LU JUN v. YU QI AND OTHERS

HCCW 282/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

COMPANIES (WINDING-UP) NO 282 OF 2010

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J U D G M E N T

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INTRODUCTION

1. This is the trial of the Re‑Amended Petition (“the Petition”) of the petitioner regarding a Hong Kong company by the name of Astrotec Company Limited (“the Company”).

2. According to the Petition, the present shareholders of the 100 issued shares of $1 each of the Company are as follows:

(i)	The petitioner	15 shares
(ii)	The 2nd respondent	84 shares
(iii)	The 3rd respondent	1 share

I shall say more about the transmission of shares below.

3. Although the 1^st respondent (“Yu”) does not appear to be a registered shareholder of the Company, she together with the 3^rd respondent are the main protagonists against the petitioner.  They are represented by the same legal team.

4. During the trial, I have only heard two witnesses give evidence. The petitioner gave evidence from a court room on the Mainland by video‑link because he had been held in custody by some law enforcement department and was not able to come to Hong Kong to give evidence.  More about this later.  Yu gave evidence in opposition to the Petition.

5. Although the Petition claims an order that the petitioner’s shares in the Company should be bought by the respondents or one or more of them and, in the alternative, an order that the Company should be wound up, by the time of the trial, the parties were agreed that there should be no winding up order made and that there should be a buy‑out order.  The main dispute remaining is on what terms the buy‑out order should be made and this will depend on the findings of the court on certain issues between the parties.

6. The parties are also agreed that the court will only have jurisdiction to make a buy‑out order if it is satisfied that the Petition is well founded.

7. The claim for the buy‑out order by the petitioner is based on section 168A of the Companies Ordinance.  Section 168A(2) reads as follows:

“168A. Alternative remedy to winding up

in cases of unfair prejudice

(2) If on any petition under subsection (1) the court is of opinion that the specified corporation’s affairs are being or have been conducted in a manner unfairly prejudicial to the interests of the members generally or of some part of the members (including the member who presented the petition), whether or not such conduct consists of an isolated act or a series of acts -

(a) the court may, with a view to bringing to an end the matters complained of –

(i) make an order restraining the commission of any such act or the continuance of such conduct;

(ii) order that such proceedings as the court may think fit shall be brought in the name of the specified corporation against such person and on such terms as the court may so order;

(iii) appoint a receiver or manager of the whole or a part of a specified corporation’s property or business and may specify the powers and duties of the receiver or manager and fix his remuneration; and

(iv) make such other order as it thinks fit, whether for regulating the conduct of the specified corporation’s affairs in future, or for the purchase of the shares of any members of the specified corporation by other members of the specified corporation or by the specified corporation and, in the case of a purchase by the specified corporation, for the reduction accordingly of the specified corporation’s capital, or otherwise; and

(b)  the court may order payment by any person of such damages and interest on those damages as the court may think fit to any members (including the member who presented the petition) of the specified corporation, whose interests have been unfairly prejudiced by the act or conduct.”

8. In Shareholders’ Rights, Robin Hollington, 6^th Ed, it is stated at paras 8‑31 and 8‑33 as follows:

“ As a matter of general law of contract the parties may reach an agreement which includes the term that one side shall purchase the other’s shares at a price to be determined by the court: the settlement agreement need not cover all the issues between the parties. In such a case, the court will make an order for the purchase of the shares in question by the party in question,, with directions for the determination of the price.”

“ Where a respondent is willing to commit himself to buying out the petitioner at a value to be determined by the court, but without making any concession about the unfair prejudice alleged against him, technically the court has to make a finding that the petition is well-founded, before making a share purchase order [referring to Re Bird Precision Bellows Ltd., [1986] Ch. 658], but in practice this should not prove an insuperable obstacle, given the elasticity of the concept of unfair prejudice.”

9. In Re Bird Precision Bellows Ltd [1986] Ch 658, Oliver LJ said at 670F‑H:

“ But it is the majority shareholders’ own case, and it was so put to the judge, that no such admission had in fact been made. As I have pointed out, the terms of section 75(3) are perfectly clear. They simply provide that if the Court is satisfied that a petition under this section is well founded, it may make such order as it thinks fit for giving relief in respect of the matters complained of. If of course, it is not so satisfied, then it has no jurisdiction to give the relief which is referred to in section 75(3) of in 75(4). As it seems to me, this only has to be read for it to be seen straight away that the court, in making a valuation of the shares, can only do so if it is satisfied that the petition is well founded.

 The judge therefore had to go into these questions, because it was expressly said that there was no admission of any unfair prejudice, and so the judge had to go into the question of whether there had been unfair prejudice to the petitioners and how it had taken place, in order to see whether he had jurisdiction at all to embark on the inquiry which he was invited to undertake.”

10. Hence, notwithstanding the indication by the petitioner that he is willing to sell his shares and that by Yu that she is willing to buy the same, I will still have to determine the main issues between the parties. In any event, it seems that some guidance will have to be provided to the valuer to be appointed to enable him to value the shares.

11. In the course of the events leading up to the trial, there were interlocutory applications by the parties.  I shall refer to those below as and when appropriate.

HISTORICAL BACKGROUND

12. The facts of this case are quite complicated.  For the convenience of the readers of this Judgment, I believe that it will be useful for me to reproduce and annex as Appendix 1 to this judgment a corporate structure chart which has been exhibited as exhibit “LJ‑5” to the Affirmation of the petitioner filed on 2 July 2010.  I have adapted the exhibit by adding the abbreviated English names against the respective names of the companies set out therein in Chinese.  I appreciate that Yu may not agree with every detail contained therein, notably the allegation that the 85% shareholding in the Company belongs to “Yu Qi and Associates” and not just to herself.  The chart will however constitute a convenient basis for my recital of the facts as they evolved.

13. The Company (formerly known as Happy Dragon Technologies Limited) was incorporated in Hong Kong on 23 July 2004.  The change of the English name was certified by the Registrar of Companies on 29 October 2004.  The name of the Company in Chinese has always been「恒龍科技有限公司」.

14. It is common ground that the Company is involved in the industrial gas supply business on the Mainland, although there is dispute between the petitioner and Yu as to how it all arose and about the nature and ownership of the beneficial interest of the shares on both sides.  For present purposes, I shall first refer to some of the agreements between various parties which came into existence and set out some of the facts before I deal with the respective allegations by the parties.

15. A co‑operation agreement (“the Baslow Agreement”) dated 10 September 2004 was made between a Baslow Technology Ltd. (a BVI company) (“Baslow”) as “the Appointor” and a 「上海俊瑞投資管理有限公司」(“Shanghai Junrui”) as “the Appointee”.  It is common ground that Baslow was connected with Yu and Shanghai Junrui was connected with the petitioner.  The recital in the Baslow Agreement set out, inter alia, the following facts:

(i)   The Appointor was in possession of know-how for the supply of relevant gases and its process and was looking for a suitable joint-venture partner in China.

(ii)    The Appointee was in possession of experience and social resources regarding investment management and was willing to accept the appointment to look for and negotiate with a suitable joint-venture partner for the Appointor.

(iii)   The Appointor agreed to authorize the Appointee to carry out preliminary negotiations with an intended joint‑venture partner located by the Appointee, namely, a 「湖南郴電國際發展股份有限公司」(“Hunan Chendian”), and to take part in negotiations between the Appointor and Hunan Chendian.

16. The Baslow Agreement went on to provide in effect that the Appointee would act as a go‑between for the Appointor with regard to Hunan Chendian.  If one or more joint-venture companies were to be formed subsequently in China between the Appointor and Hunan Chendian, then the Appointee would be entitled to a 5% shareholding in each of such companies and such 5% shareholding would be paid for by the Appointor in consideration of the service provided by the Appointee.

17. On 8 October 2004, a co‑operation framework agreement (“the Framework Agreement”) was signed between a「湖南匯銀國際投資公司」(“Hunan Huiyin”), a subsidiary of Hunan Chendian, and the Company.  This agreement related to a joint‑venture between the parties in investing in three industrial gas projects and their intention to establish three independent joint‑venture companies for that purpose.

18. As will be seen, two of the three independent joint‑venture companies to be established were in fact Changzhou and Tangshan, although it will also be seen that other companies associated with Hunan Chendian also became involved as investors.  It is common ground that the third joint-venture project contemplated in the Framework Agreement was a project in Hefei and that it was subsequently not proceeded with.

19. On 12 October 2004, a joint‑venture agreement (“the Changzhou Agreement”) was signed between the following parties:

(i)    Hunan Huiyin;

(ii)   a company by the name of「北京金鼎鼎科技發展有限公司」(“Beijing Jin Ding Ding”);

(iii)   the Company;

(iv)   a Brighton Kin International Limited (a company controlled by the petitioner); and

(v)   a company by the name of 「北京今日捷報投資咨詢有限公司」(“Bejing Today”).

20. By the Changzhou Agreement, the parties thereto agreed to establish a joint‑venture company, in effect, Changzhou.  It was further agreed that Hunan Huiyin would contribute capital in the sum of RMB24,924.900 (US$3,003,000) (45.5%), Bejing Jin Ding Ding in the sum of RMB2,739,000 (US$330,000) (5%), the Company in the sum of US$1,287,000 plus technical know‑how worth US$1,320,000 (totalling 39.5%), Brighton Kin in the sum of US$330,000 (5%) and Beijing Today in the sum of RMB2,739,000 (US$330,000) (5%).

21. Changzhou was then incorporated as a joint‑venture company pursuant to the Changzhou Agreement.

22. On 22 October 2004, a co‑operation agreement (“the Hunan Huiyin/Shanghai Junrui Agreement”) was signed between Hunan Huiyin as “the Appointor” and Shanghai Junrui as “the Appointee”.  The third recital refers to the fact that the Appointee had located a joint‑venture partner for the Appointor, namely, the Company.  Significantly, as will be seen later, it also refers to the fact that the people behind Baslow were led by a person called「孫忠國」(Sun Zhongguo) (“Mr Sun”) and the fact that Baslow had another joint-venture enterprise on the Mainland by the name of 「湖南盈德氣體有限公司」 (“Hunan Yingde”).  This agreement provided that the Appointor should pay to the Appointee an agency fee in the sum of RMB3 million.

23. On 30 October 2004, another co‑operation agreement (“the Astrotec/Brighton Kin Agreement”) which was identical or very similar to the Baslow Agreement was signed between the Company as “the Appointor” and Brighton Kin as “the Appointee”.

24. On 12 September 2005, another joint‑venture agreement (“the Tangshan Agreement”) was signed between the following parties:

(i)  Hunan Huiyin;

(ii)  the Company;

(iii)  Brighton Kin; and

(iv)  Beijing Today.

It will be noted that Beijing Jin Ding Ding did not take part.

25. By the Tangshan Agreement, the parties thereto agreed to establish a joint-venture company, in effect, Tangshan.  It was further agreed that Hunan Huiyin would contribute capital in the sum of US$2,777,500 (50.5%), the Company in the sum of US$1,072,500 in cash plus technical know-how worth US$1,100,000 (totalling 39.5%), Brighton Kin in the sum of US$275,000 (5%) and Beijing Today in the sum of US$275,000 (5%).

26. It can be seen that the Changzhou Agreement and the Tangshan Agreement are very similar in nature except that, for the latter, Beijing Jin Ding Ding is not a party and the extra 5% shareholding has been taken up by Hunan Huiyin.

27. The nature of Xinyu is similar to that of Changzhou and Tangshan.  It is not clear as to when Xinyu came into existence but it seems that there is no dispute that Xinyu is owned as to 60% by the Company and as to 40% by a「上海郴電裕旺投資有限公司」(“Shanghai Chendian”) which is a company associated with Hunan Chendian.  It is also not in dispute that a「上海童旺投資有限公司」(“Shanghai Tongwang”), a company belonging to the petitioner, is an investor in Shanghai Chendian to the extent of 17.5%, although Yu complains that she was not aware of this and that this would make the petitioner a secret and indirect investor in Xinyu.

28. It is common ground that Shanghai Hanglong is not an industrial company but acts as a consultant.  It is wholly owned by the Company.

DISPUTE AS TO THE RESPECTIVE ROLES OF THE PETITIONER AND YU AND THE BENEFICIAL OWNERSHIP OF THEIR RESPECTIVE SHAREHOLDINGS

29. Against the background of the documents and facts referred to above, I now go into the evidence of the parties which deal with the respective roles of the petitioner and Yu and the beneficial ownership of their respective shareholdings.

(i)    The case of the petitioner

30. I first summarise the account given by the petitioner.

31. He had known Yu since the 1990’s.  At that time, Yu was an employee of the Shanghai International Trust and Investment Co and was responsible for providing registration and consultancy service to foreign investors setting up enterprises in Shanghai.  As far as he knew, Yu had not managed or operated any industrial business.  The petitioner himself had obtained his tertiary qualifications in the areas of investment, finance and management and had acquired considerable experience in such areas.

32. In 2000, the petitioner was employed by a「德隆國際戰略投資有限公司」(“D’Long”) and assisted in the management of various listed companies in which D’Long had an interest.  He had also taken part in numerous mergers and acquisitions of various Mainland companies which he recommended to a「湘火炬汽車集團股份有限公司」(“TAGC”), which company was then listed on the Shenzhen Stock Exchange.  In or about October 2001, Mr Sun and TAGC together set up a joint venture in Hunan, namely, Hunan Yingde, in which Baslow had a 20% interest.  It will be noted that the fact of Mr Sun’s leadership in Baslow and the joint‑venture enterprise between Baslow and Hunan Yingde were mentioned in the Hunan Huiyin/Shanghai Junrui Agreement referred to in para 22 above.  That, as I understand the evidence, was how the petitioner first established a business relationship with Mr Sun and Baslow in which Yu also had an interest.

33. Prior to that, Mr Sun and a Mr Trevor Strutt (“Mr Strutt”) formerly worked for a BOC Limited which was the largest provider of industrial, medical and special gases in the United Kingdom and Ireland.  Mr Sun specialized in marketing whereas Mr Strutt had the technical know‑how about industrial gases.

34. In about 2000, Mr Sun and Mr Strutt took steps to set up their own industrial gases business.  They incorporated Baslow in the British Virgin Islands.  Mr Sun had a 60% interest, Mr Strutt a 25% and Yu a 15% interest.  Mr Sun had provided the main source of the investment funds in Baslow.  It was Yu who introduced the petitioner to Mr Sun which introduction led to the TAGC deal referred to in para 32 above.

35. In about 2004, D’Long suffered from financial difficulties and the petitioner left its employment in about June 2004.  Mr Sun instructed Yu to approach the petitioner again for introduction of potential investors for Baslow’s business.  The petitioner introduced Hunan Chendian whose General Manager, Liu Xiaowen, was his friend and former colleague, as a potential investor.

36. At that time, Mr Sun and Baslow had already identified three potential projects, namely, Changzhou, Tangshan and the project in Hefei, as mentioned above.

37. The introduction by the petitioner of Hunan Chendian to Mr Sun and Baslow eventually led to the signing of the Baslow Agreement, which was in fact signed by Mr Sun on behalf of Baslow.  The Baslow Agreement was subsequently replaced by the Astrotec/Brighton Kin Agreement.  The effect of both agreements was to give a 5% interest in the joint-venture projects for his service as a go‑between and causing the parties to come together to carry out the joint‑ventures.

38. The petitioner assisted Mr Sun in his negotiations with Hunan Chendian.  Mr Sun and Baslow eventually decided to use the Company to enter into the joint‑ventures with companies in the Hunan Chendian group.  Mr Sun was so impressed with the performance of the petitioner that he was invited or allowed to make a 15% investment in the joint‑ventures.  Mr Sun was anticipating that he would have no time to manage and operate the joint‑venture companies because he had to concentrate on Hunan Yingde which had plans to become listed in Hong Kong.

39. As is clear from what was said above, the Framework Agreement, the Changzhou Agreement and the Tangshan Agreement were entered into between the Company’s side and the Hunan Chendian’s side.

40. Thus, pursuant to the Baslow Agreement, the petitioner, through his company Brighton Kin, was given an equity interest of 5% in the Changzhou project by virtue of the Changzhou Agreement in October 2004.  Subsequently, pursuant to the Astrotec/Brighton Kin Agreement, the petitioner again through Brighton Kin, was given an equity interest of 5% in the Tangshan project by virtue of the Tangshan Agreement in September 2005.

41. In addition, the petitioner was allowed to become an investor in the Company.  He paid for his 15 shares in the Company in the total sum of RMB3,645,000 to Mr Sun by instalments between July 2005 and February 2006.  Such payments are supported by bank transfer slips in favour of Mr Sun produced by the petitioner.

42. The shares in the Company which were supposed to be issued to Yu and the petitioner were not in fact issued in their respective names.  They were held by the 2^nd respondent as nominee under a Nominee Services Indemnity Agreement dated 23 January 2006 as to 85% for Yu and 15% for the petitioner.

43. The understanding of the petitioner was that the initial shareholders of the Company were Mr Sun, Mr Strutt and Yu (through her father Yu Jin Bin (“Mr Yu”)) in the same proportion as in Baslow as set out in paragraph 34 above.  He believed that the 15% shareholding was transferred to him by Mr Sun.

44. Yu was partially responsible for setting up the joint‑venture companies, Changzhou and Tangshan, in the sense that she handled the documentation and formalities for the incorporation and registration of the companies in conjunction with the representatives of Hunan Chendian.

45. In about May 2005, upon the invitation of Mr Sun, the petitioner began to take part in the management and operation of the Company and its business. He established a comprehensive system of management for the Company which included support, communication and monitoring systems in relation to Changzhou, Tangshan and, subsequently, Xinyu.  He was also responsible for the arrangement of financing, development of new projects and human resources matters.  Yu and her father were never involved in the same.  The petitioner was however not involved in the accounts of the Company which were dealt with by Yu.

46. Subsequently when the petitioner sensed that there was something wrong with Yu, he instructed the 2^nd respondent to transfer his 15 shares to him.

(ii)   The case of Yu

47. I now deal with the relevant parts of the evidence given by Yu.

48. According to Yu, she knew the petitioner in the 1990’s.  In about 1996 and 1997, she introduced the petitioner to work for a Taiwanese company in Shanghai.  Later the petitioner worked for D’Long as a Vice‑General Manager in its Strategic Development Management Department.

49. Yu says that she had invested in the bulk gas supply industry since 2000. Before setting up the Company in October 2004, she together with other parties operated Baslow for the investment in the bulk gas supply industry. She referred to the contemplated projects in Changzhou, Tangshan and Hefei.  At first, it was intended that Baslow would be used as the investment vehicle. Subsequently, it was decided that the Company would be used instead.  Her father, Mr Yu, was “the initial shareholders and representative of Astrotec”.

50. Yu says that it was the petitioner who first approached her and offered his service of looking for investors.  He then introduced Hunan Chendian to Yu. She says that it was she who negotiated with a Mr Deng of Hunan Chendian. She admitted that Brighton Kin was owned by the petitioner.

51. Yu says that she had promised to reward the petitioner for a successful introduction of investors by giving him a commission.  Although the 5% equity in the joint‑venture companies was much higher than the normal 1%, she was happy to agree to the same.  Hence, the Baslow Agreement and the Astrotec/Brighton Kin Agreement and the subsequent 5% shareholdings of Brighton Kin in Changzhou and Tangshan.

52. She says that the management of Changzhou and Tangshan was vested in the respective boards of directors of them which comprised representatives from Hunan Huiyin and the Company.  Her father was appointed as a director on both boards initially, but he seldom participated in the daily management/operation of those companies.  It was only in late 2005 that the petitioner was invited by her to participate in the operation of the Company which had to monitor the operation of the joint‑venture companies.  She says: “I was not keen to move and travel extensively at the time in monitoring the operation of the joint venture companies so there was a need to ensure the staffs of Astrotec that were at the respective joint ventures would ensure the above objective be maintained.”

53. She then decided to ask the petitioner to assist in the management of the Company first on a part‑time and later on a full‑time basis at a salary of between RMB15,000 and RMB20,000 per month.

54. She says that further in order to provide the petitioner an incentive to work for her, she offered to the petitioner 15 shares in the Company.  On the other hand, she needed some sort of assurance from the petitioner that his performance would be guaranteed.  It was therefore agreed between her and the petitioner that as a condition for the 15 shares of the Company to be transferred to him, he was to repay an amount of RMB3,645,000 on her behalf to Mr Sun being money that she owed to Mr Sun.  She says: “The amount made by the petitioner represented 15% of the injection of the cash capital by Astrotec (by way of my personal loans to Astrotec) to the Changzhou and Tangshan projects.”  She further says that the money paid by the petitioner was much less than the worth of 15 shares in the Company.  It was clearly understood between her and the petitioner that he was only an employee of the Company.  The 15 shares were transferred to the petitioner by her father.

55. The petitioner was appointed as a director of the boards of Changzhou and Tangshan in or about February 2007.  “He was responsible for supervising the staff of Astrotec for the management/ operation of the joint ventures.”

56. She then went on to make an admission that the Company was basically a holding company.

57. The abovementioned evidence is mainly contained in the Affirmation of Yu filed on 19 August 2010.  It is to be noted that, up to that stage, she had hardly mentioned the name of Mr Sun except that she requested the petitioner to pay the “assurance money” in the sum of RMB3,645,000 direct to Mr Sun “being money that I owed the said Sun Zhongguo.”

58. Mr Sun has not been tendered as a witness for the respondents.  In support of her allegations, Yu has produced two pieces of documentary evidence:

(i)   A copy of a “payment instruction” to the petitioner dated 1 August 2005 and exhibited as Exh “YQ-10” to her Affirmation filed on 19 August 2010, a copy whereof I annex to this judgment as Appendix 2.

(ii)    A copy of a Confirmation Letter by Mr Sun dated 21 October 2010 exhibited as Exh “YQ-31” to her 3^rd Affirmation filed on 22 October 2010.

59. The position of the petitioner is that he had never received the said payment instruction and that no weight should be attached to the said Confirmation Letter.  I shall deal with them below.

60. Yu went on to say that in or about April 2007 she set up Xinyu for the Xinyu project.  She decided to carry out this project all by herself without any other investor.  She financed it all and the petitioner had no interest in it.

61. Yu further says that in May 2007, she also set up Shanghai Hanglong for the management/operation of the joint‑ventures in China and that the petitioner was instructed to look after the management of Xinyu and Shanghai Hanglong, including their accounts.  Later, it was decided that Hunan Chendian would be asked to join as an investor in Xinyu.  It resulted in Shanghai Chendian having a 40% and the Company a 60% interest in Xinyu.

(iii)   My findings

62. On the whole, I accept the petitioner’s evidence and reject that of Yu regarding how it came about that the petitioner became a 15% shareholder in the Company.  I find the following facts:

(i)    The petitioner did pay the sum of RMB3,645,000 to Mr Sun as consideration for the 15 shares in the Company which were initially transferred to the 2^nd respondent who held the same as nominee for the petitioner.

(ii)    The said 15 shares are beneficially held by the petitioner now and not subject to any condition as alleged by Yu.

(iii)   At all material times, the Company had an interest as shareholder in the four companies, namely, Changzhou, Tangzhan, Xinyu and Shanghai Hanglong to the extent as depicted in the corporate structure chart (Appendix 1 hereto) and the petitioner as a 15% shareholder in the Company accordingly had an indirect interest in the four companies.  It is certainly not the case that Xinyu belongs to Yu alone as she seems to have suggested in her evidence.

63. I shall set out the reasons for my abovementioned findings hereinafter.

64. First of all, I find the various agreements between the various parties referred to above to be wholly logical and consistent with the evidence of the petitioner. It is nothing unusual and indeed very reasonable for the petitioner to be promised a 5% shareholding free of charge in any joint‑venture which would result from his introduction of an investor.  He was in fact given a 5% shareholding in both Changzhou and Tangshan through his own company Brighton Kin.  Such reward would not have anything to do with the subsequent service which he provided in managing and operating the joint-venture companies as a representative of the Company.

65. Secondly, I also find that it is logical that the petitioner was invited to be a 15% shareholder in the Company which was used to hold an interest in all the joint‑venture companies, namely, Changzhou, Tangshan and Xinyu, in order to give an incentive to the petitioner to manage and operate the joint‑venture companies.  As Yu has admitted as detailed above, the petitioner was given the task of managing those companies.

66. I find Yu’s allegation about the petitioner being only an employee earning around RMB20,000 per month but being willing to pay the sum of RMB3,645,000 as a refundable security for his good performance wholly incredible.  No employee in his right mind would do such a thing.  Furthermore, why should Yu bother to arrange for the 2^nd respondent to hold 15 shares in the Company in trust for the petitioner at all.  According to her, the figure of 15 shares was not even suggested by the petitioner.

67. The so‑called “payment instruction” referred to in para 58(i) above (Appendix 2) hereto is actually entitled “Shareholder Loan 支付指令”.  It is addressed to the petitioner. In the first paragraph, it is recited that Mr Yu intended to transfer a 15% shareholding in the Company to the petitioner for free as an incentive for him to manage the Company.  At the same time, as security for his management of the Company, the petitioner had to be responsible for 15% of the shareholders’ loan which was injected into Changzhou and Tangshan as capital which amounted to US$444,675.  In the second paragraph, it is said that part of the shareholders’ loan would be transferred from under her name to his name and he should therefore pay the sum of US$444,675 (equivalent to RMB3,645,000) on her behalf to Mr Sun.  In case the petitioner were to leave the Company for any reason, that part of the shareholders’ loan could be transferred back to her.

68. I find a few aspects of this document problematic.  First of all, it does not make sense for the declared objects to be achieved in such a roundabout way.  The simplest way of providing an incentive to a staff member is to give him a cash bonus or bonus shares or a share option.  Another way is to let the staff member use his own money to invest in the shares in the Company, perhaps at a discount.  I cannot see any reason for giving the shares to the petitioner free of charge and at the same time requiring him to pay money to take over part of the shareholders’ loan.  Bonus shares are usually given after the staff’s performance has been proved to be satisfactory.  Secondly, why should the petitioner not be asked to make payment to Yu herself and, if Yu really owes Mr Sun money, why she cannot then use the money to repay Mr Sun?  Thirdly, according to Appendix 2, if the petitioner were really to leave the Company, he could transfer his part of the shareholders’ loan back to Yu and, presumably, Yu would then repay him the sum of US$444,675 or RMB3,645,000.  The petitioner would then still end up with the 15 shares which he obtained for free.  Where then is the security for good performance?  Fourthly, one would have expected that Yu would have asked the petitioner to sign on a copy of this document to indicate his acceptance of its terms or some other agreement setting out the terms as alleged by her.  She did not.

69. In all the circumstances, I accept the evidence of the petitioner that no such document was ever given to him.  I find that this document was produced by Yu probably after the event with a view to explaining why the petitioner made payment of the sum of RMB3,645,000 and why he paid the same to Mr Sun and not to her.

70. At this juncture, I should record that I find the petitioner to be a straightforward, spontaneous and honest witness.  On the other hand, I find Yu to be a sophisticated, knowledgeable and experienced businesswoman but an evasive and untruthful witness.  I accept the evidence of the petitioner and reject that of Yu on the material aspects where they differ.

71. I now deal with the Confirmation Letter by Mr Sun.  It is not a witness statement, statutory declaration or affirmation.  Mr Sun of course did not give evidence in court.

72. By the Order of Barma J dated 7 February 2011, it was ordered that the affirmations filed by the parties should stand as evidence‑in‑chief at the trial and that all deponents of the affirmations were to attend trial for cross‑examination failing which their affirmations could not be relied upon.

73. Mr Sun’s Confirmation Letter therefore cannot amount to any testimony by him which can be relied upon by the respondents, it not being an affirmation and he not having been tendered for cross‑examination.

74. The evidence of the petitioner contained in his numerous affirmations contains important allegations about the involvement of Mr Sun.  Yu quite clearly had had access to Mr Sun and should have asked him to make an affirmation and called him as a witness to counter the petitioner’s allegations.  She did not do so.  There is therefore ample room for me to draw the inference that Mr Sun is not in a position to deny the allegations of the petitioner regarding him. I so draw such an inference.

75. I also note the point which was raised by Mr Jonathan Wong in his cross‑examination of Yu, namely, that if Xinyu was entirely Yu’s own baby and had nothing to do with the petitioner, why she did not use a separate corporate entity to hold her interest in Xinyu but had to use the Company to do so.  Furthermore, the petitioner did in fact manage and operate Xinyu in addition to Changzhou and Tangshan.

76. I further take into consideration the third recital in the Hunan Huiyin/Shanghai Junrui Agreement.  It refers to the fact that the people behind Baslow were led by Mr Sun and that Baslow was involved in Hunan Yingde (see para 22 above).  The authenticity of this document has not been challenged by the respondents.  It is a contemporaneous document dated 2004 when there was no possibility of anybody contemplating litigation.  It supports the allegation on the part of the petitioner regarding Mr Sun, Baslow and Hunan Yingde.

77. Finally, I have reviewed the evidence consisting of the recording and transcript of a meeting which took place between Mr Sun, the petitioner and Yu at the Grand Hyatt Hotel, I believe, in Shanghai, in September 2008 produced by the petitioner.  The authenticity and accuracy of the same was not challenged by Yu.  Her only objection to the recording was that it was done without her knowledge or consent.  The petitioner’s answer was that it was done with her knowledge and consent and that on other occasions recordings were also made with her knowledge and consent.  This piece of evidence was adduced by the petitioner for the purpose of showing that, contrary to the allegation of Yu, even in September 2008, Mr Sun was very much in control and involved in the affairs of the Company.  Both on affirmation and in cross‑examination, Yu sought to explain that what was discussed during this meeting was only part of a casual conversation between the three participants.  In my judgment, the recording and transcript show quite clearly the status and involvement of Mr Sun.  The discussion certainly was not a casual conversation.  I reject the evidence of Yu and accept that of the petitioner.  I find that Mr Sun was the real boss in relation to the Company even up to September 2008.

78. In all the circumstances, I make the findings of fact set out in para 62 above.

THE PETITIONER’S COMPLAINTS

79. I now come to deal with the petitioner’s complaints about oppression of him by Yu.

80. They are as follows:

(i)    wrongful exclusion of the petitioner from participating in the management of the Company;

(ii)   wrongful attempts at increasing the share capital of the Company with a view to diluting the petitioner’s shareholding therein;

(iii)   the problematic disposal of Shanghai Hanglong to First Master Investments Limited (“First Master”); and

(iv)   prejudice caused to the petitioner by the surreptitious treatment of a dividend payment from Changzhou to Shanghai Hanglong.

I shall deal with these complaints below.

Wrongful exclusion of the petitioner from the management and wrongful attempts at dilution of share capital

81. It would be convenient for the first two complaints to be dealt with together.

82. According to the petitioner, in or about March or April 2010, Yu began to persuade the petitioner to sell his shares in the Company to Yingde Gases Group Company Limited (“Yingde”) or its associated company on terms that the petitioner would not get cash but shares in Yingde in return and that he would also have to give certain undertakings.  Yingde’s predecessor is Hunan Yingde.  Yingde has been listed on the Stock Exchange of Hong Kong and is under the control of Mr Sun. The petitioner informed Yu that he was willing to sell his shares but that the terms offered were unreasonable and unacceptable.  Yu thereafter began to conduct the affairs of the Company in a manner prejudicial to the petitioner.

83. At that time, the petitioner had been an executive director of Changzhou and Tangshan and a director and the general manager of Xinyu.

84. In the late evening of 25 May 2010, Yu caused the office of the Company in Shanghai to be entered and the desks and drawers of all staff under the petitioner to be broken open and all documents removed therefrom.

85. In the early morning of 26 May 2010, Yu sent an email to the petitioner to the effect that the Company had resolved that all duties and functions of the petitioner in the Company would cease with immediate effect and that he was no longer permitted to work in the office of the Company.  Regarding the Astrotec/Brighton Kin Agreement, she would represent the Company in taking over completely the management right of Brighton Kin in Changzhou and Tangshan.  In the Final Submission by Yu, it is said at para 15 thereof: “It is not disputed that Lu was removed from management of the JVs.”

86. On or about 1 June 2010, the petitioner was informed by the company secretary of the Company that Yu intended to transfer one of her 85 shares in the Company to the 3^rd respondent.

87. On 7 June 2010, notice was caused by Yu to be issued for holding an EGM of the Company on 24 June 2010 to increase the authorized share capital of the Company from $10,000 to $132,000,000 followed by a rights issue of shares.

88. There then followed correspondence between Deacons, the solicitors acting for the petitioner, and Hastings & Co, the solicitors acting for Yu, in which the former complained about various matters, including the proposed EGM.  By letter dated 14 June 2010, the latter informed Deacons that the proposed EGM would not be proceeded with.

89. On 9 June 2010, the petitioner instructed the 2^nd respondent to transfer his 15 shares into his own name which was done.

90. On 15 June 2010, the petitioner was informed that the Company’s sole corporate director would be changed from Exact Administration Limited to Exceedor China Services Ltd (“Exceedor”).

91. It is common ground that both Exceedor and the 3^rd respondent are under the control of Yu.  Yu is the director of Exceedor and her father Mr Yu is the director of the 3^rd respondent.

92. On 19 June 2010, Yu sent an email to the petitioner claiming that in order to solve the Company’s cash problem, the Company would have to make a second share allotment decision.  It enclosed a copy of a notice of another EGM to be held on 5 July 2010 issued by Exceedor.  This time, the proposal was to increase the authorized share capital to $20,000,000 followed by a rights issue of shares.  It was also proposed to pay a director’s fee of $600,000 payable at $50,000 per month.  This proposal, if passed, would of course benefit the new sole director, Exceedor.

93. On 20 June 2010, Yu sent to the petitioner three Deeds of Assignment and a draft loan agreement, the effect of which was to create a situation whereby the Company became indebted to the 3^rd respondent in the sum of $111,680,213.38 as from 1 April 2010.  This was on the basis that the current three creditors of the Company, namely, Yu, Mr Yu and Exceedor, had decided to assign their debts to the 3^rd respondent. The terms were to be changed to repayment on demand.  The petitioner was asked to agree to the same.

94. By a letter dated 24 June 2010, Deacons protested on behalf of the petitioner to Hastings & Co about, inter alia, the matters set out in paras 92 and 93 above.  It complained in effect that the emergence of Exceedor as a creditor of the Company was a mystery and that the whole situation was created by Yu in order to justify the proposed fund‑raising exercise.  It also gave notice of issue of legal proceedings and an injunction application.

95. On 28 June 2010, Yu sent an email to the solicitors of Deacons to reply to their said letter of 24 June 2010.

96. The petition in these proceedings in its unamended form was issued on 30 June 2010.  It was followed by an ex parte application for an injunction before Chu J who granted an Order dated 2 July 2010 restraining Yu from holding the EGM to increase the share capital of the Company.

97. The matter was then dealt with inter partes.  It was adjourned a number of times.  Other applications were subsequently made by the respective parties.

98. The long and short of it was that the proposed increase of the authorized share capital of the Company to $20,000,000 was never carried out.  Notwithstanding this, the Company has carried on without any apparent financial difficulty.

99. The audited accounts of the Company for the past few years show that the administration and operating expenses of the Company have been minimal. Further, no director’s fee has ever been paid.  Furthermore, the loans and other payables owing to related parties have always been unsecured, non‑interest bearing and not repayable within one year.

100. Yu has not been able to offer any satisfactory explanation for the sudden need for money by the Company to justify the proposed increases in capital.  It is also admitted by Yu that the petitioner had not been requested to help finance the Company prior to the proposals to increase the capital.

101. In my judgment, the sudden need for money by the Company as alleged by Yu was engineered by her only to justify the said proposals to increase the capital with the object of diluting the shareholding of the petitioner in the Company.

102. Three grounds have been put forward in the Final Submission of Yu to justify the exclusion of the petitioner from the management of the Company and, in turn, the management of Changzhou, Tangshan and Xinyu.  They are as follows:

(i)   Changzhou, Tangshan and Xinyu being companies incorporated on the Mainland, none of them is a “specified corporation” under section 168A(1) of the Companies Ordinance.  The exclusion of the petitioner from their management cannot be taken into account for the purpose of that statutory provision.

(ii)    The Nominee Services Indemnity Agreement referred to in para 42 above provided that Yu’s instructions would prevail over that of the petitioner and therefore she should have control of the Company.

(iii)   The petitioner had in effect embezzled the sum of RMB3.05 million and been arrested by the Xinyu Public Security Bureau.

I shall deal with such grounds below.

103. Regarding the first point put forward by Yu, it is said in Butterworths Hong Kong Company Law Handbook (14^th ed) at para 168A.04 as follows:

“The affairs of the company

   There is no definition of what constitutes the ‘affairs’ of the company in the context of s 168A. The phrase in similar provisions has been held to have a ‘wide meaning’. … In R v Board of Trade, ex p St Martins Preserving Co Ltd [1964] 2 All ER 561, [1965] 1 QB 603. … .it was stated to be wide enough to cover a company’s ‘goodwill, its profits or losses, its contracts and assets including its shareholding in and ability to control the affairs of a subsidiary, and perhaps in the latter regard a subsidiary …’  … Conduct of a holding company may constitute conduct in the affairs of its subsidiary.  … Conversely, the way in which the affairs of a subsidiary are conducted can constitute unfairly prejudicial conduct in respect of the parent company’s affairs. …”

In my judgment, at least in a situation where the management and operation of a company and of its subsidiaries or associated companies are closely connected with each other, as in the present case, all of them can be looked at together for the purpose considering whether the affairs of the company have been conducted in a manner unfairly prejudicial to certain members of the company.  I therefore do not accept the first point.

104. Regarding the second point put forward by Yu, the fact that the instructions by Yu are to prevail over those of the petitioner does not entitle her to treat the Company as her own.  See, eg the case of Chau Hung Kau v Texgar Ltd [2002] 2 HKLRD 687, at 697, paras 34–36 per Poon DHCJ (as he then was).  I therefore do not accept the second point.

105. I now deal with the third point advanced by Yu.

106. According to Yu, on 30 April 2010, the Company instructed a firm of Mainland lawyers, Concord and Partners (“Concord”), to carry out due diligence on Changzhou, Tangshan and Xinyu because she was negotiating with Yingde for the sale of the joint‑venture companies and Yingde demanded that a due diligence exercise should be carried out.  According to her, it was in that process that the embezzlement by the etitioner was discovered.

107. It is to be noted that no report of Concord or instruction letter to Concord has been produced.  Strangely, Yu has produced as Exh “YQ‑17” to her Affirmation filed on 19 August 2010 a very brief certificate by Concord dated 3 August 2010 certifying that, on 30 April 2010, it received instruction from the Company to carry out a「法律狀況的盡職調查」on Xinyu, Changzhou and Tangshan.

108. She said that a preliminary check by Concord revealed a lot of wrongdoings by the petitioner. She then confronted him and he was evasive in his answers.

109. As stated above, the petitioner was removed from the management of all the companies on 25and 26 May 2010.

110. In her 6^th Affirmation filed on 23 February 2011, in para 4, Yu said that one of the wrongdoings discovered was that the petitioner as the general manager of Xinyu had embezzled the sum of RMB3,051,962.20 by way of falsifying a payment order dated 18 February 2008 on behalf of the Company whereby Xinyu was instructed to remit the said sum of RMB3,051,962.20 to Shanghai Junrui to repay the sum which Xinyu had borrowed from Shanghai Hanglong.  She reported the matter to the Xinyu Public Security Bureau.

111. Yu produced as Exh “YQ‑43” to her 6^th Affirmation a copy of her complaint to the said Bureau.  She did that on behalf of Xinyu, not the Company.  It is to be noted that there is some discrepancy between the said para 4, which stated that Xinyu was instructed to remit RMB3,051,962.20 to Shanghai Junrui, and “YQ‑43”, which alleged that in accordance with the payment order dated 18 February provided by the petitioner, the Company remitted to Shanghai Junrui the sum of RMB2,251,692.20 and set off an indebtedness in the sum of RMB800,000 incurred by Shanghai Junrui on 9 January 2008.

112. The petitioner denied that he used any fake chop.  He plainly admitted that the RMB3.05 million did belong to the Company but was in fact paid to him as dividends, wages and bonus in advance.  He explained that the practice between him and Yu was to use Shanghai Junrui as a vehicle to somehow bypass exchange control on the Mainland and eventually remit money to the Company in Hong Kong as well as to pay various expenses.  In relation to the said sum of RMB3.05 million, he said that there were in fact two other payment instructions, one issued by Yu to the effect that the money should be transferred from Shanghai Hanglong to the Company.  The other one was issued by Xinyu to the same effect.

113. He further said that the accounts of the Company were prepared by or under the instruction of Yu.  He was not involved in the compilation of the same and had not regularly received the annual audited accounts of the Company.

114. In support of his allegation, he produced as Exh “LJ‑33” to his 8^th Affirmation filed on 12 November 2010 a copy of an email dated 8 April 2010 from Yu to him enclosing the revised management accounts of the Company for March and June 2010 together with copies of Cash Flow Statements of the Company from January 2008 to April 2010 which show the various receipts and outgoings of the Company and the involvements of Yu and the petitioner (through Shanghai Junrui).

115. The petitioner was cross-examined vigorously on the issue of the RMB3.05 million. I do not think that he was shaken.

116. In cross‑examination, Yu admitted that she had full access to the accounts of the Company and the joint‑venture companies.  The said email exhibited as part of “LJ‑33” clearly shows that she was very much involved in the accounts of the Company. I find it difficult to believe that, if the petitioner had embezzled the sum RMB3.05 million in early 2008, she would not have discovered it earlier herself but only discovered it as a result of the due diligence exercise allegedly carried out by Concord after the middle of 2010.

117. The burden being on Yu to prove the alleged embezzlement by the petitioner as the justification for his removal from the management of the Company and of the joint‑venture companies, I find that she has failed to discharge such burden.

118. During the trial, Yu relied heavily on her report to the Xinyu Public Security Bureau and the fact that the petitioner was arrested and placed under custody.  Even after the hearing had ended, the parties’ solicitors still sent letters to my clerk regarding, inter alia, the progress of the criminal proceedings arising out of Yu’s said report to the Xinyu Public Security Bureau.  I believe that recently a copy of a decision by some Mainland court was also supplied to my clerk.

119. I put on record that I have deliberately refrained from looking at the said decision by the Mainland court and I have not paid any attention to the correspondence. They do not form part of the evidence and it is inappropriate for me to take the same into account.

120. Yu also relies on the fact that Shanghai Junrui was subsequently de‑registered.  I do not think that there is anything in the point.

121. It is not seriously disputed that the petitioner had a legitimate expectation to take part in the management of the Company and, as a matter of fact, he had been very much involved in the management of the Company and its subsidiary or associated companies before his removal.  In the result, I find that the petitioner had been wrongfully removed from the management of the Company and its subsidiary or associated companies, the joint‑venture companies.  I further find that Yu had wrongfully attempted to increase the capital of the Company with a view to diluting the shareholding of the petitioner. 

The problematic disposal of Shanghai Hanglong to First Master and the surreptitious treatment of a dividend payment from Changzhou to Shanghai Hanglong

122. It would again be convenient for the last two complaints to be dealt with together.

123. According to the petitioner, on or about 5 August 2010, he received an email from Yu who informed him that the Company’s shares in Shanghai Hanglong had been transferred to others.  Shanghai Hanglong had substantial business operations and provided technical consultancy services, for instance, to Changzhou in return for fees of RMB180,000 per month.

124. The petitioner’s evidence is that he did not know anything about the sale of Shanghai Hanglong.  He immediately asked Deacons to write to Hastings & Co to protest and ask for information.  It was subsequently discovered that an agreement was signed between the Company and First Master on 9 May 2010 for the sale and purchase of all the shares in Shanghai Hanglong for the price of RMB4,500,000 which was payable by instalments within one year.

125. The petitioner had previously asked his accountants Borrelli Walsh to value Shanghai Hanglong and they valued it as at 31 December 2009 at RMB6.9 million. He further said that after his removal from management Hunan Chendian had paid to Shanghai Hanglong the balance of the management fee for 2008 in the sum of about RMB2.4 million.

126. In her 8^th Affirmation filed on 22 October 2010, Yu said that Shanghai Hanglong at the time of sale was not worth RMB6.9 million because it had not received any income for five months whilst expenses were continuing.  She alleged that the petitioner had full knowledge of the sale.

127. Yu was cross‑examined by Mr Jonathan Wong on this matter.  She admitted that the person behind First Master was a Mr Kenneth Chung and that it was she who asked him to set it up.  She said that Shanghai Hanglong was only acting as a company for collecting fees and dividends and had no intrinsic value.  As Yingde which was negotiating with the Company to buy the joint-venture companies had another company of its own to perform the functions of Shanghai Hanglong, Shanghai Hanglong would no longer be needed.  She therefore decided to sell it off with the knowledge of the petitioner.  She revealed that First Master never paid the purchase price, on the basis that the petitioner had started winding‑up proceedings.  She admitted that after the selling off, she caused the Company to enter into an agreement with Shanghai Hanglong for the latter to provide the same services as before.  Indeed, the service agreement between the Company and Shanghai Hanglong was signed by her on behalf of both those companies on as early as 20 June 2010. Under it, the Company was to pay to Shanghai Hanglong a service fee of RMB300,000 per month.  She further admitted that she subsequently caused the joint‑venture companies to pay fees to Shanghai Hanglong.

128. Regarding the surreptitious treatment of a dividend from Changzhou to Shanghai Hanglong, the relevant facts are set out below.

129. According to the petitioner, in early March 2011, he discovered that Changzhou should have made a dividend payment of about RMB15 million to the Company.  He instructed Deacons to write to Hastings & Co to inquire about the situation.  Hastings & Co replied by a letter dated 11 March 2011 as follows:

“… we are instructed that the dividend of about RMB15 million was declared by the Changzhou Company but not yet paid to the Company. In other words, as of the date of this letter, the Company has not yet received the said dividend from the Changzhou Company.”

130. Subsequently, the petitioner managed to obtain from Changzhou a copy of a letter of instruction dated 16 February 2011 signed by Yu by which she purportedly on behalf of the Company directed Changzhou to pay the declared dividend in the sum of RMB15,171,501.39 and the interest thereon into the account of Shanghai Hanglong with a bank in Shanghai bearing the account number 076457‑98210155300000811 (“the said account”).  On about 15 March 2011, the petitioner’s private investigator managed to obtain an extract of the statement of account relating to the said account which showed that the exact amount of RMB15,171,501.39 was credited into the said account on 24 February 2011.  In the circumstances, the information given by Hastings & Co as per their client’s instructions referred to in para 129 above is plainly untrue.

131. In Yu’s 7^th Affirmation filed on 7 April 2011, she said in para 15 thereof that Shanghai Hanglong had repaid the entire sum of RMB15,171,501.39 back to Changzhou by a remittance on 18 March 2011.  She further says in para 16 thereof as follows:

“I believe that the incident was an administrative and communication mistake and not as what the Petitioner would like this Honourable Court to accept being an act of dissipation.”

132. I am afraid I do not accept Yu’s explanation.  I believe that she did what she did in anticipation of her intended sale of Shanghai Hanglong in the then near future with a view to dissipation of assets from the Company.  The reversal of the dividend took place only as a result of the query raised by the petitioner.

133. In the abovementioned circumstances, I find the alleged sale of Shanghai Hanglong to First Master to be highly suspicious.  I even doubt whether it is genuine.  I also find that the abovementioned acts constitute acts or at least attempts by Yu to dissipate the assets of the Company.

CONCLUSION

134. In all the circumstances, I find that the affairs of the Company have been conducted by Yu, its majority shareholder, in a manner unfairly prejudicial to the interest of the petitioner.  Accordingly, I propose to make an order that Yu and the 3^rd respondent do purchase the 15 shares of the petitioner in Company at a price and on such terms to be determined.

135. I agree with the suggestion by Mr Jonathan Wong that there should be another hearing at which the identity of the valuer and the exact terms of the order to be made by me should be finalized.

136. I make an order nisi that Yu and the 3^rd respondent do pay the costs of the petitioner and the official receiver in these proceedings.

137. There are two outstanding matters.

138. First, although there are no pleadings filed, the parties were ordered by the Order of Barma J dated 7 February 2011 to file Lists of Issues.  Yu and the 3^rd respondent filed a List of Issues dated 30 May 2012 consisting of 35 paragraphs.  As Mr Jonathan Wong has pointed out, many of the issues set out therein had not been pursued by Yu and the 3^rd respondent in their Final Submission dated 14 September 2012.  I agree with Mr Jonathan Wong that such issues listed in the List of Issues and not pursued in their Final Submission must be treated as having been abandoned by Yu and the 3^rd respondent and I so hold.

139. There is also outstanding the Summons issued by Yu and the 3^rd respondent on 31 August 2012 for the discharge of the undertaking referred to in the Order of Mr Recorder Jat SC dated 16 December 2011.  I prefer to hear what counsel have to say about it in light of my judgment before I finally dispose of it.

140. I direct that a two‑hour hearing be fixed before me in consultation with counsel’s diaries for the purposes referred to in paras 135 and 139 above.  All written submissions should be delivered to the court at least three clear days before the date fixed for the hearing.

141. I also direct that the parties by their legal advisers should use their best endeavours to reach an agreement as much as possible on the identity of the valuer and the terms of the order which I should make before the forthcoming hearing.

142. Finally, it remains for me to thank counsel on both sides for their able assistance in this matter.

Appendix 2