NIKKODO (HK) LTD. v. LAM CHIU KAU AND ANOTHER

HCA 9724/1997

Headnote

Cheques - Misrepresentation - Contract - Procurement of Breach of Contract - Director - Corporate Veil

The 1st Defendant had full control of the 2nd Defendant a limited company. The Plaintiff sold and delivered goods to the 2nd Defendant as ordered by the 1st Defendant. The goods were paid by 18 post-dated cheques of aggregate amount over $7 million signed by the 1st Defendant drawn on the account of the 2nd Defendant. The 1st Defendant then gave instructions on behalf of the 2nd Defendant to the bank to stop payment of all the post-dated cheques. The Plaintiff sues the 1st Defendant in his personal capacity for misrepresentation by cheque and for procuring the 2nd Defendant to breach its contract with the Plaintiff.

Held: (1) The signatory of corporate cheques having control of the corporate vehicle represents that the cheques will be met unconditionally upon due presentment for payment; (2) where directors are in control of a corporate vehicle and have dishonestly or fraudulently caused the corporate vehicle to default on its legal obligations, such directors are personally liable to parties who suffer loss and damage as a result of such default; it does not matter whether the legal obligations are under contract, trust or otherwise; (3) the Plaintiff having proven misrepresentation and dishonesty by the 1st Defendant who had control of the 2nd Defendant, the 1st Defendant is liable on both grounds.

HCA 9724/1997

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 9724 OF 1997

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J U D G M E N T

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The Plaintiff has 2 claims against the 1st Defendant. The first is for $50,000 and the second is for $7,115,980, both of which the Plaintiff says the 1st Defendant is jointly and severally liable for with the 2nd Defendant. The Plaintiff's claim against the 2nd Defendant is for the sum of $7,115,980 being the price of goods sold and delivered ("the said goods") to the 2nd Defendant and the aggregate amount represented by dishonoured cheques drawn on the 2nd Defendant's banking account and delivered to the Plaintiff. It was virtually conceded that the 2nd Defendant had no defence and so judgment against the 2nd Defendant was pronounced at the end of trial. The only issue was the 1st Defendant's liability.

2. The Plaintiff is the Hong Kong subsidiary of a Japanese manufacturer of professional karaoke equipment marketed under the brand names "BMB" and "Nikkodo". The 1st Defendant is a director and the majority shareholder (90%) of the 2nd Defendant. He was previously an employee of a company called China Honour Services Ltd ("China Honour") which prior to March 1996 was a major buyer of the Plaintiff's equipment for resale to the China market.

3. Since about March 1996 the 1st Defendant left the employment of China Honour and set up his own company, the 2nd Defendant, which took over the position of China Honour as the major buyer of Plaintiff's equipment for resale to the China market.

4. The first claim against the 1st Defendant for $50,000 is based on the 1st Defendant's agreement to pay that sum to the Plaintiff in respect of interest owed by China Honour to the Plaintiff on account of late payment of invoices for goods sold and delivered by the Plaintiff to China Honour handled through the 1st Defendant.

5. The second claim against the 1st Defendant for $7,115,980 is put on two bases:-

6. The Plaintiff and the 1st Defendant each called one witness to give evidence. The Plaintiff's case against the 1st Defendant, so far as documentary evidence is concerned and by the 1st Defendant's own evidence, is well substantiated.

The $50,000

7. According to the 1st Defendant's own statement accepted as evidence for the trial, prior to establishing the 2nd Defendant, he worked as the project manager of China Honour from about mid 1993 to March 1996. He was a sales agent for China Honour. The remuneration that he got from China Honour was basic salary plus commission. In respect of his entitlement of commission, it was based upon 50% share of the profit or loss. The Plaintiff was introduced by the 1st Defendant to China Honour. The 1st Defendant left China Honour in about March 1996 and started to do business in the name of the 2nd Defendant with the Plaintiff. At the time he left China Honour, the 1st Defendant was aware that China Honour had not yet paid certain invoices to the Plaintiff. In early 1997, the 1st Defendant was asked to join in the negotiation of settlement between the Plaintiff and China Honour. The 1st Defendant was informed by Mr Lau of China Honour that the Plaintiff wanted to ask for interest on the outstandings and that the reason why China Honour delayed in paying the outstanding invoices was due to market price depreciation of goods sold to China Honour by the Plaintiff. There was negotiation between the Plaintiff and China Honour that the Plaintiff would make compensation to China Honour for the price depreciation for about HK$1.5 million.

8. The 1st Defendant's evidence went on to say that in about April 1997, Mr Lau of China Honour informed the 1st Defendant that China Honour agreed to pay the Plaintiff HK$100,000.00 as interest accrued on the outstandings between the Plaintiff and China Honour and asked him to issue a cheque in the amount of HK$50,000.00 to share the loss. The 1st Defendant drew a cheque no.164687 dated 26 April 1997 on the 2nd Defendant's account payable to the Plaintiff as Mr Lau said it would be more convenient. Soon subsequently the 1st Defendant discovered that the amount of compensation from the Plaintiff to China Honour had been increased to about HK$1.6 million. As such, the extra loss suffered by China Honour of HK$100,000.00 was off-set by the increase in compensation. In the premises, the 1st Defendant considered that he should not be responsible for sharing the interest agreed by China Honour with the Plaintiff. There had been misrepresentation from Mr Lau of China Honour and/or the Plaintiff. He therefore stopped the cheque for payment to the Plaintiff.

9. Despite what the 1st Defendant stated, it is immediately apparent from his own evidence that no one of the Plaintiff made any representation to him to induce the drawing of the cheque for $50,000. If what he stated is true, it was Mr Lau of China Honour who made any representation to the 1st Defendant.

10. In fact, there is a Debit Note in the Trial Bundle (page 444) dated 4 February 1997 issued by the Plaintiff which reads:-

Debit Note

There is absolutely no evidence that the Defendants disputed the correctness of the Debit Note. Quite clearly, the circumstances and substance of the settlement agreement relating to the $50,000 payable by the 1st Defendant were not as stated by the 1st Defendant.

11. Moreover, on 26 April 1997 when the $50,000 cheque was stopped, the 1st Defendant also stopped another cheque No. 164647 for $365,000 also drawn on the 2nd Defendant's account made payable to the Plaintiff for price of goods sold and delivered. I doubt very much the reason for stopping payment of the $50,000 cheque was that as stated by the 1st Defendant.

12. I cannot believe the 1st Defendant in so far as he tries to explain away his personal liability. There is no doubt that he accepted liability for his share of the interest at $50,000. Whatever set-off or share of additional compensation the 1st Defendant may be entitled is a matter between he and China Honour. In drawing up the cheque on the 2nd Defendant's banking account and delivering it to the Plaintiff, the 1st Defendant clearly represented that the cheque would be honoured. See the case of Gilmartin discussed post. In fact he stopped payment of the cheque the very day or very soon thereafter it was drawn and delivered.

13. Whether on the basis of the dishonoured cheque or on the basis of his agreement to pay, the 1st Defendant is liable to the Plaintiff under this head.

14. I should also observe that the fact that the 1st Defendant used the 2nd Defendant's cheque to meet his personal liability confirms that the 1st Defendant at all material times had full control of the 2nd Defendant.

The 7,115,980

15. This 7,115,980 is the aggregate amount represented by 18 cheques ("the post-dated cheques") drawn by the 1st Defendant on the 2nd Defendant's account with The National Commercial Bank Ltd ("the bank") in purported payment of price of the said goods sold and delivered to the 2nd Defendant as ordered by the 1st Defendant. The circumstances pertaining to the post-dated cheques are as detailed below:-

Table of Cheques

16. None of the parties or witnesses can recall when exactly the post-dated cheques were delivered to the Plaintiff. According to the 1st Defendant, staff of the Plaintiff would go to see the 1st Defendant every month with invoices for goods sold and delivered to the 2nd Defendant. On the basis of the invoices, the 1st Defendant would draw and deliver post-dated cheques. There is therefore no doubt that the post-dated cheques were delivered to staff of the Plaintiff as soon as they were drawn. I also believe that those of the post-dated cheques bearing consecutive serial numbers were basically drawn and delivered at the same time. Going through the relevant monthly statements issued by the bank to the 2nd Defendant, one can see the dates on which cheques bearing serial number before or after the post-dated cheques were banked. By reference to such dates, it is reasonable to find that the approximate date each of the post-dated cheques was delivered to the Plaintiff is as noted in the table above.

17. That the 2nd Defendant is liable for $7,115,980 is not disputed by either Defendants. The 1st Defendant admitted that he drew all the post-dated cheques and he gave instructions to the bank to stop payment of all the post-dated cheques. The 1st Defendant also admitted that at all material times he was the only person authorized and able to draw and stop cheques for the 2nd Defendant.

18. It is the Plaintiff's case that when the 1st Defendant drew the post-dated cheques he did not intend them to be honoured unless the Plaintiff agreed to grant the 2nd Defendant sole agency for the China market of the Plaintiff's products. At about the time the post-dated cheques were drawn and delivered, the parties were negotiating on the sole agency. Near the end of April 1997, the 1st Defendant issued stop payment instructions to the bank for 8 of the post-dated cheques. It is important to note that some of those 8 cheques were post-dated to the end of May and beginning of June 1997. Thereafter, the 1st Defendant continued in mid-May 1997 to issue 10 more cheques post-dated to between the middle of May and middle of June 1997. These 10 cheques were all stopped by the bank on the instructions of the 1st Defendant.

19. The 1st Defendant's defence to personal liability, although not immediately apparent in the pleadings, is that he is protected by the corporate veil since in dealing with the Plaintiff he was merely acting as a director of the 2nd Defendant. Moreover, the 1st Defendant denies any dishonesty or falsehood on his own part during dealings with the Plaintiff. In his evidence, the 1st Defendant explained that the 2nd Defendant was unable to meet payment obligations because the 2nd Defendant was facing cash flow problems at the material time. The cash flow problems were brought about by the Plaintiff cutting the credit limit of the 2nd Defendant. The 1st Defendant stated that he had told staff of the Plaintiff, and the management of the Plaintiff was aware, that the 2nd Defendant was having cash flow problems before the last 10 of the post-dated cheques were drawn and yet the Plaintiff insisted on having those 10 cheques.

20. The evidence as to what transpired during negotiations between the parties on sole agency for the 2nd Defendant cannot be disputed. Both parties rely on more or less contemporaneous records of those negotiations:-

Fax message from 1st Defendant to Managing Director
of the Plaintiff dated 30 April 1997

Notes by staff of Plaintiff for meeting on 15 May 1997
between the 1st Defendant, Managing Director
of the Plaintiff et al

Fax message from 1st Defendant to Managing Director
of the Plaintiff dated 30 May 1997

21. On general credibility, the 1st Defendant when giving evidence very forcefully demonstrated that he had no compunction at all to lie. At first he complained that the Plaintiff reduced the credit limit of the 2nd Defendant. He said that previously there was no limit and no written record of credit line given to the 2nd Defendant. Miss Lau for the Plaintiff cross-examined the 1st Defendant on a computer printed account statement (Trial Bundle page 784) issued by the Plaintiff to the 2nd Defendant dated 6 January 1997 showing "Credit Limit: 4,000,000.00". So there was written record of the credit limit. Before the 1st Defendant could begin to attempt to explain, I warned him not to again try to confuse issues by giving some irrelevant rambling. Right after that, the 1st Defendant burst out with an answer that the computer printed account statement was never given to the Defendants. But, as counsel for the Plaintiff pointed out, the computer printed account statement was one of the documents disclosed by the Defendants at the discovery process for the proceedings herein.

22. As to the inability of the 2nd Defendant to meet payment for the post-dated cheques, the Defendants' own evidence confirmed that of the Plaintiff that there was no actual cut in credit limit for the 2nd Defendant. The financial problem said by the 1st Defendant to be affecting the 2nd Defendant is I find non-existent. One just has to look at the fax message dated 30 April 1997 by the 1st Defendant wherein he offered security deposit between $4 to 4.6 million. Furthermore, despite what the 1st Defendant has repeatedly said in his fax messages and in evidence that the question of outstanding payment was not related to the sole agency plea, he stated in the 30 May 1997 fax message that "the beginning of the first month payment is depends on the dealer system of Nikkodo policy, because of new investor will join to Teck Ease. On the other hand, Teck Ease will shrink and correct the investment for the payment" and "if Teck Ease can be the agent to do the BMB business, the payment must be on schedule, otherwise, cannot have the business with Nikkodo".

23. The monthly statements from the bank show that the account of the 2nd Defendant on which the post-dated cheques were drawn was maintained by a low credit balance or over-drawn at the material time. The frequent repeat orders placed by the 2nd Defendant for the Plaintiff's goods show, and the 1st Defendant confirmed in evidence, that the 2nd Defendant had no difficulty selling the goods although the profits were not as much as desired. Thus, one must wonder what happened to the proceeds of sale which must be of the order of millions of dollars. The Defendants do not offer any explanation. The Plaintiff suspects that the 1st Defendant simply placed the proceeds/profits somewhere beyond the reach of the Plaintiff.

24. Even on the evidence from the Defendants, the truth is quite clear that the 1st Defendant had no intention to allow payment of the post-dated cheques unless the Plaintiff would grant sole agency to the 2nd Defendant. I have no difficulty in drawing the irresistible inference that the 1st Defendant in ordering the said goods for the 2nd Defendant and in drawing and delivering the post-dated cheques had no intention of paying for the said goods unless the 2nd Defendant succeeded in obtaining the sole agency the 1st Defendant wanted.

Representation by cheques

25. There is scant authority on representation by post-dated cheques. Miss Lau for the Plaintiff submitted that R. v. Gilmartin [1983] 1 All ER 829 is applicable. In that case, the appellant ran a stationery business which he carried on through a private limited company which owed money to a creditor. The company's bank account was heavily overdrawn and there was no prospect of the bank extending the company's overdraft facilities or of any money being paid into the account in the immediate future. The appellant gave the creditor a postdated cheque which he signed on behalf of the limited company. He also obtained stationery from suppliers by giving them cheques which were similarly postdated and signed on behalf of the company. No money was paid into the account thereafter and the cheques were dishonoured on presentation. The appellant was charged with (i) dishonestly obtaining goods from the suppliers by deception, contrary to S 15a of the Theft Act 1968, and (ii) dishonestly obtaining the deferment of a debt due to the creditor by deception, contrary to S 16b of the 1968 Act. The charge in each case alleged that the relevant 'deception' by the appellant consisted of a false 'representation' that the cheque in question was a good and valid order for the payment of the sum specified in the cheque. The appellant submitted that no such representation could be inferred from the mere act of giving a postdated cheque and that the only representation about the present state of affairs which could properly be implied from such an act was that the drawer of the cheque (or the company on whose behalf it was drawn) was a customer of the bank on which it was drawn. The English Court of Appeal (Criminal Division) held that by simply giving a cheque, whether postdated or not, the drawer impliedly represented that the state of facts existing at the date of delivery was such that in the ordinary course of events it would, on presentation for payment on or after the date specified in the cheque, be met. For the avoidance of doubt, their lordships also cited the speech of Lord Edmund-Davies in Metropolitan Police Commissioner v. Charlie [1976] 3 All ER 112 at 120-121 to the effect that the representation by post-dated cheque is not really a representation as to a future event.

26. Mr Leung, counsel for the Defendants, did not reject Gilmartin on the ground that it is a criminal case. Instead, Mr Leung contended that it does not apply in the present case because the Defendants herein did not deliberately deceive. In the premises, I take the principle propounded in Gilmartin as sound. Thus the signatory of corporate cheques having control of the corporate vehicle represents that the cheques will be met unconditionally upon due presentment for payment. I also hold that, on the facts, the 1st Defendant as the alter ego of the 2nd Defendant did deceive the Plaintiff by drawing and delivering the post-dated cheques without intending to meet them unconditionally.

Procurement of Breach

27. This is an even greater hurdle for the Plaintiff although the corporate veil for the 1st Defendant is already somewhat lifted by the Gilmartin case. Nonetheless, Miss Lau sought to rely on one analogous Privy Council advice, one Canadian appeal decision and observations in one reference work.

28. In Palmer's Company Law, (1985 ed) at 65-05, it is said that:

29. In Royal Brunei Airlines Sdn Bhd v. Tan Kok Ming [1995] 2 HKC 409, the appellant, Royal Brunei Airlines Sdn Bhd ("the airline"), appointed Borneo Leisure Travel Sdn Bhd ("BLT") to act as its general travel agent for the sale of passenger and cargo transportation. Under a written agreement, BLT was required to account to the airline for all amounts received from the sale of tickets and, under International Air Transport Association regulations, was a trustee for the airline of this money. BLT was required to pay the airline within 30 days, but at various times from 1988 onwards fell into arrears. In 1992 the airline terminated the agreement with BLT, which became insolvent, and commenced action against the respondent, Tan, who was the managing director, principal shareholder and controller of BLT. The airline sought to make Tan personally liable for the money owed by BLT under the second limb of Barnes v Addy (1874) 9 Ch App 244 ('the accessory limb'), viz, that Tan was a constructive trustee of the money as he had assisted 'with knowledge in a dishonest and fraudulent design' on the part of BLT. On appeal to the Privy Council, the Board held that dishonesty on the part of the trustee was a sufficient basis to attach personal liability to the trustee.

30. In Steve Kepic v. Tecumseh Road Builders et al, 23 OAC 72 unreported, two directors who controlled the corporate defendants procured the termination of employment of the plaintiff by the corporate defendant with the design of depriving the plaintiff what he would gain under lucrative contract work carried out by the plaintiff for the corporate defendants. The Ontario Court of Appeal held that the directors were personally liable. The judgment of that Court reads:

31. In summary, although Miss Lau has not put it in so many words, the corporate veil ought to be lifted. The 1st Defendant should be held personally liable for misrepresentation in the conduct of the 2nd Defendant's business and for procuring breach of contract by the 2nd Defendant because he had acted dishonestly.

32. Mr Leung for the Defendants contended that the learned authors of Palmer's Company Law have changed their view in the light of other cases uncovered. Thus, the 1992 edition of Palmer's Company Law no longer contains the passage cited from the 1985 edition. Instead, the learned authors in the later edition wrote at 8.605:

33. Moreover, counsel pointed out that in a civil case where fraud or dishonesty is alleged, although the standard of proof is not as high as the criminal standard, a high degree of probability has to be shown and the Plaintiff in his case has not done so. In any event, the 1st Defendant's personal liability should be limited to the last 10 of the post-dated cheques because there is insufficient proof that the 1st Defendant did not intend to stop the first 8 of the post-dated cheques at the time the first 8 cheques were drawn and delivered.

34. In my view, cases like Said v. Butt do not really assist the 1st Defendant because as can be seen from the dicta of McCardie J quoted in Palmer's Company Law supra protection of the corporate veil is always premised on the officer or director acting bona fide. On a fair reading of the work that I have quoted in extenso, it cannot be said that the learned authors of Palmer's Company Law have changed their view. The Royal Brunei Airlines decision is an instance of, as much as it is on trust and equity, the highest judicial authority of the English common law system piercing the corporate veil for dishonesty or fraud inducing breach of legal obligations by the corporate entity under the control of the defendant. The Kepic case is another such instance by one Canadian appellate jurisdiction. It does not matter whether the legal obligations are under contract, trust or otherwise. I hold that where one or more directors are in control of a corporate vehicle and have dishonestly or fraudulently caused the corporate vehicle to default on its legal obligations, such directors are personally liable to parties who suffer loss and damage as a result of such default.

35. It is, of course, rarely possible to find direct evidence as to dishonest intention or since when such intention came into being. Dishonesty in relation to the last 10 of the post-dated cheques is almost a foregone conclusion. So far as the first 8 of the post-dated cheques are concerned, two circumstances are highly telling of the design of the 1st Defendant. First, according to the evidence of the 1st Defendant, the 2nd Defendant had in late 1996 and very early 1997 set up connections with three local dealers scattered far and wide in China to sell the products of the Plaintiff. The 1st Defendant used the investments he put into setting up these connections as one of the reasons for the cash flow problem. In fact the connections were not direct investments, only sub-agency arrangements with local shop proprietors. The point is that the 1st Defendant was preparing to get sole agency from the Plaintiff in very early 1997. The obtaining of goods on credit from the Plaintiff was part of the set up to hold the Plaintiff at ransom. The issuing of cheques was to string the Plaintiff along and to show that payment could have been made had the 1st Defendant desired to do so..

36. Secondly, in relation to the $50,000 contribution, the 1st Defendant agreed in early 1997 to pay that sum forthwith. As noted earlier, he had a debit note from the Plaintiff in February 1997. He delayed issuing the cheque until 26 April 1997 and almost immediately he stopped payment of the cheque. Quite clearly, since February 1997, the 1st Defendant had decided not to pay when the time suited him.

37. The evidence against the 1st Defendant is overwhelming. The Plaintiff has proven its case against the 1st Defendant beyond reasonable doubt.

Judgment

38. In the premises, there is judgment for the Plaintiff against the 1st Defendant for both $50,000 and $7,115,980 with interest thereon at 12.25% from the date of issue of the writ to the date of judgment and interest at judgment rate after the date of judgment until payment, together with costs to be taxed if not agreed.

39. Finally, I am very grateful to counsel for their diligent research and helpful assistance on uncertain areas of the law.