XCHRX ASIA WIDE PROPERTIES LIMITED AND ANOTHER v. TSANG YUK KIU

HCA9500/94

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO.9500 OF 1994

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D E C I S I O N

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1. This is an application by the 1st Plaintiff ("Asia Wide") with the support of the 2nd Plaintiff for joinder of two additional Defendants, i.e. the proposed "2nd and 3rd Defendants". There is also an application for amendment of the amended Statement of Claim against the 1st Defendant with additional causes of action. I shall deal with the background to this case before I deal with the objection by the 1st and proposed 2nd and 3rd Defendants to the application.

Background

2. The 1st Plaintiff is one of a number of joint venture companies between the 1st Defendant, his family, and companies controlled by him on the one part and Messrs Lucas Sasmito and Tsang Kwong Fan and their families and companies on the other ("representing the majority shareholders"). The 1st Plaintiff's shares were held by the aforesaid two parties in the ratio of 10% and 90% respectively.

3. In 1988, the 1st Defendant and the other majority shareholders of Asia Wide agreed to acquire a property at 95 and 97 Bulkeley Street, Hong Kong ("the Property") with the intention of redeveloping the Property. The corporate vehicle used to acquire the Property was one Transworld Properties Limited ("Transworld"). Asia Wide held 60% of Transworld whereas the 1st Defendant's company, in the name of Wellgan, held the remaining 40% thereof.

4. Originally, it was in the same redevelopment plan to acquire the adjoining property at No. 93 Bulkeley Street. Asia Wide alleged that in August/September 1988, the 1st Defendant represented to the Majority Shareholders that the property at 93 had been acquired by a Mainland Chinese group and there was no prospect of entering into a joint venture with them in the redevelopment or acquiring the same from them.

5. Consequently in September 1988, Asia Wide transferred 599 Transworld shares to a company called Jade Lion and the remaining one Transworld shares to the proposed 2nd Defendant. The 1st Defendant's company Wellgan transferred its 400 Transworld shares to Jade Lion. The aforesaid transfer of all the issued shares of Transworld was at the consideration of $4.8 million.

6. Asia Wide's Majority Shareholders then discovered in April 1989, some six to seven months afterwards, that Transworld sold the Property to one China Heart Investment Limited. The proposed 2nd and 3rd Defendants were the nominee directors of the 1st Defendant and the 1st Defendant himself wholly owned Jade Lion.

7. The original action against the 1st Defendant in the Amended Statement of Claim dated 23 September 1994 and 10 March 1995 were for misrepresentation and breach of fiduciary duty of a director on the part of the 1st Defendant to Asia Wide.

The application

8. In the proposed amendments against the 1st Defendant, the new causes of action against the 1st Defendant are as follows :-

1. fraudulent misrepresentation;

2. dishonoured design and conspiracy; and

3. constructive trust of property in the form of profit earned by the 1st Defendant through Transworld which has since been wound up.

9. Likewise, the new causes of action against the 2nd and 3rd Defendants are :-

1. dishonestly assisted the 1st Defendant in his fraudulent breach of his fiduciary duties owed to Asia Wide,

2. conspiracy to injure Asia Wide by procuring Asia Wide's aforesaid sale of its shares and concealing the 1st Defendant's interest in the purchaser of the same together with purchasing the same at an under value.

3. constructive trust of all benefits accrued to the 1st Defendant and all profits made as a result thereof.

The objection of the Defendants

10. The objection of the Defendants can be summarized as follows :-

1. all causes of action against the 2nd and 3rd Defendants are now time-barred at the time of the application in June 1998;

2. the causes of action would otherwise be barred by the equitable doctrine of laches;

3. the new causes of action against the 1st Defendant would not add anything to the original allegation of breach of fiduciary duties of the 1st Defendant owed to Asia Wide, the 1st Plaintiff; and

4. in any event in the circumstances of this case in particular the delay in the application and lack of explanation therefor should compel the Court to exercise its discretion not to allow the application of joinder and amendment.

11. I shall deal with the question of limitation in the joinder application first.

Limitation

12. The first claim of conspiracy against the proposed 2nd and 3rd Defendants is a common law tortious cause of action. Accordingly, such a cause of action would be barred after six years under s.4 of the Limitation Ordinance.

13. However, s.4 is under Part II of the Ordinance and it is provided under s.3 thereof that such part should be subject to Part III, i.e. whether there should be extension or exclusion from the effect of the limitation. Under Part III, s.26 thereof, it is provided that :-

"26. Postponement of limitation period in case of fraud, concealment or mistake

(1) Subject to subsection (4), where in the case of any action for which a period of limitation is prescribed by this Ordinance, either

(a) the action is based upon the fraud of the defendant;

(b) any fact relevant to the plaintiff's right of action has been deliberately concealed from him by the defendant; or

(c) the action is for relief from the consequences of a mistake, the period of limitation shall not begin to run until the plaintiff has discovered the fraud, concealment or mistake (as the case may be) or could with reasonable diligence have discovered it."

In other words the cause of action basing on fraud and relief from the consequence of a mistake shall not begin to run until the Plaintiff has discovered the fraud, concealment or mistake or with reasonable diligence could have discovered the same.

14. It is quite clear from the Plaintiffs' then solicitors, Messrs Philip K.H. Wong & Co., that by their letter dated 3 September 1990, they were aware of those facts relied on by the Plaintiffs in respect of the cause of action of conspiracy. They said in the aforesaid letter that :-

" We are instructed that our clients were at all material times passive investors in Asia Wide and Asia Wide's daily management was the responsibility or Mr. Tsang Yuk Kiu, its executive director, at all material times. Therefore, our clients have only agreed that Asia Wide should sell its shareholdings in Trans-World at the said consideration based on recommendations by your client, Mr. Tsang Yuk Kiu. We are further instructed that our clients have recently found out that Jade Lion was at all material times controlled by Messrs. Tsang Yuk Yin and Wong Yuk Wah, who are apparently husband and wife and Mr. Tsang Yuk Yin is a brother of your client Mr. Tsang Yuk Kiu. Furthermore, our clients also found out from their search at the land office that Trans-World sold the said premises to a third party at the total consideration of HK$9,400,000.00 on 21st April 1989 which was the date of the agreement and such transaction was completed on 20th May 1989.

Our clients therefore wish to put on record the following :-

1. they were at all material times relying on your client's advice and recommendation in reaching their decision to cause Asia Wide to sell its shares in Trans-World at the said consideration;

2. it is apparent that the sale consideration for Asia Wide's shares in Trans-World was below market value;

3. at all material times our clients were not aware that Jade Lion, which purchased Asia Wide's shares in Trans-World was controlled by your client's brother and his family member."

15. Thus accordingly, the action would have been barred by 3 September 1996, i.e. before the present application is made.

16. The position will be the same in the cause of action against the proposed 2nd and 3rd Defendants for dishonestly assisted the 1st Defendant in breach of his fiduciary duty to Asia Wide and/or breach of trust. Under para. 26B, it was pleaded against the proposed 2nd and 3rd Defendants for dishonestly assisting the 1st Defendant in the purchase of the aforesaid Asia Wide 600 Transworld shares and his aforesaid fraudulent breaches of his fiduciary duties owed to Asia Wide. It is not a pleading of fraud against the proposed 2nd and 3rd Defendants. It is in fact miles away from the facts of the case of Royal Brunei Airlines Sdn. Bhd. v. Philip Tan Kok Ming [1995] 3 WLR 64. In that case, the defendant was the managing director and principal shareholder of the company which held in trust for the airline money received from them. It is inescapable that the defendant being the person in control of the company must have knowledge and was in fact the main instigator in dishonestly assisting the company to commit a breach of trust or procured him to do so. Thus, he would be liable as a third party to the beneficiary for the loss occasioned by the breach of trust as decided by the Privy Council in the case.

17. Here, it was not pleaded that the proposed 2nd and 3rd Defendants had the knowledge of the 1st Defendant's setting up such a scheme to purchase in breach of his duty as Asia Wide's director. It was not pleaded that the proposed 2nd and 3rd Defendants knew there was no Chinese buyer for the property next door and the shares were transferred at an under value. The proposed 2nd and 3rd Defendants would not, therefore, be a party or privy to this breach of trust without a knowledge of the alleged fraud on the part of the 1st Defendant.

18. Paragraph 26C pleaded a separate cause of action that the proposed 2nd and 3rd Defendants are liable as the constructive trustees to account to Asia Wide all benefits which have accrued to the 1st Defendant and all profits which have been made as a result thereof.

19. In respect of limitation of actions in respect of trust property, s.20 of the Limitation Ordinance provided that :-

" (1) No period of limitation prescribed by this Ordinance shall apply to an action by a beneficiary under a trust, being an action

(a) in respect of any fraud or fraudulent breach of trust to which the trustee was a party or privy; or

(b) to recover from the trustee trust property or the proceeds thereof in the possession of the trustee, or previously received by the trustee and converted to his use.

(2) Subject as aforesaid, an action by a beneficiary to recover trust property or in respect of any breach of trust, not being an action for which a period of limitation is prescribed by any other provision of this Ordinance, shall not be brought after the expiration of 6 years from the date on which the right of action accrued:

Provided that the right of action shall not be deemed to have accrued to any beneficiary entitled to a future interest in the trust property, until the interest fell into possession."

20. There is no pleading of fraud or fraudulent breach of trust against the proposed 2nd and 3rd Defendants, and thus sub-section (1)(a) does not apply.

21. On the other hand, it was never alleged that there was trust property or proceeds thereof in the procession of the proposed 2nd and 3rd Defendants, or previously received by them and converted to their own use. In fact there was none. Thus sub-section (1)(b) does not apply either.

22. Accordingly, the limitation period of Asia Wide, allegedly a beneficiary, to recover trust property or in respect of any breach of trust is barred after six years according to sub-section (2) and the proviso thereof does not apply either.

23. The postponement of limitation period in respect of fraud, concealment and mistake under the aforesaid s.26 does not apply for the same reason that the Plaintiffs were aware of all the facts relied on as evidenced by the aforesaid letter of Messrs Philip K.H. Wong of 3 September 1990.

24. Thus in respect of limitation, it is plain and obvious that the causes of action against the two proposed Defendants were already time barred.

25. Lastly, according to the solicitor of the Plaintiffs, Mr Wither's first affidavit, he said that he was informed by his clients that they were only aware of the same in 1994. It was in response to this affidavit that the 1st Defendant exhibited the aforesaid letter of 3 September 1990. However, Mr Wither did not deal with this letter at all in his subsequent affidavits. There is not a single word from either Mr Sasmito or Mr Tsang Kwong Fan in respect of their knowledge or lack of the same of those facts to be relied on in their causes of action. In fact, not a single word was sworn by either one of them.

26. It was further clearly known to them that well before the letter of 3 September 1990 that Tsang Yuk Yin, the proposed 2nd Defendant was only a nominee to take up the Transworld shares. Under para. 20G(1) it was pleaded that Asia Wide actually transferred one share to the proposed 2nd Defendant as aforesaid. It was known to the Plaintiffs that the proposed 2nd Defendant was put forward as a nominee and thus when the conveyance of the Property was signed only by the proposed 3rd Defendant, it was irrelevant and could not be taken as a smoke screen to conceal the proposed 2nd Defendant's position as alleged by the Plaintiffs.

27. Furthermore, the 1st Defendant deposed in affidavit that the proposed 2nd Defendant had been used as a nominee in other transactions in the past which was known to the Plaintiffs. For example, the proposed 2nd Defendant was used as a nominee in the transaction in 1988 involving the Wo Hu Street Property. There was no reply to these allegations from the Plaintiffs.

The Joinder

28. Under O.15, r.6(5) :-

" (5) No person shall be added or substituted as a party after the expiry of any relevant period of limitation unless either

(a) the relevant period was current at the date when proceedings were commenced and it is necessary for the determination of the action that the new party should be added, or substituted, or

(b) the relevant period arises under the provisions of section 27 or 28 of the Limitation Ordinance (Cap. 347) and the Court directs that those provisions should not apply to the action by or against the new party.

In this paragraph 'any relevant period of limitation' (任何有關的時效期) means a time limit under the Limitation Ordinance (Cap. 347)."

Thus the Plaintiffs have to satisfy the Court that the joinder of the proposed 2nd and 3rd Defendants was made before the expiry of any relevant period of limitation and it is necessary for the determination of the action that the proposed 2nd and 3rd Defendants should be added. Order 15, r.6(6) provided as follows :-

" (6) The addition or substitution of a new party shall be treated as necessary for the purposes of paragraph (5)(a) if, and only if, the Court is satisfied that

(a) the new party is a necessary party to the action in that property is vested in him at law or in equity and the plaintiff's claim in respect of an equitable interest in that property is liable to be defeated unless the new party is joined, or"

[Sub-paras. (b) to (e) are not relevant to the case herein.]

29. Since there is no property vested in the proposed 2nd and 3rd Defendants in law or in equity, the joinder cannot be said to be necessary for the determination of the action. It cannot be said that the action would be defeated unless the proposed 2nd and 3rd Defendants are joined.

30. By reason of the aforesaid matter, I came to the firm conclusion that the application to join the proposed 2nd and 3rd Defendants at this stage should be refused.

New Causes of action against the 1st Defendant

31. The original cause of action against the 1st Defendant in dispute are simple and that is breach of fiduciary duty as a director to Asia Wide. The present amendments in para. 26(A) alleged that the 1st Defendant was setting up a scheme or arrangement to purchase the Transworld shares in breach of his duty as the director or agent of Asia Wide in effecting the purchase of Asia Wide's 600 Transworld shares by Jade Lion. There was no pleading of fraud under this heading.

32. There is a further new cause of action of conspiracy against the 1st Defendant. If the conspiracy cause of action against the proposed 2nd and 3rd Defendants is time-barred, the cause of action against the 1st Defendant is also time-barred as submitted by Counsel for the 1st Defendant, Mr Cheung.

33. However, I do not accept that the cause of action against the 1st Defendant also failed because the cause of action against the other alleged co-conspirators was time-barred. It is always open to a plaintiff to bring a cause of action of conspiracy against another person which is not time-barred. However, the same limitation applies to the 1st Defendant, that is the Plaintiffs were aware of the conspiracy by the latest on 3 September 1990 and thus at the time of the application for the amendment, the cause of action of conspiracy against the 1st Defendant is also time-barred. As submitted and agreed by Mr Cheung for the 1st Defendant, the consideration under joinder of parties is different from the consideration of mere amendment to the Statement of Claim by adding an additional cause of action which is time-barred. It involves the exercise of the discretion of the Court, which I shall deal with at the end of this judgment.

34. In respect of the amendments to the Statement of Claim against the 1st Defendant, it is quite clear that those facts which were relied on by the Plaintiffs were known to them by the aforesaid letter of 3 September 1990. There was a further private investigator's report commissioned by the Plaintiffs dated 30 April 1992. Those facts as known to the Plaintiffs as a result of such investigation would be known to the Plaintiffs by April 1998, i.e. two months before the present application for amendment.

35. The original cause of action against the 1st Defendant is just based on the simple and classical case of breach of fiduciary duty of a director by way of non-disclosure. There was no pleading of fraud against the 1st Defendant. It is not clear why there is such a sudden enthusiasm to plead fraud against the 1st Defendant which will attract a higher burden of proof or possibly so. The 1st Defendant has been represented by a number of eminent junior and leading Counsel and there is no explanation why he has not been advised of fraud apart from the present solicitors' affidavit saying that the Plaintiffs had not been properly advised in the past. However, in any event, fraud or no fraud, the relief would be exactly the same if the Plaintiffs succeed in the simpler case of breach of fiduciary duty. The present application has been quite late and was made without any explanation why there was such a considerable delay in the matter.

36. There is a further complication in this matter in that there was a 1991 Action taken out by the 1st Defendant against the Plaintiffs under four uncompleted projects and one project alone would amount to $100 million. There was a counterclaim in the 1991 Action in respect of the Bulkeley Property as well. There was no allegation of fraud in that Action either. In the Action before me, i.e. the 1994 Action there was direction already from the Master that this should be tried immediately after the 1991 Action. The parties have reached the final and crucial stage of exchange of witness statement and expert's reports after which the action will be set down for trial. If I allow the joinder and/or the amendment against the 1st Defendant, it would only delay the whole proceedings for no good purpose.

37. I would only add here that from the authorities cited to me, I consider that it is not correct for the Court to deal with the evidence of laches and give a determination on the issue of laches from the evidence on affidavit unless it is a plain and obvious case that the plaintiff's proposed amendment will be defeated by the doctrine of laches. The position is similar to a striking out action by a defendant against a plaintiff's statement of claim on the ground of laches. (See Pao Yuen Hsing Yieh Co. Ltd. v. The Estate of Yang Sen-hui and Others [1983] HKLR 124.)

38. On the evidence before me and in the absence of any reasonable explanation for the delay, it is a plain and obvious case the Plaintiffs' proposed amendments will be defeated by laches.

39. For the aforesaid reasons, I would exercise my discretion to disallow the amendment in respect of those additional causes of action against the 1st Defendant and joinder of the other two proposed Defendants to the present action.

Further amendment to the proposed amendment

40. In the reply of Mr Chua for the Plaintiffs, he put forward further amendments in terms of two new paragraphs, 26 BA and 26 GA. This was something apparently just pulled out from his sleeves by way of a reply which was strenuously objected to by both Counsel for the 1st Defendant and the proposed 2nd and 3rd Defendants. He tried to plead that the proposed 2nd and 3rd Defendants had actual knowledge or alternatively wilfully shut their eyes to the obvious as to the dishonest breach of fiduciary duty by the 1st Defendant.

41. I am afraid all those facts had already appeared either in the pleadings or in the evidence before the Court. It does not add anything to support the fact that the proposed 2nd and 3rd Defendants had actual knowledge or otherwise wilfully shut their eyes to the obvious as alleged by the Plaintiffs. In any event, it is improper for the Plaintiffs to salvage such a situation by way of a reply in proposing certain new amendments to the amendment put before the Court without a proper application and supporting affidavits.

42. In conclusion, I would dismiss the Plaintiffs' application for amendment and joinder of parties with an order nisi for costs against the Plaintiffs in favour of the 1st Defendant and the proposed 2nd and 3rd Defendants.