COSIMO BORRELLI AND OTHERS v. HERBERT SMITH FREEHILLS (A FIRM)

HCMP 408/2025 &
HCMP 968/2025
(Heard Together)

[2026] HKCFI 1250

HCMP 408/2025

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 408 OF 2025

________________________

________________________

BETWEEN

AND

HCMP 968/2025

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 968 OF 2025

________________________

BY

________________________

(Heard Together)

________________________

D E C I S I O N

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I. INTRODUCTION

1.  In this Decision, I have to deal with the following applications:-

(1) An application by the 1^st and 2^nd Plaintiffs (the “Receivers”) (the “Receivers’ Delivery Up Application”) by Originating Summons filed on 14 March 2025 in HCMP 408/2025 against the solicitors Defendant (“HSFK”) for delivery up of various categories of documents (the “Documents”);

(2) An application by the 3^rd Plaintiff (“SIL”) (the “SIL’s Delivery Up Application”) by the same Originating Summons against HSFK for delivery up of the same Documents;

(3) An application by HSFK’s Summons (the “HSFK’s Stay Summons”) filed on 10 April 2025 in HCMP 408/2025 (for a permanent stay of the SIL’s Delivery Up Application and a case-management stay of the Receivers’ Delivery Up Application; and

(4) An ex parte application (the “Recognition Application”) by an ex parte originating summons in HCMP 968/2025 filed on 13 June 2025 by the Receivers for an order of recognition and assistance to their receivership appointed by the British Virgin Islands (“BVI”) Court. At the outset of the hearing, I granted leave for China National Gold Group Hong Kong Limited (“CNG”) to join HCMP 968/2025 as Intervener.

II. BACKGROUND

2.  The material facts are not in dispute among the parties. Some of them have been summarised in the decisions handed down in related proceedings, namely §4 of Eugene Fung J’s Decision handed down on 26 September 2025 (“Eugene Fung J’s Decision”) in Soremi Investments Ltd v China National Gold Group Hong Kong Limited and Others ([2025] HKCFI 4514) and §§3-17 of Harris J’s Decision handed down on 5 November 2025 (“Harris J’s Decision”) in Cosimo Borrelli and Others v Linklaters (a firm) and Others ([2025] HKCFI 5293). I gratefully adopt some of their summaries here and add certain other material facts pertinent to present applications.

3.  “CNG is a Hong Kong company primarily engaged in the business of mining operations. Gerald Metals LLC (“Gerald”) is a Delaware company and an international commodity trader specialising in the merchanting of precious metals. Global Mining Development LP (“Global”) is a limited partnership formed under the laws of the British Virgin Islands (“BVI”) and an affiliate of Gerald. Global and Gerald are collectively referred to as the “Gerald Parties”.” (§3 of Harris J’s Decision).

4.  “SIL is a BVI company which, together with its subsidiaries, held various mining assets, exploration permits and exploitation permits in the Republic of Congo (“Congo”) and carried on the business of developing and operating a polymetallic mining and processing project (“Project”).” (§4 of Harris J’s Decision).

5.  “The Gerald Parties took over the Project in Congo in or around 2004 and incorporated in 2005 a 90% owned subsidiary of SIL (“Soremi SA”) to hold the Project’s relevant exploration and/or mining licences. SIL was merely a holding company and did not conduct any substantive business of its own save for holding assets.” (§6 of Harris J’s Decision).

6.  “In 2010, Global became the 100% shareholder of SIL.” (§7 of Harris J’s Decision).

7.  “On 18 December 2013, the Gerald Parties and CNG entered into a sale and purchase agreement (“SPA”) for CNG to purchase 65% of the shares in SIL (“Shares”) from Global, followed by a shareholders agreement entered on 17 March 2014 (with SIL as an additional party) (“SHA”).” (§8 of Harris J’s Decision).

8.  “On 13 November 2020, the Gerald Parties commenced a HKIAC arbitration against both CNG and SIL for alleged breaches of the SPA and the SHA (“Existing Arbitration”).” (§9 of Harris J’s Decision).

9.  “By separate engagement letters, Linklaters was engaged by CNG and SIL on 5 August 2020 and 11 December 2020 respectively to represent them in the Existing Arbitration.” (§10 of Harris J’s Decision).

10.  “In August 2023, Herbert Smith Freehills Kramer (“HSFK”) replaced Linklaters as the legal representative of SIL and CNG in the Existing Arbitration.” (§11 of Harris J’s Decision).

11.  The terms of the engagement of HSFK by CNG and SIL were contained in an engagement letter dated 14 November 2023 (the “Engagement Letter”). The relevant terms are:-

(1) The arbitration agreement (the “Arbitration Agreement”):-

“Any dispute, controversy, difference or claim arising out of or relating to our engagement terms, including the existence, validity, interpretation, performance, breach or termination thereof or any dispute regarding non-contractual obligations arising out of or relating to it shall be referred to and finally resolved by arbitration administered by the Hong Kong International Arbitration Centre (HKIAC) under the HKIAC Administered Arbitration Rules in force when the Notice of Arbitration is submitted…”

(2) Clause 11 of the Business Terms (“Clause 11”):-

“You may at any time (after payment of all outstanding legal costs) asks us to return to you any of your documents which you have not received during the course of your matter (which will not include our working papers).”

12.  Several partial awards have been issued in the Existing Arbitration. Among them were the first partial award dated 8 February 2023 (the “First Award”), by which CNG was ordered to transfer the Shares to Global and the third partial award dated 21 November 2023 (the “Specific Performance Award”) for specific performance of the transfer of the Shares ordered in the First Award. In BVIHC (COM) 0070 of 2023 (the “Enforcement Proceedings”), commenced by Gerald Parties for an order to register and enforce the First Award, by the BVI Court Order on 25 April 2023, the First Award was registered and became enforceable in the BVI. Subsequently, in the same proceedings, the Gerald Parties made an application for an order to register and enforce the Specific Performance Award, and by the BVI Court Order on 20 December 2023, the Specific Performance Award was registered and enforceable in the BVI. I shall refer to these two Orders as the “BVI Enforcement Orders”.

13.  Despite the BVI Enforcement Orders, no transfer of the Shares was carried out. Further, according to the 1^st to 3^rd Plaintiffs, CNG still had control over SIL and Soremi SA, and through such control, was dissipating SIL’s assets.

14.  Thus, in January 2022, the Gerald Parties applied to HKIAC Tribunal for interim measures to require CNG and SIL to provide them with information regarding the operation of SIL and permit directors appointed by Global to the board of SIL to participate in its management.

15.  Further, on 6 November 2023, Global applied to the BVI Court for a disclosure order of SIL’s financial information, and on 31 January 2024, the Gerald Parties applied to the BVI Court for a disclosure order for access to SIL and Soremi SA’s books and records. On 12 March 2024, the BVI Court granted the disclosure order sought (the “BVI Disclosure Order”).

16.  Information was produced under the BVI Disclosure Order. It was discovered that approximately US$109 million had been transferred from SIL’s bank accounts to the bank accounts of Soremi SA in Beijing. Global claimed that such transfers were wrongful, and thus on 28 March 2024, the Gerald Parties applied ex parte for, and were granted, a freezing order (including another disclosure order) (the “BVI Freezing Order”) against CNG, SIL and Soremi SA freezing the assets of CNG, SIL and Soremi SA, and requiring repatriation of the US$109 million back to the SIL’s bank account. By the BVI Court’s Order (the “BVI Repatriation Order”) made on 3 July 2024 varying the BVI Freezing Order, the US$109 million had to be repatriated into the BVI Court instead of SIL’s bank account. However, the BVI Freezing Order as varied by the BVI Repatriation Order was breached. Subsequently, CNG was found to have been in contempt for the breach.

17.  I pause here to note that the BVI Freezing Order and the BVI Repatriation Order, made within the Enforcement Proceedings, were to hold the ring pending the enforcement of the Awards and the BVI Enforcement Orders. This was to ensure that pending the completion of the enforcement, namely, the transfer of the Shares back to Global, prior to which Global could not exercise its shareholders rights on the Shares, the underlying value of the Shares would be preserved. For this purpose, disclosure of the relevant information was necessary to enable one to know whether any value was taken away during the interim period, thus the disclosure order in the BVI Freezing Order. Similarly, any value taken away during the interim period would have to be repatriated, thus the BVI Repatriation Order. These Orders were necessary because prior to the transfer of Shares back to Global, Global, while beneficially entitled to the Shares, could not exercise any shareholders rights to redress the matters (for example, as sole shareholder of SIL to request information from SIL and its subsidiary Soremia SA, or to appoint directors to SIL to instruct its bank in Beijing to repatriate money) because as a matter of law, companies only recognise registered shareholders.

18.  Meanwhile, CNG applied to set aside the BVI Enforcement Orders. On 15 April 2024, the BVI Court dismissed the application.

19.  On 13 June 2024, the Gerald Parties filed an application (the “Rectification Application”) in the BVI Court for an order of rectification of the Register of Members of SIL to confirm that 65% Shares are held legally and beneficially by Global. The Rectification Application was, of course, to enforce the BVI Enforcement Orders.

20.  On 13 September 2024, pending the determination of the Rectification Application, within the Enforcement Proceedings, “[d]ue to CNG’s failure to transfer the Shares, the Gerald Parties applied to the BVI Court for an urgent appointment of receivers over the Shares. By an order of the BVI Court dated 17 September 2024 (“Receivership Order”), the 1^st and 2^nd Plaintiffs were appointed as receivers of the Shares on an interim basis (“Interim Receivers”).” (§16 of Harris J’s Decision).

21.  I shall detail some of the terms of the Receivership Order in the latter part of this Decision when I am dealing with the Recognition Application. Suffice to say at this stage that:-

(1) the Receivership Order was an ex parte order;

(2) Global and Gerald are the claimants/applicants and CNG and SIL are the 1^st and 2^nd defendants/respondents in the BVI Enforcement Proceedings; and

(3) On 2 October 2024 and 13 October 2025 respectively, CNG filed applications (the “1^st Discharge Application” and the “2^nd Discharge Application” respectively, collectively the “Discharge Applications”) in the BVI Court for discharging the Receivership Order or replacing the Receivers with certain other receivers. The two applications have not yet been argued and no decision has been made on any of the two applications. Thus, the Receivership Order remains an ex parte order.

22.  “Since 18 September 2024, the Shares have been registered in the 1^st Plaintiff’s name. The remaining 35% of the shares in SIL remain registered in Global’s name. The [directors appointed by CNG] were replaced by the Interim Receivers and two of their colleagues from Kroll (HK) Limited. The [directors appointed by Global] remained as directors of SIL. The [officers appointed by CNG] in SIL were removed.” (§17 of Harris J’s Decision).

23.  On the Rectification Application, “[o]n 16 July 2025, [Mr Justice Abbas Mithani KC] handed down a judgment rectifying the Register of Members of SIL to confirm that 65% Shares are held legally and beneficially by Global.” (§4(10) of Eugene Fung J’s Decision). Accordingly, the SIL’s Register of Members was amended on the same day, and the Shares (as well as Global’s 35% shares already registered in its name) have since been registered in the name of Global on the Register of Members of SIL. In other words, Global has since become the sole shareholder of SIL. I shall refer to the rectification judgment as the “Rectification Judgment”.

24.  I add that during the second day of the hearing before me, Mr James Wood, counsel for the Receivers and SIL (collectively, the “Plaintiffs”) (belatedly) produced a copy of the transcript of the hearing and the skeleton submissions for the hearing of the Rectification Application. The reason for the delay to produce them was, according to Mr Wood, that it was not thought that these documents would be necessary, but judging from the reaction from the bench on the first day of the hearing before me, the decision was made that it had now became necessary. I shall discuss these two documents in the relevant part of this Decision.

25.  Shortly after the Rectification Judgment, on 21 July 2025, the Receivers made an ex parte application without notice to the BVI Court for directions concerning the conduct of their receivership (the “Directions Application”), in particular, for directions including that “the powers of the Receivers are not limited to those powers which are ordinarily available to a 65% shareholder in SIL”. Two months later, on 24 September 2025, the Directions Application was heard ex parte before Mr Justice Abbas Mithani KC, who was the very judge granting the Rectification Judgment two months before that hearing but at the outset of that hearing made it clear that he had “not been able to go through the bundle” and only had “a quick skim through the skeleton”. His Lordship was not the one who granted the Receivership Order. Upon hearing counsel’s submissions (a matter I shall return in more detail later), his Lordship granted the following order (the “Sanction Order”):-

“1. The powers of the Receivers are not limited to those powers which are ordinarily available to a 65% shareholder in SIL.

2. The Receivers do have sanction to continue legal proceedings in Hong Kong against [HSFK] and Linklaters (a firm) (“Linklaters”) in HCMP 408 of 2025 and HCMP 410 of 2025 respectively for the delivery up of SIL’s client files (the “Hong Kong Delivery Up Proceedings”).

3. The Receivers do have sanction to take all steps necessary or appropriate in connection with the Hong Kong Delivery Up Proceedings.”

III. ORDER OF DISPOSAL OF THE APPLICATIONS

26.  Logically, I shall deal with the Recognition Application first, and then the HSFK’s Stay Summons with the Delivery Up Applications, if still relevant.

IV. THE RECOGNITION APPLICATION

A. Legal principles

27.  There seem to be no Hong Kong cases on the approach in an application for recognition of receivers appointed by a foreign court for preserving assets. It is therefore necessary to examine how other common law jurisdictions approach such an application. Before I do so, one should be clear that the present Recognition Application is an application for recognition of receivers appointed by a foreign court for preserving non-landed property. It is not for recognition of receivers appointed by a foreign court under contract. Nor is it for recognition for receivers appointed by a foreign court in relation to landed properties. There seem to be different approaches towards such receivers, and they have no relevance here.

28.  The leading case and the starting point is a decision of Chancery Division in Schemmer and Others v Property Resources Ltd. and Others [1975] 1 Ch. 273. In that case, a US court appointed a receiver to take possession of certain assets of a company incorporated in the Bahamas upon an application by the US Securities Exchange Commission on fraudulent practices under the US Securities Exchange Act 1934. The receiver applied to the English Court for an order appointing himself as the receiver of the English assets of that company and its subsidiaries. Goulding J, having reviewed a number of old authorities, said at 287E:-

“I shall not attempt to define the cases where an English court will either recognise directly the title of a foreign receiver to assets located here or, by its own order, will set up an auxiliary receivership in England. To do either of those things the court must previously, in my judgment, be satisfied of a sufficient connection between the defendant and the jurisdiction in which the foreign receiver was appointed to justify recognition of the foreign court’s order, on English conflict principles, as having effect outside such jurisdiction. Here I can find no sufficient connection.” (emphasis added)

29.  Goulding J, having considered the following factors at 287F-288A, refused the application:-

(1) The Bahamas company was not incorporated in the US;

(2) The Bahamas company was not a defendant to the US proceedings;

(3) The Bahamas company did not submit to the US jurisdiction;

(4) There was no evidence that the Bahamas courts would recognise a US court appointed receivers over English assets;

(5) The Bahamas company did not carry business in the US, and its central management or control was not in the US; and

(6) The fact that the Bahamas company’s subsidiaries had contested jurisdiction was not sufficient.

30.  For convenience, I shall refer to this test as the “sufficient connection test”. This sufficient connection test, as shall be discussed, is a two-stage test: the first stage is to search for sufficient connection, and the second is to decide whether the Court should exercise its discretion to recognise and assist the foreign receivers. Before this discussion, I shall complete the overview of the application of Schemmer in various common law jurisdictions first.

31.  Schemmer has since been consistently applied by various common law jurisdictions, as discussed at §§32-17 – 32-26 of Kerr & Hunter on Receivership and Administration (22^nd edition), including:-

(1) Cayman Islands: Kilderkin Investments Ltd v Player [1984] CILR 63 (Cayman Court of Appeal); Re Silk Road Funds Ltd. and Silk Road M3 Fund, FSD 234 of 2017 (ASCJ), 8 February 2018 (Grand Court); and Robert Seiden v Link Motion Inc., FSD 4/2020 FSD 4 of 2020 (MRHJ), 4 February 2020;

(2) Bahamas: Chamberlain v The Miss Boots [1992] BHS J. No. 8 (Supreme Court of Bahamas);

(3) Guernsey: Terry v Butterfield Bank [2005-06 GLR 327] (Guernsey Royual Court); Re Battoo, 31 March 2014, ref 15/2014, appeal no 471 (Guernsey Court of Appeal);

(4) Nevis: Millennium Financial Limited v Thomas McNamara and Another, HCVAP 2008/012 (Nevis Court of Appeal); and

(5) Jersey: Re the Assets of Ablyazov [2012] 1 J.L.R. 44 (Jersey Royal Court).

32.  In my view, the sufficient connection test as applied in Schemmer and the above cases should be and is part of the Hong Kong common law because:-

(1) Schemmer is a pre-1997 English authority, and this is strong evidence that it is part of the common law adopted in Hong Kong as at 30 June 1997;

(2) Schemmer has been consistently applied in various common law jurisdictions in particular those jurisdictions where nowadays it is common to incorporate offshore companies, and it is important that where possible, Hong Kong, a jurisdiction where overseas and international companies have presence, should adopt a consistent approach for commercial certainty; and

(3) The approach of searching for sufficient connection is consistent with the common law approach of conflict of law in other areas of law, for example, tort law (where the Hong Kong Court may entertain a claim on foreign tort provided that there was sufficient connection between the tort and the parties, and contract law where the Court would ascertain the governing law by reference to the existence of close connection with a certain jurisdiction).

33.  Mr Wood, Mr Laurence Li SC (leading Ms Astina Au) counsel for CNG, and Ms Sara Tong SC (assisted by Mr Joshua Chan[1]), counsel for HSFK, all agree that this sufficient connection test should be part of Hong Kong law.

34.  To determine whether there is sufficient connection, there is no exhaustive list of factors. It must be examined on a case-by-case basis. That said, it is instructive to examine how the test has been applied in different factual matrices. In this regard, having reviewed the above authorities, the learned authors in Kerr & Hunter, supra at §32-27 list out the following factors which have been considered in determining whether there is sufficient connection between the defendant over whose assets receivers have been appointed by the foreign court and the jurisdiction of that foreign court. For clarity, the “local court” mentioned in the list means the court that has appointed the receivers who now apply for recognition in the instant court or “foreign court” (that is, the Hong Kong Court in the present proceedings), “foreign” in the sense that it is foreign to the “local court”.

“(i) The place of incorporation of the defendant in respect of which the receiver has been appointed is in the jurisdiction where the receiver was appointed: see Schemmer; Kilderkin v Player; Chamberlain v The Miss Boots; Re Battoo; Re Silk Road.

(ii) The party over whose assets the receiver was appointed was a defendant to the proceedings in the local court and submitted to the jurisdiction of the local court: Schemmer; Kilderkin v Player; The Miss Boots, Millennium Financial, Re the assets of Ablyazov, Re Battoo; Re Silk Road. It appears to be sufficient even if the defendant was joined as a nominal defendant in the local court provided it submitted to the jurisdiction of the local court: Seiden v Link. However, if the submission to the jurisdiction was by an interim receiver appointed by the local court, that may not suffice: Millennium Financial.

(iii) The defendant over whose assets the receiver was appointed has carried on business in the jurisdiction of the local court where the receiver was appointed: Kilderkin v Player; Millennium Financial; Re Battoo; Re Silk Road.

(iv) The defendant to the proceedings has or had its central management or control in the jurisdiction where the receivership appointment was made: Kilderkin v Player; Terry v Butterfield Bank. If the company carried on business in multiple jurisdictions, it is sufficient if this was at least with sufficient regularity and substance in the jurisdiction of the local court to constitute the carrying on of business there: Re Battoo.

(v) The individual who runs the defendant company over whose assets the receiver has been appointed has submitted to the jurisdiction of the local court: Terry v Butterfield Bank.

(vi) Other close connections between the defendant company over whose assets the receiver has been appointed, or those standing behind it, and the local court may suffice: Terry v Butterfield Bank, Re Battoo; Seiden v Link. In this regard, the listing of the defendant’s shares on the NYSE creates a strong nexus between the defendant and the US court where the receiver was appointed: Seiden v Link.

(vii) If the courts of the place of incorporation of the defendant would recognise and would not object to the local court appointment as affecting the assets in the foreign court, that will be supportive of allowing recognition: Schemmer; Terry v Butterfield Bank; Re Battoo; Re Silk Road. This criteria alone would seem unlikely by itself to satisfy the requirement.” (emphasis added)

35.  As mentioned above, sufficient connection is the first stage of the sufficient connection test. As in almost any application that involves the exercise of the Court’s discretion, upon satisfaction of certain minimum requirements (here being the sufficient connection), the Court should consider other factors to determine whether to grant, and if so, on what terms: see Kerr & Hunter, supra, §32-39.

36.  Ms Tong seems to submit that the first stage of sufficient connection is concerning whether to recognise the foreign receivership, and this second stage is concerning whether to give assistance to the foreign receivers upon the recognition, highlighting the conceptual distinction between recognition and assistance: see Re Global Brands Group Holdings Ltd (in liq) [2022] 3 HKLRD 316 at §15 per Harris J. Ms Tong submits that it would be at the second stage where the Court would consider on what terms assistance would be given. With respect, insofar there is any suggestion that once there is sufficient connection, the Hong Kong Court would recognise the foreign receivership, I would not accede to such suggestion. Whether to recognise a foreign receivership or not is still the Hong Kong Court’s discretion to be exercised judicially. In my view, a sufficient connection is the minimum threshold, but the Court still retains the discretion to or to not recognise the foreign receivership despite the existence of sufficient connection. For example, if the foreign receivers do not need to take any steps in Hong Kong that would require any recognition under Hong Kong law, I tend to think that there is no point for the Hong Kong Court to entertain an academic application simply for the recognition of the receivership. To grant an order simply to recognise the receivership, without specifying what powers the receivers would serve no practical purpose and may even be causing confusion, leaving the public what powers the foreign receivers would have in Hong Kong.

37.  As to what factors the Court should consider at the second stage, I shall not attempt to set out exhaustively the factors, but the following factors likely arise in usual cases:-

(1) It is said that where there is sufficient connection, as a matter of comity, there is “a strong presumption that the Court will exercise its discretion to recognise a foreign receivership.” The presumption is particularly strong when the appointment was made after a contested hearing: see Kerr & Hunt, supra, §32-39;

(2) The necessity of the recognition to achieve the purpose of the foreign appointment of the receivership: see Kerr & Hunt, supra, §32-39; Seiden v Link Motion Inc., supra at §11(i);

(3) Whether the receivers have deliberately committed an offence in the instant jurisdiction: see Kerr & Hunt, supra, §32-39;

(4) Whether the receivers are seeking to use the Hong Kong Court to do something it could not do in the appointing jurisdiction: see Seiden v Link Motion Inc., supra at §11(ii);

(5) Whether the receivers are seeking recognition of any powers that could not or would not be granted under Hong Kong law: see Seiden v Link Motion Inc., supra at §11(iii);

(6) Whether the recognition of the receivers would be contrary to public policy, for example, in breach of the public policy rule against enforcement of penal laws: see Kerr & Hunt, supra, §32-39; Seiden v Link Motion Inc., supra at §11(iv); and

(7) Whether the receivers are appointed on an interim basis. The general conflict of law rule that only final and conclusive judgments are enforceable has no application here. It must, however, be noted that in general, the interim basis is not a ground for refusing recognition, but may be a ground for limiting the power of the receivers in the recognition: see Kerr & Hunt, supra, §§32-42 – 32-47. All that said, in my view, the Hong Kong Court should not shy away from forming a view as to the merits of such an interim appointment, where the Court feels able to do so fairly on the materials before it. There should be less concern of comity here because the appointment was made on an interim basis and thus by nature, the merits have not been fully argued and/or finally decided. This concern of comity should feature even less for foreign receivers appointed on an ex parte basis. Where appropriate, the Hong Kong Court should examine whether the materials relied upon by the foreign court in appointing the receivers ex parte would have sustained the appointment had the duty to make full and frank disclosure been properly discharged.

B. Procedure

38.  Before I turn to the analysis in the present case, I would like to say a few words about the procedure for applying for recognition of a foreign receivership.

39.  As noted in Kerr & Hunter, supra, §§32-40 and 32-41, an application for recognition of a foreign receivership may be made by way of ex parte originating summons, but it may also be made inter partes within extant substantive proceedings themselves if appropriate.

40.  In the present proceedings, originally, by the Originating Summons, the Receivers applied by an ex parte Originating Summons in HCMP 968/2025, outside any extant proceedings and separate from the Delivery Up Applications in HCMP 408/2025. HSFK appears in the present proceedings because the Receivers are at the same time making the Receivers’ Delivery Up Application against HSFK to be heard together. As regards CNG’s appearance, it opposes the Recognition Application as interverner because of the Receivers’ Delivery Up Application and the SIL’s Delivery Up Application on the ground that the documents sought to be delivered up would affect its interests. The recognition and assistance sought by the Receivers in the Originating Summons would, however, not be limited to making the Delivery Up Applications. The assistance sought in the Originating Summons would go wider than this, affecting not only HSFK or CNG, but, for examples, the “directors of SIL” (§2(f)), “employees, managers, agents and advisers” to be appointed and engaged on behalf of SIL (§2(l)), and “any person” who has “possession, custody or power” of “books and documents that relate to the Shares and SIL…” (§6(m) of the draft Order submitted to me at the outset of the hearing).

41.  In such circumstances, I agree with Mr Li and Ms Tong that if the assistance sought would be to grant powers affecting parties not before the Court seized of the matter, then, despite the appearance of the parties who would immediately be affected, the application for recognition and assistance is still ex parte in nature at least as regards the powers affecting persons not before the Court. Therefore, the duty to make full and frank disclosure applies in the same way as it does to any other ex parte applications as regards the powers affecting persons not before the Court.

42.  When I discussed this ex parte point with Mr Wood (for the Receivers) during his oral reply submissions, Mr Wood submitted that he would revise the draft order (although he made it clear that the revision should not be taken to mean that there had been failure to make full and frank disclosure). Eventually, on the second day of the hearing before me, he substantially deleted what he originally sought, and now seeks an order that:-

“The Receivers be granted assistance to empower them to inspect and request copies of the documents that are in HSFK’s possession, custody or power…”

C. Analysis

43.  In the present case, in terms of the factors for sufficient connection identified in §25 above:-

(1) CNG is incorporated Hong Kong, while the receivers were appointed by the BVI Court.

(2) By applying to set aside the BVI Enforcement Orders and having failed, CNG should be taken to have submitted to the BVI jurisdiction.

(3) CNG did not carry on business in the BVI.

(4) Nor did CNG have any management or control in the BVI.

(5) Nor did the individuals behind CNG submit to the BVI jurisdiction.

(6) Mr Wood submits that CNG had a presence in the BVI by incorporating SIL in the BVI. With respect, this in itself does not mean that CNG has any presence in the BVI. The Court should look at where the business, management and control of SIL is. The substance of the business, it is not in dispute, is carried out by Soremi SA in Congo. Therefore, I do not agree that CNG had any presence in the BVI by incorporating SIL in the BVI, or if there was any presence, such presence would be a factor of no weight.

(7) The subject asset, being the Shares, is shares in SIL, which is incorporated in the BVI, and thus the BVI Court is naturally the most appropriate forum to exercise jurisdiction over the Shares.

44.  Having considered the above, in particular CNG’s submission to the BVI jurisdiction and the subject asset being shares of a company incorporated in the BVI, I find that there is sufficient connection.

45.  As regards the second stage, first, both the Receivership Order and the Sanction Order were granted ex parte.

46.  Second, as regards the purpose of the Receivership Order, for the following reasons, I take the view that the purpose was to preserve the Shares and the underlying value of the Shares pending the registration of the same in the name of Global, and therefore, any rights and powers conferred upon the Receivers would hinge on or be incidental to the Shares:-

(1) As a matter of principle, although the Receivership Order is an order made by a foreign court, the Hong Kong legal principle of construction of a court order, namely, to construe the wording of the order according to the natural and ordinary meaning in the syntax of the context and purpose (see Essilor Manufacturing (Thailand) Co., Ltd v Wong Kam Wai and Others [2020] HKCA 351 at §25 per Poon CJHC and Lam VP and Natwest Markets PLC and Another v The Owner of The Ship of Vessel “Angelic Glory” [2023] HKCFI 644 at §§24-25 per Anthony Chan J (as he then was), is for all purposes the same as that in the BVI. Further, the Hong Kong Court is entitled to apply its own training (especially in relation to a court order from a common law jurisdiction) to construe that order: see Shenzhen Development Bank Company Limited v New Century Int’l (Holdings) Limited and Another, HCA 2976/2001, 31 July 2002 at §25 per Lam J and Kwok Hiu Kwan v Johnny Chen and Others [2018] HKCFI 2112 at §13 per Harris J. Therefore, any expert opinion on the meaning of a foreign court order, rather than on the principles of how to construe it, should at most be taken as submissions.

(2) The Receivership Order was made expressly “on an interim basis” (see §2 of the Receivership Order). The purposes of the Receivership Order were stated in §3 thereof to appoint the Receivers “over the Shares and all the powers and rights vested in the Shares… for the purpose of protecting and preserving the status quo of both SIL and its shareholding in Soremi S.A., and also protecting, recovering and repatriating the funds belonging to SIL held and previously held in all SIL Bank Accounts and Soremi S.A. Bank Accounts” (emphasis added). The duration of the Receivership Order was stated, in the same §3, to be “pending the hearing of the Applicants’ application for rectification of SIL’s share register dated 13 June 2024 (Rectification Application) due to be heard on 24 October 2024 (Rectification Application Hearing) or until further order” (emphasis added).

(3) The words and phrases “pending” and “all the powers and rights vested in the Shares” used in §§2 and 3 of the Receivership Order, “control the Shares and use such rights as are vested in the Shares” in §5 of the Receivership Order, “to exercise all the corporate powers of SIL which are vested in the Shares” in §5(d) of the Receivership Order suggest that the subject matter of the Receivership Order was the Shares (and the rights and interests incidental to them) but no others.

(4) §5(v) of the Receivership Order is indicative. It provides that the Gerald Parties shall be responsible for paying the Receivers’ fees and expenses, “to be claimed from [CNG] and determined at the Rectification Application” (emphasis added). This, in my view, shows that when the ex parte Receivership Order was granted, it was expected that the Receivers’ fees and expenses would be determined at the Rectification Application. One asks, why would this to happen at the Rectification Application? It must be because it was expected that the Receivers’ duties would finish at the Rectification Application and the Receivers would incur no more costs after the Rectification Judgment. In this regard, Mr Wood submits that §5(v) does not necessarily mean that the Receivers would end, and the BVI Court would just determine the costs at that stage, but would also determine further costs to be incurred subsequently. With respect, I disagree. If such submissions were right, it would not be necessary expressly to have §5(v), given that the Receivers would be court officers and the BVI Court would otherwise have the power to determine the costs at some subsequent stage.

(5) Importantly, as mentioned above, the application for the Receivership Order was an application within the Enforcement Proceedings. Therefore, the Receivership Order on an interim basis must be for the purpose of holding the ring pending the enforcement of the BVI Enforcement Orders, namely, transfer of the Shares to Global.

(6) Besides holding the ring, in the written submissions for the application for the Receivership Order, it was said that the appointment of the Receivers would also be to “police the terms of the [BVI Freezing Order as varied by the BVI Repatriation Order] to ensure no further breaches of the same and to attempt to remedy those breaches as far as possible”: see §67 of the written submissions for the application for the Receivership Order. However, such submissions were no longer made during the ex parte oral hearing for the Receivership Order. Instead, a revised draft order was submitted adding phrases like “powers vested in the Shares” to stress that the powers would be the powers on the Shares. Further, equally important is that in the ex parte notice dated 13 September 2024 given to CNG, the notice clearly explained that the Receivership Order was “for the purpose of protecting and preserving the status quo of both SIL and its shareholding in Soremi S.A., and also protecting, recovering and repatriating the funds belonging to SIL held and previously held in all SIL Bank Accounts and Soremi S.A. Bank Accounts, pending the hearing [of the Rectification Application] or until further order” (emphasis added) (see §3 of the notice) and “to hold the ring and preserve SIL’s assets until such time as the [First Award] and the [Specific Performance Award] are complied with or the Rectification Hearing has taken place and the shares have been transferred” (emphasis added) (§14 of the notice) but nothing was said about “policing” in the notice. Therefore, in my view, any receivers’ powers to police the terms of the BVI Freezing Order and the BVI Repatriation Order were given also for the purpose of holding the ring pending the Rectification Judgment. This view is reinforced by the purpose of the BVI Freezing Order and the BVI Repatriation Order as noted in §17 above, which was also to hold the ring pending the Rectification Judgment. This is entirely consistent with the normal function of court-appointed receivers – to prevent dissipation of assets, a requisite element for appointing receivers.

(7) Further, during the ex parte hearing for the Receivership Order, the Gerald Parties counsel also made it clear that the order sought was “only to have a receivership over the CNG shareholding, not to have a receivership over the entirety of the company… to avoid a situation where there is any allegation that somehow by appointing the Receiver it is an appointment of receivership over our [Global’s] own interest in the company, it is only a receivership over the 65 percent that’s held by CNG” (emphasis added) (transcript p 19(8)-(11)). This also suggests that the subject matter of the Receivership Order was the Shares (and the rights and interests incidental to them) but no others.

(8) I note that the Plaintiffs’ BVI legal expert Ms Au-Yeung seems to suggest that what were said during the hearing is extrinsic materials not relevant to the construction of the Receivership Order. With respect, I reject such suggestion as contrary to common sense and the well established common law principles of construction of a court order, which I find no basis to say would be different in the BVI jurisdiction. In fact, Mr Wood himself draws my attention to the submissions made at the ex parte hearing for the Receivership Order for me to understand it.

(9) By the return date of 16 October 2024, CNG had filed an application for the 1^st Discharge Application, while the Receivers had filed an application for continuation. On the return date hearing on 16 October 2024, the BVI Court made an order to continue the Receivership Order “until the adjourned Return Date Hearing, which is to be relisted in accordance with paragraph 2 below”, and paragraph 2 provided that the 1^st Discharge Application and the continuation application to be listed. Mr Wood suggests that by this Order made on 16 October 2024, the Receivership Order clearly was to continue until the disposal of the 1^st Discharge Application. With respect, such suggestion cannot be maintained – first, that Order made on 16 October 2024 clearly was a usual interim order made at a return date hearing to hold the ring pending substantive hearing, and there is nothing to suggest that somehow, there was any substantive change to the scope of the Receivership Order. Second, the Receivership Order, though continued until the 1^st Discharge Application, still contained in itself the term “pending the hearing of the Applicants’ application for rectification of SIL’s share register dated 13 June 2024 (Rectification Application) due to be heard on 24 October 2024 (Rectification Application Hearing) or until further order”. Therefore, I take the view that the continuation made in the Order of 16 October 2024 was not to expand the Receivership Order.

(10) Even assuming that the Gerald Parties are facing tremendous difficulties in getting control of SIL and its subsidiary Soremi SA despite Global having become the sole shareholder of SIL now, it would be for Global as the sole shareholder to exercise its shareholders rights according to the articles of association and the governing law to resolve the matter. I cannot see how and why the Receivers would have a greater power than Global and SIL.

(11) Mr Wood stresses the phrase “or until further order” in §3 of the Receivership Order, saying that the Receivership Order would not necessarily end with the Rectification Judgment, and thus the Receivership Order was not merely over the Shares but instead would go beyond the Shares even if the Shares were registered back in the name of Global. However, in my view, the fact that the Receivership Order was applied for and made within the Enforcement Proceedings must mean that the Receivership Order was made for the purpose of the enforcement of the registered First Award and the Specific Performance Award. If the Awards were performed, then the Enforcement Proceedings would end (only subject, for example, to applications on costs and/or contempt for breach of orders and/or undischarged obligations), and so would the Receivership Order. By these two registered Awards, CNG was ordered to transfer the Shares to Global. Nothing more was said in the registered Awards and the Enforcement Orders that more power would be given to Global. In fact, under the SHA (based on which the Awards were made), what CNG would have to do was to transfer the Shares to Global, without less and without more. I can see good reason that for the interim period to hold the status quo, the Receivers were given power to seek documents and repatriate income and other powers to preserve the underlying value of the Shares pending the transfer of the Shares. However, after the completion of the transfer of the Shares, Global, being the sole shareholder of SIL, could pass resolutions to appoint directors (as has been done) and get control of SIL. If there were any difficulties faced by Global (as Mr Wood submits) in getting control of SIL and/or getting control of Soremi SA and/or getting access to the relevant information of SIL and/or Soremi SA, it would be for Global as the sole shareholder of SIL to go through the proper ways under the articles of association and the BVI companies law (governing SIL) and Congo law (apparently governing Soremi SA). I see no reason why the BVI Court would intend to give such wide powers as submitted by Mr Wood that would effectively disturb the corporate legal regimes beyond the completion of the purpose of the Enforcement Proceedings. The phrase “or until further order”, howsoever broad it appears, cannot be understood to go beyond the scope of the Enforcement Proceedings.

(12) Mr Wood submits that had the Receivership Order been complied with earlier before the Rectification Judgment, the Receivers would have already obtained the Documents they are now seeking. With respect, I do not see how such submissions would advance the Receivers’ position. If the Receivers would have the powers as Mr Wood submits, it would not matter whether they should have already obtained the Documents. However, if the Receivers’ powers should expire upon the Rectification Judgment, even if they had already obtained the Documents, they should return the Documents (together with the Shares) to Global as the 65% or sole shareholder upon the Rectification Judgment, and the Receivers would not have the power to keep the Documents upon the expiry.

(13) Lastly, Mr Wood submits that the Receivers were appointed to police and carry out the terms of the BVI Freezing Order and the BVI Repatriation Order, even though the Shares have now become registered in the name of SIL. For that purpose, he submits that the shareholders rights remain with the Receivers. He goes so far as to say that if Global, as the sole shareholder of the SIL, would like to exercise its rights as shareholder, Global would need prior approval from the Receivers. With respect, I am unable to agree with such submissions. First, to appoint receivers simply to carry out or police a Court Order without any underlying assets is very rare (if not unheard of) (as opposed to holding the ring by ensuring that other interim orders to hold the ring would be properly carried out with the receivers as a shareholder of a company). Second and in any event, Global as the sole shareholder of SIL would be able to exercise its rights as the sole shareholder to, for example, instruct SIL to repatriate the fund from SIL’s bank account in Beijing into the BVI Court under the BVI Repatriation Order. Insofar as there is any difficulty for Global in giving instructions to the bank account in Beijing, it would be for Global and SIL to resolve the matter. It would not be proper for a civil Court to appoint receivers with sweeping powers so much so that they could, for example, instruct the transfer of the funds simply based on court powers paying no regard to the corporate structure and regime. Similarly, if there should be any documents disclosed under the Freezing Order, it would be for Global to instruct SIL to produce the documents, and again, if there is any difficulty for SIL to do so, it would be for Global and SIL to resolve the matter. It would not be proper for a civil Court to appoint receivers with sweeping powers so much so that they could be entitled to the documents direct even regardless of ownership. Further, I am unable to see why the Receivers, even if they still retained the shareholders’ powers but the Shares already registered back in the name of Global, would be given powers larger than the shareholder of the Shares. All the more it must be remembered that the Receivership Order is only interim in nature.

(14) Having considered the above, I am of the view that the purpose of the Receivership Order was to preserve the Shares pending the Rectification Judgment and therefore, any rights and powers conferred upon the Receivers would hinge on or be incidental to the Shares. I would come to the same view even merely on the wording of the Receivership Order without considering what counsel submitted at the ex parte hearing for the Receivership Order. In any event, the submissions made by counsel at the ex parte hearing for the Receivership Order only reinforce my view above, given that the counsel’s submissions fairly pointed out that the Receivership Order being sought would be “over the shares and all the powers vested in the shares including the business and assets of SIL”: see transcript of the ex parte hearing at 65(1), “until such time as the [First Award] and the [Specific Performance Award] are complied with or the Rectification Hearing has taken place and judgment has been handed down”: see §8 of the skeleton submissions for the ex parte hearing for the Receivership Order. The draft order submitted for the ex parte court’s approval was “very carefully [drafted] to make sure that it is over the [Shares]”.

47.  Therefore, in my view, the purpose of the Receivership Order has been spent.

48.  When the purpose of an inter partes interim order no longer subsists, a Hong Kong Court would expect (and there is no reason for me to think that a BVI Court would have a different expectation) that the parties would update the Court that the interim order is no longer necessary and make an appropriate application, for example, for a discharge of the interim order. A fortiori for an ex parte order.

49.  Shortly after the Rectification Judgment, the Receivers did make an application to the BVI Court. They made it on an ex parte basis, however, not for such updating but for the purpose of “clarifying” the scope of the Receivership Order. This is the Directions Application returnable before Mr Justice Abbas Mithani KC mentioned in §25 above.

50.  This brings me to the Sanction Order granted upon the Directions Application. The Receivers rely heavily on the Sanction Order to say that their substantive powers go beyond the Rectification Judgment. To put the matter in proper perspective, it is important to understand what happened during the ex parte hearing for the Directions Application.

51.  The first important point to note about that ex parte hearing is that while the Receivers were not the applicants for the Receivership Order, the Receivers were obviously privies to the Gerald Parties. In any event, the Receivers, as court officers in the BVI, have duty to inform the BVI Court of the full picture, a fortiori in an ex parte application. Although the Receivers were not at the ex parte hearing for the Receivership Order, the Receivers, in proper discharge of their full and frank disclosure, would have sought from the Gerald Parties the documents in relation to the ex parte application for the Receivership Order. If the Receivers had sought such documents, I see no reason why the Gerald Parties would have refused, given that these documents concerning the appointment of themselves.

52.  The second important point to note is that the Directions Application was made ex parte. The Directions Application was filed on 21 July 2025, but the hearing took place only on 24 September 2025. So, it is clear that there was no urgency in the matter. While the reason giving rise to the Directions Application, according to the Receivers’ submissions before the ex parte judge, was because of dispute between the Receivers and HSFK over the scope of the Receivership Order, no notice was given to HSFK about the application in those two months between 21 July 2025 and 24 September 2025. In my view, given that HSFK took issue, in the ex parte application, the Receivers should have notified HSFK of the application. Further, by the time of the Directions Application, the Gerald Parties were well aware that CNG had been taking the position that the Receivership Order should have expired upon the Rectification Judgment: see §§60-61 below. CNG should also have been notified of the Directions Application.

53.  The third important point to note is that the Directions Application was made for the purpose of clarifying the scope of the Receivership Order. It was not for expanding the scope of the Receivership Order. Mr Wood (also counsel in that ex parte Directions Application in the BVI) confirms this to me.

54.  The fourth important point to note is that the judge granting the Receivership Order was not Mr Justice Abbas Mithani KC, who heard the Directions Application. Thus, Mr Justice Abbas Mithani KC made it clear at the outset of the hearing that had only “had a quick skim through the skeleton, and [he] [had] a certain familiarity with this case, [he] [thought]”. He did not indicate how deep the “certain familiarity” it was. Given that the “certain familiarity” was prefaced by he having “had a skim through the skeleton”, he could not be expected to know or to be familiar with the terms and scope of the Receivership Order. Essentially, that ex parte hearing of the Directions Application was an ex parte hearing upon the scope of an ex parte order. It is fair to say that the applicant would have to be particularly attentive to its duty to make full and frank disclosure not only about the Directions Application but also about the ex parte materials that led to the grant of the Receivership Order.

55.  However, unfortunately, at the ex parte hearing for the Directions Application, nothing was mentioned about the purpose of the Receivership Order and the possible or arguable effect of the registration of the Shares back in Global under the Rectification Judgment in the light of the purpose of the Receivership Order. Nothing was mentioned that the Receivership Order was made within the Enforcement Proceedings, and so at least there would be good argument that the Receivership Order should have expired upon the Rectification Judgment. Nothing was mentioned about the interim nature of the Receivership Order, and nothing was mentioned about the phrases in the Receivership Order like “vested in the Shares”, “pending the hearing of the [Rectification Application]”.

56.  On the first day of the hearing before me, upon queries about all this, the best material Mr Wood (who was also the counsel for the Directions Application in the BVI) can point to me is §§23 and 91-92 of his ex parte skeleton for the Directions Hearing:-

“23. Notwithstanding the Rectification Judgment, the receivership is continuing and no party to the [Enforcement Proceedings] has contended otherwise. By order of the BVI Court dated 16 October 2024, the Receivership Order was continued until the adjourned return date for the hearing of the applications to continue / discharge the Receivership Order or further order [HB/1/8/73]. Those applications are not currently listed for hearing.

…

91. HSF has queried the Receivers continuing role following the Rectification Judgment. By letter of 22 July 2025 [HB/3/12/1407], HSF asserted that the basis for the Receivers’ appointment has fallen away. HSF asked KYC [solicitors for the Receivers] to confirm whether the Receivers had been discharged or were making arrangements for their discharge. HSF asserted that it was ‘plainly inappropriate’ for the Receivers to continue the HSF Delivery Up Application and the Recognition Application.

92. By letter dated 28 July 2025 [HB/3/12/1410], KYC confirmed that the Receivers had not been discharged. With respect to the need for the HSF Delivery Up Application and the Recognition Application, KYC stated…” (emphasis added)

57.  The above only shows that while Mr Wood drew to the ex parte judge Mr Justice Abbas Mithani KC’s attention HSFK’s argument that the Receivership Order should have expired upon the Rectification Judgment, nothing was mentioned about the reasons for HSFK’s argument. Nothing was mentioned about the interim nature (pending the determination of the Rectification Judgment within the Enforcement Proceedings) of the Receivership Order. I also note that the sentence “Notwithstanding the Rectification Judgment, the receivership is continuing and no party to the [Enforcement Proceedings] has contended otherwise” in §23 of his written submissions quoted above was very skilfully drafted. It was correct that CNG had not contended otherwise, when by that time CNG had not yet made the 2^nd Discharge Application. It was also correct that HSFK’s position was not a position of “a party to the Enforcement Proceedings” because HSFK was not a party to the Enforcement Proceedings. However, with respect, I think more should have been said in an ex parte application about the terms of the ex parte Receivership Order when clearly, the dispute was about the duration of the Receivership hinging upon the Rectification Judgment. Rather, unfortunately, this skilfully drafted sentence might have given an impression that there could not be any valid dispute between the Gerald Parties and Global that the Receivership Order should still substantively continue, and HSFK’s unexplained position would not affect the Receivership Order before any discharge.

58.  Thus, it seems to me that the hearing before Mr Justice Abbas Mithani KC proceeded on the basis the parties did not dispute that the Receivership Order was still continuing substantively while CNG’s and HSFK’s positions were left unexplained. On that basis, the Receivers’ counsel made submissions that the Sanction Order was needed to counter any argument (raised by HSFK) that they only had the rights over 65% shares in SIL and thus they could not apply for production of books and accounts and other documents of SIL, as appears from the transcript of the hearing at pp7-10. On that basis, I would completely understand why the learned judge would grant the Sanction Order, apparently led to labouring under an impression that the Receivership Order was still continuing substantively, and thus thinking that the Receivers’ rights would still need the clarification sought.

59.  However, that basis, upon which the ex parte hearing proceeded, was factually wrong. By the time of the ex parte hearing, the Shares had been registered in the name of Global. Global became the registered shareholder of the Shares, in addition to the 35% shares in SIL it had already held in its name. There was no suggestion that Global was unable to exercise the rights as the sole shareholder in SIL, and even if there were any such suggestion, it would still be for Global to make any necessary application in its own name or even in the name of SIL which Global wholly owns. There was no reason why the Receivers’ powers would have to be continued substantively, or broadened beyond the Rectification Judgment. There was no reason why it would have to be broadened in a way suggestive of powers not even available to SIL as the sole shareholder of SIL, namely, to directly seek documents without going through the proper internal procedure of SIL.

60.  Nor does the transcript of the hearing for the Rectification Judgement, exhibited to the Affidavit of Carl Moran (the “Moran’s Affidavit”) produced by Mr Wood on the second day of the hearing before me, help Mr Wood. At the very most, the transcript shows that Mr Justice Abbas Mithani KC (who would also be the judge granting the Sanction Order) was aware that there would be a hearing of the Discharge Applications yet to be “listed” and there would be arguments over whether the Receivership Order should fall away upon the Rectification Judgment. The CNG’s counsel at that hearing suggested that “if the parties were able to agree those applications… then they’ll fall away.” Upon that, understandably, the judge did not express any view on the matter, but was concerned about whether he had “to make any directions in relation to those applications.” As such, no arguments about the purpose of the Receivership Order and the interim nature of the Receivership Order were ever raised at that hearing. It is fair to say that the parties were content that the Receivership Order was to continue pending substantive argument at the hearing to be listed (although apparently at that substantive hearing to be listed, the Gerald Parties and the Receivers would argue that the Receivership Order should be continued substantively while CNG would argue that the Receivership Order should have been discharged upon the Rectification Judgment), but it does not follow that the parties agree that the Receivership Order would continue substantively in a way more than it was intended to be. In any event, to say that at the ex parte hearing of the Directions Application two months later, Mr Justice Abbas Mithani KC would still remember all these could only be, at best, an assumption only, when at the ex parte hearing of the Directions Application, Mr Justice Abbas Mithani KC (at best with an unspecified “certain familiarity with this case”) expressly made it clear that he only had “a quick skim through the skeleton” only and “had not been able to go through the bundle”. In any event, even if the judge could be assumed to remember some submissions that were made two months ago in a hearing to see if any directions would have to be made, in proper discharge of the full and frank disclosure, it must be made known to the judge what potential arguments exactly there were about the effect of the Rectification Judgment, and even if the Receivers themselves thought that such argument was unmeritorious, I do not think that the Receivers would be justified to think that they were so unmeritorious that there was no need to disclose the same to Mr Justice Abbas Mithani KC as the ex parte judge. All the more for the Receivers who are court officers, not the officers of the Gerald Parties.

61.  Similarly, the skeleton submissions for that hearing for the Rectification Judgment exhibited to Moran’s Affidavit do not help Mr Wood. On the contrary, it seems that the skeleton submissions do suggest, by the following paragraph, that if necessary for the Receivers to continue beyond the registration of the Shares back in Global, Global as the sole shareholder would have to instruct SIL to appoint the Receivers to do so. At §34, it was written:-

“For the Court’s information, the Receivership remains in place until the Receivership Continuation and Discharge Application… will need to be listed. To the extent there is any issue as to the status of the Receivers, once Cs’ ownership of SIL is registered and Cs have assumed control, they would in any event be free to direct SIL to appoint the Receivers to continue in their work as is considered fit.” (emphasis added)

This, in my view, shows that the power was expected to expire upon the Rectification Judgment, and if necessary, a fresh appointment would have to be made by SIL.

62.  Further, if the transcript and the skeleton submissions produced on the second day of the hearing is of any relevance, they all show that at most, in Mr Justice Abbas Mithani KC’s mind (if he would still remember the details), the parties had agreed that the Discharge Applications would be argued later but the learned judge did not know the details of the arguments (for example, the “pending” phrase in the Receivership Order and the submissions made in the ex parte hearing for the Receivership Order had never been mentioned to Mr Justice Abbas Mithani KC at all), and meanwhile, the parties would try to agree to dispose of the Applications without troubling the BVI Court. Together with the skilfully drafted sentence at §23 of the ex parte skeleton submissions for the Directions Application, namely, “Notwithstanding the Rectification Judgment, the receivership is continuing and no party to the [Enforcement Proceedings] has contended otherwise” which Mr Justice Abbas Mithani KC had read, he might well be under an impression that there was no dispute that the Receivership Order was continuing substantively in the same way as it was pending the Discharge Applications. This impression would be incorrect.

63.  Therefore, in my view, even if the Sanction Order were meant to broaden the powers under the Receivership Order, the Sanction Order was made ex parte in such circumstances, which make me cast very serious doubt on the correctness of such broadening. In this regard, I note Mr Wood’s submissions (as mentioned above) that the Sanction Order was not to broaden, but to clarify, the powers under the Receivership Order. If this is the case, then upon my view about the scope and duration of the Receivership Order, the Sanction Order would not add anything, and this would not advance Mr Wood’s position on the Recognition Application.

64.  Mr Wood asks me to cast serious doubt on the genuineness of the argument that the purpose of the Receivership Order had been spent upon the Rectification Judgment made on 16 July 2025, because if such argument were genuine, CNG would have applied to discharge the Receivership Order on this ground shortly thereafter on an urgent basis, rather than waiting until recently in early February 2026 to request an urgent hearing. However, the fact is that the 2^nd Discharge Application was made on 13 October 2025. At that time, the parties were still waiting for the listing of the 2^nd Discharge Application, and no imminence of the present Hong Kong hearing existed yet. CNG could have earlier tried to secure an early date, rather than doing so only recently. However, I do not think that this would undermine the merits of the argument before me. All that said, this time factor is something I consider in the exercise of the discretion.

65.  The Discharge Applications are still yet to be heard by the BVI Court (see §21(3) above). Nevertheless, I should not shy away from expressing my view (if possible) on the current materials and submissions in discharge of the Court’s duty, because it would be a relevant factor I should consider in exercising my discretion and comity should feature less in such ex parte applications (see §37(7) above). On the materials placed before me, I take the view that upon the expiry of the Receivership Order upon the Rectification Judgment, the Sanction Order would not have been made if the Receivers had properly discharged their duty to make full and frank disclosure at the ex parte hearing for the Directions Application. Further and in any event, the Sanction Order was meant to clarify the Receivership Order only (as Mr Wood confirms), and thus the Sanction Order would not add anything. At the risk of repetition, my view above is formed on the materials and submissions before me. I would perfectly understand that if there were some other relevant materials and/or submissions before the BVI Court, a different outcome might result. But this is a matter for the BVI Court.

66.  For the above reasons, I am of the view on the materials before me that the purpose of the Receivership has been spent, the Order Receivership Order has expired since the Rectification Judgment and has since then had no effect, and the Sanction Order, if (arguably) meant to continue the Receivership Order beyond that, should have been discharged. This view is a significant factor in determining whether and how to exercise my discretion.

67.  Mr Wood stresses that the Receivership Order, until discharged in the BVI, remains a valid order, and so, as a matter of comity, the Hong Kong Court should give effect to it. In principle, Mr Wood is correct to say that the Receivership Order remains a valid order. However, from the Hong Kong Court’s perspective, I still have to ascertain a proper purpose for the recognition and assistance. If the purpose has been spent (as I have found above), then the continuing validity of the Receivership Order is more technical than substantive. These are factors for consideration in the exercise of my discretion.

68.  During the hearing before me, Mr Wood also confirms that the purpose of the Receivers’ seeking the recognition and assistance is to allow them to “find another way” to seek documents from SIL’s previous solicitors. He points out that unlike in Cosimo Borrelli and Others v Linklaters (a firm) & China National Gold Group Hong Kong Limited [2025] HKCFI 5293, where it was SIL who made the application for the delivery up of documents from Linklaters, here in the present case, there is an arbitration agreement between SIL and HSFK (defined as the Arbitration Agreement below, a point I shall discuss in more detail in the Stay Applications below), and so there would be hurdles for SIL in its own name to seek documents from HSFK. He further submits that SIL is still under the control of the Receivers, and there is no practical difference between the Receivers and SIL in seeking delivery up of documents from SIL’s previous solicitors, but having the Receivers recognised for their standing to seek documents from HSFK would be “another way” so that the hurdle arising from the Arbitration Agreement between SIL and HSFK could be avoided. In my view, this is a typical situation where a party would like to circumvent an arbitration agreement. It has been time and again repeated by the Hong Kong Courts that the policy in Hong Kong is to promote arbitration (see, for example, C v D [2022] HKCA 1199 at 8 per Cheung, Yuen and Chow JJA). On this, putting aside whether it is right or wrong to say that the Arbitration Agreement would cover SIL’s seeking documents from HSFK (a matter I shall discuss below), the Receivers’ intention clearly is to circumvent the Arbitration Agreement. This is contrary to the public policy of promoting arbitration in Hong Kong. When I raised this public policy point with Mr Wood after he informed me that the recognition he is seeking is “another way”, he points out that when the Delivery Up Applications were commenced, the Receivers did now know the existence of the Arbitration Agreement. But it is indisputable that they became aware of the Arbitration Agreement on 26 March 2025 (shortly after the Delivery Up Applications were commenced on 14 March 2025), and I think Mr Wood’s frank confirmation of “another way” explains why despite their knowledge of the Arbitration Agreement, the Receivers pursue and still continue to pursue the Recognition Application and the Receivers’ Delivery Up Application, while SIL agrees to adjourn the SIL Delivery Up Application sine die. This “finding another way” matter is another factor I should bear in mind.

69.  Lastly, insofar as there is any argument that CNG is the bad buy, as evidenced by the various judgments about CNG here in Hong Kong and BVI, and so the Hong Kong Court should assist the Receivers, while this is a consideration, this consideration would not broaden the Receivers’ powers. If the powers were so limited, simply relying on the “good guy bad guy” approach to say that more powers should be granted does not carry the matter very far. The Court is bound to make decisions based on the law.

70.  Having considered the above, I refuse to exercise my discretion to recognise and assist the BVI appointment of the Receivers, and dismiss the Recognition Application.

71.  For the sake of completeness, as shown above, I do not find the need to case-management stay the present application pending the determination of the Discharge Applications. What I should do, as I have, would be to determine whether the evidence as it is before me would satisfy me that I should exercise my discretion to recognise the receivership order. I add that a determination of the Discharge Applications in favour of the Receivers would be a material change of circumstance, and thus this may well justify a fresh application for recognition and assistance there and then. Similarly, if the BVI Court would find it appropriate to expand the Receivership Order, or if SIL would have a fresh appointment of the Receivers as receivers (as indicated in the Gerald Parties’ skeleton submissions for the Rectification Application: see §61 above), this may also well justify a fresh application.

72.  In the event that I were wrong in dismissing the Recognition Application, I would have no hesitation in granting a case-management stay pending the determination of the Discharge Applications in the BVI, on the general legal principles in relation to case-management stay I shall cite in §§81-82 below.

V. STAY OF SIL’S DELIVERY UP APPLICATION

73.  By the Stay of SIL’s Delivery Up Application, HSFK seeks a permanent stay of SIL’s Delivery Up Application on the ground that the dispute falls squarely under the Arbitration Agreement (see §11(1) above).

74.  To determine whether SIL would be entitled to the documents under the Delivery Up application, the first question to ask must be the ownership of the documents. This issue clearly falls within Clause 11 and the Arbitration Agreement. Under section 20 of the Arbitration Ordinance (Cap. 609), the Court has no discretion but must stay proceedings in relation to such dispute: see Mice Engineering Limited v Johnson Controls Hong Kong Limited [2022] HKCFI 2768 at §16.

75.  SIL raises the following grounds of opposition to the Stay of SIL’s Delivery Up Application:-

(1) Arbitrability and public policy: HSFK are Hong Kong solicitors, and they are subject to the Hong Kong Court’s supervisory jurisdiction. Arbitration is not the end of the matter, and the Hong Kong Court still has jurisdiction over the matter.

(2) Sine die adjournment of the SIL’s Delivery Up Application is sufficient for the time being, and there is no need for a permanent stay as sought by HSFK.

76.  For first ground of opposition, my view is as follows:-

(1) The issue in the SIL’s Delivery Up Application is the ownership of the documents. The issue of ownership is to be determined by the general legal principles: see Ho On Mansion (IO) v Herman HM Hui & Co [2020] 3 HKLRD 18 at §21. If the documents are owned by SIL, they should be returned to SIL. If the documents are owned jointly by SIL and CNG, then there may be other considerations. If the documents are not owned by SIL at all (for example, documents owned solely by CNG or working documents solely by HSFK), the SIL will not be entitled to such documents.

(2) It is the situation where the documents are owned by HSFK then the Court’s supervisory jurisdiction over solicitors, Mr Wood submits, will be relevant. While he accepts that Hanley v JC&A Solicitors and Others [2018] 4 Costs LR 693 at §§60-73 stands for the legal proposition that the right to deliver up in relation to documents in the possession of solicitors depends on the ownership and that the Court has no supervisory jurisdiction to order solicitors to produce to clients documents owned by the solicitors, he urges me not to follow Hanley v JC&A Solicitors and Others, supra in the SIL’s Delivery Up Application because the authorities cited in Hanley v JC&A Solicitors and Others, supra did not directly support such legal proposition and also because ultimately, it is the Court who exercises the supervisory jurisdiction over solicitors and so where the Court would think fit, the Court may allow the solicitors’ client or former client inspection of documents in the possession of solicitors even though such documents are owned by the solicitors. For this proposition, Mr Wood refers me to, among others, the English Law Society’s Senior Legal Adviser’s opinion quoted in Hanley v JC&A Solicitors and Others at §45, Law Society of British Columbia (July 2017), “Ownership of Documents in a Client’s File” and Opinion Provided to the New Zealand Law Society (April 2014) – Ownership and Retention of Records on Termination of Retainer and Wentworth v De Montfort and Others (1988) 15 NSWLR 348 at 358A-D and 361E.

(3) In Hanley v JC&A Solicitors and Others, supra, at §§25-59, Soole J conducted an extensive review of the two lines of cases, one line suggesting that the Court has such jurisdiction (which Mr Wood relies) and the other suggesting that the Court does not. The learned judge expressed his view as follows:-

“60. In my judgment the court has no jurisdiction to make orders under the inherent jurisdiction and/or s 68 [equivalent of section 65 of the Legal Practitioners Ordinance (Cap. 159) invoked by Mr Wood] in respect of documents which are the property of the solicitor.

61. First, as a matter of principle, an order for delivery up or otherwise in relation to property belonging to another must have an explicit legal basis.

62. Secondly, the powers referred to in s 68 are derived from the inherent jurisdiction, not the statute itself. The section simply extends the reach of the jurisdiction to cases in which no business has been done in the High Court. It reflects, with immaterial amendments, the provision of successive statutes governing solicitors…

63. Thirdly, the decisions relied on by the appellants in my judgment provide no authority for their central proposition that the court has a discretion under the inherent jurisdiction to order delivery up or make other orders in respect of documents which belong to the solicitor. I will deal with these in turn.

…

67. I do not accept that these authorities are merely reflective of an age when copying was a major task, nor that the decision in Wheatcroft is authority only for the protection of the solicitor’s only record of documents. If the document and its contents are solicitors’ property which he is entitled to retain, there is no basis for circumvention of that proprietary right by some other form of order.

68. The importance of ownership is further confirmed by the decision of the Court of Appeal in Leicestershire CC and Chantrey Martin…

69. As to Crocker the present issue did not arise because there was no assertion by the respondent solicitors that the documents were their property.” (emphasis added)

(4) I agree with the in-depth analysis made by the learned judge. In particular, in Hong Kong, property right is protected by the Basic Law (while in the UK, at best, the right is protected by the European Human Rights Act having an equal status as other Acts only), and therefore, there is a stronger reason, and so I rule, that the Hong Kong Court has no such jurisdiction as submitted by Mr Wood. I find comfort in my ruling above given that Hanely v JC&A Solicitors and Others, supra has been relied upon in Hong Kong Court: Angela Chen v Wai Wai Chen and Another [2021] HKCFI 2436 at §130 per Wilson Chan J and Gladius Limited and Another v Tanner De Witt (a firm) [2025] HKCFI 5974 at §9 per DHCJ Grace Chow.

(5) In other words, the issue of ownership of the Documents as well as the right to delivery up of the Documents is arbitrable and falls within the Arbitration Agreement. Therefore, I do not accept this arbitrability ground of opposition as a valid ground.

77.  For the second ground that the SIL’s Delivery Up Application has already been adjourned sine die, given my view above, and given that the Court has no discretion but must stay under section 20 of the Arbitration Ordinance, at the end of the day, the SIL’s Delivery Up Application would have to be stayed permanently, and so there is no point to adjourn it sine die. The sine die adjournment has not rendered the need for such permanent stay is academic especially when shortly before the commencement of the hearing before me, the Plaintiffs’ solicitors made it clear in writing to the parties that SIL could restore the SIL’s Delivery Up Application anytime if necessary.

78.  Therefore, I grant a permanent stay of the SIL’s Delivery Up Application.

VI. CASE-MANAGEMENT STAY OF THE RECEIVERS’ DELIVERY UP APPLICATION

79.  Given my dismissal of the Recognition Application above, the Receivers have no standing to make the Receivers’ Delivery Up Application. It should also be dismissed accordingly.

80.  For the sake of completeness, since parties have made full submissions on case-management stay in the context of arbitration, I should express my view on the law.

81.  The prime consideration in relation to the Court’s exercise of the discretion to grant a case-management stay is whether the Court’s procedures “are used in a logical, fair and cost-efficient manner”: see Lok Man Sin v Lam Chi Wing [2019] HKCFI 56 at §20 per Recorder Eugene Fung (as he then was). While Lok Man Sin v Lam Chi Wing is a case where multiple court proceedings were involved rather than a court proceeding in parallel to an arbitration proceedings or a putative arbitration proceeding, I do not see why the prime consideration would be different. Such considerations are, in my view, the considerations taken into account in Polytec Overseas Ltd v Grand Dragon International Holdings Co Ltd [2017] 3 HKLRD 258 at §59 per Mimmie Chan J and Houtai Investment Holdings Limited v Leung Yat Tung and Others [2021] HKCFI 1504 at §§35-36 per Mimmie Chan J upheld by the Court of Appeal in [2022] HKCA 411 at §§20-21 per Yuen JA. Further, it is noted that in both cases, no arbitration proceedings had been commenced, and not all the parties were parties to the arbitration agreement in question, but the court proceedings were case-management stayed pending the putative arbitration proceedings.

82.  I add that in cases where arbitration agreement is a ground for an application for a case-management stay, the Court should take into account the Hong Kong’s policy to promote the use of arbitration, a policy recognised repeatedly by Hong Kong Courts, as mentioned above. Therefore, although the Court should strike a balance between the plaintiff’s right to choose whom to sue and where to sue on the one hand and the Court’s desire to prevent a plaintiff from circumventing an arbitration agreement: see Tomolugen Holdings Ltd v Silica Investments Ltd [2015] SGCA 57 at §188, any suggestion that a stay should only be granted in “rare and compelling circumstances” (for example, as in Reichhold Norway ASA v Goldman Sachs International [2000] 1 WLR 173 at 186B-F and Danone Asia Pacific Holdings Pte Ltd v Fonterra Co-operative Group Ltd [2014] NZHC 1681 at §§54-55) should not be adopted.

83.  In the present case, on the legal principles expounded above, if I would have to determine whether to grant a case-management stay of the Receivers’ Delivery Up Application, I would grant a case-management stay for the following reasons:-

(1) The Receivers are receivers of the Shares, that is, 65% of the entire shareholding of SIL only. In other words, the Receivers’ rights are presumably a 65% shareholder’ rights. Thus, the rights cannot be larger than the rights of SIL as the corporate entity. A fortiori when the alleged larger rights would affect third party, like in the present case, the larger right may affect HSFK’s rights to their own documents. Even if I assume that the Receivers’ powers would enable them to exercise SIL’s rights in their own name, the right could still not be larger than SIL’s rights.

(2) As discussed above, SIL’s right to the documents now sought under the SIL’s Delivery Up Application (the same as those under the Receivers’ Delivery Up Application), depends on the ownership of the documents, and this issue falls within the Arbitration Agreement, to be determined by way of arbitration.

(3) Therefore, the issue is identical. In determining the Receivers’ Delivery Up Application, the Court would have to determine the ownership of the documents.

(4) As regards the parties, while the parties are not the same (with the Receivers instead of SIL) and the Receivers are not a party to the Arbitration Agreement, the Receivers are privy to SIL in that the Receivers are exercising the rights of SIL. In fact, the Receivers together with Global now control SIL.

(5) Further, the Receivers have never been a client of HSFK. Thus, without ruling, I do not think that the Court’s supervisory jurisdiction (if any) over solicitors would have any relevance to the Receivers’ Delivery Up Application.

(6) Allowing the Receivers’ Delivery Up Application to proceed before the determination of the ownership by way of arbitration would effectively allow SIL (over which the Receivers with Global have control) to circumvent the Arbitration Agreement. I can ascertain no reason for allowing the Receivers and SIL to do so.

(7) In the circumstances, in my view, the logical, fair and cost-efficient way would be to case-management stay the Receivers’ Delivery Up Application.

VII. MISCELLANEOUS

84.  Although Mr Wood and Ms Tong made detailed submissions on the scope of the Documents sought under the Delivery Up Applications, I refrain from expressing any view on this, in order not to be seen to be pre-empting any or any putative arbitration tribunal in its determination of the issue of the ownership and delivery up of the Documents or any of them.

85.  Finally, as mentioned above, the Moarn’s Affidavit was produced on the second day of the hearing (see §60 above). The reason for the delay was that the Receivers had taken the view that the transcript and the skeleton submissions for the hearing of the Rectification Judgment (exhibited to the Affidavit) would not be necessary, but the Plaintiffs changed their view after noticing my reaction from the bench on the first day of the hearing. However, the point the transcript and the skeleton submissions produced to address was raised at least in the skeleton submissions filed a week or so before the hearing. The Receivers may well have thought that the point was so unmeritorious that the Court would not take the trouble to consider it, and that would be their judgment call. But I do not think it would be how litigation should be conducted, namely, by seeing the Court’s reaction during the hearing and there and then deciding what further evidence to produce, when such evidence has at all times been available. Therefore, I find no good reason for the delay.

86.  That said, the transcript and the skeleton submissions exhibited to the Affidavit are relevant, and they have caused no prejudice to CNG or HSFK. On the contrary, as can be seen from §§60 – 62 above, these documents not only do not advance Mr Wood’s position, but even support CNG and HSFK’s position.

87.  In the circumstances, I allow the oral application made by Mr Wood on the second day of the hearing for leave to rely on the Affidavit of Carl Moran, with costs to CNG and HSFK to be summarily assessed.

VIII. CONCLUSION

88.  For the above reasons, I make the following order:-

(1) On the Originating Summons (that is, the Recognition Application) in HCMP 968/2025:-

(a) The Originating Summons (that is, the Recognition Application) in HCMP 968/2025 shall be dismissed;

(b) There shall be a costs order nisi that the Receivers shall pay the costs (including all costs reserved and the costs of the intervening application, the applications for filing further affirmations and the substitution application I dealt with at the outset of the hearing upon the parties’ consent) to CNG with certificate for two counsel, to be summarily assessed; and

(c) There shall be a costs order nisi that the Receivers shall pay the costs (including all costs reserved and the costs of the substitution application) to HSFK with certificate for two counsel, to be summarily assessed.

(2) On the Originating Summons (containing the Receivers’ Delivery Up Application and the SIL’s Delivery Up Application) in HCMP 408/2025 and on the HSFK’s Stay Summons:-

(a) The SIL’s Delivery Up Application shall be permanently stayed in favour of any arbitration or putative arbitration under the Arbitration Agreement;

(b) The Receivers’ Delivery Up Application shall be dismissed (upon my dismissal of the Recognition Application);

(c) There shall be a costs order nisi that the Receivers shall pay the costs (including all costs reserved and the costs of the substitution application I dealt with at the outset of the hearing upon the parties’ consent) to HSFK with certificate for two counsel, to be summarily assessed.

(3) The oral application for leave to rely on the Affidavit of Carl Moran shall be allowed, with costs to CNG and HSFK, to be summarily assessed.

(4) For the purpose of the summary assessments above, the receiving parties shall lodge and serve (updated[2]) statements of costs within 3 days upon the costs order nisi becoming absolute, and the paying party shall lodge and serve lists of objections within 3 days thereafter. The Court shall then conduct the summary assessments on paper.

89.  It remains for me to thank all the capable counsel for their able and thorough assistance.