SHENZHEN ZHAOTIAN INVESTMENTS CO LTD v. HENDERSON LAND DEVELOPMENT CO LTD AND ANOTHER

HCA 825/2008 & HCA 899/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

HIGH COURT ACTION NO 825 OF 2008

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J U D G M E N T

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Background

1.  Beijing Henderson Properties Co Ltd (“Beijing Henderson”) is an indirect PRC subsidiary of Henderson Land Development Co Ltd (“Henderson Land”).  The 2 aforesaid companies are collectively called “the Henderson Companies” or “Henderson”. 

2.  Beijing Henderson is the developer of the property in Beijing called Beijing Henderson Centre.  In or about 1996, there was a dispute with two purchasers, Ms Lisa Sun and Mr Sun Jian (“the Suns”).  The dispute between the Suns and Beijing Henderson arose out of their acquisition of 3 units in Beijing Henderson Centre in 1996 (“the PRC Properties”). The Suns wanted to renege from the sale and purchase agreements and commenced proceedings in the Mainland to that end.  Those proceedings and their appeals were all dismissed.

3.  However according to Beijing Henderson, the Suns created some disturbances by way of protests and similar actions.  It was eventually agreed in 2005 that the dispute was to be settled through one Strait Peaceful Reunification Foundation Ltd (“Foundation”) and its associated company, Tian Li (HK) Trading Ltd (“Tian Li”), acting as intermediary as follows :

(1)  By two agreements stated 2.10.2005, Tian Li agreed to acquire the PRC properties from the Suns.

(2)  By two Properties Settlement Agreements dated 8.12.2005, Beijing Henderson agreed to provide US$ 2,175,872.63 (“the Advance”) (equivalent to HK$ 16,892,275.99) to Foundation and Tian Li for the latter to acquire the PRC Properties.  It is expressly provided that Foundation and Tian Li would not be required to repay the Advance if they assign the PRC Properties to Beijing Henderson without consideration when called upon to do so. 

4.  It is not disputed that Tian Li did not acquire the PRC Properties from the Suns in accordance with the Property Settlement Agreements. Nor did the Foundation or Tian Li repay the Advance.  Eventually Beijing Henderson had to re‑purchase the PRC Properties from the Suns by paying them US$ 660,942.52, which were completed in 2007 and 2008.  

5.  Meanwhile, the Beijing Office of the State Administrations of Foreign Exchange (“SAFE”) undertook an investigation into Beijing Henderson in 2006 for alleged violation of foreign exchange regulations arising from the accounting treatment and remittance of revenue from Hong Kong to the Mainland.  It was actually the second investigation by SAFE, the first one was completed in September 2005 which resulted in a fine of RMB 6,324,000 (around 0.6% of the offshore funds in question).

6.  It is common ground that since around 2005, Beijing Henderson had engaged Foundation and Tian Li to provide business consultancy services relating to its PRC business, for which there were remunerated. Such services included :

(1)  the aforesaid settlement arrangements with the Suns; and

(2)  assistance to Beijing Henderson in relation to the 2005 and 2006 Investigations by SAFE. 

7.  On the advice of the Foundation and Tian Li (represented by a Mr David Lam and Mr Zhang Jinlin), Beijing Henderson (represented by one Mr Au Siu Kee, Alexander) agreed and instructed Foundation to approach Mr Tian Chenggang who is the son of the former Vice‑Premier of the State Counsel, Mr Tian Jiyun, for assistance.

The claim in HCA825 /2008

8.  Shenzhen Zhaotian Investments Co Ltd (“Zhaotian”), of which Mr Tian was said to be the chairman, alleges that there was an oral agreement made with Mr Au (representing both Henderson Companies) over a luncheon at the Grand Hyatt Hotel on 1.11.2006 for payment of consultancy fee of $43 million for services to be rendered in the 2006 Investigation, ie :

“lobbying and persuading the relevant PRC authorities to minimize or reduce the amount of the fine which might be imposed on [Beijing Henderson] for having been found to have acted in beach of the PRC Forex Regulations”.  (825 ASoC §23 [A1 /27‑29])

9.  Thus, Zhaotian’s case is on the alleged oral agreement alone.  There is no claim for any quantum meruit. 

10.  The Henderson Companies denied that there was any agreement over Zhaotian’s fees whether as alleged or at all. 

11.  On 22.11.2006, SAFE issued an Administrative Penalty Notice (行政處罰告知書), imposing a penalty of RMB 2,330,000 (around 0.6% of the total amount of foreign exchange in the subject matter of the 2006 Investigation), followed by an Administrative Penalty Decision (行政處罰決定書) dated 4.12.2006 to the same effect.  

12.  Thereafter by a letter and receipt both dated 11.12.2006, Zhaotian indicated that it “intended…to charge” (擬…收取) a consultancy fee of $43,000,000.

The claim in HCA 899/2009

13.  Beijing Henderson claims for the return of the balance of the Advance. They said that they only found out much later that Foundation / Tian Li alleged that they had paid $12,966,000 to Zhaotian.  In fact, Tian Li first alleged that it had used the Advance to pay Zhaotian on 12.9.2007 but without giving any particulars.  On 18.4.2008, Zhaotian’s former solicitors wrote enclosing a draft writ claiming $ 30,034,000 only.  This precise figure was only disclosed in its Statement of Claim filed on 2.7.2008, being the sum reached by $43 million minus $12,966,000.

14.  Thus Foundation / Tian Li alleged that there was no breach of the Property Settlement Agreements and they need not repay the Advance.  They claim to have used $12,966,000 of the Advance to pay Zhaotian, allegedly on Beijing Henderson’s instructions given through one Mr Ho Wing Fun on 30.11.2006.

15.  However Henderson Companies said Mr Ho had already stepped down from his offices in Henderson hand and its associated companies earlier on from 1.7.2006.  Between 1.7.2006 and 30.6.2008, Mr Ho was only a consultant of Henderson Real Estate Agency Ltd (“Henderson Real”) in relation to a project in Guangzhou owned by 廣東嘉星房地產有限公司 (“Jiaxin”).  Thus Beijing Henderson said Mr Ho has no authority to direct Foundation / Tian Li to pay $12,996,000 out of the Advance to pay Zhaotian.

The issues

16.   (1)     In HCA825 /2008, Zhaotian’s only cause of action is the alleged oral agreement reached between Mr Au and Mr Tian at the luncheon on 1.11.2006, whereby Mr Au allegedly on behalf of Henderson Land /Beijing Henderson agreed to pay Zhaotian $43 million for the latter’s assistance in the 2006 Investigation, with no condition or caveat as to the result.

(2)     In HCA899 /2009, the central issue is whether Mr Ho is authorized by Beijing Henderson to direct Foundation and Tian Li and pay $12,996,000 to Zhaotian.

17.  Henderson’s case is as follows :

(A)  Under HCA825 /2008 :

(1)  There was no agreement, oral or otherwise, reached between Henderson Land /Beijing Henderson and Zhaotian for the payment for $43 million.  Further Mr Au only represented Beijing Henderson and not Henderson Land in his dealings with Mr Tian /Zhaotian.

(2)  It is denied that Mr Ho had instructed the payment of $12,996,000 to Zhaotian; if he did purport to do so, he had no authority to act on behalf of Beijing Henderson or the Henderson group.

(3)  Since the alleged oral agreement is the only basis of Zhaotian’s claim, it should repay $12,996,000 to Beijing Henderson.

(B)  Under HCA899 /2009 :

(1) Foundation and Tian Li have breached the Property Settlement Agreements in failing to acquire and assign the PRC Properties to Beijing Henderson.

(2) Foundation and Tian Li have further breached the Property Settlement Agreements by wrongfully applying part of the Advance to pay Zhaotian without Beijing Henderson’s knowledge or consent.

(3) Again, Henderson denied that Mr Ho had instructed the payment of $12,996,000 to Zhaotian; if he did purport to do so, he had no authority to act on behalf of Beijing Henderson or the Henderson group.

(4) Thus Foundation and Tian Li are liable to repay the Advance less the sums actually paid to the Suns in the sum of $525,000.00 and tax of $349,335.00, ie $874,335.00 totally paid.  From the total sum of the Advance $16,892,275.99 paid to Foundation / Tian Li, Beijing Henderson claims that they should repay $16,017,940.99.

Witnesses

18.  For Zhaotian, Foundation and Tian Li, they called three witnesss : Mr Zhang, Mr Tian and Mr Ho.

19.  For Henderson, they called Mr Au the Executive Director and Chief Financial Officer of Henderson Land, and Ms Candy Chan Lin Kam, the Deputy Accounts Manager of Henderson Land.

20.  Mr Jat Saw Tong SC, appearing with Ms Eva Sit, Counsel for Henderson, submitted that none of the three witnesses, namely Mr Zhang, Mr Tian, and Mr Ho is credible.  There are many inconsistencies in their evidences and the evidence should be rejected in their entirety.  I accept Henderson’s submissions which are summarized herein below.

Zhang

21.  Mr Zhang is a director of Tian Li and he gave evidence as the witness for Tian Li and Foundation in respect of all the issues in these 2 proceedings.  He made two detailed witness statements.  Mr Lam is the chairman of Foundation, but he only made a short confirmatory statement which contains no additional substances.

22. (1) Mr Zhang’s evidence was selective.  He could not remember practically all of the events other than the 1.11.2006 luncheon, on the basis that they took place a long time ago.  There were in fact hundreds of the standard answers “it happened too long ago, I cannot remember”, eg when asked when Mr Lam informed him what was discussed at the meeting on 15.9.2006, he repeated his standard answer ten times.

(2) In spite of his general inability to remember most of the events, he claimed that he could clearly remember what was discussed on 1.11.2006 over that luncheon meeting, and he claimed that his recollection is reliable.  However his version is completely different from the version given by Mr Tian in his oral evidence.  Mr Tian changed his version about the oral agreement reached by his whispering to Mr Au that the fee would be $43 million and Mr Au nodded his head without saying a word, a version even Zhang did not suggest in his evidence.

(3) As an alternative to “cannot remember”, he repeatedly claimed that he was unable to give answers to those questions as he was not responsible for those matters and had no personal knowledge.  Even though he deposed to great lengths and in detail about these events in his witness statements (eg he claimed he knew nothing about the Property Settlement Agreements but he was able to say in his 1^st witness statement at paragraph 32 that the documents were handed to them by Mr Ho for signature and they returned the same to him after signing).

(4) He left out the first meeting between Ms Candy Chan and Mr Tian on 26.9.2006 in his 1^st witness statement.  When cross‑examined as to why he left this important meeting out in his 1^st witness statement, he claimed that he could not remember or that he was confused because he was having a flu or he was confused by those questions put to him.  Eventually he lost his temper on several occasions and criticized Henderson and in particular Mr Lee Ka Kit (“Mr Lee Junior”).  He then after lunch apologized to the court that he should not criticize Mr Lee Junior as he is a patriotic entrepreneur in the Mainland.

(5) He would make up stories as he was giving evidence.  One such example is his allegation that Mr Lam had “working records” which Mr Zhang himself consulted when he prepared his 2^nd witness statement.  When questioned on the lack of disclosure, he immediately changed the story alleging that Mr Lam had some “information” which Mr Lam himself consulted before providing instructions to him for insertion into his 2^nd witness statement.  No disclosure for such “working records” or “information” has been made.

(6) He was unforthcoming when giving evidence.  He refused to provide direct answers even to simple questions, eg whether he was appointed by Beijing Henderson to liaise with SAFE in the 2006 Investigation.  Instead he went on talking about events which were not pertinent to the questions asked and he had to be reminded to answer the questions on many occasions.  Counsel for Henderson set out numerous deficiencies in his oral evidence and their transcript references in their Appendix 1.

23.  I accept Henderson’s submissions.  I consider that Mr Zhang’s evidence is self‑contradictory, highly selective, and self‑serving. His evidence is clearly unreliable and I would reject his evidence.

Mr Tian

24.  The next witness is Mr Tian and he is witness for Zhaotian on his claim on the alleged oral agreement on 1.11.2006.  Henderson’s Counsel submitted that he is a most unconvincing witness for the following reasons.  I accept their submissions which are summarized as follows :

(1)  Throughout Mr Tian’s cross‑examination, he was swerving around in his chair, turning his back to the bench and bar table and looking around all the time, while avoiding giving straight answers to the questions.  He tried to project an air of superiority and “talked down” on Counsel all the time.  I agree that his attitude was contemptuous and disrespectful to the Court.

(2)  In his evidence, he simply said what he wanted to say, paying no regard to the questions put to him.  Although he claimed that he was willing to be helpful, his behavious during the course of cross‑examination was not so. 

(3)  He refused to provide straight answers to the questions.  Instead he would employ various diverting tactics (eg lecturing on the meaning of Chinese words or ask rhetorical questions to avoid answering the quesitons).

(4)  Mr Tian was also making up stories as he gave evidence.  One of the most notable examples is the suggestion that he had “working records” which he had consulted, presumably for the purpose of increasing the credibility of his “recollection.”  But when questioned, he switched to say it was “not in written form”, and switched again to his “desk diary” which he allegedly discarded on a monthly basis.  One would wonder how he could consult those monthly pages of his desk diary when he had discarded them on a monthly basis! Then he changed further to certain “documents”, namely letters written to the Guangdong Authorities and a copy of the 19.4.2007 letter which he claimed to have a yellow “post‑it note” stuck onto it with a date, all allegedly kept in a safe in Shenzhen, which only he alone could open.  He finally referred to his “personal diary”.  Although he promised to retrieve and disclose those documents, in the end he was only able to produce the original of the letter dated 5.10.2006 from Mr Lee Shau Kee, and a hand‑written document purporting to refer to discussions with SAFE.  Plainly there was no :

(a)   working records,

(b)  letters to the Guangdong Authorities,

(c)   post‑it note,

(d)  personal diary.

(5)  He was also changing his evidences and the basis of his claim on the most significant part of his case, ie the alleged oral agreement on 1.11.2006.  It was his pleaded case and his evidence in witness statement all along that Mr Au had orally agreed to pay Zhaotian $43 million. However he changed his evidence and alleged for the first time in cross‑examination that the alleged agreement was made by his whispering 43 million to Mr Au and Mr Au nodded without saying a word‑a version that even Mr Zhang did not suggest in his testimony.  Mr Zhang said he really heard Mr Tian raised the subject matter of fee in the sum of $43 million and Mr Au said he agreed.  This destroyed completely Zhaotian’s case on the agreed fee of $43 million at the Grand Hyatt Hotel over the lunch meeting on 1.11.2006. 

(6)  Mr Tian’s evidence is full of inconsistencies between his witness statements, the documents, and the new allegations he sprouted in the cross‑examination. There were also many inconsistencies between his and Mr Zhang’s oral evidence which Mr Tian was unable to explain.  Counsel for Henderson also summarized numerous instances of deficiencies and change in evidence of Mr Tian and set them out in their Appendix 2 of their submissions.

25.  By reason of the aforesaid matters, I accept the Henderson’s submissions that Mr Tian’s evidence is unsatisfactory.  It is plainly incredible and unreliable and should be rejected.

Mr Ho

26.  In respect of Mr Ho’s evidence, it is only relevant to the issue of those 3 letters said to be created in November (ie dated 7.11.2006, 15.11.2006 and 30.11.2006) and his purported authority to act for Beijing Henderson.

27.  Counsel for Henderson submitted that Mr Ho is also a highly unreliable witness and his evidence should be rejected.  I accept their submissions.  The submissions of Henderson are summarized herein below :

(1)  In the first place, Mr Ho was by no means an independent witness. As it transpired, his Statutory Declaration was most likely prepared by Zhaotian /Foundation’s solicitors because of the similarity in the documents footer, “YF” being the initials of the handling partners in Messrs Fan Wong Tso.  Mr Ho himself said that he had not retained solicitors, given instructions or paid the legal fees for preparing the Statutory Declaration or the letters of King and Wood allegedly sent on his behalf. However when questioned on how those documents came to be prepared, he coyly alleged that he could not remember as he was an old man.  This is incredible and disingenuous.

(2)  It is also plain that he made up stories as he was giving evidence, most notably his allegation (which only came out in his oral evidence) that before he wrote the 7.11.2006 and 30.11.2006 letters, he had in fact spoken to and was expressly told by Mr Lee Junior to do so.  When he was further cross‑examined, his allegations were exposed :

(a)   in relation to the 30.11.2006 letter, it was suggested to him that Mr Lee Junior was out of town between 16.11.2006 and 3.12.2006, and so could not have discussed with Mr Ho in Mr Lee Junior’s office as alleged by Mr Ho.  Mr Ho immediately then changed his evidence to the allegation that he actually phoned Mr Lee Junior for his direction.  Counsel for Zhaotian submitted that there was no direct evidence to support the fact that during the relevant period between 16.11.2006 and 3.12.2006, Mr Lee Junior was out of town.  It is true.  However when confronted with the suggesting that Mr Lee Junior was out of town, Mr Ho immediately changed his evidence from direct face to face meeting with Mr Lee Junior for instructions to instructions given over the telephone. 

(b)  Further Mr Ho was completely unable to explain why such an important matter of having a direct instructions from Mr Lee Junior, was not included in his Statutory Declaration.  He was only able to say after a very long pause lasting minutes that he wrote the Statutory Declaration at home in a hurry and did not think clearly.  But this is again contradicted by his own evidence that it was prepared by solicitors, and he was only told of its contents when he attended the solicitors’ office to sign it. 

(3)  His evidence was also internally inconsistent and shifty, which bears testimony to the fact that he was making things up as he went along.  One such instance is his allegation that he was told that Henderson found Zhaotian’s fees $43 million to be too expensive, (which supposedly led to his 7.11.2006 letter asking for reduction in fees).  However when asked about the source of his information, he first said Mr Au then changed to Mr Candy Chan who told him that Mr Au found it too expensive, then changed to Mr Lee Junior and then changed yet further to “some colleagues” had said Mr Au found it too expensive. 

(4)  He was also unable to explain why :

(a)   even though he accepted he had an office in Henderson and the service of a secretary, he would have to hand‑write 7.11.2006 and 30.11.2006 letters at home on bits of random paper; and

(b)  having accepted that :

(i)   he was not involved in the 2006 Investigation,

(ii)  Ms Candy Chan did not report to him regarding the 30.8.2006 meeting which he said was normal since he had already retired,

(iii)   he took no further action after his 7.11.2006 letter met with complete silence since he said it was Mr Au’s responsibility to handle the 2006 Investigation,

(iv)   there would be an one‑off report from Ms Candy Chan to him about the 1.11.2006 luncheon, and he also did the one‑off act of taking upon himself to inquire with Foundation on deduction of fees.

(5)  His explanation on the suspicious features of his 2 hand‑written letters of 7.11.2006 and 30.11.2006 was also unconvincing which will be more particularly discussed later herein below.

28.  From time to time, throughout Mr Ho’s evidences, he had lost his temper, he raised his voice and scolded Counsel for asking him “irrelevant” questions and in a manner unacceptable to him.  He tried to rely on his age and to throw his weight about and when he was cornered with difficult and unanswerable question, he lost his temper and declined to answer the question.  He ended up his evidence by saying that he is a person of short temper; he is a ferocious person (惡人) which is so well known throughout the Henderson Group of Companies.  He exhibited no shame of his notorious reputation in the company.

29.  Counsel for Zhaotian submitted that Mr Au and Ms Chan’s adverse comments of Mr Ho are unwarranted and examples given by them purportedly to cast doubt on his integrity are not only without evidentiary basis or purely hearsay (that he had obtained loans from other employees), but are also fully insufficient to cast doubt upon the truthfulness of his evidence to this Court.  Further and more significantly, such allegations were never put to Mr Ho in cross‑examination and he was not given any opportunity to respond to the same. 

30.  However, as submitted by Counsel for Henderson, it is not open to Foundation and Tian Li to submit that the evidence concerning Mr Ho’s lack of integrity was never put to Mr Ho in cross‑examination.  Such evidence actually only arose from Mr Au’s and Ms Candy Chan’s cross‑examination after Mr Ho had completed his evidence.  It would be up to Foundation / Tian Li to recall Mr Ho if they deem fit to do so.  In any event it was Mr Anthony Chow SC for the other 3 parties, who asked Mr Au and Ms Candy Chan about Mr Ho’s integrity.  Having asked the question and got an answer from Mr Au and Ms Chan, Mr Chow cannot complain about the answer he got from the witnesses. 

31.  In the end, I accepted Henderson submission that Mr Ho is also an unreliable witness and his evidence should also be rejected.

Mr Au & Ms Candy Chan

32.  On the contrary, the Henderson’s witnesses Mr Au and Ms Candy Chan, both gave evidences in a forthright manner.  Mr Au is a gentle and well‑mannered man and he spoke softly but firmly.  Ms Candy Chan also gave evidence in a courteous and careful manner.  Both of them would not say anything which is not within their personal knowledge and if it is so, they would state the source of their information.  Their answers were completely consistent with the documentary evidence, which will be explored more fully in a moment.  Despite very lengthy and able cross‑examination of Mr Anthony Chow SC for the other parties, their evidences remained consistent and unshaken.

33.  This is so, in spite of the fact that Counsel for Zhaotian submitted that it is rather “suspicious” that Ms Candy Chan said she did not prepare any minutes, records or reports in relation to those meetings on 7.9.2006, 15.9.2006 and 1.11.2006.  However it was, as submitted by Counsel for Henderson, never put to her that she in fact had those records but suppressed them.  Further Zhaotian had also failed to mention or address Ms Candy Chan’s explanation as to why she had no written records of the luncheons :

“(a)    答：有部份有，我要即係睇下嗰個環境容唔容許，即係我可以寫低一啲嘢囉，若果有—即係我又—容許到我寫低一啲嘢，咁我返嚟又有時間，或者我覺得好重要，我就會正式即係打報告，如果唔係，我就擺低，就等到—即係一向以嚟工作都係話，等到即係要recall番嗰時，就「抄」番、睇番咁樣囉。[T8 / 434O‑Q]

(b)     答：係，因為出去食飯，通常我就唔會即係咁樣，即係好少會咁樣寫低囉。係，食飯—通常食飯嗰陣時都係好專注做食飯，即係嗰啲嘢唔會有寫低。[T8 / 435H, N‑P]”

34.  In the end I accept that both Mr Au & Ms Chan are credible and reliable witnesses and I would accept their evidence in full. I shall now deal with the main issue between Zhaotian and Beijing Henderson first.

Any Oral Agreement as Alleged ?

35.  As aforesaid, Zhaotian pleaded case is that Mr Au on behalf of both Henderson Companies agreed to pay Zhaotian a consultancy fee of $43 million in return for services agreed to be rendered by Zhaotian, namely lobbying and persuading the relevant PRC authorities to minimize or reduce the amount of fine which might be imposed on Beijing Henderson, and to that end, to try to lobby and persuade them to reduce the fine to approximately 0.6% of the total amount.  In short, the alleged consultancy fee was payable regardless of whether Zhaotian actually succeeded in obtaining a reduction. 

36.  Henderson is at pain to point out that it is not, and has never been, its case that an oral agreement had been reached between Mr Au and Mr Lam in September 2006 to the effect that no fees would be charged for services to be rendered by Mr Tian.  Mr Au’s evidence is simply that Mr Lam had told him on those two occasions that no fees would be payable.  In any event Mr Au has made clear that notwithstanding Mr Lam’s intimation, it is not the Henderson Companies’ practice to take the benefit of services without payments, and that they were willing to consider the question of paying some fees and left the matter open for discussion.  That was why Mr Au repeatedly requested Ms Candy Chan to arrange a meeting with Mr Tian after Zhaotian indicated that they would charge a fee of $43 million.  However Mr Tian did not respond to the invitation to discuss the matter in person.  This Court is of course not concerned with any case of services rendered on quantum meruit.

37.  I accept Henderson’s submissions that Zhaotian has failed to discharge his burden of proof by reason of the following factors, namely that :

(I)  its own evidence conflicts with and does not support its pleaded case;

(II)   the documentary evidence goes no where to support its case;

(III)   the inherit probabilities are against the oral agreement alleged by Zhaotian; and

(IV)  the numerous inconsistencies in its evidence which renders its evidence completely incredible and unreliable.

(I)      Evidence inconsistent with pleaded case

38.  The oral evidence given by Mr Tian conflicted with Zhaotian’s pleaded case in two material respects :

(1)  Mr Tian claimed, in answer to a question from the Court, that the alleged oral agreement was to the effect that if he could not successfully resolve the 2006 Investigation, no fee would be payable.  This is fundamentally different from the pleaded case that the $43 million fee would be chargeable regardless of outcome.

(2)  His new story of how the alleged agreement was reached by his whispering to Mr Au and Mr Au nodding to him is completely inconsistent with Zhaotian’s pleadings and the witness statements. 

39.  Consequently, Zhaotian’s own evidence does not support its own pleaded case and as such its case must be rejected.

(II)     Documentary evidence does not support pleaded case

40.  The documentary evidences relied upon by Zhaotian either :

(a)   do not show that an oral agreement had been reached as alleged, or

(b)  their veracity is questionable in the light of the undisputed facts, or

(c)   were generated long after the event and entirely self‑serving.

41.  In the first place, those documents Zhaotian relies upon are inconsistent with and do not support its pleaded case.  They either made no reference whatsoever to the allegation that an oral agreement had been entered into on 1.11.2006 or asserted that consultancy fee would only be charged if Zhaotian actually succeeded in reducing the fine to 0.6%, which was not the oral agreement as pleaded.

42.  A summary of the following eight documents set out by Counsel for Henderson would support the aforesaid contention, mainly :

	Date	Document
(1)	7.11.2006	Mr Ho’s handwritten letter to Foundation [C2/111] It stated that Mr Tian “asked for” $43,000,000, not Mr Au had agreed to pay that amount.  Mr Ho’s evidence was that this was what Ms Candy Chan told him [T6/225S‑U].
(2)	11.12.2006	Letter from Mr Tian to Mr Au [C2/130] It stated that Zhaotian “intended to charge” a consultancy fee and the amount would be based on the receipt to be provided, not an agreement had been reached or the amount payable.  The only answer given by Mr Tian was that “intend to charge” has the same meaning as “agreement” [T5/181A‑P].  This must be rejected.
(3)	23.3.2007	Letter from Zhaotian to Beijing Henderson and Mr Au [C2/139] It only asked for immediate release of consultancy fee, with no mention of any agreement reached.
(4)	12.6.2007	Letter from Zhaotian to Mr Au [C2/141‑143] The basis of Zhaotian’s alleged entitlement to charge consultancy fee was said to be its letter of 28.9.2006 [C2/104], which was addressed to Foundation and Tian Li, and both Mr Zhang and Mr Tian confirmed they were not aware of it having ever been provided or communicated to Henderson [T3/72V‑73H; T5/160E‑G].  There was no mention of any agreement reached on 1.11.2006.
(5)	12.9.2007	Letter from Tian Li to Mr Lee Junior [C2/144] It stated that Mr Au had agreed to pay consultancy fee after the 2006 Investigation was resolved.  In other words, the obligation to pay consultancy fee was tied to the success of Zhaotian’s actions, which was not the oral agreement pleaded.
(6)	8.4.2008	Letter from Tian Li to Mr Colin Lam [C2/179] It merely referred to the letter from Zhaotian in March 2007; offered no support for any agreement.
(7)	23.5.2008	Letter from Mr Tian to the Central Government Liaison Office [C3/55‑59] It alleged that consultancy fee would only be payable if Zhaotian actually succeeded in resolving the 2006 Investigation, which fee would be applied to charitable purposes.  This was not the oral agreement as pleaded.
(8)	7.7.2008	Letter from Fan Wong & Tso §§12 & 15 [C3/61‑67] It alleged that consultancy fee would only be payable “on successful resolution of the 2006 investigation”; again offered no support of the oral agreement as pleaded.
	The 1st Underlined document is covered by Notices of Non‑admission

43.  Secondly, the veracity of the following 6 documents is highly doubtful as submitted by Henderson.  I accept the submission and that Zhaotian, Foundation and Tian Li have failed to prove that they are genuine documents created on the date they bore by the following reasons :

	Date	Document
(1)	25.9.2006	Letter from Foundation to Zhaotian [C2/103] (1) Mr Zhang’s evidence is that there was no mention of fees at the meetings with Mr Au on 7.9.2006 and 15.9.2006 [B1/22/§13; B1/33/§23; T2/47B‑H], in which case it is questionable why Foundation would say it would pay Zhaotian’s expenses.  Mr Zhang was unable to offer any explanation and only said it was Mr Lam’s decision, however Lam does not give evidence.  [T2/57G‑M]. (2) In any event Foundation’s stance is inconsistent with the later query with Mr Ho dated 15.11.2006 whether it should pay Zhaotian’s expenses and fee.  Again Mr Zhang was unable to offer any explanation for this [T2/60M‑61N; T3/106D‑F].
(2)	28.9.2006	Letter from Zhaotian to Foundation [C2/104] (3) Mr Tian met Ms Candy Chan and Mr Zhang in Beijing on 26.9.2006 but there was no mention of that meeting in this letter. (4) It stated that consultancy fee would only be charged if the 2006 Investigation could be successfully resolved, to be discussed after resolution with Foundation, not Henderson. (5) Zhaotian asked for prepayment of operating expenses but this was inconsistent with the undisputed fact that (i) Foundation did not thereafter ask Mr Au (in the meeting on 4.10.2006) whether this should be acceded to; (ii) the first time Foundation allegedly asked for directions on payment of operating expenses was 15.11.2006 from Mr Ho, notwithstanding there were 3 meetings with Mr Au between 28.9.2006 and 15.11.2006 and the issue was never raised there; (iii) as a matter of fact no operating expenses had ever been paid to Zhaotian. (6) Zhaotian did write to Mr Au direct thereafter (on 12.10.2006 and 16.10.2006) ‑ if it were minded to charge a fee it made no sense not to write to Mr Au direct.
(3)	7.11.2006	Mr Ho’s handwritten letter to Foundation [C2/111] (7) Contains numerous suspect features – see further discussion herein below. (8) Mr Ho’s evidence was that his alleged authority came from express instructions of Mr Lee Junior on that occasion ‑ but such allegation is inconsistent with his Statutory Declaration §13 [C3/104] that he had authority generally to deal with Foundation. (9) If one takes his assertion in Statutory Declaration §13 [C3/104] that he had authority generally to deal with Foundation, query why he would be meddling in the affairs concerning the 2006 Investigation, which he accepted to be the responsibility of Mr Au. (10) In any event the letter said Mr Tian “asked for” $43,000,000, not Mr Au had agreed to pay that amount.
(4)	15.11.2006	Tian Li’s letter to Mr Ho [C2/112] (11) No mention of Mr Ho’s alleged 7.11.2006 letter ‑ since Mr Ho already asked Foundation to help negotiate a reduction of fee, it was inconceivable that Mr Ho’s request would not be referred to (even if only to decline to assist).  Mr Zhang was unable to offer any explanation and simply said it was Mr Lam’s responsibility not his [T3/103C‑105F]. (12) By then Mr Lam and Mr Zhang had already met Mr Au and knew that he was in charge of the discussions with Zhaotian. It is inexplicable why they would choose to write to ask Mr Ho instead. (13) Inconsistent with allegation in [B1/38‑39/ §§53‑54] that matters concerning payment was always done orally with Mr Ho.  (14) If Mr Au had actually promised $43,000,000, funds in Tian Li’s possession would clearly be insufficient ‑ if it were to pay on Beijing Henderson’s behalf, one would expect it to ask for the provision of further funds, which it did not.
(5)	30.11.2006	Mr Ho’s handwritten letter to Tian Li [C2/120] (15) Contains numerous suspect features – see further discussion herein below. (16) By then Tian Li knew that SAFE had already imposed a 0.6% fine and Mr Tian was directly in touch with Mr Au.  It is therefore inexplicable why Tian Li would not have clarified with Mr Ho or Mr Au on why Beijing Henderson should not make full payment direct upon receipt of this letter.  Mr Zhang claimed he had not seen this letter before [T1/6B‑C].
(6)	19.4.2007	Letter from Zhaotian to Foundation [C2/140] It alleged that Beijing Henderson failed to pay the “promised” consultancy fee, but :‑ (17) by then Zhaotian should have received $12,996,000 from Tian Li ,so it could not have been the case that no payment had been made; (18) although Zhaotian demanded Foundation to negotiate with Beijing Henderson, Foundation did nothing afterwards until it was prompted by a different request for information in September 2007.
	All the above 6 documents are covered by Notices of Non‑admission

44.  Thirdly the letters from Zhaotian or his solicitors, in particular those written in 2007 and 2008 were not contemporaneous documents and were written after dispute had arisen between Beijing Henderson and Zhaotian (eg in January 2007, when Mr Tian made it clear that he wanted to be paid and Beijing Henderson refused to do so).  They were self‑serving and little weight can be placed on them.

45.   Fourthly, insofar as Zhaotian is relying on the “Request for instructions” memo from Mr Au to Mr Lee Junior dated 12.1.2007, it is clear that it does not support the alleged oral agreement either.  Nothing in the memo suggests that Mr Au/Henderson had agreed to pay Zhaotian $43,000,000. Rather, reading the memo as a whole clearly shows that Mr Au was seeking instructions from Mr Lee Junior as to whether they should take the practical approach ‑ given Zhaotian had made a request for fee (not suggested by Zhaotian to be based on any agreement at the time) and Beijing Henderson still needed its help to finalize the 2006 Investigation, whether they should offer to pay Zhaotian something to secure its continued assistance.

(III)    The Inherent Probabilities

46.  As submitted by Counsel for Henderson, the alleged oral agreement as pleaded is inherently improbable for the following reasons :‑

(1) It was an out‑and‑out payment, with no reference to or guarantee on performance.  In other words, as long as Mr Tian had done some work (which Mr Au or Henderson has no means to verify), he would be entitled to the full $43,000,000, even if eventually SAFE imposed a fine well in excess of 0.6%.

(2) It was a substantial sum, far in excess of what Beijing Henderson had previously paid /incurred for the 2005 Investigation, which should be no more than $5,073,621.74.  One must also take into account the fact that Beijing Henderson had already paid at least $3,000,000 for the 2006 Investigation.

(3) By then, Mr Au only joined Henderson recently.  It was not suggested that he occupied any special position in the hierarchy within Henderson or that he reported directly to Mr Lee Senior rather than the board.  He had vast experience in the business sector as a banker.  His evidence is that his approval limit was only $1,000,000.  As evidenced by the “request for instructions” memo dated 12.1.2007, Mr Au had to and did seek the direction of his superiors on matters exceeding his approval limit.  Such approval limit is, according to Ms Candy Chan, so widely known in Henderson.

(4) Given the above, it is difficult to see, even if Mr Tian did propose orally a fee of $43,000,000 on 1.11.2006, how Mr Au could have agreed to it on the spot, when there was not even any previous intimation from Mr Tian on fees or the proposed amount on which he could have taken instructions.  If a proposal had been put to him, one would have expected him to say that he would have to take instructions and revert.

(5) Further, Mr Au was accompanied by his subordinates, in particular Ms Chan, on 1.11.2006. It is most unlikely that he would have agreed to the request for $43,000,000 in these circumstances, since his subordinates would have known that he could not have decided on this matter on his own and had to report to his superior.

(6) The seating arrangement was such that, in the clockwise direction, inter alios Mr Zhang, Mr Tian, Mr Au, followed by Ms Candy Chan.  In such an arrangement for these four persons, if according to Mr Tian, he only whispered to Mr Au, it would be difficult for Mr Zhang to hear it.  If Mr Zhang heard it, Ms Chan, being in the direction of Mr Tian’s speaking to Mr Au, would have heard it also.  Ms Chan categorieally denied hearing any discussion on fees or the amount thereof.  She also said clearly that, had Mr Tian raised the amount of $43 million for the consultancy fee, she would certainly have reminded Mr Au that he required approval from Mr Lee Junior or Senior, if Mr Au had rashly agreed to such an amount.  Such a rash decision on such an enormous amount is definitely uncharacteristic of Mr Au who gave me an impression that he is a very careful man.

(IV)    The internal inconsistencies

47.  The inconsistencies in the documentary evidence, as submitted by Henderson, are also numerous.  The more obvious one is that Mr Zhang’s allegation in his 1^st witness statement that Foundation was only informed of the 2006 Investigation on 7.9.2006 by Mr Au.  Later he reneged to say his involvement was minimal. 

48.  The aforesaid was contradicted by :

(1)  Beijing Henderson’s letter dated 13.3.2006.

(2)  Beijing Henderson’s letter dated 20.3.2006 which was drafted by Mr Lam himself.

(3)  Foundation’s letter of 10.5.2006 and 5.6.2006 demanding $3 million.

(4)  Mr Zhang accompanied Ms Candy Chan to meet SAFE on 30.8.2006, which of course was not mentioned in Zhang 1^st witness statement.

49.  Mr Tian said he made initial contact with SAFE officers and other individuals between 25.10.2006 and end of October 2006.  This was contradicted by Mr Tian’s letter dated 12.10.2006. 

50.  Mr Tian said he learnt from his “initial contact” that SAFE intended to impose a 34% penalty and he therefore used this as the basis for his computation for $43 million.  This however was contradicted by his letter of 12.10.2006 where he mentioned 30% penalty and the aforesaid Fan Wong Tso’s letter of 7.7.2008.

51.  Mr Tian alleged the oral agreement reached was to pay $43 million but this was contradicted by Zhaotian letter on 11.12.2006 which only said that Mr Tian “intended to charge” a consultancy fee.

52.  In the meeting on 9.1.2007, Foundation said they only discuss Jiaxin, but this was contradicted by the minutes at Bundle C2/133.

53.  Zhaotian criticized Henderson for the alleged lack of response to Zhaotian’s letters in 2007.  However Mr Au explained that there were in fact attempts made upon receipt of some of these earlier letters to get in touch with Mr Tian and to meet him in person to discuss.  At that time there was in fact no allegation from Mr Tian that he had reached an oral agreement with Mr Au on 1.11.2006.  He just imposed a consultant fee of $43 million and asked Henderson to pay the same.  Strangely enough, Mr Tian did not respond to any of these approaches to have a meeting to discuss the amount of fees payable. 

54.  Further, as to the proper party to alleged oral agreement :

(1)  Zhaotian named both Henderson Land and Beijing Henderson as parties, originally on the basis of an alleged express representation by Mr Au, which is later changed to one of holding out and implied representation.

(2)  There was no dispute that Mr Au represented Beijing Henderson on his dealings with Mr Tian.  

(3)  The only question is whether there was implied representation by Henderson Land to Mr Tian that Mr Au also represented Henderson Land in such dealings.  Zhaotian itself regarded Beijing Henderson as the only party liable as evidence by its own receipt dated 11.12.2006. There is thus no factual basis to contend that Henderson Land should also be liable.

55.  The aforesaid inconsistencies, together with the inherently improbable allegation concerning the oral agreement and the lack of documentary evidence in support, clearly show that Zhaotian’s case on the alleged oral agreement unsustainable.  In fact there are overwhelming evidence in this case to show that there is in fact no such oral agreement.

Breach of the Property Settlement Agreements

56. (1) Both parties agreed that Beijing Henderson had paid $16,892,275.99 to Foundation and Tian Li pursuant to the Property Settlement Agreements.

(2) The Property Settlement Agreements were never completed by Foundation and Tian Li.

(3) Tian Li contended that on the instruction of Mr Ho, they paid $12,996,000 to Zhaotian.

(4) The question is whether Mr Ho was authorised to direct Foundation and Tian Li to pay Zhaotian by his hand‑written letter dated 30.11.2006. 

57.  In the first place, Henderson submitted that both the letters of 7.11.2006 and 30.11.2006 are highly suspicious. Counsel for Henderson submitted that Foundation and Tian Li have failed to prove that they were created contemporaneously.  The following additional points were raised :

(1)  Both letters use an erroneous company name. Mr Ho’s explanation was it was his “habit” of referring the company.

(2)  Both letters were hand‑written on note paper even though Mr Ho accepted that at that time he still had an office and a secretary to type the letter for him properly on the company’s stationery.  Mr Ho said he wrote them at haste but he did not explain what was the hurry that he could not instruct his secretary to type out the letters the next date.  When pressed for an answer by Counsel for Henderson, Mr Ho lost his temper and said the did not need this Counsel’s permission when he decided to write this letter on a plain paper.

(3)  In the letter of 7.11.2006, Mr Ho wrote Mr Tian’s name wrongly.  Mr Ho claimed to have written it at home so could not consult Mr Tian’s name card.  But again, what was his hurry?

(4)  He also wrongly wrote the word “know”(認識) twice. Mr Ho had no answer for the reason why.

(5)  In the letter of dated 30.11.2006 he referred himself to be in the “Finance Department” when Mr Ho was only in the Accounts Department.  Mr Ho even claimed that there was no difference between the Accounts and Finance Departments in Henderson.

(6)  Further He stated that the PRC proceedings in respect of the Suns had not been withdrawn.  When asked why he said  that in cross‑examination, and after a very long pause, he claimed that what he meant was the deal with the Suns had not yet been concluded.

(7)  These two letters were purported to be formal business letters.  There is no reason for Mr Ho not to use the corporate stationery in formal correspondence.  This is very different from the letters he sent previously, all of which were printed on corporate letter head and bore the company chop.

(8)  In the letter of 30.11.2006, Mr Ho gave two inconsistent versions.  In his Statutory Declaration he claimed he decided to write that letter himself after “reviewing the situation”(在考慮了情況後).  This was completely contrary to his previous modus operandi whereby he had to seek (and did seek) Mr Lee Junior’s instructions and approval.  When asked why he did not do so or if he had direct instructions; why he did not say so in the letter and /or Statutory Declaration, he claimed that he in fact had seen Mr Lee Junior in his office in the IFC and obtained express instructions from him to write that letter.  As aforesaid when confronted by the suggestion that Mr Lee Junior was not present in Hong Kong at that time, he quickly changed his evidence to that he had obtained instructions over a telephone with Mr Lee Junior. 

58.  Secondly, on the question of Mr Ho’s authority, Henderson submitted as follows :

(1)  Foundation and Tian Li’s case is one of the actual authority of Mr Ho according to their pleaded case.  

(2)  Mr Ho himself accepted in cross‑examination that he could not act without express authorization from Mr Lee Junior.  It is borne out by the “request for instruction” dated 9.1.2006, which shows that even in matters concerning the Property Settlement Agreements and Foundation, Mr Ho had to seek the approval of Mr Lee Junior.  There is thus no basis for Mr Ho’s allegation in Statutory Declaration that he was “fully authorised” to act on behalf of Henderson.

(3)  Mr Ho then changed his evidence to say that he was specifically authorized by Mr Lee Junior to act on that occasion, which is contrary to his Statutory Declaration.  When confronted with the suggestion that Mr Lee Junior was not even in Hong Kong at the time, he then changed his evidence again to say that the instructions are actually obtained over the telephone. 

(4)  In any event :

(a)   Mr Zhang accepted that he and Mr Lam knew, at latest on 7.9.2006, that Mr Ho had retired and Mr Au had taken over the 2006 Investigation.  

(b)  All subsequent meetings concerning the 2006 Investigation and Zhaotian were held with Mr Au, including the luncheon on 1.11.2006, and obviously in the absence of Mr Ho. 

(c)   Mr Zhang also accepted that Mr Au was the one who took care of the submission of documents to SAFE and attended meetings.

(d)   Zhaotian’s letter and receipt dated 11.12.2006 were addressed to Mr Au; and the receipt was actually prepared by Ms Ally Chan of Tian Li in Hong Kong.

(e)  When Mr Zhang was questioned on why despite such knowledge, Tian Li would still have written to Mr Ho for instructions on 15.11.2006, he was unable to offer any answer other than to say it was Mr Lam’s act and he knew nothing about it. 

59.  By reason of the aforesaid matters, it is completely incredible for Foundation and Tian Li to say that they thought Mr Ho was still in charge.  Accordingly, Foundation and Tian Li are unable to establish that Mr Ho had authority to represent Beijing Henderson or they could rely on such alleged authority.  

60.  In respect of the Property Settlement Agreements, there is no basis for Foundation or Tian Li to allege that Beijing Henderson’s default had caused their failure to complete the Agreements.  It is not disputed that Mr Lam was notified of the instructions to withdraw proceedings against the Suns as far back as 13.12.2005 that the proceedings were in fact withdrawn (Bundle C2 /52).  The Foundation’s letter of 10.5.2006 did not allude to any problem, and the only reason given in Tian Li’s letter of 12.9.2007 was lack of funds.  This excuse however only surfaced on 30.7.2008 (Bundle C3/75/ §6).

61.  Finally Counsel for Foundation and Tian Li submitted that Beijing Henderson did not regard them as having breached the Property Settlement Agreements back in 2006.  However the issue, as submitted by Counsel for Henderson, whether Beijing Henderson regarded them back in 2006 had in fact breached the Property Settlement Agreements in failing to complete the acquisition and assign the Properties back to Beijing Henderson is irrelevant.  It is undisputed that Foundation and Tian Li did not complete the Property Settlement Agreements and they also acknowledged the same in their subsequent letter of 12.9.2007. 

62.  The Foundation and Tian Li alleged that they had paid the Suns $1,423,240.90.  However :

(a)   only $393,600 had been reimbursed (C4 /40‑43), and

(b)  for $155,305.90, there is no credible proof that this sum was paid to the Suns : (a) + (b) = $548,905.9,

(c)   thus $1,423,240 ‑ $548,905 = $874,335 only has satisfactory proof.

63.  Consequently the amount repayable to Beijing Henderson is :

Item	Amount (HK$)
Total paid to Tian Li	16,892,275.99
Less
accepted as paid	(525,000.00)
tax	(349,335.00)
Total repayable	16,017,940.99

64.  I accept the aforesaid submissions of Henderson.  Thus I prefer Henderson Companies’ case and accept it in full. 

Conclusion

65.  Accordingly I made the following findings of fact as submitted by Henderson :

(1)  On 7.9.2006, Mr Lam and Mr Zhang came to know that Mr Au had taken over from Mr Ho in relation to the 2006 Investigation and the Property Settlement Agreements, and Mr Au on behalf of Beijing Henderson instructed them to engage Mr Tian to assist in the 2006 Investigation upon their advice. 

(2)  Mr Au inquired with Mr Lam twice on 7.9.2006 and 15.9.2006 whether fees would be payable for such services, to which Mr Lam replied in the negative.  It is not Henderson’s case that there is an agreement that no fee would be payable on Mr Tian’s assistance.

(3)  On 26.9.2006, Ms Candy met Mr Tian in Beijing, and was informed by Mr Tian said he would help and was looking into the 2006 Investigation. 

(4)  On 12.10.2006, Mr Au was informed by Mr Tian by letter that SAFE was minded to impose a 30% penalty, but after negotiation had agreed in principle to re‑characterise the offshore funds to avert the penalty.

(5)  During the luncheon on 1.11.2006, Mr Tian informed Mr Au that he had been briefed on the 2006 Investigation, he had started to mediate, his father had already discussed the matter with SAFE, and he believed there would be a prompt settlement.  There was no discussion of the likely penalty or fees, nor was there any agreement reached to pay Zhaotian $43 million.

(6)  On 22.11.2006, SAFE issued the Administrative Penalty Notice imposing a penalty of RMB2,330,000 on Beijing Henderson, which notice was delivered to Ms Candy Chan in Hong Kong on 23 or 24.11.2006.

(7)  On 4.12.2006, SAFE issued the Administrative Penalty Decision, which was given to Ms Candy Chan in Hong Kong around 7 or 8.12.2006.

(8)  On 11.12.2006 a letter and receipt dated the same date was handed to Ms Candy Chan.  Zhaotian stated in the letter and receipt that it “intended to charge” (擬…收取) a consultancy fee of $43,000,000.

(9)  Thereafter Ms Candy Chan, on the instructions of Mr Au, called Mr Lam or Mr Zhang to arrange a meeting with Mr Tian to discuss the proposed charging of fees, but was unable to do so as she was told Mr Tian was travelling.

(10)  On 9.1.2007, Mr Lam still promised Mr Au that he would attend to the Property Settlement Agreements as soon as possible and would help Beijing Henderson finalise the paperwork for the 2006 Investigation. However, he thereafter informed Beijing Henderson that he would not offer any further assistance on the 2006 Investigation on account of its failure to pay $43 million to Mr Tian as requested.

(11)  Thereafter in January 2007, and after Mr Au’s receipt of the 23.3.2007 and 12.6.2007 letters, he instructed Ms Candy Chan to try to set up a meeting with Mr Tian, but she was unable to do so as she was unable to establish contact with Mr Lam.

(12)  The first time the Henderson Companies became aware of the allegation of an oral agreement to pay $43 million was on 18.4.2008, when Zhaotian’s former solicitors sent the pre‑action letter.

(13)  On 12.9.2007 Foundation and Tian Li first disclosed to Beijing Henderson they had used money under the Property Settlement Agreements to pay Zhaotian.  It was not until the filing of the Statement of Claim on 2.7.2008 that the Henderson Companies first came to know the precise amount paid was alleged to be $12,996,000.

(14)  Foundation and Tian Li were in breach of the Property Settlement Agreements.

66.  Beijing Henderson is not pressing for its counterclaim against Zhaotian in HCA825 of 2008.  It is only praying for the return of $12,996,000 which was paid by Foundation / Tian Li without authority to Zhaotian in HCA899 of 2009.

67.  Accordingly :

(1)  the first action HCA825 of 2008 is dismissed with costs to the Henderson Companies and the counterclaim therein is dismissed with no order as to costs; and

(2)  judgment for Beijing Henderson in the sum of $16,017,941.00 in the second action HCA899 of 2009 with costs to Beijing Henderson;

(3)  there shall also be a certificate for two Counsel in each case.