PACIFIC ELECTRIC WIRE & CABLE CO LTD v. TEXAN MANAGEMENT LTD AND OTHERS

HCA 2203/2004
HCA 2746/2004
HCA 2763/2004
(heard together)

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 2203 OF 2004

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BETWEEN

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HCA 2746/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 2746 OF 2004

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BETWEEN

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HCA 2763/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 2763 OF 2004

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_______________

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J U D G M E N T

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Introduction

1.  The Plaintiff (“PEWC”) in these three actions is one of the largest listed companies in Taiwan.  I shall refer to HCA 2203/04 as “the PacMos Action”, HCA 2746/04 as “the Shouson Hill Action” and HCA 2763/04 as “the South Horizons Action”.  PEWC started these actions in September and December 2004 (the Statements of Claim were only filed in April and May 2005) against a multitude of defendants, one of whom is Mr Hu Hung Chiu (“Hu”) who at all material times was a director of PEWC.  In the South Horizons Action, Hu’s wife (“Mrs Hu”) is also a defendant. 

2.  By three ex parte Orders made by Master Ho under Order 11 on 19^th May 2005 leave was granted to PEWC to issue a concurrent Writ of Summons in each of the three actions against Hu and serve them on him in Taiwan.  A similar Order was obtained by PEWC from Master J Wong on 13^th June 2005 against Mrs Hu in respect of the South Horizons Action. 

3.  By three Amended Summonses in identical terms all re-filed on 27^th January 2006, Hu seeks (1) to discharge the said Orders of Master Ho and set aside the Writs, the service thereof, and all subsequent proceedings in the three actions as against him; (2) declarations that the Writs have not been duly served on him; and (3) the dismissal of the actions against him with costs.  Mrs Hu has also filed an Amended Summons in the same terms (save for the grounds) on that same day in the South Horizons Action.

4. By three Orders dated 28^th February 2006, leave was granted to PEWC to cross-examine two of the witnesses whose evidence is relied upon by Hu and Mrs Hu, namely, Mr Hsieh Chi Chia (“Hsieh”) and Ms Liu Mo Jung (“Liu”).  In addition, PEWC has undertaken to call one of its witnesses, Mr Koo Wellington Li-Hsing (“Koo”), for cross-examination by the other side [see p. 4 of Agreed Chronology].  All these witnesses are trained in Taiwanese law.  There is no challenge on their expertise in the same.  Hsieh’s evidence concerns primarily the service of the Writs in Taiwan.  Liu’s evidence deals with the nature of certain Taiwanese civil proceedings, which will be discussed below, and the projection of its progress.  Koo’s evidence covers the same matters as those of Liu’s.  In addition, his evidence is challenged on the issue of non-disclosure. 

PEWC’s Actions

5.  PEWC’s actions are in fact quite simple.  The complexity is in the details.  These actions were instituted to recover assets which are alleged to belong to PEWC.  In the PacMos Action, PEWC’s case is that a very substantial amount of shares in a Hong Kong listed company, PacMos Technologies Holdings Ltd, (“the PacMos shares”) were acquired with its money between 1990 and 1997.  The acquisition was allegedly made by three senior executives of PEWC, including Hu, with the use of numerous corporate vehicles.  Further, it was made by such people in breach of their fiduciary duties and was concealed from PEWC.  

6.  In respect of the South Horizons Action, PEWC alleges that between 1992 and 1993 landed properties of considerable value situated at South Horizons, Aplichau (“the South Horizons properties”) were acquired with its funds or funds borrowed on its credit.  Like the PacMos Action, the acquisition is alleged to be a wrongful and concealed act committed by senior staff of PEWC with the deployment of a number of corporate vehicles. 

7. As regards the Shouson Hill Action, it is a derivative of the claim made in the South Horizons Action.   The reason is that in September 1997 part of the South Horizons properties was sold.  However, the sale fell through and in settlement of the dispute which ensued 4 houses in Shouson Hill (“the Shouson Hill houses”) were provided by the purchaser in 2000 as compensation for the aborted sale.  PEWC alleges that these houses constitute part of its beneficial interest in the South Horizons properties.

8.  Mr Neoh, SC who appears for PEWC says that these PEWC actions (“the PEWC Actions”) are designed to recover properties belonging to it which are situated in Hong Kong.  It is not alleged in any of the PEWC actions that Hu or Mrs Hu is the holder of PEWC’s property.  However, expectedly, in each of the actions it is alleged that Hu, as constructive trustee of PEWC, is liable to account for PEWC’s assets and to pay what is found due on the taking of such account.  Alternatively (although not so pleaded explicitly), there is a claim for damages (or equitable compensation) against Hu for breach of fiduciary duty in depriving PEWC of its assets.  Mr Neoh says that although framed as personal claims, the claims against Hu are in aid of the tracing of PEWC’s properties.

9.  I shall turn to the case against Mrs Hu, who is only involved in the South Horizons Action, later in this Judgment when I deal with the relevant arguments.  It is common ground that Hu and Mrs Hu are residents of Taiwan.

10.  There is a multitude of issues before me.  In order to properly deal with them, it is essential to put them within the correct framework.  For this purpose, I have referred to the Written Final Submissions of the parties (“PEWC’s FS” and “Hu’s FS”) [PEWC’s FS, para. 6 and Hu’s FS, para. 2].  The issues are as follows:

(i) Whether the ex parte Orders of Master Ho and Master J Wong should be set aside.  Mr Whitehead, SC who appears for both Hu and Mrs Hu has advanced 4 grounds under this head – (a) material non-disclosure on the part of PEWC when the ex parte Orders were obtained (This argument does not apply to the case of Mrs Hu.); (b) deficiency of PEWC’s evidence in support of its ex parte applications; (c) Hong Kong is not the appropriate forum for the actions against Hu and Mrs Hu; and (d) the service of PEWC’s Writs on Hu and Mrs Hu is defective.  In the case of Mrs Hu, there is an additional ground – no serious issue to be tried between PEWC and Mrs Hu;

(ii) Mr Neoh has indicated that (a) should I discharge the ex parte Orders on the ground of non-disclosure, he seeks a regrant of the relief; (b) in the event that I uphold the challenge on the service of the Writs, PEWC applies to re-serve them; and (c) should I hold that there is deficiency in PEWC’s evidence, PEWC seeks a renewal of the Writs to allow time for another application for service out of jurisdiction;

(iii) My decision on forum conveniens is relevant to both the discharge of the ex parte Orders and PEWC’s applications identified in (ii) above;

(iv) Whether the non-disclosure by PEWC precludes an application for regrant;

(v) If I permit a renewed application for service out of jurisdiction, whether PEWC should be put to election as to which jurisdiction it wishes to proceed in;

(vi) (iv) and (v) above only become relevant if Hong Kong is found to be the forum conveniens. 

11.  With respect, I believe that the key issues before me are (a) the alleged non-disclosure, (b) whether there is a serious issue to be tried between PEWC and Mrs Hu and (c) forum conveniens.  The determination of them will resolve the questions of whether the ex parte Orders should be discharged and whether the PEWC Actions should be allowed to proceed further in Hong Kong against Hu and Mrs Hu.

Material Non-disclosure

12.  It is undisputed that on 16^th December 2004, Hu, together with other people some of whom are also defendants in the PEWC Actions, was indicted in Taiwan for alleged commission of criminal acts against PEWC.  These criminal proceedings are concerned partly with the same subject matters of the PEWC Actions.  On 22^nd April 2005, not long before PEWC launched its ex parte applications in Hong Kong, PEWC commenced civil proceedings in Taiwan against, inter alia, Hu in the form of an “ancillary civil action” (“the Ancillary Action”) which arises from the criminal indictment.

13. The Ancillary Action was instituted pursuant to Article 487 of the Criminal Procedure Code of Taiwan, the agreed translation of which is as follows:

“A person who has suffered damage caused by the commission of an offence may file an ancillary civil claim in the course of a criminal proceeding, and seeks restitution of such damage from the Defendant and the party liable for the civil claim.

For scope of the above request, one should refer to the stipulations of the Civil Code.”.

14.  Liu has provided a summary of the nature of the Ancillary Action, which is uncontroversial, as follows[1]:

“[The Ancillary Action is] based on the same allegations made in the criminal proceedings and will await the determination of the criminal proceedings.  The usual procedure is that the same judge will deal with both sets of proceedings as pursuant to Articles 500 and 501 of the Taiwan Code of Criminal Procedure, the Criminal Court shall render the criminal and civil judgments simultaneously.  However, the Criminal Court may transfer the claim to the Civil Court of the Taipei District Court (the “Civil Court”) for adjudication if it finds the case is complicated pursuant to Article 504 of the Code of Criminal Procedure.  In such a case the civil claim would become an independent civil action.  However, the Civil Court would refer to the evidence obtained in the proceedings before the Criminal Court. …

If the Criminal Court finds the defendants not guilty, it may subsequently dismiss the civil claim without reviewing the merits of the case unless the Plaintiff asks the Criminal Court to transfer the civil claim to the Civil Court pursuant to Article 503 of the Code of Criminal Procedure.  If this occurs the civil claim is decided by the Civil Court.”.

15.  The Ancillary Action is the subject matter of the non-disclosure arguments.  There is a Statement of Claim of the Ancillary Action[2] from which one can see that it is an action by PEWC against, inter alia, Hu.  It is alleged that he has committed breach of trust against PEWC and is liable for a very substantial amount of damages (over US$405m).  The breach of trust is alleged to have arisen from the abuse by Hu of his executive position in PEWC and the stealing of PEWC’s assets.  Such assets include the PacMos shares and the South Horizons properties[3].  The claim over the South Horizons properties appears to have taken into account the Shouson Hill houses[4]. 

16. In all fairness, one can immediately see the overlap between the Ancillary Action and the PEWC Actions.  Mr Whitehead submits that the Ancillary Action constitutes concurrent civil proceedings in Taiwan which PEWC was obligated to disclose to the Master hearing the ex parte applications against Hu (“the ex parte Applications”).  On the other hand, whilst there is no issue that the Master was not told about the Ancillary Action, Mr Neoh maintains that the PEWC Actions are “completely different in nature” to the Ancillary Action and the Ancillary Action was irrelevant to the ex parte Applications.

17.  In the ex parte Applications, the court was asked to exercise an extraordinary power to extend its jurisdiction over someone who did not reside in Hong Kong.  As a consequence of the ex parte nature of the applications, PEWC was under a duty to the court to make full and frank disclosure of all matters relevant for the court’s consideration in exercising the power under Order 11.  One of the important reasons for such a duty is to safeguard the interest of the foreigner against any abuse of the procedure under that Order. 

18. The law on this duty of full and frank disclosure is trite [see First Cumulative Supplement to Hong Kong Civil Procedure 2006 (“1^st Supp”), p.10, para.11/4/3B].  Mr Whitehead submits that the existence of concurrent foreign proceedings involving the same parties and the same subject matters is a strong material factor against the grant of leave under Order 11.  There could hardly be anything more material for the Master below to know as PEWC should not be allowed to harass Hu with multiple litigations.  Mr Whitehead has taken me through a number of relevant authorities.  I refer in particular to two of them.  Firstly, in Network Telecom Ltd v Telephone Systems Intl Inc [2004] 1 All ER (Comm) 418 at p.428, para.74, Burton J held that:

“There can hardly be anything more material to the making of an order which affects matters abroad (such as, for example, in the Behbehani case where a Mareva was granted which affected or might have affected assets abroad, where there was an undisclosed pending foreign action), certainly when the application is positively for service out of the jurisdiction, than the prior existence of relevant foreign proceedings.”.

19.  Secondly, in Ophthalmic Innovations Intl (UK) Ltd v Ophthalmic Innovations Intl Incorporated [2005] IL Pr 10 at p.120, para.45, Collins J held that:

“The existence of overlapping proceedings in a foreign jurisdiction between the same or related parties (whether pending or prospective) is likely to be a particularly relevant matter which in normal circumstances must be disclosed, and the nondisclosure of which may well of itself lead to the order for permission being set aside.”.

20.  In para. 8 above, I have identified the nature of the claims made against Hu in the PEWC Actions.  There is no dispute that any recovery in the PEWC Actions will go to reduce the damages claimed in the Ancillary Action.  I am informed by Mr Neoh that an Order 14 application is being pursued to recover the “trust properties” from the corporate title holders.  Of course, PEWC is also seeking an account from each of the corporate title holders in respect of the “trust properties”.  It is accepted by Mr Neoh that “if the corporate title holders were able to provide a full account, then that is the end of the matter”.  In other words, there would be little purpose left in pursuing Hu in the PEWC Actions.  

21. The Ancillary Action, based on the unchallenged evidence of Koo, is founded on tort, breach of agency obligations and breach of employee obligations.  The relief sought is that of damages and every item of damage has to be proven.  The PEWC Actions serve to mitigate the damage suffered by it[5].  However, I am not persuaded by PEWC’s submission that Hu is only at risk in the Ancillary Action if there is no recovery in the PEWC Actions.  Koo agreed in cross-examination that the Ancillary Action and the PEWC Actions balance one another in that, e.g., there may be partial recovery in the PEWC Actions in which case Hu would be potentially liable for any outstanding balance in the Ancillary Action[6].  The correct view of these proceedings must be that unless PEWC makes full recovery of its loss and damage in the PEWC Actions, Hu is answerable to its claim under the Ancillary Action.

22.  With respect, I am unable to accept Mr Neoh’s submission that the Ancillary Action was not relevant for the consideration of the Master below.  The equitable nature of the PEWC Actions does not detract from the fact that there are concurrent civil proceedings against Hu in Taiwan by PEWC covering the same subject matters.  There is also overlap in the remedy claimed (monetary compensation) in both sets of proceedings, albeit that in the PEWC Actions the claim for monetary compensation is made in the alternative. 

23. It cannot be right that the duty of full and frank disclosure depends upon fine analysis of the precise nature of the causes of action.  The duty is one of primary importance and must be approached sensibly and with regard to the reality of the situation.  The discharge of that duty is not a matter of sophisticated analysis by legal advisers.  I have no hesitation in holding that the Ancillary Action was a highly relevant matter which should have been disclosed to the court in making the ex parte Applications.

24.  I should also mention that PEWC’s evidence on the alleged irrelevance of the Ancillary Action did not withstand the test of cross-examination.  Koo, PEWC’s main witness on this issue, deposed in his affirmation that the Ancillary Action was not considered relevant to the PEWC’s Actions “in any shape or form, which view we continue to hold.  We, therefore, had not informed PEWC’s Hong Kong office nor PEWC’s Hong Kong legal team about the issuance of the [Ancillary Action]”[7].  Under pressure in cross-examination, Koo had to concede that “there is some connection between the two cases, whether relevant or not should be decided by the honourable judge here …”[8]. 

25.  However, there is another limb to Mr Neoh’s submission.  Koo’s evidence is that the Ancillary Action was initiated to defeat a looming time bar and that it would not commence in any real sense until the criminal proceedings are finally determined.  Mr Koo said that there is a “de facto stay” of the Ancillary Action.  Based on this evidence, PEWC seeks to argue the lack of relevance of the Ancillary Action to the ex parte Applications.  This evidence is hotly contested.

26. The substance of Koo’s evidence contains two points.  Firstly, based on his experience and Judicial Statistics[9], the Taiwanese Criminal Court is unlikely to want to hear a complex civil action like the Ancillary Action.  According to the Statistics for 2004, nearly half of the ancillary civil actions were transferred pursuant to Article 504 of the Criminal Procedure Code.  Article 504 provides a discretion to be exercised by the Court in transferring an ancillary civil action to the Civil Court by reason of complexity.  It is true that there are not many ancillary civil actions which had been tried by the Criminal Court between 1995 and 2004.  However, it has to be said that in 2004 more than 10% of the ancillary cases were dismissed by the Criminal Court by reason of the failure of the related criminal proceedings under Article 503.  Further, some 14% of the ancillary cases were disposed of by way of conciliation. 

27.  It is also Koo’s evidence that the criminal case in question is one of great public interest in Taiwan and that it is unlikely to conclude until mid 2007.  Such evidence is not disputed. 

28.  I am unable to see anything in Koo’s first point.  At the highest, there is a good chance that the Ancillary Action will be transferred to the Civil Court.  However, this is a matter entirely for the Judges hearing the criminal proceedings.  Liu is of the opinion that after one year’s investigation the Judges may not think that the case is complex[10].  I cannot see how the point can justify not informing the court of the Ancillary Action when the ex parte Applications were made. 

29. Secondly, Koo’s evidence is that the Ancillary Action has made no progress beyond the filing of PEWC’s Statement of Claim.  He maintains that in order to trigger the civil process it would be necessary for the Court to issue a Summons or Notice to the parties and no such Summons has been issued. 

30.  Liu’s evidence is diametrically different.  She is adamant that the Ancillary Action is being tried simultaneously with the criminal proceedings.  In the ongoing criminal proceedings, facts are being established upon which the Ancillary Action will be based.

31.  I am very surprised by the divergence of the evidence on something as simple as whether the Ancillary Action is making any progress.  I remind myself that neither Koo nor Liu is an “independent” expert in that they are acting for PEWC and Hu respectively.  Further, with respect, neither of them is particularly experienced in handling ancillary civil actions[11].  Before I resolve the evidential dispute, I should set out the important provisions of the Taiwanese Criminal Procedure Code (the translations adopted are what I believe to be the most accurate version):

Article 494

(Summons of the parties and related parties {to attend Court})

 During the period of trial of the Criminal Proceedings, the parties and related parties to the Ancillary Civil Proceedings may be summonsed {to attend Court} (There is only an agreed English version).

Article 496

附帶民事訴訟之審理，應於審理刑事訴訟後行之。但審判長如認為適當者，亦得同時調查。

The hearing of an ancillary civil proceeding shall take place after the hearing of the criminal case.  However, in cases where the presiding judge deems appropriate, the ancillary civil proceeding may be investigated at the same time.

Article 499

就刑事訴訟所調查之證據，視為就附帶民事訴訟亦經調查。前項之調查，附帶民事訴訟當事人或代理人得陳述意見。

The evidence obtained from investigations in the criminal proceeding is deemed to be having investigated in the ancillary civil proceeding.  The party in the ancillary civil proceeding or its agent(s) may make representations regarding investigations referred to in the preceding sentence.

Article 500

附帶民事訴訟之判決，應以刑事訴訟判決所認定之事實為據。但本於捨棄而為判決者，不在此限。

Judgment of an ancillary civil proceeding shall be made according to the facts established in the judgment of the criminal proceeding, except where the judgment made is based on the party’s waiving its rights.

 Article 501

附帶民事訴訟，應與刑事訴訟同時判決。

The judgment of an ancillary civil proceeding shall be rendered at the same time as the criminal proceedings.

32.  I do not believe that with the quality of the evidence before me I can confidently come to a definitive finding as to the interaction between the above provisions.  It seems to me that there is a fundamental issue of definition which neither party has addressed.  For instance, does “調查” (investigation) mean the same thing or the same procedure in both Articles 496 and 499?  The lack of agreed definitions or, in the absence of agreement, the parties’ respective versions of definitions makes it impossible for this court to fully understand the conflicting evidence. 

33.  However, I bear in mind that the issue before me is whether there is or is not a “de facto stay” of the Ancillary Action.  Doing the best I can with the available evidence, I have no hesitation in preferring the evidence of Liu.  There are four reasons for doing so.  Firstly, her evidence is supported by the clear wording of Articles 499 and 500. 

34.  Secondly, Liu’s evidence is consistent with the decision of the Taiwanese Supreme Court in Tai Fu Zhi No. 38 of 1998[12] which explains the connection between a criminal proceeding and the ancillary civil action :

“The purpose is to prevent civil and criminal courts from rendering contradicting judgments for the same matter and to make use of the litigation material obtained in the criminal investigation so as to save judicial resource.”.

35.  Thirdly, Liu’s evidence is supported by that of Hsieh[13], who is a retired Judge and an independent witness.       Fourthly, Liu is a much better witness than Koo.  I agree with Mr Whitehead’s submission that Liu’s evidence is forthright, clear and concise, whereas Koo’s evidence (both written and oral) displays none of these attributes.

36.  Apart from being an unimpressive witness (I shall say more about Koo’s credibility below), Koo’s evidence that a Summons is required to trigger the civil process is not mentioned in any of his affirmations.  The point (premised upon Article 494) was only raised in the cross-examination of Liu.  It strikes me that it is an afterthought, something which Koo decided to throw up to save his case. 

37.  Moreover, Koo’s evidence is against plain common sense.  He accepted in cross-examination that PEWC is relying upon the prosecution in helping to prove its civil case[14].  I am unable to see why PEWC would allow the Ancillary Action to be in a state of “de facto stay”.  Surely, if a Summons is needed, PEWC would have, as it is entitled to, caused the Summons to be issued[15] so that it would be able to rely upon the facts proved by the prosecution.

38.  In the premises, I find nothing in Koo’s evidence which can support PEWC’s case on the alleged irrelevance of the Ancillary Action.  In my view, the non-disclosure of the Ancillary Action is a very serious matter which per se justifies the discharge of the ex parte Orders made against Hu and I have no hesitation in doing so. 

39. Before I proceed to deal with the next issue, I should say that PEWC’s submissions that Koo was somehow under time constraint when giving his evidence and that he was, to his disadvantage, giving evidence in English [PEWC’s FS, para. 26] are wholly unmeritorious for the following reasons:

(i)      Koo speaks English.  His command of the language is sufficiently good to enable him to obtain a Master Degree from New York University and to publish legal writing in English[16].  How Koo came to give evidence in English is recorded in the Transcript[17].  Further, he had the service of the court interpreter throughout the course of his evidence and he did make use of the service when he wanted to[18];

(ii)     Koo had more than a year[19] to advance whatever evidence he saw fit in his affirmations;

(iii)    Although the court had to sit until 6:12 pm on 4^th August 2006 to hear the conclusion of Koo’s evidence, neither the witness nor Mr Neoh was given any pressure to curtail the evidence;

(iv)    The need to sit until the unusually late hours to conclude the evidence was dictated by two factors – (a) the estimated hearing time of 3 days proved to be inadequate and (b) both Leading Counsel were going away for a month immediately after the third day. 

The Case against Mrs Hu

40.  It is appropriate to consider whether the ex parte Order against Mrs Hu can stand before dealing with the issue of forum conveniens because it impacts upon the question (matters of subtlety perhaps) and burden of proof under that head [see Hong Kong Civil Procedure 2006, vol. 1 (“HKCP”), para. 11/1/10]. 

41.  The central case put forward by Mr Whitehead on behalf of Mrs Hu is that no serious issue to be tried against her has been shown so as to justify the ex parte Order in question.  The pleaded case against Mrs Hu is indeed very limited.  It is alleged that one PCL Holdings Ltd (“PCHL”) held the shares in various companies (some of which are alleged to hold the South Horizons properties directly) together with the South Horizons properties on resulting and/or constructive trust for the benefit of PEWC.  Mrs Hu was a director and/or a shadow director of PCHL.  By virtue of the dealings of PCHL with the South Horizons properties and the proceeds of sale of part of them, and the legal ownership of PCHL in the shares of the aforesaid companies, Mrs Hu was imputed with the knowledge that the South Horizons properties and the proceeds of sale are held on resulting and/or constructive trust for PEWC.  Mrs Hu herself therefore stands in the position of constructive trustee for PEWC[20].

42.   Mr Neoh submits that Mrs Hu (and the other directors of PCHL) had “effectively intermeddled with trust property”.  With respect, I can see no such plea.  Indeed, there is no plea as to any action taken by Mrs Hu, e.g., did she sign any material documents as a director of PCHL?  I agree with Mr Whitehead that whilst a company can be imputed with the knowledge of its director, the converse is not necessarily true.  Further, a person with the mere knowledge of a constructive trust does not (without more) become a constructive trustee. 

43. The evidence placed before Master J Wong did not take the matter any further.  For this purpose, Mr Neoh relies on the Affirmation of Mr To filed on 20^th May 2006[21].  The Affirmation contains bare assertions made in a sweeping manner and cannot advance PEWC’s case in any real sense. 

44.  In the premises, I also discharge the ex parte Order made against Mrs Hu.

Forum Conveniens

45.  The applicable law is trite [HKCP, para. 11/1/10 and 1^st Supp].  The task for this court is to determine the forum in which PEWC’s claims against Hu and Mrs Hu can be tried more suitably for the interests of all the parties and for the ends of justice.  Given the discharge of all the ex parte Orders, I am approaching the matters on PEWC’s regrant application and it bears the burden of proof here.

46.  In the PacMos Action, PEWC relies on O.11, r.1(1)(c) and (p) as the grounds for service out of jurisdiction.  For both the South Horizons Action and the Shouson Hill Action, PEWC relies upon O.11, r.1(1)(c), (g) and (p).  The reliance upon O.11, r.1(1)(c) is only advanced in PEWC’s FS (para. 33), but I shall, for the present purpose, overlook any technicalities here.  These sub-paragraphs of Order 11 are set out below :

 O.11, r.1(1)(c)

 the claim is brought against a person duly served within or out of the jurisdiction and a person out of the jurisdiction is a necessary or proper party thereto

 O.11, r.1(1)(g)

 the whole subject-matter of the action is land situate within the jurisdiction (with or without rents or profits) or the perpetuation of testimony relating to land so situate

O.11, r.1(1)(p)

the claim is brought for money had and received or for an account or other relief against the defendant as constructive trustee, and the defendant’s alleged liability arises out of acts committed, whether by him or otherwise, within the jurisdiction.

47.  I regret to say, with respect, that this aspect of the case has not been properly considered by PEWC.  Apart from making a bare assertion that “Hong Kong is the most appropriate forum for the case to be tried as the wrongful acts were committed within the jurisdiction”[22], there is no evidence of what the wrongful acts were, when, where, how and by whom they were committed.  Indeed, one of Mr Whitehead’s complaints, under the heading “deficiency of PEWC’s evidence” (see para. 10(i) above), is that PEWC has not even verified its Statements of Claim.  That was the position when PEWC made its ex parte applications and remains the same.

48. I certainly do not suggest that matters of justice should be resolved on technicalities, but these are no mere technicalities.  The court has an important function in granting leave to serve out of jurisdiction and in order for that function to be properly discharged certain requirements and thresholds must be met.  It would not be right for the court to guess what the evidence and arguments are on forum conveniens. 

49.  In this case, the balance tilts in favour of Taiwan being the forum conveniens.  I proceed on the basis that PEWC has made good its case in respect of O.11, r.1(1)(c), (g) and (p) (In doing so, I am, for the present purpose, ignoring the requirement of O.11, r.4(1)(d) to the advantage of PEWC.).  The matters I have taken into account are as follows :

(i)      PEWC’s claims against Hu and Mrs Hu are personal in nature, albeit in aid of tracing.  Hu is categorised by Mr Neoh as the secondary accounting party (the primary accounting parties being the holders of the trust properties) [PEWC’s FS, para. 15];

(ii)     PEWC is a Taiwanese listed company (Mr Neoh has fairly conceded that the central management of PEWC is in Taiwan.).  Hu and Mrs Hu are Taiwanese residents.  Hu is unable to leave Taiwan under his bail condition;

(iii)    The issue of whether Hu was in breach of fiduciary duties owed to PEWC involves matters of Taiwanese law (although I accept Mr Neoh’s submission that the constitution of constructive trust is a matter of Hong Kong law assuming that Hu (and/or Mrs Hu) had acted in Hong Kong);

(iv)    PEWC’s claim against Hu is substantially identical with that in the Ancillary Action;

(v)     If PEWC succeeded against Hu in the Ancillary Action, it is difficult to see anything left to be claimed against him in Hong Kong (there is no suggestion that Hu or Mrs Hu is holding any trust property or its equivalent);

(vi)    The factual basis of the Ancillary Action is being established in Taiwan in the course of the criminal proceedings.  The Taiwanese Court has received 45,000 pages of documentary evidence and the evidence of 18 witnesses[23];

(vii)   Having to defend a civil action in Hong Kong may compromise Hu’s right against self-incrimination which he has in respect of the Taiwanese criminal proceedings in that PEWC may be able to make use of any response given by Hu in the Hong Kong action against him in the criminal proceedings.  In respect of the divergence between the evidence of Liu and that of Koo, I prefer Liu’s evidence.  Her evidence is firm and clear[24], whereas Koo’s evidence is at best equivocal[25];

(viii)  I can see no real prejudice to PEWC in not suing Hu and Mrs Hu in Hong Kong, apart from the possibility that PEWC may not get a complete account of the alleged trust properties from the multitude of other defendants in Hong Kong;

(ix)    I take into account the flimsy nature of the case pleaded against Mrs Hu;

(x)     Given the fact that the parties are Taiwanese and there is in progress the Ancillary Action, it is quite plain that Taiwan is the more appropriate forum.  To allow a trial in Hong Kong on the same matters would run the risk of inconsistent findings (with those made in the Taiwanese criminal proceedings and/or the Ancillary Action).  Further, it would be quite unfair to put Hu to defending himself in two jurisdictions.  The nature of PEWC’s claims against Hu and Mrs Hu, bearing in mind that they are not in possession of any alleged trust property, is insufficient to shift the balance in favour of trying the dispute in Hong Kong.

50. In the premises, I must reject the regrant application.  For completeness, it has not been suggested that PEWC can improve its case on forum conveniens with an adjournment [PEWC’s FS, para. 54(iii)].  It is unnecessary for me to deal with the remainder of the issues, but out of deference to the submissions made to me, I shall set out my view on those matters in brief.

Deficiency of PEWC’s Evidence in support of its ex parte Applications

51.  The law in this area has been considered in some detail not long ago in Continental Mark Ltd v Verkehrs-Club De Schweiz, CFI, [2001] 4 HKC 469.  I have touched upon the inadequacy of PEWC’s evidence in para. 47 above.  I take the view that Mr Whitehead’s criticisms under this head are well founded.  The economy of evidence is startling.  I do not accept that PEWC has “broadly” verified its Statements of Claim [PEWC’s FS, para. 50].

52.  I do not suggest in any way that PEWC has to go to the length of exhibiting all the documentary evidence.  The matter must be handled with sound common sense.  In a case where the evidence is voluminous, a summary can be provided to the court by someone who has read the material and can testify to its reliability and his ability to understand the material.  Further, the material should be made available to the court if required.  It has to be said that the court will not always be in a position to read all the exhibits.  Had it been necessary, I would have set aside all the ex parte Orders on this ground alone.

Service of PEWC’s Writs

53.  First of all, I do not see that this is an independent ground for setting aside the ex parte Orders.  Secondly, if the Orders are set aside, it normally follows that the service of the current Writs will also be set aside. 

54.  In this case, the Writs have been served on Hu and Mrs Hu in Taiwan by personal service.  I prefer the evidence of Hsieh, and if necessary, I would have held that in Taiwan, being a civil law jurisdiction, service of court process should be made by court officials. 

Whether PEWC’s Non-disclosure precludes a Regrant

55.  In Dallah Albaraka Ltd v Symphony Gems NV & Ors., CFI, [2005] 3 HKLRD 703 at 713C-H, Stone J declined to “sanitise” a case of serious non-disclosure with a new application. 

56.  In my view, it is quite impossible to set out a precise test for the cases as to whether the court, having discharged an ex parte order on the ground of non-disclosure, should or should not decline to entertain a fresh application.  The answer is easy for the two extremities on the scale.  Where the non-disclosure is innocent (or lacks blameworthiness), the court should normally be willing to entertain a fresh application so that the merits of the application would prevail.  At the other end, where the non-disclosure is deliberate, the court normally should not entertain a fresh application so that those who have abused the process of the court would be punished.  In between these extremities, the decision must depend on the individual circumstances. 

57. In this case, there is a serious non-disclosure which is, to say the least, culpable.  It is culpable because there can be into excuse for PEWC’s Hong Kong staff and/or lawyers not to have made enquiries into whether there was anything material to its ex parte applications which required disclosure to the court.  The culpability is seriously aggravated by the lack of candour on the part of PEWC in explaining its failure to disclose the Ancillary Action.  Koo did not disclose the fact that the Ancillary Action was launched to save very substantial court fees until it was pointed out in Hsieh’s evidence.  The evidence demonstrates to me that instead of coming clean with the reason for the non-disclosure, PEWC tries hard to cover its tracks.  That is a serious matter and should not be overlooked by the court.  Had it been necessary, I would have declined to entertain PEWC’s regrant application for the foregoing reasons. 

Whether PEWC should be put to Election of Forum

58.  PEWC has offered to undertake to this court that “it will not proceed with the part of the [Ancillary Action] nor seek any judgment against [Hu] for loss relating to the properties forming the subject matter of [the PEWC Actions], while [the PEWC Actions] are on foot against [Hu]”. 

59.  I agree with Mr Whitehead that such an undertaking is illusory given the fact that the establishment of the factual basis of the Ancillary Action is well underway.  Absent an abandonment of the Ancillary Action, PEWC is in no position to give the undertaking.  If I were to permit a renewed application for service out of jurisdiction, I would have put PEWC to an election of forum.

Conclusions

60.  I discharge the four ex parte Orders identified in para. 2 above and set aside the Writ of Summons, service of the Writ of Summons and all subsequent proceedings herein as against Hu and Mrs Hu.  It is unnecessary to grant a declaration in respect of the service of the Writs.  Further, I order that the PEWC Actions be dismissed as against Hu and Mrs Hu and that PEWC do pay to Hu and Mrs Hu their costs of the PEWC Actions and of this application to be taxed if not agreed with a certificate for two Counsel.

[1] Bundle D/Tab 13/pp.338-9/paras.11-2
[2] E/T14
[3]Table 1 at E/T14/pp.659-63
[4] p.622
[5]D/T26/pp.487-8/paras.16-7 and p.490/para.24
[6] Transcript, pp.78T-79C
[7] D/T17/p.384/para.24
[8] Transcript, p.77E-I
[9] G/T43
[10] Transcript, p.17H-L
[11] Transcript, p.50P-Q (Liu) & p.97M-R (Koo)
[12] G/T38
[13] D/T25/pp.476-8/paras.23-9
[14] Transcript, p.70B-C & G-H; p.86F-M
[15] Transcript, p.91K-M
[16] E/T16
[17] Transcript, p.57E-H, pp.61H-62C
[18] Transcript, p.70Q (as an example)
[19] Liu’s First Affirmation was filed in July 2005
[20] C/T3/pp.214-5/paras.40-1
[21] D/T3
[22] See, e.g., D/T1/pp.263-4/para.6(iii)
[23] Transcript, p.17I-L
[24] D/T23/pp.461-2/paras.36-8
[25] Transcript, pp.95M-96G & 100P-101C