PEACE MARK (HOLDINGS) LTD (IN LIQUIDATION) AND ANOTHER v. CHAU CHAM WONG PATRICK AND OTHERS

HCA 2371/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 2371 OF 2009

________________________

________________________

_______________

D E C I S I O N

_______________

1.  This is the Plaintiffs’ Summons for expert evidence under O.38, r.36(1). The 1^st Defendant is bankrupt and no longer involved in this action. There are no 6^th and 7^th Defendants because the intended parties have not been served in this action. The 8^th Defendant is deceased. The remainder of the Defendants are in agreement (or takes a neutral stance) that expert evidence is required for the trial of this action on 2 areas, namely, forensic accounting and Bermudan law.

2.  There are 2 issues to resolve, namely, the formulation of the issues for expert evidence and whether single joint expert (SJE) or separate experts (SE) is/are be instructed.

Background

3.  The 1^st Plaintiff (PMHL) was incorporated in Bermuda and was listed on The Stock Exchange of Hong Kong Ltd. It was the holding company of a group of companies (Group) which carried on business in the manufacture, distribution and retailing of luxury and mid-range watches and mechanical movements.

4.  The 2^nd Plaintiff (PML) was an indirect wholly-owned subsidiary of PMHL.  Both Plaintiffs are in liquidation.

5.  The 1^st to 3^rd Defendants were directors of PMHL and holders of key executive positions.  The 1^st and 2^nd Defendants were also directors of PML.  The 1^st to 3^rd Defendants are referred to as the “Senior Directors” in the Re-Amended Statement of Claim (RASOC).  I shall adopt this terminology for the present purpose.  The 2^nd and 3^rd Defendants (D2 and D3) were represented by, respectively, Mr Kung and Mr Lai. 

6.  The 4^th and 5^th Defendants were directors of both Plaintiffs.  The 9^th to 12^th Defendants were the independent non-executive directors of PMHL.  These Defendants (4^th, 5^th, 9^th to 12^th) (for convenience, they are referred to as D4-12 and references to Defendants are references to the Defendants before the court) were represented by Mr Dawes SC with Mr Man. 

7.  The Plaintiffs’ case is that the Senior Directors were responsible for perpetrating a false trading scheme (Scheme), and D4-12 were negligent in failing to discover the Scheme.

8.  The Plaintiffs allege that under the Scheme, PML would purchase watches from false suppliers and then sell them to false customers.  These were fictitious transactions with no goods changing hands, and the false suppliers and false customers were controlled by the Senior Directors.

9.  As a result of the Scheme, the profits of the Group were substantially overstated in the audited financial statements for the financial years ended 31 March 2006, 31 March 2007 and 31 March 2008.  The Group was in fact making substantial losses.  The dividends paid out as a result of the false prosperity should not have been declared, and the Plaintiffs ought not to have incurred tax liabilities for profits which did not exist.

10.  In respect of the defence, it is fair to say that there is no positive case advanced in respect of the Scheme.  The Defendants are merely putting the Plaintiffs to prove their case. 

11.  In addition, D2 says that he was not responsible for any financial matters.  Likewise, D3 says that his job duties did not cover the matters involved in the Scheme, and he relies on the unqualified opinion of the auditors.  Further, he relies on: (a) Article 166 (Article 166) of the Articles of Association of PMHL which provided an indemnity by PMHL over his liabilities to it; and (b) s.358 of the old Companies Ordinance, Cap 32 which gave rise to statutory relief over his liabilities on the ground that he had acted honestly and reasonably.  D3 has also raised the issues of illegality and contributory negligence.

12.  The position of D4-12 is that they had no knowledge of or any involvement in the Scheme.  They were not involved in the day-to-day trading, sales or investment transactions of the Plaintiffs.  No suspicious circumstances had come to their notice.  They further rely on: (a) statutory relief from liability under ss.902 to 904 of the Companies Ordinance, Cap 622 (which superseded s.358) and/or s.281 of the Companies Act 1981 of Bermuda (which are the equivalent Bermudan provisions); and (b) Article 166.

Law

13.  The admission of opinion evidence in civil proceedings is governed by s.58 of the Evidence Ordinance, Cap 8.  There is a 2-stage test for the admission of opinion evidence, namely, (a) it must be evidence involving expertise; and (b) it is relevant in the sense that it is helpful to the court for resolving the issues in the action (see Wong Hoi Fung v American International Assurance Co (Bermuda) Ltd [2002] 3 HKLRD 507, at 511I to 512C). 

14.  The relevant provisions in the rules are to be found in O.38, rr.35 to 44. 

15.  As to the court’s general approach to the weight to be attributed to expert evidence, Nina Kung v Wang Din Shin (2005) 8 HKCFAR 387, at §§17-20, made clear that the expert’s role is to assist the court in its task.  The court must approach expert evidence with some caution (particularly the opinion part of the evidence) and must form its own independent assessment of that evidence and come to its own conclusions based on the facts and its own reasoning.

16.  In respect of foreign law, it was held by the English Court of Appeal in Grupo Torras SA v Sheik Fahad Mohammed Al Sabah [1995] CLC 1025 that :

“Questions of foreign law are questions of fact which must be proved to the satisfaction of the Judge. If the evidence of expert witnesses conflicts, it is the Judge’s duty to resolve these differences in the same way as he must in the case of other conflicting evidence of fact … The Judge is free to scrutinise the witness and what he says as on any other issue of fact and can use his common sense to reject the evidence of an expert witness if what he says is patently absurd or inconsistent with the rest of his evidence. However, where the evidence of an expert witness on foreign law is not contradicted, the Judge should be reluctant to reject it …”

17.  There seems to be a disagreement between the parties on whether it is permissible for an expert to express a view on an ultimate question which the court has to determine in the action, eg, whether there was a false trading scheme.  Pursuant to s.58(1) and (3) of the Evidence Ordinance, expert evidence is admissible on any relevant matter, which includes an issue in the proceedings in question.  These provisions abrogate the rule that expert evidence on the ultimate issue should be excluded: see Glaverbel SA v British Coal Corp [1995] RPC 255, at 277 (lines 15-30) and Phipson on Evidence, 18^th edn, rubric 33-12.

18.  In my view, the issue is not whether it is permissible for expert evidence to intrude upon the ultimate question.  It is an issue of admissibility.  If the court is fully able to answer the ultimate question without assistance, then such evidence is not admissible as being irrelevant or unhelpful.  See Re Ocean Time Development Ltd [2008] 2 HKLRD 393, §§16, 19 and 26.

Bermudan law issues

19.  The parties are in agreement in respect of 6 issues (issues 2.1 to 2.6) set out on p.14 of the skeleton submissions of Ms Lam, who appeared for the Plaintiffs.  However, I regret to say that the formulation of the issues is unsatisfactory.  Three of the issues (2.3 to 2.5) were approved by the court at the hearing after polishing as follows :

2.3. Whether it is permissible for PMHL to indemnify its officers against their liability to it in respect of conduct not involving wilful negligence, wilful default, fraud or dishonesty pursuant to Article 166 of its Articles of Association (Article 166).

2.4. Whether Article 166 was incorporated as a term of the contractual relationship between each of the defendants and PMHL.

2.5. The meaning of “wilful negligence”, “wilful default”, “fraud” and “dishonesty” under Article 166.

20.  On reflection, “the defendants” in 2.4 should be further modified by identifying only those defendants who are relying on Article 166.

21.  In respect of the other 3 issues, they are far too wide and unfocused.  It must be right that the issues for experts should be clear so that the recipients will be in no doubt as to what their tasks are, and they will not be open to argument in the future.  The issues must also be specific, focusing on the disputes in question.  For instance, it will not be helpful for the court to be advised generally on the “scope and limit of a director’s duties to a company” (issue 2.1 as currently proposed).  Instead, the expert should be asked to address the duties relied upon by the Plaintiffs.

22.  Pursuant to the discussions at the hearing, there is agreement by the parties that issue 2.1 is to be reformulated so that a simple confirmation by the expert of the existence of the director’s duties pleaded in the RASOC under Bermudan law at the material times would suffice. 

23.  The agreement is clearly a sensible one, bearing in mind that Bermuda applies a common law system.  Judging by the material which has been cited to the court, its companies legislation, like those of Hong Kong, can be traced to those found in England.  I would be surprised if the Bermudan law on director’s duties differs vastly from that of Hong Kong.  Some variance can be expected, eg, Mr Dawes pointed out that in Hong Kong a company is not permitted to indemnity its officers since 1932[1].

24.  Both issues 2.2 and 2.6 have to be reformulated.  In respect of the former, the issue is whether it was permissible to declare dividends when PMHL was suffering from significant loss.

25.  As regards issue 2.6, it is unhelpful for the court to be advised generally the circumstances in which a director can benefit from the statutory relief under s.281.  The issue should be specific in that those circumstances relied upon by the relevant Defendants in their pleadings should be addressed. 

Forensic accounting issues

26.  These issues concern 2 areas, liability and quantum of damages.  The Plaintiffs proposed 3 issues to address them, issues 1.1 to 1.3 (p.12 of the skeleton submissions of Ms Lam).  Issues 1.2 and 1.3 deal with quantum.  I prefer them over the rival suggestions of the Defendants.  As formulated, issues 1.2 and 1.3 are clear and focused.  I agree with these issues, which are as follows :

1.2. Do the adjusted accounts of PMHL (as set out in Schedule 3 of the Re-Amended Statement of Claim) reflect the true financial position of the PMHL Group?  If not, what were the true financial positions of the PMHL Group during the Relevant Financial Years?

1.3. Whether the alleged quantum of loss as pleaded by the Plaintiffs (i.e. the tax overpaid and dividends overpaid by the 1st Plaintiff and the tax overpaid by the 2nd Plaintiff) is accurate and if not, what should the quantum of loss be, if any?

27.  The proposed issue 1.1 is quite unsatisfactory.  Regrettably, the alternatives suggested by the Defendants are not improvements.

28.  To understand issue 1.1, which deals with liability, it has to be explained that the Plaintiffs’ case on the Scheme is based on inferences drawn upon various facts, eg, the lack of supporting documents for the false transactions and the absence of assets which might represent the profits which supposedly had been earned.  What the Liquidators had done was to have a team of 3 or 4 people (probably trained in accounting) going through the Plaintiffs’ documents in order to ascertain those facts.  I have been informed that the documents were voluminous[2], and it had taken the team 3 or 4 weeks to complete the exercise.

29.  The Plaintiffs’ formulation of issue 1.1 confines the expert evidence to whether the methodology employed in the examination of the documents was appropriate.

30.  First of all, I agree with Mr Dawes that in a case which involves the analysis of very substantial volume of accounting documents, the court will be assisted by the evidence of a forensic accounting expert.  I would go as far as saying that such assistance is indispensable because the scale of the matter is such that it is inconceivable for the details of the examination or analysis by the Liquidators’ team to be laid out in the course of the trial and examined in detail by the court.  The resources of the court should only be deployed on matters of real controversy. 

31.  Secondly, if the expert’s evidence is merely confined to the methodology used by the Liquidators’ team, then there will be no checking or verification over the work carried out by the team.  I bear in mind the lack of a positive defence over the Scheme, but I cannot see how the court can simply accept the evidence of the team as reliable or how the Defendants may be able to test such evidence without having their expert(s)’ view on the quality of the work. 

32.  Therefore, the expert evidence should include the verification of what the Plaintiffs say is shown by the accounting documents.  For instance, whether transaction X, which is said to be false by the Plaintiffs, was supported by any documentation. 

33.  For that purpose, Ms Lam has agreed to provide a schedule setting out the false transactions and the reasons for which the Plaintiffs say that they are false.  Based on that schedule, the accounting expert should verify whether those reasons (insofar as they involve accounting matters) are sound.

Reformulation

34.  For the reasons stated above, issues 1.1, 2.1, 2.2 and 2.6 are to be reformulated.  The parties are to endeavour to agree the formulations, and then write a succinct joint letter to the court for approval.  Failing agreement, they are to write a succinct letter setting out why their formulation should be preferred.  Any unreasonableness in accepting a proper formulation may be penalised on costs.

SJE or SE

35.  O.38, r.4A provides for the jurisdiction to appoint a SJE.  The court may appoint a SJE even if a party to the action disagrees with the appointment: O.38, r.4A(4).

36.  O.38, r.4A(5) sets out some of the circumstances which the court may take into account in deciding whether to appoint a SJE :

“(a) whether the issues requiring expert evidence can readily be identified in advance;

(b) the nature of those issues and the likely degree of controversy attaching to the expert evidence in question;

(c) the value of the claim and the importance of the issue on which expert evidence is sought, as compared with the cost of employing separate expert witnesses to give evidence;

(d) whether any party has already incurred expenses for instructing an expert who may be asked to give evidence as an expert witness in the case; and

(e) whether any significant difficulties are likely to arise in relation to—

(i) the choosing of the joint expert witness;

(ii) the drawing up of his instructions; or

(iii) the provision to him of the information and other facilities needed to perform his duties.”

37.  It is relevant to note that O.38, r4A was part of a substantial body of rules incorporated into the Rules of the High Court as a result of the Civil Justice Reform (CJR) by way of Legal Notice No.152 of 2008.  Its aim is plain and is consistent with that of the CJR, which had been encapsulated in the underlying objectives set out in O.1A, r.1.  In short, to provide for the just resolution of disputes expeditiously and with costs-effectiveness.

38.  It is instructive to note that under Practice Directions 5.2 (Case Management), the court will not give permission to a party to adduce expert evidence unless the appropriateness of appointing a SJE has been considered (§20(1)(c)).

39.  It must not be forgotten that the scarce resources of the court belong to the public.  Such resources are to be fairly distributed amongst the court users regardless of their means. 

40.  On the matter of expert evidence, under an adversarial system it is often “overlooked” that such evidence is provided to assist the court in the just resolution of dispute because the matter involves specialist knowledge.  It is not to be treated as a tool to enhance the chances of winning a case.  Hence, the introduction under the CJR that an expert is required to make a declaration of duty to the court under O.38, r.37C. 

41.  Regrettably, an adversarial system is not conducive to producing objective expert evidence.  Litigants can simply shop around until they find a witness whose evidence suits their case.  Resourceful litigant in particular will normally have no difficulty finding a witness of choice.  This is borne out by the experience of the court.  Unfortunately, the measures introduced by the CJR have not achieved the desired effect. 

42.  The court continues to be confronted with cases where there is an unexpected gulf between the competing expert evidence when common sense and experience suggest that the reasonable range of opinion should be quite narrow, eg, valuation evidence of real property.  Not infrequently, the impartiality of expert witness is explicitly challenged.  Frequently, such challenge is made implicitly by way of exposing the fragility of the witness’ evidence.

43.  In a case of any complication, dealing with skewed expert evidence, bearing in mind that by definition the court is handicapped because it does not possess the expertise, would require an enormous amount of time and energy.  This is quite unfair to the other court users.  More importantly, providing the court with tailored expert evidence is not helpful to a just resolution of the dispute.  The case of Chun Wo Building Construction Ltd v Metta Resources Ltd, HCCT 29/2013, 19 August 2016, provides an illustration of these problems (see §§230-231 and 407-410).

44.  It is the duty of the court to uphold the CJR. The instruction of a SJE serves to avoid partiality and thus enhance the quality of the assistance to the court. 

45.  Experience shows that having a SJE would serve to narrow down the issues.  It avoids the nuts and bolts disputes between separately instructed experts, which are surprising and seen far too often. 

46.  Even on issues which allow certain variation of opinion, an impartial expert with proper understanding of his duty to the court would be in a position to advise the court on the ground(s) and supporting material for such variation so as to assist the court to arrive at the right determination.  I do not believe that such cases are necessarily better served by having opposing expert evidence or separately instructed experts.

47.  On the issue of costs, instructing SE can have a very significant impact on the length of trial.  Trial costs are the most expensive constituent of the costs of litigation because of the attendance of the legal teams.  Trial costs are to be multiplied when it involves, like the present case, multiple parties.  Even in the event of need for any of the parties to instruct his own expert (subject to the leave of the court) due to disagreement with the evidence of the SJE, the costs involved will likely to be a fraction of the costs required for instructing SE.  The reason is that the additional expert will likely be required to address only the discrete issue(s) on which his client disagrees with the SJE.

48.  On any objective assessment, I am unable to see much disadvantage, if any, in instructing SJE.  It can enhance the quality of the expert evidence, reduce the costs of litigation, improve the speed at which actions can be resolved and is helpful to the fair distribution of the court’s resources.

49.  The use of SJE is the growing trend, and in my respectful view, it should be recognised as the mainstream in modern litigation. 

Forensic accounting

50.  The Plaintiffs do not oppose the appointment of SJE on forensic accounting.  The 2^nd Defendant is neutral, and the rest of the Defendants prefer to appoint their own expert.

51.  The issues have been identified above.  The exercise for the forensic expert and his team is somewhat mechanical in nature in respect of the liability issue – going through the voluminous documents and checking to see if the allegations of the Plaintiffs are borne out. 

52.  Likewise, on the quantum issues (see para 26 above) the task for the expert is, primarily, to see if the case advanced by the Plaintiffs (which reflects the work carried out by the Liquidators) is accurate. 

53.  Accounting is a reasonably well-established discipline.  I do not believe that this is a case where the court will be assisted by receiving a range of opinions.  No concrete example or illustration has been advanced by any of the opposing Defendants as to why the court may be so assisted.

54.  On the other hand, SE would entail having 4 teams of accountants spending weeks to pore through the documents.  Unless their evidence is entirely agreed, there will be many more witnesses for the trial.  Notwithstanding the size of the Plaintiffs’ claim and the importance of the issues, I do not believe that the costs, delay and use of the court’s resources are justified.  I bear in mind in particular that there is no positive case pleaded against the Scheme. 

55.  The consideration identified under O.38, r.4A(5)(d) (see para 36 above) is not engaged.  As for (5)(e), there is no suggestion made of any significant difficulties. 

56.  In the premises, I order that SJE be instructed by the parties on the forensic accounting issues.

Bermudan law

57.  Save for D2 who adopts a neutral stance, the parties disagree with the appointment of SJE on Bermudan law. 

58.  The issues have been identified above.

59.  In my view, the parties are unduly concerned about the complexity of the issues, and the need for the court to have a range of opinions. 

60.  To begin with, the function of expert witness on foreign law is :

(1) to inform the court of the relevant contents of the foreign law identifying statutes or other legalisation and explaining when necessary the foreign court’s approach to their construction;

(2) to identify judgments or other authorities explaining what status they have as sources of the foreign law; and

(3) where there is no authority directly on point to assist the court in making a finding as to what the foreign court’s ruling would be if the issue was to arise for decision there.

See Phipson on Evidence, pp.1201-1202, rubric 33-75

61.  Further, Bermuda applies a common law system and, in all likelihood, its company law does not differ vastly with that of Hong Kong.  I see no proper justification why 4 experts are to be instructed on aspects of company law which are likely to be similar to those of Hong Kong.

62.  As pointed out in para 46 above, if the law is unsettled and there is a divergence of opinion, the SJE will no doubt inform the court and endeavour to assist the court in making a finding on what the Bermudan court’s ruling would be.

63.  The observations made in para 55 above apply equally here.

64.  For these reasons, I also order the instruction of SJE on the Bermudan law issues.

Directions

65.  The parties are to endeavour to agree the appropriate directions for SJEs.  The directions made in para 34 above are to apply here mutatis mutandis.

66.  The parties have agreed that the costs of this application be in the cause, and I so order.

67.  I thank counsel for their assistance.