TAN MAN KOU AND ANOTHER v. CHIME CORPORATION LTD AND OTHERS

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AND

HCA 3626/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 3626 OF 2003

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AND

HCA 2492/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 2492 OF 2004

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REASONS  FOR  DECISION

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The applications

1.  I have before me eight summonses seeking a stay of all further proceedings in each of these eight proceedings pending the determination of the appeal in the Court of Final Appeal intituled FACV No. 12 of 2004 (“the Probate Appeal”):

(1)	HCMP No. 4146 of 2001 (“the Chime B Petition”);
(2)	HCA No. 2415 of 2002 (“the Chime A Action”);
(3)	HCCW No. 1050 of 2004 (“the Parasia Petition”);
(4)	HCCL No. 73 of 2002 (“the Mighty Debt Action”);
(5)	HCCL Nos. 63 and 64 of 2004 (“the Mighty Specific Performance Actions”); and
(6)	HCA Nos. 3626 of 2003 & 2492 of 2004 (“the Kam Ting/Ching Wing Partnership Actions”).

2.  These summonses were issued on 15, 17, 20 and 22 December 2004, shortly after the Court of Final Appeal delivered judgment on 13 December 2004 in FACV No. 6 of 2004 (“the CFA judgment”), which is an interlocutory appeal in the Chime B Petition against an order giving leave to amend the petition under section 168A of the Companies Ordinance, Cap. 32.

3.  The applications for stay in the Chime B Petition were made by the 1^st respondent Chime Corporation Limited (“Chime”), the 2^nd respondent Mrs. Nina Wang (“Mrs. Wang”) and the individuals who are the 3^rd and 6^th to 9^th respondents.  In the Parasia Petition, Mrs. Wang made the application as the opposing contributory.  She also made the application as the 1^st defendant in the Chime A Action and as the 1^st defendant in the Kam Ting/Ching Wing Partnership Actions.  Chinachem Agencies Limited (“CAL”), a company in which Mrs. Wang has a beneficial interest, sought a stay of proceedings as the defendant in the Mighty Debt Action and as the 2^nd defendant in the Kam Ting/Ching Wing Partnership Actions.  In the Mighty Specific Performance Actions, the applications for stay were brought by the defendants, Yau Fook Hong Company Limited and The World Realty Limited, both being wholly owned subsidiaries of Chime.

4.  On 17 December 2004, I granted an interim stay of the Chime B Petition, the Parasia Petition, and the Kam Ting/Ching Wing Partnership Actions, pending the determination of the substantive stay applications in these four proceedings fixed for hearing on 8 March 2005.  Two further summonses were issued to stay the Chime A Action and the Mighty Debt Action after the hearing of the interim stay application.  On 31 January 2005, Stone J ordered that the three summonses for stay of proceedings in the Commercial List be transferred to me to be heard with the other five summonses.

5.  The stay sought by the various applicants in this instance is a relatively short one, as the Probate Appeal is to be heard in four months’ time, even allowing time for deliberation and delivery of judgment by the Court of Final Appeal.  The purpose of the stay is to enable the Probate Appeal to be determined so as to resolve the entitlement to the estate of Wang Teh Huei (“the estate” and “Mr. Wang”) before the further prosecution of the eight proceedings.  The basis of the applications is that the costs, time and resources taken up by these proceedings have been, and would continue to be very substantial; if Mrs. Wang were held to be the beneficiary of the estate, the issues that arise in these proceedings would never need to be determined, it is pointless in the meantime to incur substantial costs, time and resources in litigation that may never need to be resolved.

6.  The joint administrators pendente lite of the estate (“the administrators”), being the respondents in all these applications, adopted this stance to the applications, in an attempt to minimise their exposure to costs.  No evidence was filed by the administrators in answer to the evidence filed by the various applicants in support of their applications.  They chose not to comment upon or analyse the applicants’ evidence and stated in the written submissions they served on 4 February 2005 and 2 March 2005 that they would not make oral submissions, except on costs.  Mr. Brock, who appeared for the administrators, described this as mounting a ‘formal’ not a ‘full-blown’ resistance, and merely placing the burden on the applicants to establish why a stay should be granted.

The orders

7.  At the conclusion of the hearing, I made an order to stay all eight proceedings pending the determination of the Probate Appeal.  I also gave liberty to apply in all instances, to accommodate any change of circumstances which may require a review of the situation.

8.  In the Parasia Petition, I declined to impose a condition proposed by the administrators that Mrs. Wang should undertake to procure that the income of Parasia Limited (“Parasia”) and its subsidiaries be paid into an escrow account during the stay, as I did not find any cogent reason on the evidence to justify the interim protection proposed.

9.  I ordered that the administrators should pay the costs of the various applicants in any event.  In respect of the representation for Mrs. Wang and CAL, I certified the matter as appropriate for two counsel.  I ordered that the administrators’ own costs are to be taxed on a trustee basis and paid out of the estate.

10.  These are the reasons for my decision.

The juridical basis for granting a stay

11.  The court has an inherent jurisdiction to regulate its own procedures, including jurisdiction to grant a stay in appropriate circumstances.  This is preserved and recognised by section 16(3) of the High Court Ordinance, Cap. 4, which provides as follows: “Nothing in this Ordinance shall affect the power of the Court of Appeal or the Court of First Instance to stay any proceedings before it, where it thinks fit to do so, either of its own motion or on the application of any person, whether or not a party to the proceedings.”

12.  Mr. Brock submitted that a stay constitutes interference with the right of a litigant to conduct his litigation to a trial on the merits, it is not a step to be taken lightly, and the court should not grant a stay unless the action, beyond all reasonable doubt, should not go on.  In support of this, he cited Shackleton v. Swift [1913] 2 KB 304 at 312; Goldsmith v. Sperrings Ltd. [1977] 1 WLR 478 at 498H; Ha Francesca v. Tsai Kut Kan (No. 1) [1982] HKC 382 at 392G and 398; Re Ocean Palace Restaurant & Nightclub Ltd. [1999] 3 HKC 665 at 670H; Schreiber v. The Federal Republic of Germany (2001) 57 O.R. (3rd) 316 at paras. 4, 8, 43, 51 to 52; Abraham v. Thompson [1997] 4 All ER 362 at 374e to g; and Halsbury’s Laws of Hong Kong, Vol. 5(2) at para. [90.0938].

13.  Mr. Potts, QC, for Mrs. Wang and CAL and Mr. Peter Ng, SC, for Chime and its two subsidiaries submitted that the authorities cited above would have no application here.  I agree.  In most of these authorities, the general approach referred to by Mr. Brock was adopted in the situation where a permanent stay was sought on various grounds, as when the action was not maintainable (in Shackleton v. Swift), or for abuse of process (in Goldsmith v. Sperrings Ltd. and Abraham v. Thompson), or where the co-extensive power of the court to strike out a claim was invoked (as in Ha Francesa v. Tsai Kut Kan (No. 1) and Re Ocean Palace).  As for Schreiber v. The Federal Republic of Germany, this was where there was an overlap of civil proceedings with related criminal proceedings, which is far removed from the situation I am concerned with.

14.  The correct approach, as submitted by Mr. Potts and Mr. Ng, in an application for a temporary stay of proceedings is “to consider the balance of convenience and fairness as between the parties” (Alfred McAlpine Construction Ltd. v. Unex Corporation Ltd. (1994) 70 BLR 26 at 45C to D, per Glidewell LJ; applied in Clinton Engineering Ltd. v. B-Tech (Holdings) Ltd. [2001] HKCU 1002 at para. 9 and SWE Ltd. v. Chong Lai Fun, HCA No. 1064 of 2004, 28 October 2004, Reyes J, pages 5 and 6; see also Halsbury’s Laws of Hong Kong, Vol. 5(2), footnote 7 to para. [90.0938]) and the court should exercise its discretion in such a manner “to ensure that its procedures are used in a logical, fair and cost-efficient manner” (SWE Ltd., page 5).  The question at hand is not a question of deprivation of the right of a litigant to proceed altogether, but a question of case management.

Lord Scott’s dicta

15.  All the applicants placed heavy reliance on the judgment of Lord Scott of Foscote NPJ in the CFA Judgment, in particular paragraphs 52 to 60 and 66 to 68.  I do not propose to set out the relevant parts of his judgment.

16.  Mr. Brock submitted that Lord Scott’s dicta should not be followed for these reasons.

17.  Firstly, the observations made in the judgment on case management in the Chime B Petition are obiter dicta.  The Court of Final Appeal was concerned with a point of law in a petition under section 168A whether there is jurisdiction, in the theoretical as well as the practical sense, to make an order for payment of damages or compensation, or for the grant of restitution, to the company itself (paras. 8 and 9, per Bokhary PJ; paras. 34 and 35, per Lord Scott).  It is “exceptional” and “unconventional” for the court to make statements that have potentially wide-ranging effects on matters or issues that do not arise in the case with which it is dealing, and where the court’s views have not been sought by the concerned parties.  Further, as obiter dicta, Lord Scott’s remarks are “considerably more remote and even less acceptable” with regard to other cases brought by the administrators with which the Court of Final Appeal was not concerned at all, if such remarks were also to apply to other litigation brought on behalf of the estate, as argued by the applicants here.  It was an “error of judgment” for the court to pronounce the obiter dicta.

18.  Secondly, an order for a stay of proceedings can only properly be made by reference to all relevant facts in the particular situation.  The Court of Final Appeal heard no argument from the parties on the general conduct of the Chime B Petition.  There was no evidence before it as to the facts giving rise to the commencement of the other actions brought by the administrators or the facts as to the course of those proceedings.  No argument was made on those matters.  No opportunity had been given to any one to explain and defend the conduct of bringing and pursuing all this litigation.  The remarks reflected an “uninformed assessment of the whole situation”.

19.  Thirdly, any court concerned with case management in proceedings concerning the affairs of the estate should have given “prime consideration” to “the pervading aura of fraud”.  In High Court Probate Action No. 8 of 1999 (“the Probate Action”), Yam J held that the will propounded by Mrs. Wang was a forgery.  There is an allegation in the Chime A Action of the use of a false instrument.  In the Chime B Petition, it is alleged that Mrs. Wang has engaged in a course of systematic expropriation of Mr. Wang’s interest in the Chime group and in the assets of that group.  A very different view may be taken as to how legal proceedings should be conducted when fraud is in issue.  The administrators are entitled, and under a duty, to take steps to protect the estate.

20.  Fourthly, the realities of the whole situation should be taken into account.  The Probate Action was commenced in 1999 by Mr. Wang’s father, Wang Din Shin (“Mr. Wang Senior”).  He is 94 years old.  Yam J has found in favour of the will propounded by Mr. Wang Senior in the Probate Action and Mrs. Wang’s appeal from that decision was dismissed by the Court of Appeal.  Mr. Wang senior has as much interest as Mrs. Wang in the litigation brought by the administrators on behalf of the estate.  Any order for stay of proceedings, which may mean delay in the resolution of the litigation, would be unfair and unjust to him.  In the CFA Judgment, the Court of Final Appeal was not in a position to conduct a balancing exercise of the interests of Mrs. Wang, with the interests of Mr. Wang Senior, in the Chime B Petition, to which Mr. Wang is not even a party.

21.  Fifthly, as to the possible waste of costs that could result in this instance, this is not of great significance having regard to the value of the estate and the means of Mrs. Wang in her own right.

22.  Sixthly, reliance was placed on a decision of Chu J sitting as an administrative judge in the Probate Action on 16 February 2005 in which she refused an application of Mrs. Wang to adjourn the summons of the administrators to serve a questionnaire on her until after the determination of the Probate Appeal.  Chu J took the view that it cannot be intended that Lord Scott’s dicta should have general application to the wide-ranging activities of the administrators done for the purpose of preserving the estate until the Court of Final Appeal decides who is entitled to the estate.

23.  I do not agree with these submissions.

24.  It was accepted by all that the observations of Lord Scott are obiter dicta.  It was also not disputed that they were made in the context of the Chime B Petition.  That said, it is pertinent to note that his observations had the full agreement of all the other members of the court.  As statements on case management go, it is difficult to see how they could form part of the ratio decidendi of a judgment of the Court of Final Appeal, as one would expect case management issues rarely to reach our final court.  I agree with Mr. Potts the proper inference is that the Court of Final Appeal had seized on the opportunity to voice its serious concerns, unanimously and firmly, about the way litigation had been proceeded with.  Although the court had heard no argument as to whether the Chime B Petition or any other action brought by the administrators should be stayed, the court nevertheless decided, of its own motion, to declare in paragraph 66 of the CFA Judgment that the Chime B Petition “cries out for firm and effective case management”.  The emphatic statements on case management were not made in a vacuum, as the court was apprised of the procedural history of the Chime B Petition, it was also aware of the Chime A Action and its purport.  The court also expressed its concerns from the point of view of the judiciary in paragraph 55, that if the Probate Appeal were to be determined in Mrs. Wang’s favour, the Chime B Petition “will be pointless and an inexcusable waste of money, time and judicial resources of Hong Kong”, and in paragraph 67, that prosecution of the complaint relating to the loan to CAL would “make demands on the judicial resources of Hong Kong that it would be unreasonable for any litigant to expect to be met unless it were plainly necessary in the interests of justice for that to be done”.  It can hardly be inappropriate for the court to express its concerns on a serious matter troubling it even though the parties did not seek its views.  The criticisms levied on behalf of the administrators are unjustified.

25.  As for the complaint that the Court of Final Appeal did not have all relevant facts in making an informed assessment as no evidence was filed on the commencement and progress of the various proceedings brought by the administrators, there is nothing in this point.  The administrators were given the opportunity to file evidence in opposition to the stay applications by the directions I gave on 8 January 2005.  They chose not to do so.  The various applicants have filed their evidence in support.  This court has a clearer picture of the expenses incurred in the administration of the estate (that the administrators’ expenses had exhausted all the liquid assets and their fees up to 13 June 2003 amounted to approximately HK$130 million), the time and resources that had been and would be taken up by the senior management and staff of the Chinachem group in dealing with matters of litigation, and the disruptive effect and potential damage to the business of the Chinachem group.  The additional evidence made available to this court does not alter the assessment of the situation by the Court of Final Appeal.

26.  The submission on the “pervading aura of fraud” does not avail the administrators.  The findings on forgery made by Yam J in the Probate Action were overturned by the Court of Appeal.  The result of the Probate Action at first instance and on appeal was notorious.  It cannot be suggested that the Court of Final Appeal was not aware of the allegations of the parties and the implications of the judgments in the Probate Action.  The allegations in the Chime B Petition, which also repeated the allegations in the Chime A Action, were fully canvassed by the Court of Final Appeal.

27.  As for the submission that the administrators are entitled to and under a duty to take steps to protect the estate, I had considered the risk of dissipation of assets when I refused the administrators’ application to appoint receivers and managers over Chime in the Chime B Petition.  I took the view that the comprehensive regime of undertakings and orders already in place as set out in the schedule to my decision on 25 June 2003 should give adequate protection.

28.  I acknowledge there might be prejudice occasioned to Mr. Wang Senior as a result of a stay of the eight proceedings pending the determination of the Probate Appeal.  That is but one of the matters to be weighed in the balance in the exercise of my discretion whether to grant a stay so as to achieve a sensible case management of these various proceedings.  In my view, this is outweighed by the other factors mentioned in the CFA Judgment that would militate in favour of a stay, particularly as the stay sought is only for a matter of months.

29.  I do not accept that just because the estate is of considerable value and Mrs. Wang has substantial assets of her own, the enormous costs that have been and would be incurred should not be a matter of concern in this situation.

30.  Chu J’s statement that Lord Scott’s observations cannot be intended to apply to the wide-ranging activities of the administrators across the board must be read with regard to the nature of the application or proceeding that she was asked to adjourn.  I am concerned with very different circumstances.

31.  In summary, there is no reason not to have due regard to the carefully considered views in the CFA Judgment.

32.  I should also mention that no objection was taken to the commencement of the various proceedings by the administrators, as there might be a need to bring proceedings in case any cause of action should be time barred.  What the applicants objected to is to deal with a plethora of litigation before the outcome of the Probate Appeal, when such litigation might prove to be pointless if Mrs. Wang were successful.

Some common factors

33.  Although the forceful observations of the Court of Final Appeal on case management were only directed to the Chime B Petition, there are some common factors with the other seven proceedings, and which would point towards a stay.

34.  First and foremost, it is not disputed that if Mrs. Wang should be held to be the beneficiary of the estate, all the eight proceedings brought by the administrators would be a pointless and academic exercise and that the substantial wasted costs in litigation would have to come out of the estate and thus out of Mrs. Wang’s own property, unless recovered elsewhere.

35.  Further, the complex issue of the “treasury system” of the Chinachem group, which featured in the defence raised in the Chime B Petition, would also be in issue in the other proceedings, with the possible exception of the Chime A Action.  There are two aspects to this matter.

36.  Firstly, the applicants contended that in pursuing the legal proceedings, the administrators are seeking to undermine the treasury system and this would be extremely damaging to Mrs. Wang, the estate, and the business of the companies in the Chinachem group.  Secondly, substantial work, time and resources would need to be devoted to undertake the massive discovery exercise required, to analyse and review the data retrieved and organised.  Lord Scott has gone into the matters that would need to be investigated by the court in paragraph 52 of the CFA Judgment and observed in paragraph 53 that the cost of litigation in which the detailed investigation of such matters is necessary, and its effect on the day to day management of Chime and the Chinachem group, “will be, and probably already has been, horrendous”.  So there are common threads of undesirable results if litigation should be allowed to proceed: waste of time and expenses for the parties, damage to Chime and the Chinachem group, and waste of the judicial resources in Hong Kong.

37.  It was submitted on behalf of the administrators in deciding whether a temporary stay should be granted, each proceeding has to be looked at separately and not compendiously, in the particular circumstance of each proceeding.  Having considered the common factors, I now turn to the individual circumstance of each of the proceedings.

The Chime B Petition

38.  I have noted the matters in issue on the present state of the pleadings and the procedural history of the Chime B Petition.  There is a pending appeal to the Court of Appeal against an order I made in June 2004 giving leave to re-amend the petition and this has been adjourned by consent pending the hearing of the present stay application.  Thus the petition, commenced in July 2001, is still at the pleadings stage, despite very substantial costs have already been incurred.

39.  The petition was described as “topsy-turvy” in the CFA Judgment, in that the real dispute is not about management of the affairs of Chime and its subsidiaries, but about proprietary rights, even though it has been “dressed up” in the petition as a complaint of mismanagement.  Because of the real nature of the dispute, it is crucial to have regard to the outcome of the Probate Appeal.

40.  I respectfully agree with the Court of Final Appeal that there is “everything to be said for a stay of the petition until the probate proceedings have reached a conclusion”, as only then can sensible conclusions be reached about the progress of this litigation.

The Chime A Action

41.  I do not propose to recite the issues in dispute and the progress made in this action save to say that I have taken them into consideration.

42.  The allegations made in the Chime A Action are also found in the Chime B Petition.  It is part of the overall dispute about proprietary rights.  There is an outstanding application by the administrators to have the Chime B Petition and the Chime A Action tried together, because of the overlap of issues.

43.  The administrators contended that regard should be had to the fact that Mr. Wang Senior and Yih Lee Kong, who have provided witness statements for the plaintiffs, are both elderly and a stay of proceedings would increase the risk that they might not be able to give evidence and thereby compromise the plaintiffs’ prospects of success in the action.  I noted that the 2^nd defendant in the action, Tai Ching Ping, had recently passed away.

44.  I have taken this factor into consideration but do not think in all the circumstances it is sufficient to justify refusing a stay for a relatively short period.

The Parasia Petition

45.  I have noted the allegations made in this winding-up petition commenced in October 2004.  This petition to wind up Parasia on the just and equitable ground would also appear to be a dispute about the ownership of assets.  I agree with Mr. Potts that what Lord Scott had said in paragraphs 55 and 60 of the CFA Judgment with regard to the Chime B Petition would apply equally to the Parasia Petition.  Clearly, proceeding with this petition would involve a vast amount of time, cost and resources, as the treasury system for the 46 companies in the Parasia group would need to be examined over a long period of time, with most of these companies incorporated for more than twenty years.  Further, the practical difficulties of winding up such a large group of companies would be substantial.

46.  As this petition is a shareholders’ dispute, the Official Receiver has indicated that he does not wish to be heard on the application for a stay.

47.  I have rejected the submission of the administrators for an interim protective measure requiring payment of the income of the Parasia group into an escrow account as a condition for imposing a stay.  I do not think circumstances here indicate that such interim measure is needed, quite apart from the consideration that the treasury system should not be unravelled pending the determination of the petition.

The Mighty Debt Action

48.  I have considered the matters in contention in this action and its procedural history.  The issue of the treasury system featured prominently in these proceedings.  I noted that discovery was ordered to be done in stages in February 2004 and that it has been limited to only two projects so far.

49.  I am mindful of the fact that there was an earlier application made by CAL before Stone J in June 2003 in the Mighty Debt Action to stay proceedings pending the determination of the appeal of the Probate Action, which was then before the Court of Appeal.  Stone J dismissed that application on 14 July 2003.  One of the matters urged on behalf of CAL was that the sensible course to take was to put a halt to the action to await the outcome of Mrs. Wang’s appeal in the Probate Action, as the action would obviously fall away should she be successful.  Stone J did not consider this sufficient to warrant a stay, taking into account that the expenditure of further costs in the interim period was “likely to be relatively minimal” and that the application for stay was made “relatively late in the day” when “a considerable amount of work, with no doubt the incursion of commensurate costs, already had been expended”.

50.  I have a broader picture to consider as compared to the time when the stay application was heard almost two years ago.  At that time, the CAL loan allegations were made only in the Mighty Debt Action.  I bear in mind the common factors this action now has with the other seven proceedings which are the subject of the present stay applications.  More information is made available to the court of the extent of the work undertaken and would require to be undertaken in this action and the related costs.  It is likely that the magnitude of the work required and the costs involved would have increased substantially, now that the treasury system is raised in issue in a number of proceedings in respect of a very large number of companies and many more projects are involved.  I should look at the question of stay of proceedings afresh.

51.  In my view, this action stands on the same footing as the other proceedings.  It is similar in character to the other disputes concerning entitlement to assets.  It is clearly desirable that the dispute should await the outcome of the Probate Appeal, as in the event that Mr. Wang Senior should be held to be entitled to the estate, some form of dismantling of the treasury system and the interconnections between the various companies within the Chinachem group may be contemplated, and this would be a very complex and difficult exercise.

The Mighty Specific Performance Actions

52.  In one of these actions, specific performance is sought of two sale and purchase agreements made in 1989.  In the other action, specific performance is sought of thirteen sale and purchase agreements in 1989 and 1990.  These agreements were entered into when the plaintiffs and the defendants were all part of the Chinachem group and the treasury system was in operation, so again the treasury system would be a key issue in dispute.

53.  The writs have all been registered against the properties in question as lis pendens.  There is no jeopardy to assets.

54.  I agree with Mr. Ng that the balance of convenience and fairness clearly leans in favour of a temporary stay.

The Kam Ting/Ching Wing Partnership Actions

55.  The trial of these two actions would involve detailed investigation of the treasury system and of events which took place within the context of the partnerships over a period of more than thirty years ago.  They would involve very substantial expenditure of costs and resources.

56.  There is no distinguishing feature to justify approaching the question of a stay of these actions in a different way from the other proceedings.

Costs

57.  Mr. Brock submitted that notwithstanding a stay is granted, costs in the application should be in the cause of each of the proceedings.  I fail to see why I should depart from the rule that costs should follow the event.  I do not consider the resistance put up by the administrators to be mere token resistance.  I fail to see why they could not at least have indicated to the applicants they would not object to the applications, leaving it to the other side to satisfy the court why proceedings should be stayed, even if they did not think it appropriate to give positive consent.  My decision to grant a stay of proceedings is not made on the premise that Mrs. Wang will succeed in the Probate Appeal.  No assumption is made at all in that respect, it cannot be said that the stay may turn out to be unjustified if Mr. Wang Senior should succeed, so this possible outcome cannot be regarded as a valid basis to award costs in the cause.

58.  Mr. Brock opposed the application of Mr. Potts for a certificate for two counsel.  I consider it reasonably necessary for two counsel to be engaged, having regard to the heavy documentation involved, and the diverse matters to be canvassed in a number of proceedings, even though the issues to be resolved may not be of great complexity.