ACTIVE BASE LTD v. RODERICK JOHN SUTTON AND OTHERS

FACV No. 14 of 2009

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 14 OF 2009 (CIVIL)

(ON APPEAL FROM CACV NO. 279 OF 2008)

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J U D G M E N T

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Mr Justice Bokhary PJ :

1.  There are two main aspects to this appeal.  The first is a challenge – pressed by the appellant and resisted by the respondents – to concurrent findings of fact.  It has been well settled since the decision in Sky Heart Ltd v. Lee Hysan Co. Ltd (1997-98) 1 HKCFAR 318 that this Court will not review concurrent findings of fact save in special circumstances.  The challenge in the present case is not to any finding of primary fact.  It is to an inference drawn from the primary facts proved or admitted.  That, the appellant contends while the respondents dispute, renders the present circumstances special. 

2.  As for the second main aspect of this appeal, it consists of an issue over whether – as the appellant disputes while the respondents contend – a certificate issued by the Registrar of Companies under s.83(2) of the Companies Ordinance, Cap.32, is conclusive for all Companies Ordinance purposes as to the date of the creation of the charge in respect of which it is issued. 

3.  Section 83 reads :

“(1) The Registrar of Companies shall keep, with respect to each company, a registrar in a form determined by him of all the charges requiring registration under this Part, and shall, on payment of the prescribed fee, enter in the register with respect to such charges the following particulars –

(a) in the case of a charge to the benefit of which the holders of a series of debentures are entitled, such particulars as are specified in section 80(7);

(b) in the case of any other charge –

(i) if the charge is a charge created by the company, the date of its creation, and if the charge was a charge existing on property acquired by the company, the date of the acquisition of the property; and

(ii) the amount secured by the charge; and

(iii) short particulars of the property charged; and

(iv) the persons entitled to the charge.

(2) The Registrar shall issue a certificate, with his signature or printed signature, certifying the registration of any charge registered in pursuance of this Part, and the certificate shall be conclusive evidence that all the requirements of this Part with respect to registration have been complied with.

(3) The registrar kept in pursuance of this section shall be open to inspection by any person on payment of the prescribed fee.”

The “Part” referred to in s.83(2) is Part III of the Companies Ordinance.  Part III deals with the registration of charges, and consists of sections 80 to 91.  Section 80 requires, upon pain of the charge being rendered void, that within five weeks after the creation of a charge by a company, the particulars of the charge, including the date of the instrument creating the charge, be delivered to the Registrar of Companies for registration. 

4.  If a s.83(2) certificate is conclusive for all Companies Ordinance purposes, then it would be conclusive for the purposes of s.267 of the Companies Ordinance which reads :

“Where a company is being wound up, a charge which, when created, was a floating charge on the undertaking or property of the company and which was also created within 12 months of the commencement of the winding up shall, unless it proved that the company immediately after the creation of the charge was solvent, be invalid, except to the amount of any cash paid to the company at the time of or subsequently to the creation of, and in consideration for, the charge, together with interest on that amount at the rate specified in the charge or at the rate 12 per cent per annum whichever is the less.”

Primary facts

5.  Taking them from the primary facts proved or admitted before Kwan J (as she then was) sitting in the Companies Court and affirmed by the Court of Appeal (Le Pichon JA and A Cheung and Poon JJ), the circumstances of the present case may be outlined as follows.  The appellant, Active Base Ltd (“Active Base”), is a licensed money lender.  Most of the loans which it made were short-term loans.  The 1st respondents (“the Liquidators”) are the joint and several liquidators of the 2nd respondent Moulin Global Eyecare Holdings Ltd (“Moulin) which is a company in compulsory liquidation. 

6.  Active Base is a wholly-owned subsidiary of a listed company, namely Tomorrow International Holdings Ltd (“Tomorrow”).  Through a company beneficially owned by him, a Mr Chan Yuen Ming held 61.5% of the shares in Tomorrow.  But he was not a director of Tomorrow or Active Base.  At all material times Active Base’s directors were Ms Yvonne Louie, Ms Irene Wong, Mr Tam Wing Kin and Mr Yau Tak Wah.  Each of them was also a director of Tomorrow.  Of Active Base’s four directors, Ms Louie and Ms Wong were the ones who bore primary responsibility for Active Base’s lending activities.  Ms Louie’s responsibility was to negotiate terms with borrowers.  If and when Active Base’s board decided that a loan was to be made, Ms Wong would be responsible for the execution of the decision.

7.  Ms Louie and Ms Wong were also on the board of two other listed companies controlled by Mr Chan.  One of these other two listed companies was Swank International Manufacturing Co. Ltd which was in the same line of business as Moulin, namely the design, manufacture and sale of optical products.

8.  Moulin had been incorporated in Bermuda in May 1993, and had acquired a listing on the Hong Kong Stock Exchange in October that year.  It was a substantial multinational.  As has already been mentioned, its line of business was the design, manufacture and sale of optical products.

9.  At all material times the position in regard to the shareholding in Moulin and the composition of its board was as follows.  One-third of the shares in Moulin were held, directly or indirectly, by or for the benefit of members of the Ma family.  That was principally through a private Ma family company, Sharp Merit International Ltd.  Moulin had ten directors.  Five were members of the Ma family, each an executive director.  They were : Mr Ma Bo Kee (the chairman); his brothers Mr Ma Bo Fung and Mr Ma Bo Lung (each a vice chairman); and two sons of his, namely Mr Cary Ma (the chief executive officer) and Mr Dennis Ma.  Of the five Moulin directors who were not members of the Ma family, two were executive directors while three were independent non-executive directors.  Under the Hong Kong Stock Exchange’s rules governing the listing of securities (“the Listing Rules”), a listed company must have at least three independent non-executive directors on its board.

10.  In late 2004, Moulin entered into an agreement in partnership with a private equity firm to acquire Eye Care Centres of America, Inc (“ECCA”), the third largest operator of optical retail stores in the United States, for US$450 million plus transaction costs.  Moulin was to acquire a 56% interest in ECCA.  It was public knowledge that the acquisition was due to be completed in the first quarter of 2005.  As it turned out, the acquisition was completed on 1 March 2005.  The acquisition was to be financed in part through borrowings, the injection required from Moulin for the acquisition being one of US$97.4 million (made up of an equity contribution of US$73.4 million and a US$24 million pro rata contribution to transaction costs).

11.  Prior to February 2005, Active Base had not had any dealings with Moulin.  But Active Base had had dealings with Mr Ma Bo Kee, having previously made three loans either to him personally or to a private Ma family company.  All were short-term loans, with repayment within a few days.  Those loans were made on 30 March 1998, 27 March 2002 and 30 December 2003 respectively.  They had been handled by Ms Louie and Ms Wong for Active Base.

12.  Sometime in the last week of February 2005, Mr Ma Bo Kee approached Mr Chan for a personal loan of HK$50 million.  Mr Chan declined to make the loan himself but referred the request to Ms Louie to consider if Tomorrow would be interested in making it.  In a telephone conversation between Mr Ma Bo Kee and Ms Louie, he asked for an urgent personal loan of HK$50 million for three months.  He indicated that the money was required to complete Moulin’s acquisition of ECCA scheduled to take place at the end of February.  Ms Louie said that she preferred a loan to Moulin.  In a subsequent telephone conversation, Ms Louie insisted that Tomorrow was only prepared to lend to Moulin and would require a debenture as part of the security.

13.  Nevertheless, Mr Ma Bo Kee requested Ms Louie to reconsider a personal loan.  He asked that, given the urgent need for the loan, solicitors be instructed to prepare the loan documentation pending her decision.

14.  Ms Louie discussed the matter with Ms Wong.  And Ms Wong instructed the solicitor Mr Bosco Tso, whose firm Messrs Bosco Tso & Partners was then acting for Active Base, to prepare two sets of loan documentation : one for a loan by Active Base to Moulin and the other for a loan by Active Base to Mr Ma Bo Kee.  On 22 February 2005 Mr Tso opened a file for such loans.  Both sets of draft loan documentation – one a company loan set and the other a personal loan set – were provided in the course of negotiations.

15.  Sometime during the late afternoon of 23 February 2005, the directors of Active Base made the decision that the loan should be granted to Moulin and not to Mr Ma Bo Kee personally.  Ms Wong informed Mr Ma Bo Kee of the decision in the morning of 24 February 2005.

16.  The following events had taken place on 23 February 2005 :-

        (1) Ms Michelle Lam (Mr Ma Bo Kee’s sister-in-law who had acted as the treasurer of the Moulin group) faxed Ms Wong a list naming Moulin’s ten directors.  And Ms Wong forwarded the list to Mr Tso.

        (2) It would appear that Ms Lam had at least two telephone conversations with Ms Wong that day.  As to these conversations, Ms Wong said this in her witness statement :

“On 23^rd February 2005, Miss Lam rang me and … I, by the way, asked Miss Lam to make sure that they could arrange a board meeting of Moulin in case we decided to lend to Moulin for this loan, because time was so short.  She later called me and requested me to ask Mr Tso to help prepare a draft of the board minutes of Moulin, and to put the names of [Mr Ma Bo Kee, Mr Cary Ma, Mr Dennis Ma], Mr Ma Po Lung and Mr Ma Po Fung under the column “present” in the draft minutes…”

At the time when these conversations were said to have taken place, Active Base had yet to decide whether the loan was to be made to Moulin or to Mr Ma Bo Kee personally.  Ms Lam’s witness statement contains no reference to the manner in which the Moulin board meeting was to be held.

        (3) After speaking to Ms Lam, Ms Wong instructed Mr Tso to prepare draft minutes for the requisite board meeting to be held on the following day, 24 February.  Mr Tso prepared the draft minutes later the same day.  He was not asked to draft the notice of board meeting.

        (4) Moulin faxed Ms Wong the account details of its subsidiary Oaktree Investment Ltd (“Oaktree”) together with instructions to pay the proceeds into Oaktree’s account.

        (5) Mr Tso was informed on 23 February that the board meeting would be held on 24 February by telephone conference and that only the five Ma directors would “attend”.  Both Ms Wong and Mr Tso knew that the Listing Rules required that a listed company have at three independent non-executive directors on its board.

17.  On 24 February 2005 the following events took place :-

        (1) That morning Ms Wong informed Mr Ma Bo Kee of Active Base’s board’s decision to grant the loan to Moulin only.

        (2) Then sometime before lunch Ms Lam arranged with Ms Wong for the loan documents to be signed at around 4:30 that afternoon and for the loan to be drawn down on the following day, 25 February.

        (3) Ms Wong then advised Mr Tso of that by telephone.

        (4) Mr Tso then finalised the loan documents.

        (5) Then in the late afternoon or early evening, Ms Wong and Mr Tso attended Moulin’s offices for the execution of the loan documents.  Mr Ma Bo Kee, Mr Cary Ma, Ms Lam and Moulin’s financial and accounts secretary Ms Linda Ng were present.

        (6) At that execution meeting Ms Lam told Mr Tso that the board meeting had been held.  But he was not told – and he did not ask – at what time the meeting was held.

        (7) Ms Wong was told that as for the Moulin directors who were not in Hong Kong, they could sign the documents and fax the signed pages back to Hong Kong.  She agreed to this but made it clear that all documents had to be signed before any money would be advanced.

18.  So much of the minutes of the Moulin board meeting of 24 February 2005 as Le Pichon JA set out in her judgment reads as follows :-

“	Oversea Company Registration No.F-6150

MOULIN GLOBAL EYECARE HOLDINGS LIMITED
(Incorporated In Bermuda with Limited Liability)

_____________

Minutes of Meeting of the Board of the Directors of the Company held on the 24th day of February 2005 by telephone conference

Present:	Ma Bo Kee	[signature]
	Ma Bo Fung
	Ma Bo Lung	[signaure]
	Ma Lit Kin
	Ma Hon Kin

 Chairperson

1. Ma Bo Kee was elected Chairperson of the Meeting.

 Quorum

2. The Chairperson declared that the necessary quorum required by Article 116(1) of the Articles of Association was present at the commencement of the Meeting for transaction of business.

 Loan From Active Base Limited

3. The Chairperson reported to the Meeting that the Company had been negotiating with Active Base Limited (“the Lender”) for a short term loan of HK$50,000,000 at the interest one percent (1%) per month [or equivalent to twelve percent (12%) per annum] to be secured by (1) a Debenture to be given by the Company in favour of the Lender; (2) a Share Mortgage to be given by Sharp Merit International Limited (“Sharp Merit”) over 10,000,000 shares in the Company; (3) a guarantee by the major shareholder of the Company Sharp Merit; and (4) a guarantee by Ma Bo Kee, Ma Lit Kin and Ma Hon Kin, directors of the Company.

4. The Chairperson tabled to the Meeting for consideration and discussion a Loan Agreement (“the Loan Agreement”), a Debenture (“the Debenture”) and a Guarantee (“the Guarantee”) of Ma Bo Kee, Ma Lit Kin and Ma Hon Kin prepared by the solicitors of the Lender.

5. After discussion and consideration, IT WAS UNANIMOUSLY RESOLVED THAT it is in the interest and to the benefit of the Company to enter into the Loan Agreement with the Lender and to provide collateral in the form of the Debenture and the Guarantee to the Lender.

     …

8. IT WAS FURTHER RESOLVED THAT any two directors of the Company be authorized to sign on the Drawdown Notice to be issued to the Lender.

     …”

The Ma Lit Kin and Ma Hon Kin referred to in those minutes are Mr Cary Ma and Mr Dennis Ma respectively.

19.  On 24 February 2005 two documents were, in Mr Tso’s presence, signed by Mr Ma Bo Kee and Mr Cary Ma of Moulin and affixed with Moulin’s common seal.  One was an agreement for a three-month loan for HK$50 million by Active Base to Moulin (“the Loan Agreement”).  And the other was a debenture securing that loan by way of a first floating charge over all Moulin’s undertaking, property, assets, goodwill, rights and revenues (“the Debenture”).  The Debenture was not dated until 6 May 2005.  Although it was sent to Mr Tso for registration, it was not registered until other solicitors for Active Base took over the matter and had the Debenture registered on 7 June 2005.  On that date, pursuant to s.83(2), the Registrar of Companies issued a certificate (“the Certificate”) the body of which reads :

“I hereby certify that a Debenture dated 6 May 2005 and created by Moulin Global Eyecare Holdings Limited in favour of ACTIVE BASE LIMITED was registered pursuant to Section 80.”

20.  Sometime before lunch on 25 February 2005, Ms Wong received certain documents from Moulin by fax.  These included four signed pages of the loan documents, complete with the signatures of the three Ma directors who were not in Hong Kong.  Ms Wong executed the corporate loan documents on behalf of Active Base later that afternoon.  And the HK$50 million was then transferred from Tomorrow’s bank account into Oaktree’s account.

21.  Moulin had been insolvent at least since 31 December 2004.  It defaulted on the payments of interest due under the Loan Agreement on 24 March and 24 April 2005 and on the repayment of principal due thereunder on 24 May 2005.  A creditor’s petition was presented against it on 21 June 2005.  This was followed by the appointment of provisional liquidators on the 23rd of that month and then the making of a winding-up order on 5 June 2006.  As at the time of the first instance hearing in April 2008, the Liquidators estimated that Moulin’s creditors were likely to receive about HK$2.36 billion less than what they were owed.

Liquidators’ rejection of the proof of debt affirmed by the courts below

22.  Active Base sought to prove in Moulin’s liquidation.  On 21 June 2006 it lodged a proof of debt for HK$76,500,780.82 (“the Proof of Debt”).  But on 4 January 2007 the Liquidators rejected the Proof of Debt.  Active Base challenged that rejection, invoking the process provided for by s.200(5) of the Companies Ordinance and rule 95 of the Companies (Winding-up) Rules.  By two summonses, one dated 26 January 2007 and the other dated 8 March that year, Active Base asked the Companies Court to (i) reverse the Liquidators’ rejection of the Proof of Debt, (ii) declare the Loan Agreement valid and enforceable against Moulin and the Liquidators and either (iii) declare the Debenture likewise valid and enforceable or (iv) extend time for its registration. 

23.  A direction was made for the cross-examination of deponents.  The hearing, at which each side called a number of witnesses, took nine days in April 2008.  By a decision handed down on 4 June 2008, Kwan J (“the Judge”) dismissed Active Base’s summonses with costs.  On 21 May 2009 the Court of Appeal dismissed Active Base’s appeal against that decision, and made an order nisi as to costs in favour of the Liquidators.

On two grounds

24.  The courts below decided against Active Base on two grounds.  Of these, the first is that Active Base is not entitled to rely on the apparent regularity of the execution of the loan documents because it had been put on inquiry of an irregularity, namely, the lack of a properly convened board meeting by Moulin to (i) approve entering into the Loan Agreement and issuing the Debenture and (ii) authorise Moulin’s signatories to sign the same.  And the second ground is that the Debenture is invalid under s.267 of the Companies Ordinance.  If Active Base’s attack against the first ground fails, the Debenture would necessarily fall by reason of Active Base having been put on inquiry of the irregularity of the Moulin board meeting at which the issuance of the Debenture was approved.  So unless Active Base’s attack against the first ground succeeds, this appeal would fail whether or not the second ground on which the courts below decided against Active Base is sound in itself.  If Active Base’s attacks against both grounds succeed, it would be not only a creditor but also a secured one.

First ground

25.  On the first ground, what the Judge said as to the lack of a properly convened board meeting is that 

“the officers of Moulin who were involved in making arrangements for the loan from Active Base, being [Mr Ma Bo Kee, Mr Cary Ma and Ms Lam], had deliberately … caused no notice of the board meeting to be given to the other five directors, who are not of the Ma family, to exclude them from considering if the Loan Agreement and Debenture should have the approval of the board.”

26.  Active Base does not challenge the concurrent findings that the Loan Agreement was signed without actual or implied authority.  Nor does Active Base dispute that its reliance on Moulin’s bye-laws and the rule in Royal British Bank v. Turquand (1856) 6 El & Bl 327 is subject to the condition that it had not been put on inquiry of any irregularity arising from the lack of a properly notified board meeting.  What Active Base challenges are the concurrent findings that Active Base, through its director Ms Wong and its solicitor Mr Tso, had been put on inquiry of such irregularity.  That is how Active Base attacks the first ground on which the courts below decided against it.  The Liquidators resist that attack.

Second ground

27.  Turning to the second ground, one begins by noting that Moulin had been insolvent since at least 31 December 2004 and that the petition for its winding-up was presented on 21 June 2005.  So whether the Debenture is taken to have been created on 24 February 2005 or is taken to have been created on 6 May 2005, it would have been created within 12 months of the commencement of the winding-up.  And that means that the Debenture is rendered invalid by s.267 except, if the exception to the section applies, to the extent provided for by the exception.  Since the loan was advanced on 25 February 2005, it would come within the exception to s.267 if the Debenture is taken to have been created on 24 February 2005 when it was signed by Mr Ma Bo Kee and Mr Cary Ma of Moulin and affixed with Moulin’s common seal.  But it would not come within that exception if it is taken to have been created on 6 May 2005 as the Certificate says and therefore after the loan had been advanced on 25 February 2005.

28.  The Judge and the Court of Appeal were not of like mind as to when the Debenture is to be taken to have been created.  Nevertheless and crucially, both of the courts below were of the view that the effect of the Certificate is that the Debenture is to be taken to have been created after 25 February 2005 when the loan was advanced.  It is on that view of the Certificate’s effect that the courts below arrived at their conclusion on the second ground on which they decided against Active Base, namely that the Debenture is rendered invalid by s.267 and does not come within the exception thereto.  Active Base attacks the second ground by arguing that the Certificate does not have that effect.  The Liquidators resist that attack. 

Reasons why the courts below found that Active Base had been put on inquiry

29.  As to why the Judge found that Active Base, through its director Ms Wong and its solicitor Mr Tso, had been put on inquiry of the irregularity arising from the lack of a properly notified board meeting, her reasons may be taken from paras 115 to 117 of her judgment.  At paras 115 and 116 she said this :

“115. The Ma family directors’ move to exclude the other half of the board from the purported board meeting should be viewed against the background that [Mr Tso] was instructed to draft two sets of loan documents and it was not known until 24 February 2005 whether the loan would be made to Moulin or to [Mr Ma Bo Kee] personally.  Furthermore, given that the meeting was intended to be held by telephone conference, it was odd, to say the least, that none of the other directors, who happened not to be of the Ma family, would not attend.

116. If [Mr Tso and Ms Wong] did not have actual knowledge the board meeting was not validly constituted, they were aware of facts which made it obvious that the purported board meeting might not have been properly notified, making it imperative for them to seek an explanation from Moulin before proceeding further.  They had been put on inquiry of the irregularity.  There was something intrinsically suspicious that Moulin had requested Active Base to prepare board minutes to be signed only by the directors related to [Mr Ma Bo Kee], who had requested for the loan to be made to him personally until he was turned down.  In failing to make inquiry at any time if notice of the board meeting was given to all the directors, [Mr Tso and Ms Wong] were simply turning a blind eye to suspicious circumstances.”

Given the reference to “none of” the other directors, the presence of the word “not” immediately preceding the word “attend” in the last sentence of para.115 of the Judge’s judgment is obviously due to a clerical error.

30.  As Bowen LJ (later Lord Bowen) famously said in Sanders Bros v. Maclean & Co. (1883) 11 QBD 327 at p.343, “[c]redit, not distrust, is the basis of commercial dealings”.  And relying on what Steyn J (as Lord Steyn then was) said in Barclays Bank plc v. Quincecare Ltd [1992] 4 All ER 363 at pp 376 e-f and 377 b-f and what Millett J (as Lord Millett then was) said in Macmillan Inc v. Bishopsgate Investment Trust plc [1995] 1 WLR 978 at pp 1014G-1015D, counsel for Active Base invited the Judge to bear in mind that the law does not impose too burdensome an obligation of inquiry on lenders and that trust, not distrust, is the basis of their dealings with customers or borrowers.  As to that, the Judge said this (in para.117) :

“I have borne in mind the guidance in the cases and the need to strike a fair balance between the competing interests mentioned earlier.  I do not think an inquiry in the present circumstances whether notice of the board meeting was given to all the directors would have hampered unnecessarily the effective transacting of lending business, or reduced greatly the benefit of the indoor management rule.” 

31.  The reasons given by the Judge for finding that Active Base had been put on inquiry commended themselves to the Court of Appeal.  Mrs Justice Le Pichon JA, with whose judgment A Cheung and Poon JJ agreed, said this :

“Given that backdrop, the instructions to prepare draft board minutes for an intended board meeting to take place by telephone conference at which, seemingly coincidentally, the available directors were to be exclusively Ma directors, take on a completely different hue.  I agree with the judge that there was something ‘intrinsically suspicious’ about the instructions.  In my view, her conclusion that Ms Wong and Mr Tso were simply turning a blind eye to suspicious circumstances by refraining from or failing to make any inquiry at any time as to whether due notice had been given to all the directors is unassailable.”

View of the courts below on the Certificate’s effect

32.  As to when the Debenture was created, the Judge, who regarded a s.83(2) certificate conclusive for all Companies Ordinance purposes, took the view that effect of s.83(2)

“is to deem conclusively that the Debenture was created on a date within the five-week period of its registration on 7 June 2005, i.e. on a date between 25 April 2005 and 7 June 2005, notwithstanding it was actually created on 24 February 2005”. 

33.  The Court of Appeal took the view that the effect of s.83(2) was to deem conclusively for all Companies Ordinance purposes that the Debenture was created on its date as given in the Certificate, namely 6 May 2005.  As to that, Le Pichon JA, speaking for the Court of Appeal, said this :

“In my view, the debenture is conclusively deemed to have been created on 6 May 2005.  In this respect and to this extent I differ from the judge who held that it was created on a date between 25 April 2005 and 7 June 2005 but it does not affect the correctness of her conclusion that the debenture is invalid by reason of section 267.”

Thus both courts below were of the view that the Debenture had been created after 25 February 2005 when the loan was advanced and that, therefore, Active Base could not bring its case within the exception to s.267.

34.  As can be seen, both of the courts below were of the view that a certificate of a charge’s registration is conclusive for all Companies Ordinance purposes as to the date on which the charge was created.  The difference between them is as to whether the creation date is to be taken to be, as the Judge thought, an unknown date within the period allowed for registration or, as the Court of Appeal thought, the date named in the certificate as the charge’s date.

Active Base’s argument that it had not been put on inquiry

35.  Mr Daniel Fung SC for Active Base contends that the circumstances of the present case are not fairly capable of supporting the view that Active Base had been put on inquiry of any irregularity.  His submissions on this part of the appeal are along the following lines :-

(1) In law there is no requirement as to the form which the notice of a director’s meeting must take.  Provided that it is given within a reasonable time before the meeting, very short notice suffices.  Even a few minutes' notice will suffice if the director can attend.  And any irregularity can be cured by the consent of all the directors.

(2) It would be unusual for the lender’s solicitor to draft the notice of a board meeting of the borrower to approve the taking of the loan (particularly where the borrower is a listed company).  

(3) Plainly, as a matter of routine commercial practice, notices of board meetings are not the sort of thing that one would regularly or routinely instruct outside solicitors to draft.  Corporate secretarial staff, particularly of a listed company, are perfectly capable of attending to such notices.  It was Moulin’s company secretary Ms Katie Kan who was responsible for sending out notices, and there is no evidence that she had ever instructed solicitors to draft notices for her.  She had on occasions in the past given notice for a board meeting to be held on the day of the notice.  Teleconferences are not unusual.  Notices can even be sent by email.  All of this accords with common and commercial sense and what a businessperson would reasonably have understood or assumed to be ordinary commercial and corporate practice within companies, particularly listed companies.

(4) There was a gap between the time when Ms Wong asked Ms Lam to line up a board meeting in case the loan was to be made to Moulin and the time when Ms Lam reverted to Ms Wong asking her to ask Mr Tso to help prepare a set of board minutes of Moulin and to put the names of the Ma directors under the column “present” in those minutes.

(5) There was nothing inherently suspicious about those events such as to cause Active Base to wonder whether proper notice of a board meeting had been given. The events were entirely consistent with proper notice having been given during that time gap and with the non-Ma directors deciding, despite receiving notice, not to attend. The corporate indoor management rule reinforces that view of the facts.

(6) Although the meeting was to be held by teleconference, it was not “odd” (as the Judge thought) that none of the non-Ma directors would attend.  As a matter of common and commercial sense, whether directors choose to participate in a duly notified board meeting (even one held by way of a teleconference) depends on a host of factors such as their personal availability, their degree of commitment, their sense of priorities, the degree of trust which they were prepared to place in their fellow board members, the past practice of the company in question and a range of other matters that are beyond the scope of knowledge of any outsider such as Ms Wong and Mr Tso.

(7) Moulin’s chairman, chief executive officer, treasurer and financial and accounts secretary were all present when the loan documents were executed.

(8) Of ten members of Moulin’s board of directors, five were from the Ma family.  An outsider would reasonably look to key individuals attending a board meeting to approve the transaction under consideration. In the present case, Active Base would reasonably regard Mr Ma Bo Kee and the other Ma directors as being critical to the process.  Where all five of them attended the board meeting and passed the requisite resolution, no room remained for any doubt as to regularity.  This is because even if, hypothetically, the five non-Ma members of the board were to vote unanimously against the resolution, Mr Ma Bo Kee with his chairman's casting vote would necessarily carry the day.  There was no reason for Active Base as an outsider to doubt the regularity of Moulin’s board’s approval of the Loan Agreement and the Debenture.

(9) In this case, even though no board meeting took place in the presence of Mr Tso or Ms Wong, the former had been told by Ms Lam (after he arrived at Moulin’s offices on 24 February 2005) that the board meeting had already been held.  A board meeting could have been held by teleconference at any time that day prior to Mr Tso’s arrival, and it is difficult to see what rational reason would exist for his asking when such a meeting was held.

(10) The argument that Active Base had been put on notice must also be viewed in the light of the Judge’s findings (a) that the stated purpose of the loan requested from Active Base was the legitimate and compelling one of completing Moulin’s acquisition of ECCA and (b) that Active Base had no reason to think that the proceeds would not be used for the purpose for which the loan was obtained.

(11) Given the above, it is difficult to understand the Judge’s statement that “the Ma directors’ move to exclude the other half of the board from the purported board meeting should be viewed against the background that [Mr Tso] was instructed to draft two sets of loan documents and it was not known until 24th February 2005 whether the loan would be made to [Moulin] or to [Mr Ma Bo Kee] personally”.  It is similarly difficult to understand her finding that there is something intrinsically suspicious about the facts.  The “background” referred to by the Judge (namely, the fact that at an earlier stage, the choice between a personal loan and a corporate loan was considered) was entirely innocuous.  And the Judge did not find there to be anything wrongful or sinister in the course which the negotiations had taken.  On the basis that the transaction was one that appeared to be above board in Active Base’s eyes (in the sense that the stated purpose was a legitimate one and there was no reason to think that the funds would be misused), there was nothing to suggest to Active Base, so as to cause it to make inquiries, that there was any motive or incentive for the Ma directors to keep the transaction away from the non-Ma directors.

Active Base’s argument as to the date of the Debenture’s creation

36.  As to the date of Debenture’s creation, Mr Fung’s submissions on Active Base’s behalf may be outlined as follows :-

(1) A plain and ordinary reading of the words “when created” means the date when a charge was created, not the date on which a charge is deemed or conclusively deemed to have been created.  It is noteworthy that s.267 is not made subject to other provision of the Companies Ordinance.

(2) Should the words “when created” give rise to any ambiguity, particularly in the light of sections 80 and 83, this Court is not merely entitled to, but ought properly to, consider the different types of mischief addressed by sections 80 and 267 respectively, the two being entirely different.

(3) When properly considering such difference, the proper conclusion is this.  For the purposes of sections 80 and 83, the date of the creation of a charge is the date registered under s.80.  Whereas for the purposes of s.267, the date of the creation of a charge is the date of its actual execution.

(4) The mischief addressed by sections 80 and 83 is the uncertainty faced by subsequent creditors of a borrowing company seeking to create charges on the latter’s assets to secure their loans.  Those provisions address such mischief by giving constructive notice of the registered particulars to such subsequent creditors so that the latter are deemed to know the priority in which their respective securities rank in relation to loans made.

(5) Subsequent creditors are not expected to inspect the documents underlying the particulars.  Section 83(2)provides for constructive notice to avoid any uncertainty.

(6) Section 267 addresses an entirely different mischief, namely that of companies on their last legscreating floating charges to secure past debts or for moneys which do not go to swell their assets and become available to creditors.

(7) The concept of companies on their last legs is a pervasive theme running throughout s.267.  When a company is financially viable, there is no reason why charges created by it in the ordinary course of business should be avoided.  On the other hand, when a company’s financial health deteriorates, in particular when it veers towards liquidation, creditors should be protected from any security subsequently created by the company at the expense of the general body of creditors who had earlier advanced loans to the company at a time when the latter was comparatively creditworthy.  The legislature in its wisdom has defined the cut-off date in terms of creditors’ protection as 12 months before the commencement of the winding-up.

(8) It is wrong to extend the conclusive effect of a s.83(2) certificate to matters falling outside the mischief which the provision was enacted to address, namely an issue as to whether the requirements as to registration have been complied with.  Such conclusive effect properly construed ought not to cover s.267which is directed at a wholly different mischief.  There is nothing in s.83(2)’s wording to confer on a s.83(2) certificate any deeming effect in respect of the date of creation of a charge in any context other than the registration requirement (and hence validity) under Part III of the Companies Ordinance.

(9) If the courts below were correct, then although the charge was not actually created by a company on its last legs and the company was financially viable and perfectly capable of carrying on its business, the company’s financial activities would be stifled for a technical reason merely to achieve semantic coherence.  Mrs Justice Le Pichon JA was therefore wrong when she said that “it would be exceedingly odd if in ascertaining the date of the creation of [the Debenture] for the purposes of s.267, a date different from that appearing on the certificate were to be adopted”.  It should not readily be inferred that the legislature intended to impede the financial activities of a company simply on such a technical ground absent legitimate public policy.

(10) When considering the question of when a charge was “created” in the context of potential invalidity under s.267, the issue is simply one of fact.  The Debenture was created when it was executed, namely on 24 February 2005.  And HK$50 million was paid to Oaktree (at Moulin’s direction) on 25 February 2005.  Such nominated payment is no different from a payment to Moulin and thence from Moulin to Oaktree.  Hence the Debenture falls within the exception to s.267.

(11) This Court should prefer a construction of s.267 such that reference to the date of creation of a charge is coincident with the date of the actual creation thereof, thereby giving a meaning to the provision which makes eminent common and commercial sense, whilst rejecting the alternative construction which is narrowly technical and pedantic and which serves no discernible purpose consistent with legitimate public policy.

Concurrent even though inferential

37.  There is of course a difference between primary findings of fact and findings of fact reached by drawing inferences from primary facts proved or admitted.  Intermediate appellate courts are naturally better (or less badly) placed to review the latter than they are to review the former.  That is because the advantages of receiving all the evidence at first-hand do not operate as powerfully in regard to inferential fact-finding as they do in regard to primary fact-finding.  Even so, where findings of fact reached at first instance have been affirmed on intermediate appeal, they become concurrent findings of fact whether they are primary or inferential.  As was said in the Sky Heart case at pp 334I-335A,

“when a legal system devises its approach to appeals against concurrent findings of fact, its broad objective should be twofold :

(1) An acceptable balance between, on the one hand, due access to the courts (including, where appropriate, the highest court) and, on the other hand, a reasonably early end to litigation.

(2) For the purpose of achieving that balance, a proper distribution of function between three court levels : first instance; intermediate appeal; and final appeal.”

Even where concurrent findings of fact are inferential, they will not be reviewed by this Court save in special circumstances.

Whether there is evidence on which to find a fact is a question of law

38.  Of course, as was said in Akai Holdings Ltd v. Ernst & Young [2009] 2 HKC 245 at p.291C-D (citing Devi v. Roy [1946] AC 508 at p.521 and ADS v. Brothers (2003) 3 HKCFAR 70 at p.84F), the question of whether there is evidence on which to make a finding of fact is a question of law.

39.  The non-Ma directors had not been notified of the Moulin board meeting held to approve the entering into of the Loan Agreement and the issuing of the Debenture.  But Active Base contends that the circumstances are not fairly capable of supporting the view that it had been put on inquiry of that lack of notice.  In other words, Active Base contends that there is no evidence on which to find as a fact that it had been put on such inquiry.  If that contention is right, then the findings of fact to that effect, though concurrent, are open to review and should be reversed. 

Concurrent findings on the “on inquiry” issue stand

40.  Are the primary facts proved or admitted fairly capable of supporting the view that Active Base, through its director Ms Wong and its solicitor Mr Tso, had been put on inquiry of the lack of a properly convened Moulin board meeting to approve entering into the Loan Agreement and issuing the Debenture?  As to that, it is to be observed that Mr Tso in effect admitted under cross-examination that he knew that there were only two ways in which Moulin could have validly approved entering into the Loan Agreement and issuing the Debenture.  One was a circular resolution signed by all the directors.  And the other was a resolution passed at a board meeting of which all the directors had been notified.  Yet he drew up minutes for a Moulin board meeting attended only by the Ma directors. 

41.  That the non-Ma directors could have been outvoted through the use of Mr Ma Bo Kee’s chairman’s casting vote to break any deadlock in favour of the Mas is nothing to the point.  Notice of a board meeting cannot be withheld from directors on the basis that they would be outvoted anyway.

42.  As to the suggestion that Ms Wong and Mr Tso may have believed that the non-Ma directors had been given notice of the board meeting in question, it is to be observed that there is no evidence from either of them or indeed any other source that they had held any such belief.  Nor is there any evidence from either of them or any other source that they believed that a Moulin board meeting including the non-Ma directors had been held by teleconference sometime on 24 February 2005 prior to their ie Ms Wong and Mr Tso’s attendance at Moulin’s offices that afternoon.  It was on 23 February 2005 that Ms Wong asked Mr Tso to draft minutes leaving out the non-Ma directors.  And he admitted to having completed such drafting by the evening of 23 February 2005. 

43.  It is submitted on Active Base’s behalf that the “on inquiry” inference rests solely on the fact that the minutes which Mr Tso drafted at Ms Wong’s request did not include the non-Ma directors.  Despite the skill with which Mr Fung advanced that submission on Active Base’s behalf, I am unable to accept it.

44.  The fact that those minutes did not include the non-Ma directors does not stand alone.  There are a number of other facts to be borne in mind.  They include the following :-

· First, the business to be transacted at the board meeting in question was far from ordinary.  It was to approve (i) the taking by a public company of a substantial loan to help finance a major acquisition and (ii) the creation of a floating charge over all its undertaking in order to secure that loan. 

· Secondly, the chairman of the company had wanted the loan to be one personal to him, which is difficult to understand having regard to the corporate purpose for which the money was required.  Pressing for the loan to be made to him personally indicated a reluctance, for some reason or other, to have the company named as the borrower, notwithstanding the avowed corporate purpose of the loan. 

· Thirdly, the directors whom the minutes included were all members of the chairman’s family while the directors whom the minutes excluded were not.  Half of the company’s board was formed by the five excluded directors, three of them being independent non-executive directors serving on the board pursuant to a requirement of the Listing Rules.  That the lender’s solicitor was asked to draft minutes showing the participation of only the Ma directors (even before the availability and terms of the loan were known) was a matter crying out for an explanation.  Did it mean that the non-Ma directors were unable or unwilling to participate, even by telephone, in a major commercial decision to be taken by the board at some as yet unspecified time in the future?  Or did it suggest some (and if so what) reason for wanting to keep the matter from them? 

· Fourthly, Ma family security was being provided even though the loan was to a listed company.

45.  In my view, the primary facts proved or admitted are, putting it at its lowest, fairly capable of supporting the inference concurrently drawn by the courts below that Active Base, through its director Ms Wong and its solicitor Mr Tso, had been put on inquiry of the non-Ma directors not having been notified of the crucial board meeting.  The concurrent findings of fact represented by that inference cannot be disturbed.  They stand.  So Active Base’s attack on the first ground fails, and this appeal must therefore be dismissed.

Certificate conclusive for all Companies Ordinance purposes

46.  Such dismissal is irrespective of whether a s.83(2) certificate is, as the Liquidators contend and the courts below held, conclusive for all Companies Ordinance purposes or, as Active Base contends, conclusive only for the purposes of Part III of that Ordinance.  Nevertheless, this issue, which has been argued before us, should be pronounced upon.

47.  Mr Fung’s reliance on the words “when created” in s.267 can be disposed of at once and easily.  He rightly accepted, upon it being pointed out to him by Lord Walker of Gestingthorpe NPJ in the course of the argument, that those words obviously refer to the charge having been a floating charge when it was created.

48.  In my view, a s.83(2) certificate is conclusive for all Companies Ordinance purposes.  There is nothing in the language of s.83(2) that limits its application to Part III only.  The language is unqualified.  It is general.  And the date on which a charge was created is important for all purposes.  That such date should be readily ascertainable from a certificate for some purposes but open to question for other purposes would lead to confusion that the legislature cannot sensibly be considered to have countenanced.  No such dichotomy can be derived from the words of the legislation or any policy attributable to it.

49.  As has already been noted, the Judge thought that the date of the charge’s creation is to be taken as an unknown date within the period allowed for registration while the Court of Appeal thought that the date of the charge’s creation is the date named in the s.83(2) certificate as the charge’s date.  In my view, the Court of Appeal is right.  The creation date is the one specifically named in the s.83(2) certificate.  After all, the whole purpose of such a certificate is to provide certainty.

Conclusion

50.  For the foregoing reasons, I would, despite Mr Fung’s skilful arguments, dismiss this appeal.  And I would dismiss it with costs (Active Base having accepted that it must pay the other side’s costs unless successful in its attack against the first ground on which it lost below).

Mr Justice Chan PJ :

51.  I agree with the judgment of Mr Justice Bokhary PJ.

Mr Justice Ribeiro PJ :

52.  I agree with the judgment of Mr Justice Bokhary PJ.

Mr Justice Litton NPJ :

Introduction

53.  Two broad issues arise on this appeal: (1) whether a debt of $50 million plus accrued interest was owed by the Company to the lender and (2) whether a floating charge on the assets of the Company was validly created in favour of the lender and enforceable by the lender against the Company in liquidation.

54.  The first issue arises from the loan agreement dated 24 February 2005.  Its validity falls to be determined under the general law governing the liability of corporations, irrespective of the fact that the Company is now in liquidation.  The second issue lies within a different compass: It is governed by the statutory regime dealing with charges created by companies prior to liquidation, under the provisions of the Companies Ordinance, Cap. 32.

The debt of $50 million and accrued interest

55.  The loan agreement was executed on 24 February 2005 in the offices of the Company in Kowloon Bay.  On behalf of the Company it was signed by its two principal officers: Mr Ma Bo Kee (chairman of the board, president of the Company and executive director) and Mr Ma Lit Kin (chief executive officer and executive director).  Their signatures were witnessed by Mr Tso, the lender’s solicitor.  The company seal was affixed to the document in the presence of the two officers.  Present on this occasion was Irene Wong, an executive director of the lender, Michelle Lam, treasurer of the Moulin group of companies and Linda Ng, the Company’s accounts secretary.

56.  The $50 million was said to be for the purpose of providing short term finance to the Company, available by way of drawdown within 3 days, if certain conditions were met.  The repayment date was 24 May 2005.  The agreement envisaged that the drawdown of the entire sum would take place on the day following the execution of the agreement and that the money would be paid to a wholly-owned subsidiary of the Company, Oaktree Investments Ltd.

57.  Clause 4 of the agreement, under the heading “Condition and Precedent and Availability”, stated that the facility would become available to the Company when the lender had received, among other things, a certified copy of the resolution of the board of directors approving the borrowing upon the terms of that agreement.

58.  The whole of the $50 million was drawn down on 25 February 2005.

59.  On its face the loan agreement was a valid and enforceable contract binding upon the Company.  Apart from the signatures of its two principal officers, the document bore the Company’s seal.  Section 20 of the Conveyancing and Property Ordinance, Cap.219, provides that a document is deemed to be duly executed if it purports to bear the seal of the company affixed in the presence of two members of the “board or body”.

The liquidation

60.  The Company went into liquidation in June 2005.

61.  On 5 June 2006 the lender submitted its proof of debt claiming repayment of the principal of $50 million plus accrued interest totalling $76,500,780.82.  This was rejected by the liquidators. 

62.  The main focus of the liquidators’ adjudication was the fact that the solicitor Mr Tso had in February 2005 been instructed to prepare two sets of documents: One for a loan to the Company, the other for a personal loan to the chairman Mr Ma Bo Kee.  The liquidators in their notice of adjudication referred to the fact that in 2005 the Company had issued proceedings (HCA 1083 of 2005) in which its case as pleaded was this: The true intent of the parties was to make a personal loan to the chairman; the two persons who purported to execute the documents (Mr Ma Bo Kee and Mr Ma Lit Kin) had no authority to do so; for a transaction of this nature, the Company’s Bye-laws required a resolution of the board of directors and, to the knowledge of the lender, there was none.

The proceedings

63.  At the hearing before Kwan J a great number of issues were raised by counsel, many of a highly nebulous character.  The judge disposed of them with admirable efficiency.  At the end of the day the judge concluded that the agreement was unenforceable.  Her reasoning can be summarized thus:

(1) The borrowing was not in the ordinary course of the Company’s business.  For the transaction to be valid and binding the Bye-laws of the Company (a term used in the laws of Bermuda, where the Company was incorporated, equivalent to articles of association under the Companies Ordinance, Cap.32) required the board of directors to authorize the transaction.

(2) There was no valid resolution of the board.  The board, as a body, never resolved to authorize the borrowing in any of the ways permitted under the Bye-laws, namely: either at an actual meeting attended by its members, by teleconference without an actual meeting or by written resolution signed by all the directors.  None of this took place.  This constituted an irregularity which went to the core of the authority of Ma Bo Kee and Ma Lit Kin to execute the loan agreement on the Company’s behalf and affix the company seal.

(3) The lender could not rely upon the “internal management rule” (as formulated in Royal British Bank v. Turquand (1856) 6 E1 & B1 327) because the lender (through Mr Tso and Irene Wong) was put upon inquiry as to whether there had been a properly notified board meeting prior to the agreement being signed on 24 February 2005.

64.  By the time the matter reached the Court of Appeal, points (1) and (2) in the paragraph above were no longer in contention.  The question that remained was whether, in the circumstances of the case, the lender was entitled to rely upon the apparent regularity of the transaction as appeared on the face of the loan agreement and was not bound to inquire whether acts of internal management were regular; see the formulation of the rule in Turquand’s case to this effect by Lord Simonds in Morris v. Kanssen [1946] AC459 at 474.

The law

65.  The law is clear.  As a matter of general principle the lender has no duty to look after the interests of the corporate borrower.  It can assume that when senior officers of the corporate borrower act as agents to execute a legal document on its behalf, those officers have lawful authority to do so.  The borrower would be contractually bound on their signatures.  The lender is not obliged to inquire into the actual authority of those officers.  The fact that, as things turned out, those officers lacked authority cannot affect the rights of the lender.  This is a salutary rule of law.  As Mason CJ said in Northsider Developments Pty Ltd v. Registrar General (1989 – 90) 170 CLR 146 at 164, this rule protects and promotes business convenience which would be at hazard if persons dealing with companies were under the necessity of investigating their internal proceedings in order to satisfy themselves about the actual authority of officers and the validity of instruments.

66.  But this rule has its limits.  Where, as things turned out, those officers had no authority at all, the corporation would be at risk.  Great harm might ensue.  Hence, if there were circumstances which would lead a reasonable lender to inquire into the authority of the officers (“put upon inquiry” is the expression used in the books) and he did nothing, he cannot rely upon the rule.  As Lord Simonds said in Morris v Kanssen (supra) at 475, he cannot presume in his own favour that things are rightly done if inquiry that he ought to make would tell him that they were wrongly done.

The facts of this case

67.  I have had the advantage of reading in draft Mr Justice Bokhary PJ’s judgment.  The sequence of events relevant to this appeal is set out in paras15 to 20 of his judgment and need not be repeated here.  As is clear, it was only in the late afternoon of 23 February 2005 that the lender made the decision to lend to the Company and not to Mr Ma personally.  And it was only in the morning of 24 February that Mr Ma was told this.  The documents were signed sometime in the early evening in the Company’s offices that day.

A crucial finding

68.  As the evidence shows, when the various persons ultimately attended the Company’s offices to sign the loan documents Michelle Lam told Mr Tso that the board meeting had been held.  This, in my judgment, is a crucial finding.  There is here a fine balance between competing interests to be weighed.  To what extent should the lender (here through the knowledge of its agents Irene Wong and Mr Tso) be astute to suspect lack of capacity on the part of the borrower’s officers?  How far must an outsider doubt the veracity of the treasurer of the Moulin group when she made a positive assertion that a board meeting had been held?  True, the arrangements had to be made in a hurry that day, since Mr Ma was only told in the morning that a personal loan was impossible.  But, as Mr Fung SC strenuously argued, there was still time for a board meeting to be held in the course of that day, albeit that some of the Ma family directors were known to be overseas.

69.  If things stood simply as summarized in the paragraph above, there is no doubt in my mind that the rule in Turquard’s case would apply.  But there was more. Mr Tso, the previous day, had been asked to draft minutes of the Company’s board meeting, at a time when a decision had yet to be made as to whether the personal loan to Mr Ma was to go ahead.  The board to his knowledge consisted of 10 persons: 5 members of the Ma family, 2 executive directors not members of the Ma family, and 3 independent non-executive directors.  Mr Tso, in drafting the minutes of a meeting yet to be notified and held, was asked to put only the names of the 5 Ma family members as “present”, at a time when he had no reason to believe that the other 5 members, and in particular the 3 independent non-executive members, were unavailable: And not only unavailable to attend a meeting, but could not even be contacted for a teleconference.  The inference would seem irresistible that the staff members handling the matter for the Company had intended at the outset to exclude the non-Ma family members of the board from any knowledge of the transaction.  And, as the truth emerged in the course of the investigation by the liquidators, that is precisely what happened.  That, of course, is hindsight.  Nevertheless, some suspicion should have been aroused in the minds of Irene Wong and Mr Tso on 23 February that a gross irregularity was in contemplation: Suspicion reinforced by their knowledge that the $50 million was supposedly required by the Company to complete the ECCA acquisition deal in the United States and yet, there was Mr Ma, pressing for a personal loan.

70.  The question therefore boils down to this: Was Michelle Lam’s statement made on the evening of 24 February, that a board meeting had been held, enough to dispel the suspicion that ought to have been lurking in the minds of Irene Wong and Mr Tso?

Evaluation in the lower courts

71.  This question, put in various ways, was considered in the courts below.  In para.112 of Kwan J’s judgment she said:

“… When [Mr Tso] went to Moulin’s officer with Irene Wong [in] the late afternoon or early evening of 24 February 2005 for the execution of documents by Moulin, he was told by Michelle Lam that the board meeting had already been held.  He did not ask Michelle Lam at what time the board meeting was held that day.”

72.  Later on in her judgment she said that there was “something intrinsically suspicious” about the request on 23 February to draft minutes “to be signed only by the directors related to Ma Bo Kee” (para.116): A suspicion which (though the judge did not expressly say so) was insufficiently dispelled by Michelle Lam’s statement the next day that a board meeting had been held.  The judge said that it was “imperative” for Mr Tso and Irene Wong to “seek an explanation from Moulin before proceeding further.”

73.  On appeal, the Court of Appeal affirmed Kwan J’s decision and approached the matter in the same way: Ms Lam had told Mr Tso (on 24 February) that the board meeting had been held, but he was “not told and he did not ask the time of the meeting …” (para.17(6) of Le Pichon JA’s judgment).  This, in the opinion of the Court of Appeal, was not enough, having regard to the circumstances of the case.

A matter of degree

74.  To what extent a lender has been put upon inquiry is a matter of degree as to which tribunals of fact might properly differ.  Mr Fung SC at the hearing before us argued thus: The loan was needed to complete the ECCA acquisition in the USA, to everyone’s knowledge; here was the treasurer of a publicly-listed company making a positive statement that a board meeting had been held to authorize the transaction: Why should the lender doubt her words?  This is not capable of an easy answer.  Had the Court of Appeal come to a different conclusion I might well have formed the view that the outsider was not obliged to inquire further.  As a matter of general principle courts should not be too demanding in requiring vigilance from outsiders to detect lack of capacity on the part of company’s officers.  But, given the concurrent findings of the two courts below, the principle enunciated in Sky Heart Ltd v. Lee Hysan Co. Ltd (1997-98) HKCFAR 318 requires that this Court leaves those findings alone.

The Debenture

75.  As to the matters arising from the debenture, I agree with Mr Justice Bokhary PJ’s judgment and have nothing to add.

Conclusion

76.  I would dismiss the appeal with costs.

Lord Walker of Gestingthorpe NPJ :

77.  I agree with the judgment of Mr Justice Bokhary PJ.

Mr Justice Bokhary PJ :

78.  The appeal is unanimously dismissed with costs.