GOLDEN PROFIT PROPERTY AGENCY LTD v. HSU CHI WAI

DCCJ 5530/2019

[2020] HKDC 329

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 5530 OF 2019

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DECISION

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A.    APPLICATIONS

1.  The plaintiff applied by inter partes summons dated 14 October 2019 for an interlocutory Mareva injunction and/or a preservation order against the defendant up to HK$2,721,337 and a proprietary injunction against HK$1,721,337 in the defendant’s bank account with DBS Hong Kong (the “defendant’s Account”).

2.  There is also an application by the defendant by summons dated 22 January 2020 to vary the monthly exception of HK$15,000 per month for the defendant to spend on legal costs and personal expenses (the “Monthly Exception”) upwards to HK$50,000.

3.  At the same time, the plaintiff had applied by summons dated 8 May 2020 to vary down the Monthly Exception from HK$15,000 to nil.

B.    PROPRIETARY INJUNCTION OR MAREVA INJUNCTION?

4.  The plaintiff seeks a proprietary injunction against the defendant’s Account as the purpose is to preserve assets over which the plaintiff has a proprietary claim.  However, the plaintiff submits that as there is a risk that the assets will be dissipated, it is prudent to apply for a Mareva injunction in aid or as a “top-up” protection in support of the proprietary injunction.

C.    FACTUAL HISTORY

5.  Mr Pong Yuen Man (“Mr Pong”) is a director and shareholder of EC Store Group Ltd (“EC Store Group”).  EC Store Group is a subsidiary of Wang Fu Group (Holdings) Ltd. (“Wang Fu”).  Mr Pong is also a shareholder of Wang Fu.

6.  Mr Pong came to know the defendant as an estate agent in about 2005.  Between 2006 and 2012, Pong had purchased 6 properties in Hong Kong through the defendant and had paid a total commission of HK$77,600 to the defendant.

7.  In around 2013, the defendant became unemployed and Mr Pong invited the defendant to join EC Store Group, of which Mr Pong is a director and shareholder.  The defendant’s job title was customer service officer and his monthly salary at that time was HK$12,000.  Under his employment contract with EC Store Group, there is no entitlement to commission, annual bonus or subsidy.

8.  Mr Chau Kwok Ying (“Mr Chau”) is a good friend of Mr Pong.  Around the end of 2013, Mr Chau and Mr Pong met in Germany, where Mr Chau resides.  Mr Chau sought Mr Pong’s advice on business opportunities in Hong Kong.  It was agreed that an estate agent company should be set up in Hong Kong to broker leases and sale and purchase of real estate company in Hong Kong.  This business would require recruiting someone with a Hong Kong licensed estate agent.

9.  It is the plaintiff’s case that in or about December 2013, (prior to its incorporation), an oral agreement was entered into with the defendant whereby:-

(1) Mr Chau is responsible for all financial matters and overall decision making in the plaintiff.

(2) The defendant will be the company secretary, manager, director and a 10% shareholder of the plaintiff.  The defendant is the only employee of the plaintiff.

(3) The defendant shall make no financial contribution.

(4) Although the defendant is to be employed by the plaintiff from 1 April 2014, no new employment contract was entered into with the plaintiff.

(5) The plaintiff says the terms of the employment contract between the defendant and EC Store Group continued to apply, even though the plaintiff became the defendant’s new employer.

10.  The plaintiff was incorporated on 24 February 2014.  In June 2014, the plaintiff opened two bank accounts with DBS Bank Hong Kong Ltd (“DBS”): 478-783xxx223 (the “Salary Account”) and 478-783xxx231 (the “Cheque Account”).  Mr Chau and the defendant were authorised signatories of the Salary Account and the Cheque Account and each of them was authorised to sign cheques with the use of the plaintiff’s company chop.  The company has two company chops: one is in the possession of Mr Chau and the other is in the possession of the company secretary of Wang Fu (together, the “Designated Company Chops”).

11.  The Salary Account was used to pay the employees’ salary, and is managed by a Mrs Tsang, the head of human resources and administration department of Wang Fu.

12.  The Cheque Account was used to receive payment of commission and for managing all other business and financial affairs of the plaintiff.

13.  Since its incorporation, the plaintiff had only carried out two property transactions in which it acted as the official licensed estate agency.  The first one related to a purchase of a flat in Tsuen Wan for HK$10,072,000 by Mr Pong.  The plaintiff was entitled to a commission of HK$301,800.  The plaintiff says this commission was not shared or paid to any of the plaintiff’s employees, directors or shareholders or Mr Pong.

14.  The second transaction related to the purchase by Mr Pong’s wife, Ms Tse Chung Ming (“Ms Tse”) of a property in Redhill Peninsula (the “Redhill Property”) for HK$110,628,500 in November 2016.  The plaintiff entered into an agency agreement with the developer Chinachem Agencies Limited (“Chinachem”) where Chinachem agreed to pay the plaintiff HK$5,531,425 as commission for the sale and purchase of the Redhill Property (the “Agency Agreement”). 

15.  Pursuant to a Cash Rebate Confirmation Agreement dated 5 November 2016 between the plaintiff and Ms Tse, it was agreed that:-

(1) the plaintiff would pay Ms Tse HK$5,200,000 as cash rebate for the sale and purchase of the Redhill Property.

(2) The plaintiff would be entitled to HK$331,425 as commission as the licensed agent for the sale and purchase of the Redhill Property.

16.  The plaintiff has so far paid Ms Tse HK$2,800,000, leaving the rest of HK$2,400,000 to be paid.

17.  The plaintiff became aware of the defendant being in financial difficulties in about April 2017. 

18.  The plaintiff attempted to change the bank mandate to have 2 signatories for the Salary Account and the Cheque Account in a board meeting on 25 May 2017.  The defendant refused to approve and left the meeting inquorate.  The plaintiff held another board meeting on 29 May 2017, attempting to remove the defendant as a director and company secretary of the plaintiff.  The defendant was absent at this board meeting.

19.  The plaintiff terminated the defendant’s employment on 16 June 2017.  On 28 June 2017, the plaintiff removed the defendant as a director and company secretary of the plaintiff.  However, this was not informed to DBS in a timely manner.

20.  Chinachem gave the plaintiff’s solicitors a cheque in the amount of HK$5,531,425 and the plaintiff deposited it into the Cheque Account on 14 August 2017.  The deposited sum would become available for use after 3:30 pm on 15 August 2017.

21.  On 15 August 2017, at about 3:30 pm, the defendant transferred HK$2,721,337 to the defendant’s Account.  The plaintiff says this transfer was not authorised as the Designated Company Chops were still in the possession of the plaintiff.

22.  On the same day, the defendant withdrew HK$970,000 in cash.  The plaintiff reported the matter to the police, which led to the prosecution of the defendant in DCCJ 207/2019.  After trial, the defendant was acquitted of charges of theft and using a false instrument.

D.       PROCEDURAL HISTORY

23.  The application first came before Ko CJDC on 18 October 2019, which was adjourned for a week due to service issues.  At the inter partes hearing on 25 October 2019, the merits of the injunction were not argued, and upon the defendant undertaking not to remove or diminish his assets up to HK$2,721,337, Ko CJDC ordered:-

(1) The proceedings be stayed pending the conclusion of DCCC 207/2019. 

(2) Should the defendant be found not guilty in DCCC  207/2019, the defendant shall restore the present proceedings.

24.  Upon the defendant’s acquittal in DCCC 207/2019, the defendant applied to restore the present proceedings.

E.    WHETHER THE MAREVA INJUNTION SHOULD BE CONTINUED

25.  Parties agree that the following principles in relation to inter partes Mareva injunctions apply:-

(1) The plaintiff needs to have a good arguable case against the defendant;

(2) There are assets within the jurisdiction;

(3) The balance of convenience is in favour of grant;

(4) There is a real risk that judgment will go unsatisfied by reason of disposal by the defendant of his assets, unless he is restrained by court order from disposing them.

E1.    Good arguable case

26.  The plaintiff’s case is premised upon a breach of fiduciary duties on the defendant’s part in the unauthorised transfer of HK$2,721,337.  The plaintiff claims that the defendant holds the sum on constructive trust for the plaintiff. 

27.  The defence put forward is that the defendant was entitled to commission pursuant to a commission table and/or an oral agreement between the plaintiff and the defendant.  At the criminal trial in DCCJ  207/2019, HHJ Shum held that it was not possible to exclude that there was an agreement between the plaintiff and the defendant as to how much commission the defendant was entitled to.  The criminal standard of proof being beyond reasonable doubt, the defendant was accordingly acquitted of the criminal charges as there was a lack of the requisite criminal intent.  The defendant relies heavily on his acquittal to submit that he has a good arguable defence.

28.  It needs to be made clear that HHJ Shum in paragraph 49 of his judgment dated 15 November 2019 emphasised that although the defendant was acquitted, the criminal court did not rule that the defendant was entitled to the HK$2,721,337.  The defendant was acquitted because the criminal court could not exclude the possibility that the defendant might have believed that he was legally entitled to the sum, and hence the element of dishonesty could not be proven.  It was clear that the matter of whether the defendant was entitled to the HK$2,721,337 would need to be determined by the civil court.

29.  The plaintiff needs to show a good arguable case by showing that the claim is more than capable of serious argument, yet not necessarily one which the judge believes that he is likely to win[1].  This is accepted by the defendant.  Given that the court should neither resolve disputed questions of fact nor hear detailed arguments on difficult points of law[2], it is not, for the purposes of determining if the plaintiff has a good arguable claim, necessary to go into the detailed arguments submitted by the plaintiff on how weak the defence is on the available evidence. 

30.  Suffice to say that at this stage, even though I may be of the view that the defence put forward by the defendant may be an arguable one, it has not sufficiently damaged the merit of the plaintiff’s claim so much that it does not pass the “good arguable case” threshold.  I am of the view that the plaintiff has shown that it has a good arguable case against the defendant, on both monetary and proprietary aspects.

E2.    Assets within the jurisdiction, risk of dissipation

31.  I am also satisfied that there are assets within the jurisdiction (being the money in the defendant’s Account); and that in view of the defendant’s impecuniosity (as admitted by himself) and the fact that the defendant had already withdrawn money by way of cash, I am satisfied that there is a real risk that judgment will go unsatisfied by reason of disposal by the defendant of assets (both his own and potentially proprietary funds belonging to the plaintiff), unless he is restrained by court order from disposing them.

32.  I am thus satisfied that the balance of convenience lies in favour of granting/continuing the Mareva injunction.

E3.    Fortification of undertaking

33.  In seeking fortification of the plaintiff’s undertaking, the defendant must show a likelihood of a significant loss arising as a result of the injunction and a sound basis for believing that the plaintiff will be unable to make good the loss[3].

34.  The defendant raised the fact that the latest audited report shows that the plaintiff has a deficiency of asset of HK$2,614,536.  As such, the defendant says that the court needs to consider if the plaintiff will be able to compensate the damages which he may suffer, should the plaintiff’s claim fail in the end. 

35.  In considering if it is appropriate to order fortification, I took into account the following:-

(1) Historically there had only been two transactions carried out by the plaintiff since its incorporation.  Both of these transactions related to the purchase of properties by Mr Pong or his wife. It can thus be seen that the plaintiff was not established to carry on the business of an estate agency generally.  Instead, it was used to receive commission paid by developers, which in turn was given as cash rebates to Mr Pong and his wife.  As such, the plaintiff seems to be a company which does not have much assets, as it is only a shell company running the business of real estate agency for a very limited purpose.  If the defendant sustains damages, there is ground to believe that the plaintiff may not make good that loss.

(2) The loss suffered by the plaintiff on paper was booked as “embezzling of cash from an ex-director”.  Thus the deficit was caused by the alleged acts of the defendant.  This is a matter in dispute which needs to be decided by the court. 

(3) The alleged loss of not being able to sustain a job because the defendant’s Account is frozen is not supported by any evidence.  I do not see how the injunction will prevent salary from being paid into the defendant’s Account.  Further, the defendant used to have another account into which such salary can be paid.

(4) Since there can be little risk of losing the sum of money that is currently frozen in the defendant’s Account, the only potential damages that will be suffered by the defendant if he ultimately succeeds in his defence seems to be by way of costs only.  The defendant has deposed that legal costs are likely to be between HK$600,000 to HK$800,000. 

(5) In terms of costs, I am not satisfied that the defendant has shown that it is likely he would be entitled to costs at the end of trial.  I refer to my analysis below in paragraphs 57  to 58. 

36.  As such, I am not satisfied that the defendant has shown a likelihood of a significant loss arising as a result of the injunction, whether in relation to the HK$ HK$2,721,337 or by way of costs.  I am thus of the view that that fortification is not appropriate in this case.

F.    VARIATION OF THE MONTHLY EXCEPTION TO THE MAREVA INJUNCTION

37.  The burden rests on the defendant to vary down the Monthly Exception[4].

38.  Needless to say, Mareva injunctions usually have very serious consequences for a defendant unless he has access to other funds. The court needs to ensure that a Mareva injunction does not operate oppressively and that a defendant will not be hampered in his ordinary business dealings any more than necessary to protect the plaintiff from the risk of improper dissipation of assets[5].

39.  As the plaintiff’s claim is proprietary in nature, the considerations are different as the purpose of a proprietary injunction is to stop the defendant expending for his own benefit what may be the plaintiff’s property. 

“No one has the right to use someone else’s money to pay for their defence and so before there can be any question of allowing a defendant to use funds to which the plaintiff has a very strong proprietary claim he must show an arguable case for denying that they belong to the plaintiff. Where there are assets which may belong to the plaintiff, the court will not allow those funds to be used for legal costs until the defendant has shown by proper evidence that he has no other assets which can be used for this purpose. If there are such funds, then the defendant must use these first before any questions arises of his having access to funds which are the subject of a proprietary claim. But once it is shown there are no other assets except those subject to a proprietary claim, the court must make the difficult decision in the exercise of its discretion as to what is to be done by considering where the balance of justice lies in permitting or refusing payment … The same principles apply to permitting living expenses out of assets which are subject to a proprietary claim.[6] ...”

40.  Principles applicable to the release of funds to pay legal costs from an injunction involving proprietary claims are well settled, involving a 2-stage process[7]:-

(1) A defendant applying for the release of funds had to demonstrate with full and frank evidence that there were no alternative funds or assets available to him which could be used to pay his legal expenses other than the assets in respect of which the plaintiff brings the proprietary claim.  If the defendant fails in this first hurdle, the court need not consider the 2^nd stage and the application ought to be dismissed.

(2) Once the 1^st hurdle was cleared, the court in the exercise of its discretion would balance to weigh potential injustice to the plaintiff if releasing the funds against the possible injustice to the defendant depriving him of the opportunity to have legal assistance in advancing what could eventually turn out to be a successful defence.

41.  This process was a “careful and anxious judgment” and the court is entitled to look at all relevant circumstances and to weigh the relative strengths of the plaintiff’s proprietary claim in the funds and the defence to that claim.

F1.    1^st stage: Defendant’s evidence of “no alternative funds”

42.  The defendant claims that apart from the account balance of HK$1,700,000 in the defendant’s Account which is frozen, he only has HK$5,010.24 cash balance in another account with the Bank of China.  He has exhibited account statement in support.  He has exhibited letter from Hang Seng Bank evidencing closure of his account.  He has deposed that there is no other bank account.

43.  The defendant has exhibited evidence showing that he is indebted to the two banks in the following amounts:-

(1) Hang Seng Bank: HK$183,056.26 + HK$120,662.95 = HK$303,719.21

(2) Bank of East Asia: HK$18,362.89 + HK$25,295.46 = HK$43,465.35

44.  The defendant claims that after he was arrested by the police in 2017, he could not concentrate on his work due to the stress and pressure.  Between July and November 2019, the defendant had a total income of HK$60,000 working as an estate agent but since the injunction, he had no bank account for payment of salary or commission and had to quit his job.  The defendant further says that due to the Covid-19 virus, it was difficult for him to secure a job without a valid bank account.  

45.  The defendant was denied legal aid as this is a shareholders’ dispute.  The defendant has already used up the HK$970,000 he withdrew in cash on his living expenses and legal fees during the last two years. 

46.  The defendant financed his criminal proceedings by way of loans from his elder sister, who obtained a personal loan in order to pay for his criminal trial and is unable to take out a further loan.  Transfer slips from his sister’s account to the solicitors’ account have been provided.

47.  The defendant had been relying on his father and younger brother as well for the payment of his legal costs.

48.  The defendant’s needs are set out as follows:-

(1) HK$7,200 for rent

(2) HK$8,000 for personal expenses

(3) HK$600,000 - HK$800,000 for legal fees for the preparation of his defence, discovery, interlocutory applications and preparation for trial.

Other than the lease, the defendant has not provided any breakdown or documents in support of personal expenses and legal fees.

49.  I accept on the available evidence that:-

(1) the defendant himself is impecunious;

(2) the defendant is in debt with two banks;

(3) the defendant himself has no source of funding.

50.  However, I am of the view that there is insufficient evidence to satisfy the court that the defendant’s family will not continue to assist the defendant if necessary.  The defendant has provided no details of how much in total had been advanced by the defendant’s elder sister or his other family member.  No details of any loan agreement (oral or written) between him and his brother or younger brother have been provided.  There is nothing to substantiate the allegation that the defendant’s family will not continue to provide assistance to him. 

51.  Of course, it is understandable that one is always reluctant to ask a family member for a loan under such circumstances. It may even seem harsh to deny the defendant of funds and to require him to seek the assistance from his family members.  However, the court must balance the interest of the plaintiff (who is mounting a proprietary claim) against that of the defendant.

52.  I am thus of the view that the defendant has failed in the first stage of the 2-stage test and the defendant’s application to vary up the monthly allowance ought to be dismissed.

F2.    2^nd stage: Weighing potential injustices

53.  In the event that I am wrong on the 1^st stage test and for completeness, I will proceed to consider the 2^nd stage test, namely weighing potential injustice to the plaintiff (in releasing the funds) against the possible injustice to the defendant depriving him of the opportunity to have legal assistance in advancing what could eventually turn out to be a successful defence.

54.  In a nutshell, the potential injustice to the plaintiff is that if ultimately the plaintiff succeeds, it is unlikely that the defendant will be able to repay the funds that he has withdrawn (HK$970,000) plus the future amounts that he will withdraw on a monthly basis from the frozen funds should the court allow him to do so.  The plaintiff relies heavily on the fact that its claim is a proprietary one, and it is fundamentally wrong to allow the defendant to use what belongs to the plaintiff to fight the plaintiff.   

55.  The potential injustice to the defendant on the other hand is that, if the court finds ultimately that there was an agreement for him to receive commission and that the funds frozen in fact do belong to the defendant, he would be deprived of the opportunity to properly resist the plaintiff’s claim using his own funds.  Coupled with the defendant’s impecuniosity, the defendant may even be deprived of legal advice altogether. 

56.  Whilst the plaintiff has a good arguable case, the defence put forward is not completely moonshine.  The crux of the disputes between the parties lies in whether there was any agreement (oral or written) for the defendant to receive commission for transactions carried out by the plaintiff.  To resolve the disputes between the plaintiff and the defendant in the present civil proceedings, evidence, both documentary and oral, will need to be examined by the court at trial. 

57.  At this stage however, the court can only weigh the respective injustices by assessing the relative strengths of the respective cases with the available documentary evidence and affidavit evidence without the benefit of cross-examination.  In the process, I have considered the following:-

(1) Although the plaintiff said the terms of employment provided no entitlement to a commission to the defendant, those terms of employment relate to the defendant’s previous employment with the EC Store Group.  There was no clear adoption of those terms to the defendant’s employment with the plaintiff.

(2) The defendant said he was the only person within the plaintiff company to have the requisite licence to enable the plaintiff to operate as an estate agency and earn commission.  It is only natural that he would be entitled to some of the commission that he helped the plaintiff earn.

(3) When the defendant quit his job at an estate agency prior to joining the EC Store Group, the basic monthly salary at the EC Store Group was only HK$12,000.  However, during that period with the booming property market, it was probable that the defendant was earning much more commission as an estate agent.  There was no reason for him to switch jobs unless he was expecting a similar level of income, by way of commission or otherwise.

(4) The defendant said the first transaction carried out by the plaintiff, would have earned him some HK$100,000 worth of commission.  However, as the defendant owed Mr Pong HK$135,000 at the time, the commission was used to set off part of the debt.  On the other hand, the plaintiff denied that the defendant was ever paid any commission, relying on its audited financial statements, which have no record of such commission being paid.

(5) The defendant had done a lot of work in relation to finalising the sale and purchase of the Red Hill Property, it would have been unlikely for him to have done so if he did not expect to be paid part of the commission.

(6) The defendant alleged that there was a commission table setting out his entitlement to 50% of the commission.  Leaving aside the fact that the authenticity of this document was disputed by the plaintiff as well as the criminal court, the defendant has via whatsapp messages communicated with Mr Pong, asking for 18% commission, which was later reduced to 14% unilaterally by the defendant.  This seems to show that there was no prior agreement but rather, it is something that the defendant hoped to achieve at the time between him and Mr Pong, rather than an agreement with the plaintiff.

(7) The plaintiff received HK$5,531,425 as commission for the sale and purchase of the Redhill Property.  At the same time, the plaintiff had entered into the Rebate Agreement whereby it agreed to pay Ms Tse HK$5,200,000 as cash rebate for the sale and purchase of the Redhill Property and the plaintiff would be entitled to HK$331,425 as commission as the licensed agent.  It would make no commercial sense for the plaintiff to further agree to pay the defendant HK$2,721,337 as it would incur a huge loss.

(8) Although I have some doubt as to the legality of the Rebate Agreement, illegality was not raised as a defence by the defendant (the defendant only disputed the authenticity of it).  Further, even if the Rebate Agreement proves to be invalid for illegality, it is a contract between Ms Tse and the plaintiff and does not affect the plaintiff’s entitlement to the commission from Chinachem pursuant to the Agency Agreement.  The illegality or invalidity of the Rebate Agreement does not point to (as matters presently stand) whether the defendant had an agreement to share commission with the plaintiff.

(9) No clear terms of agreement on the defendant’s entitlement to commission (whether with the plaintiff or with Mr Pong) have been set out by the defendant.

(10) The defendant’s acquittal is no indication that the defendant has a good claim to the amount of money frozen in court.  All it meant was that the element of dishonesty was not proven to the requisite criminal standard.

(11) The Whatsapp messages extract seems to suggest that there was no prior agreement as to how much commission the defendant would be entitled to in relation to the sale and purchase of the Redhill Property.

(12) Even if one accepts the defendant’s case that according to the WhatsApp messages - he was promised and would accept 18% as commission, at most he would only be entitled to HK$995,656.5 (HK$5,531,425 x 18%).  The defendant has already withdrawn and used up HK$970,000.

58.  Upon careful balance, I am of the view that (from the available materials as of now) the plaintiff has a strong proprietary claim against the defendant.  Further, even accepting the defendant’s case, he had already withdrawn nearly the whole of his commission entitlement. Thus, I consider the potential injustice to the plaintiff if the funds are released is greater than the possible injustice to the defendant depriving him of the opportunity to have legal assistance in advancing what could eventually turn out to be a successful defence.  As a result, the defendant’s application to vary up the Monthly Exception fails.  The summons dated 22 January 2020 is dismissed.

F3.    Should the monthly exception be varied down to nil?

59.  Taking into considerations: -

(1) there is no presumption in favour of providing a monthly exception in proprietary injunctions,

(2) proprietary injunctions are not subject to provisos enabling the use of money for payment of legal fees or normal business purposes, and

(3) the analysis above in paragraphs 37 - 58,

I will grant the plaintiff’s application to vary down the Monthly Exception to nil.

G.    ORDER

60.  Since the defendant has not indicated that he would be willing to continue offering the undertakings given to the court under Schedule 2 of the Order of Ko CDJ dated 25 October 2019 (subsequently amended on 9 March 2020), I will grant an Order in terms of the draft order annexed to the plaintiff’s summons dated 14 October 2019, with the following amendments:

1) the account number held with DBS Bank (Hong Kong) Limited be amended to “475-000046589”;

2) the duration of the Order will be until the conclusion of the trial or further order of the Court;

3) paragraph 5 of the draft order providing for a weekly exception be deleted;

4) Schedule 1 of the Affidavits be updated to include all affidavits filed by the parties.

H.    COSTS

61.  As costs follow the event, I make an order nisi that the defendant is to pay the plaintiff’s costs of and incurred in: -

1) the plaintiff’s summons dated 14 October 2019

2) the defendant’s summons dated 22 January 2020;

3) the plaintiff’s summons dated 8 May 2020;

to be taxed, if not agreed.