CLARK QUANTUM KENT (formerly known as JOHN MOHAMMAD CLARK and JOHN JULIUS TASCA) v. HAI TIN LTD (formerly known as ALLIED FINANCE ASIA LTD)AND OTHERS

HCA 961/2017

[2019] HKCFI 2758

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 961 OF 2017

________________________

BETWEEN

________________________

DECISION

________________________

1.  This was an application of IHAG Holding AG (“D4”) and Privatbank IHAG Zürich AG (“D5”) by summons dated 29 October 2018 for an order discharging (1) the order of Master M Wong dated 17 April 2018 granting leave to Clark Quantum Kent (formerly known as John Mohammad Clark and John Julius Tasca) (“the plaintiff”) to serve his Amended Concurrent Writ of Summons (“the amended writ”) on D4 and D5 out of the jurisdiction, and (2) the amended writ. At the conclusion of the hearing, my Decision was reserved which I now give.

Introduction

2.  The plaintiff is the sole discretionary beneficiary under the Monfred Trust (“the Trust”) established pursuant to a Trust Deed dated 3 July 2007 made between the settlor Jura Management Trust Reg and Hai Tin Limited (formerly Allied Finance Asia Limited), a company incorporated in Hong Kong (“D1” or “the Trustee”).  

3.  The matters pleaded in the statement of claim were largely derived from a Judgment dated 1 February 2017 of the Zürich District Court (“the Judgment”) in respect of a criminal complaint for embezzlement against the 8^th defendant Rolf Peter Schnellmann (“D8”) and a civil claim for losses brought by the Trustee as private plaintiff (“the Swiss proceedings”) and material from the prosecution file of the Swiss court[1].

4.  D8 was found guilty of qualified embezzlement and sentenced to 3 ½ years’ imprisonment and in respect of the civil claim, the Swiss court awarded the private plaintiff (namely, the Trustee) damage compensation in the sum of €4.346 million.

5.  The present action concerns the maladministration of the funds and assets of the Trust (“Trust Funds”) involving a number of transactions (all without the plaintiff’s knowledge or consent), directed to transferring the Trust Funds to D5 whose parent company, D4, is one of the participating interests in the Trustee.

6.  The following organisational chart summarises the corporate structure of the AFP Group[2]:

7.  The shares in AFP Holdings Limited (the “AFP Group”) the ultimate holding company of the Trustee are owned directly or indirectly as to one-third each by the 7^th defendant Roderic Noel Anthony Sage (“Mr Sage”), the 6^th defendant Bernhard Wilhelm Lampert (“Mr Lampert”) and D4 (the parent company of D5).  Each of them has a beneficial one- third interest in the Trustee.

8.  Mr Lampert was the CEO and authorised representative with single signature authority of the Trustee until about August 2010.

9.  He was also the ultimate beneficial majority shareholder of Allied Finance Corporation, a Panama incorporated company which heads a group of companies (“Allied Finance Group”) of which Allied ME, Allied Finance Trust AG (“AF”), Allied Finance Trust AG (Zürich) (“AFTAG Zürich”), Allied Finance Trust AG (Vaduz) (“AFTAG Vaduz”) and Allied Finance Services SA (“AFS”) are members.

10.  The AFP Group and the Allied Finance Group are affiliated through Mr Lampert’s cross beneficial shareholding. The AFP Group and the Allied Finance Group, inter alia, formed and administered off-shore companies for fund management and trust administration and management for third parties including D5.

11.  D8 was a director and an authorised representative with single signature authority of the Trustee. He was also “head” of AFTAG Zürich, engaged by AFS (acting through Mr Lampert) to provide such services.  His engagement was terminated on 31 July 2010.

12.  Mr Sage was the CEO of the AFP Group at the time.

Background

13.  This narrative is based on the plaintiff’s case as disclosed in his Statement of Claim (“SOC”) dated 23 April 2017 and the 1^st and 8^th affidavits of Marc Nicholas Sturzenegger (“MNS”) respectively dated 6 April 2018 and 12 February 2019.

14.  In about March 2009, the plaintiff who was the sole discretionary beneficiary of the Trust requested the distribution of liquid trust assets in order to invest in German real estate. As at 31 March 2009, the Trust Funds were held at Mirabaud & Cie SA (“Mirabaud”) and had a value of just over €5 million, 90% of which consisted of liquid funds (“Liquid Trust Funds”) and the balance being an illiquid hedge fund investment (“the Illiquid Trust Funds”).

15.  The Trustee apparently had grave concerns over the plaintiff’s mental state and was unable to obtain the protector’s approval to the distributions as he was not responding. It then emerged that the plaintiff had adopted US citizenship causing the Trustee some anxiety and Mirabaud wanted to end its client relationship with the Trust. 

16.  On 28 April 2009, D8 informed the Trustee[3] that “AF [AFTAG Zürich and/or AFTAG Vaduz] in Zürich has taken over the lead in dealing with this client.” D8/AFTAG Zürich thus assumed control of the trust monies. D4 and D5 maintain that they were not involved in the alleged delegation of control of the Trust Funds in April 2009.

17.  At about that time, in April 2009, D8 on behalf of AFTAG Zürich was preparing for its client D5 draft documentation[4] for a scheme being devised for clients referred by D5 with special status (ie clients which otherwise would soon be asked to leave D5).  The eventual solution proposed[5] was to get US clients off form A (a disclosure form) and have them invest through a structure where D4/D5 have control and use of funds without having a reporting problem.

18.  Various meetings were held in Hong Kong and elsewhere for the formulation and/or implementation of what developed into Cash Transfer Structure schemes (“the CTS schemes”) and that, amongst others, Mr Michael Gubser and Mr Daniel Wachli representatives of D4 and/or D5 were involved in such meetings.

19.  The maladministration mentioned earlier involved a number of transactions directed to transferring the Trust Funds to one of the participating interests in the Trustee, namely D4 and its related entities and included the following:

(1) The “Trust CTS Scheme”

20.  This was formulated and implemented to anonymize the plaintiff’s beneficial ownership. Its implementation involved the transfer of liquid trust assets in May 2009 [6] from Mirabaud through special-purpose vehicles (three of which were Hong Kong companies) to the non-interest-bearing account of a newly incorporated/acquired Ras Al Khaimah (“RAK”) company (ie a Dubai offshore company), Karim Limited (“Karim”).

21.  On 24 June 2009, €4,457,355 [7] of funds belonging to the Trust Funds (the “Scheme Trust Monies”) were deposited in Karim’s account.

22.  The objective of the Trust CTS Scheme was the ultimate transfer of the Scheme Trust Monies in Karim’s account to an account with D5 (which is owned by D4) for investment in the Rosmerta Fund with no obligation on D5 to identify the beneficial ownership but for the sole risk and benefit of Karim. The arrangement was intended for Karim to appear in the records of D5 as the beneficial owner of the shares in the Rosmerta Fund with no attribution of ownership to the Trust. The Rosmerta Fund was registered in St Vincent & the Grenadines and Helvetic Investments Pte Limited, a wholly owned subsidiary of D4 was the designated manager of that portfolio.

(2) The Titian Transfer Scheme

23.  When the Trust CTS scheme could not be completed as intended because the Scheme Trust Monies remained blocked in Karim’s account, D8 devised a substitute scheme for the purpose of attaining the ultimate objective of transferring the Scheme Trust Monies to the Rosmerta Fund.

24.  An option/sales agreement dated 23 March 2010 was created between Karim and Baltera Limited (“Baltera”) (controlled by D8) whereby Karim would buy an option from Baltera to sell an old master painting by Titian (“the painting”) for €5 million. It was a condition of the put option that the sale of the painting be completed by 31 December 2010, failing which the transaction would be revoked.

25.  The price of the put option was €4.35 million. It was based on an earlier agreement of December 2009 under which the painting had been sold by D8 via AFTAG Zürich to Kentaur Investments SA for €5 million but that transaction was never completed. The plan which was for the proceeds of sale of the painting to be deposited by Karim without any need to attribute them to the Trust or to declare the plaintiff’s ultimate beneficial ownership of them therefore unravelled.

26.  By way of initial implementation of the Titian Transfer Scheme, D8 procured the transfer of approximately €4.35 million of the Scheme Trust Monies to Baltera’s account in Liechtenstein on 23 March 2010. A month later D8 transferred the same to Swiss Internet Capital Group Ltd (“SICG”) also controlled by D8. As earlier noted, the Swiss court found D8 guilty of embezzlement €4.35 million of the Scheme Trust monies and liable to make compensation of that amount to the Trustee.

27.  At about this time, D8’s position within the Trustee (as director and authorised representative with single signature authority) was terminated on 27 April and 1 June 2010 respectively. His engagement as head of AFTAG Zürich was terminated on 31 July 2010 (see §11 above).

28.  In short, the present position is that the Trust has been deprived of €4.346 million transferred into Karim’s account subject to the value (if any) of the put option over the painting whose ownership and authenticity are in dispute.

29.  As regards the Illiquid Trust Funds, the proceeds were transferred to the bank account of AFTAG Vaduz with D5 on 24 June 2010.

30.  The plaintiff’s complaint is the maladministration of the trust assets described above and the relief sought is primarily the reconstitution of the Trust as if the breaches had not taken place.

31.  The allegations are that D4 and D5 (being one of the participating interests in the Trustee) formulated and/or implemented the Trust CTS Scheme and consented to and acquiesced in the assumption of control of the Trust Funds by AFTAG Zürich/D8 for that purpose thereby becoming trustees de son tort.

32.  It was said that the Trust CTS Scheme and its attempted implementation constituted (i) a breach of the duties of, inter alia, D4 and/or D5 as fiduciaries by reason of the fact that the Trust CTS Scheme allowed the payment of exorbitant fees (representing approximately 8.5% of the total value of the Trust Funds as at 11 May 2009) to entities in the AFP Group and the Allied Finance Group and putting the Trust Funds at risk of the imposition of penalties by the US tax authorities; and (ii) a conspiracy by the participating entities in the Trustee, implemented by Mr Lampert, Mr Sage and representatives and related entities of D4: SOC §20.

(A) The gateways under Order 11 on which the plaintiff relies

(1) Rule 1(1)(j)

33.  Service of a writ out of the jurisdiction is permissible with the leave of the Court if in the action begun by the writ:

“ the claim is brought to execute the trusts of a written instrument being trusts that ought to be executed according to Hong Kong law and of which the person to be served with the writ is a trustee, or for any relief or remedy which might be obtained in any such action”.

34.  D4 and D5 submitted that this gateway does not apply because neither of them is an express trustee appointed under the trust instrument.

35.  The plaintiff has not asserted that D4 and D5 are “express” trustees. The pleaded causes of action against them is that they “acted in relation to the Trust Funds such as to make each of them constructive trustees (trustees de son tort)” [8]. The question therefore is whether constructive trustees come within this gateway.

36.  Mr Fung SC cited Chellaram v Chellarem (No 2) [2002] 3 All ER 17 for the proposition that gateway (j) has no application to constructive trusts. That case concerned the construction of the English counterpart (CPR 6.20(11)) [9] to the Hong Kong provision. Lawrence Collins J (as he then was) stated (at [138]) that CPR 6.20(11) does not apply to constructive trusts, referencing CPR 6.20(14) as providing for constructive trusts and as the reason for confining the application of CPR 6.20(11) to express trustees.

37.  The Hong Kong provision (Order 11, rule 1(1)(j)) is not identical in that it contains the following additional provision: “or for any relief or remedy which might be obtained in any such action” which is not part of CPR 6.20(11).  Mr Fung placed emphasis on the last four words “in any such action” and submitted that the relief and remedy sought are specifically confined to the action against the express trustee to execute a written instrument. It cannot extend to foreign defendants who are not express trustees.

38.  Mr Todd submitted that the word “or” introducing that clause must be disjunctive. Hence any relief or remedy which is sought as part of that action (ie the action against the express trustee to execute the trusts that are subject to Hong Kong law) would extend to other persons if they have aided and assisted such trustee in its breach of trust.

39.  If an action is brought against an express trustee for breach of trust under a written instrument governed by Hong Kong law, such an action would unquestionably fall within the first part of (j) and any consequential relief or remedy against the express trustee would be part and parcel of that action.

40.  On that analysis, the additional provision would serve no purpose.  That scenario could not have been intended. Plainly, the additional provision must have been added to serve a purpose or meet a particular situation not covered by the earlier part of the provision.

41.  On balance, I consider that the additional provision could apply if, for example, in an action brought against an express trustee for breach of trust, the relief or remedy is sought from a person who has aided and abetted that breach of trust by the express trustee and stems from that breach.

42.  Based on the pleaded case (see SOC §§14(1), (2) and (6), 18(2), 20(1) and 23), it would apply to D4 and D5.

(2) Rule 1(1)(p)

43.  Subparagraph (p) reads:

“ the claim is brought for money had and received or for an account or other relief against the defendant as constructive trustee, and the defendant’s alleged liability arises out of acts committed, whether by him or otherwise, within the jurisdiction.”

44.  To come within this gateway which applies to constructive trusts, it is incumbent on the plaintiff to establish that the liability of D4/D5 must arise out of the acts committed, whether by them or otherwise, within Hong Kong and that such acts must be substantial and efficacious.

45.  Without the initial transfer of the Liquid Trust Funds out of the Mirabaud account by the Trustee triggering a series of transfers by way of deposits and withdrawals of the funds through multiple bank accounts of special purpose vehicles two of which were formed in Hong Kong for that purpose, the subsequent chain of events could not have taken place.  The initial transfer by the Trustee was the triggering event followed by multiple deposits and withdrawals by the Hong Kong special purpose vehicles took place in Hong Kong.

46.  D4 and D5 became trustees de son tort by reason of their involvement and participation in the formation of the Trust CTS Scheme and its implementation which was designed to anonymize the plaintiff’s beneficial ownership of the Trust Funds and for its eventual receipt by D5 for investment in investment fund structures it controls.

47.  Subparagraph (p) does not require those acts to have been committed by the foreign defendants sought to be joined so long as the relevant acts were committed in Hong Kong. On this reading of the provision, the present action would also fall within this gateway.

(3) Rule 1(1)(c)

48.  Subparagraph (c) reads:

“ the claim is brought against a person duly served within or out of the jurisdiction and a person out of the jurisdiction is a necessary or proper party thereto”.

49.  As stated in Hong Kong Civil Procedure 2019 at 11/1/17, whether to grant leave involves a three-stage enquiry. It is common ground that D1 is the “anchor” defendant for the purposes of this provision and there is no challenge regarding the forum issue.

50.  D4 and D5 submitted that the plaintiffs have failed to demonstrate that they are necessary or proper parties in the claims against D1. It was said that the assertion that D4 and D5 were pivotal to the trust structure was but a bare assertion and it was not explained why they were pivotal to the trust structure which makes each of them a necessary or proper party to the claim against D1.

51.  Instead of addressing that criticism, the plaintiff fell back on his conspiracy claim to which D4 and D5 are part given that D5 was to be the ultimate recipient of the Scheme Trust Monies under the Trust CTS Scheme for investment in the Rosmerta Fund. On that basis, they would be necessary or proper parties for the purposes of this gateway.

(4) Rule 1(1)(d)(ii)

52.  The relevant part reads:

“ the claim is brought to enforce, rescind, dissolve, annul or otherwise affect a contract, or to recover damages or obtain other relief in respect of the breach of a contract, being (in either case) a contract which … was made by or through an agent trading or residing within the jurisdiction on behalf of a principal trading or residing out of the jurisdiction”.

53.  The plaintiff’s complaints concern the maladministration of the Trust and seeks reconstitution of Trust Funds by way of equitable compensation. Mr Fung submitted that the plaintiff’s claims are not contractual in nature. There never was any contract between the plaintiff and D4 and D5.

54.  The plaintiff submitted that the Trust Deed is a contract under seal. I agree with Mr Fung that even if that were correct, the plaintiff, albeit the sole discretionary beneficiary thereunder, was not a party to the Trust Deed which was made between the settlor and the Trustee. In my view, the plaintiff has not shown that he is within this gateway.

(5) Conclusion

55.  For the reasons set out above, the plaintiff has made out a good arguable case that he is within sub-paragraphs (j), (p) and (c) of Order 11, rule 1(1).

(B) Whether there is a serious issue to be tried

56.  Apart from demonstrating that he is within one or more of gateways relied on, the plaintiff must also satisfy the court that there is a serious issue to be tried on the merits of the claim.

57.  Mr Todd submitted that, in substance, this test is no different from the test under Order 14 applications and there are sound policy reasons for applying the same test. A foreign litigant should not be subjected to proceedings which the defendant would be entitled to have summarily dismissed. That much was common ground.

58.  On the basis that the test for service out of jurisdiction is really the same as the test for summary judgment, Mr Todd submitted that this court should not descend to the merits of any claim based on fraud or dishonesty and invited the court to apply the approach of Order 14, rule 1‌(2)(b). Order 14 expressly excludes summary judgment for fraud or dishonesty.

59.  In the absence of authority (and none was cited) for that approach, I agree with Mr Fung there is no basis for the court not to be concerned with the merits of the plaintiff’s claim based on fraud or dishonesty for the purposes of Order 11.

60.  The plaintiff also invited the court to proceed on the basis that the facts pleaded in the SOC are decided in his favour and there should not be a trial on affidavits, citing the decision in Tay Choo Wah v The Singapore-Johore Express (Pte) Ltd [1992] 1 HKLR 19 followed in GDH Ltd v Creditor Co Ltd [2008] 5 HKLRD 895, [2008] HKEC 1780.

61.  These authorities do not support the plaintiff’s propositions. Both the pleadings and the affidavit evidence need to be considered. In the event that the facts are disputed the court should not attempt to try them on affidavit.

62.  The fact that D4 and D5 have not put in evidence to challenge allegations made for example in SOC §§14 (6), 18(2) and 21 cannot be taken as meaning that those allegations must be taken to be true. Whether or not D4 and D5 have put in a defence or filed evidence challenging the plaintiff’s case is immaterial. The question is whether the plaintiff has shown a serious issue to be tried in respect of each of his causes of action by affidavit evidence.

63.  Various causes of action were pleaded against D4 and D5: knowing receipt, dishonest assistance and conspiracy as well as for breaches of trust and/or fiduciary duties as trustees de son tort.

64.  In broad outline, D4 and D5 submitted that neither the pleadings nor the evidence in support provide the necessary particulars as to how each of them came to have the relevant knowledge of the alleged breach of trust by D1 or have reason to believe that the relevant funds came from a breach of trust. In relation to dishonest assistance no particulars have been given to demonstrate how they had assisted in D1’s breaches of trust/fiduciary duty and why they are said to be dishonest. No facts, matters and circumstances have been pleaded to demonstrate dishonesty.

65.  On the conspiracy issue, it is incumbent on the plaintiff to prove (i) the nature of the agreement; (ii) the unlawful means alleged; (iii) each unlawful act relied on as causing loss; (iv) the fact that each such act was carried out pursuant to the conspiracy; and (v) the relevant state of mind of the putative conspirator: see De Krassel v Chu Vincent [2010] 2 HKLRD 937 at §41. Mr Fung submitted that the plaintiff has not pleaded any particulars on each of the five elements.

66.  MNS’ 1^st affidavit in support of this application made references to the findings set out in the Judgment. It is to be noted that D4 is not mentioned in the Judgment at all and D5 featured only in the context of what the Swiss court found to be D8’s actual aim, which was for the Scheme Trust Monies to end up in Switzerland in D5’s accounts where it would be paid into the Rosmerta Trust[10].

67.  The plaintiff sought to show D4 and D5’s intimate involvement in the formulation and implementation of the Trust CTS Scheme through documentary evidence exhibited as MNS 8 to MNS’ 8^th affidavit the contents of which are described in §§23 – 33 of that affidavit.

68.  For present purposes, the material exhibits in MNS 8 are those covering the period from 19 April 2009 to 20 August 2009. While they show that Mr Gubser and/or Mr Walchli were involved with D8 relating to the setting up the St Vincent Fund requiring a particular structure for their US clients, neither the plaintiff nor the Trust featured in any of the documents. Nor was there any mention of a CTS scheme as such in the memorandum.

69.  The Trust was under the management of D1 (prior to AFTAG Zürich/D8 taking over on 28 April 2009) and was not one of D5’s existing clients. From May 2009 to April 2010, D8 was a director with sole signing authority in D1. He was also verbally tasked with solving the problem with the Trust by D1 and responsible for mandates[11].

70.  By email dated 28 April 2009 to Liz Abenoja, one of the plaintiff’s many investment advisers[12], D8 informed her that AF in Zürich “has taken over the lead in dealing with this client”. It is worth noting that D4 and D5 were not copied on this email.

71.  The 19 April memorandum from D8 prepared for his then upcoming meeting with Mr Gubser was concerned with the position of D5’s existing clients (who would have to leave the Bank i.e. D5) and had nothing to do with the Trust. “Intended clients” simply did not feature.

72.  It is unclear whether by that date D8 had already taken over control of the Trust from D1 although by 28 April he had clearly done so. There is simply no evidence to show when and how D4 and/or D5 learned about the Trust and their role in relation thereto.

73.  Pausing there, the SOC and the supporting affidavits made references to D4 and D5 as being one of the participating interests in the Trustee. That, presumably, is a reference to D4’s one third beneficial interest in the AFP Group. That fact of itself cannot be taken to mean that it knew what was happening in D1 which is a separate corporate entity.

74.  On 28 April 2009, AFTAG Zürich and D8 [13] its site director [14] took the lead (ie assumed control) over the Trust Funds D1 had placed with Mirabaud. That D4 and D5 were not involved in such assumption of control is clear from SOC §18(1) where they are not mentioned.

75.  That D8 and D4 and D5 worked on formulating and developing CTS schemes for IHAG clients from about May 2009 seems tolerably clear. But that is as far as it goes. It was very much a work in progress that appears to have lasted several months.

76.  As late as 6 June 2009, Mr Walchli in his email to D7 and D8 admitted to not being able “to understand what we sell why to whom”, remarking that despite discussions that took place in London his impression was that “we are far away from having mutually accepted solutions throughout all involved organisations (AFP, Allied [D4 and D5])”.

77.  The minutes of a meeting of 20 August 2009 concerning collaboration between D5 and AF, recorded D5 as stating that its position “is still the same as it was already at the Board Meeting in London in May 2009” and that D5 “is still looking for solutions in regard to their overseas clients because they have to leave the Bank by law at the End of 2009 at the latest”.

78.  The plaintiff’s case against D4 and D5 is premised on D4 and D5 being involved from inception as regards the Trust CTS Scheme[15] described in SOC §§21 and 23. Here, a distinction needs to be made between CTS schemes in general and the Trust CTS Scheme which relates specifically to the plaintiff. As recorded in the minutes of the 20 August 2009 meeting[16], D8 considered each client to be “unique”, requiring “an individual consultancy”.  In other words, a CTS scheme was not a “one size fits all” type of scheme.

79.  On 30 April 2009, Mr Lampert informed inter alia Mr Sage and Mr Saji Mathew that the AF group needed the special structure to be ready immediately. By 7 May 2009, “NEW SPECIAL structure with Standard Chartered Bank” had been established as well as destination accounts for three of the companies pleaded at §21(1) of the SOC, namely RSHL, SIL and PAML.

80.  Mr Walchli was one of a number of people who had been sent a copy of the emails which appear to have been internal communications of the Allied Finance Group. But the emails do not show why such structures were needed “immediately” and, critically, no particulars have been provided as to how Mr Walchli came to know that it was in respect of the Trust. 

81.  The Liquid Trust Funds were transferred out of Mirabaud in two tranches: on 14 May 2009 and 26 May 2009 [17] to RSHL, one of the special structure companies incorporated in Hong Kong.

82.  The Scheme Trust Monies were deposited in a non-interest- bearing account of Karim with the SCB Dubai on 24 June 2009.

83.  To make out a case of knowing receipt, the plaintiff has to show that D4 and/or D5 knew of D1’s breach of trust. While “emergency measures” [18] were said to have been taken and the decision made by D8 to liquidise the Trust, no particulars have been provided to show that D4 and/or D5 was aware of such matters and, if so, when that occurred. No particulars have been provided as to when and how D4 and D5 knew about the problems with the Trust and their involvement in providing a solution.

84.  While D5 was copied on the email of 7 May 2009, nothing is known of the context of the 30 April and 7 May emails. The mere fact that Mr Walchli was copied is neither here nor there given D5’s general interest in CTS schemes for its own clients.

85.  The Illiquid Trust Funds were transferred into the account of AFTAG Vaduz at D5. That fact of itself would not render D5 liable as knowing recipients without particulars to show that D5 knew that the transfer was in breach of trust or fiduciary duty.

86.  In my view, the plaintiff has not shown that there is the serious issue to be tried in relation to the knowing receipt claim.

87.  Dishonest assistance requires the plaintiff to establish that D4 and D5 had assisted in some breach of trust or fiduciary duty and were dishonest in doing so. I agree with Mr Fung that there is also no serious issue to be tried given the absence of particulars showing how D4 and D5 had assisted D1’s breaches of trust/fiduciary duty and why each of them is now alleged to be dishonest.

88.  On the conspiracy issue, given the absence of particulars of each of the five ingredients set out in De Krassel v Chu Vincent, there can be no serious issue to be tried.

Conclusion

89.  For the reasons set out above, I do not consider that the plaintiff has shown that there is a serious issue on the merits of any of his claims against D4 and D5.

90.  In view of my conclusion, it becomes unnecessary to deal with the limitation point and I do not propose to do so.

91.  Accordingly, the master’s order dated 17 April 2018 granting leave to serve the amended concurrent writ of summons on D4 and D5 out of the jurisdiction is set aside.

92.  An agreed draft order should be submitted for approval. There is to be an order nisi of costs here and below with certificate for counsel, such costs to be paid by the plaintiff to D4 and D5, to be taxed if not agreed.