CAPITAL CENTURY TEXTILE CO LTD v. LI DIANXIAO AND ANOTHER

HCA 263/2012

[2021] HKCFI 2216

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 263 OF 2012

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J U D G M E N T

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1.  In this judgment, unless otherwise stated, all references to numbered pages are to pages of the trial bundles and all monetary figures are denominated in Hong Kong dollars.

PLAINTIFF’S CLAIM

2.  In this action, the plaintiff, Capital Century Textile Company Limited (“CCT”) claims:

(1)  against its former shareholder and director - the 1^st defendant - Li Dianxiao (“Mr Li”):

(a)  a declaration that Mr Li held and still holds Office B, 15/F (including one lavatory), China Harbour Building, 370-374 King’s Road, Hong Kong (“China Harbour Office”), of which Mr Li was and is still the registered owner, on trust for CCT;

(b)  an order for the transfer of the China Harbour Office by Mr Li to CCT or at its direction;

(c)  an account of all the rental income received and retained by Mr Li from letting the China Harbour Office since 2006[1];

(d)  an account of all the rental income received and retained by Mr Li from 1996 to 1998 from letting Flat A, 11/F, Block 6, Provident Centre, 31 Wharf Road, Hong Kong (“Provident Centre Flat”), of which Mr Li was the registered owner;

(e)  an account of the deposits forfeited and retained by Mr Li from an aborted sale of the Provident Centre Flat in 1997;

(f)  an account of the net proceeds of sale received and retained by Mr Li from the sale of the Provident Centre Flat in 1998;

(g)  an account of all the rental income received and retained by Mr Li between 1998 and 2007 from letting Flat A, 7/F, Tower 9, Phase II, Pacific Palisades, 1 Braemar Hill Road, North Point, Hong Kong (“Pacific Palisades Flat”), of which Mr Li was the registered owner;

(h)  an account of the net proceeds of sale received and retained by Mr Li from the sale of the Pacific Palisades Flat in 2007;

(i)  a declaration that between 7 September 2004 and 3 July 2007, Mr Li held Flat B, 17/F, Block 3, Tanner Garden, 18 Tanner Road, North Point, Hong Kong (“Tanner Garden Flat”) on a constructive/resulting trust for CCT;

(j)  an account of all the money and benefits received by Mr Li from holding the Tanner Garden Flat between 7 September 2004 and 3 July 2007;

(k)  if necessary, an inquiry into the accounts to be provided by Mr Li; and

(l)  an order for the payment of all sums found to be due from Mr Li to CCT on the taking of such accounts;

(2)  against the 2^nd defendant, Cong Bo Wai (“Mr Cong”):

(a)  a declaration that Mr Cong has since 3 July 2007 been holding the Tanner Garden Flat on a constructive/ resulting trust for CCT;

(b)  an account of all the money and benefits received by Mr Cong from holding the Tanner Garden Flat since 3 July 2007;

(c)  an inquiry into such account;

(d)  an order for the payment of all sums found to be due from Mr Cong to CCT on the taking of such account; or

(e)  alternatively to (a) to (d) hereof, an order setting aside the sale and purchase of the Tanner Garden Flat between Mr Li and Mr Cong (“defendants” collectively) on 3 July 2007 upon the repayment by CCT to Mr Cong of the purchase price of $4,800,000.

ISSUES

3.  The issues raised by the parties’ pleadings are numerous.  They can be summarised as follows:

As between CCT and Mr Li:

(1)  regarding the timing of this action: whether CCT is estopped by laches from claiming against Mr Li;

(2)  regarding the issued shares in CCT (“CCT Shares”):

(a)  whether the CCT Shares, be they registered in the names of Mr Li or others, were/are held on trust for a PRC company called Beijing Knitwear Import & Export Group Corporation (北京針棉織品進出口集團公司)[2] (“Beijing Company”) or held by Mr Li as beneficial owner and by others on trust for him;

(b)  if the latter, whether (as contended by Mr Li) CCT’s complaints about Mr Li’s dealings with the 4 properties specified in [2(1)(a)], [2(1)(d)], [2(1)(g)] and [2(1)(i)] above (“Subject Properties” collectively), even if established, can be regarded as having been authorised or ratified by all shareholders of CCT and therefore by CCT;

(3)  regarding the China Harbour Office:

(a)  whether it is and/or was held by Mr Li on a resulting/constructive trust for CCT because all the payments associated with its acquisition were made from bank accounts held by, or on trust for, CCT;

(b)  whether it was let for rental income after it ceased to be used as CCT’s office in 2005;

(c)  if so, whether Mr Li had received and kept such rental income;

(d)  whether Mr Li was obliged, but had failed, to account to CCT for such rental income;

(4)  regarding the Provident Centre Flat:

(a)  whether it was held by Mr Li on a resulting/constructive trust for CCT because all the payments associated with its acquisition were made from bank accounts held by, or on trust for, CCT;

(b)  whether it was let for rental income from 1996 to 1998;

(c)  if so, whether Mr Li had collected and kept such rental income;

(d)  if so, whether Mr Li was obliged, but had failed, to account to CCT for such rental income;

(e)  whether Mr Li had further received and kept the deposits totalling $1,153,000 which was forfeited when the attempted sale of the Provident Centre Flat in 1997 fell through;

(f)  if so, whether Mr Li was obliged, but had failed, to account to CCT for such forfeited deposits;

(g)  whether Mr Li had also received and kept the proceeds from the sale of the Provident Centre Flat in 1998;

(h)  if so, whether Mr Li was obliged, but had failed, to account to CCT for such proceeds;

(5)  regarding the Pacific Palisades Flat:

(a)  whether it was held by Mr Li on a resulting/constructive trust for CCT because all the payments associated with its acquisition were made from bank accounts held by, or on trust for, CCT;

(b)  whether it was let for rental income between 1998 and 2007;

(c)  whether Mr Li had received and kept such rental income;

(d)  whether Mr Li was obliged, but had failed, to account to CCT for such rental income;

(e)  whether Mr Li had received and kept the proceeds from the sale of the Pacific Palisades Flat in 2007;

(f)  if so, whether Mr Li was obliged, but had failed, to account to CCT for such proceeds;

(6)  regarding the Tanner Garden Flat, which was transferred by CCT to Mr Li on 7 September 2004 for a stated consideration of $3,980,000:

(a)  whether Flats A and B, 22/F, Eternal Buildings, 112-114 Tsat Tsz Mui Road (“Eternal Building Flat A” and “Eternal Building Flat B” respectively and “Eternal Building Flats” collectively) which were transferred from one Kingpower Textile Limited (港佳紡織有限公司) (“Kingpower”) to Mr Li in 1990 for no paid consideration were held on trust by Mr Li for CCT;

(b)  if not, whether the approximate sum of $4,000,000 realised from the sale of the Eternal Building Flats in 1994 had nevertheless been received and kept by CCT;

(c)  if so, whether such proceeds beneficially belonged to, and was held by CCT on trust for, Mr Li;

(d)  if so, whether Mr Li had paid the said consideration of $3,980,000 for the transfer of the Tanner Garden Flat from CCT to him on 7 September 2004 by set-off against the said sum of $4,000,000 held by CCT on trust for him;

As between CCT and the defendants:

(e)  whether the sale and purchase of the Tanner Garden Flat between Mr Li and Mr Cong on 3 July 2007 at $4,800,000 was at an undervalue, CCT and Mr Cong having agreed the open market value of such property at the time of the transaction to be $5,200,000[3];

(f)  in any event, whether Mr Cong did pay Mr Li the stated purchase price of $4,800,000;

(g)  whether the sale and purchase of the Tanner Garden Flat between Mr Li and Mr Cong was a genuine transaction; and

(h)  even if so, whether Mr Cong was a bona fide purchaser for value without notice.

4.  Further, arising from the conduct of Mr Cong’s defence at the trial, Counsel for CCT, Mr KM Chong (with him, Mr Alvin Chong) takes a point of procedure.

(1)  Due to the circumstance mentioned in [138] below, Mr Li did not appear at the trial, nor has he given any discovery or made any witness statement in breach of Master Ho’s unless order dated 27 September 2016.

(2)  In spite of such circumstance, Mr Li was represented by solicitors and counsel for a brief period from 11 November 2015.  A request for further and better particulars of the ASOC[4] was served on Mr Li’s behalf.  His amended defence[5], signed by counsel and solicitors, was filed on 3 August 2016.  

(3)  Mr Li began to act in person again from 26 September 2016.  Since then, other than urging the court to stay or adjourn this action until his release from prison in the PRC, Mr Li has not taken any meaningful step in this action.

(4)  Counsel for Mr Cong, Mr Alvin Tsang, rightly accepts that his client is not entitled to advocate or argue Mr Li’s case.

(5)  However, Mr Chong complains that Mr Tsang has been doing exactly that, under the pretext that the success or failure of Mr Cong’s defence would be affected by whether Mr Li had acquired the beneficial ownership of the Tanner Garden Flat by the time he sold and conveyed the same to Mr Cong.

(6)  In particular, Mr Tsang has put to CCT’s witnesses Mr Li’s contentions that:

(a)  He has been the beneficial owner of the CCT Shares since the inception of CCT.

(b)  The transfer of the CCT Shares under his name to Ms Lai on 22 June 2009 (see [99]-[101] below) was solely for Ms Lai to hold the same upon trust for him.

(c)  He was the legal and beneficial owner of the Eternal Building Flats.

(7)  Mr Chong also questions how Mr Cong could have put such propositions to CCT’s witnesses.  I believe Mr Chong is referring to the fact that Mr Cong has no personal knowledge of, and has not purported to give or adduce evidence on, the subject matters of the said cross-examination by Mr Tsang.

5.  I shall now deal with Mr Chong’s procedural complaint.  In my view, Mr Tsang is legitimately concerned with those aspects of Mr Li’s defence that may impact upon whether Mr Cong can keep the Tanner Garden Flat.  Of course, and I am very mindful that, counsel may not cross-examine without a proper foundation built on admissible, material and credible evidence already before the court.  I shall disregard any question asked against such principle.  However, where the evidence before the court sufficiently throws a favourable light on an aspect of Mr Li’s defence that, if proved, would assist Mr Cong’s defence, I do not see why counsel for Mr Cong is prevented from putting the matter to CCT’s witness(es) concerned with such matter.  Indeed, he should do so out of fairness to CCT if he intends to make submissions on the point against CCT.

FINDINGS OF MATERIAL FACTS

6.  [15] to [139] below set out my findings of essential facts, in the chronological order in which events occurred.  Key findings are highlighted by underlining for easy reference.  Some of these findings will directly answer some of the questions listed in [3] above.  Others will lay the foundation for arriving at answers to the remaining questions.

7.  Given the somewhat disorganised state of the trial bundles, in addition to identifying the evidence on which I base my findings, in the case of documentary evidence, I will for ease of reference also state where it can be found in the trial bundles.

8.  Before I go into the facts, it will be seen that they are partly derived from records, the authenticity and materiality of which is undisputed or indisputable save for the few documents disclosed and relied on by Mr Cong.

9.  They are further partly based on the evidence of CCT’s witnesses namely, Ms Lai, Zhang Jiu Chang (張九常) (“Mr Zhang”), Zhong Qun (鍾群) (“Mr Zhong”) and Xie Gui Ru (謝桂茹) (“Ms Xie”)[6]. Unless otherwise stated:

(1)  I find these 4 witnesses to be credible and reliable. 

(a)  Mr Zhang, Mr Zhong and Ms Xie have all retired from or left the employ of CCT and/or the Beijing Company.  They have no apparent, and it is not suggested that any of them have any, interest in the outcome of this action. 

(b)  As for Ms Lai[7], she still holds some shares in CCT and she is entitled to 5% of CCT’s profits as shown in CCT’s financial reports under the 1993 Agreement (defined and set out in [33] below).  However, CCT has long ceased operation, which means that there should be no profit in which Ms Lai can partake.

(2)  The testimonies of these 4 witnesses are inherently plausible.

(3)  In most cases, they sit well with relevant contemporaneous records and/or known objective facts.

(4)  There is no evidence to the contrary from Mr Li or, in many instances, Mr Cong who, for obvious reasons, has no personal knowledge.

10.  In contrast, the same cannot be said of the defendants’ evidence.  First of all, as stated above, Mr Li did not participate at the trial to defend himself.  Nor has he given discovery or made witness statement.  Nevertheless, he has filed and served an amended defence, which I cannot ignore.  For the record, I have used my best endeavours, but without much success, in searching through the trial bundles for evidence that might lend or tend to lend credence to the averments in Mr Li’s amended defence.

11.  Turning to Mr Cong, he is concerned only with the Tanner Garden Flat.  Mr Cong was still a student[8] with no independent means back in July 2007 when he purportedly purchased the Tanner Garden Flat from Mr Li at the price of $4,800,000 without requiring a mortgage loan.  In support of his defence to CCT’s claim to such property, apart from himself, Mr Cong has called his mother, Cong Tao (叢濤) (“Ms Cong”), who was, on Mr Cong’s and her evidence, the person handling the purchase of the Tanner Garden Flat on Mr Cong’s behalf.  Ms Cong had admittedly been in an intimate relationship with Mr Li.  I find it necessary to approach their testimonies with caution[9] for the following reasons:

(1)  They were guarded and not at all forthcoming under cross-examination.

(2)  Questions that are perfectly legitimate and pertinent were often evaded and need to be repeated, on occasions, multiple times.

(3)  Most importantly, as observed in [119] to [132] below, their evidence is inherently implausible in material aspects and does not bear scrutiny.  The manner in which Mr Cong’s purchase of the Tanner Garden Flat was proceeded with was most unusual and significantly departed from standard conveyancing practice in Hong Kong. 

12.  My findings below are also partly founded upon the summary of the factual evidence before the Second Intermediate People’s Court of the Beijing Municipality (北京市第二中級人民法院) (“PRC Court”) at the criminal trial of Mr Li, as recorded in the PRC Court’s criminal judgment (刑事判決書) dated 19 September 2010 (“PRC Judgment”)[10].  

13.  In particular, I have paid regard, and given weight, to the testimonies of (1) the following personnel of the Beijing Company at the material times: 楊書武 (general manager), 吳大蚌 (party secretary), 印培良 (deputy manager), Mr Zhang (salesman), Mr Zhong (salesman) and 郭世明 (deputy general manager and party committee member); and (2) Kingpower’s former general manager 何岱as to:

(1)  Mr Li’s employment with the Beijing Company from the 1980’s to early 2001;

(2)  the business co-operation between the Beijing Company and Kingpower which acted as the Beijing Company’s branch office/window company in Hong Kong (駐港機構/窗口公司);

(3)  the transfer of Messrs Li, Zhang and Zhong by the Beijing Company from Beijing to Hong Kong to work in Kingpower;

(4)  the subsequent formation of CCT by Mr Li with the authorisation of the Beijing Company; the replacement of Kingpower by CCT as the Beijing Company’s Hong Kong branch office/window company; and the consequential transfer of the Beijing Company’s assets and properties and personnel in Kingpower from Kingpower to CCT;

(5)  the business of CCT and the business and financial support given by the Beijing Company to CCT;

(6)  the 1996 Agreement (defined and set out in [65] below); and

(7)  Mr Li’s resignation from the Beijing Company in early 2001 and the 2001 Agreement (defined and set out in [85] below).

I have no reason to question the accuracy of the PRC Court’s summary of the abovementioned witnesses’ testimonies.  Nor do I see any cause to doubt their credibility or reliability. 

14.  For the avoidance of doubt, my reference to and reliance on the PRC Judgment is limited as aforesaid.  I accord no weight to the PRC Court’s findings or conclusions. I come to my own on the evidence before me.

Beijing Company

15.  The Beijing Company was a state-owned enterprise, more specifically, a company owned by the whole people (全民所有制企業).

Co-operation between Beijing Company & Kingpower

16.  Kingpower was incorporated on 1 August 1986[11].

17.  In about 1988, the Beijing Company commenced business in Hong Kong through co-operation with Kingpower. In gist, the Beijing Company provided Kingpower with knitwear export quotas and shared the profits generated to Kingpower through the use or sale of such quotas[12].

18.  Kingpower functioned as the Beijing Company’s Hong Kong branch office/window company.  In support, I accept the following evidence:

(1)  paragraph 5 of Ms Xie’s witness statement;

(2)  paragraph 5 of Mr Zhong’s witness statement;

(3)  paragraph 5 of Mr Zhang’s witness statement;

(4)  paragraph 3 of Ms Lai’s witness statement; and

(5)  the Beijing Company’s statement in its letter dated 3 October 1988 to the then Bank of China, Hong Kong Branch (“BOCHK”) (page 1190):「茲確認港佳紡織有限公司為我公司的駐港機構。」, which was written to procure the grant of banking facilities to Kingpower.

19.  At some stage, Mr Li, then the deputy general manager (副總經理) of the Beijing Company[13], together with Mr Zhang and Mr Zhong, were posted by the Beijing Company from Beijing to Hong Kong to work in Kingpower[14]. As the most senior staff of the Beijing Company in Hong Kong, Mr Li was responsible for reporting to, and obtaining instructions from,  the general manager of the Beijing Company who was楊書武 at the time[15].

Acquisition of Eternal Building Flats in Kingpower’s name

20.  In the course of the co-operation between the Beijing Company and Kingpower, Eternal Building Flat A and Eternal Building Flat B were conveyed into the name of Kingpower by assignments dated 2 December 1989 at the respective price of $984,126 and $985,986 (see land search records at pages 1174 and 1182). The purchases were financed to the extent of $1,770,00 by an instalment loan from The Ka Wah Bank Ltd (“KWB”)[16].

21.  Kingpower acquired the Eternal Building Flats for the benefit of the Beijing Company.  According to paragraph 49 of Ms Lai’s witness statement, the Eternal Building Flats were parts of the Beijing Company’s profits from its co-operation with Kingpower.  I find such statement credible.

(1)  First, it was Mr Li, the Beijing Company’s most senior employee posted to work in Kingpower, who had entered into the agreements for sale and purchase dated 18 January 1989 as purchaser[17].  Kingpower took up the assignments only by nomination of Mr Li on 2 March 1989 (pages 1822-1825 & 1826-1829).  If Kingpower was the beneficial owner of these properties, why would it have to go through Mr Li in the first place?  In this connection, as per paragraph 9 of Mr Zhong’s witness statement, to which I accord weight, Mr Li had told Mr Zhong that he had purchased the properties at Tsat Tsz Mui Road (which, on the evidence, could only be the Eternal Building Flats) for the Beijing Company’s Hong Kong branch office/window company after reporting to, and obtaining authorisation from, 楊書武.

(2)  Second, Kingpower subsequently transferred the Eternal Building Flats into Mr Li’s name free of any actually paid consideration upon the cessation of its business relationship with the Beijing Company in about the late 1980’s or early 1990’s[18] upon terms that CCT (the Beijing Company’s replacement branch office/window company in Hong Kong)[19] just had to repay KWB the outstanding mortgage loan and to discharge the stamp duties and the legal costs and expenses incidental to the transfers.  See [24(6)] below.  It would have been unlikely for Kingpower to do so had it been the beneficial owner of these properties.

Termination of co-operation between the Beijing Company & Kingpower & transfer of Eternal Building Flats by Kingpower into Mr Li’s name

22.  In about the late 1980’s or early 1990’s, the co-operation between the Beijing Company and Kingpower ceased.  

23.  As part of the arrangements made upon the termination of the co-operation between Kingpower and the Beijing Company, Kingpower transferred the Eternal Building Flats into Mr Li’s name by assignments dated 6 September 1990 (pages 1830-1834 & 1835-1840) for stated considerations of $984,126 and $985,986.  Such stated considerations were notably the same as the purchase prices that had been paid for these units.  They were not actually paid[20].

24.  Mr Li held the Eternal Building Flats on trust for CCT, the Beijing Company’s new branch office/window company in Hong Kong.

(1)  I have already ruled in [21] above that Kingpower held the Eternal Building Flats on trust for the Beijing Company. 

(2)  I will in [26] below hold that CCT was the Beijing Company’s new branch office/window company in Hong Kong.

(3)  The transfers of the Eternal Building Flats by Kingpower to CCT were effected to return to the Beijing Company its share of profit from its co-operation with Kingpower[21]. 

(4)  Mr Li was at all material times the Beijing Company’s most senior employee posted to work in Hong Kong, firstly in Kingpower and then in CCT (see [36]-[37] below).

(5)  As noted in [21(1)] above, Mr Li had told Mr Zhong that he had purchased the properties at Tsat Tsz Mui Road (i.e. the Eternal Building Flats) for the Beijing Company’s Hong Kong branch office/window company after reporting to, and obtaining authorisation from, 楊書武[22].

(6)  It was CCT that repaid KWB the mortgage loan then outstanding on the Eternal Building Flats and discharged the stamp duties and the legal costs and expenses incidental to the transfers by Kingpower to Mr Li[23]. There is certainly no evidence indicating that Mr Li then had the personal means to afford these payments.

(7)  It was CCT that kept the proceeds of sales of the Eternal Building Flats and deployed the same to partially repay the mortgage loan due in respect of the Provident Centre Flat (which I will find in [61] below to have been acquired and held in the name of Mr Li on trust for CCT).  See the table under [56] below.

Setting up of CCT as the Beijing Company’s new HK office/company

25.  In place of Kingpower, CCT was formed on 5 October 1990[24] upon Mr Li’s proposal to the Beijing Company and the approval of such proposal by the Beijing Company[25].  Ms Lai handled all the formalities of the setting up of CCT[26].

26.  CCT took over the role of the Beijing Company’s branch office/window company in Hong Kong. In support, in addition to paragraph 7 of Ms Xie’s witness statement, paragraph 6 of Mr Zhong’s witness statement, paragraph 8 of Mr Zhang’s witness statement, paragraphs 6 and 19 of Ms Lai’s witness statement and the testimonies of楊書武,  吳大蚌, 何岱, 郭世明, 胡明智, 趙俊波and 宋紅英as recorded in the PRC Judgment (pages 414, 416, 417, 420 and 422), to which I accord weight, I find the following extracts (with emphasis added) forceful:

(1)  the first sentence of the Beijing Company’s letter dated 4 October 1991 to BOCHK to procure the grant of banking facilities by BOCHK to CCT (page 1063): 「国际永年纺织有限公司系我公司驻港机构。」;

(2)  Mr Li’s handwritten indorsement on such letter:「本人李殿孝乃北京市针棉织品进出口公司于1990年派驻香港人员,在港代北京市针棉织品进出口公司开辦子公司 “國際永年纺织品有限公司” …」;

(3)  the first sentence of the 1996 Agreement (pages 532-533), to which Mr Li was a party :「香港国际永年纺织有限公司是甲方于一九八八年以李殿孝个人名义在香港注册的分支机构。」; and

(4)  the remark on the undated BOCHK “information for company account” (「公司帳戶資料紀錄」) (pages 1679-1680):「該司 (clearly referring to CCT) 为北京针棉织品进出口公司驻港机构」.

CCT shareholding & directorship before 2001 Agreement

27.  At its inception, only 2 subscribers’ shares of $1 each in CCT were issued and allotted, one to Mr Li and one to a Man Ping (萬平) (“Mr Man”), who also formed the board of directors of CCT[27].  Neither Mr Li nor Mr Man paid for their respective share in, or provided any working capital to, CCT[28].  Mr Man was made a shareholder and director of CCT to comply with the then legal requirement for a company to have at least 2 shareholders and 2 directors.  He was not actually involved in CCT’s operations[29].

28.  On 24 January 1991, at the direction of the Beijing Company[30], Mr Man transferred his 1 share in CCT to Mr Zhong[31] who also replaced Mr Man as a director[32]. No consideration moved from Mr Zhong to Mr Man for the transfer[33].

29.  On 25 June 1994, at the direction of the Beijing Company and upon Mr Zhong’s transfer back to Beijing[34], Mr Zhong transferred his 1 share to Ms Lai[35] who also took Mr Zhong’s place on CCT’s board of directors[36].  As in the case of the transfer from Mr Man to Mr Zhong, no consideration moved from Ms Lai to Mr Zhong[37].

30.  Then, within the year ended 5 October 1995, CCT issued 19,998 more shares of $1 each which were allotted to Mr Li as to 18,998 shares and Ms Lai as to 1,000 shares so that Mr Li and Ms Lai respectively held 18,999 shares and 1,001 shares in CCT[38]. 

Beneficial ownership of Mr Li’s CCT Shares before 2001 Agreement

31.  Leaving aside for the time being the 2001 Agreement and its proper construction (which I will consider in [91]-[94] below), I have formed the opinion that Mr Li held all the CCT Shares registered under his name on trust for the benefit of the Beijing Company.  And I reject the claim in paragraph 37 of Mr Li’s amended defence that he was the beneficial owner of all CCT Shares, not even those registered under his name, insofar as the period before the 2001 Agreement is concerned.

(1)  As I have held in [26] above, CCT was set up to be the Beijing Company’s new branch office/window company in Hong Kong.  Indeed, its formation was proposed by Mr Li to the Beijing Company and authorised by the Beijing Company.

(2)  Mr Li remained an employee of the Beijing Company until early 2001.  As noted in [36]-[37] below, he was posted to work in, and appointed the general manager of, CCT by the Beijing Company.  He was in fact the Beijing Company’s most senior employee in Hong Kong.

(3)  As noted in [26(2)] above, Mr Li had indorsed on the Beijing Company’s said letter dated 4 October 1991 to BOCHK (page 1063):「本人李殿孝乃北京市针棉织品进出口公司于1990年派驻香港人员,在港代北京市针棉织品进出口公司开辦子公司 “國際永年纺织品有限公司” …」(emphasis added).

(4)  It would have been unlikely for the Beijing Company to devote so much resources to CCT as set out in [40] below had it not been the beneficial owner of its share capital.  On the other hand, there is no evidence of any financial contribution by Mr Li to the operation of CCT.

(5)  Mr Li entered into the 1996 Agreement with this opening statement:「香港国际永年纺织有限公司是甲方于一九八八年以李殿孝个人名义在香港注册的分支机构。」(emphasis added)

(6)  The 1996 Agreement would have been otiose had the Beijing Company not then been the beneficial owner of the CCT Shares held by Mr Li.

(7)  The same can be said of the 2001 Agreement.

32.  While on the relationship between CCT, the Beijing Company and Mr Li, I have not overlooked the statement made by Ms Lai at an interview with the representative(s) of the Second Branch of the People’s Procuratorate of the Beijing Municipality (“PRC Procuratorate”) on 7 May 2009[39] that Mr Li had told her that CCT could represent to third parties that it was the Beijing Company’s window company in Hong Kong but it was in fact his own company.  This is a hearsay statement of an allegation made by Mr Li.  While I should take note that Mr Li had allegedly made such a claim, I must also weigh it against the material listed in the preceding paragraph.

Beneficial ownership of Ms Lai’s 5% Shares

33.  As for Ms Lai’s position, the allotment to Ms Lai of 1,000 new shares, which accounted for 5% of the shareholding, in CCT (“Ms Lai’s 5% Shares”), in 1995 was effected pursuant to an agreement made between Mr Li for and on behalf of CCT and Ms Lai back on 1 April 1993 (page 1739) (“1993 Agreement”).  The 1993 Agreement stipulates as follows:

協議書

甲方：國際永年紡織有限公司        李殿孝 身份証號：xxxxxxx(x)

乙方：黎少娟小姐 身份証號：xxxxxxx(x)

甲乙雙方經友好協商，達成協議如下：

一.  甲方根據香港法律在港注册之公司必須最少兩名股東之規定及考慮到乙方多年來為公司所做之貢獻，同意將國際永年紡織有限公司之股份，分出百份之五予乙方。

二.  雙方明确，乙方在本公司服務期間內，按公司財務報表決算可每年按比例參與分紅。但公司在港之房產及其它生意，與乙方無關。

三.  無論因何種原因，如乙方離開國際永年紡織有限公司，上述百份之五之股份，乙方自應歸還與甲方。

此協議正本一式三份，雙方各執一份，另一份留北京市針棉織品進出口集團公司備查，具有同等法律效力。

甲方：	乙方：
國際永年紡織品有限公司	黎少娟
李殿孝
	1993年4月1日

34.  Under the 1993 Agreement:

(1)  Ms Lai’s 5% Shares were allotted to, inter alia, reward Ms Lai for her service to CCT.

(2)  Ms Lai is entitled to hold such shares only while she remains an employee of CCT.  She is obliged to return the shares to CCT once she leaves its employ for whatever reasons.

(3)  As holder of Ms Lai’s 5% Shares, Ms Lai is entitled to share 5% of CCT’s profits as shown in CCT’s financial reports. 

(4)  However, she has nothing to do with CCT’s landed properties in Hong Kong.

35.  In view of the 1993 Agreement, I reject the averment in paragraph 37(2) of Mr Li’s amended defence that Ms Lai held the 1,001 CCT Shares registered in her name on trust for him.  Ms Lai was already the holder of 1 share in CCT, thereby satisfying the legal requirement for at least 2 shareholders.  Mr Li has not explained the purpose served by allotting 1,000 more shares to Ms Lai in 1995 for her to hold on trust for him or the reason why he could not hold those shares himself.  In the circumstance, Ms Lai’s 5% Shares are clearly held by Ms Lai in her own right for as long as she remains in the employ of CCT.  Ms Lai only asserts beneficial ownership to Ms Lai’s 5% Shares (including the 1 share then held by Ms SW Lai).  She acknowledges that she held 95% of the CCT Shares on trust for the Beijing Company[40].  I shall assess the validity of such position when I discuss the 2001 Agreement and its meaning and effect in [91]-[94] below.

Mr Li’s position in CCT other than as a shareholder & director

36.  Mr Li, together with Mr Zhang and Mr Zhong were again stationed by the Beijing Company in Hong Kong, this time, to work in CCT[41].

37.  Further, Mr Li was appointed the general manager of CCT[42]. Throughout the period from 1990/1991 to 2005/2006, CCT submitted to the Inland Revenue Department (“IRD”) employer’s returns in respect of the remuneration paid by CCT to Mr Li as its employee for the purpose of computing the salaries tax payable by Mr Li[43]. 

38.  As the most senior employee of the Beijing Company in Hong Kong, Mr Li continued to (1) report to the general manager of the Beijing Company[44] and (2) take the Beijing Company’s directions and instructions and convey them to other officers and employees of CCT for execution[45].

CCT’s business & Beijing Company’s business & financial support

39.  The business of CCT was similar to that of Kingpower[46].

40.  The Beijing Company supported the business of CCT in various ways.

(1)  First, the initial working capital of CCT came from (a) the profit generated to the Beijing Company from its co-operation with Kingpower which was kept, and subsequently transferred to CCT, by Kingpower; and (b) certain outstanding receivables due from some customers of Kingpower for the sale and purchase of knitwear export quotas provided by the Beijing Company[47].

(2)  Second, the Beijing Company supplied to CCT, at no or low costs or on credit, knitwear export quotas which CCT then sold for profit or used to produce and export knitwear[48]. 

(3)  Third, the Beijing Company sometimes directly provided working capital to CCT[49].

(4)  Fourth, on occasions, the Beijing Company acted as guarantor to procure various banking facilities for CCT’s use[50].

Beneficial ownership of bank accounts opened & maintained by Messrs Li, Zhang & Zhong

41.  In addition to paragraphs 9 to 13 of Ms Lai’s witness statement dated 19 December 2016, I am satisfied on the documentary evidence before me[51] that Mr Li held, inter alia, the savings and current bank accounts with BOCHK and The Hongkong and Shanghai Banking Corporation Limited (“HSBC”) either singly or jointly with either Mr Zhang or Mr Zhong as particularised in paragraphs 3(d) to 3(g) of the ASOC.  

42.  Consistently with paragraph 13 of Ms Lai’s witness statement, there are documents in the trial bundles showing that Mr Li also held other accounts with various banks singly[52] or jointly with Mr Zhang[53] or Mr Zhong[54].  Of significance are the accounts numbered 247-10-030552-3 and 247-20-092767-8(“Mr Li’s 1^st LCH Account” and “Mr Li’s 2^nd LCH Account” respectively) opened and maintained by Mr Li with Liu Chong Hing Bank Ltd (“LCH”).

43.  I accept that the setting up of bank accounts in the names of Messrs Li, Zhang and Zhong was necessitated by the non-completion of the incorporation formalities of CCT, which prevented CCT from opening bank accounts[55]. After the formation of CCT, these accounts were kept for use by CCT for its business operations[56]. For instance, to facilitate the compilation of sales statistics, the income from sales achieved by Mr Zhong would be paid into the joint account(s) of Mr Li and Mr Zhong while the income from sales achieved by Mr Zhang would be deposited into the joint account(s) of Mr Li and Mr Zhang[57].

44.  Contrary to the denials in paragraph 3 of Mr Li’s amended defence, the funds kept in all the abovementioned bank accounts came from, and belonged to, CCT, not the account holders.  In support, I refer to paragraphs 12, 14 and 15 of Ms Lai’s witness statement, paragraphs 12 and 13 of Mr Zhang’s witness statement and paragraphs 10 to 12 of Mr Zhong’s witness statement.  I accept these witnesses’ evidence for 4 reasons. 

(1)  First, the explanation given by Ms Lai and Mr Zhong for the opening of the accounts in question pending the completion of the formalities for the incorporation of CCT is plausible.

(2)  Second, the amounts deposited into, and withdrawn from, such accounts were very sizable.  There is no evidence suggesting that any of the 3 gentlemen would personally have funds of such magnitude at his disposal.  Mr Zhang has volunteered in paragraph 11 of his witness statement that from 1988 to 1992, his monthly salary in Kingpower and CCT was just $5,000.

(3)  Third, I find the existence of joint accounts between Mr Li and Mr Zhang and between Mr Li and Mr Zhong telling.  The only connections between Mr Li and Mr Zhang and between Mr Li and Mr Zhong were that they were colleagues in CCT.  Such relationships should not and would not normally entail the holding of joint bank accounts unless the accounts were opened and maintained for the business of CCT.  Mr Li has certainly not provided any reason for opening and maintaining joint accounts with either Mr Zhang or Mr Zhong.

(4)  Fourth, the joint accounts involving Mr Zhang and Mr Zhong were operated even after Mr Zhang and Mr Zhong were transferred back to Beijing in 1992 and 1994 respectively: paragraph 18 of Ms Lai’s witness statement.  See also the tables in [46] and [56] below.

Property dealings before 1996 Agreement

Purchase and beneficial ownership of China Harbour Office

45.  Mr Li became the registered owner of the China Harbour Office on 4 November 1991 (see land search record at page 1251).

46.  The purchase price of $2,616,761 and the associated costs and expenses were paid as follows:

Payment Date	Payment Nature	Amount	Account from which payment came	Supporting trial bundles references
21.9.91	Initial deposit	$130,838.05	Mr Li & Mr Zhang HSBC 599-3-009706	Cashier order application form & cashier order at page 1227
30.9.91	Further deposit	$261,676.10	Ditto	Cashier order application form & cashier order at page 1228
30.9.93	Estate agent’s commission	$26,000.00	Ditto	Form of withdrawal from Mr Li & Mr Zhang’s account; Standard Chartered Bank cheque drawn on Ms Lai’s account & estate agent’s receipt at pages 1230-1232
25.10.91	Balance of purchase price & legal costs & expenses	$2,366,261.25	$1,300,000 from BOCHK mortgage loan $1,066,261.25 from Mr Li & Mr Zhang HSBC 599-3-009706	Facility letter at pages 1233-1235 Cashier order application form & cashier order at page 1239
4.12.91 – 6.4.92	Mortgage instalments	$1,188,038.71	Mr Li & Mr Zhang BOCHK 012-875-0-018351-8	Direct debit instruction & 5th instalment debit advice at pages 1241 & 1245 §42(i) of Ms Lai’s witness statement
4.5.92 -4.2.96	Mortgage instalments		Mr Li & Mr Zhong BOCHK 012-875-1-082128-6	7th & 51st instalments debit advices at pages 1245-1246 §42(ii) of Ms Lai’s witness statement
4.3.96 – 4.5.99	Mortgage instalments		Mr Li BOCHK 012-891-1-012650-1	53rd instalment debit advice at page 1246 §42(iii) of Ms Lai’s witness statement
4.6.99	Balance of mortgage loan	$873,030.22	CCT BOCHK 012-875-1-077784-0	Withdrawal slip & exchange memo showing withdrawal from CCT BOCHK account & deposit into Mr Li BOCHK account at pages 1247-1248 §42(iv) of Ms Lai’s witness statement

47.  It can be seen that the bulk of the BOCHK mortgage loan ($873,030.22) was repaid with funds out of a bank account of CCT.

48.  Although parts of the initial capital outlays and expenses and mortgage repayments for acquisition of the China Harbour Office came immediately from bank accounts held in the names of Messrs Li, Zhang and Zhong, the ultimate source of the funds in those accounts was CCT.  I repeat the evidence identified, reasons stated and finding made in [44] above. 

49.  CCT would not have so financed the purchase of the China Harbour Office had it not intended to obtain the beneficial ownership of the property.

50.  Such conclusion is supported, firstly, by Ms Lai’s evidence-in-chief in court that she was put in charge of this transaction and that what purported to be Mr Li’s signature on the relevant provisional agreement (「買賣確定書」) was in fact signed by her as it was actually a purchase by the company (which would have to be CCT).

51.  Secondly, Mr Li himself had volunteered on a couple of occasions that the purchase of the China Harbour Office was financed by funds given by the Beijing Company to CCT.

(1)  As observed (more than once) above, Mr Li indorsed by hand on the Beijing Company’s said letter dated 4 October 1991 to BOCHK:「本人李殿孝乃北京市针棉织品进出口公司于1990年派驻香港人员,在港代北京市针棉织品进出口公司开辦子公司 “國際永年纺织品有限公司”, 由本人从現金带来香港开辦费用及購買寫字樓首期,並由北京公司向中國银行香港分行提供書本证明及担保有关 (illegible)」(emphasis added).  Of the 4 Subject Properties,the China Harbour Office is the only office property.

(2)  In the IRD questionnaire signed by Mr Li himself (pages 1484-1485) (“IRD Questionnaire”), Mr Li stated under part 6 (“particulars of amounts received from person other than the mortgagee to finance the purchase of property”) that with regard to the acquisition of the China Harbour Office, a non-repayable amount of $1,400,000 was provided by the Beijing Company, which was described by him as the Chinese parent company (「中國母公司 90年派驻香港」).

52.  Thirdly, clause 2(2) of the 1996 Agreement, to which Mr Li was a party, conclusively proves that Mr Li has been holding only the legal title to the China Harbour Office.   See [65] below.

53.  Fourthly, the use and occupation of the China Harbour Office by CCT as its office after acquisition (apparently without payment of rent) is another circumstance consistent with CCT’s beneficial ownership of the property.

54.  In the circumstances, in the absence of evidence to the contrary from Mr Li and in the papers before me, I consider it improbable for CCT not to intend to acquire the beneficial interest in the premises purchased wholly with its funds.  On this premise, I find that Mr Li held and still holds the China Harbour Office on trust for CCT.

Purchase and beneficial ownership of Provident Centre Flat

55.  Mr Li became the registered owner of the Provident Centre Flat on 16 November 1993 (see land search record at page 1317).  

56.  The purchase price of $7,850,000 and the associated costs and expenses were paid as follows:

Payment Date	Payment Nature	Amount	Account from which payment came	Supporting trial bundles references
9.8.93	Initial deposit	$200,000.00	CCT BOCHK 012-875-0-018761-7	CCT cheque 734693 at page 1270
18.8.93	Further deposit	$585,000.00	Ditto	CCT cheque 734707 at page 1270
18.8.93	Stamp duty	$215,875.00	Ditto	CCT cheque 734708) at page 1271
18.8.93	Estate agent’s commission	$78,500	Ditto	CCT cheque 734709 at page 1271
15.11.93	Balance of purchase price & legal costs & expenses	$7,103,385.00	$5,000,000 from BOCHK mortgage loan $2,103,385 from CCT BOCHK 012-875-1-077784-0	Facility letter at pages 1272-1274 Solicitors’ receipt for $2,103,385 at page 1284 Exhibit P2 (copy of CCT BOCHK 012-875-1-077784-0 passbook)
15.12.93-14.3.96	Mortgage instalments	$4,977,235.94	Mr Li & Mr Zhong BOCHK 012-875-1-082128-6	Direct debit instruction at page 1291 1st, 2nd & 27th instalments debit advices at pages 1288-1290 & 1296 §48 of Ms Lai’s witness statement
3.8.94	Mortgage part- repayment		$1,000,000 from proceeds of sale of the Eternal Building Flat A	Land search record showing sale of Eternal Building Flat A at $2,900,000 completed on 30 July 1994 at page 1175   BOCHK receipt at page 1293 §49 of Ms Lai’s witness statement
15.11.94	Mortgage part-repayment		$3,000,000 from proceeds of sale of Eternal Building Flats	Land searches records showing sale of Eternal Building Flats A & Eternal Building Flat B at $2,900,000 & $2,630,000 completed on 30.7.94 & 26.8.94 respectively at pages 1175 & 1183 BOCHK receipt at page 1294 §49 of Ms Lai’s witness statement
15.4.96 –15.5.98	Mortgage instalments		Mr Li BOCHK 012-891-1-012650-1	29th instalment debit advice at page 1296 §48 of Ms Lai’s witness statement
8.7.98	Balance of mortgage loan	$737,678.93	Out of proceeds of sale of property	Completion statement at page 1308

57.  As shown in the above table, CCT directly paid $3,182,760 ($200,000 + $585,000 + $215,875 + $78,500 + $2,103,385) at the time of purchase.

58.  The proceeds of sale of the Eternal Building Flats, which we have established in [24] above as beneficially belonging to CCT, was used to make partial repayments of the mortgage loan secured by the Provident Centre Flat.  Such application is to a large extent corroborated by Mr Li’s own disclosure in the IRD Questionnaire that $3,066,067.04 of the purchase monies of the Provident Centre Flat came from the proceeds of sale of the Eternal Building Flats.  (I pause at this point to put a marker down that Mr Cong’s contention that Mr Li had paid for the Tanner Garden Flat with the proceeds of sale of the Eternal Building Flats[58], regardless of the beneficial ownership of such premises and proceeds, is false and contradicted by Mr Li’s said statement in the IRD Questionnaire.)

59.  The monies for mortgage repayments made out of Mr Li’s account and Mr Li and Mr Zhong’s joint account came from CCT, as found in [44] above. 

60.  I cannot think of any reason (and none has been put forward) why CCT would wholly finance the acquisition of the Provident Centre Flat but would then give up the beneficial interest in such property, thereby making a gift of the same to Mr Li.  As in the case of the China Harbour Office, clause 2(2) of the 1996 Agreement conclusively establishes that Mr Li was holding only the legal title to the Provident Centre Flat.

61.  In the circumstances, in the absence of evidence to the contrary from Mr Li and in the papers before me, I am satisfied that Mr Li held the Provident Centre Flat on trust for CCT.

62.  The Provident Centre Flat was initially used as a quarter for the staff and visitors from the Beijing Company until late 1996 when Mr Li began to let it for rental income.  As in the case of the China Harbour Office, CCT’s use and occupation of the Provident Centre Flat after purchase (apparently rent-free) is a circumstance lending support to CCT’s claim to the beneficial ownership of the property.

Sale of Eternal Building Flats

63.  In the meantime, in the summer of 1994, the Eternal Building Flats, held in Mr Li’s name but belonging beneficially to CCT, were sold for the total price of $5,530,000 ($2,900,000 + $2,630,000). 

64.  Out of such sale proceeds, $1,444,866.96 was used to redeem the mortgages on the flats[59] and $29,101.00 ($14,726 + $14,375) went to settle the costs and disbursements of the sales[60].  Without taking into account the estate agent’s commissions, the proceeds left after these payments should have been $4,056,032.04 ($5,530,000 - $1,444,866.96 - $29,101.00).  Out of such balance of the proceeds of sale of the Eternal Building Flats, as noted in the table in [56] above, $4,000,000 had been applied towards the reduction of the mortgage loan due in respect of the Provident Centre Flat[61]. Only a modest sum of $56,032.04 would have been left.  I would be surprised if the disbursement of the estate agent’s commissions did not wipe out such residual sum, having regard to the amounts of the sale prices.

1996 Agreement between Beijing Company and Mr Li

65.  On about 16 February 1996, the Beijing Company and Mr Li entered into a「承包協議書」 (“1996 Agreement”) (pages 532-533)[62] in the following terms (emphasis added):

承包协议书

甲方：北京市针棉织品进出口集团公司

乙方：北京市针棉织品进出口集团公司李殿孝

    香港国际永年纺织有限公司是甲方于一九八八年以李殿孝个人名义在香港注册的分支机构。成立八年来，在李殿孝的努力下，为甲方的资产增值、市场拓展，货源保证、掌握信息、接待服务等方面作出显著成绩。

    为适应香港及国际市场日趋激烈的竞争，尽快与国际市场接轨，确保该公司在香港生存、发展，甲方同意李殿孝个人承包香港国际永年纺织有限公司。

一.  甲方同意乙方在遵守香港政府法律、法令的前提下，完全自主独立经营香港国际永年纺织有限公司。其经营品种、经营范围及经营方式完全按照国际市场的具体情况和惯例由乙方自行决定，甲方不再干预。

如因乙方经营不善发生亏损或倒闭，概由乙方自行负责。甲方自乙方承包之日起不再承担任何法律和经济责任。

二.  双方一致同意：乙方在承包前置办下列产业的使用权和所有权为甲方所有。其中包括：

1.  与国内企业合资的北京永大制衣有限公司、北京永达制衣有限公司、北京美丹永年制衣有限公司的股权。

2.  在香港购买的香港英皇道振华大厦15号B室写字楼和香港北角和富道和富中心第六座11楼A室住宅。

3.  以香港国际永年纺织有限公司职员个人名义购买的奔驰500小卧车二辆，宝马5201小卧车二辆，丰田CAMRY小卧车三辆。

三.  乙方自承包之日起至2000年12月31日止，每年上交甲方110万港币，五年共上交甲方550万港币。用以还清为购买上述香港物业之全部银行贷款，保证甲方资产增值。

四.  乙方在完成上交甲方以外的盈利，除要继续做好过往团组接待工作和完成甲方交待的其他任务外，其余归乙方所有，甲方不再干预。

五.  乙方2000年以后的承包方式及内容，届时根据具体情况商定。

此协议书正本一式四份，双方各执两份具有同等法律效力。

甲方：北京市针棉织品                  乙方：北京市针棉织品

           进出品集团公司                              进出口集团公司 李殿孝

66.  On a natural and ordinary reading, under the 1996 Agreement:

(1)  In return for $5,500,000 to be paid by Mr Li to the Beijing Company in 5 annual sums of $1,100,000 each, the latter relinquished to the former the right to operate CCT’s business independently of, and without interference from, the Beijing Company for 5 years expiring on 31 December 2000.

(2)  During those 5 years, Mr Li shall be solely entitled to CCT’s profits in excess of the said annual payments to the Beijing Company and shall solely bear CCT’s losses.  The Beijing Company shall have no financial obligation towards CCT.

(3)  The Beijing Company shall, however, retain the ownership of, and the right to use, the assets and properties acquired by Mr Li before the 1996 Agreement.

(4)  The arrangement to be adopted after the expiry of the 1996 Agreement will be negotiated against the circumstances prevailing on 31 December 2000.

67.  It is highly pertinent that the China Harbour Office and the Provident Centre Flat were specifically identified in the 1996 Agreement as assets in respect of which the Beijing Company retained ownership.  This may at first glance be incongruent with CCT’s case that it is/was the beneficial owner of these 2 properties.  However, the 1996 Agreement was a homemade document drafted by laymen. The drafting is understandably loose.  It also unsurprisingly displays an ignorance of the principles that a company is a legal entity separate from its shareholders and that the holders, not to mention the beneficial holders, of shares in a company do not thereby own, whether legally or beneficially, the assets of the company.  I think the parties to the 1996 Agreement clearly meant the arrangement made thereunder did not affect the beneficial title to the assets and properties acquired by Mr Li in name only before the 1996 Agreement.

Property dealings during term of 1996 Agreement (1.1.1996 – 31.12.2000)

Purchase of Tanner Garden Flat

68.  CCT became the registered owner of the Tanner Garden Flat on 10 September 1996 at the price of $6,450,000[63]. The purchase was financed to the extent of $3,100,000 by an instalment loan advanced by BOCHK[64]. The balance of the purchase price in the sum of $3,350,000 and the associated costs and expenses were paid by CCT[65]. This is uncontroversial.

Letting of Provident Centre Flat

69.  Contrary to the non-admission in paragraph 13(2) of Mr Li’s amended defence that the Provident Centre Flat had ever been rented out, there is, at pages 1309-1312, photocopy of a tenancy agreement dated 8 December 1996, whereby Mr Li let the Provident Centre Flat for a term of 2 years from 16 December 1996 to 15 December 1998 at a monthly rent of $38,000 exclusive of rates and management fee[66]. The parties later agreed on the early determination of the tenancy on 31 March 1998[67].

70.  There should be no other tenancy agreement or lease in respect of the Provident Centre Flat.  This is so because this property was initially used by CCT as accommodation for its directors and guests until 1996 when CCT began to let the same and then it was sold in 1998.

71.  Mr Li was the landlord under the said tenancy agreement.  In the normal course of event, to ensure a valid discharge, the tenant would pay rent to the landlord.  The tenant’s cheques mentioned in footnote [66] were made payable to Mr Li.  However, none of CCT’s witnesses dealt with, and there is no evidence as at, what Mr Li did or failed to do about the rental income from the Provident Centre Flat.

Sale of Provident Centre Flat

72.  In the meantime, Mr Li proposed to sell the Provident Centre Flat.  For that purpose, on 14 July 1997, he executed a power of attorney in favour of Ms Lai to entrust the sale of the Provident Centre Flats to her[68].

73.  Ms Lai then signed a provisional agreement for sale and purchase dated 8 September 1997 (page 1297), as attorney for Mr Li, for the sale of the Provident Centre Flat at $11,530,000. Deposits totalling $1,153,000 ($400,000 + $753,000) were paid to Mr Li[69].  Mr Li incurred estate agent’s commission and legal costs in the respective sums of $75,000[70] and $12,000[71] for this sale.  This transaction, however, fell through as a result of the purchaser’s default and Mr Li forfeited the said deposits.  After deducting the said costs and expenses, a net sum of $1,066,000 ($1,153,000 - $75,000 -$12,000) should have been realised.  Under normal circumstances, the cheques for the deposits would be made payable to the registered owner, i.e. Mr Li, in this case.  It is Ms Lai’s evidence in paragraph 54 of her witness statement, which I accept, Mr Li had not paid the net forfeited deposits back to CCT on an examination of CCT’s accounts.  In short, the net forfeited deposit from the attempted sale of the Provident Centre Flat is yet to be accounted for.

74.  By another provisional agreement for sale and purchase dated 22 April 1998 entered into by Ms Lai as attorney for Mr Li (pages 1303-1304), Mr Li agreed to sell the Provident Centre Flat at $10,200,000 and to pay the estate agent $102,000 for commission.  Deposits totalling $1,020,000 ($300,000 + $720,000) were paid to Mr Li on 22 April 1998 and 5 May 1998 respectively[72].  These deposits were paid into Mr Li’s 1^st LCH Account[73]. As to the balance of purchase price, according to the relevant completion statement and completion cheque (page 1308), the proceeds of sale, after deducting the redemption money paid to BOCHK ($737,678.93) and solicitors’ costs and disbursements ($16,000), was $8,426,321.07, which was paid to Mr Li on 8 June 1998.[74]

75.  I cannot find any document in the trial bundles showing the account into which Mr Li had deposited this sum.  After taking into account the abovementioned commission payable to the estate agent, the net proceeds of sale of the Provident Centre Flat should be about $9,344,321.07 ($1,020,000 + $8,426,321.07 - $102,000).  Under normal circumstances, the cheques/cashier orders for the deposits and the balance of the purchase price would be made payable to the registered owner, i.e. Mr Li, in this case.  According to paragraph 55 of Ms Lai’s witness statement, Mr Li had deposited such sums into an (unspecified) account held in his sole name with LCH.  It will be seen under the next heading that $6,000,000 of the proceeds of sale of the Provident Centre Flat was applied towards the acquisition of the Pacific Palisades Flat, as summarised in the table under [77] below.  That being the case, a sum of approximately $3.3 million  ($9,344,321.07 - $6,000,000) from the sale of the Provident Centre Flat remains unaccounted for.

Purchase and letting of Pacific Palisades Flat

76.  Mr Li became the registered owner of the Pacific Palisades Flat on 26 June 1998 (see land search record at page 1375). 

77.  The purchase price of $7,700,000 and the associated costs and expenses were paid as follows:

Payment Date	Payment Nature	Amount	Account/source from which payment came	Supporting trial bundles references
3.6.98	Initial deposit	$100,000	$6,000,000 from proceeds of sale of the Provident Centre Flat (§56 of Ms Lai’s witness statement at page 341)[75] $1,700,000 from mortgage loan from Citibank NA (loan statement at page 1339)	Acknowledgment of receipt of LCH cheque 315714 in provisional agreement at page 1336
336	Further deposit	$250,000		Handwritten reference to LCH cheque 315715 on provisional agreement at page 1336
12.6.98	2nd further deposit	$420,000		Solicitors’ receipt for LCH cheque 315717 at page 1337
15.7.98	Balance of purchase price	$6,930,000		Clause 2(d) of provisional agreement at page 1335
12.6.98	Stamp duty	$211,750		Solicitors’ receipt for LCH cheque 315719 at page 1338
12.6.98	Estate agent’s commission	$77,000		Clause 9 of provisional agreement at page 1336
26.6.98	Legal costs & expenses	$38,760
24.7.99	Partial repayment of mortgage loan	$1,000,000	Mr Li’s 1st LCH Account	Request to make partial payment signed by Mr Li at page 1340 Mr Li’s cheque 328948 at page 1341

78.  It can be seen that the price was paid as to $6,000,000 out of the proceeds of sale of the Provident Centre Flat which, as determined in [61] above, was held by Mr Li on trust for CCT.  The monies used to make partial repayment of the mortgage loan due to Citibank, i.e. $1,000,000, though coming out immediately from Mr Li’s 1^st LCH Account, belonged beneficially to CCT (see [44] above).

79.  However, Ms Lai’s testimony deals only with the sources of the purchase price of the Pacifica Palisades Flat, but not the stamp duty, estate agent’s commission and the legal costs and expenses.  Although it is asserted in Schedule III to the ASOC that the stamp duty and legal costs and expenses were paid out of Mr Li’s 1^st LCH Account, save for the stamp duty that appears to have been paid by a LCH cheque in sequence with those settling the 3 tranches of deposit drawn on Mr Li’s 1^st LCH Account, there is no evidence as to who paid the estate agent’s commission or the legal costs and expenses.  In the absence of evidence, I cannot make any finding as to the source(s) of the fund(s) used for settlement of such commission or expenses.

80.  However, the lack of evidence on who paid the relatively modest estate agent’s commission and the legal costs and expenses does not prevent me from holding, on the basis of the capital outlays totalling $7,000,000 mentioned in [78] above, that the intention was for CCT to have the beneficial ownership of the Pacific Palisades Flat.  And I so hold.  Consequently, Mr Li held the Pacific Palisades Flat on trust for CCT.

81.  After purchase, the Pacific Palisades Flat was let for rental income as follows:

Tenancy agreement date	Term of tenancy	Tenant	Monthly rent	Supporting trial bundles references
Unknown	27.6.98 – 31.8.00	Sony International (Hong Kong) Ltd	Unknown	Tenant’s confirmatory letter dated 3.5.00 at page 1344
17.7.00	1.9.00 – 31.8.02	Noriyuki Hironaka	$31,000 inclusive of government rate & management fee	Provisional tenancy agreement at page 1345 Formal tenancy agreement at pages 1346-1350
30.4.04	5.5.04 - 4.5.06	NYK Line (Hong Kong) Ltd	$25,000 inclusive of government rent & rate & management fee	Tenancy agreement at pages 1352-1363
27.10.06	10.11.06 – 9.11.08	Zhou Guo Min	$23,500 inclusive of government rent & rate & management fee	Provisional tenancy agreement at pages 1364-1365

82.  Although there is no direct evidence, Mr Li was the landlord under the abovementioned tenancy agreements.  In the normal course of event, to ensure a valid discharge, the tenant would pay rent to the landlord.  Ms Lai (whose evidence[76] I accept) subsequently found out that Mr Li had not returned the Pacific Palisades Flat rental income to CCT, thereby suggesting that Mr Li had misappropriated the monies.

Redemption of Tanner Garden Flat

83.  CCT paid off the mortgage on, and redeemed, the Tanner Garden Flat in June 1999[77].

2001 Agreement & its meaning & effect

84.  The 1996 Agreement expired on 31 December 2000.

85.  On 18 February 2001, the Beijing Company (represented by its then general manager, Dai Xiu Fang (戴秀芳)) and Mr Li signed a memorandum of agreement in the following terms (“2001 Agreement”) (page 1821):

协议备忘录

     北京市针棉织品进出口集团公司(以下简称甲方)与香港国际永年纺织有限公司李殿孝先生(以下简称乙方)经友好协商，达成如下协议备忘录。

1.  乙方原为甲方职工并曾任副经理职务，鉴于乙方已于1988年至香港经商，并于数年前移居香港，为此，再継续保留其在甲方的工职及职务已不适宜，现乙方向甲方提出辞职申请，甲方同意乙方的要求，并相应免去其原副经理的职务。

2.  甲方同意，以乙方的名义在香港注册的国际永年纺织有限公司，自乙方辞职后，即与甲方完全脱离关系。甲方明确，对于乙方以前及今后的经营管理及贷款负债等所有事项，概不承担任何责任，一切责任由乙方自负。

3.  双方同意，如有其它未尽事宜，将本着友好合作的精神，协商解决。

     此协议备忘录正本一式两份，双方各执一份，签字盖章有效，并具有同等法律效力。

甲方：北京市针棉织品	乙方：国际永年纺织
进出口集团公司	有限公司
(Chop of the PRC Company &	(Chop of CCT &
signature of Dai Xiu Fang)	signature of Mr Li)

(emphasis added)

86.  There is no dispute as to the provenance of the 2001 Agreement.  Paragraph 32 of the PRC Judgment quoted its content. A number of witnesses who gave evidence before the PRC Court (Mr Zhang, 郭世明 and胡明智) were aware or had heard of such agreement.  The actual photocopy kept amongst CCT’s records and papers has been produced by CCT as exhibit P1.  Mr Cong has also obtained a copy from Mr Li’s son.

87.  Despite the averment in paragraph 37 of Mr Li’s amended defence that he was the sole beneficial shareholder of CCT, Mr Li himself made no mention of the 2001 Agreement in his pleading. 

88.  Mr Cong seems to be the first party to raise the 2001 Agreement.  He did so by adding paragraph 14B when he filed his re-amended defence on 4 April 2018.  Mr Cong apparently became aware of the existence and content of the 2001 Agreement from reading the PRC Judgment.  Other than pleading the terms of the 2001 Agreement and the fact that it was entered into after the 1996 Agreement, Mr Cong has not elaborated on what he contends to be the meaning or effect of such agreement.

89.  CCT’s response in respect of Mr Cong’s pleading of the 2001 Agreement is contained in paragraph 4 of its reply to the re-amended defence of Mr Cong as follows (sic):

“… the [2001 Agreement] concerned only on the management of [CCT] and was silent on the beneficiary ownerships of any real properties in question. It is further averred that, it was an express term of the 1996 Agreement (承包協議書) that “二. 雙方一致同意：乙方在承包前置辦下列產業的使用權和所有權為甲方所有. 其中包括：…2. 在香港購買的香港英皇道振華大廈15B室寫字樓和香港北角和富道和富中心第六座11樓A室住在”. In the premises aforesaid, the said express term was never contradicted by any subsequent agreement and [Mr Li] had been a trustee holding all real properties in question or the sale proceeds at all material times, as the case may be.”

90.  Other than the production of the 2001 Agreement by CCT and Mr Cong, no meaningful evidence has been given on its factual matrix (save that it was made at the time of Mr Li’s resignation from the Beijing Company).

91.  I agree with CCT that the 2001 Agreement did not affect or purport to affect CCT’s beneficial title to any of the Subject Properties.  This agreement was made between the Beijing Company and Mr Li only.  CCT was not privy to it.  The Beijing Company and Mr Li could not and did not between themselves purport to deprive CCT of the ownership, legal or beneficial, to any property.

92.  In my view, what the 2001 Agreement sought to deal with was the Beijing Company’s beneficial ownership of the 95% CCT Shares registered under Mr Li’s name.  In the absence of any factual matrix pointing to a different interpretation, on the face of the 2001 Agreement:

(1)  Mr Li tendered, and the Beijing Company accepted, Mr Li’s resignation from the Beijing Company.

(2)  With effect from Mr Li’s resignation, the Beijing Company completely severed its relation with CCT (「以乙方的名义在香港注册的国际永年纺织有限公司，自乙方辞职后，即与甲方完全脱离关系」) and shall have no more responsibility for the operation and management of CCT by Mr Li, or the loans and indebtedness etc incurred, before and after such agreement, all liabilities for which shall be borne by Mr Li.

93.  On the materials before me, the only relation between the Beijing Company and CCT that is apparent to me was the former’s then beneficial ownership of the 95% CCT Shares held by Mr Li[78]. As I see it, by completely severing its relation with CCT (「完全脱离关系」) by entering into the 2001 Agreement, the Beijing Company was terminating the trust of the CCT Shares in question and giving up its beneficial interest therein to Mr Li so that from the date of the 2001 Agreement, Mr Li became both the legal and beneficial owner of the CCT Shares registered in his name.  First, Mr Li was the only other party to the 2001 Agreement.  Second, the beneficial estate usually follows the legal one.  Third, Mr Li was made to bear sole liability for CCT’s loans and indebtedness (「贷款负债」)[79].

94.  That Mr Li had become the legal and beneficial owner of 95% of the CCT Shares, does not, however, support his proposition in paragraph 38 of his amended defence that CCT’s complaints about his dealings with the Subject Properties, even if established, can be regarded as having been authorised or ratified by all shareholders of CCT and therefore by CCT. 

95.  It bears repeating that a company is a legal entity separate from its shareholders and that the holders, not to mention the beneficial holders, of shares in a company do not thereby own, whether legally or beneficially, the assets of the company or can deal with company assets as they like.  The only qualification is where the principle in Re Duomatic Ltd [1969] 2 Ch 365 at 373C is satisfied.  Simply put, where it could be shown that all shareholders who had a right to attend and vote at a general meeting of the company assented to some matter which a general meeting of the company could carry into effect, that assent was as binding as a resolution in general meeting would be, provided that the decision of the shareholders must be made honestly at a time when the company was solvent.  See Multinational Gas and Petrochemical Co v Multinational Gas and Petrochemical Services Ltd [1983] 1 Ch 258 at 288D-E; and Bowthorpe Holdings Ltd v Hills [2003] 1 BCLC 226 at [49]-[52].

96.  The Duomatic principle has no application here.  Mr Li had never at any material times held all the CCT Shares.  Anyways, I have no evidence as to the solvency or otherwise of CCT at the times of Mr Li’s dealings with Subject Properties.

97.  For the sake of completeness, I should make a note here that according to paragraph 40 on page 20 of the PRC Judgment, the State-owned Assets Supervision and Administration Commission of the Beijing Municipality (北京市人民政府國有資產監督管理委員會) had expressed the view that the 2001 Agreement is illegal.  The reason therefor is that the Beijing Company was a state-owned enterprise.  The interest in the shares of CCT that was “formed” by the Beijing Company’s investment (「其投資所形成的股權」) was therefore a state-owned asset (國有資產).  Those involved in signing the 2001 Agreement were therefore suspected of (「涉嫌」) the unlawful disposal of a state-owned asset.  However, the legality or otherwise of the 2001 Agreement has not been raised or argued before me.  I have no expert evidence on the relevant PRC law.  I do not propose to explore the matter.  Anyways, it is unnecessary for me to do so.

98.  Further, I am not unaware that the subsequent dealings with the CCT Shares held in Mr Li’s name are inconsistent with my above interpretation of the 2001 Agreement.

99.  First, on 22 June 2009, the shares registered in Mr Li’s name were transferred to Ms Lai and Ms Lai, in turn, transferred 1 share under her name to her sister, Lai Siu Wan (黎少雲) (“Ms SW Lai”)[80], so that Ms Lai and Ms SW Lai respectively held 19,999 shares and 1 share in CCT[81].  Ms SW Lai also replaced Mr Li as director of CCT[82].

100.  Regarding such change of shareholding, it is Mr Li’s case as pleaded in paragraph 37(3) of his amended defence that Ms Lai and Ms SW Lai held all the CCT Shares as trustees for him.  On the other hand, according to paragraph 27 of Ms Lai’s witness statement, before his return to the Mainland at some point in 2007/2008 (which is uncontroversial), Mr Li had executed undated documents to resign as director of CCT and to transfer the CCT Shares registered under his name to Ms Lai, without any actually paid consideration.  The formalities were not completed until 22 June 2009 only due to delay on the part of CCT’s accountant(s).  What raises question is that it is also implicit in paragraph 27 of Ms Lai’s witness statement that Mr Li’s resignation and disposal of the CCT Shares were done at the direction of the Beijing Company.

101.  Mr Li did not attend trial to give evidence to make out the case pleaded in paragraph 37(3) of his amended defence.  However, there is no evidence that the 2001 Agreement had ever been rescinded or reversed after its conclusion and before the transfer by Mr Li.  That being the case, on the construction of the 2001 Agreement in [92]-[94] above, Mr Li was the legal and beneficial owner of 95% of the shareholding in CCT before he transferred the same to Ms Lai.  In the absence of evidence of any intention on the part of Mr Li to gift the shares to Ms Lai, the presumption is that Ms Lai held the shares on a resulting trust for Mr Li. I am therefore not inclined to accept the implicit suggestion in paragraph 27 of Ms Lai’s witness statement that by 2007/2008, the Beijing Company still had any proprietary interest in the CCT Shares held by Mr Li to give Mr Li direction for their disposal.

102.  Second, according to paragraph 30 of Ms Lai’s witness statement[83], the Beijing Company had in the meantime been wound up and dissolved on 7 August 2008, with the result that all the assets and properties of the Beijing Company were taken over by one 北京對外經貿控股集團有限責任公司. The 95% shareholding in CCT was apparently included as the assets and properties of the Beijing Company.  And the said北京對外經貿控股集團有限責任公司appointed one Wang Huiping (王輝平) (“Mr Wang”) as its representative to hold such shares in CCT.  Towards this end, on 18 November 2013, Ms Lai, one Mr Hui Sung Sat (許崇實) (“Mr Hui”)[84] and Ms SW Lai respectively transferred to Mr Wang 11,400 shares, 7,600 shares and 1 share in CCT.  After this round of transfers, the CCT Shares were held by Mr Wang as to 19,000 shares, Ms Lai at to 600 shares[85] and Mr Hui as to 400 shares[86].  After disposing of her 1 share, Ms SW Lai ceased to be a director.  In her place, Mr Wang was appointed.

103.  To complete the picture, Mr Wang’s shareholding and directorship in CCT were passed onto one Ma Guowei on 31 May 2017.

104.  As already noted, there is no evidence that the 2001 Agreement has at any stage been rescinded or reserved.  The transactions mentioned in the preceding 2 paragraphs disregarded the 2001 Agreement.  It has not been explained to me how these transactions could sit well with the 2001 Agreement, as construed above. Anyway, it is unnecessary to, and I do not, make any finding.

Dealings with properties after making of 2001 Agreement

Transfer of Tanner Garden Flat from CCT to Mr Li

105.  By an agreement for sale and purchase dated 10 August 2004 (pages 1762-1780) and an assignment dated 7 September 2004 (pages 1783-1788), CCT “sold” and transferred the Tanner Garden Flat to Mr Li for the stated consideration of $3,980,000.  According to Ms Lai[87], whom I believe, this transaction was carried out only upon Mr Li’s insistence.

106.  The said agreement and assignment were in the forms and on the terms commonly adopted in Hong Kong in this type of transactions.  In particular, they contained purported acknowledgments of receipt of different parts of the stated consideration.

107.  In the present case, on Mr Li and Mr Cong’s own pleaded case, the stated consideration of $3,980,000 for the transfer of the Tanner Garden Flat from CCT to Mr Li was not satisfied by Mr Li by direct payments by cheques/cashier orders, as is normally done.  

108.  Instead, Mr Li barely asserts in paragraph 26(3) of his amended defence that CCT held a sum of $4,000,000 in its bank account(s) on trust for him and that he paid CCT the consideration of the Tanner Garden Flat by set-off against the $4,000,000 allegedly held by CCT for him.  Mr Li has, however, given no particular of the circumstances in which CCT came to hold $4,000,000 on trust for him or where the sum originated from.

109.  On the other hand, Mr Cong has condescended to more particulars.  In paragraphs 14(2)(i), (ii), (iii) and (v) and 14A of his re-amended defence, Mr Cong asserts that Mr Li had “declared and confirmed” with him (1) that he was the registered and beneficial owner of the Eternal Building Flats; (2) that he disposed of the 2 properties, and discharged the mortgages thereon, in July and August 1994; (3) that the combined proceeds of sale of $4,000,000 “remained on the accounts of [CCT]” and was held by CCT as his trustee; and (4) that in 2004, the board of directors of CCT resolved to sell the Tanner Garden Flat to Mr Li and to use the sum of $4,000,000 owed by CCT to Mr Li to set off the purchase price of $3,980,000.

110.  I have already found that Mr Li held the Eternal Building Flats, not as beneficial owner, but on trust for CCT (see [24] above); and that the $4,000,000 realised from the sale of such properties completed on 30 July 1994 and 26 August 1994 (which belonged to CCT beneficially) had been applied to make 2 partial repayments of the loan secured by the mortgage of the Provident Centre Flat on 3 August 1994 and 15 November 1994 (see [56] & [58] above).

111.  In view of these findings, the defendants’ case that Mr Li had provided consideration for the Tanner Garden Flat with the use of the proceeds of sale of the Eternal Building Flats cannot stand.

112.  Neither Mr Li nor Mr Cong has put forward an alternative case.  It would have been difficult for them to do so with credibility.  I find, as a matter of fact, that Mr Li had not paid any consideration for the Tanner Garden Flat.

113.  Without an exchange of values and in the absence of evidence of an intention on the part of CCT to gift the property to Mr Li, Mr Li held the Tanner Garden Flat on a resulting trust for CCT.  I pause to reiterate that a company and its shareholders are separate entities and that a shareholder, not even a 95% shareholder like Mr Li, has no proprietary interest in the company’s assets and properties.

114.  It follows that Mr Li could not subsequently validly pass to Mr Cong the beneficial title to the Tanner Garden Flat.

Letting of China Harbour Office since 2006

115.  As stated above, it is CCT’s pleaded case, and I find, that Mr Li had rented out the China Harbour Office since 2006 after CCT ceased to use and occupy the property as its office. 

116.  Although there is no direct evidence, in the normal course of event, one would have expected the tenancy agreement(s) to be entered into by the registered owner, Mr Li, as landlord and the tenant to pay rent to Mr Li.  CCT, as beneficial owner of the China Harbour Office, was in turn entitled to receive from Mr Li the rental income derived from such property.  However, according to Ms Lai[88] (whom I believe), she could not find any record of receipt of any rental income from the China Harbour Office in the accounts of CCT, thereby suggesting that Mr Li had misappropriated the monies, at least before he left Hong Kong in 2007/2008.

Transfer of Tanner Garden Flat from Mr Li to Mr Cong

117.  By an agreement for sale and purchase (“Purported SPA”) and an assignment (“Purported Assignment”), both dated 3 July 2007, between Mr Li as vendor and Mr Cong as purchaser, Mr Li sold and conveyed the Tanner Garden Flat to Mr Cong for the stated consideration of $4,800,000.  Such agreement and assignment were registered with the Land Registry on 26 July 2007 (see land search record at pages 1430 & 1434).

118.  This transfer had been made without notice to CCT despite CCT’s beneficial ownership of the Tanner Garden Flat (see [113] above).  Ms Lai learnt of it after the incarceration of Mr Li in Beijing[89].

119.  I repeat the conclusion in [114] above.  That being the case, I do not think that Mr Cong can claim to be a bona fide purchaser without notice of CCT’s beneficial interest in the Tanner Garden Flat.  In this regard, Mr Li was a director of CCT.  This fact should and would have become plain to Mr Cong upon sight of the minutes of CCT’s directors’ meeting on 7 September 2004 (page 1781), which document is described by counsel for Mr Cong as “part of the title documents” of the Tanner Garden Flat[90]. The Tanner Garden Flat was CCT’s property.  By acquiring the Tanner Garden Flat from CCT, Mr Li was putting himself in a position of conflict of interests and, therefore, in breach of his fiduciary duty to CCT.  Requisition should have been, but was not, raised by Mr Cong.  Indeed, the whole stage of investigation of title, which is usually the most significant in a typical conveyancing transaction in Hong Kong, had peculiarly been skipped in this case.  Mr Cong obviously did not care about, and turned a blind eye to, whether Mr Li had a good title to the property.

120.  This should be sufficient to dispose of the dispute between CCT and Mr Cong in favour of the former over the beneficial ownership of the Tanner Garden Flat.

121.  For the sake of completeness, as in the case of the transfer from CCT to Mr Li, the Purported SPA and the Purported Assignment were likewise in the forms and on the terms commonly adopted in Hong Kong in this kind of transactions. 

122.  I am sceptical about Mr Cong’s entire case on his purchase of the Tanner Garden Flat.  The matters to be mentioned in [123]-[133] below are particularly worthy of note.

123.  First, there is no evidence of any negotiation or discussion between vendor and purchaser on the terms of the Purported SPA as one would find in a genuine arms-length transaction. 

124.  Second, the parties then completed the transaction on the same date by the Purported Assignment, without allowing any time for the usual steps between agreement and completion to take place.  I have already observed in [119] above that there was no investigation of Mr Li’s title.  This is so despite Mr Li’s express obligation under clause 8(a) of the Purported SPA (page 1792) to prove title in accordance with s 13 of the Conveyancing and Property Ordinance (Cap 219).  It is most unlikely for a bona fide purchaser of real estate to forgo his contractual right to be satisfied that the vendor does have a good title to the property that he is purchasing.

125.  Third, apart from clause 8(a) which the parties well knew would not be performed, the manner in which the purchase price was allegedly paid also completely disregarded clause 2(b) and Part II of the Second Schedule to the Purported SPA (pages 1791 & 1801).  These provisions, read together, required payment of the whole purchase price on 3 July 2007, being the date of the Purported SPA as well as the date of completion, by either cashier order(s) or solicitors’ cheque(s).

126.  As it turned out, Mr Cong paid no part of the purchase price of $4,800,000 on 3 July 2007.  Nor did he pay by cashier order(s) or solicitors’ cheque(s) either.  Instead, Mr Cong allegedly paid Mr Li by[91]:

(1)  waiving the principal and interest totalling RMB2,746,000 (then equivalent to $2,590,000) of a loan (in the principal amount of RMB2,000,000) (“Alleged Loan”) advanced by Mr Cong to Mr Li’s brother, Li Dian Yi (李殿義) (“Mr DY Li”), in December 2002 and secured by Mr Li’s personal guarantee; and

(2)  remitting RMB2,622,000 (converted from $3,000,000) to one Li Yuan (李元) (“Mr Y Li”), Mr Li’s son, on 14 October 2008.

127.  It is absurd for Mr Cong to have paid the purchase price of the Tanner Garden Flat to Mr Li in the said alleged manner.

(1)  Mr Cong would have “paid” Mr Li $5,590,000 ($2,590,000 + $3,000,000), which is considerably more than $4,800,000.  Neither Mr Cong nor Ms Cong has given any credible explanation for such generosity.

(2)  On the other hand, Mr Li did not receive any payment on the date of completion.  Conveyance and payment are normally simultaneous and inter-dependent obligations.

(3)  The said alleged settlement of the purchase price rendered the acknowledgment of receipt of the deposit and part payment in the amount of $480,000 in clause (a) of Part II of the Second Schedule to the Purported SPA (page 1801) untrue.  So was the acknowledgment of receipt of the purchase price in the amount of $4,800,000 in clause 1 of the Purported Assignment (page 1806).  I can see no good reason why the parties should insert such falsities in the transaction documents which will become part of the title deeds and documents of the Tanner Garden Flat.

(4)  And the flip side is that there was, much against Mr Li’s interest, no acknowledgment of his discharge from the guarantee of the Alleged Loan to his brother.

128.  Fourth, other than departing from the contractual provisions governing the payment of the purchase price, the supporting documents disclosed by Mr Cong as proofs of payment of the purchase price of $4,800,000 as aforesaid raise more questions than they answer.

129.  In this connection, in support of the allegation in [126(1)] above, Mr Cong relies on (1) what purports to be a Chinese loan agreement dated 1 December 2002 (“Purported Loan Agreement”) between「北京市國都寵物樂園法人代表李殿義先生」(as borrower) and Mr Cong (as lender) but also signed by Mr Li as「中介擔保人」(page 1814); and (2) what appears to be a page downloaded from a website called「全國企業信用信息公示系統 (北京)」showing that Mr DY Li was the legal representative of 北京市國都寵物樂園有限公司 (page 1813).

130.  The problems that I see are:

(1)  As per clause 1 of the Purported Loan Agreement, repayment of the Alleged Loan was due on 31 October 2004, which was almost 3 years before the date of the Purported SPA and the Purported Assignment.

(2)  Notwithstanding clause 4 of the Purported Loan Agreement, there is before me no or no credible proof of any agreement to extend the repayment date of the Alleged Loan. 

(3)  If the consensus or intention was to write off this very stale debt owed by Mr Li as guarantor in part payment of the purchase price of the Tanner Garden Flat, why was this not reflected in the Purported SPA or the Purported Assignment? 

(4)  It is even more mind-boggling that the parties then saw fit to include false acknowledgments of receipt in the Purported SPA and the Purported Assignment.

131.  In support of the allegation in [126(2)] above, Mr Cong has disclosed (1) copy of a cheque dated 14 October 2008 in the sum of $3,000,000 drawn by Ms Cong on her account with Shanghai Commercial Bank Ltd in favour of one 茂信興貿易公司 (page 1812); and (2) a remittance receipt dated 14 October 2008 issued by one Multi Easy Hing Trading Co (茂信興找換) showing the remittance of RMB2,622,000 (converted from $3,000,000) from Ms Cong to Mr Y Li (page 1815).

132.  Again, I have queries arising from these supporting documents.  While these documents show a payment of RMB2,622,000 by Madam Cong to Mr Y Li, there is no indication of the nature of the payment other than Mr Cong and Madam Cong’s words.  The lack of such objective or independent evidence assumes significant when the date of this payment is considerably later than the date of completion of the purported sale and purchase of the Tanner Garden Flat between Mr Li and Mr Cong.   I have already noted the delayed payment of this part of the purchase price.

133.  On the aforesaid summary and analysis of the evidence before me, I am not persuaded that Mr Cong had paid the stated consideration of $4,800,000 for the sale and purchase of the Tanner Garden Flat under the Purported SPA and the Purported Assignment whether as alleged or at all.

134.  In the premises, it is unnecessary to determine whether $4,800,000 was an under-value.

Sale of Pacific Palisades Flat

135.  By a provisional agreement for sale and purchase dated 13 August 2007 (pages 1342-1343), Mr Li as vendor agreed to sell the Pacific Palisades Flat at $7,780,000 and to pay the estate agent $77,800 for commission.  Under such agreement, deposits of $233,400 and $544,600 and the balance of purchase price of $7,002,000 should have been paid to Mr Li on 13 August 2007, 3 September 2007 and 18 October 2007 respectively. In addition, the said estate agent’s commission would also be due on 18 October 2007.  There is no evidence as to whether any sum was still outstanding under the mortgage loan from Citibank or the amount of the legal costs and expenses incurred for the sale.  In any event, even if no redemption money was payable to Citibank, the net proceeds of sale, after deducting the said estate agent’s commission and legal costs and expenses should be somewhat less than $7,780,000.

136.  According to Ms Lai[92], Mr Li had misappropriated the profit realised from the sale of the Pacific Palisades Flat.  I believe Ms Lai is speaking loosely.  Strictly speaking, the gross profit from the sale of the Pacific Palisades Flat should be the difference between the purchase price and the sale price, which is only $80,000 ($7,800,000 - $7,700,000).  Indeed, taking into account the costs and expenses incurred on the purchase and sale, the holding of the Pacific Palisades Flat resulted in a loss.  I believe, and I proceed on the basis, that what Ms Lai is saying (which I accept) is that Mr Li had not paid to CCT the net proceeds of sale that he received from selling the Pacific Palisades Flat.

Cessation of CCT’s business of selling knitwear export quotas

137.  Beginning from 2006, CCT has ceased its business of selling knitwear export quotas following the gradual abolition of the quota system for the export of textile goods in Mainland China after the PRC joined the World Trade Organisation[93].

Incarceration, conviction & imprisonment of Mr Li

138.  Mr Li was tried and convicted by the PRC Court of corruption in disposing, and misappropriating the proceeds of sale, of the landed properties of one 北京永大製衣有限公司[94] while he was the legal representative and chairman of that company from May 2003 to February 2007.  He was sentenced to a term of imprisonment for 15 years from 29 August 2008 to 28 August 2023, which he was still serving at the time of the trial of this action[95]. 

Winding up & dissolution of Beijing Company

139.  I have already mentioned Ms Lai’s evidence in paragraph 30 of her witness statement that the Beijing Company had in the meantime been wound up and dissolved on 7 August 2008.  For the effects of the liquidation of the Beijing Company on CCT, see [102] and [103] above. 

ANSWERS

140.  I can now answer the questions set out in [3] above.

Laches

141.  I am unimpressed by Mr Li’s case on laches which runs like this: CCT made no complaint whatsoever to, or against, Mr Li regarding his dealings with the Subject Properties in breach of duties until the commencement of this action on 20 February 2012, by which time he had already lost his freedom and has therefore become unable to himself testify, locate material witnesses to give evidence or find relevant documents in his defence in this action.

142.  Mr Li was the most senior person stationed by the Beijing Company in Hong Kong.  As explained by Ms Lai in paragraphs 37 and 38 of her witness statement, Mr Li led and dominated the management of CCT’s business and operation prior to his departure from Hong Kong in 2007/2008.  She therefore thought that whatever Mr Li did had been authorised by the Beijing Company.  It did not occur to her to challenge his conduct in relation to CCT.  

143.  Ms Lai did not investigate into CCT’s books and records and found out and realised that Mr Li had misappropriated CCT’s assets in acquiring properties in his personal name until after the representatives of the People’s Procuratorate had come to Hong Kong to make inquiries about CCT.  In this connection, included in the trial bundles are copies of records of interviews of Ms Lai by the People’s Procuratorate in Hong Kong in May 2009 (pages 545-549) and a notarised Chinese statement dated February 2010 by Ms Lai to the People’s Procuratorate (pages 552-556).

144.  I accept Ms Lai’s evidence, on the basis of which I rule out any delay in CCT’s action against Mr Li.

145.  Further, prejudice is an essential element for a defence based on the doctrine of laches.  See, for example, Cuvelier Jacques R v Chen Qizhi [2019] HKCFI 2386 at [52].  However, the court does not act on bare and unparticularised assertions of detriment.  During the period from 11 November 2015 to 26 June 2016, Mr Li was represented by solicitors who instructed counsel on his behalf.  Mr Li was able to give instructions to his legal representatives for the amendment of his defence. Yet, paragraphs 10, 19(4), 22(2), 24(3) and 36 of Mr Li’s amended defence in which Mr Li’s case on laches is pleaded are couched in the most ambiguous and obscure terms.  Mr Li did not condescend to particulars of what testimony he could have personally given, what witness(es) he could have located or contacted or what document(s) he could have unearthed to establish a defence.

146.  CCT is not estopped by laches.

CCT Shares

147.  nbsp;   Prior to the date of the 2001 Agreement, Mr Li held the CCT Shares registered in his name (which was not 100%) on trust for the Beijing Company.  He only acquired the beneficial ownership of such shares by virtue of the 2001 Agreement.

China Harbour Office

arbour

148.  Mr Li held and still holds the China Harbour Office on trust for CCT. 

149.  Further, Mr Li let such property and received rental income therefrom since 2006 without accounting to CCT for such income.

Provident Centre Flat

150.  Mr Li held the Provident Centre Flat on trust for CCT. 

151.  Also, Mr Li had received the following monies in respect of this property without accounting to CCT: (1) the net forfeited deposit when the attempted sale of the Provident Centre Flat in 1997 fell through; and (2) the net proceeds from the sale of the Provident Centre Flat in 1998.

Pacific Palisades Flat

152.  Mr Li held the Pacific Palisades Flat on trust for CCT

153.  Also, Mr Li had received the following monies in respect of this property without accounting to CCT: (1) rental income between 1998 and 2007; and (2) the net proceeds from the sale in 2007.

Tanner Garden Flat

154.  Mr Li held the Eternal Building Flats on trust for CCT.  Hence, the approximate sum of $4,000,000 realised from the sale of the Eternal Building Flats in 1994 beneficially belonged to CCT.

155.  Mr Li had not paid any consideration for the transfer of the Tanner Garden Flat from CCT to him on 7 September 2004 with the consequence that he did not acquire the beneficial ownership of such property, which he held on trust for CCT from 7 September 2004 to 3 July 2007.

156.  Mr Cong did not pay Mr Li any consideration for the transfer of the Tanner Garden Flat to him on 3 July 2007.  The purported sale and purchase of such property between Mr Li and Mr Cong was not a genuine transaction.  And Mr Cong was not a bona fide purchaser for value without notice of CCT’s beneficial interest in the Tanner Garden Flat.

RELIEF

157.  For the above reasons, as against Mr Li:

(1)  I declare that he held and still holds the China Harbour Office on trust for CCT.

(2)  I further declare that he held these properties on trust for CCT: (a) the Provident Centre Flat; (b) Pacific Palisades Flat; and (c) the Tanner Garden Flat between 7 September 2004 and 3 July 2007.

(3)  I order him to transfer the China Harbour Office to CCT or at its direction.

(4)  I order him to account to CCT for the following:

(a)  the rental income from letting the China Harbour Office since 2006;

(b)  the net deposits forfeited from the aborted sale of the Provident Centre Flat in 1997;

(c)  the net proceeds of sale of the Provident Centre Flat in 1998;

(d)  the rental income from letting the Pacific Palisades Flat between 1998 and 2007;

(e)  the net proceeds of sale of the Pacific Palisades Flat in 2007; and

(f)  all the money and benefits received from holding the Tanner Garden Flat between 7 September 2004 and 3 July 2007.

(5)  There shall be an inquiry into the aforesaid accounts to be rendered by Mr Li.

(6)  I order Mr Li to pay CCT all sums found to be due from Mr Li to CCT on the taking of such accounts.

158.  As against Mr Cong:

(1)  I declare that he has since 3 July 2007 been holding the Tanner Garden Flat on trust for CCT;

(2)  I set aside the purported sale and purchase of the Tanner Garden Flat between Mr Li and him by the agreement for sale and purchase and the assignment both 3 July 2007 and respectively registered at the Land Registry by memorials numbers 07072601190012 and 07072601190027.

(3)  I order him to transfer the Tanner Garden Flat back to CCT or at its direction.

(4)  I further order him to account for all the money and benefits received by him from holding the Tanner Garden Flat since 3 July 2007.

(5)  There shall be an inquiry into such account.

(6)  I order Mr Cong to pay CCT all sums found to be due from him to CCT on the taking of such account.

159.  The parties should apply to the masters for directions for taking the accounts and conducting the inquires ordered above.

160.  Costs usually follows the event.  I make an order nisi that the defendants shall pay CCT the costs of this action to be taxed on a party and party basis, if not agreed.