TEN PLUS LTD (IN LIQUIDATION) v. DONOVAN MIU WAH MIRA (also known as LI MIU WAH MIRA) AND OTHERS

HCA 1573/2013

[2023] HKCFI 3227

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1573 OF 2013

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JUDGMENT

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A. Introduction

1.  This action is about diamond – diamonds sold undervalue, diamonds missing and diamonds sold but unpaid, allegedly.

2.  Essentially, the Plaintiff’s claim is that the Defendants[1] conspired to defraud the company by arranging sales of a large number of the Plaintiff’s diamonds to D4 and/or D5 and/or D6 at prices substantially lower than the invoices recorded in the Plaintiff’s computer system and what were authorized by the Plaintiff. Forged invoices (at the substantially lower prices) were produced by D1-D3 and provided to D4-D6.  Alternatively, the Plaintiff says that even if those forged invoices were not forged, D4-D6 did not fully pay those invoices.  In addition, apart from the diamonds sold to D4-D6, there were diamonds removed from the Plaintiff’s safe (the “Safe”) and unaccounted for[2].  The Plaintiff asserts that it was D1-D3 who misappropriated those missing diamonds.   

3.  In terms of specific causes of action, the Plaintiff claims[3]:

(1)  against all the Defendants: conspiracy to defraud/injure the Plaintiff;

(2)  against D1-D3: breach of fiduciary/contractual duties as the Plaintiff’s directors (D1 & D2) and employees (D1-D3);

(3)  against D3: dishonest assistance of D1 & D2’s breach of fiduciary duty;

(4)  against D4, D5 and/or D6: dishonest assistance of D1-D3’s breach of fiduciary duty;

(5)  against D4, D5 and/or D6: knowing receipt of the diamonds sold at an undervalue; and

(6)  against D4, D5 and/or D6: debt due for the diamond bought from the Plaintiff and unpaid.  

4.  A serious attack, namely perpetration of a scheme of fraud and stealing, was launched by the Plaintiff against the Defendants.  The number of diamonds involved was large. The money involved was massive.  The primary claims of the Plaintiff total US$20,206,435.23[4], which is more than HK$157 million. 

5.  Given the very serious nature of the accusation, this Court would expect cogent and compelling evidence to be produced to prove the commission of fraud and stealing by the respective Defendants.  However, as shall be explained in detail below, the Plaintiff produced no direct evidence of the alleged wrongdoing against each Defendant.  Having considered all the evidence presented to this Court, for the reasons detailed below, in my judgment, the Plaintiff has not been able to discharge its burden of proof.

B.  Background

B(1)   Dramatis Personae

6.  The events took place around ten years ago.  The major events occurred between 2008 and 2010.

7.  Before it was wound up, the Plaintiff carried out the business of trading diamonds.  It was beneficially owned by the New York based Olympic Diamond Corporation (“Olympic”). Mr Nissan Perla (“Perla”) was at all material times Olympic’s president and chief executive officer.  Olympic funded the Plaintiff’s establishment in 2007, intending the Plaintiff to act as its distribution agent in Hong Kong and in Asia.  According to Perla, over 90% of the Plaintiff’s diamonds were supplied by Olympic.

8.  The Plaintiff was wound up in September 2010[5]. On 22 March 2011, Messrs Lui Lai Hang Kennic and Yuen Tsz Chun Frank (“Yuen”) were appointed as the Plaintiff’s joint and several liquidators[6] (the “Liquidators”).  The Liquidators brought this action on behalf of the Plaintiff in August 2013.

9.  Mira and Cheng were the Plaintiff’s former directors and employees.  Since 1 March 2008, Mira was the Sales Manager of the Plaintiff.  Mira avers that she was appointed as a nominee director from 8 April 2010 to 6 July 2010 at the request of Perla and at all material times acted in accordance with his instructions, during which she did not exercise any independent powers outside of directions of Perla.  It is also Mira’s evidence that when conducting sales transactions, she would conduct negotiations with customers and consult Perla and seek his approval on the prices and terms.

10.  Cheng was a director of the Plaintiff from 6 February 2009 to 12 May 2010 and was employed by the Plaintiff since 13 March 2008.  Cheng avers that he was a nominee director of the Plaintiff and was responsible for book-keeping only and his job description was limited to treasury functions.  According to the Plaintiff, Cheng was employed as an accounting staff of P and part of his responsibilities involved marking payment details on copies of Fantasy Invoices signed by customers after payment[7].  The Plaintiff did not explain why he was appointed as a director.  There should be no dispute that he and Mira were not involved in any decision-making of the Plaintiff.  From this perspective, indeed they were nominee directors, with Perla being their boss, although directors carry their duties as such, be they nominee directors or not. 

11.  Yan was the Plaintiff’s former employee. Yan was employed by the Plaintiff from 1 June 2009 to 7 July 2010 as an office assistant.  She said in her evidence her responsibilities were to deal with internal office tasks, including issuing invoices and memoranda through the Fantasy System, compiling and issuing Daily Sales Reports, and recording diamonds entering and exiting the Safe[8].

12.  Mr Lai Wing On Charles (“Lai”) was , who was the 50% nominee shareholder of the Plaintiff. He was the Plaintiff’s director from February 2009.  His work responsibilities included the delivery of the sales invoices and diamonds to customers, security of the diamonds during exhibitions and the collection of payment from customers.

13.  Tse Chung Chi (“Tse”) was the finance manager of the Plaintiff from 21 December 2009 to 27 July 2010. He was responsible for preparing the books and accounts of the Plaintiff.  He was known to and called by his colleagues by his English name as Dennis[9].

14.  Lau Yuk Hung Alberto (“Alberto”) was the junior sales representative of the Plaintiff.  He was responsible for selling diamonds to customers.  He occasionally handled delivery and collection of payment.

15.  Alex Tang, his elder sister Winnie Tang and Maysun Jewellery (collectively the “Maysun Defendants”) were the Plaintiff's former customers.  Winnie Tang is the sole shareholder of Maysun Jewellery.

16.  Winnie Tang was also a director of Maysun Jewellery Factory Company Limited (“Maysun Factory”). The registered address of Maysun Factory was the same as Maysun Jewellery. Maysun Factory was dissolved by deregistration on 30 May 2003.

17.  Yuen, Perla, Lai, Tse, Aberto and Zhang Jianyi, a salesperson of Olympic gave evidence for the Plaintiff, alongside with D1 (Mira), D2 (Cheng), D3 (Yan), D4 (Alex Tang), and D5 (Winnie Tang).  The Plaintiff has also adduced the witness statement of Mina Deutsch, Finance Director of Olympic on the basis of a hearsay notice, which I shall deal with its admissibility in the latter part of this Judgment.  Mr Wayne Chau, called by the Plaintiff, and Mr Ng Siu Keung, called by the Maysun Defendants, gave expert evidence on the valuation of the subject diamonds.  I shall address the witness’s credibility when the discussion below of his/her evidence becomes necessary.     

B(2)   The Plaintiff’s Modus Operandi and the Fantasy System

18.  The Plaintiff’s case is that:

(1)  Members of the sales team, including Mira and Alberto, must inform Perla of any intended sale and obtain his approval on the sale price of each diamond before concluding the sale.[10]

(2)  Perla would determine the price of the diamonds to be sold by reference to the Rapaport Price List, which is periodically issued price lists used by the diamond trading industry as a benchmark[11] and Olympic’s own costs of acquiring the diamonds.[12]  The price of a diamond is usually calculated and expressed as a percentage of the corresponding price (“Rapaport Price”) listed in the Rapaport Price List[13].

(3)  Diamonds would be delivered from Olympic in New York to the Plaintiffs and would be sent either to potential buyers for inspection or to buyers pursuant to concluded contracts that were approved by Perla.  In either case, all diamonds delivered from Olympic to the Plaintiff were recorded by the Plaintiff's inventory and invoicing system (the “Fantasy System”) and placed in the Safe.[14]

(4)  The Fantasy System kept a unique record of the Plaintiff’s inventory of diamonds, sales invoices and consignment memoranda.[15]

(5)  Diamonds that were delivered for inspection by potential buyers would be recorded in the consignment memorandum (the “Fantasy Memo”).[16]

(6)  When a transaction was approved by Perla and concluded with a buyer, the Plaintiff would issue to the buyer a sales invoice, which was generated by the Fantasy System and bore the approved price (the “Fantasy Invoice”).[17]

(7)  Thereafter, the Plaintiff would compile a sales report (as what the Plaintiff called “Daily Sales Report”) which listed out the approved sales and send it by email to Olympic[18].  It was a summary of the approved sales which would show the description of the diamonds (shape and the “4Cs”: carat, colour, clarity and cut), the prices as approved by Perla[19]. 

(8)  After Olympic received the Daily Sales Report, it would then issue invoices to the Plaintiff for the same amounts set out in the Daily Sales Report.  After the Plaintiff has been paid by its customers, the Plaintiff would settle the invoice which was issued by Olympic.[20]

C.  The Plaintiff’s case against Mira, Cheng and Yan

19.  In gist, it is the Plaintiff’s case that after commencement of winding up, the Liquidators discovered irregularities where over 1200 pieces of diamonds were allegedly sold at an undervalue or removed under fictitious transactions or simply misappropriated pursuant to a fraudulent scheme.

20.  For the biggest trunk of the claims, the Plaintiff avers that Mira, together with the assistance of Yan and Cheng, sold the diamonds in question to the Maysun Defendants without the Plaintiff’s approval and at gross undervalue. The Plaintiff further alleges Yan and Cheng, who were responsible for preparing and issuing Fantasy Invoices and Fantasy Memos, under the direction of Mira, took steps to conceal the unauthorized sales by creating false invoices and entering false entries into the Fantasy System.

21.  The Plaintiff’s claims against Mira, Cheng and Yan were grouped under 5 Annexes to the Re-Amended Statement of Claim, which were revised and attached to the Plaintiff’s Closing Submissions:

(1)  selling 758 diamonds to the Maysun Defendants at undervalue without obtaining proper authorization by the Plaintiff (“Annex 1 Claim”);

(2)  selling 97 diamonds to the Maysun Defendants without any consideration (“Annex 2 Claim”);

(3)  misappropriating 89 diamonds removed under fictitious sales to customers other than the Maysun Defendants (“Annex 4 Claim”);

(4)  misappropriating 14 diamonds from the Safe under fictitious consignments to customers other than the Maysun Defendants (“Annex 5 Claim”); and

(5)  misappropriating 193 diamonds from the Safe (“Annex 6 Claim”)

C(1)   Annex 1 Claim

22.  Winnie Tang denied that she had received the Fantasy Invoices sent to her by the Provisional Liquidators and produced a set of invoices, receipts and bailment notes of the Plaintiff which according to he were sent to her by the Plaintiff in respect of the transactions she entered with the Plaintiff (“Maysun Invoices”)[21].  The Plaintiff claims that the Maysun Invoices were forged[22], and that Mira directed Cheng and/or Yan and he and/or she produced a large number of the false Maysun Invoices to the Maysun Defendants[23].  The sale prices in the Maysun Invoices (save with some exceptions) were substantially lower than those stated in the corresponding allegedly true Fantasy Invoices[24].  The relevant diamonds were then purportedly sold to the Maysun Defendants at the prices stated on the Maysun Invoices that were not authorized by Perla[25].   

23.  The Liquidators’ team allegedly discovered that the computer provided to Yan by the Plaintiff contained a template for a sales invoice in the computer provided to Yan for her use.  The template was created using Excel and was very similar to the Maysun Invoices.  From that computer, allegedly 14 Excel files were found. They were invoices which the Plaintiff said to be suspicious (“Excel Invoices”).  Mr Val Chow, counsel for the Plaintiff submits that these Excel Invoices are evidence of Yan’s involvement in the creation of the false invoices which include the Maysun Invoices.  

24.  As shown in the updated Annex 1 attached to the Plaintiff’s Closing Submissions, the Plaintiff found that 758[26] diamonds was sold “undervalue”, i.e. at a lower price stated in the Maysun Invoices compared to its corresponding Fantasy Invoices.

C(2)   Annex 2 Claim

25.  The Plaintiff’s case[27] is that 97 diamonds were removed from the Safe.  They were recorded in the Fantasy Invoices as having been sold to the Mason Defendants.  However, these sales did not appear in the Maysun Invoices produced by Winnie Tang.  The Plaintiff alleges that no payment was received in respect of sales of these diamonds. 

26.  The Plaintiff’s claim is that in light of the misconduct of Mira, Yan and Cheng and their roles as described in Annex 1 Claim, the 97 diamonds in Annex 2 were wrongly removed from the Safe by Mira, Yan and Cheng.

C(3)   Annex 4 Claim

27.  The Plaintiff alleges[28] that 89 diamonds were sold to 19 customers (other than the Maysun Defendants) but were unpaid.  The Plaintiff says that these sales were recorded in the Fantasy Invoices under the Fantasy System.  Daily Sales Reports were sent by Yan to Olympic with copy to Mira and Cheng.

28.  The Liquidators allege that upon enquiring with these customers, they discovered that these customers have never received the diamonds or never made any purchases as stated in the Fantasy Invoices.

29.  The Plaintiff’s case is that the diamonds listed out in Annex 4 were removed by Mira, Yan and Cheng under the guise of the fictitious transactions represented by the relevant Fantasy Invoices.

C(4)   Annex 5 Claim

30.  The Plaintiff’s original claim[29] under this head was that the Fantasy System (supposedly by way of issuance of the Fantasy Memo) recorded that 42 diamonds have been purportedly consigned to 12 customers other than the Maysun Defendants (“Annex 5 Customers”).  These diamonds are not accounted for despite having been recorded as unsold and returned. 

31.  The Plaintiff has now[30] limited its claims to those Annex 5 Customers who stated (in response to the Liquidators’ enquiries) to the Liquidators that they have never received the diamonds or have returned them to the Plaintiff.  The claim is now limited to 14 diamonds.  

32.  The Plaintiff’s case is that Mira, Cheng and Yan had wrongfully removed the Annex 5 diamonds from the company under the guise of fictitious consignment arrangements and without properly accounting for them.

C(5)   Annex 6 Claim

33.  The Plaintiff claimed that the Liquidators’ team conducted a stocktaking of the diamonds in the Safe against the inventory recorded in the Fantasy System.  They discovered that there are 193 diamonds which were recorded as being in the inventory of the Plaintiff as per the Fantasy System but which remain unaccounted for[31].   

34.  The Plaintiff’s case is that since only Yan and Cheng had control over access to the Safe and Mira had frequent access to the Safe, in light of the circumstances and the other misconduct of Mira, Yan and Cheng, it can be inferred that they had wrongly misappropriated the diamonds listed in Annex 6 from the Safe.

D.  The Plaintiff’s Case against the Maysun Defendants

35.  The Plaintiff claims against the Maysun Defendants for knowing receipt and dishonest assistance. The Plaintiff’s primary case[32] is that the Maysun Defendants purportedly purchased the diamonds from the Plaintiff, knowing that such purchases were the result of Mira, Cheng and Yan's breaches of duties, and in particular, that in respect of the Annex 1 transactions, Mira had no authority to agree to the sales at prices at undervalue, and that in respect of the Annex 2 transactions, Mira had no authority to sell the Annex 2 diamonds at nil consideration.

36.  The Plaintiff claims, in alternative to the Annex 1 Claim and the Annex 2 Claim[33], that even if the Court is not satisfied that liability is established against D4 - D6 for (1) dishonest assistance, (2) knowing receipt or (3) conspiracy (see the following paragraph), on the basis of the Maysun Invoices, the payment advice tendered by the Maysun Defendants and the payment evidence tendered by the Maysun Defendants, in fact they have not fully settled all the Maysun Invoices.  There is still an outstanding debt totalling US$2,353,009.20[34] owed by D4 – D6 to the Plaintiff under the Maysun Invoices (“Annex 3 Claim”).    

E.   The Plaintiff’s claim of unlawful means conspiracy against all the Defendants

37.  Overall, the Plaintiff claims against all the Defendants for unlawful means conspiracy[35]. 

38.  First, the Plaintiff says that the breaches of duties under complaint, i.e. falsification of company records, and misappropriation, by theft or through purported sales undervalue amount to the requisite unlawful means[36].

39.  Second, the Plaintiff says if the factual allegations against all the Defendants are established, it can be readily inferred from the Defendants’ actions that there was at least tacit agreement amongst all (or some) of them to engage in a conspiracy to harm the Plaintiff through the unauthorized Annex 1 and Annex 2 transactions[37].

40.  For completeness, I should mention that the Plaintiff also claims that Yan dishonestly assisted Mira and Cheng in breaching their duties owed to the Plaintiff.  This claim against Yan, as Mr Chow rightly submitted, largely overlaps with the claim against her for breach of duties[38].

41.  Also for completeness, the Plaintiff abandoned its alternative claim of setting aside the transactions entered with the Maysun Defendants under section 60 of the Conveyancing and Property Ordinance and/or as unfair preference[39].

F.   The Relevant Legal Principles  

42.  There is no dispute on the law applicable in this case.  The Defendants did not challenge the legal principles as submitted by Mr Chow. 

F(1)   Unlawful Means Conspiracy

43.  Therefore, for the Plaintiff’s claim of unlawful means conspiracy against all the Defendants, it is sufficient for me to set out its elements, adopting Mr Chow’s formulation[40], which is in accordance with the Court of Appeal in Pido v Compass Technology Co Ltd [2010] 2 HKLRD 536 at §§14-17:

(1)  There must be an agreement or understanding (which may be express) between the defendant and other person(s).

(2)  There must be an intention to injure the plaintiff by unlawful means, irrespective of whether such intention is the predominant purpose. 

(3)  Unlawful acts are carried out pursuant to the agreement or understanding. 

(4)  The unlawful facts resulted in loss or damage to the plaintiff.

44.  I also accept Mr Chow’s submission that breaches of fiduciary duties, dishonest assistance and knowing receipt have all been recognised as being capable of constituting the unlawful acts in element (3) above, as in see: She Tsu Yi v Tsui Ki Ting HCA1684/2004 & HCMP 3290/2004, 5 November 2007, unreported at §154 per Poon J (as CJHC then was).

F(2)   Dishonest Assistance

45.  For dishonest assistance, in the context of the present case, there should be found a breach of fiduciary duties by a party other than the defendant, who then induced or assisted dishonestly that breach of fiduciary duties, resulting in loss to the plaintiff.  I agree with Ms Ma On Ki, counsel for D4-D6[41] that the plaintiff must prove that the defendant assisted in the breach of trust or fiduciary duties with a dishonest state of mind.  Such dishonesty on the part of the accessory has been described as the “touchstone”.

46.  On dishonesty, I find it instructive to refer to the exposition recapitulated in Hui Cheung Fai v Daiwa Development Ltd HCA 1734/2009, 8 April 2014, unreported, per DHCJ Fung SC at §§131-134:

“ 131. Dishonesty is an objective standard. The courts apply the normally acceptable standards of honest conduct in determining whether the accessory is dishonest. There is no requirement of conscious dishonesty; the test for dishonesty does not require that the accessory considers that he is acting dishonestly. See Royal Brunei Airlines v Tan [1995] 2 AC 378 at 389C-F (Lord Nicholls); Barlow Clowes International Ltd (in liq) v Eurotrust International Ltd [2006] 1 WLR 1476 at §§10, 12-16 (Lord Hoffmann); Peconic Industrial Development Ltd v Chio Ho Cheong (unreported, HCA 16255/99,1st June 2006) §184 (A Cheung J).

132. However, when deciding whether the accessory is dishonest, the court also takes into account the circumstances known to him at the time he acted, personal attributes such as his experience and intelligence, and the reason why he acted as he did. See Royal Brunei v Tan (above) at 389D, 391B-C (Lord Nicholls).

133. The accessory has the requisite dishonest state of mind if he deliberately closes his eyes and ears, or deliberately refrains from asking questions, lest he learns something he would rather not know, and then proceeds regardless: see Royal Brunei v Tan (above) at 389F-G (Lord Nicholls).

134. Dishonesty must not be equated with negligence or a failure to exercise reasonable skill and care. The test is one of honest – not reasonable conduct.  See Royal Brunei v Tan (above) at 389D-E (Lord Nicholls).”

47.  To satisfy the requirement of dishonest assistance by deliberately closing one’s eyes, or turning a blind eye, to others’ breach of fiduciary duties or even theft or misappropriation of diamonds as claimed by the Plaintiff in the present case, I respectfully follow Sakhrani J in De Kassel v Chu Vincent [2010] 2 HKLRD 937 at §§55-58, that the suspicion of such “blind-eye knowledge” must be firmly grounded and targeted on specific facts and not mere suspicion which may be no more than a vague feeling of unease.

F(3)   Knowing Receipt

48.  In the context of the present case, I follow the classic exposition of Hoffman LJ in El Anjou v Dollar Holdings plc and another [1994] 2 All ER 685 at 700g:

“ This is a claim to enforce a constructive trust on the basis of knowing receipt. For this purpose the plaintiff must show, first, a disposal of his assets in breach of fiduciary duty; secondly, the beneficial receipt by the defendant of assets which are traceable as representing the assets of the g plaintiff; and thirdly, knowledge on the part of the defendant that the assets he received are traceable to a breach of fiduciary duty.”

49.  The plaintiff must show to the court that the defendant’s knowledge must be such as to make it unconscionable to retain the benefit of the receipt, see BCCI (Overseas) Ltd v Akindele [2001] Ch 437, 455E-F.  In this connection, Snell’s Equity, 34^th ed. has a particularly clear illustration at §30-072:

“ The degree of awareness which might fix the defendant with liability varies on a sliding scale between two extremes. At one end, the defendant may actually know the possibility that the money is paid to him in breach of trust or without proper authority. This would clearly be unconscionable. A defendant's wilful decision to overlook a possible breach of trust or to his deliberate failure to make reasonable inquiries as to that possibility would be treated in the same way. At the other end of the scale, a mere negligent failure to appreciate that transfer to him was possibly improper would not be unconscionable. But the defendant's failure to appreciate a probable breach which would have been obvious to a reasonable person in his situation may be enough to make his receipt unconscionable, at least in situations where there is an established practice of making inquiries into title. But where there is no such practice and where transactions need to be concluded promptly, the defendant may need to be subjectively aware that he is receiving tainted property before his receipt could be stigmatised as unconscionable. His knowledge of the facts may shade into dishonesty, as that term is now defined. But in gratuitous transactions, where the defendant has no reasonable justification to rely unquestioningly on the trustee’s authority to transfer the property to him, it may be reasonable to impose a duty of inquiry on him. The recipient's knowledge of facts that would put a reasonable person on inquiry might amount to unconscionable knowledge.”

F(4)   Breach of Fiduciary and/or Employee’s Duties

50.  Mira and Cheng were the Plaintiff’s directors, which carry ordinary duties as such.  I adopt Mr Chow’s summary of such duties[42]:

(1)  As directors, they must (amongst others) (a) act in good faith in the best interests of the company; (b) not make a profit out of their positions; (c) not place themselves in a position where their duties and their interests may conflict.

(2)  In relation to company assets, as directors they assume trustee-like responsibilities to manage such assets in the interests of the company and are liable to make good the loss suffered.

(3)  Where directors cause the company to dispose of assets, the onus is on them as trustees to justify those disposals.

(4)  A “nominee director” (i.e. one which is nominated by an appointer and normally acts in accordance with the appointer's instructions) is subject to the same fiduciary duties as imposed on ordinary directors.

51.  As to employee’s duties, the principles relevant in the present context are succinctly explained by Au-Yeung J in Leader Screws Manufacturing Company Limited v Huang Shunkui [2021] HKCFI 141 at §§46-50 & 56:

“ 46. With regard to breach of fiduciary duty, an employment relationship, in itself, does not attach fiduciary duties: Nottingham University v Fishel [2000] ICR 1462, at 1491E-H, Elias J

47. The concept of fiduciary duty encaptures a situation where one person is in a relationship with another which gives rise to a legitimate expectation, which equity will recognize, that the fiduciary will not utilize his or her personal position in such a way which is adverse to the interests of the principle. That expectation is assessed objectively, so it is not necessary for the principal subjectively to harbour the expectation, nor for the person alleged to be a fiduciary to subjectively consider himself to be undertaking fiduciary duties. See Snell's Equity, 34th ed, §7-005.

48. Therefore, much depends on the employee's role and functions. A senior employee/manager has been held to owe fiduciary duties to his employer in carrying out the specific duties to which he was assigned: TBC International (HK) Ltd v Chan Kwok Sum, HCA 10671/1995, 24 March 1997, at §§6 and 7, Waung J.

49. An employee entrusted with the company's money or diverts company money to his own benefit, is likely to owe fiduciary duties in relation to the money, even if he is a junior employee: Paul Goulding QC, Employee Competition, 3rd ed, at §2.57. …

56. In respect of the breach of duty of fidelity, the test is whether an act by an employee is one “which saps the confidence of the employer in [the employee] and strikes at the very root of the relationship between them”: Employment Law and Practice in Hong Kong, 2nd ed, at §3.028.”

G. The Issues

52.  I set out the issues that I should resolve[43]:

(1)  Annex 1 Claim:

1.1  Whether Yan produced some or all of the Maysun Invoices; and if so, whether she did so jointly with Cheng and/or under the direction of Mira[44].

1.2  Whether Cheng produced some or all of the Maysun Invoices; and if so, whether he did so jointly with Yan and/or under the direction of Mira[45].

1.3  Whether Mira sold the diamonds listed in Annex 1 (“Annex 1 Diamonds”) at an undervalue to Maysun Defendants without authorisation from Perla; and if so, whether she did so jointly with Yan and/or Cheng[46].

1.4  Whether the Maysun Defendants purchased the Annex 1 Diamonds from the Plaintiff with the knowledge that (a) the diamonds were sold at an undervalue and (b) Mira had no authority to sell those diamonds at such undervalued prices[47].

(2)  Annex 2 Claim:

2.1  Whether Mira, Yan and Cheng removed the diamonds listed in Annex 2 (“Annex 2 Diamonds”) from the Safe[48].

2.2  Whether the Maysun Defendants purchased the Annex 2 Diamonds from the Plaintiff with the knowledge that Mira had no authority to sell those diamonds at nil consideration[49].

(3)  Annex 4 Claim:

3.1  Whether Mira, Yan and Cheng forged fictitious sales of the diamonds listed in Annex 4 (“Annex 4 Diamonds”) represented by the relevant Fantasy Invoices[50], and removed the Annex 4 Diamonds under the guise of those fictitious sales[51].

(4)  Annex 5 Claim

4.1  Whether Mira, Cheng and Yan forged fictitious consignment arrangements of the diamonds listed in Annex 5 (“Annex 5 Diamonds”)[52], and removed those diamonds listed in Annex 5 under the guise of those fictitious consignment arrangements[53].

(5)  Annex 6 Claim

5.1  Whether Mira, Yan and Cheng misappropriated the diamonds listed in Annex 6 (“Annex 6 Diamonds”) from the Safe[54], and have failed to account to the Plaintiff their whereabouts[55].

(6)  Yan’s Dishonest Assistance

6.1  Whether Yan dishonestly assisted the breaches of duties by Mira and Cheng[56].

(7)  Annex 3 Claim:

7.1  In alternative to Annex 1 Claim and Annex 2 Claim, whether on the basis of the Maysun Defendants’ own payment records and the payment evidence tendered by the Maysun Defendants, there is still an outstanding sum owed by the Maysun Defendants to the Plaintiff under the Maysun Invoices in the sum of US$2,353,009.20[57].

I shall describe below the above issues as Issue 1.1, Issue 1.2 … and so forth.

53.  The Plaintiff’s answers to all the above issues are in the affirmative.  The burden of proof rests squarely on it.

H.  Discussion – overall view

54.  It is clear that the whole of the Plaintiff’s case is found the commission of fraud.  Proof of dishonesty requires cogent and compelling evidence.  In the present case, given a large number of diamonds were involved over a lengthy period of time, if there was a fraud, it had to be a premediated scheme, with more than one perpetrator[58]. However, what exactly the scheme is the Plaintiff could not describe or provide any clue or evidence.  During his oral closing submissions, I asked Mr Chow for the particulars of the Plaintiff’s claim of unlawful means conspiracy: what the agreement was, who were the perpetrators and who were the accessories and the role that each of them played, what gain was derived by each of them and how much.  The only answer that was given was that the starting point was fiduciary duties, and that the Court should look at what D1-D3 had done as director and/or employee and what was their state of mind.  This can hardly be a helpful answer against D1, D2 and/or D3.

55.  Mr Chow accepted that there was no direct evidence against the Defendants, but the Court could infer their wrongdoings from what he called overwhelming evidence.  In my view, as can be seen from the discussion below, all evidence adduced by the Plaintiff are circumstantial.  They are not capable of pinpointing what the Defendants or each or some of them had done.  Viewing them together they do not carry weight sufficient enough to prove on balance of probability that the Defendants or each of them did what the Plaintiff claimed they did.

56.  The main difficulty of the Plaintiff’s case lies with the Plaintiff’s own business modus operandi. The Fantasy System could be logged in by people (such as Perla and indeed all the Plaintiff’s employees[59]) other than Mira, Cheng and Yan.  But the Plaintiff did not produce any login record of the Fantasy System.  Likewise the computer that Yan used in the Plaintiff’s office (“Yan’s computer”) could be logged in by other employees of the Plaintiff apart from Yan[60]. As such, the Plaintiff’s invoices could be issued by persons other than Yan and Cheng.  But the Plaintiff did not have and/or produce any record as to the identity of the staff who prepared an invoice.  The Plaintiff did not have any record identifying the staff who was responsible for concluding the transaction listed in an invoice.  The Plaintiff has pleaded the specific duties of Cheng and Yan as employees.  But there was no employment contract/letter of Cheng, Yan or other staff (which set out their employment duties) produced, and there appeared to be some other staff whose duties overlapped with Yan’s or Cheng’s (such as Cheng’s vis-à-vis Yan’s, or Alberto’s vis-à-vis Cheng’s, or Tse’s vis-à-vis Cheng’s).  The Plaintiff claimed that the price of every transaction must be approved by Perla before it could be concluded.  But there was no record produced (e.g. a voucher signed by Perla) which signified his approval.  The Plaintiff claimed that any diamond taken away from the Safe must be recorded in a Fantasy Memo.  But the evidence shows Perla would remove a diamond from the Safe without a Fantasy Memo.  The evidence also suggests that the Safe was often open during the office hours, with diamonds put on the table next to it in quite an exposed manner. 

57.  From the state of the evidence, I am driven to find that the Plaintiff, as a matter of fact, sat very loose in keeping its record, so loose that it is far off from capable of saying that the Plaintiff’s case is up to proof against the Defendants, not to mention that it is overwhelming.  It is more of a conjecture.

58.  For completeness, I should also mention that it appears strange to me that the Plaintiff did not produce any of its book records or accounts showing how each of the subject transactions under complained was recorded at the material times in its financial records.

I.   Annex 1 Claim

I(1)  Issue 1.1 – The Plaintiff’s case

59.  The Plaintiff’s case is that Yan and/or Cheng, under the direction of Mira, produced a large number of homemade false invoices to the Maysun Defendants, i.e. the Maysun Invoices, where the sales prices were, save a number of exceptions, significantly lower than those stated in the invoices for the same diamonds as recorded in the Fantasy System, i.e. the Fantasy Invoices[61].

60.  To prove that Yan was the one who produced the false invoices, the Plaintiff raised the following matters:

(1)  Yan repeatedly mentioned to Alberto in MSN chat messages of Mira’s unauthorised falsification of invoices to various customers and Mira’s fear that her misconduct would be revealed. This, in Mr Chow’s submission, conclusively demonstrate her knowledge of Mira’s fraudulent conduct.[62]

(2)  As mentioned in paragraph 22 above, the Excel Invoices found in Yan’s computer are evidence of Yan’s involvement in the creation of the false invoices which include the Maysun Invoices.

(3)  There were some references in the Maysun Invoices which show that Yan must have had knowledge of these documents.[63]

61.  Generally, Mr Chow submitted that given Yan’s close involvement in the sales and consignment process, it is extremely unlikely that she would have no knowledge of the existence of various irregularities in the Plaintiff’s transactions which are the subject of Annexes 1-2 and 4-6.[64]

I(2)  Issue 1.1 – MSN chat messages between Alberto & Yan

62.  The MSN chat messages between Alberto and Yan are not cogent evidence in support of the Plaintiff’s case.  These messages were off and on, piecemeal, unspecific, and vague.  They were casual loose talk of gossiping nature.  While the witness statement of Alberto has attempted to add colour or give substance to these chat messages, it rather exposed the unreliable nature of their contents.       

63.  First, the source of these chat messages is dubious.  These chat messages were produced by Yuen, the Liquidator[65]. Yuen stated in his evidence[66] that it was a Verity Consulting Limited (“Verity”), an IT investigator engaged by Perla, who provided the records of the chat messages to Yuen’s team.  Perla stated in his evidence[67] that Verity acquired the records from “the Plaintiff’s computer systems”.  The description of “the Plaintiff’s computer systems” are obviously too vague for the Court to understand where the records were actually found.  Verity did not provide any evidence to this Court.  There is no explanation on how the records were acquired by Verity.  On the other hand, Alberto also produced the chat messages’ records[68].  The records that Alberto produced were exactly the same as what Yuen produced.  However, during cross-examination by Yan, Alberto said he did not offer the chat records to the Plaintiff, and it was the Plaintiff who found the records themselves.  The process of how these records were discovered or retrieved is doubtful.

64.  Second, the records produced were incomplete, and appearing to me to be selective.  The records which were produced to this Court contain records between 4 January 2010 and 28 June 2010.  However, the records for the period from 28 January to 7 April 2010 were missing.  During cross-examination, Yan asked Alberto why the records skipped the period between January and April 2010.  Alberto said he did not know why.  Moreover, the records produced for the period from April to June 2010 are sporadic, with the record for May 2010 completely missing.  This omissions cast serious doubt on the completeness of the records on the one hand and suggest a higher likelihood of selectiveness.  In fact, when producing the chat records Alberto has mentioned that the records were incomplete.  He stated in his witness statement[69] that “some” of his conversations and interactions with Yan were recorded in electronic form.  Regrettably, he did not mention what conversations were recorded and what have not been recorded and why.

65.  Third, the way that Alberto explained what he and Yan was talking about in the MSN chat records is misleading.  In paragraph 19 of his witness statement, Alberto gave the following evidence:

“ The salient parts of the MSN chat records are set out below.

13 January 2010

(13:15) Alberto  “ Mira is really crazy”

(13:16) Alberto “ She inform customer craszy for the stone even below cost”

(13:17) Yan       “ 佢真係傻家架~”

(13:18) Alberto “ 206 d vs 2 -25 an 406 d vs -25”

(13:19) Yan        “ 佢真係癡左線~”

(18:34) Alberto  “ She is crazy.  She told the 4.08 d vs 2 -25 to treasure”

(18:35) Yan       “好過份之後唔知點嘔返出黎”

(18:35) Alberto “Larry said -23% , he can buy for stock” ”

66.  Just looking at the above conversation quoted by Alberto, one would already have noticed that the conversation in fact comprises two sets of conversations.  The first set took place between 13:15 and 13:19 on 13 January 2010.  The second set took place between 18:34 and 18:35, which were a few hours after the first one.  Alberto did not explain why the two sets of conversations were and should be read together.  In paragraphs 20 and 21 of his witness statement, Alberto gave evidence that he was astonished that Mira sold a 4.08 carat diamond to a customer called Treasure at a 25% discount, and then suggested that Yan knew that this was below costs and that was why she said: “好過份之後唔知點嘔返出黎”.  He did not explain what “206 d vs 2 -25 an” and “406 d vs -25” mean in the first place, and how did these relate to “she told the 4.08 d vs 2 -25 to treasure” he uttered a few hours later.  

67.  It is misleading when one noticed that there were actually other conversations interjected in between.  The conversations in fact read as follows:

“ Session Start: 13 January 2010

(13:15) Alberto  “ Hi”

(13:15) Yan       “ 點呀?大佬~”

(13:15) Alberto “ Mira is really crazy”

(13:15) Yan        “ 做咩呀????”

(13:16) Alberto  “ She inforn customer craszy for the stone even below cost”

(13:17) Yan       “ 佢真係傻架~

                            d外賣到左喇~~快d返黎食啦~”

(13:18) Alberto  “  206 d vs2 – 25 an

                             406 d vs-25”

(13:18) Alberto  “  I am in jordan”

(13:19) Yan       “  佢都痴左線~”

(13:19) Yan       “  我食飯先~”

(13:19) Alberto  “  Ok”

 

Session Start: 13 January 2010

(16:38) Alberto  “ fuck”

(16:39) Yan        “ 咩事呀?”

(16:41) Alberto “ forget to book yoga class”

(16:41) Yan        “ OH~~~~而家BOOK唔到咩???”

(16:41) Alberto “ waiting list now”

(16:42) Yan        “ 咁快~~~咁咪去賭馬囉~”

 

Session Start: 13 January 2010

(18:21)                “ Alberto just sent you a nudge.”

(18:21) You have just sent a nudge.

(18:22) Alberto  “ want to leave”

(18:23) Yan        “ 走囉~~~有咩所謂”

(18:23) Alberto  “ maybe 6:50”

(18:25) Yan        “ 係啦~~差唔多啦~”

(18:34) Alberto  “ she is crazy

                           she told the 4.08 d vs2 -25 to treasure.”

(18:35) Yan        “ 好過份~之後唔知點嘔返出黎~”

(18:35) Alberto  “ larry said -23%, he can buy for stock.”

(18:44)               “ Alberto is now Offline” ”

68.  In these conversations, there was no mention of or references to issuance of false invoices.  There was also no mention of or reference to as Maysun or Maysun Defendants.  For the allegation that Mira “sold” (read as “told” in the record) a diamond to Treasure at a 25% discount, there was no mention that it was unauthorized or without Perla’s approval.  Sale “at a discount” does not equate sold “at an undervalue”.

69.  In paragraph 24 of his witness statement, Alberto put up another passage of conversation which combined two sets of conversations (10:38-10:39 and 17:49-17:51) of more than 7 hours apart:

“ 26 January 2010

(10:38) Alberto “alan said three people is checking the invoice amount” (10:38) Yan “又唔見佢同阿姐講~”

(10:38) Alberto   “he did and muimui knew it”

(10:39) Alberto But she still change amount for every invoice

(10:39) Yan        “唉~~~有起事起上黎會比亞姐累死~~”

(10:39) Alberto    “better looking for a job soon…”

(17:49) Alberto   “i don't know if her offer amount from treasure is correct or not”

(17:49) Yan        “一定會改~~”

(17:50) Alberto    “HAHA u are so sure”

(17:51) Yan         “梗係啦佢有邊個客唔改吖???”

(17:51) Alberto   “horrible”

70.  Again there were other conversations in between.

71.  Fourth, all in all, the Plaintiff relies on isolated bits and sentences in the chat records, such as “癡綫”, “好過分之後唔知點嘔返出黎”, “亞姐佢成日改單”, “佢有邊個客唔改吖???”, “有事起上黎會比亞姐累死”, “…亞姐果日講唔想再係咁不過如果唔再咁做…之前果 d 點嘔出黎呀?”, “妙妙日日提心吊膽”, “攪到 alan 同 dennis 要幫佢講大話”to suggest that Yan knew about Mira’s fraudulent conduct.  The contents of these chat records are unspecific and vague.  There is nowhere in the records mentioning the names of Maysun or Maysun Defendants.   There are references to “改單” (alteration of invoice) but nowhere can be found to suggest that fraud was involved.  And of course alteration does not and cannot mean that false invoices were produced.  There is nothing in the records which suggest that Yan was directed by Mira to prepare false invoices.

72.  Fifth, lastly, the Plaintiff’s case was that Yan produced forged invoices under Mira’s direction. This does not sit well with the Plaintiff’s allegation that in these chat records Yan admitted and exposed the wrongdoings of herself and Mira.  Yan said she did not recall she had these alleged chat conversations with Alberto.   

73.  For the above reasons, I find that the MSN Chat conversation records are not reliable evidence in support of the Plaintiff’s case.  In any event, they are not evidence that is capable of implicating the commission of any of the fraudulent conducts that the Plaintiff complained of in this action.  I find that the Plaintiff’s suggestions in connection with these records are misconceived.

74.  Before I leave this topic of reliability of the MSN Chat conversation records, I wish to add my finding that Alberto’s evidence is not reliable, for the following reasons:

(1)  As mentioned in paragraphs 64 to 69, the way that Alberto presented his evidence is misleading.

(2)  On 11 August 2010, Alberto gave a statement to ICAC[70]. At the end of paragraph 10 of this statement, he stated that Yan had mentioned that she had at the request of Mira amended some contents of some invoices. During cross-examination, Yan asked Alberto why he did not provide a copy of the aforesaid MSN Chat conversations records to ICAC.  Alberto simply answered that they did not ask.  This is not to me convincing.

(3)  He could not explain why a large trunk of the MSN Chat conversations disappeared from the records.  He simply answered that he did not know why.  This is not believable.

(4)  At the said paragraph 10 of his statement to ICAC, Alberto stated that Yan did not inform him of the particulars and reasons of Yan’s amendment of invoice at the request of Mira.  This statement contradicted paragraph 18 of Alberto’s witness statement where he stated that Yan would frequently tell him about Mira’s instructions to her to change the discounts given to her customers as recorded in the Fantasy Invoices, and he gave further details of what he learnt from these conversations.  The MSN Chat records do not bear out what he said.  And there is no other documentary evidence support what he said. 

75.  Therefore, the evidence that Alberto gave in support of the Plaintiff’s case is generally not believable. 

I(3)    Issue 1.1 – The Excel Invoices

76.  Second, I shall deal with the Excel Invoices allegedly found in Yan’s computer.

77.  I find this piece of evidence unreliable, for the following reasons:

(1)  The Plaintiff’s evidence on who discovered the Excel Invoices is inconsistent.  Perla gave evidence[71] that he formally instructed Verity in or around 30 June 2010 and Verity discovered the Excel Invoices in Yan’s personal computer.  On the other hand, Yuen, the Liquidator, stated in his evidence[72] that it was his team who discovered the Excel Invoices from Yan’s computer.

(2)  The Plaintiff did not produce any evidence showing the date when the Excel Invoices were prepared or created.  This cast doubt to me as both Perla’s and Yuen’s evidence[73] stated that the Excel Invoices were created using Excel programme and Yuen produced copies of the Excel Invoices from “14 suspicious Excel files found from Yan’s computer”[74].  Whether these Excel Invoices and Excel files were discovered by Verity or the Liquidators’ team, they are the professionals designated to conduct the investigation.  They should have looked into the Excel Invoices and the Excel files and looked for all relevant information, such as the date of the creation of the Excel documents, the date of the last modification of the documents and the identity of the person who made the last modification.  There is no evidence on whether they had conducted such investigation and if so whether such information was ever obtained.  

(3)  There is no evidence on the date when the Excel Invoices were discovered.  In answering my question, Mr Chow informed the Court that the evidence made no mention of when the Excel Invoices were found.

(4)  The absence of evidence on both the date of the creation of the Excel Invoices and the date of discovery of the Excel Invoices is alarming and caused me concern.  The Plaintiff relied heavily on this piece of evidence in asserting that Yan was the maker of the Excel Invoices, and then on this basis asked the Court to infer that Yan was involved in the creation of the false invoices which included the Maysun Invoices[75]. 

(5)  Moreover, Yan left her employment with the Plaintiff on 7 July 2010.  As Yuen was appointed as provisional liquidator on 27 July 2010 and Verity (as mentioned in paragraph 76(1) above) was appointed in or around 30 June 2010 according to Perla, whoever discovered the Excel Invoices, the discovery should only have taken place after Yan left the company.  In this event, it would be vital, in my view, for the Plaintiff to produce some evidence to show that the Excel Invoices had already existed in Yan’s computer at the time when Yan handed over the computer to the Plaintiff, and that there had been no tampering of the Excel Invoices and the files containing them after the Plaintiff acquired access to the computer.  The Plaintiff has adduced no such evidence. 

(6)  The absence of evidence on no tampering with the Excel Invoices and the Excel files containing them is in my view fatal to the Plaintiff’s case in this respect.  On the Plaintiff’s own evidence, a lot of people, which included unspecified number in the Liquidators’ team[76] and in Verity, had accessed Yan’s computer after Yan left the Plaintiff and presumably returned the computer to the Plaintiff.  Given the seriousness of the accusation of forgery of documents against Yan, the Plaintiff’s failure to produce such proof throws much doubt on the credibility of the Plaintiff’s case built upon the Excel Invoices. 

78.  For the above reasons, in my judgment, the Plaintiff has failed to prove that Yan was the creator of the Excel Invoices.

I(4)    Issue 1.1 – References to Yan in Maysun Invoices

79.  Third, as mentioned in paragraph 60(3) above, the Plaintiff relied on some references to Yan in the Maysun Invoices to say that hence Yan must have had knowledge of the Maysun Invoices.

80.  The premise of this allegation, and indeed the fundamental premise of the Plaintiff’s case, is that the Maysun Invoices were false whereas the Fantasy Invoices were accurate.  If the Plaintiff cannot prove that the Maysun Invoices are false invoices, references to Yan in those invoices, even if proved to exist, cannot support the drawing of any adverse inference against her.  It is therefore appropriate to first discuss whether the Plaintiff has proved the falsity of the Maysun Invoices.

I(5)    Issue 1.1 – Falsity of the Maysun Invoices

81.  The starting point of the Plaintiff’s claim in this respect is the accuracy of the Fantasy Invoices, as Mr Chow submitted:

“ There is simply no reason why there could be two parallel sets of invoices (i.e. the Fantasy Invoices and the false Maysun Invoices) bearing the same invoice numbers in respect of the same diamonds but with different prices. Given the large number of invoices and diamonds involved, this cannot be an accident or inadvertent error but must be the result of a deliberate and sustained fraudulent scheme.”[77]

82.  The Plaintiff’s logic is simple, but it solely rests on the inviolability of the accuracy of the Fantasy Invoices.  If on balance of probability, the Plaintiff cannot prove that the Fantasy Invoices are accurate, it will be hard for the Court to find that the alleged “deliberate and sustained fraudulent scheme” existed and that it was perpetrated by the Defendants[78].

83.  In my judgment, the Plaintiff has failed to prove that the Fantasy Invoices produced in this action were accurate, for the following reasons:

(1)  Firstly, by reference to the Plaintiff’s modus operandi in the sale of diamond (as set out in paragraph 17 above), although on the face of it there is elaborate procedure for the Plaintiff’s staff to follow for conclusion of a sale, and notwithstanding a large number of transactions were involved[79], the Plaintiff did not keep any record showing that a sale had been approved by Perla and at what price.  Given the large quantity of sales and the lapse of time, it is impossible for Perla (and indeed anyone) to be capable of speaking from memory with any accuracy as to whether any particular sale was indeed approved by him and at which particular price.

(2)  Secondly, the Plaintiff did not keep any record as to which sales representative concluded the sales on behalf of the Plaintiff including those sales which according to the Plaintiff are the subject of fraud by Mira in this action.

(3)  Thirdly, as mentioned in paragraph 15(8) above, the back-to-back invoices issued by Olympic to the Plaintiff contained near contemporaneous records of the particulars of the sales entered by the Plaintiff with its customer as approved by Perla.  However, the Plaintiff did not produce to this Court any invoice issued by Olympic to the Plaintiff in relation to the sales to Maysun Defendants, particularly those transactions in relation to the Annex 1 Claim.  Mina Deutsch produced a few Olympic’s invoices[80] (wherein the prices of the diamonds tally with those in the Fantasy Invoices).  However, these invoices are not relevant.  They were in relation to only one Daily Sales Report and concerning transactions which are not relevant to the Plaintiff’s claims.  The absence of the back-to-back invoices from Olympic which corresponded with the Fantasy Invoices for those alleged fraudulent transactions of Maysun Defendants adds doubt to the reliability of the Fantasy Invoices.

(4)  Fourthly, the Plaintiff’s evidence does not reveal whether the Fantasy System kept a record of who created or prepared each Fantasy Invoice. 

(5)  Fifthly, all the Plaintiff’s employees could access the Fantasy System[81]. This means any employee of the Plaintiff could access the Fantasy System to alter the contents of the Fantasy Invoices.  During cross-examination by Yan, Alberto stated that the password for the Fantasy System was shared.  In paragraph 4 of his statement given to ICAC, he elaborated further that the computers of Mira, Yan, Cheng, Celia Chan (another sales person of the Plaintiff[82]) and himself were all installed with the Fantasy System, hence all of them could see the contents inside (the password and the username of which were shared).  Although Alberto said again issuance of memo and invoice was Yan’s responsibility, given they all used the same username and shared the same password, anyone of them could access to the Fantasy System and altered the contents of the Fantasy Invoices.       

(6)  Sixthly, although the Plaintiff asserted that the Fantasy System kept a unique record of Fantasy Invoices[83], there was anomaly. During cross-examination by Ms Ma, Perla was shown two Fantasy Invoices (numbered 20576 and 20577) issued on the same date of 25 June 2009, with one having the column of “percentage discount” and the other having no such column and asked why.  When asked during cross-examination, Perla said he had no idea, meaning that he did not know what happened. 

(7)  Seventhly, during cross-examination by Ms Ma, Perla confirmed that the Daily Sales Reports should record the approved sale prices, and that the approved sales prices shown on the Fantasy Invoices generated by the Fantasy System should be the same as those shown on the Daily Sales Reports.  What he said does not appear to be correct, as Perla was then put with the following Fantasy Invoices which showed significant discrepancies from the Daily Sales Reports:

(a)  Fantasy Invoice No. 20439 issued to Maysun Factory:  The price and the discount percentage from the Rapaport Price[84] of the diamond sold to were different from the corresponding Daily Sales Report.  The price was higher and the discount percentage lower.  Perla was asked if there was any reason for such difference.  He answered that he had no idea.

(b)  Fantasy Invoice No. 20448 issued to Maysun Factory:  For the diamond (B51509X3), the price and the discount percentage from the Rapaport Price of the diamond sold to were different from the corresponding Daily Sales Report.  The discount percentage stipulated in the Fantasy Invoice was “-25%” whereas the Daily Sales Report showed “-32%”.  Ms Ma asked if there was any reason for the difference in the discount percentage for the same diamond.  He said he did not know and that he was not following each and every minute.  He was then asked since he gave evidence that the prices shown in the Daily Sales Reports were approved by him, whether it would be possible that the record in the Fantasy Invoice was incorrect.  He answered, quite evasively, that he had to check what was the cost of this particular stone, and asked rhetorically, “If I approved (a discount of) 32%, why would the customer pay (a lower discount of) 25%?”  Ms Ma followed up further by showing him the corresponding Maysun Invoice No.20448, which stipulated a discount percentage of 32% from the Rapaport Price, and asked Perla if he would agree that this (i.e. the price stated in the Maysun Invoice No.20448) was the price approved by him.  Perla answered that he did not look at every email he got and he would have people to follow.  Ms Ma then put to Perla that he did not know the price of the diamond sold.  Perla answered 99% he did confirm the price all the time besides the Sabbath day.  For this case, if he checked the costs, he could see if mistake was made.  Ms Ma lastly asked could it be possible that the Daily Sales Report was incorrect.  Perla answered he would say mistake. 

(c)  Fantasy Invoice No.20487 issued to Maysun Factory:  This Fantasy Invoice showed a discount percentage of 25% across the board for all the diamonds.  However, this is not so for the corresponding Daily Sales Report.  Ms Ma asked Perla if he would agree that one of the Fantasy Invoice or the Daily Sales Report was incorrect, or both of them were incorrect.  Perla did not answer.  Ms Ma further asked as the date of the Fantasy Invoice (i.e. 9 June 2009), what was the actual price of the specific diamond listed in the invoice,  Perla answered he could not tell her what the actual price of the particular diamond was.  Ms Ma followed up further and put to Perla that Daily Sales Report was sent by Yan by email to Jacob Louie of Olympic and copied to Mina Deutsch of Olympic and Perla himself, and actually the Daily Sales Report was acknowledged by him through his staff Jacob by a reply email to Yan.  Perla did not provide any answer. 

(d)  Perla was then shown with another 3 Daily Sales Reports where the prices listed therein were different in the corresponding Fantasy Invoices.  Perla accepted that he had no idea.  I should add that the evidence show all three Daily Sales Reports was acknowledged by reply emails from Jacob without question.   

(8)  Perla’s answers are highly unsatisfactory and are contradictory to his insistence that he approved the price of every sale.  I agree with Ms Ma’s submission that his evidence should be scrutinized with caution[85], particularly with regard to his assertion that the prices appeared on the Fantasy Invoices and the Daily Sales Reports were the prices approved by him.

(9)  Further, during Ms Ma’s closing submissions, I asked her, basing on Annex 1, prepare a table showing the discrepancies on diamond prices between the Fantasy Invoices and the corresponding Daily Sales Reports.  She duly did so and produced a table, which apparently received no comment from Mr Chow.  The table reveals that there were 99 diamonds with discrepancies and 20 diamonds with no corresponding Daily Sales Report. 

(10)  Those diamonds sold with no Daily Sales Report are anomalous, since the normal procedure pleaded by the Plaintiff was not followed.

(11)  There are altogether 119 (99 + 20) irregular incidents.  This occupied a significant portion of the Plaintiff’s Annex 1 Claim, where the sales of a total of 758 diamonds were claimed.  In addition, as mentioned in Footnote 26 above, the Plaintiff’s claim in relation to 23 diamonds originally included in the Re-Amended Statement of Claim is now deleted because there is no price difference between the Fantasy Invoices and the corresponding Maysun Invoices.  Further, the Plaintiff did not inform and explain, and I notice during deliberation, why the claim in relation to the diamond DC677X (being item 671 in Annex 1) should be included in the Annex 1 Claim because the price stated on the Fantasy Invoice, i.e. US$8783.84 was even lower than the price stated on the corresponding Maysun Invoice, i.e. US$8,954.40.  Perhaps the Plaintiff would say that the Plaintiff would give credit to the Defendants on the difference.  But this is not the point.  The point is this cast another doubt on the accuracy of the Fantasy Invoice.  

(12)  In my view, the nature and extent of the afore-described discrepancies between the Fantasy Invoices and the Daily Sales Report, their inexplicability of how and why the discrepancies arose, its inconsistency with Perla’s main evidence and Perla’s evasiveness in addressing and explaining these discrepancies have tainted the credibility of the accuracy of the contents of the Fantasy Invoices and the Daily Sales Reports as a whole.  Specifically, from the discrepancies described above, and from the evidence given by Perla, I find that (a) the prices and the discount percentages from the Rapaport Price stated in the Fantasy Invoices may not be the true price of the diamonds sold and (b) the prices and the discount percentages from the Rapaport Price stated in the Daily Sales Report may not be the true price of the diamonds sold.  All in all, it seems to be the Plaintiff’s mode of operation, in terms of keeping an accurate sales record in the least, is chaotic, and not reliable.         

84.  Overall, taking account of all the matters mentioned in the preceding paragraph, I do not accept that the Fantasy Invoices are accurate in their contents, particularly in relation to the price and the discount percentage stated thereon.  I also do not accept the accuracy of the Daily Sales Report in their contents, particularly in relation to the price and the discount percentage stated thereon.

85.  Since the Fantasy Invoices may not be accurate, as mentioned in paragraphs 80 and 81 above, the Maysun Invoices may not be inaccurate or false.  In fortifying my conclusion that the Plaintiff has not been up to proof on the falsity of the Maysun Invoices, I accept Ms Ma’s submissions[86] that the dealings between the Plaintiff and D4-D6 were conducted in an rather open manner (see below).  As such, it is more unlikely that these dealings were conducted fraudulently and dishonestly:

(1)  Alberto’s evidence was that he always overheard Mira negotiated diamond price with Winnie Tang via phone that Mira complained openly in office as to the price asked for by Winnie Tang.

(2)  Various staff of the Plaintiff had gone to Maysun Jewellery’s office to deliver or collect diamonds and/or collect payments.  During these occasions, the Maysun Invoices were shown to these staff, who then acknowledged the money that they collected with signature.  If Winnie Tang knew or suspected that the price were unauthorized, Winnie Tang would not have allowed Alberto, Lai and/or Celia Chan to have signed on the Maysun invoices.  I agree that this is an indication of a genuine trade.

(3)  Winnie Tang had faxed the Maysun Invoices which required amendments back to the Plaintiff’s office.  I accept Ms Ma’s submission that although they were addressed to Yan who was expected to make the amendments, sending the Maysun Invoices through fax machine would rather be an open gesture, because it is quite possible that the facsimile Maysun Invoices could be picked up by other employees of the Plaintiff including those according to the Plaintiff other than D1-D3 who did not participate in the fraudulent scheme, as well as Perla the boss.  Winnie Tang had no control on who would pick up the facsimile Maysun Invoices at the Plaintiff’s fax machine.  If the Maysun Invoices were false or were forged documents, and Winnie Tang was a participant of the fraudulent scheme or was dishonestly assisting D1 and/or D2 and/or D3, she would not have communicated with Yan in such an open manner.

(4)  Lastly, there were records of returned diamonds from Winnie Tang.  I agree with Ms Ma that, as explained by Winnie Tang, if the diamond prices were really sold at gross undervalue as the Plaintiff alleged, then she would not need to inspect the diamonds and then return the unwanted ones.  She should rather sweepingly and swiftly get all the diamonds and resell them at a profit.

86.  For the above reasons, I conclude that the Plaintiff has failed to discharge the burden to prove that the Maysun Invoices were false.  As such, the references to Yan in the Maysun Invoices are neither here nor there.  This allegation has become a red herring.

87.  Lastly, the above evidence that the Plaintiff relied on is also the evidence used by the Plaintiff to assert that Yan was one of the perpetrators of the fraudulent scheme or had dishonestly assisted Mira and Cheng in the commission of the fraud[87]. Since I have rejected the above evidence, and there being no further evidence that the Plaintiff adduced to say Yan is a fraudster, or that she had knowingly done anything to render assistance to Mira and/or Cheng in carrying out the fraudulent scheme, the Plaintiff has failed in proving Yan’s participation in the fraudulent scheme as claimed by the Plaintiff.  As shall be explained below, in my judgment, the Plaintiff has also failed to prove the existence of a fraudulent scheme at all.   

I(6)    Issue 1.1 – Conclusion

88.  On Issue 1.1, for the above reasons, I conclude and hold as follows:

(1)  The Plaintiff has failed to prove that the Fantasy Invoices and the Daily Sales Reports are accurate, particularly that the prices of the diamonds stated thereon are accurate.

(2)  The Plaintiff has failed to prove that the Maysun Invoices are false or forged.

(3)  Even if the Maysun Invoices are held to be forged, the Plaintiff has failed to prove that Yan was the person who produced some or all of the Maysun Invoices.  As such, there is no question of whether she did so jointly with Cheng and/or under the direction of Mira.

(4)  The Plaintiff has failed in proving Yan’s participation in the fraudulent scheme as claimed by the Plaintiff.  

I(7)    Issue 1.2 – The Plaintiff’s case

89.  The Plaintiff adduced no direct evidence against Cheng.  More specifically for this issue, there is no evidence before this Court proving that it was Cheng who produced some or all of the Maysun Invoices.

90.  What the Plaintiff attempted to do was to persuade this Court to draw inference from the following circumstances that Mr Chow submitted:

(1)  The fraudulent scheme of Mira and Yan could not be possibly undertaken without Cheng’s willing participation or at least turning a blind eye to the misconduct as he is the other person apart from Yan who was responsible for invoicing apart from Yan[88].  The Plaintiff further admitted in the Plaintiff’s Closing Submissions that there is little evidence of Cheng’s active involvement in Mira’s fraudulent scheme[89], but suggested that even though there is no direct evidence of Cheng's participation in the fraud, given his role in relation to invoicing, inventory control and recording receivables at the material time, it is inconceivable that he did not have knowledge in the fraud[90].

(2)  Cheng was evasive and inconsistent as to his job responsibilities.  Relevantly, Mr Chow submitted that Cheng is the only witness at the trial who denied that his usual responsibilities include invoices[91], which he insisted during cross-examination by Mr Chow.

(3)  Given his role that he was responsible for recording payments from customers and for writing down particulars of payment from customers on the invoices[92], and that there would be frequent checking every night to ensure that there was no mistake, it is inconceivable that he would not have discovered the large number of transactions where the prices or the entire transactions were fictitious, as there would be an unusually high amount of receivables where those transactions would not be fully settled by the customers[93].

(4)  Cheng’s evidence said he did not detect any irregularities and misconduct in the course is inconsistent with Lai’s evidence that Cheng had asked him not to investigate the irregularities in the transaction[94], and that in the aforementioned MSN messages between Alberto and Yan, Yan mentioned that Cheng was assisting Mira to lie which Mr Chow submitted to be presumably to Perla[95]. Mr Chow submitted that Cheng’s behaviour is suspicious and that his lies to the Court were his attempt to conceal his participation in various aspects of the fraud, including fabrication of the fictitious transactions[96].

(5)  Even when he did not prepare the Daily Sales Reports, Cheng was often copied in the emails containing the Daily Sales Reports prepared by Yan, so he must know about the approved prices[97]. 

I(8)    Issue 1.2 – Discussion

91.  I reject the Plaintiff’s case against Cheng.  I shall deal with the Plaintiff’s arguments raised in the preceding paragraph in sequence:

(1)  Paragraph 89(1) above.  The Plaintiff”s case against Cheng rests again on the proof of the falsity of the Maysun Invoices.  If the Maysun Invoices are false, the fraud could not be possibly undertaken without Cheng either willingly participating or turning a blind eye to the misconduct as he is the other person apart from Yan who was responsible for invoicing.  The Plaintiff admittedly has failed to produce any direct evidence showing that Cheng produced any Maysun Invoices.  Now that I have found in the above that the Plaintiff has failed to prove that the Maysun Invoices were false or forged, the main plank of the Plaintiff’s theory of fraud falls away.

(2)  Paragraph 89(2) above.  Mr Chow emphasized Cheng’s evasiveness in admitting that his job responsibilities included invoicing.  The salient fact is that the Plaintiff has produced no relevant record, e.g. employment letter or employer’s tax return, of Cheng’s employment.  This is odd.  These records normally would shed light on Cheng’s work scope.  There is not even a single document in the Plaintiff’s record that the Plaintiff adduced which show a description of Cheng’s employment title, apart from the fact that he is a director of the Plaintiff.  And there is no suggestion from the Plaintiff that Cheng was responsible for issuing invoices as a director.  On the other hand, the Plaintiff asserted that as the Plaintiff’s accounting staff, Cheng was obliged with and share the responsibility with Yan of issuing invoices.  However, Tse, one of the Plaintiff’s witnesses, as mentioned in paragraph 12 above, being the finance manager of the Plaintiff responsible for books and accounts, seemed to have nothing to do with issuance of invoices.  The rather unexpected absence of written records left me no intention to give weight to this rather unfair accusation against Cheng.

(3)  Paragraph 89(3) above.  The Plaintiff essentially argued that given his daily responsibilities which included operation of the Fantasy System and preparation of invoices, Cheng must have knowledge of the large number of forged Maysun Invoices and the fraud perpetrated by Mira and Yan, and as such the Plaintiff asked the Court to draw the inference that Cheng must have been involved in the fraudulent scheme by forging, or dishonestly assisting in the preparation of, the false Maysun Invoices.  Again, since I have held in the above that the Plaintiff has failed to prove that the Maysun Invoices are false or forged, there is no inference that can be drawn against Cheng that he had created or forged false Maysun Invoices.

(4)  Paragraph 89(4).  Given my finding above, I do not think the unspecific remark allegedly made by Cheng to Lai alone would hold water in going so far to prove the existence of the fraud and Cheng’s participation in it.  This should particularly be so when this remark was considered together with what Yan allegedly said in the MSN messages to Alberto that both Cheng and Tse had told lies for Mira.  If Cheng was suspected because of what Yan said he had told lies for Mira, there is no evidence from the Plaintiff to explain why Tse was not suspected.  Therefore, in my view, this argument from the Plaintiff is nothing but another red herring.

(5)  Paragraph 89(5).  I have found in the above that the Plaintiff has failed to prove that the Daily Sales Reports were accurate.  And the Plaintiff has no other record proving the approved price in the sale of each diamond.  This point becomes another point of no significance.

I(9)    Issue 1.2 – Conclusion

92.  For the reasons explained, in addition to my findings above, I find that the Plaintiff has failed to prove Cheng had participated in the fraudulent scheme as claimed by the Plaintiff, which included the creation of the false or forged Maysun Invoices.  As such, there is no question of whether Cheng acted jointly with Yan and/or under the direction of Mira in committing the fraudulent conduct as claimed by the Plaintiff.

I(10)  Issue 1.3 – The Plaintiff’s case

93.  The Plaintiff’s case against Mira is rather simplistic.  What the Plaintiff effectively says is, Well, Mira was the director and the sales manager of the Plaintiff.  She was responsible for dealing with D4-D6.  Adopting the same logic of its claim against Yan and Cheng, the Plaintiff says it is inconceivable that, given the large volume of transactions between the Plaintiff and the Maysun Defendants at the material time, Mira had no knowledge about the existence of the Maysun Invoices and that there were significant differences in prices with the Fantasy Invoices as recorded in the Fantasy System[98].

94.  The Plaintiff relied on matters such as:

(1)  Some handwritings on the Maysun Invoices which resembled Mira’s handwriting[99].

(2)  She was copied with the Daily Sales Reports, so she must know that the prices on the Maysun Invoices were unauthorized[100].

(3)  Yan’s “admission” of Mira’s unauthorised falsification of invoices said in the aforesaid MSN messages records[101].

(4)  There was a “running account” system for settlement of purchases with the Maysun Defendants.  Being the sales person responsible for dealing with the Maysun Defendants, when Mira was cross-examined about the “running account” system, she became very evasive. And given the use of the “running account” and the need for both sides to perform reconciliation from time to time to find out the net balance (i.e. who is owing money to whom and for how much), as the primary contact with the Maysun Defendants who negotiated the prices on behalf of the Plaintiff, it is highly unlikely that Mira was not involved in the reconciliation process at which point she must have then found out about price discrepancies between the Fantasy Invoices and the Maysun Invoices. Therefore, the existence of two parallel sets of invoices and the price differences must be within her knowledge[102].

I(11)  Issue 1.3 – Discussion

95.  The matters mentioned in the preceding paragraph which the Plaintiff relies are not sufficient to prove its claims, for the following reasons, in line with or in addition to other findings I made above:

(1)  Regarding paragraph 93(1), leaving aside the finding that the Plaintiff has failed to prove that the Maysun Invoices are false or forged, being the sales person responsible for the transactions with the Maysun Defendants, the contents of the handwritings (e.g. “Received HK$4,099,290 cash cheques if any incorrect information will return the full amount” [103]) appeared to be normal conduct of business, and there was no challenge from the Plaintiff that fraudulent or anomalous conducts could be discerned from these handwritings.  If the Maysun Invoices were forged and false and Mira knew them to be so, it would be odd for her to mark normal business logistics on them, as it might increase the risk of exposing not only the falsity of the invoices but also Mira herself as having knowledge of their falsity.  Nevertheless, this is a doubt which cannot be resolved on the state of the present evidence.  Like assessment of other evidence, the only conclusion that can be reached is that the Plaintiff has failed to discharge its burden of proving that the Maysun Invoices were forged by Maysun and she exposed herself by using some of them for marking normal business logistical matters thereon.

(2)  Regarding paragraph 93(2) above, I have found that the Plaintiff has failed to prove that the Daily Sales Reports were accurate.  As such, they could not be regarded as accurate records of the price that Perla had approved for the sale of each diamond.  I should also add that as explained above, the Daily Sales Reports were actually emails from Yan, an office assistant to Olympic, the de facto headquarter of the Plaintiff.  The Plaintiff appeared to have no (or have not produced any) record of the prices approved by Perla, when he approved them and the sales person(s) who sought the approval.

(3)  Regarding paragraph 93(3) above, I have found in paragraph 72 above that the MSN Chat conversation records are not reliable evidence.  I should repeat here that as I read them, in those conversations there was no mention of falsification of invoices.

(4)  Regarding 93(4) above, given the Plaintiff’s failure to prove the accuracy of the Fantasy Invoices and the falsity of the Maysun Invoices, Mira who conducted the reconciliation with the Maysun Defendants under the running account was to be regarded as doing normal business.  I also agree with Ms Ma that there was nothing untoward in this arrangement, which was supported by evidence: Firstly, as pointed out by Ms Ma[104], it is Mira’s unchallenged evidence that according to Perla’s instruction, the Plaintiff preferred to accept cash payment.  Secondly, this was also Maysun’s preferred method of payment according to Winnie Tang’s evidence, given the narrow profit margin of about 2-3%.  Thirdly, Perla accepted in court that the running account arrangement was known to him and he would approve it[105].  The Plaintiff claims that Alex Tang and Winnie Tang acted in concert with Mira, Cheng and Yan in relation to the undervalue sales (which will be dealt with in the following paragraph), which includes acting in concert with Mira on the use of purported cash payments, cash advance and running account to disguise and conceal the conspiracy and to prevent checking and verification of the transactions[106].  This plea contradicts the incontrovertible evidence above and hence is rejected.  

I(12)  Issue 1.3 – Diamonds not sold undervalue

96.  As mentioned in the preceding paragraph, and as pleaded in paragraph 42(16) of the Plaintiff’s Re-Amened Statement of Claim, the Plaintiff pleaded that the sale of diamonds was consistently and grossly at undervalue compared to comparable diamonds in the wholesale market.  I shall therefore deal with in this section the question of whether the diamonds sold by the Plaintiff to the Maysun Defendants are grossly undervalued or not.

97.  On the valuation of the wholesale price of those diamonds, the Maysun Defendants adduced the expert evidence of Mr Ng Siu Keung.  I find at the outset that his evidence does not carry any significant weight because, as Mr Chow submitted[107], he did not comply with the requirements of the Code of Conduct for Expert Witnesses, by which he signed a declaration confirming his agreement to be bound:

(1)  There is a complete absence of any analysis as to how he arrived at his valuation. 

(2)  There is no mention of any materials that he used or relied upon to reach his valuation. 

(3)  His expert report contains no mention of any assumptions and limitations of his opinion.

98.  The Plaintiff adduced the expert evidence of Mr Wayne Chau.  I accept Ms Ma’s submissions that Mr Chau’s evidence is also not reliable, for the following reasons:

(1)  Firstly, Mr Chau’s assessment is based on two sources, which are of inadequate representativeness[108].  Mr Chau accepted during cross-examination that while there was no universal price or formula for assessing the price of a diamond, reference could be made to the prices adopted for similar diamonds by various traders in the market.  However, he did not refer to RapNet[109] in his expert report without explanation.  Instead, he relied on (a) a quotation email sent to him from his client and (b) a stock list of a company called DIASQUA (HK).  So in fact he only relied on the price of one company[110] as the basis for his assessment.  Mr Chau did not explain why only the information of one company was relied on, and he did not explain why the information of this particular company would be representative enough to represent the wholesale price of the market.  Without the explanation, I am mindful that the data of this one company should not be regarded as reliable.  In respect of the quotation email, Mr Chau admitted that the source(s) of the prices referred to there on were unknown to him and the prices were not concluded sale prices.  Worse still, Mr Chau did not state in his report when the information in the quotation email was taken into account and when the information in the DIASQUA (HK)’s stock list was taken into account.  Mr Chow, in reply, submitted that I agree with Ms Ma that the reliability of the prices stated therein as the market wholesale price of the diamonds has been seriously compromised.

(2)  Secondly, while I accept Mr Chow’s submission that valuation of diamonds is not exact science and involves the expert’s judgment call based on his experience[111], I agree with Ms Ma[112] and take the view that it is vitally defective for Mr Chau to omit from his report why and how he came up with the specified discount percentage for each specified date.  This makes Mr Chau’s valuation inexplicable and exposes the arbitrariness of his valuation.  While Mr Chow might submit that there is a difference in extent, in my view, like the shortcoming of Mr Ng’s report as mentioned in paragraph 96 above, the analysis as to how Mr Chau arrived at his valuation is also absent in his report, particularly as to how he came up with the specified discount percentage, how he relied on the quotation email to come up with that percentage to reflect the market fluctuation and how he came up with the discount percentage with regard to the economic cycle which according to him was one of the most important factors.  

(3)  Thirdly, Mr Chau has also failed in his report to state the limitation that he did not make any inspection of the diamonds.  During cross-examination, Mr Chau agreed that it is important to inspect the physical diamonds for price assessment but he attempted to explain that he had included this potential deviation in the provision of the 5% price deviation.  He did not state so in the report, not to mention how the 5% price deviation was reached and how much is the potential deviation of absence of inspection contributed to that 5%.  In any event, like Mr Ng, as mentioned in paragraph 96 above, Mr Chau’s report has also contained no mention of this important limitation of his opinion (i.e. absence of inspection).

99.  For the above reasons, given (1) my finding that there are no experts’ valuations adduced by the Plaintiff and D4-D6 which are reliable and (2) it is the Plaintiff who bears the burden of proving that the Annex 1 Diamonds are sold undervalue, I hold that the Plaintiff has failed to prove that the Annex 1 Diamonds were sold to the Maysun Defendants undervalue. 

I(13)  Issue 1.3 – Conclusion

100.  For the reasons explained above, I make the following findings:

(1)  The Plaintiff has failed to prove that the Annex 1 Diamonds were sold by Mira at an undervalue to the Maysun Defendants.

(2)  The Plaintiff has failed to prove that the Annex 1 Diamonds were sold by Mira without authorization from Perla.

101.  In light of the findings made thus far, I should also add the finding that the Plaintiff has failed to prove Mira was a perpetrator of the fraudulent scheme as claimed by the Plaintiff, which included the creation of the false or forged Maysun Invoices.  As such, no question of whether Mira acted jointly with Yan and/or Cheng in committing the fraudulent conduct as claimed by the Plaintiff arises.

I(14)  Issue 1.4

102.  There is no dispute that the Maysun Defendants have been purchasing diamonds from the Plaintiff between about 2009 to 2010.  Winnie Tang accepted that she bought about US$10 million worth of diamonds from the Plaintiff from March 2009 to June 2010 and that the Plaintiff was her biggest supplier during that period[113].  The Plaintiff placed great reliance on the use of Maysun Factory by Winnie Tang and Alex Tang as being the addressee of all the Fantasy Invoices and the Maysun Invoices, which was an entity which has been dissolved since 2003, claims that this is illustrative of the dishonest conduct of Alex Tang and Winnie Tang.

103.  In my view, given my above findings that the Plaintiff has failed to prove (1) that the Fantasy Invoices were accurate, (2) that the Maysun Invoices were false or forged, and (3) that the Annex 1 Diamonds were sold by Mira undervalue to the Maysun Defendants and without authorization from Perla, it follows that the issue as framed, namely whether the Maysun Defendants purchased the Annex 1 Diamonds from the Plaintiff with the knowledge that the diamonds were sold at an undervalue and that Mira had no authority to sell those diamonds at such undervalued prices, does not arise.

I(15)  Annex 1 Claim - Conclusion

104.  Accordingly, the Plaintiff’s Annex 1 Claim failed.

J.   Annex 2 Claim

105.  The only suggestion of the Plaintiff’s claim under this head is that in light of the misconduct of Mira, Yan and Cheng and their roles responsible as described in the Annex 1 Claim, the Annex 2 Diamonds were wrongly removed from the Safe by Mira, Yan and Cheng. Again, it is inconceivable that such a large number of fictitious transactions involving substantial sums could have escaped their attention, especially when a large number of the Direct Sales Reports were compiled in respect of the Annex 2 sales and copied to Mira.    

106.  The Plaintiff relied on the matters raised against Mira, Cheng and Yan in the Annex 1 Claim, and asked the Court to draw inference against them also in the Annex 2 Claim.  Since the Plaintiff has failed to prove the Annex 1 Claim, and it has not adduced any other supportive evidence, it must also fail in the Annex 2 Claim.

107.  For completeness, I should deal with two matters.  The first matter concerns taking away diamonds from the Safe.  The evidence of Mira, Cheng and Yan was that the Safe was located in a room in the office where Tse, Cheng and Yan sat.  During office hours, the room was not locked, everybody could get in and out, and the safe was kept open and the diamonds were placed beside Yan’s desk.  This arrangement was confirmed by the evidence of Alberto.  He said at paragraph 12(b) of his witness statement that Cheng took out the diamonds from the Safe every morning and put them on the desk beside Yan’s desk, so that Yan can pass on the diamonds to the sales representatives for sending to customers for inspection. Tse also accepted in court that he could see from the place where he sat in the room when any staff moved near the Safe.  It appears that the arrangement was for the convenience of the sales representatives like Mira, Alberto and Celia Chan who needed to pick up diamonds from the Safe and send them to customers for inspection (and return thereafter) frequently.  Perla was also in the office.  Tse in his evidence accepted that Perla was in the office half the time.  And Perla accepted during cross-examination that in urgent or special circumstances not all diamonds would be recorded in the Fantasy System, although he said when he took away a diamond he would photocopy the parcel paper or the Gemological Institute of America’s Certificate (i.e. the “GIA Certificate”) of the relevant diamonds and record on such photocopy the name of the sales staff by whom the diamonds were taken showing particulars of the diamond and give it to Cheng and Yan for record (but as such, there would be no issuance of Fantasy Memo recording the removal of the diamond(s) from the Safe).  It was also Mira’s evidence that there were also instances when diamonds which were sent from Olympic were taken to customers for inspection directly before they were put into the Safe or recorded in the Fantasy System. Therefore, the Fantasy System did not accurately represent the operations of the Plaintiff, and its inventory the stock information of the Plaintiff’s diamonds.  Against this backdrop, in my view, when diamonds got loss, it cannot be held against Cheng or Yan as if they were the thief who stole the diamonds.

108.  The second matter is about the complete absence of CCTV records.  Tse during cross-examination said there was CCTV installed in the room where the Safe and the diamonds were located but he understood it was out of order.  Yuen, the Liquidator, said he knew there was CCTV but he did not know if there were records.  According to Annex 2, 97 diamonds were missing, with Fantasy Invoices appeared in the Fantasy System but no Maysun Invoices produced by the Maysun Defendants.  The dates of the Fantasy Invoices ranged from March 2009 to December 2009, a span of 9 months.  It appears bizarre to me that no CCTV record was available for all these times, and that the CCTV was broken all these times, with no effort shown by the Plaintiff to repair it.  Mr Chow’s submission in this regard is[114] that the Court should not draw an adverse inference against the Plaintiff for the lack of CCTV evidence and shipment evidence concerning the diamonds.  This submission is in my view misconceived.  The Plaintiff who asserts that Mira, Cheng and Yan were in effect responsible for misappropriating (or put it bluntly, stealing) the diamonds.  The Plaintiff must be the party who bears the burden of proof.  In assessing the evidence, the Court is entitled to take into all relevant matters, which include the absence of the CCTV record, in deciding whether the Plaintiff has discharged its burden.

109.  I therefore hold that the Plaintiff has failed to prove that:

(1)  Mira, Yan and/or Cheng removed the Annex 2 Diamonds from the Safe, and Mira sold them to the Maysun Defendants without the Plaintiff’s authorization; and

(2)  The Maysun Defendants purchased the Annex 2 Diamonds from the Plaintiff with the knowledge that Mira had no authority to sell the Annex 2 Diamonds at nil consideration.

110.  The Plaintiff’s Annex 2 Claim failed.

K.   Annex 4 Claim & Annex 5 Claim

111.  Annex 4 Claim and Annex 5 Claim can be dealt with together.  According to the Plaintiff[115], these two claims relate to sales or consignment recorded to various customers, other than the Maysun Defendants, for which the Liquidators subsequently found out from these customers[116] that the diamonds were not sold or consigned to these customers. The Plaintiff relies on the relevant Fantasy Invoices in the case of sales – Annex 4 or Fantasy Memos in the case of purported consignments – Annex 5, the Daily Sales Reports (for the Annex 4 Claim only), demand letters issued by the liquidators to the customers, responses from the customers to the liquidators' demand letters and some email communications or pleadings showing Mira's dealings with these customers[117].  The Plaintiff asks the Court to find that, as with other claims, and similar to their modus operandi in other claims, Mira, Yan and Cheng wrongfully misappropriated (a) the Annex 4 Diamonds under the guise of the fictitious transactions represented by the relevant Fantasy Invoices and (b) the Annex 5 Diamonds under the guise of the fictitious consignment arrangements and without properly accounting for them[118].

112.  As analysed above, the Plaintiff has failed to prove that the Fantasy Invoices were accurate.  In respect of the Daily Sales Reports, the Plaintiff has also failed to prove their accuracy, or that the prices stated therein were authorised by Perla. And it cannot be proved that Cheng or Yan was the creator of the Fantasy Invoices.  Further, the fact that Mira was the sales representative in dealing with those customers did not mean that Mira was more likely to be the person who wrongfully misappropriated the diamonds or created fake invoices.

113.  The Plaintiff is fraught with similar problems in the Annex 4 Claim.  Looking at Annex 4, there are 14 items with either (a) no Daily Sales Report issued for the sale or (b) the price stated on the Daily Sales Report was different from the Fantasy Invoices.  As such, not only Mira, Cheng or Yan might have noticed the discrepancies or the anomalies, but Perla, Mina and Jacob Louie should also have noted the discrepancies or the anomalies.  For example, in the Fantasy Invoice No. 21409, the diamond 102809X1, the price was stated to be USD18576. But in the Daily Sales Report, the price of the same diamond was stated to be USD9,771.30.  While it was said in Annex 4 that the Customer’s response was set out in an email from Crown Jewellery on 13 July 2010, I cannot find any reference to the Fantasy Invoice No. 21409 in that email.  In another page of the trial bundle I did find an invoice also numbered 21409 which did not contain the diamond 102809X1.  The summary of findings in Annex 4 stated that there was no such stone in invoice no. 21409 (false invoice) received by the customer.  That is the basis of the Plaintiff’s evidence claiming against Mira.  My view is the Court cannot not find forgery, fraud and wrongful misappropriation based only on a very short summary by the Liquidators – with only a line of “findings”, together with a few loose pages in the trial bundle. The Court needs a more proper investigation.  The Plaintiff has failed to adduce proper report on this incident from the Liquidators and evidence from Crown Jewellery before it could decide on such serious allegation from the Plaintiff.

114.  Another example that can be raised to illustrate the Plaintiff’s failure to be up to proof on its serious allegations is a diamond No.DA700 which was stated on the Fantasy Invoice No. 20478 bearing the price of USD64,577.76.  However, in the Daily Sales Report, the price was stipulated to be only USD20,436.00.  Jacob Louie of Olympic acknowledged the report of this sale in his reply email.  There appears to be no written response from the customer Tiara Jewellery.  However, there appears in the trial bundle another invoice also numbered 20478 which the sale of the diamond No.DA700 disappeared from it.  The Plaintiff said the Fantasy Invoice (with DA700 being sold) was false, and as such the other invoice (without DA700) was true.  The Plaintiff seems on this occasion taking a reverse position as in the Maysun incident, where the Plaintiff said the Maysun Invoices were false and the Fantasy Invoice was true.  Obviously, more investigation is necessary before the Court could make any determination. Therefore, in my judgment, the Plaintiff has not put sufficient evidence to enable the Court to make any finding of fraud and misappropriation against Mira, Cheng and Yan.

115.  For the same reason, I find that the Plaintiff has also been not up to proof in respect of the Annex 5 Claim.

116.  Accordingly, the Plaintiff failed in both Annex 4 Claim and Annex 5 Claim.

L.    Annex 6 Claim

117.  Put it bluntly, the Plaintiff is accusing Mira, Cheng and Yan for theft – stealing 193 diamonds which have been missing from the Safe.

118.  The Plaintiff relies on the same matters that it relies on above[119]:

(1)  Mira would have regular access to the Safe as part of her day-to-day job as salesperson without arousing any suspicion.

(2)  The responsibility for monitoring access to the Safe and keeping records of diamonds going into and out of the Safe was shared by Yan and Cheng.

119.  These matters have been dealt with in the above.  The Safe and the diamonds are accessible to people other than Mira, Yan and Cheng.  There could be situations where diamonds were removed without a Fantasy Memo or recorded in the Fantasy System.  And it is inexplicable why not a single record of CCTV was available throughout a long period of time.  I do not find that the Plaintiff has been able to discharge its burden of proof.

120.  Therefore, the Plaintiff failed in the Annex 6 Claim.

121.  As the Plaintiff has failed to prove any breaches of duties by Mira and Cheng, there can be no dishonest assistance by Yan.  As such, the answer to Issue 6.1 is in the negative.

M.   Annex 3 Claim

122.  I accept Ms Ma’s submissions[120] that the Maysun Defendants have duly settled all the payments due under the Maysun Invoices, for the following reasons:

(1)  As held above, the Plaintiff and the Maysun Defendants agreed to adopt the running account arrangement.

(2)  The Maysun Defendants’ payment by cash was acceptable, and indeed preferred by, the Plaintiff.

(3)  The Plaintiff only relied on the verification done by Yeun for these claims.  But as admitted by Alberto and Lai, they had acknowledged receipt of cash payments from the Maysun Defendants on various occasions (including those acknowledge with their signatures).

(4)  Apparently, all those were not recorded as payment in Annex 3.  The Court has asked Ms Ma to produce a table for Mr Chow’s comment and sent to the Court demonstrating the full payment[121].

(5)  The table produced by Ms Ma contained a complete reconciliation of all the sums paid, with evidence of payment cross-referenced, showing at the end a positive balance owed by the Plaintiff to the Maysun Defendants in the sum of US$72,328.48.  Apart from putting to strict proof and non-admission, Mr Chow further commented on item 67 of the table which show an inconsistent payment (US$229,236.48 vs US$254,000).  But as explained by Ms Ma[122], this makes no difference to D4-D6’s submissions that all invoices have been settled given the credits US$97,092 as indicated in Annex 3. The difference of US$24,763.52 (US$254,000 - US$229,236.48) is well within the said credit of US$97,092, hence still leaving the sum of US$72,328.48 (US$97,092 - US$24,763.52) payable by the Plaintiff to the Maysun Defendants.

123.  Therefore, the Plaintiff’s Annex 3 Claim fails.   

N.   Conclusion & Disposal

124.  For completeness, I admit the evidence of Ms Zhang Jianyi with the usual order of costs in the cause.  Whilst her evidence, given through video-conferencing facility, is only marginally relevant and of limited probative value, I do not consider justified in the circumstance to exclude the evidence that the Plaintiff wished to adduce.

125.  In conclusion, for the reasons above, I have found that the Plaintiff’s claims against the Defendants failed.  I therefore order that judgment be entered against the Plaintiff in favour of the Defendants, that the Plaintiff’s action be dismissed.

126.  On costs, I see no reason why the costs should not follow the event.  I therefore make an order nisi that the costs of the action, including those reserved, be paid by the Plaintiff to the Defendants, to be taxed if not agreed.  The costs order nisi shall become absolute after 14 days from this Judgment unless application is made for its variation.

127.  Lastly, I thank Ms Chow and Ms Ma for their helpful assistance.