquisition which contained the false representations as aforesaid.

Count 2 (against all Defendants)

Statement of Offence

Conspiracy to defraud, contrary to Common Law and punishable under section 159C(6) of the Crimes Ordinance, Cap 200

Particulars of Offence

CHEN Keen (alias Jack CHEN), HAO May (formerly known as WANG May Yan) (alias May WANG) and YEE Wenjye (also known as YU Wenjie) (alias Eric YEE), between the 7^th day of May 2009 and the 19^th day of July 2010, both dates inclusive, in Hong Kong, conspired together to defraud the China Jin Hui Mining Corporation Ltd (“CJHM”) and its existing shareholders by dishonestly:

(a) falsely representing that UBNZ Trustee Ltd (“UTCL”), UBNZ Funds Management Ltd and their respective ultimate beneficial owners were independent parties to CJHM and its connected persons;

(b) falsely representing that there was no existing or prior relationship or understanding between the said CHEN Keen and said HAO May with respect to the acquisition of the entire issued share capital of UBNZ Assets Holdings Ltd by CJHM from UTCL (“the Acquisition”);

(c) concealing or failing to declare that the said CHEN Keen had an interest in the Acquisition in that the said CHEN Keen and the said HAO May were parties to an agreement signed between them and Latitude Asia Ltd dated the 8^th day of October 2008 to share the commission arising from or received through the sale and purchase of dairy farms owned by the CraFarms Group in New Zealand;

(d) falsely representing that the gross profit of the properties and fixed assets relating to the dairy farms owned by the CraFarms Group in New Zealand (“the Properties”) for the year ended 31^st day of May 2009 was approximately $92,520,000 Hong Kong currency;

(e) concealing or failing to disclose the true financial position of the Properties;

(f) causing CJHM and its existing shareholders to approve the agreement for the Acquisition

(g) causing CJHM to issue and release convertible notes and an optional bond for the payment of the Acquisition.”

23.  May Wang established a number of companies in the course of her activities.  These include New Zealand Dairy Processing Limited (New Zealand Dairy Processing, the 4^th plaintiff); NZ Dairy Trustee Ltd (NZ Dairy Trustee, the 3^rd plaintiff); UBNZ Assets Holdings Ltd (UBNZAH); UBNZ Funds Management Ltd (UBNZFM); UBNZ Trustee Ltd (UBNZT); and Super Worth International Ltd (Super Worth, the 1^st plaintiff).  All of these companies, at different times and for different purposes, were vehicles used by May Wang in the course of the activities described below.

24.  Ms Draycott set out in her skeleton the following factual background to the charges[4]:

“31. In short, a company listed on the Hong Kong Stock Exchange, Natural Dairy[5] was induced by May Wang and her accomplice Jack Chen (Chen), to acquire 22 dairy farms in New Zealand from May Wang’s Company UBNZT[6]. UBNZT did not own the farms but would purchase them from the CraFarms Group with Natural Dairy’s money in the name of May Wang’s Company UBNZAH. Natural Dairy would then own UBNZAH and, consequently, the dairy farms. The acquisition could not proceed without the approval of the New Zealand Overseas Investment Office (OIO).

32. The CraFarms Group’s dairy farms were on the point of bankruptcy, but May Wang and Yee falsified (the CraFarms) accounts so that they appeared to be in substantial profit and Natural Dairy was persuaded to make the acquisition[7].

33. The false accounts were published in Natural Dairy’s circular to shareholders on 8 September 2009. The circular also stated that there was no existing or prior relationship or understanding between May Wang and Chen such that the acquisition would become a connected transaction within the meaning of Chapter 14A of the Listing Rules of the SEHK.

34. This was untrue as they had been joint shareholders of UBNZFM through Chen’s company Global Financial Investment Group until 8 May 2009, and had been parties to a commission sharing agreement to share commission arising out of the sale of the farms with a company called Latitude Asia Ltd dated 8 October 2008. Had the acquisition proceeded as a connected transaction, Natural Dairy would have had to engage an independent and financial advisor[8].

35. In ignorance of the true state of the farms finances and the true relationship between May Wang and Chen, the shareholders of Natural Dairy approved the acquisition at an Extraordinary General Meeting.

36. In order to complete the acquisition Natural Dairy raised HK$955.4 million through the issue of convertible notes and an optional bond.

37. Between 23 December 2009 and 22 April 2010, NZ$125.6 million of the money raised by Natural Dairy and NZ$64.6 million received by UBNZT through the sale of Convertible Note-B was remitted to New Zealand to the trust account of a firm of solicitors in Auckland called Knight Coldicutt for the purpose of the acquisition. This firm also worked for UBNZT, UBNZFM, and UBNZAH, companies owned by May Wang.

38. On 10 February 2010, Natural Dairy transferred NZ$51.6 million through Knight Coldicutt, to UBNZT for the purchase of 20% of UBNZAH which in turn would purchase and hold the farms[9]. The money was transferred to UBNZAH, and over the next few days 4 of the 22 farms were purchased for NZ$25.2 million and put into the name of UBNZAH.

39. On 11^th and 15^th February 2010, Knight Coldicutt transferred sums of NZ$10.7 million and NZ$14.8 million being the remainder of the NZ$51.6 million after the purchase of the farms, to the account of UBNZT held at HSBC in New Zealand. This money was used to buy property in Auckland including 35 Dudley Road Mission Bay in the name of a company called Anfatex owned by Chen. The remainder, NZ$0.5 million was transferred to May Wang’s Company UBNZFM through UBNZAH.

40. On 25^th May 2010, Knight Coldicutt transferred NZ$65.6 million of the money raised by Natural Dairy to the account of UBNZTL of which NZ$60 million was immediately transferred to UBNZFM. The same day UBNZFM paid NZ$31 million to New Zealand solicitors, Minter Ellison, as a deposit pending the application to the OIO for the approval for the purchase of the remainder of the farms. The deposit was only returnable as to NZ$21 million in the event of a refusal (by the OIO to the sales).

41. On 8^th December 2010, May Wang was declared bankrupt in New Zealand.

42. On 16^th December 2010, May Wang and Chen were arrested in Hong Kong.

43. On 22^nd December 2010, the OIO refused permission to the purchase of the remainder of the farms and Minter Ellison released the remaining deposit of NZ$21 million to Knight Coldicutt.

44. May Wang incorporated NZ Dairy Trustee on 15 December 2010, and made three people, Ms Malia Pouhila (Ms Pouhila), a Mr Hunter and a Mr Xie directors and shareholders of the company.

45. On 23 December 2010, she made the same three people directors of the company, UBNZFM in her place and transferred the shares from herself to NZ Dairy Trustee.

46. On 23 December 2010, she made the same three people directors of UBNZAH and transferred the shares held by UBNZT (80%) to NZ Dairy Trustee. Natural Dairy had purchased the remaining 20% of the shares in the company on 10 February 2010.

47. On 23 December 2010, she made the same three people directors of New Zealand Dairy Processing in her place. Its shares were already held by UBNZFM and so under the control of NZ Dairy Trustee.

48. Thus, NZ Dairy Trustee owned UBNZFM and the money remaining in it, 80% of UBNZAH and its 4 farms and New Zealand Dairy Processing. The directors and shareholders of NZ Dairy Trustee were May Wang’s nominees and so the proceeds of her crime, (the falsification of the accounts), remained under her control.

49. NZ Dairy Trustee opened a bank account on 21 December 2010 to receive a cheque from Knight Coldicutt on 13 January 2011 for NZ$23 million of which NZ$9.3 million was transferred to Super Worth on 21 January 2011. The account was closed afterwards. (Ms Draycott says, and I accept, that) there is a strong inference that this money comprised in part the deposit returned by Minter Ellison following the decline of OIO permission.

50. When Mr Xie, Mr Hunter and Ms Pouhila resigned from the directorships and shareholding in late 2011 they were variously replaced by Lin Renhui, Miao Jiahui and Walter Shum Wan Wah. Mr Lin and Mr Miao gave the address, 35 Dudley Road, Mission Bay, as their residential address to the New Zealand Companies Office, which was the property bought by May Wang through UBNZT and put into the name of Jack Chen’s Company, Anfatex.

51. Sargents Lawyers acted for the parties in each of the changes to the companies referred to above and in the diagram, from the time of May Wang’s bankruptcy.

52 (Ms Draycott submits, and I accept, that) there is a strong inference that the new directors were put in place by May Wang on the same, or similar terms as Ms Pouhila. Eventually Pouhila resigned as she found work too taxing.

53. Ms Pouhila gave evidence in New Zealand following a request from mutual legal assistance. She said that she took over the shareholding in directorships of NZ Dairy Trustee and New Zealand Dairy Processing at the request of May Wang when she was declared bankrupt. Ms Pouhila paid no money for her shareholding although it carried with it both the ownership and the administration of valuable assets. Ms Pouhila’s evidence was that she would return the directorships and the shareholding to May Wang when she was discharged from bankruptcy.

54. Ms Pouhila received no payment except the sum of NZ$40,000 as directors fees from each of New Zealand Dairy Processing and UBNZAH. She managed the assets of the companies including the farms under the direction of May Wang and, the evidence was, the direction of “UBNZ representatives in Hong Kong”. She was herself a director and shareholder of all of the UBNZ companies except UBNZT which was still owned and controlled by May Wang. Pouhila said NZ Dairy Trustee was just a trustee company and she did not remember physically doing anything for it.

55. She remembered opening a bank account for NZ Dairy Trustee in order to receive the cheque for NZ$23 million from Knight Coldicutt. She used some of the money to run the farms and paid NZ$9.3 million to Super Worth at the direction of May Wang or the “UBNZ people in Hong Kong”.

56. The banking documents for Super Worth show that the company opened an account at ICBC (Asia) on 10 December 2010.  The company’s referee at the bank was Jack Chen’s company Goldmate Securities (USA) Limited.  May Wang was the sole signatory to the bank account.  The banking documents show that NZ$9.3 million was deposited, (less bank charges) on 25 January 2011.”

25.  There is no argument from Mr Tang or Mr Hui that the falsification of the CraFarms accounts did not constitute a criminal offence in Hong Kong.  Neither did they attempt to suggest that it was not as a result of that falsification that China Jin Hui Mining Corporation Ltd (CJHM) was persuaded to enter into agreements to purchase the farms from UBNZT. 

Discussion:

26.  I am satisfied from the foregoing description of the prosecution case that there is a strong prima facie case that the activities of May Wang in the formation of the various companies, the movement of funds around those companies, the various steps were taken by those companies to give effect to the acquisition of the farms by UBNZT, the ultimate sale of four of the farms to CJHM, and the attempted sale of the remainder of the farms, (not approved by the OIO), were all part and parcel of the steps that were necessary to take in order to release to May Wang and her accomplices the proceeds of sale.  Those proceeds of sale had been obtained through fraud.  The “laundering” exercise undertaken by the companies was an essential step in the commission of her crimes.

27.  I accept Ms Draycott’s submission that although some of the steps, particularly the changes of directors of the companies, with the assistance of legal advice, took place after the period that is the subject of the charges, there is a prima facie case that those steps were integral steps in the process of May Wang releasing the funds from those companies.  Indeed, any steps taken to enable the release of funds from companies following the sale of the farms would be a step undertaken in the commission of the crime. 

28.  The mere fact that those steps do not form part of the charges pending in Hong Kong does not detract from the fact that they are steps in a criminal activity, and accordingly that legal advice given in respect of those steps would be subject to examination under the fraud exception.

29.  Mr Tang and Mr Hui briefly raised what might best be described as future jury points by way of criticism of the submission by Ms Draycott that there was a strong prima facie case of fraud in the circumstances.  But they did not, and indeed could not at this stage, seriously dispute the existence of a strong prima facie case of fraud, particularly in relation to the falsification of the accounts. 

30.  There is a clear and very strong prima facie case of fraud in relation to May Wang’s alteration of the CraFarms accounts.  The activities that she undertook following her bankruptcy, using Super Worth, NZ Dairy Trustee and New Zealand Dairy Processing and other companies, were activities which, prima facie, appear to be designed solely to conceal her involvement with the farms that she had acquired as a result of the fraud, and to release the funds from the sale of those farms from companies used by her as vehicles in the purchase and sale.

31.  I am accordingly satisfied that any legal advice given in respect of the activities involved in the incorporation of the various companies, the appointment or resignation of directors of those companies, the changing of shareholding in the companies, and the movement of funds are activities which by reason of the fraud exception cannot be protected by LPP by reason of the fraud exception.

32.  Mr Tang and Mr Hui suggest that there is an insufficient causal link between the fraud, and the activities in relation to company documents because of the lapse of time between the actual fraud itself, (the falsification of the accounts), and the documents for which LPP is claimed.  I accept Ms Draycott’s submission that there is a strong prima facie case that the lapse of time between the two events is irrelevant, as advice concerning the administration of the assets of NZ Dairy Trustee particularly, and other companies generally, must be advice given in furtherance of dealing with the proceeds of crime.

The review of the documents[10]:

33.  Item 1:  I accept that a solicitor’s fee note may carry with it LPP.  Any LPP that there may have been with this fee note is lost by reason of the fraud exception.  The note covers attendances prior to 30 June 2011, including advice in respect of “director issues”.  The manipulation of directors following May Wang’s bankruptcy was a necessary step in keeping the companies going, thereby enabling her to release the funds.  The fee note must be disclosed.

34.  Item 2(a)(i):  this document is a solicitor’s letter addressed to Natural Dairy giving legal advice on the acquisition of UBNZAH.  Both of these companies played central roles in the fraudulent transaction.  The letter relates to steps taken in the transaction.  Accordingly by reason of the fraud exception, LPP is lost.  The letter must be disclosed.

35.  Item 2(a)(ii): this is a further solicitor’s letter giving legal advice to Natural Dairy on the acquisition of UBNZAH.  The same reasons as above, by reason of the fraud exception, LPP is lost.  The letter must be disclosed.

36.  Item 2(a)(iii):  this document is a solicitor’s letter, together with attachments, in which the solicitors set out the terms upon which they will hold certain documents in escrow pending an arrangement made between UBNZ, UBNZFM, Natural Dairy and a fourth company.  The attachments constitute a review of the documentation involved in the various transactions between the various companies.  Again, the companies that I have named are companies which played central roles in the fraudulent transaction.  Part of the arrangement referred to relates to a central step in the fraudulent transaction.  Accordingly by reason of the fraud exception, LPP is lost.  The documents must be disclosed.

37.  Item 2(b):  this is an simple document constituting a letter from NZ Dairy Trustee to Natural Dairy.  It does not in any way involve solicitors or legal advice, although it relates to a vital legal step in the procedure.  It does not carry any LPP, and must be disclosed.

38.  Item 2(c):  this is an instruction from Natural Dairy to a central share registry. It does not in any way involve solicitors or legal advice.  It does not carry any LPP, and must be disclosed.

39.  Item 2(d):  the occupations of the person sending the e-mail and the person receiving the e-mail are not identified.  Neither Mr Tang nor Mr Hui suggest that either is a solicitor.  In those circumstances cannot be said that the matter could possibly carry any LPP.  It must be disclosed.

40.  Item 2(e):  this is a letter from Computershare Hong Kong Investor Services Ltd to Natural Dairy.  It does not in any way involve solicitors or legal advice.  It does not carry any LPP.  It must be disclosed.

41.  Item 2(f):  this is a formal notification on the part of a bank in relation to convertible shares.  It does not in any way involve solicitors or legal advice, although it may be an important legal step in a process.  It does not carry any LPP.  It must be disclosed.

42.  Item 3:  Mr Tang did not abandon the claim, but made no submissions in respect of this document.  The writer, believed to be a solicitor, (no evidence of this was identified to me), gives advice as to how UBNZAH might go about purchasing and owning long-term up to 30,000 head of cattle. 

43.  The fraud for which charges are laid relates to the purchase of dairy farms.  Any advice from a solicitor as to how the fraudulently obtained farms might be operated must lose any LPP protection that advice might have had when the farms were obtained by fraud.  Whether the cattle were acquired or not is irrelevant. The document came into existence in the course of legal advice in relation to a fraudulent acquisition of property.  Any LPP the document might have had is lost by reason of the fraud exception.  The document must be disclosed.

44.  Item 4:  this is a draft fax in which the author, a partner/employee in a worldwide network of accounting firms gives consideration to Goods & Services Tax (GST) issues arising for New Zealand Dairy Processing.  The letter is addressed to an officer of the Inland Revenue Department in New Zealand.  The letter refers to the movement of funds surrounding the various companies involved in the fraudulent transaction.  Even if some sort of privilege were attached to it, that privilege is lost by reason of the fraud exception.  The document must be disclosed.

45.  Item 5: this e-mail appears to constitute a list of “to do” items, with attachments, prepared by the solicitor, Kerry Knight, and sent to himself with a copy to May Wang.  It refers, amongst other matters, to steps that needed to be taken during and following the acquisition of the farms.  It does not appear to specifically constitute legal advice, although there are steps in the list which might be undertaken by a lawyer.  In any event, by reason of the fraud exception any privilege that might have attached to the document has been lost.  The document must be disclosed.

46.  Item 6:  this is an e-mail in which Kerry Knight, solicitor, forwards an e-mail he has received from an employee of the accounting firm in relation to the movement of funds between the various companies involved in fraudulent transaction.  Instructions are being sought to assist it in dealing with New Zealand Goods and Services Tax matters.  The e-mail does not give legal advice, but nearly seeks instructions.  By reason of the fraud exception no LPP attaches to this document.  The document must be disclosed.

Costs:

47.  The claim for LPP has comprehensively failed.  There will be an order nisi that the plaintiffs must pay the defendants costs of and incidental to the proceedings, to be taxed if not agreed, together with a certificate for two counsel.