CHINA EVERGRANDE GROUP (IN LIQUIDATION) v. HUI KA YAN AND OTHERS

HCMP 1080/2024

[2025] HKCFI 689

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 1080 OF 2024

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AND

HCA 551/2024

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 551 OF 2024

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(Heard together)

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D E C I S I O N

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A.  Introduction

1.  This Decision concerns matters as between the plaintiff (“CEG”) and the 2^nd defendant to the two actions (“Xia”), arising from a worldwide Mareva injunction made against Xia on 24 June 2024 and since amended (“Injunction Order”).

2.  Four summonses came before me for argument:

(1)  A summons dated 25 June 2024 (“Continuation Summons”), by which the liquidators (“Liquidators”) of CEG seek the continuation of the Injunction Order against Xia.

(2)  A summons dated 5 July 2024 (“Discharge Summons”), by which Xia seeks the discharge of the Injunction Order.

(3)  A summons dated 20 September 2024 (“Variation Summons”), by which Xia seeks to vary the Injunction Order, in particular to increase the allowance for his legal fees up to 2 October 2024.

(4)  A summons dated 17 September 2024 (“Consolidation Summons”), by which CEG seeks to consolidate the HCMP 1080/2024 proceedings (“HCMP Action”) with the HCA 551/2024 proceedings (“HCA Action”).

3.  In the event that the Court would uphold the Injunction Order, either by way of ordering its continuance or, if discharged, by re-grant, CEG seeks consequential directions in respect of the Continuation Summons, that (1) D2’s disclosure obligations under the Injunction Order be reinstated, and (2) such disclosure to be made within 7 days of continuation/re-grant of the Injunction Order.

4.  At the hearing, CEG was represented by Mr Charles Manzoni SC, and Xia was represented by Mr Barrie Barlow SC, leading Ms Terri Ha. For the limited matter relating to consolidation, the 3^rd defendant in the HCMP Action / 5^th defendant in the HCA Action (“Ms Ding”) was represented by Mr Vincent Chen. Following argument, I reserved my decision to be handed down later.

5.  This is my Decision.

B.  Relevant Background

B.1  China Evergrande Group

6.  CEG was incorporated in the Cayman Islands on 26 June 2006. It is an investment holding company and is the ultimate holding company of many subsidiaries, collectively comprising the Group.

7.  From 19 December 2006 onwards, CEG was registered as an overseas company under the old Companies Ordinance Cap 32 and now as a registered non-Hong Kong company under the new Companies Ordinance Cap 622.

8.  On 5 November 2009, CEG’s shares were listed on the Main Board of the Stock Exchange of Hong Kong Limited (“HKEX”).

9.  CEG was one of largest property developers in Mainland China since October 2009. For over a decade, CEG reported explosive growth in regard to all its reported financial metrics until the end of 2020. This rapid growth was funded mostly by large amounts of debt incurred by CEG, both offshore and onshore the Mainland.

10.  Over time, CEG became increasingly reliant on raising new debt to pay off its existing debt. Despite reporting that it consistently had sufficient assets to meet liabilities between 2009 and 2020, by 2021 through 2023 CEG encountered worsening severe cash flow issues, as a result of which CEG defaulted on a number of its debts. CEG’s financial situation deteriorated to the point that by 31 December 2021 its liabilities exceeded its assets by RMB473 billion.

11.  Trading of CEG’s shares was first suspended on 28 September 2023, resumed on 3 October 2023, and again suspended on 29 January 2024, on which date CEG was ordered to be wound up by Linda Chan J: see Re China Evergrande Group (中國恒大集團) [2024] 1 HKLRD 1128 at §§1 & 49. Linda Chan J also appointed Ms Wing Sze Tiffany Wong and Mr Edward Simon Middleton as the joint and several liquidators of CEG (i.e. the Liquidators).

12.  The winding up order was made on a creditor’s petition, where CEG did not dispute its inability to pay the debt. After numerous adjournments, due to this inability to pay Linda Chan J had no other choice but to order the winding up of CEG on the basis (at §19) that it was “balance sheet insolvent”.

13.  As a result of its investigations, the Liquidators say they have identified five heads of misstatements (“Five Misstatements”) in respect of CEG’s consolidated financial statements (“CFSs”) prior to its collapse, and which occurred during the direction and management of Xia and the 1^st defendant (“Hui”):

(1)  First, CEG overstated its reported revenues from sale of properties by hundreds of billions of RMB, due to CEG’s aggressive approach to the timing of recognising revenues. This overstatement resulted in a dramatic reversal of RMB664 billion in revenues recorded by CEG in its audited CFSs for the financial year ended 31 December 2021.

(2)  Second, CEG overstated its completed properties held for sale and properties under development. In CEG’s audited CFSs for the year ended 31 December 2021, these assets were written down by a total of RMB373 billion.

(3)  Third, CEG inappropriately classified properties as investment properties and overstated their values. In its audited CFSs for the year ended 31 December 2021 CEG recorded an RMB31 billion write-down in value of these properties and a RMB40 billion reclassification of the latter as properties under development.

(4)  Fourth, CEG overcapitalised its interest expenses – an accounting method in which (1) the cost of borrowing is directly added to the cost of a long-term asset and (2) the “capitalised interest” appears in instalments on the company’s income statement as periodic depreciation expense on the asset over its useful life.

(5)  Fifth, CEG made inappropriate assumptions regarding its ability to continue as a going concern.

B.2  Hengda and the CSRC Decision

14.  CEG’s principal subsidiary is Hengda Real Estate Group Co. Ltd (“Hengda”), which engaged in the business of property development in the Mainland, and whose financial statements were consolidated into, and represented a significant part of, the CFSs.

15.  CEG argues that the Five Misstatements were “confirmed” by the findings and penalties concerning Hengda after an investigation by the China Securities Regulatory Commission (“CSRC”).

16.  In its decision dated 21 May 2024 (“CSRC Decision”), the CSRC published the Administrative Penalty Decision, which decided, amongst other things, that: (1) Hengda implemented financial fraud; and (2) Hengda’s 2019 and 2020 annual reports contained false records. The CSRC Decision also noted that Xia had taken no part in the proceedings, and at that point in time the CSRC had not penalised Xia directly.

17.  It was not until 27 August 2024 that the CSRC issued another Administrative Penalty Decision against Xia directly. Its contents are not important to the present application. What needs to be said however is that CEG only became aware of this later decision from news reports on or around 25 September 2024.

B.3  Xia’s history and role within the Group

18.  Xia has a background in economics. In 1998, he graduated from Jinan University with a master’s degree in business administration, and then in 2001 a doctorate in industrial economy from the same university.

19.  After university, Xia began work in the aluminium processing industry. He then entered the property field. He eventually attained the rank of deputy general manager and accumulated a reputation as a result (for instance, he was recognised as a senior economist by the Human Resources Bureau of Guangdong Province, China in 2000).

20.  Around June 2007, Xia joined CEG. During this time, CEG was at its relative infancy (approximately one year since its incorporation in 2006). Xia was recruited by CEG as a “Vice Chairman and Deputy Vice President”. The job meant Xia was responsible for sales, marketing and administrative management, amongst other matters. During this period, Xia was one of three Vice Chairmen and Deputy Vice Presidents. The other two were responsible for finance and construction projects. Three months later, in or about August or September 2007, Xia became the Chief Executive Officer (“CEO”) of CEG.

21.  In 2008, CEG attempted but failed to have its shares publicly listed in the HKEX. To ensure a successful attempt, Xia was transferred to Hong Kong to take charge of CEG in this respect. In 2009, CEG’s shares were finally listed in Hong Kong. Afterwards, Xia continued to be CEG’s executive director, CEO and Vice Chairman until his retirement.

22.  Until about November 2013, Xia’s role was to assist Hui in the administration and management of information technology, brand building, real estate sales and group-wide matters of a major kind. From November 2013 to October 2016, Xia was assigned further duties in funds and financial management.

23.  By 2016, CEG had become the largest property developer in Mainland China, with the highest turnover, largest land reserve and the highest number of projects in second-tier cities across the Mainland.

24.  Around October 2016, CEG adopted a proposal to spin-off Hengda (including its hundreds of subsidiaries) as a separate entity to be listed on the Shenzhen Stock Exchange. Because of this, and as a requirement of the HKEX, the management of CEG and Hengda had to be segregated and operated independently by unconnected teams. Hui was granted an exemption from HKEC upon application. Xia, however, did not seek an exemption, resulting in his non-involvement directly in Hengda from 2016 onwards.

25.  On 24 January 2017, Xia’s responsibilities were confined to CEG at a top level. He was responsible for overseeing CEG’s and its group’s financial management and funds mobilisation. Necessarily, this apparently excluded Hengda since its proposed spin-off in 2016.

26.  During Xia’s time at CEG, as director and member of CEG’s board, Xia took part in meetings that approved the CFSs and the dividends paid on the faith of the profits stated therein.

27.  Xia retired from CEG in July 2022.

28.  From 2009 to 2022, Xia earned a total RMB1,855,493,000 as emoluments. At least between 2020 and 2021, he earned ten-times more than any of his fellow directors.

29.  The main dispute between the parties in respect of Xia’s involvement in CEG and its group relate to the preparation and publication of the CFSs. It is not disputed that he took part in CEG’s board meetings where the CFSs were discussed and approved. What is disputed is Xia’s physical and direct involvement in the preparation of the CFSs and, importantly, his knowledge of CEG’s financial position throughout.

B.4  Facts leading up to the present applications

30.  CEG issued a writ of summons (“Writ”) on 22 March 2024, thereby commencing the HCA Action, against its former directors, including Xia. The claims made in the Writ are further covered below.

31.  This Writ was issued on a protective basis in order to preserve CEG’s rights in pursuing claims against Hui, Xia and the other defendants. But the fact of its issue was originally kept confidential.

32.  Between March and June 2024, CEG had not served the Writ or a statement of claim on the defendants. During June 2024, the Liquidators discovered Xia was in the process of selling a property in Hong Kong called the Pavilia Hill Property, which he had acquired in 2019.

33.  CEG’s solicitors Karas So LLP (“KS”) immediately initiated communications with Xia’s solicitors Cheung & Liu (“C&L”) on 19 June 2024. In gist, KS requested an undertaking that C&L would not deal with the assets contrary to certain other requests made by KS. This led to a chain of correspondence between the two camps, eventually leading KS to acquire a greater sense of urgency when, in a letter dated 24 June 2024, C&L informed KS that completion might be expedited before the planned completion date on 27 June 2024. As it turned out, completion did take place earlier, on 25 June 2024.

34.  On 24 June 2024, immediately after receipt of C&L’s letter, CEG applied ex parte for a worldwide Mareva injunction against Xia. I heard the application, and granted the Injunction Order as a result. Because the Writ had not been served, and remained confidential at that time, the application for the injunction was made in new miscellaneous proceedings, i.e. the HCMP Action. This explains the two sets of proceedings.

35.  The terms of the Injunction Order included, amongst other things, orders to restrict Xia (1) from removing from Hong Kong any asset within the jurisdiction up to a value of HKD60 billion (approximately USD7.7 billion), and (2) from disposing of or dealing in the proceeds arising from the Pavillia Hill Property sale.

36.  CEG filed the Continuation Summons on 25 June 2024. Xia filed his Discharge Summons on 5 July 2024.

37.  At the first return date hearing on 12 July 2024, I ordered that:

(1)  The Injunction Order be continued against Xia, up to and including the adjourned hearing of the Discharge Summons set for 2 October 2024.

(2)  Xia’s obligation to provide asset disclosure (as per the Injunction Order) be suspended until further order.

(3)  Xia be permitted to spend living expenses of HK$50,000 per month, and the sum of up to HK$1.2 million on legal fees and representation until and including 2 October 2024. Such expenses were permitted to be paid out of the net proceeds from the sale of the Pavilia Hill Property.

38.  The making of those orders was explained by me in my Reasons for Decision dated 18 July 2024, [2024] HKCFI 1854.

39.  CEG served the Writ and its statement of claim (“SOC”) on 1 and 8 August 2024 respectively. Xia filed his Acknowledgement of Service indicating his intention to defend the HCA Action. The deadline for serving Xia’s defence (“Defence”) was on 30 September 2024. But, by the adjourned hearing on 2 October 2024, Xia had still to serve his Defence.

C.  Worldwide Mareva injunctions

40.  The principles underlying a grant of a worldwide Mareva injunction are not controversial, and no authority need be cited to support them. The requirements are for the applicant plaintiff to show that:

(1)  the plaintiff has a good arguable case on its claim;

(2)  there are no or insufficient within the jurisdiction to satisfy the plaintiff’s claim;

(3)  there are assets outside the jurisdiction; and

(4)  there is a real risk of dissipation or secretion of those assets to render nugatory any judgment that a plaintiff may eventually obtain.

41.  A “good arguable case” requires an applicant to show a case that is more than barely capable of serious argument but need not be one the judge believes to have a better than 50% chance of success. The applicant need not go so far as to persuade a court that he or she is likely to win.

42.  In assessing the risk of dissipation of assets, the Court should adopt a holistic approach, taking into account all circumstances relevant to the risk of dissipation for the purpose of determining whether a solid basis for concluding a real risk of unjustified dissipation of assets by a defendant has been shown. A mere inference or generalised assertion is not sufficient, though proving risk of dissipation is often discharged by means of inferential evidence. Examples of where inferences have been made include where the defendant has exhibited “low commercial morality”, and where there is a good arguable case that the defendant has been guilty of dishonest or fraudulent conduct, or other serious wrongdoings, provided that in the first place this is indicative of or relevant to the risk.

43.  Often, to be effective, a Mareva injunction needs to be both swift and secret. But, like any other ex parte application, the appropriateness of the ex parte procedure must be demonstrated in the circumstances. It is sometimes said that extreme urgency is when there is literally no time to warn the defendant of what is proposed or where the purpose of the injunction will or may well be frustrated if the defendant is informed of what is proposed or where the defendant simply cannot be found.

44.  The Court has a power to set aside ex parte orders under Order 32 rule 6 of the Rules of the High Court Cap 4A. Such orders may be reviewed in light of new evidence and arguments adduced by the opposing party, which is reflective of the provisional nature of such orders.

45.  Grounds for setting aside an ex parte injunction relevantly (as raised by Xia) include (1) material non-disclosure during the ex parte hearing in breach of the duty of full and frank disclosure imposed upon ex parte applicants, and (2) a procedural impropriety, such as failing to give prior notice of the hearing date to the opposing party when circumstances demand it.

46.  In the event that an ex parte order is discharged or set aside due to material non-disclosure or lack of prior notice, the Court nonetheless possesses a residual discretion to re-grant the order in the same or different terms.

D.  Outline of the Parties’ Cases

47.  Briefly, CEG seeks a continuation of the Injunction Order for the same reasons that supported its ex parte application. It argues there is a good arguable case that:

(1)  The CFSs were massively misstated between 2017 and 2020.

(2)  Xia knew or should have known about the parlous situation of CEG’s finances given his top role in the company.

(3)  Xia was in breach of his fiduciary duties as director of CEG during this period.

48.  Xia meanwhile seeks to discharge it on various grounds, being in summary that:

(1)  CEG failed to give notice to Xia prior to the ex parte hearing, when it should have done.

(2)  CEG failed to give full and frank disclosure in its evidence and during the hearing.

(3)  CEG has not shown a good arguable case on its claim, because (a) the claim is vague and unformulated, (b) reliance on the CSRC Decision is impermissible because it is inadmissible evidence, and (c) no reliance can be placed on the Liquidators’ findings which were mere opinions.

49.  Further, Xia argues that there was no risk of dissipation. He also accuses CEG of having changed its case in the present application compared to its ex parte case, where (he says) it has dropped a fundamental plank by foregoing references to Xia’s involvement in preparing the CFSs.

50.  There is no dispute that there would be insufficient assets in Hong Kong to meet a successful claim.

E.  Lack of prior notice

51.  Mr Barlow argues that CEG’s failure to give prior notice of the ex parte hearing to Xia, which denied Xia of any opportunity to be heard, was an abuse of process. Because of this, he argues, the Injunction Order ought to be discharged.

52.  He cites numerous authorities supporting this proposition, including Ho Tak Eng v Fame Brilliant Ltd [2006] 1 HKLRD 34 at §10, and National Commercial Bank of Jamaica Ltd v Olint Corp Ltd [2009] 1 WLR 1405 at §§13-15. Based on the various authorities, the following principles seem to me to be well-settled:

(1)  The Court will ordinarily not hear an application where no notice of it has been given by the applicant to the respondent.

(2)  This is a feature of the principle of natural justice audi alteram partem – where an opposing party should usually be afforded some opportunity to be heard on an application that may potentially adversely affect his or her rights.

(3)  In most cases, there will be no scope for giving no notice at all – as such a procedure is against the principles of natural justice – and any notice is better than none.

(4)  Hence, even when time does not permit full notice to be given, it is highly desirable to inform the other party that the application is to be made ex parte so that he can attend if he wishes and make such representations as he wishes.

(5)  Giving short notice may in practice be as simple as doing so by telephone or email (or other appropriate instantaneous modes of communication in current use).

(6)  Ex parte applications without notice should only be made where either (a) the delay would cause injustice to the applicant and/or (b) the defendant would take action which would nullify the effect of the injunction.

(7)  Examples of the later typically involve applications for a Mareva injunction or Anton Piller order.

(8)  Urgency and secrecy are different things, though they might occur together, and the applicant should identify which one(s) is/are said to justify an application made wholly without notice to the respondent.

(9)  Each application will be judged on its own circumstances and the applicant who seeks an ex parte injunction without notice must satisfy the threshold.

(10)  The Courts will seek to ensure that applicants do not try to obtain a tactical advantage from the Court and legal process.

53.  Turning to the facts of this case, and as touched on above, relevant communications were initiated approximately five days before the ex parte hearing on 24 June 2024.

54.  On 19 June 2024, the Liquidators’ solicitors KS wrote to Xia’s then solicitors C&L, after KS learned of the impending sale of the Pavilia Hill Property. The letter notified that the Liquidators were taking steps to identify, safeguard and realise value from the assets of CEG, as well as to investigate the causes of its failure and the conduct of those concerned in its affairs, including Xia. It referred to the decision of the CSRC and its suggested findings of financial fraud committed by Xia in relation to Hengda’s financial statements. The letter suggested that Xia purchased the Pavilia Hill Property at the time when, on the CSRC’s findings, Xia was engaged in the financial fraud. Hence, the Liquidators were concerned that the sale of the Pavilia Hill Property is part of an attempt by Xia to put his assets beyond the reach of the Liquidators, which should otherwise be available to satisfy claims that CEG has against him.

55.  The letter identified that the Liquidators had filed, on a confidential basis, a writ in Hong Kong naming Xia as a defendant. KS requested C&L (the firm, not their client) to give an undertaking not to deal with any of the sale proceeds contrary to KS’s other requests and without prior consent from the Liquidators.

56.  On 21 June 2024, C&L informed KS that the sale was due for completion within the month, on 27 June 2024. There is, perhaps, some ambiguity as to when exactly completion was to take place since the letter variously referred to completion being “on or before 27 June 2024”, but also “on 27 June 2024”. Anyway, it seems what was said led KS to think at that time that completion was to take place no earlier than 27 June 2024.

57.  In the same letter, C&L advised KS that if the Liquidators claim the Pavilia Hill Property sale proceeds, they should first make an urgent application for necessary court orders. In the event that KS were to obtain such orders, C&L represented that they “would of course comply” with them. C&L also maintained its professional duties first to take instructions from Xia before making any disclosures to CEG’s side. It was, therefore, clear at that point that KS’s request was to be disclosed to Xia in order to obtain those instructions.

58.  A few days later, in a letter dated 24 June 2024, C&L reiterated its position that absent an injunction order it would deal with the sale proceeds in accordance with the sale and purchase agreement, and made clear that completion may take place before 27 June 2024.

59.  Mr Manzoni refers to this chain of communications as the reason for the Liquidators’ sense of urgency, applying for and subsequently obtaining the ex parte Injunction Order. Specifically, following receipt of C&L’s second letter, CEG was of the view that Xia was aware of the correspondence and that completion was to take place any time before 27 June 2024. At the ex parte hearing, that had been explained. Mr Manzoni further points out that the deliberate choice to forgo giving any notice to Xia was vindicated by the earlier completion of the Pavilia Hill Property sale on 25 June 2024. Indeed, he says, had CEG done otherwise, the Liquidators would not have been able to preserve the proceeds of the sale (which remains the only asset of Xia known to the Liquidators, and pertinently within Hong Kong).

60.  On the other hand, Mr Barlow points out that none of CEG’s reasons indicate any urgency or secrecy, principally because Xia’s solicitors already floated the idea of court proceedings and injunctions by C&L’s letter of 21 June 2024. Mr Barlow’s submission is further that, between first contact on 19 June 2024 and its letter on the 24 June 2024, C&L advised Xia and were instructed by him to require an injunction from CEG before C&L would accede to CEG’s demands in respect of the property. Therefore, the argument runs, there was no need for secrecy nor any urgency that CEG could capitalise on in order to justify lack of notice from 21 June 2024 onwards.

61.  Mr Barlow also seeks to emphasise that CEG’s grounds said to justify lack of notice have since changed from both urgency and secrecy (as put forward at the ex parte hearing) to only urgency (as put forward in the present application).

62.  There is obviously great force in the submission that CEG should have given notice to Xia, however informal or short, at some point prior to the ex parte hearing:

(1)  First, as to secrecy, it is not unrealistic to think that Xia, through C&L, might have expected CEG and KS to proceed to apply for an injunction when such an application had been canvassed or threatened by KS, and it might be thought had in effect been invited by C&L.

(2)  Second, as to urgency, it might be said that CEG was not in a position where it could have given no notice at all, where even if the trigger for the making of the application was receipt of C&L’s letter on 24 June 2024 at 2:49 pm, the application was not made until 4:30 pm, and some time was taken to prepare the papers for it and arrange for the hearing. There was nothing as would have prevented giving at least some short notice.

63.  However, I do not think there was really any tactical advantage to be gained (or sought) from not notifying Xia during this stretch of time. It seems CEG was preparing to make the application anyway, but brought forward the making of it when greater need for speed seemed to have arisen. I think it understandable from the correspondence that the perception of the degree of any urgency changed in the afternoon of 24 June 2024; indeed, CEG/KS had no means of knowing whether completion of the sale of the Pavilia Hill Property might even take place that afternoon.

64.  Where the concern was about an early completion (in fact, a concern that completion was being moved earlier following and as a result of the correspondence), and the possibility of the proceeds of sale being moved at once, that seems to me to have justified the making of the application ex parte.

65.  Moreover, although it may be said that CEG/KS had already ‘tipped off’ Xia/C&L about a likely application for an injunction, the focus of the correspondence was on the particular asset in Hong Kong, and indeed on the proceeds of its sale – and not on a potentially much wider freezing injunction on a world-wide basis. This seems to me to have brought the application closer to a more usual application for a Mareva injunction, typically appropriately sought on an ex parte basis.

66.  Various other matters raised by Mr Barlow are without merit. He submits that:

(1)  KS never made its requests to Xia directly. But, this is irrelevant since any information given or requests made to C&L would automatically place Xia on notice.

(2)  The earlier date of actual completion was due to the purchaser asking for it. Mr Barlow suspects it was because the purchaser was “spooked” by KS’s requests. Regardless of the real reason behind the expedited completion date, I see no relevance behind this point beyond explaining the perceived need to make the application earlier than might otherwise have been planned.

(3)  CEG via KS should have given notice at least 24 hours before the ex parte hearing. But a 24-hour notice requirement is arbitrary, and the proper time or availability for giving notice may vary depending on the circumstances. Had I formed the view that notice should have been given in this case, the likely time would have been when CEG decided to apply ex parte and/or at least when it fixed the appointment on 24 June 2024.

67.  On balance, therefore, I reject the submission that the ex parte Injunction Order was obtained in a way which was procedurally so compromised that it should be set aside.

68.  I might add that, even had I thought that there was procedural error as should lead to the ex parte order being set aside, I would in the overall exercise of my discretion nevertheless have re-imposed a fresh injunction order, so as to achieve the right balance of fairness between the overall interests of the parties to this case, including light of the matters which I deal with below.

F.  Material Non-disclosure

69.  The legal principles relating to material non-disclosure in ex parte applications are straightforward. They can be summarised (without reference to authority) as follows:

(1)  An applicant is required to give full and frank disclosure in ex parte applications. The test as to materiality is an objective one. The question is whether the facts are relevant to the weighing operation which the Court has to make in deciding whether or not to grant the order.

(2)  However, this must not lead to an over-onerous burden being cast onto a plaintiff, or to allow a defendant to take advantage of minor or innocent non-disclosures that lack merit on substance.

(3)  In the context of urgent ex parte applications, the obligation of full and frank disclosure must be tempered by realism and commonsense, bearing in mind features such as:

(a)  the urgency of preparations;

(b)  the number of different issues which fall to be canvassed at the hearing (and disclosed to the Court);

(c)  the difficulty of anticipating the precise arguments which will be run by the opposing side, precisely how they will be run, and the emphasis which will be attached to each such argument; and

(d)  the danger of the principles becoming an instrument of injustice or an unattainable counsel of perfection, by reference to criticism levelled at the hands of a meticulous opposing legal team with the benefit of hindsight and time.

(4)  A failure to disclose material matters would only be sufficiently acute if they are of such weight that their omission may mislead the Court in the exercise of its discretion.

(5)  Even if a material non-disclosure arises, the Court still has a discretion not to discharge an ex parte order where: (a) the non-disclosure is innocent; or (b) an injunction would still have been granted even if disclosure was made.

70.  Mr Barlow makes several broad points. He argues that:

(1)  CEG’s ex parte application was founded upon material non-disclosures of information found in public records or matters contained within CEG’s own records.

(2)  CEG did not dispute that since the proposed spin-off of Hengda in late 2016, as per the HKEX’s requirements, Xia ceased to have any involvement in the affairs of Hengda. This meant that Xia was not involved in Hengda’s accounts.

(3)  Xia was not involved in the preparation of the CFSs (in contrast to the approval of them).

(4)  Despite being massively insolvent, CEG failed to disclose matters material to its undertaking in damages, rendering that undertaking a “worthless illusion”. Further, Xia asserts that CEG had not given any explanation suggesting its non-disclosure was inadvertent.

71.  As to non-disclosures of matters in public record:

(1)  In the affirmation of Mr Chung Wing Yan dated 5 July 2024, a solicitor of Xia’s previous solicitors, Mr Chung affirmed to matters of public record that he said CEG failed to disclose during the ex parte hearing.

(2)  I have vetted each of the matters and found all of them disclosed by CEG, either in Mr Middleton’s first affidavit (in support of the ex parte application) or by Counsel’s submission during the ex parte hearing.

(3)  For instance, CEG was alleged to have not disclosed the fact that CEG is Cayman Islands entity, that its shares was listed on the Main Board of HKEX, or that CEG had various subsidiaries in different jurisdictions and in different business. Mr Manzoni helpfully referred me to the specific paragraphs of Mr Middleton’s first affidavit in which CEG did in fact make such disclosures.

72.  The referenced matters of public record which I think are worthy of note include the following – which I have re-ordered from the way they were presented in argument.

73.  First, PricewaterhouseCoopers (“PWC”) audited CEG’s CFSs and issued a “clean” or “unqualified” audit report in respect of each consolidated financial statement. I see the argument that because PWC’s audit reports are relevant by tending to bestow the CFSs with an aura of accuracy, CEG ought to have disclosed this matter to the Court. I also accept that the answer to the criticism is not found in saying the CFSs were exhibited to the affidavit which led the application; it is trite that disclosure should be made in the affidavit (and/or the skeleton submissions) and not in the exhibits, so as to ensure the ex parte Judge will not overlook the matters which require disclosure, when ex parte applications are often dealt with when the Judge has limited reading time beforehand. Nor did the reference to the CSRC Decision assist in disclosure – for the reasons I expand upon below.

74.  However, I think most Judges would work on the starting basis that the published financial statements of a listed company would have a clean audit opinion (unless expressly identified to the Judge to be otherwise). In any event, regardless of the PWC’s unqualified opinions, (1) the Five Misstatements were not identified, and (2) Xia’s duties in respect of the CFSs remained regardless of the audited reports. Therefore, I am not convinced that this aspect of alleged non-disclosure would ever have been substantial enough to warrant a discharge.

75.  Second, it is a matter of public record that Xia resigned as a director of CEG in 2022. However, this seems to me to be irrelevant, simply because it post-dated the period covered by CEG’s claim (i.e. 2017-2021). What matters is whether Xia breached his duties as a director during his employment at CEG.

76.  Third and fourth, it was open to public knowledge that Xia was not a member of the Remuneration Committee of CEG’s board of directors, and he was never been a director or officer of Hengda, nor was he responsible for its management or the preparation of its financial accounts. However, the crux of CEG’s case is directed against Xia’s duties as a director, and not at his actual or physical involvement in drawing up the CFSs. Xia’s non-involvement in the Audit or Remuneration Committees are not materially to the point as his duties remain engaged. Similarly, Xia was the CEO of Hengda’s parent company CEG, and as such his duties extended to Hengda’s statements during CEG’s consolidation of its financial accounts and those of its subsidiaries, including Hengda.

77.  Fifth, it is pointed out that CSRC’s investigation of Hengda began only after Hengda issued bonds in Mainland China and that Xia was not involved with Hengda’s bond issuance. I think this is not material, because CEG’s claim is directed against Xia’s responsibilities as a director and not at his actual participation in the preparation of the CFSs.

78.  Sixth, the CSRC Decision did not impose a penalty directly on Xia, despite having done so on others, including for example Mr Hui. Further, that the CSRC did not give notice to Xia to defend himself. I do not think this was material. CEG could not have known whether Xia was or was not in fact given actual notice, or whether the CSRC was unable to reach Xia in order to effect notice. Regardless, I am satisfied that CEG during the ex parte hearing disclosed all that it knew in respect of the Decision, including that Xia was not penalised by that time (see especially CEG’s written submission for the ex parte hearing).

79.  Seventh, it is said that PWC was “exonerated” by the Accounting and Financial Reporting Council on 12 July 2024, but it is argued for Xia that CEG did not draw attention to this “exoneration”. But, as rightly pointed out by CEG, this was about two weeks after the ex parte hearing, and CEG could not have disclosed what had yet to occur. More fundamentally, the Council’s decision is also subject to my conclusions regarding the admissibility the CSRC’s Decision. In short, this point falls away.

80.  Regarding CEG’s undertaking as to damages, relevant guidance is found in Wah Nam Holdings Co Ltd v Excel Noble Development Ltd [2000] 3 HKC 118 at p 129C-G, where it was held that:

(1)  If a plaintiff’s financial position is such that it may be said to raise realistic doubts as to the plaintiff’s ability to honour the cross-undertaking, it becomes incumbent upon the plaintiff to make a full and frank disclosure of his financial position to the ex parte judge so as to permit the judge to determine for themselves the correct order to make in the light of such disclosures.

(2)  It does not avail the plaintiff to say that his non-disclosure was inadvertent.

(3)  Nonetheless, the Court retains a discretion to maintain the ex parte order provided it is satisfied that no injustice has been caused to the defendant.

81.  Although CEG did not disclose matters regarding its financial ability to meet the undertaking up to and during the ex parte hearing, I do not think any injustice was caused to Xia as a result. First, it does not follow that, even if CEG is massively insolvent, it necessarily has no remaining assets to meet the undertaking in damages. This is because, as is made clear in Mr Middleton’s third affirmation, CEG does have assets, including its subsidiaries, located onshore and offshore. The Liquidators estimate that the realisable value of assets directly owned by CEG may exceed HK$100 million. Further, CEG rightly points out that in Xia’s discharge application he did not seek orders requiring CEG to fortify its undertaking, nor did he demonstrate that there was such a need, either as pure submission or based upon the evidence available since the ex parte hearing.

82.  The Injunction Order therefore is unaffected by any material non-disclosure.

83.  In any event, had I found any material non-disclosure as advanced, I would have found them to have been insubstantial or de minimis, such as would not warrant a discharge of the Injunction Order on this ground. To punish CEG for any such non-disclosure would be disproportionate.

84.  I also note that the Injunction Order is of importance for CEG in respect of Xia, because he was in effect the second-in-command of CEG and its group. He was, after all, its highest paid executive officer and director.

G.  Whether Properly Formulated Claim

85.  Mr Barlow submits that CEG obtained the Injunction Order without properly formulating any claim. He cites Fourie v Le Roux [2007] 1 WLR 320 at §§35-36:

35. […] I find it very difficult to visualise a case where the grant of a freezing order, made without notice, could be said to be properly made in the absence of any formulation of the case for substantive relief that the applicant for the order intended to institute. It has to be inferred that, at the time of the application to Park J, Mr Fourie’s counsel were unclear whether the substantive proceedings would be proceedings in South Africa or in England and, in either case, unclear what the cause or causes of action would be. But at the least a draft claim form could have been prepared claiming an inquiry as to what Mr Le Roux and Fintrade had done with the assets they had seized under the Germiston order and for the return of those assets or damages for their conversion. It seems to me significant that, when the freezing order was discharged in the morning of 30 September 2004, an adequate claim form was produced by that afternoon.

36. In my opinion, in the circumstances as they stood before Park J, the protection for the defendant that ought to be associated with the grant of a without notice freezing order was absent. The protection ought to include directions about the institution of proceedings for substantive relief. Here there were none. […]

86.  But it is important to note that these observations were made against the following background:

(1)  The appellant brought an ex parte application against the two respondents in England for a Mareva injunction in aid of foreign proceedings, after being permitted by a South African court to do so.

(2)  At the ex parte hearing, Park J granted the injunction despite there being (1) an ambiguity as to where exactly substantive proceedings were to take place, namely England or South Africa, and more importantly, (2) what the nature of such proceedings would be (which Lord Scott described as “unformulated and inchoate”).

(3)  Judge Norris QC renewed the injunction, despite having been offered no further details or description regarding the eventual substantive proceedings proffered by the appellant.

(4)  The respondents successfully discharged the injunction after Deputy Judge Jarvis QC concluded that during the ex parte hearing (1) no substantive proceedings were commenced and (2) no proceedings were formulated at all.

(5)  Immediately after the injunction’s discharge, the appellant finally formulated a claim for substantive relief in support of a new Mareva order, as a result of which they succeeded in obtaining it.

(6)  It was only at this point that a claim form, which may or may not have been specifically indorsed with the appellant’s particulars of claim, came to exist for the first time. Prior to that there was no claim form at all. Further, it took a claim form made within the same day as the discharge before the new injunction was granted.

87.  Compared to the present case, Fourie is clearly distinguishable:

(1)  In this case, a Writ was filed by CEG as early as 22 March 2024. Although subject to a confidentiality order (granted by the High Court on 20 March 2024), the broad description of CEG’s claims in the Writ were made known to the judge who granted that order.

(2)  It is correct that this Writ was not served on Xia until 1 August 2024, with CEG’s SOC following suit on 8 August 2024. Yet, as Mr Manzoni explained during the ex parte hearing and the hearing for the present application, CEG was not intending to serve the Writ and its SOC before it completed drafting the latter document. It was not until how rapidly urgent the situation became for CEG during its communications with C&L regarding the Pavilia Hill Property that CEG decided to apply for an ex parte injunction. Given the complexity, CEG understandably required a substantial period of time to try to draft it properly. This is perhaps reflected in the five months it took after issuing the Writ in March 2024 before CEG served the Writ and the SOC.

(3)  My view is further fortified by the fact that during the ex parte hearing Mr Manzoni clearly pointed to CEG having already taken out a Writ, was in the process of drafting its SOC, and was intending to serve both on Xia in due course.

88.  Therefore, I do not see that CEG failed to properly formulate its claim in the same manner as it occurred in Fourie. On the contrary, CEG has set out its claim in broad form in the Writ as early as March 2024, and stated during the ex parte hearing that it was to serve it along with its SOC in the near future.

89.  At the ex parte hearing, it was explained on behalf of CEG that the Liquidators’ investigations, based on a variety of sources, had led them to conclude that the consolidated financial statements of the Group were significantly overstated, in at least each of the financial years 2017 to 2020, in particular by reference to the Five Misstatements. The Liquidators identified that, on the basis of the overstated financial statements, dividends had been approved for those financial years totalling almost US$6 billion, and that that occurred as a result of the specified breaches of duty in relation to the preparation and approval of CEG’s financial statements. Though perhaps of less significance, there was also clear reference to the receipt of remuneration totalling over RMB1.8 billion for Xia. That seems to me to be a clear – albeit high level – articulation of the case advanced against Xia.

90.  Instead, the real issue raised by Mr Barlow is as to the sufficiency or insufficiency of particulars in CEG’s claim. Specifically, he points to CEG’s “vague and unspecified” allegations of breach of Xia’s duties in respect of the CFSs and that CEG is simply lumping Xia with the other directors of CEG in a form of “guilt by association”. To some extent, I sympathise with these submissions, especially with the latter one. But on the other hand, there must be some acknowledgement of the broader picture that led to CEG’s problems.

91.  Between 2017 and 2021, Xia was a senior executive officer and director of CEG, who was in charge of the overall financing of CEG, and who was part of the board that approved the CFSs and the subsequent dividends in reliance on those same statements. Although I say this without making a definite finding, it is arguable from the evidence as it stands that Xia was part of the decision-making entity who caused the fiasco that was CEG’s dramatic collapse. Obviously, something went seriously wrong. I am of the view that CEG has formulated its case broadly to accommodate that broad picture without being unnecessarily vague or inchoate.

92.  I also take it to be sufficiently formulated for the purposes of the injunction application:

(1)  Right from Mr Middleton’s first affidavit dated 24 June 2024, CEG disclosed its case broadly framed against Xia.

(2)  As was later seen, that mirrored the Writ verbatim.

(3)  CEG pleaded further particulars in its SOC.

(4)  In section F, CEG pleaded thirteen duties which Xia owed to CEG.

(5)  CEG pleaded how Xia breached his duties at section G. This section included a particularised explanation of how Xia and the other defendants, stemming from their breached duties, caused the Five Misstatements, the misstatements of Hengda’s financial statements, and the inflated revenue of Hengda between 2017 and 2020. In respect of the latter, Xia is pleaded to have been in actual coordination and management of Hengda’s daily operations and organised and arranged the preparation of false financial reports and was directly responsible for the false records in 2019 and 2020 of Hengda.

(6)  At section H, CEG pleaded that as a result of their breaches Xia and the other defendants caused it:

(a)  to declare and pay unlawful dividends of up to RMB42,355 million (approximately US$5,993 million), which CEG could not and/or would not have paid out but for the breaches of duty by the defendants; and

(b)  to pay remuneration to each defendant between 2017 and 2020, which it would not have paid but for their breaches of duty, and in respect of Xia an amount of up to RMB899.1 million (approximately US$127.2 million).

(7)  It is pleaded that as a result of which CEG suffered loss.

(8)  CEG also pleaded conspiracy, accessorial liability (dishonest assistance) or recipient liability (knowing receipt), want of authority, money had and received, and restitution for unjust enrichment against Xia (amongst others) in sections I and J respectively.

(9)  As for relief (besides interest, costs and further relief), CEG claims a declaration that (1) Xia breached his duties, (2) the dividends declared by Xia were unlawful, and (3) Xia holds funds improperly paid by CEG and received by him as a constructive trustee. Further or in the alternative, CEG claims damages and/or equitable compensation and/or restitution against Xia for the dividends and remuneration he received. CEG lastly claims for an account of monies belonging to CEG and received by Xia, an account of what has happened to such monies, an account of profits made if any, payment of such sums upon taking of account, and inquiries, tracing and/or other directions this Court thinks fit.

93.  This account of CEG’s pleaded case adequately shows that it has provided sufficient particulars against Xia. It also aptly demonstrates the intricacy of the claim CEG is currently forced to plead in order to accommodate the number of defendants involved in addition to the broad background of CEG’s collapse. Although the Writ was broadly termed, CEG’s case has since been given more shape in its SOC. I therefore find that CEG’s case is sufficiently formulated for present purposes.

H.  Admissibility of the CSRC Decision

94.  Mr Barlow contends that the entirety of the CSRC Decision is inadmissible for any purposes.

95.  In support, he cites Savings and Investment Bank Ltd v Gasco Investments BV [1984] 1 WLR 271, where Peter Gibson J at p 280A-C accepted that Hollington v F Hewthorn & Co Ltd [1943] KB 587 operated to exclude reports of inspectors post-investigation as mere opinion in the context of an injunction application. It was held that, because of Hollington (amongst other authorities), the applicant was not permitted to exhibit a quasi-judicial report in its affidavit because the report’s findings were relied upon as evidence of their truth (p 283D-F).

96.  Mr Manzoni attacks Gasco by submitting that it was based substantially upon the rule against hearsay, which in Hong Kong has been abolished in the civil context under section 47 of the Evidence Ordinance Cap 8. Thus, he submits, Gasco’s relevance and applicability has greatly diminished.

97.  I agree in part. It is correct that Hong Kong (as well as England and Wales) has moved on since when Gasco was decided in 1984. The hearsay rule no longer applies to bar hearsay evidence in civil proceedings. Despite this, I do not read Gasco as a predominantly hearsay case. In any event, it was based fundamentally on Hollington, but that decision was not a hearsay case, nor was the principle articulated in it based on the rule against hearsay.

98.  One of the grounds mounted against the report’s admissibility in Gasco was that the inspectors’ statements were mere opinions and therefore inadmissible. If the rule against hearsay was discussed in any way it was merely to disagree with an argument from the Bar table that under Order 41 rule 5(2) an affidavit may refer to hearsay statements without providing the sources or grounds supporting them. The decision was less concerned with hearsay than with the broader principle of law that evidence may not include something that would otherwise be inadmissible, whether it be opinion, hearsay or other types of inadmissible evidence. In any event, the fundamental rationale of Hollington was based on the rule against opinion evidence.

99.  The essence is that it is duty of a Court to form its own opinion on the basis of the evidence placed before it. It would not be proper for the Court in forming that opinion to be influenced by the opinion of someone else, however reliable that person’s opinion is likely to be. Hence, findings of fact made by another decision maker are not to be admitted in a subsequent trial because the decision at that trial is to be made by the Judge appointed to hear it, and not another. The opinion of someone other than the Judge is irrelevant.

100.  However, there are logical exceptions to Hollington principle. Mr Manzoni refers to Lam VP (as Lam PJ then was) in Yifung Properties Ltd v James Nicholas Barrie Smith [2019] 1 HKLRD 36 at §14: -

We note the contention […] that it is not permissible for the court to refer to such judgments in this action. With respect, insofar as counsel contends that the courts cannot have regard to such judgments under any circumstances, we disagree with that submission. It depends on the purpose(s) for which such reference was made. Whilst we accept findings of fact made in earlier proceedings cannot be taken as evidence in the present action [Lam VP cites Hollington], the court must refer to the earlier judgments in conducting the broad merits-based assessment in the context of Henderson v Henderson issue estoppel.

101.  Of course, this passage betrays its distinguishability from our case; we are not concerned with res judicata, but with a good arguable case in support of a Mareva injunction. Nonetheless, Lam VP’s broad description of Hollington’s principle is relevant. It rightly acknowledges that previous findings made by other courts, tribunals or inquiries are admissible unless they are relied upon for their truth. In the latter situation, the principle applies to bar that purpose.

102.  Similarly, in Capital Century Textile Co Ltd v Li DianXiao [2018] HKCFI 729 at §§28-29, Lisa Wong J observed:

28. In short, the exclusion of the factual findings and conclusions of an earlier court or tribunal from subsequent proceedings serves to ensure a fair trial, not in any general sense as suggested by Mr Tsang, but in the specific sense that the judge appointed to hear and determine the subsequent case makes his own decision on the evidence and submissions presented to him, without being influenced by the opinion of an earlier adjudicator.

29. Such concern however does not exist in relation to the evidence referred to in an earlier judgment such as the contents of documents or the evidence of witnesses.

103.  She went on to hold, at §31, that a PRC judgment that contained statements or reported statements of factual evidence before the court which rendered the judgment are not excluded by the Hollington principle.

104.  Another instance of the exception is found in Zillion Global Limited v UBS AG [2020] HKCFI 953 at §15, where Godfrey Lam J (as Godfrey Lam JA then was) affirmed Capital Century:

It is also submitted on behalf of the plaintiff that the judgment in the Singapore action is inadmissible. With respect, this is nowhere to the point. We are not here concerned with the findings and conclusions in a foreign judgment. We are not even concerned with a summary or digest of evidence set out in a foreign judgment, which would be admissible: see Capital Century Textile Co Ltd v Li DianXiao [2018] HKCFI 729 at §29; Rogers v Hoyle [2015] QB 265. Instead we are dealing with verbatim transcript of the oral factual statements made by Mr Pan and Ms Zhang. The fact that they were made overseas and in the context of legal proceedings there does not alter their nature as primary factual statements made by the persons with direct personal knowledge of the matters referred to.

105.  There is a dividing line to be drawn between (1) a narrative of the evidence and (2) the findings and conclusions in the light of that evidence. Hence, the question in the present case is as to the purpose for which CEG is citing the CSRC Decision.

106.  In his written submissions, Mr Manzoni argues that CEG relies upon the CSRC Decision as evidence of the fact that the CSRC investigated Hengda and certain individuals, including Xia. I agree that is permissible, as it falls within the exception to the Hollington principle.

107.  However, Mr Manzoni also says that CEG relies on the CSRC Decision as evidence of the findings made by the CSRC in respect of Xia, which findings were “confirmatory” of the Liquidators’ own views or findings in respect of the CFSs and Xia’s responsibility for its misstatements. Hence, Mr Manzoni submits it is proper for CEG to rely on the CSRC Decision as part of the broad enquiry into whether there was a good arguable case against Xia. I disagree.

108.  The CSRC’s findings are simply not admissible. What CEG is seeking to do is to adduce these findings and bypass Hollington’s principle, by relying upon the Decision as confirming the Liquidators’ own findings. Regardless of how one labels it, this is no different from directly relying upon the CSRC’s findings.

109.  Furthermore, I do not accept that the authorities cited by Mr Manzoni support the broad proposition that when assessing a plaintiff’s case on good arguable case a court may have recourse to such findings.

(1)  Lam VP in Yifung allowed recourse to extraneous findings because that case was a Henderson abuse case, which allowed a broad approach to assessing alleged abuses in that context. That is distinguishable from the present case.

(2)  In Wei Xing v Willwin Development (Asia) Co Ltd (unreported, HCMP 1922/2016, 13 April 2017), Lam J (as Godfrey Lam JA then was) was dealing with an application under section 740 of the Companies Ordinance, and was concerned with the bona fides of an applicant, which is not the same as the present case.

110.  Mr Manzoni has not cited any direct authority that supports his proposition that, in the present context, the Court may have recourse to the otherwise inadmissible findings in extraneous reports or judgments when assessing a good arguable case for a Mareva injunction. This is not surprising, as it would make little sense for the assessment of a good arguable case to include reference to materials which could never be deployed at the trial of that case.

111.  CEG is seeking to rely upon the findings of fact made in the CSRC Decision, and not upon the evidence cited therein. Therefore, even if the CSRC is thought to be “confirmatory” of the Liquidators’ own findings, the findings made in the CSRC Decision are inadmissible in the present application. CEG cannot rely upon it as supporting its good arguable case.

I.  The Liquidators’ Findings

112.  In both his written and oral submissions, Mr Barlow repeatedly submitted that the parts of Mr Middleton’s affidavit evidence, where he made references to the Liquidators’ findings from their investigations, were merely “opinions” and should accordingly be treated as inadmissible, or at least given little weight.

113.  I disagree. Under RHC Order 41 rule 5(2), an affidavit sworn for the purpose of being used in interlocutory proceedings may contain statements of information or belief with the sources and grounds thereof. Mr Middleton in his fourth affidavit in support of the present application sets out his sources and grounds for each of his statements of information or belief. I shall not review each one, save to mention that Xia has not drawn the Court’s attention to any particular statement lacking a source or grounds. I therefore find the Liquidators’ findings as described by Mr Middleton in his affidavit (including his first, second, and third affidavits) as admissible and relevant evidence, to be accorded appropriate weight depending upon the circumstances.

J.  Whether Good Arguable Case

114.  Mr Manzoni raises the following as grounds for CEG’s good arguable case:

(1)  First, CEG’s CFSs were significantly misstated because of the Five Misstatements.

(2)  Second, Xia was in breach of his duties in respect of (1) the preparation and approval of the CFSs and (2) the approval of the payment of dividends totalling US$6 billion for the period between 2017 and 2020.

(3)  Third, Xia derived substantial financial gains for himself in the form of salary and other emoluments from CEG between 2009 and 2022, totalling over RMB1.8 billion.

J.1  The Five Misstatements

115.  From the evidence, I accept that there is at least a good arguable case that the CFSs suffered from various misstatements.

116.  First, it is apparent from the financial statements for 2021 that revenue up to 31 December 2020 was recorded based upon an internal policy that required revenue recognition to occur at “the earlier of the acceptance of the property by the customer or according to the sales contract, the property was deemed to have been accepted”. A change of policy was implemented in 2021, when in addition to the conditions for recognition above, revenue would be recognised after (1) construction completion certificates are obtained or (2) the delivery of property inventory to property owners for use. The result of this change was immense. CEG reversed RMB664 billion of revenue thus far recognised up to 2021. This amounts to around 27% of the total cumulative revenue recorded by CEG’s group from 2009 to 2020 of RMB2.49 trillion. This of course raises questions regarding the propriety of CEG’s previous revenue recognition method and, if corrected for the previous years, how that would have an impact upon CEG’s true state of financial affairs.

117.  Second, a significant proportion of CEG and its group’s assets were made up of two types of properties. The first type was “properties under development”, and the second was “completed properties held for sale”, which are self-explanatory. Together they amounted to 61% of CEG and its group’s total assets. Between 2009 and 2020 the write-downs for both assets were trivial, with the highest write-down occurring at 0.1% of the total value of both assets. However, in the 2021 statements, the write-down was RMB373 billion, or around 27% of the total value of both assets reported in the 2020 statements. CEG has referred to analyst reports made by J Capital Research and GMT Research Limited between 2014 and 2016. Whilst the opinions in those reports are inadmissible, the fact that the opinions were publicly expressed and available for those managing CEG to consider is relevant and admissible, in the context of the later substantial write-down of values between 2020 and 2021.

118.  Third, CEG also had a third type of property classified as “investment properties”, which included amongst others car parks attached to its residential development projects, commercial buildings and retail stores. The reported value of the group’s investment properties in 2020 was RMB165.8 billion, or around 7% of total assets. For the period between 2009 and 2020, CEG recorded fair value gains on its investment properties totalling RMB58 billion. However, in 2021, the write-downs amounted to RMB31 billion, or more than half of the cumulative fair value gains. CEG also reclassified over RMB40 billion as properties under development of assets previously classified as investments.

119.  Fourth, CEG and its group capitalised a large amount of interest expenses it incurred in respect of its borrowings. Essentially, between 2009 and 2020, the group had an average capitalisation of 74% and 100%, and was consistently the highest rate amongst its competitors during this period. However, in 2021 and 2022, the group reduced its capitalisation rate to 44% and 52% respectively. This is sizeable, if not strictly a significant reduction since the rates in 2021 and 2022 were then comparable to the rates of its competitors (who hovered just shy of 40% in 2020).

120.  Fifth, between 2017 and 2020 CEG’s audited reports were given a favourable going concern treatment by PWC. Yet by 2021, PWC admitted that there were multiple uncertainties relating to going concern, which included significant net loss and net liabilities of the group, the inadequate cash flows to meet borrowings, amongst others. Further, CEG referred to the fact that the Accounting and Financial Reporting Council and analyst reports raised queries about the going concern assessment in the CFSs. In so far as CEG relies upon the fact of queries being made, I accept these are admissible, and I do find them relevant in impugning the propriety of the going concern assessment. I therefore am inclined to find that is a good arguable case that the going concern assessment was inappropriate for each year between 2017 and 2020.

J.2  Breach of fiduciary duties

121.  In gist, Mr Barlow argues that Xia was too high up the management chain to have been directly involved in the preparation of the CFSs, much less the financial statements of CEG’s subsidiaries, in particular Hengda. Mr Manzoni meanwhile submits that this is an incorrect description of the evidence, and that Xia was directly involved. In any event, he says, Xia still had duties as a director to ensure with reasonable skill, care and diligence that the CFSs were properly prepared and accurate.

122.  First, the contemporaneous records indicate that Xia was integrally involved in CEG’s financial affairs and had ultimate oversight of its daily operations.

(1)  CEG’s annual reports between 2017 and 2020 each state that Xia was in charge of CEG’s daily operations, which included its financial and capital operations.

(2)  CEG’s board meeting minutes indicate that Xia attended relevant meetings where CEG’s financial results were discussed and approved. The agenda for the meeting regarding CEG’s annual results for 2019 indicates that Xia was in attendance and was presented CEG’s annual operating results and financial condition.

(3)  In a letter dated 31 January 2023 from Xia’s lawyers to the Accounting and Financial Reporting Council, Xia confirmed that he was amongst those who had ultimate responsibility for preparing CEG’s financial statements for 2020.

(4)  In a letter dated 15 March 2023 from Xia’s lawyers to Reed Smith Richards Butler, Xia admitted that CEG’s Finance Centre was led by him as CEG’s chief financial officer.

(5)  Xia in his affidavit admits being responsible for overseeing CEG’s financial management and fund-raising activities.

123.  Therefore, he must or ought to have had a profound knowledge and appreciation of CEG’s financial position if he were to carry out his responsibilities. There is no need to refer to the findings of Reed Smith in its report, which are inadmissible.

124.  Second, even without the contemporaneous documentary materials, Xia as director bore a duty to exercise reasonable skill, care and diligence when preparing the CFSs of CEG. In Re Barings plc and others (No5) [1999] 1 BCLC 433 at p 489a-c, it was held that:

(1)  Directors have a continuing duty to acquire and maintain a sufficient knowledge and understanding of the company’s business in order to enable them to properly discharge their duties as directors.

(2)  Directors may delegate their functions to those below the management chain, but they are not allowed to delegate their responsibility in carrying them out with reasonable skill, care and diligence. Thus, directors retain the duty to supervise the discharge of their delegated functions.

(3)  The extent of the duty, and whether it has been discharged, depends on the facts of each case, including the director’s role in the company’s management.

125.  Further, in Cyberworks Audio Video Technology Ltd v Mei Ah (HK) Co Ltd [2020] HKCFI 398 at §§62-64, I recognised that a director’s duty to act with reasonable skill and care includes a minimum expectation that they should have basic concepts and financial literacy to be in the position to properly identify and question any apparent errors in the company’s financial statements:

62. It is trite that directors owe fiduciary duties to the company of which they are directors. The distinguishing obligation of any fiduciary is the obligation of loyalty, comprising at a minimum the duty to act in good faith, the duty not to place himself in a position where his duty and interest may conflict, and the duty not to act for his own benefit or the benefit of a third person without the informed consent of his principal.

63. It is also trite that directors are required to conduct themselves with standards of a reasonably diligent person having both (a) the general knowledge, skill and experience that may reasonably be expected of a person carrying out the same functions as are carried out by that director in relation to the company, and (b) the general knowledge, skill and experience that the particular director has. Directors are, therefore, required on a continuous basis to obtain and maintain sufficient knowledge and understanding of the company’s business so as to enable them to discharge their duties as directors.

64. In the case of Australian Securities and Investments Commission v Healey [2011] FCA 717, at §§20-22, commenting that the basic concepts and financial literacy required by directors to be in a position properly to question any apparent errors in the financial statements are not complicated, and in a way with which I respectfully agree, Middleton J put the matter as follows:

“Nothing I decide in this case should indicate that directors are required to have infinite knowledge or ability. Directors are entitled to delegate to others the preparation of books and accounts and the carrying on of the day-to-day affairs of the company. What each director is expected to do is to take a diligent and intelligent interest in the information available to him or her, to understand that information, and apply an enquiring mind to the responsibilities placed upon him or her. Such a responsibility arises in this proceeding in adopting and approving the financial statements. Because of their nature and importance, the directors must understand and focus upon the content of financial statements, and if necessary, make further enquiries if matters revealed in these financial statements call for such enquiries.

No less is required by the objective duty of skill, competence and diligence in the understanding of the financial statements that are to be disclosed to the public as adopted and approved by the directors.

No one suggests that a director should not personally read and consider the financial statements before that director approves or adopts such financial statements. A reading of the financial statements by the directors is not merely undertaken for the purposes of correcting typographical or grammatical errors or even immaterial errors of arithmetic. The reading of financial statements by a director is for a higher and more important purpose: to ensure, as far as possible and reasonable, that the information included therein is accurate. The scrutiny by the directors of the financial statements involves understanding their content. The director should then bring the information known or available to him or her in the normal discharge of the director’s responsibilities to the task of focusing upon the financial statements. These are the minimal steps a person in the position of any director would and should take before participating in the approval or adoption of the financial statements and their own directors’ reports.”

126.  CEG also makes reference to sections 379 and 380 of the Companies Ordinance Cap 622, which materially provide as follows:

379. Directors must prepare financial statements

(1) […] a company’s directors must prepare for each financial year statements that comply with sections 380 […]

380. General requirements for financial statements

(1) The annual financial statements for a financial year—

(a) must give a true and fair view of the financial position of the company as at the end of the financial year; and

(b) must give a true and fair view of the financial performance of the company for the financial year.

(2) The annual consolidated financial statements for a financial year—

(a) must give a true and fair view of the financial position of the company, and all the subsidiary undertakings, as a whole as at the end of the financial year; and

(b) must give a true and fair view of the financial performance of the company, and all the subsidiary undertakings, as a whole for the financial year.

127.  There is, therefore, a statutory duty imposed on directors like Xia to ensure that the CFSs were accurate. It can be noted that neither sections 379 and 380 require direct or physical involvement in doing so.

128.  Xia is thus incorrect to insist that he bore no duty or responsibility to ensure the accuracy of the CFSs, just because he was not directly involved in preparing them. That argument otherwise condones delegation of responsibility, which as a director Xia retained even if he delegated the performance of his functions.

129.  CEG also submits that Xia’s approval of the dividends constituted another instance of breaching his duties as a director of CEG. In particular, had the CFSs been properly prepared and presented, the Five Misstatements would have been discovered, and the dividends should not have been approved. Thus, the dividends paid out were unlawful.

130.  I note that this argument is an example of lumping Xia in with the other defendants in respect of their breaches of duties. It is unclear from CEG’s pleaded case which defendant was responsible for which years when dividends were paid. Indeed, CEG pleads at §53 of its SOC that Xia attended the board meeting for 2019 and 2020, but not 2017 and 2018. This suggests that at least for those two years Xia was not involved in the approving of dividends. Nevertheless, Xia was involved and present during meetings when dividends were approved. There is a good arguable case that they should not have been approved by the board in light of the substantial misstatements in the CFSs. Had the directors, including Xia, performed their duties, it is arguable that the misstatements would have been discovered by the directors, and as a result the dividends would not have been approved.

131.  In further support of these points, Mr Manzoni refers to Moulin Global Eyecare Holdings Ltd (In Liq) v Olivia Lee Sin Mei [2019] HKCFI 1715. In that case, the defendant was held to have breached her duty as a director of the plaintiff in failing to fully investigate matters that placed her on notice of the fraud perpetrated by senior management. If she had investigated she would have discovered that no dividends should have been paid and no share repurchases would have been made (§68). Peter Ng J found that the dividends were unlawfully paid (§72) and also found the defendant strictly liable for the unlawful dividends (§81). In support of that finding, he referred (§76) to Re Exchange Banking Company (1882) 21 Ch.D 519 and Bairstow v Queens Moat Houses plc [2001] 2 BCLC 531 for the proposition that since unlawful dividends are unauthorised returns of capital the directors who approved it are liable to replace the amounts so paid. He also referred (§79) to Re Paycheck Services 3 Ltd [2010] 1 WLR 2794 at §§45-47, and the finding, albeit obiter, that a director’s liability for approving unlawful dividends is strict. Thus, there is at least persuasive authority to the effect that breaching the director’s duty – in failing to ensure accurate financial statements and then paying out dividends on the profits stated in those accounts – is strict.

132.  Mr Barlow argues that CEG’s arguments is flawed because it imposes a strict liability upon directors who in reality had no direct involvement in the preparation of financial statements of a company. I disagree. There is a clear distinction between (1) a breach of duty committed by a director, which as I indicated above occurs regardless of that director’s direct involvement, and (2) a causative link between that breach and the losses suffered by the company. I have not overlooked any requirement of causation, but that seems to me to be a matter for trial.

133.  In any event, given Xia’s statutory duties and the strict nature of unlawful dividend liability, I am inclined to reject Mr Barlow’s insistence that CEG is advancing a “liquidators’ fantasy” of strict liability whenever a director fails to adhere to his duties despite having had no direct involvement in the physical carrying out of those duties.

134.  Mr Barlow also cited Galoo Ltd (In Liq) v Bright Grahame Murray (a firm) [1994] 1 WLR 1360 and JSI Shipping (S) Pte Ltd v Teofoongwongldoon (a firm) [2007] 4 SLR 460 in support. However, those cases are concerned with the duties of auditors, not directors, and I do not think they lend any assistance.

135.  Therefore, I consider that CEG has raised a good arguable case that Xia breached his duties as a director of CEG, in respect of the preparation and approval of the CFSs, and the approval and payment of dividends on the basis of the CFSs.

J.3  CEG’s knowing receipt claim

136.  Though there is also a pleaded claim in dishonest assistance, the focus of the argument has been on CEG’s claim in knowing receipt. In the SOC, the knowing receipt claim against Xia is pleaded on the basis that (1) as a consequence of his breaches of fiduciary duty, Xia beneficially received significant sums in remuneration, and (2) at the time of the receipt Xia was aware of facts such that it was unconscionable for him to retain the monies received by him, or to apply them to the use or benefit of any person other than CEG, making Xia liable to account to CEG as constructive trustee.

137.  Mr Barlow argues Xia earned his remuneration from 2009 to 2022 in consideration for services rendered under a valid employment contract with CEG. Though Mr Barlow did not cite any authority for his argument, Mr Manzoni submits that to the extent this was in reliance on the dictum of Lord Nicholls of Birkenhead in Criterion Properties v Stratford UK Properties [2004] 1 WLR 1846 at §4, it is a proposition based upon a misunderstanding of that case.

138.  In an obiter passage it was said:

If a company (A) enters into an agreement with B under which B acquires benefits from A, A’s ability to recover these benefits from B depends essentially on whether the agreement is binding on A. If the directors of A were acting for an improper purpose when they entered into the agreement, A’s ability to have the agreement set aside depends upon the application of familiar principles of agency and company law. If, applying these principles, the agreement is found to be valid and is therefore not set aside, questions of ‘knowing receipt’ by B do not arise. So far as B is concerned there can be no question of A’s assets having been misapplied. B acquired the assets from A, the legal and beneficial owner of the assets, under a valid agreement made between him and A. If, however, the agreement is set aside, B will be accountable for any benefits he may have received from A under the agreement.

139.  The proposition of law that this has been said to expound is that a claim for knowing receipt will not arise if the assets or monies received were transferred pursuant to a valid contract: see, for example, Galleria (Hong Kong) Ltd (In liq.) & Anor v Cosimo Borrelli & Ors [2019] HKCFI 1877 §196.

140.  However, despite the reference to knowing receipt, Criterion as a whole was not chiefly concerned with it. Rather, the case was primarily concerned with the question of authority, either actual or apparent. On its particular facts, the directors of A entered into a “poison pill” agreement with B, an arrangement designed to detract a hostile takeover of A by a predator third party. The takeover never took place. However, B held A to the contract, which conferred a put option on B that allowed its interests in a partnership with A to be bought out by A on favourable terms set by B as it thought fit. The put option was exercisable only in certain situations, and one such situation arose after one of A’s directors was dismissed by its board when the latter discovered the poison pill agreement. A sued its directors and B, arguing that the contract was entered into in excess of actual or apparent authority because its directors breached their duties to A after entering into a contract that was and could not be in the commercial interests of A.

141.  The courts below had held that the issues of (1) whether there was lack of authority (i.e. whether the contract was enforceable) was the flipside of (2) whether the assets were knowingly received in breach of fiduciary duty. The House of Lords disagreed with this approach, since it elided two separate issues. It was against that context that Lord Nicholls said what he did at §4. If the issue was whether the contract was entered into for want of authority, then the ultimate issue is about that contract’s validity. Lord Nicholls was saying that under this issue questions of knowing receipt do not even begin to arise.

142.  Lord Scott of Foscote at §27 obviously agreed:

This is neither a case of ‘knowing receipt’ nor one of ‘knowing assistance’. The word ‘receipt’ in the expression ‘knowing receipt’ refers to the receipt by one person from another of assets. A person who enters into a binding contract acquires contractual rights that are created by the contract. There may be a ‘receipt’ of assets when the contract is completed and the question whether there is ‘knowing receipt’ may become a relevant question at that stage. But until then there is simply an executory contract which may or may not be enforceable. The creation by the contract of contractual rights does not constitute a ‘receipt’ of assets in the sense that a ‘knowing receipt’ involves a receipt of assets. The question whether an executory contract is enforceable is quite different from the question whether assets from which there has been a ‘knowing receipt’ are recoverable from the recipient. To confuse the two questions is likely to lead, and in the present case has, in my opinion, led, to further confusion.

143.  Lord Scott held that the case turned on the authority issue. At §30, he said:

This case turns, in my opinion, on the ‘authority’ issue. If [the directors] either had actual authority to conclude the [agreement], given by a person or body with power to confer that authority […], or, if they did not have actual authority, had apparent authority to do so, then I can see no reason why the [agreement] should not be held enforceable against [A]. If, on the other hand, [the directors] had neither actual nor apparent authority to conclude the [agreement], then the [agreement] would not be [A’s] contract. The conscionability or unconscionability of [B’s] behaviour in seeking to hold [A] to the [agreement] would in either case be irrelevant.

144.  Further, in China Metal Recycling (Holdings) Ltd (In Liq) v UBS AG [2021] HKCA 1450, the Court of Appeal distinguished Criterion. Mr Manzoni relies on this, including where at §25 it was stated:

The question that arises is whether money obtained via a separate breach of fiduciary duty and subsequently paid to a creditor pursuant to an obligation under a valid contract may be recovered from that creditor based on knowing receipt. It may in our view be argued that in such a case, the unconscionability in retaining the money and the consequent obligation to repay it do not arise from any invalidity of the transaction under which the money was paid (as envisaged in Lord Nicholls’ passage in Criterion […]), but from the separate breach of fiduciary duty through which the money was obtained in the first place and the creditor’s relevant knowledge when it received the money. It seems to us at least arguable that the Criterion principle does not have the effect of precluding a claim against the creditor for knowing receipt even where the contract is not set aside.

145.  Mr Manzoni submits that China Metal is illustrative of the distinction that in the present case compared to Criterion. However, it can be noted that on the available evidence, there is no indication that Xia was connected with or had any involvement, influence or power over his remuneration. Further, the facts of that case differ from the facts of the present case. There a separate breach of duty occurred from the director’s fraudulent conduct, of which the creditor had knowledge. Here, CEG accuses Xia of being in knowing receipt of remuneration from the same company to whom he owed his breached duties. The difference is that Xia is not a recipient separate from the company, compared to China Metal where an external creditor, not a director, was accused of knowing receipt. Indeed, knowing receipt claims would normally arise in misapplication of corporate property cases when (1) the director effects (2) transfers of company assets to (3) a third party recipient.

146.  Further, I note that the law on knowing receipt has recently been considered by the UK Supreme Court in Byers v Saudi National Bank (SC(E)) [2024] 2 WLR 237 (though neither Mr Manzoni nor Mr Barlow made any reference to it).

147.  The Supreme Court was unanimous as to the conclusion on law and result, though there was divergence as to the categorisation or nature of knowing receipt. In the case, the Supreme Court was confronted with the “single issue” of whether a claim for knowing receipt required that a plaintiff has retained an equitable interest in the assets transferred to the defendant at the time when it reached the defendant’s hands before he either transferred, dissipated or destroyed the property.

148.  On its facts, the appellant company (C) was in the process of being wound-up. A trustee (T) held some securities on trust for C. T then transferred these securities to D, the purpose of such transfers being to discharge debts T owed to D. Thus, T was in breach of his duties as trustee. The law governing the transfers was that of Saudi Arabia, which does not recognise a distinction between legal and beneficial ownership as understood under English law. Hence, D received clean and unencumbered title to the securities, particularly after registering them in its own name, even though they were transferred in breach of trust.

149.  The ultimate conclusion was that C cannot claim against D for knowing receipt, even if on the facts D had the requisite knowledge, because C ceased to have an equitable proprietary interest in the securities when they were transferred to D. The conclusion is based on two broad grounds:

(1)  There is a deep-rooted contradiction between having clean title and being under an obligation to restore the property to someone else, to look after it in the meantime, and to account for any use of the property inconsistent with those duties. If the recipient is able to say “the property is mine”, how can he or she be subject to duties designed to protect the equitable beneficial interest of someone else?

(2)  Although inadequate in answering the issue directly, the authorities lead to the same conclusion. A trust, with a concomitant splitting of legal title from the company’s continuing beneficial interest in the misapplied property occurred at the moment of the transfer which constituted the misapplication. Legal title passed to the transferee, but the equitable beneficial interest remained with the company. Therefore the company retained the equitable interest sufficient to support a proprietary claim to the property or its traceable proceeds, and a knowing receipt personal claim against any recipient who had received the property with notice of the misapplication, subject to any overriding of its equitable interest in the meantime. A successful outcome to a knowing receipt claim depends upon a contest between equitable priorities, i.e. between a continuing equitable interest of the claimant and such interest as the recipient may have acquired.

150.  Indeed, if a knowing receipt claim would impose trust-like obligations on a recipient, it might be thought redundant to do so if that “recipient” already breached similar, if not identical, duties at the outset. There is a distinction between (1) a claim based upon a pre-existing relationship recognised by equity and (2) a claim between a stranger and a plaintiff who lack any relationship. In the former, claims for breaches of duty are appropriate, and in the latter, proprietary claims are the norm, and such claims are based upon a continuing equitable interest of the plaintiff in the property before the claim is properly constituted. The defendant to a knowing receipt claim is just as much a stranger to the claimant, with no prior relationship recognised by equity, as is a recipient against whom a purely proprietary claim is made.

151.  In this case, I am not sure that CEG has demonstrated how it retained an equitable proprietary interest over the remuneration paid to Xia – not least where it has conceded that Xia’s employment contract with CEG was valid. Further, CEG’s case is not that Xia misapplied CEG’s monies under his control by somehow procuring such monies as his remuneration. Rather, CEG argues that Xia knew or should have known that the remuneration he was receiving was as a result of misstatements in the CFSs caused by his own breaches of duty.

152.  On this analysis, I have serious doubt as to whether CEG has established a good arguable case in this respect against Xia. I think likely not. But, as Mr Manzoni says, this is a small part of the overall claim.

K.  Insufficient Assets Within the Jurisdiction

153.  Xia does not contest the fact that he (1) has the proceeds from the sale of Pavilia Hill Property and (2) has several bank accounts in his name located in Hong Kong. Together they amount to something in the region of HK$42 million.

154.  I agree with CEG that given the quantum of its claim, the amount of Xia’s assets within the jurisdiction establishes the necessary insufficiency.

155.  I also agree that given Xia’s Canadian citizenship and his apparently fleeing Mainland China, there is high possibility that Xia does have assets abroad – which the Liquidators will be able to identify in due course.

L.  Risk of Dissipation

156.  Mr Manzoni advances three broad points in support of the stated risk of dissipation:

(1)  First, Xia’s attempts at selling the Pavilia Hill Property, his insistence via C&L for a prior court order, and the expedited date of completion are all indications of Xia’s attempts at realising his real estate in Hong Kong, and attempting to dissipate the resulting proceeds.

(2)  Second, subsequent to the Injunction Order, Xia has shown a sensitivity to publicising information regarding his current location. CEG submits that Xia’s fear for his safety is exaggerated and disingenuous since there is no indication that after the confidentiality orders over these proceedings have been lifted that his safety was in any way affected. CEG also submits other matters, such as Xia’s requests for a top up on his legal fees allowance and inconsistencies regarding his description of his assets in Hong Kong.

(3)  Third, Xia’s past conduct during his tenure and up to his resignation demonstrates his low commercial morality. In support, CEG points to Xia’s involvement in a scheme where deposit pledges of CEG’s publicly listed subsidiary Evergrande Property Services Group Limited worth around RMB13.4 billion were used as collateral to secure loans which were then diverted back to the parent group of CEG. This was designed to circumvent disclosure obligations under the Listing Rules of HKEX. Further, Xia’s resignation was in fact as a result of CEG’s board’s request for him to do by virtue of his misconduct and involvement in the scheme.

157.  As to Xia’s attempts in selling the Pavilia Hill Property, I agree that Xia’s conduct was indicative of an attempt at liquidating his assets in order to make it easier for him to dissipate any proceeds abroad. I note that Xia repeatedly said that the expedited sale being on the request of the purchaser. But, even if true, (1) Xia’s solicitors never sought to inform CEG/KS of the new completion date, notwithstanding the ongoing correspondence on the point, and (2) this does not necessarily mean that Xia was not seeking to dissipate his assets quickly.

158.  As for Xia’s fears for his safety, they may be exaggerated, but they may not. However, I see this as only increasing the risk of dissipation. I view Xia’s stated fear as likely fuel for attempts at realising as much of his assets as possible in liquid form in order to make it easier for him to transfer them at his pleasure.

159.  Lastly, in respect of Xia’s conduct in the scheme, I agree that is some evidence of a low commercial morality. There is a good indication from CEG’s public pronouncement dated 22 July 2022 that it in effect fired Xia by asking him to resign because of his role in the scheme. Nothing said by or on behalf of Xia significantly detracts from the risk of dissipation viewed against the circumstances as a whole.

160.  Looked at in context and with the common sense approach necessary, the material evidence as a whole seems to me to identify a solid basis for concluding that there is a real risk of unjustified dissipation of assets.

161.  I find that there is a serious risk of dissipation and that risk was evident both at and since the ex parte hearing on 24 June 2024.

M.  P’s Alleged New Case

162.  In both his written and oral submissions, Mr Barlow stresses that CEG has changed its case from what it was originally, as advanced during the ex parte hearing. The new case alleged arises from the point that CEG has conceded that Xia was not involved in the preparation of CEG’s CFSs.

163.  I disagree. This is because the difference, if any, is without significance. CEG dropping its reference to “preparing” the CFSs is neither here nor there. As I have discussed above, CEG’s case has always been directed against Xia’s duties in respect of the CFSs and their accuracy and approval, as well as the approval of the dividends on the faith of the profits stated in them. It was never about Xia’s direct participation in drawing up the statements.

164.  Overall, therefore, I hold that the Continuation Summons should succeed. In consequence, Xia’s disclosure obligations must be met, and will be reinstated. I propose to allow Xia slightly more than the 7 days for disclosure, as was suggested by CEG. But, against the chronology of these proceedings, and working on the basis that Xia and those acting for him must have contemplated the need to provide this disclosure, and so should have been gathering the necessary materials, I see no reason to grant any longer period of time.

N.  The Variation Summons

165.  On the Variation Summons, there are limited areas of dispute. This is because CEG has agreed (1) to consent to the transfer of the balance of the Pavilia Hill sale proceeds to Xia’s current solicitors, (2) conditionally to consent to an increase in the exception for legal fees incurred before 2 October 2024 to HK$2.1 million, and (3) that provision should be made for a “reasonable sum” in respect of the period after 3 October 2024.

166.  I am content to make those orders, save that I consider the exercise my discretion should permit the exception for legal fees incurred before 2 October 2024 to be in the sum of HK$2.5 million – which seems to me to take appropriate account of the fact of the amount of legal fees said to have been already incurred, and any material change in circumstances giving rise to the incidence of such fees.

167.  The main area of dispute is because CEG objects to Xia’s application for the legal fees to come out of the Pavilia Hills sale balance. In that regard, Mr Barlow submits that: (1) any concern that the Pavilia Hill sale balance is the only visible asset will fall away if Xia is obliged to provide ancillary disclosure; (2) it is reasonable for Xia to use his own funds in Hong Kong, and already in his solicitors’ hands, to pay his legal fees in Hong Kong to those same solicitors – rather than being required to source funds internationally – and that would not amount to any attempt to dissipate, or frustrate the execution of judgment; any submission proposing a condition that Xia does not have other assets available to meet the legal fees or other expenses would not apply in the case where the entirety of Xia’s assets are injuncted.

168.  I see some force in those submissions. But, on balance, it seems to me that making an order as to whether Xia can have recourse to the funds in the hands of his Hong Kong solicitors to pay his Hong Kong legal fees should nevertheless await the asset disclosure which I have ordered as a consequence of continuing the Injunction Order.

169.  Once proper asset disclosure has occurred, this matter can be revisited. I therefore adjourn this aspect of the Variation Summons sine die, with liberty to restore.

O.  The Consolidation Summons

170.  The various applications in relation to the injunction orders have been made, not in HCA 551/2024, but in HCMP 1080/2024. That was simply because of the original need to maintain the confidentiality of the HCA Action. Now that the confidentiality in respect of that action has been lifted, Mr Manzoni argues that the rationale for two separate actions has simply fallen away, and procedural efficiency points to consolidation of the two actions.

171.  The application is opposed by Mr Vincent Chen for Ms Ding, and by Mr Barlow for Xia.

172.  There can be little dispute about the applicable principles relating to potential consolidation of two actions (or making an order that the actions be tried at the same time one immediately after another), and they do not need to be rehearsed at any great length. Consolidation may be appropriate where some common question of law or fact arises in both actions, all the rights to relief are in respect of or arise out of the same transaction or series of transactions, or for some other reason it is desirable to make an order for consolidation.

173.  The main purpose of consolidation is to save time and costs, and the decision whether to consolidate or not is an unfettered exercise of case management. That permits appropriate flexibility suitable to the particular circumstances, but the Court must nevertheless be satisfied it would be proper and expedient to make such an order in the circumstances.

174.  The contest between the parties is effectively only as to the timing of a potential consolidation order.

175.  Mr Chen submits that it is not expedient or proper to order consolidation now where: (1) each of the two sets of proceedings serve their respective purposes; (2) the HCMP Action was commenced by way of originating summons so that no pleadings would ordinarily be filed, unlike in the HCA action; (3) CEG fails to identify how ordering consolidation now can save any costs for any party; (4) the parties to the proceedings are overlapping but not identical, and consolidation may increase costs for the non-overlapping parties; and (5) any proposed consolidation should only be considered and determined after the discharge applications have been determined, when there remains the possibility that the HCMP action would serve no further purpose and become irrelevant.

176.  For his part, Mr Barlow submits that: (1) the consolidation application is made only for the convenience of CEG, and certainly not for the convenience of Xia; (2) the HCMP action is self-contained; (3) consideration of consolidation should at least await, or be deferred until after, the various discharge/variation applications have been dealt with; (4) the likely effect of consolidation would only cause delay.

177.  Mr Manzoni submits that: (1) the circumstances giving rise to the existence of two actions have now fallen away; (2) there are clearly common questions of law and fact arising under the two actions, with a substantial overlap of the parties involved; (3) more efficient case management would follow from a consolidation; (4) that discharge applications have been made in the HCMP Action is only the result of the seeking and grant of injunctions in those separate proceedings, brought so as to preserve the confidentiality of the HCA Action at the time; (5) if Ms Ding were ever to cease to be a party to the HCMP Action, there would be even less basis for her to oppose consolidation.

178.  In my view, where the original basis for commencing the HCMP action – the need at the time to keep confidentiality of the HCA action – has fallen away, that point strongly in favour of consolidation. Indeed, had there been no need for confidentiality, there is no question of there having been two sets of proceedings, and the HCA action would have comprised interlocutory injunctive steps as in any ordinary case. I see no reason now to continue the separate proceedings, and it seems to me to be just and expedient for the two actions to be consolidated. I so order. I also direct that any affidavit filed in either one action shall stand as evidence in the consolidated actions.

P.  Conclusion and Orders

179.  I make the following orders:

(1)  The Continuation Summons is granted, but subject to the variations made on the Variation Summons.

(2)  The Discharge Summons is dismissed.

(3)  D2’s disclosure obligations under the Injunction Order are reinstated, and such disclosure shall be made on or before 21 February 2025.

(4)  The Variation Summons is granted to the extent as indicated above, and the remainder is adjourned sine die with liberty to restore, with no order as to costs.

(5)  The Consolidation Summons is granted by an order in terms of the summons (including as to costs).

180.  I leave it to the parties to draw up draft Orders for approval of the Court.

181.  Both the Continuation Summons and the Discharge Summons sought orders that the costs should be reserved. Nevertheless, it seems to me that the costs consequences of these two summonses can perhaps be dealt with now. Therefore, I will deal with all questions of costs of the Continuation Summons and the Discharge Summons on paper, once the parties have had the opportunity to consider this Decision. CEG and Xia should seek to agree a timetable, and page limits, for the provision of written submissions as to costs for my consideration.