SECURITIES AND FUTURES COMMISSION v. WONG KAM LEONG AND OTHERS

HCMP 667/2018

[2021] HKCFI 624

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 667 OF 2018

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J U D G M E N T

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A.   Introduction

1.  The Securities and Futures Commission (“SFC”) commenced these proceedings by its amended petition dated 16 May 2018.  By the proceedings, the SFC has sought disqualification orders under section 214 of the Securities and Futures Ordinance Cap 571 (“SFO”) against all 13 respondents, all of whom are former directors of Long Success (Holdings) Ltd (“Long Success”).

2.  In my previous Judgment [2020] HKCFI 606 (“April 2020 Judgment”), I made disqualification orders as against five of the respondents, being the 3^rd, 6^th, 7^th, 8^th and 13^th respondents.

3.  The current matter concerns another two respondents, being: (1) Hu Dongguang (胡東光) (“R4”); and (2) Guo Wanda (郭萬達) (“R5”).

4.  The SFC and both R4 and R5 have consented to dispose of the proceedings against them by way of the Carecraft summary procedure: see Re Carecraft Construction Co Ltd [1994] 1 WLR 172 and various Hong Kong cases adopting that procedure, including the April 2020 Judgment.

5.  It is well-settled that, in deciding whether to make a disqualification order, the Court is not bound by any agreement reached by the parties.  The Court must be independently satisfied, based on the agreed facts, that the business or affairs of the company have been conducted in a manner described in paragraphs (a), (b), (c) or (d) of section 214(1) of the SFO.  If so satisfied, the Court must determine the scope and duration of the disqualification order.  But it is equally well-settled that the Court is likely to be guided by the agreement that the SFC has reached.

6.  The matter was listed for hearing on 21 January 2021, but the SFC and R4 and R5 requested, and I have allowed, the matter to be dealt with on the papers, including written submissions.  Submissions have been received from Mr Victor Dawes SC and Ms Bonnie YK Cheng, Counsel for the SFC, and from Ms Natalie So, Counsel for R5.  R4 is acting in person and has made no submissions.

B.   Factual Matters

7.  Schedules for the Carecraft procedure have been filed in respect of each of R4 and R5.  I note that the parties have jointly sought a direction that the Schedules be annexed to this Judgment, and so they are included as Appendices to this Judgment, being: Appendix A (for R4) (in both Chinese and English translation), and Appendix B (for R5) (English only).  The Schedules set out the undisputed facts and the proposed orders as agreed between the SFC and each of R4 and R5.

8.  The complaints against R4 and R5 arise out of an acquisition agreement, certain profit guarantees, and other loan and guarantee agreements.

9.  In so far as it helps to give a broad summary of the factual background, against which the detail in the Appendices can be considered, the following matters can be set out.  Unless otherwise identified, and for ease of reference, the definitions and abbreviations adopted in the Appendices will also be adopted in this Judgment.  Further, unless otherwise made clear, all references to dollar sums are denominated in Hong Kong Dollars.

10.  Long Success was listed on the Growth Enterprise Market (“GEM”) of The Stock Exchange of Hong Kong Limited (“SEHK”) from 17 August 2000 until its listing status was cancelled by the SEHK with effect from 19 October 2016.  The Group comprising Long Success and its subsidiaries was operating at a loss by 2007, and having liquidity problems by 2012.  Its shares were suspended from trading on 3 December 2013, and trading did not resume before the listing status was cancelled.

11.  Long Success had subsidiaries including: (1) Glory Smile Enterprises Ltd (“Glory Smile”); (2) Jining Gangning Paper Co Ltd (“Jining Gangning”) and (3) Zhonshan Jiu He Bioplastic Co Ltd (“Zhonshan Jiu He”).

12.  The Board of Long Success was at the material times until 17 April 2013 chaired by Wong Kam Leong (黃錦亮) (“R1”).  R4 and R5 had the following positions and responsibilities:

(1)  R4 was an Executive Director and Chief Executive Officer, with responsibility for administrative aspects and business development.  His term began on 18 January 2010 and ended on 28 February 2013.

(2)  R5 was an Executive Director, with responsibility for business and technical development of the biodegradable materials manufacturing business and future investments in environmental and recycling business in the PRC and globally.  His term began on 1 May 2010 and ended on 27 September 2012.

13.  On or about 10 February 2009, R1 on behalf of Glory Smile entered into an acquisition agreement (“Acquisition Agreement”) with a Mr Chook Hong Shee (“Chook”).  Under the Acquisition Agreement, Glory Smile agreed to acquire from Chook the entire equity interest in Mega Bright Investment Development Limited (“Mega Bright”).  Mega Bright had in turn a 51% interest in Jining Gangning, a company engaged in paper manufacturing.

14.  Each of R4 and R5 agrees that the Acquisition Agreement was entered into by R1 on behalf of Glory Smile in the following circumstances:

(1)  Long Success had been operating at a loss for at least two years prior to the acquisition under the Acquisition Agreement.

(2)  Long Success was engaged in gaming and entertainment business in Macau, and it had no or insufficient experience or expertise in the paper manufacturing business.

(3)  There was limited or insufficient due diligence conducted on Chook or Jining Gangning for the Board’s consideration prior to the acquisition.

(4)  The acquisition was a very significant transaction with substantial, and potentially long-term, impact on Long Success’ financial position and operation.

15.  Indeed, the consideration under the Acquisition Agreement was the sum of $190 million, and it was payable by cash and by convertible bonds and promissory notes issued by Long Success.

16.  The Acquisition Agreement also contained the following material terms:

(1)  a profit guarantee clause (“Profit Guarantee”), by which Chook agreed to compensate Glory Smile if Jining Gangning failed to achieve a profit after tax of RMB60 million, or recorded a loss, for each of the two years ended 31 December 2010 and 2011 respectively; and

(2)  a clause (“Force Majeure Clause”) providing that a party that delayed in performing or failed to perform its obligations by reason of a force majeure event such as financial crises, war, earthquake, food, fire, blizzard, or others was not liable for breach of the Acquisition Agreement.

17.  Jining Gangning did not meet the Profit Guarantee in either of the financial years ended 31 December 2010 or 2011.  In that context, R1 on behalf of Long Success and/or Glory Smile entered into four confirmation letters (“Confirmation Letters”) with Chook in March 2011, October 2011, March 2012 and June 2012 respectively.

18.  The primary effects of the Confirmation Letters were that:

(1)  Under the March 2011 Confirmation Letter, Long Success and Glory Smile agreed to postpone Chook’s payment of the Profit Guarantee shortfall by deferring the outstanding amount in 2010 and 2011 (together totalling approximately $10.88 million), without demanding any interest from Chook.

(2)  Under the June 2012 Confirmation Letter, Long Success further agreed to forfeit Glory Smile’s right to the Profit Guarantee shortfall balance due from Chook in the amount of $30,146,096.  The forfeiture of that amount (“Forfeiture”) was agreed without compensation, and was based on the parties’ agreed position that Jining Gangning’s profits for 2010 and 2011 were affected by certain “profit reduction factors” said to amount to force majeure events under the Acquisition Agreement.  The “profit reduction factors” were an increase in the market price of raw materials due to the reduction and withdrawal of government subsidies provided to wastepaper suppliers, the reduction and withdrawal of purchase rebate, the increase in price of electricity and the cost of steam generation.  Those factors were agreed to amount to force majeure events, notwithstanding that Long Success had obtained Counsel’s Opinion that they would unlikely fall within the Force Majeure Clause.

19.  There was no objective, rational or commercial reason for Long Success or for Glory Smile to agree to the terms of the Confirmation Letters.  The Confirmation Letters were plainly to the financial detriment of the companies, and the prejudice was compounded by Long Success’ then adverse financial position.

20.  The SFC has subsequently received confirmation from the current board of Long Success that in 2014 Glory Smile obtained default judgment for the remaining Profit Guarantee shortfall balance – that is, the shortfall after the Forfeiture – and a bankruptcy order against Chook. However, the amount recovered by Glory Smile from the Official Receiver’s Office was the insignificant sum of $107,207 (rounded).

21.  As to the other loan and guarantee agreements, they arose as follows:

(1)  On 13 October 2011, Lai Sing Kit (“S Lai”) as lender, Star Grace International Ltd (“Star Grace”) as borrower, and R1 and Zhongshan Jiu He as guarantors entered into a loan agreement (“October 2011 Loan Agreement”).  It is to be noted that R1 was the director of Star Grace.  S Lai agreed to lend RMB3 million to Star Grace for short-term liquidity purposes, at a monthly interest rate of 2.5%.  R1 and Zhongshan Jiu He undertook to be jointly liable for Star Grace’s obligation to repay the principal and interest to S Lai.

(2)  By an agreement with the same date 13 October 2011 (“Supplemental Agreement”), made between the same parties, Star Grace agreed to pay interest to S Lai at the daily rate of 2.5%.

(3)  By a guarantee agreement also dated 13 October 2011 (“Guarantee Agreement”), made between Star Grace, Zhongshan Jiu He, Jining Gangning and another company as guarantors and S Lai as creditor, the guarantors guaranteed to pay on demand all indebtedness of R1 (as debtor) to S Lai up to RMB20 million.

(4)  By a loan agreement dated 18 November 2011 (“November 2011 Loan Agreement”), made between R1 as borrower and S Lai as lender, S Lai agreed to lend RMB20 million to R1 for three months (up to 17 February 2012) at the monthly interest rate of 2.5% and a defaulting fee of 3% per day on unpaid principal.  Clause 6 referred to the Guarantee Agreement.

22.  There was no objective, rational or commercial reason for Long Success’ subsidiaries Zhongshan Jiu He and Jining Gangning to guarantee R1’s indebtedness, incurred in his personal capacity, rather than for any benefit of Long Success or its subsidiaries.  I agree that in causing or allowing the subsidiaries to enter into the Guarantee Agreement, R1 placed his interest over and above that of Long Success and the two subsidiaries.

23.  The SEHK later investigated a complaint about the November 2011 Loan Agreement and the Guarantee Agreement.  In response to the SEHK’s request, directors of Long Success including R1 and R5 each provided a signed “Confirmation by the Director”, dated either 11 or 12 July 2012, confirming that, to the best of his knowledge and belief having made all reasonable, due and careful enquiries:

(1)  neither Long Success nor any of its subsidiaries (in particular Jining Gangning and Zhongshan Jiu He) had acted as guarantor(s) for any of his or his associates’ personal liabilities;

(2)  he had not pledged any of Long Success’ and/or its subsidiaries’ shares/assets for any of his or his associates’ personal liabilities;

(3)  the contents of the confirmation were true, accurate and complete in all material respects and not misleading or deceptive, and there were no other matters the omission of which would make any statement therein misleading.

24.  Both R4 and R5 resigned or retired as directors of Long Success within a year after the provision of the “Confirmation by the Director” to the SEHK.

25.  R1 subsequently admitted to Long Success’ new Board that he borrowed RMB20 million from S Lai which he had not repaid, and that Long Success did not know about the Guarantee Agreement.  Further, by a judgment dated 6 March 2014, the Intermediate People’s Court of Zhongshan City of Guangdong Province held Jining Gangning and Zhongshan Jiu He were to bear joint responsibility for R1’s obligation to repay the RMB20 million, together with interest and a defaulting fee.  Appeals were unsuccessful.

26.  After a disciplinary hearing into the conduct of Long Success and the former Board, the GEM Listing Committee of the SEHK publicly censured Long Success and criticised, amongst others, R4 and R5.

27.  On 29 August 2013, the SFC commenced a formal enquiry into the affairs of Long Success.  It sought documents from Long Success and interviewed its former and current directors and officers.

28.  R4’s responses to the SFC’s enquiries can be summarised as follows:

(1)  As to the March 2011 Confirmation Letter, R4 said he recalled agreeing to the board resolution for it and confirming that he signed the board resolution.  He said he visited Jining Gangning in 2011 and noticed that its revenue was decreasing.  He said he should have reviewed the draft of the announcement dated 31 March 2011 which he received via email from the Company Secretary/Financial Manager, Lucy Hui.

(2)  As to the October 2011 Confirmation Letter, R4 said he knew about the substance of it through the draft announcement sent to him via email but did not recall whether he had seen it.

(3)  As to the March 2012 Confirmation Letter, R4 said he had not seen before and did not know its contents at the material time.  He only knew about it when the company made an announcement on 28 June 2012 regarding it.

(4)  As to the June 2012 Confirmation Letter, R4 said he only knew about it when he read the company’s announcement regarding it.  He said the draft announcement was not given to him beforehand.

C.   Applicable Principles

C.1   Directors’ Duties

29.  The various duties owed by directors are well-settled, and accepted by each of R4 and R5.

30.  Fiduciary duties include the requirements to act honestly, in good faith and in the interests of the company; to act for proper purposes; to avoid situations where the director’s interests may conflict with that of the company; and not to obtain any undisclosed profit through his position.

31.  There is a common law duty to exercise due and reasonable care, skill and diligence that would be exercised by a reasonably diligent person with the general knowledge, skill and experience that may reasonably be expected of a person carrying out the same functions as carried out by the director in relation to the company, and with the general knowledge, skill and experience that the particular director has.

32.  There is also a duty to ensure full compliance with the Rules Governing the Listing of Securities on the GEM of the SEHK (“GLR”), and a duty properly to supervise the affairs of the company’s subsidiaries.

33.  Further, whilst a proper degree of delegation and division of responsibility between directors is permissible, and is often necessary, there cannot be total abrogation of responsibility.  A board of directors must not permit one individual to dominate them and use them.

C.2   Section 214 Liability

34.  It is not in dispute that for section 214 of the SFO to be engaged, three basic conditions need to be satisfied:

(1)  The corporation in question is or was a listed corporation.

(2)  The business or affairs complained of must be that of the corporation, though that can include the business or activities of a subsidiary when the Court will take a “realistic approach” in determining whether the affairs of the subsidiary are the affairs of the holding corporation.

(3)  The conduct complained of must fall within one or more of the heads of misconduct specified in section 214(1)(a) to (d).

35.  The SFC relies upon section 214(1)(b), (c) and (d).  With focus on those paragraphs, the sub-section materially provides as follows:

“Where, in relation to a corporation which is or was listed, it appears to the Commission that at any relevant time the business or affairs of the corporation have been conducted in a manner –

(a) …

(b) involving defalcation, fraud, misfeasance or other misconduct towards it or its members or any part of its members;

(c) resulting in its members or any part of its members not having been given all the information with respect to its business or affairs that they might reasonably expect; or

(d) unfairly prejudicial to its members or any part of its members,

the Commission may, subject to subsection (3), by petition apply to the Court of First Instance for an order under this section.”

36.  In the April 2020 Judgment at §§31-35, I pointed out that the meaning of section 214(1)(b), (c) and (d) had been recently considered by DHCJ Hunsworth in Securities and Futures Commission v Yeung Chung Lung (unreported, HCMP 205/2013, 17 February 2017).  I agreed with his approach.

37.  The phrase “or other misconduct” in sub-section (b) is something of a belt and braces exercise, intended to cover the widest range of possible misconduct.  So, for example, the failure of a director to exercise the requisite degree of skill and care in the management of the company as may reasonably be expected of a person of his knowledge and experience and holding his office and functions within that company was enough to establish misconduct under the paragraph.  Further, “other misconduct” has also been held to embrace things such as “culpable neglect of duties”.

38.  As to sub-section (c), it can be complimentary to the other sub-sections, but it is not easy to think of examples where the affairs of the company have been conducted with no suggestion of impropriety on the part of its directors and with no suggestion of unfair prejudice to the shareholders, yet where it can confidently be said shareholders have been deprived of information which they might reasonably be expected to be given.  So it may be unhelpful to hypothesise other than to say such circumstances may arise and will be evident when they do.

39.  As to sub-section (d), conduct which is unfairly prejudicial is conduct which results in harm to the members of the company or part of the membership in their capacity as members of the company.  The harm is harm which could either have been avoided or ameliorated without harming the legitimate interests of others who were parties to the particular transaction.  It covers a range of conduct.  At one end of the scale is fraud.  At the other end of the scale the conduct can take the form of neglect or inaction on the part of those to whom the affairs of a company are entrusted.  The question to be asked in such circumstances is whether the conduct concerned is that which can be expected from the managers of the company to whom those affairs have been entrusted.  The directors, of course, cannot leave their duties to be performed by others.

40.  Once section 214 of the SFO is engaged, the principles relating to disqualification orders under section 214(2)(d) are well-established, and do not need reference to authority.  Those principles are:

(1)  The power to determine the appropriate period of disqualification is a discretionary power.  It is necessary for the Court to be satisfied that the director’s involvement in the relevant matter involves a sufficiently serious failure to satisfy his duties that some period of disqualification is justified and fair.

(2)  The purpose of imposing a qualification order is twofold.  The first, and primary, purpose is that of the protection of the public.  The second is the purpose of general deterrence.

(3)  In determining the period of disqualification, the Court will adopt a broad-brush approach, where earlier decided cases will be of limited assistance to the exercise of the Court’s discretion.

(4)  The period of disqualification must reflect the gravity of the offence.  A starting point of assessment may be fixed by reference to the gravity of the conduct, with a discount given for any mitigating factors.

(5)  Previous authorities have identified starting points within brackets, which provide guidelines not tramlines.  Those brackets are:

(a)  disqualification of over 10 years for particularly serious cases;

(b)  disqualification of below 5 years for relatively less serious cases, and

(c)  disqualification of between 6 and 10 years for cases in between.

(6)  The Court will have regard to a wide range of considerations including the age, state of health and character of the offender, the nature of the breaches, the honesty and competence of the offender, the length of time he has been in jeopardy, whether he appreciates and/or admits the breaches, his general conduct before and after the offence, the periods of disqualification of his co-directors that may have been ordered by other courts, and the interests of shareholders, creditors and employees.

D.   Breaches

D.1   Overall

41.  The evidence as a whole identifies that:

(1)  R1 was able to, and did, dominate and control the affairs of Long Success and the Board for his personal advantage or other ulterior purposes;

(2)  there was no or no effective system of internal controls in the company; and

(3)  R4 and R5, along with others, had allowed R1 to exercise his domination and control, and neglected or omitted to exercise their duties.

42.  Those matters are admitted and, in that context, each of R4 and R5 accepts that he breached his duties owed as a director to Long Success, as follows.

D.2   R4’s Breaches

43.  R4 has accepted that he was in breach of his duties to act in the interest of Long Success and/or to exercise due and reasonable care, skill and diligence in approving the March 2011 Confirmation Letter without making any or any sufficient enquiries or requesting further information about the March 2011 Confirmation letter, which was prejudicial and of no discernible benefit to Long Success or Glory Smile.

44.  R4 has also accepted that he was in breach of his duties to act in the interest of Long Success and/or to exercise due and reasonable care, skill and diligence in failing to monitor, make enquiries or follow up with the Profit Guarantee.  In particular, R4 accepts that:

(1)  He knew or ought to have known about the March 2011 Confirmation Letter under which the payment of the Profit Guarantee shortfall in 2010 was postponed.

(2)  Matters regarding the compliance with the Profit Guarantee ought to have caused concern to a director exercising due and reasonable care and skill and diligence, given in particular the substantial amount of the profit guarantee shortfall and the financial position of long success at the time.

(3)  Those matters ought also to have prompted a director exercising due and reasonable care, skill and diligence to exercise independent judgment in his consideration and investigation of the relevant issues instead of just allowing or deferring to a member of the Board or professional advisers.

(4)  However, he had failed or failed to sufficiently monitor, make enquiries or follow up on the compliance with the Profit Guarantee, which failure had caused or contributed to R1’s agreeing to the Forfeiture on or about 29 March 2012 and subsequently causing Long Success to enter into the June 2012 Confirmation Letter.

(5)  Further, he had caused or allowed Long Success to publish the Announcements dated 31 March 2011, 3 October 2011 and 28 June 2012 stating that the relevant Confirmation Letter and the Forfeiture were fair and reasonable and in the interests of Long Success and its shareholders as a whole, when he knew or ought to have known that the four Confirmation Letters (viewed as a whole) and the Forfeiture were prejudicial to the interests of Long Success and Glory Smile.

45.  R4 has also accepted that he was in breach of his duties to ensure compliance with the GLR.

D.3   R5’s Breaches

46.  R5 has accepted that he was in breach of his duties to act in the interest of Long Success and/or to exercise due and reasonable care, skill and diligence in approving the March 2011 Confirmation Letter without making any or any sufficient enquiries or requesting further information about the March 2011 Confirmation letter in the circumstances.

47.  R5 has also accepted that he was in breach of his duties to act in the interest of Long Success and/or to exercise due and reasonable care, skill and diligence in failing to monitor, make enquiries or follow up with the Profit Guarantee.  In particular, R5 accepts that:

(1)  He knew or ought to have known about the March 2011 Confirmation Letter under which the payment of the Profit Guarantee shortfall in 2010 was postponed.

(2)  Matters regarding the compliance with the Profit Guarantee ought to have caused concern to a director exercising due and reasonable care and skill and diligence, given in particular the substantial amount of the profit guarantee shortfall and the financial position of Long Success at the time.

(3)  Those matters ought also to have prompted a director exercising due and reasonable care, skill and diligence to exercise independent judgment in his consideration and investigation of the relevant issues instead of just allowing or deferring to a member of the Board or professional advisers.

(4)  However, he had failed or failed to sufficiently monitor, make enquiries or follow up on the compliance with the Profit Guarantee, which failure had caused or contributed to R1’s agreeing to the Forfeiture on or about 29 March 2012 and subsequently causing Long Success to enter into the June 2012 Confirmation Letter.

(5)  Further, he had caused or allowed Long Success to publish the Announcements dated 31 March 2011, 3 October 2011 and 28 June 2012 stating that the relevant Confirmation Letter and the Forfeiture were fair and reasonable and in the interests of Long Success and its shareholders as a whole, when he in the circumstances ought to have known that the four Confirmation Letters (viewed as a whole) and the Forfeiture were prejudicial to the interests of Long Success and Glory Smile.

48.  R5 has also accepted that he was in breach of his duties to ensure compliance with the GLR.

D.4   Section 214 Engaged

49.  Looking at the three basic conditions to be satisfied, in this case: (1) Long Success was a listed corporation until its listing status was cancelled; (2) I accept that the affairs of Glory Smile, Jining Gangning and Zhongshan Jiu He were the affairs of Long Success; and (3) the conduct falls within one or more of the heads specified in section 214(1)(a) to (d).

50.  I accept that the evidence demonstrates, and R4 and R5 admit, that by reason of their own acts or omissions they were at least partly responsible for the fact that the the business or affairs of Long Success have been conducted in a manner:

(1)  involving defalcation, fraud, misfeasance or other misconduct towards members or any part thereof: section 214(1)(b);

(2)  resulting in its members or part of its members not having been given all the information with respect to its business or affairs that they might reasonably expect: section 214(1)(c); and/or

(3)  unfairly prejudicial to its members or part of its members: section 214(1)(d).

E.   The Proposed Orders

51.  The Appendices to this Judgment set out the agreed proposed order to be made in respect of each of R4 and R5.  The agreements are as to, and the SFC seeks, disqualification orders against each of R4 and R5 for the duration of 3 years.

52.  The SFC submits that the order sought against each of R4 and R5 is commensurate with the gravity of their respective conduct, and is in accordance with the principles I have outlined above.  In accordance with the applicable principles, I acknowledge the weight to be given to the views of the SFC, though I am not in any way bound by them.

F.   Orders

53.  Nevertheless, I accept that overall, whilst there have been some serious breaches of directors’ duties in the conduct of affairs of a listed company and its subsidiaries, the evidence mainly points to negligence or neglect of duties (as opposed to active commission of misdeeds) on the part of R4 and R5.

54.  Also taking into account their agreement to dispose of these proceedings by the Carecraft procedure, with the consequent saving of considerable time and costs, I accept that the suitable disqualification bracket for each of R4 and R5 is 5 years or below.

55.  In the end, I am satisfied that the agreed period of disqualification of 3 years is appropriate to the circumstances, and pursuant to section 214(2)(d) I make the following order:

Each of R4 and R5 shall not, without leave of the Court, for a period of 3 years with effect from the date of this order:

(a)  be, or continue to be, a director, liquidator, or receiver or manager of the property or business, of any corporation in Hong Kong including Long Success or any of its subsidiaries and affiliates; and

(b)  in any way, directly or indirectly, be concerned, or take part, in the management of any corporation in Hong Kong including Long Success or any of its subsidiaries and affiliates.

56.  R4 and R5 also agreed to pay the costs of the SFC in these proceedings, or such portion of those costs as I think appropriate.  In the circumstances, and in the exercise of my broad discretion as to costs, I order that each of R4 and R5 shall pay 50% of the SFC’s costs, to be taxed if not agreed with certificate for two Counsel.