THE NEW CHINA HONG KONG GROUP LTD (IN CREDITORS' VOLUNTARY LIQUIDATION) AND OTHERS v. ERNST & YOUNG (A Firm) AND ANOTHER

HCCL 41/2004
HCCL 2/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

COMMERCIAL ACTION NOS. 41 OF 2004 and 2 OF 2005

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(Consolidated by the Order of the Honourable Mr. Justice Stone dated 16 November 2006)

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D E C I S I O N

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Applications

1. There are 5 applications before me.  They are :

(1) the 1^st Defendant’s application to strike out those parts of the Amended Consolidated Points of Claim and Prayers that concerned the 1^st Defendant;

(2) alternatively, in the event of the Court declining to strike out, the 1^st Defendant’s application for the issues on limitation to be tried as preliminary issues;

(3) the 2^nd Defendant’s application to strike out those parts of the Amended Consolidated Points of Claim and Prayers that concerned the 2^nd Defendant;

(4) alternatively, in the event of the Court declining to strike out, the 2^nd Defendant’s application for the issues on limitation to be tried as preliminary issues;

(5) the Plaintiffs’ application to re-amend the Amended Consolidated Points of Claim.

2. The parties agree that I should first deal with the Defendants’ strike-out applications as well as the Plaintiffs’ application to amend, and leave the two applications for trial of preliminary issues to be dealt with after this Decision is given.

3. It is also convenient to point out that in view of the Plaintiffs’ amendment application, it makes obvious sense for the proposed Re-Amended Consolidated Points of Claim (“Re-A-PoC”) to be adopted for the purpose of the Defendants’ strike-out applications.  Indeed, at the hearing, counsel were content to advance their arguments based on the proposed re-amended draft.

4. In addition, the Plaintiffs further provided Voluntary Particulars of their proposed Re-A-PoC.  These particulars will be taken into account in considering the several applications.

5. It is also helpful at this stage to record that as a result of the Defendants’ strike-out applications, the time for filing their respective Defence has been extended until determination of those applications.  It follows therefore that time has not come for the Plaintiffs to file their Reply.  However, counsel for the Plaintiffs had very helpfully provided the Court with a draft Points of Reply for the purpose of the present hearing so that the arguments on the issues could be better focused.

Background

6. The 3 Plaintiffs were members of the New China Hong Kong Group of companies.

7. The 1^st Plaintiff (“NCHKGp”) was incorporated on 8 September 1992.  It was a publicly listed company and the ultimate holding company of the NCHK group of companies.

8. NCHKGp had approximately 50 directors.  They have delegated their executive and management powers to an Executive Committee comprising 5 directors, a legal adviser and a financial adviser.  NCHKGp, through the Executive Committee, exercised ultimate control over all the companies within the group.  The founder and chairman of the NCHK group was one Mr. T.T. Tsui.  Tsui was also the chairman of the Executive Committee.

9. The 2^nd Plaintiff (“NCHKCap”) was incorporated on 23 December 1992, and was a wholly owned subsidiary of NCHKGp.  NCHKCap itself acted as the holding company of a group of subsidiaries, and this group under NCHKCap formed the financial arm of the NCHK group of companies.

10. The 3^rd Plaintiff (“NCHKFin”) was incorporated on 2 June 1989, and was one of the wholly-owned subsidiaries of NCHKCap.

11. All 3 Plaintiffs went into liquidation in 1999. NCHKCap and NCHKFin were both put into creditors’ voluntary liquidation on 25 January 1999.  On 1 March 1999, NCHKGp was also put into creditors’ voluntary liquidation.

12. Liquidators were appointed for the Plaintiffs on their respective dates of liquidation.  They had since begun investigations into the companies’ affairs.

13. The collapse of the NCHK group was said to be one of the largest corporate failures in Hong Kong.  The Plaintiffs were amongst a group of some 36 companies in the New China Group that had gone into liquidation around the same time.

14. The 1^st Defendant (“E&Y”) is a well-known firm of accountants, and was appointed as the auditors for the Plaintiffs for the whole period from their incorporation to their respective liquidation.  In addition to being the auditor, E&Y also occupied the position as the financial adviser on the Executive Committee from February 1993.

15. The 2^nd Defendant (“Wu”) was at all times material to these proceedings an audit partner of E&Y and was appointed chairman of E&Y in or about 2000.  He was a director of NCHKGp from November 1992 to February 1993, and thereafter represented E&Y as the financial adviser on the Executive Committee abovementioned.

16. It is alleged that Wu was actively involved in the management of NCHKGp and the companies under its control, including NCHKCap and NCHKFin.  He was also among the authorised signatories of various bank accounts and securities accounts opened in the names of the Plaintiffs.

17. It is alleged that because of the acts of E&Y in the capacity as financial adviser on the Executive Committee (acting through Wu), E&Y and Wu was each a shadow or de facto director of the Plaintiff companies.

18. In the course of acting as the auditor of the Plaintiffs, E&Y made reports on their audited financial statements for 1993 to 1997 on the following dates:

Year Ended	NCHKGp	NCHKCap	NCHKFin
31.12.93	27.04.94	27.04.94	27.04.94
31.12.94	06.05.95	28.04.95	18.04.95
31.12.95	30.11.96	30.11.96	30.11.96
31.12.96	08.10.98	24.12.97	15.06.98
31.12.97	07.11.98	undated (draft)	undated (draft)

19. Of particular relevance to the present Action are the 1994 and 1995 financial accounts.  The essence of the complaints against E&Y centres on their failings in conducting the audit of the Plaintiffs’ accounts for these 2 years.  These complaints, in turn, have their cause in relation to the manner in which one of the Plaintiffs, NCHKFin, carried on its business.

20. It is alleged that NCHKFin had conducted business in a manner which was imprudent, reckless and/or improper.  In particular, it is alleged that NCHKFin had made substantial advances to 7 debtors (“the 7 Debtors”) which did not own substantial assets, and therefore their ability to repay the advances was doubtful.

21. The 7 Debtors were respectively Dynamic Business Group Limited (“Dynamic”), Eternal March Limited (“Eternal March”), Golden Bridge Holdings Limited (“Golden Bridge”), Grandmet Investment Limited (“Grandmet”), Great Merit Limited (“Great Merit”), Shimada Limited (“Shimada”) and Topview (“Topview”).  Some of these companies were in fact owned or controlled by directors of NCHKGp.

22. At the time of the liquidation of NCHKGp, the 7 Debtors were, in terms of the amount owed, the top 7 debtors of NCHKFin.

23. As at 31 December 1994, it is alleged that of the total sum $716,666,153 advanced by NCHKFin to its clients, $609,690,818 was advanced to the 7 Debtors.  For the following year ending 31 December 1995, of the total sum $982,209,494 advanced, $895,135,177 was advanced to the same 7 Debtors.  It is further pleaded that in the case of Topview alone, as at 31 December 1995 the sum owed to NCHKFin represented 54.75% of the total assets of NCHKFin, and 22% of the total consolidated assets of NCHKGp.

24. The Plaintiffs further allege that insufficient security was taken in respect of the substantial advances to these 7 Debtors.  As a result, in most cases, the only security held by NCHKFin was the securities purchased with the advances.

25. Further still, in respect of the margin loans to the 7 Debtors, margin calls were not made even when the net amount due in respect of such margin loans exceeded the accepted value of the securities.

Plaintiffs’ claims against E&Y

26. The gravamen of the Plaintiffs’ complaint is that E&Y, with knowledge of the above matters, had failed to report such matters to the companies’ management or the Executive Committee or warn them of the same.  But instead, for each of the years in 1994 and 1995, E&Y had given an unqualified opinion that the financial statements of the Plaintiffs represented a true and fair view of the companies’ state of affairs in all material respects.

27. In addition, the Plaintiffs complained that when the respective consolidated accounts for 1994 and 1995 were laid before the Annual General Meetings of the shareholders (which took place respectively on 27 October 1995 and 18 February 1997), E&Y had failed to warn, report or make disclosure of the imprudent, reckless or improper manner in which NCHKFin’s business was being conducted.

28. Apart from the above failings, the Plaintiffs further allege that many aspects of conflict of interest had arisen from the different roles of E&Y and Wu in their dealings with the Plaintiffs.  Such conflict is said to have arisen from the roles of E&Y and Wu as a member of the Executive Committee, as well as being a shadow or de facto director of the Plaintiffs on the one hand, and their role as auditor of the Plaintiff companies on the other.  It is alleged that conflict also arose by reason that E&Y had provided audit and other professional services to a number of companies associated with some of the directors of NCHKGp, and several of the 7 Debtors.  It is said that neither the directors nor shareholders were properly advised or apprised of such conflicts.

29. The Plaintiffs contend that had the various aspects of the conflict been disclosed to the management or the Executive Committee, the latter would have recommended to the shareholders to appoint an independent firm of auditors.  Had the Executive Committee been apprised of the true financial position of NCHKFin as well as its imprudent manner of conducting business, steps would have been taken to obtain security from the margin shortfall debtors; and also if the Executive Committee were not to take such steps, a report by E&Y or Wu to the Securities and Futures Commission would at least have resulted in the SFC insisting that effective measures be taken to rectify the deficiencies.  And should the debtors fail to make up the margin shortfall or provide additional security, their security in the possession of the Plaintiffs would have been realised.

30. According to the Plaintiffs, had timely remedial actions been taken in respect of 1994 shortfall, securities of substantial value held by 5 of the 7 Debtors (whose accounts revealed significant margin shortfall) would have been realized on or before 31 March 1995.  In addition, subsequent advances to these debtors from April 1995 to January 1999 would not have been made.  Thus, it is said that loss was occasioned as a result of the failings of E&Y and Wu, being the loss of the value of the securities which would have been realised, plus the aggregate amount of the further advances which would have been avoided.  Such loss is quantified at $399,742,716.

31. An alternative claim is made on the basis that if proper information had been presented in the 1994 consolidated accounts which were laid before the AGM on 27 October 1995, similar remedial measures would follow to deal with any margin shortfall.  Substantial value would still be recovered in realising the securities by 30 November 1995, and further advances to the margin shortfall debtors would have ceased.  On this basis the loss is quantified at $387,562,842.

32. Similarly, for the 1995 accounts, the loss to the Plaintiffs is quantified at $367,813,463, being the value of the securities which would have been realized on or before 31 March 1996, and the subsequent advances between April 1996 and January 1999 would have been avoided.

33. As a similar alternative, a claim was made on the basis that had proper information of the consolidated accounts been laid before the AGM on 18 February 1997, steps would have been taken and securities of the margin shortfall debtors would have been realized by 28 February 1997.  Again further advances from March 1997 to January 1999 would cease.  The loss on this basis is quantified at $344,652,573.

34. The Plaintiffs contend that the loss were occasioned by E&Y and Wu’s breaches of their common law duties owed to the Plaintiffs as well as breaches of their fiduciary duties as auditors, financial adviser, an officer and shadow or de facto director of the Plaintiffs, and/or as a member of the Executive Committee.  The Plaintiffs claim common law damages for the loss as well as equitable compensation (“the Corporate Debtors Claim”).

35. In addition, NCHKGp claims to be entitled to repayment of $6,400,000, being the retainer and other professional fees paid to E&Y between February 1993 and December 1997 in respect of work performed by Wu prior to the incorporation of NCHKGp in raising funds in Mainland China for establishing the group of companies.  It is contended that any contract for such work was never ratified or approved by NCHKGp or the Executive Committee; that payments were made in breach of the articles of association of the company; that neither Defendants had performed any work for NCHKGp which justified the payments; and that the payments were accepted by E&Y and Wu in breach of their fiduciary duties towards the Plaintiffs.  The Plaintiffs seek recovery of this sum from both Defendants (“the Retainer Fees Claim”).

36. The Plaintiffs further claim against E&Y for the return of $5,055,426 being audit fees paid by NCHKGp, and $2,854,684 paid by NCHKCap between February 1993 and 30 January 1999 (“the Audit Fees Claim”).

Plaintiffs’ claims against Wu

37. The Corporate Debtors Claim and the Retainer Fees claim are also made against Wu.

38. In addition there are 3 claims against Wu in relation to accounts allegedly held by him with NCHKCap (“the Accounts Claims”).

39. The first of these Accounts Claims concerns the transfer of a sum of $11,190,783 to a company allegedly controlled by him in the name of Galvanic Limited (“Galvanic”).  The sum was originally shown to be due from Wu in the account of NCHKCap as at 31 December 1994.  It is alleged that as a result of the transfer, Wu was released from personal liability for the said indebtedness to the detriment of NCHKCap (“the Galvanic-Transfer Claim”).

40. The second concerns a claim of $44,049,295 which is said to be  payments improperly transferred out of Wu’s account with NCHKCap on Wu’s instructions during the period between 30 April 1994 and 31 December 1995.  (“the Payment-Outs Claim”).

41. The third concerns a payment by NCHKCap to Wu of $1,085,724 on 31 March 1995 and further payments totalling $150,093 made between 22 May 1995 and 5 December 1995, ostensibly as payment of interest to him, but allegedly had not been authorised by NCHKCap or members of the board (“the Unauthorised Interest Claim”).

Limitation

42. These proceedings were commenced first against E&Y on 30 July 2004 (HCCL 41 of 2004), and later against Wu on 24 January 2005 (HCCL 2 of 2005).

43. E&Y and Wu both contend that the causes of action for the Corporate Debtors Claim, whether at common law or in equity, have already accrued before 29 July 1998, more than 6 years prior to the issue of the writ.  As against them, they say, these claims are time-barred.  The same applies to the Retainer Fees claim.

44. As for the Audit Fees Claim against E&Y, it is contended that insofar as the payments were made before 29 July 1998, such payments are similarly out of time.

45. Wu also contends that all the Accounts Claims against him are statute-barred.

46. The Plaintiffs’ main contention in response can be summarised thus :

(1)  For the Corporate Debtors Claim, the cause of action in negligence is not constituted until damage is suffered.  NCHKFin’s damage did not arise until the accounts were reckoned and the outstanding indebtedness of the 7 Debtors proved unrecoverable.  The loans to the 7 Debtors were not ascertained to be unrecoverable until NCHKFin’s liquidation, that is, 25 January 1999.

(2)  Further, the duties owed by the Defendants were continuing duties, and breaches of such duties were continuous breaches.  In relation to the 1994 and 1995 Accounts, at least some of the loss was attributable to additional advances made as late as January 1999.  As each of the advances was the result of a separate breach, at least part of the claim is not barred whether in negligence or in contract.

(3)  Accordingly, the causes of action based on breach of common law duties did not first accrue beyond the 6-year primary limitation period under the Limitation Ordinance.

(4)  In any event, even if some aspects of the Plaintiffs’ negligence claims accrued more than 6 years before the commencement of the respective Actions, the Plaintiffs did not have knowledge of the facts relevant to the causes of action.  The secondary limitation period under section 31 of the Ordinance is engaged.

(5)  Further or alternatively, the relevant facts were deliberately concealed from the Plaintiffs by the Defendants.  Section 26(1) applies to postpone the running of the period of limitation.  As a further alternative, the breaches of duties were committed by the Defendants knowingly and deliberately within the meaning of section 26(3).  The Plaintiffs did not discover the concealment or the facts involved in the said breaches of duty until early 2005, that is, after reviewing the documents disclosed pursuant to the section 221 proceedings.

(6)  Insofar as the claim is based on breach of fiduciary duties, such claim is not barred under the Ordinance.  Section 4(7) of the Ordinance has no application and the limitation periods provided for in the Ordinance do not apply by analogy to such a claim.

(7)  Section 20(1) applies and no limitation period is applicable.

Similar arguments based on s.26 and s.20(1) are advanced in respect of the other claims, which will be discussed in more detail below.

Approach

47. The principles governing a strike-out application are well established.  It is not disputed that the jurisdiction to strike out applies only to plain and obvious cases.  I have been reminded by Mr. Scott, S.C. (representing the Plaintiffs) that these applications must not be turned into a trial upon affidavits, and that disputed facts should be taken in favour of the party at the receiving end of the strike-out application, in this case, the Plaintiffs.

48. These principles are not contentious.  What the Defendants have submitted (through Mr. Yu, S.C. for E&Y, and Mr. Strachan for Wu) is that even on the facts as the Plaintiffs have asserted, the Court should still come to a view that the various causes of action are time-barred and liable to be struck out as being frivolous, vexatious or an abuse of the process of the court.  In particular, where the Court comes to the conclusion after full argument that the case is plainly and obviously unsustainable, the Court should not decline to strike it out just because the issues are difficult or complicated: Byjoy Ltd. v. Thorogood Estates[1].

49. Arguments have been advanced in the course of hearing as to the proper approach that the Court should adopt in a strike-out application on the ground of limitation.  The Defendants referred to the observations of Stephenson LJ in Ronex Properties Ltd. v. John Liang Construction Ltd.[2], which I would respectfully adopt as the correct approach :

“There are many cases in which the expiry of the limitation period makes it a waste of time and money to let a plaintiff go on with his action.  But in those cases it may be impossible to say that he has no reasonable cause of action.  The right course is therefore for a defendant to apply to strike out the plaintiffs’ claim as frivolous and vexatious and an abuse of the process of the court, on the ground that it is statute-barred.  Then the plaintiff and the court know that the Statute of Limitations will be pleaded; the defendant can, if necessary, file evidence to that effect; the plaintiff can file evidence of an acknowledgment or concealed fraud or any matter which may show the court that his claim is not vexatious or an abuse of process; and the court will be able to do, in I suspect most cases, what was done in Riches v. Director of Public Prosecutions [1973] 1 W.L.R. 1019: strike out the claim and dismiss the action.”

50. Mr. Scott, while not disagreeing that in a proper case it is appropriate for a defendant to apply to strike out on the ground of limitation, argued that it would be wrong to allow such an application to be used as a means to force the plaintiff to set out his case on affidavit.  This is so, especially, when a defence has not been filed and the defendant’s case on limitation has not been pleaded.  Mr. Scott referred to the following observations of Donaldson LJ (as he then was) in Ronex[3] :

“Authority apart, I would have thought that it was absurd to contend that a writ or third party notice could be struck out as disclosing no cause of action, merely because the defendant may have a defence under the Limitation Acts. …… [It] is trite law that the English Limitation Acts bar the remedy and not the right; and, furthermore, that they do not even have this effect unless and until pleaded.  Even when pleaded, they are subject to various exceptions, such as acknowledgment of a debt or concealed fraud, which can be raised by way of reply. …… Accordingly, authority apart, I would have unhesitatingly dismissed the application to strike out upon this ground.  The answer might well have been different if [the third party in that case] had relied upon any ground other than failure to disclose a reasonable cause of action, but in that event all concerned could have adduced evidence and we would have been able to explore the factual basis upon which it is said that the Limitation Acts do, or as the case may be do not, apply.”

51. It appears to me that what Donaldson LJ warned against is the attempt, when invoking limitation as a ground to strike out, to base the application solely on the plaintiff’s failure to disclose a reasonable cause of action.  However, in a case where the other grounds are relied on and evidence filed, I do not read the learned judge’s observations as in any way comprising the need for the plaintiff to adduce sufficient evidence to support a case either that his cause of action does not accrue outside the relevant limitation period, or that for other reasons provided in the statute, the running of time should be postponed.  The fact that a plaintiff, faced with an argument that his action is time-barred – hence frivolous, vexatious or an abuse of the court process – is required to adduce evidence sufficient to raise the issue of secondary limitation period (or as to time of accrual of his cause of action, as the case may be), is nothing exceptional or exceptionable.  It is but an instance of the general approach that a party who faces a strike-out application on these grounds should adduce sufficient evidence to meet his opponent’s case.  The Court will, having regard to all the evidence, determine whether it is a case that the plaintiff’s cause or causes of action are plainly or obviously time-barred, whether by reference to the primary limitation period, or any applicable secondary limitation under the Ordinance.

52. I do not consider the observations of Shaw LJ in Ronex[4] to be inconsistent with the above.  Shaw LJ’s remark that a strike-out is appropriate “only when it is manifest that there is an answer immediately destructive of whatever claim to relief is made” is, like Donaldson LJ’s, directed against an application based solely on the ground of failure to disclose a reasonable cause of action.

53. Nor do I read the observations of Godfrey J in Lam Kee On v. Lam Hing[5]as casting any doubt on the approach propounded by Stephenson LJ in Ronex.  In the passage of the judgment at p.320, the learned judge was merely cautioning that the court’s power to strike-out should be exercised only in plain and obvious cases, and where there is room for serious argument whether or not the limitation point is a good one, the application to strike out fails.

54. In the present case, all the grounds under Order 18, rule 19 are deployed by the Defendants in their strike-out applications.  The objection against basing the application solely on the ground of no reasonable cause of action is not applicable.  The question for the Court is whether, having regard to all the materials presented, the Plaintiffs’ pleaded causes of action are plainly and obviously time-barred, whether under the primary limitation periods or the secondary limitations as provided for in the Ordinance.

Accrual of Cause of Action – Tort and Contract – Corporate Debtors Claim

55. Section 4(1) of the Limitation Ordinance provides that an action in negligence and an action in contract shall not be brought after the expiration of 6 years from the date on which the cause of action accrued.  A cause of action in negligence accrues on the date on which damage is suffered.  An action founded on contract accrues when the contract is broken.

Recoverability of the Debts

56. On accrual of the cause of action in negligence, Mr. Scott first argued that in the present case there is uncertainty as to when actual damage (as opposed to contingent loss) occurred.  He argued that in relation to loans advanced by the lender, the lender’s loss occurs only when the loans are ascertained to be unrecoverable.  Until then, the lender has not suffered actual loss.  Loss is only contingent.

57. Mr. Scott referred to the draft Limited Scope Review prepared by E&Y (“the draft LSR”), which was a report commissioned by the Securities and Futures Commission (“the SFC”), NCHKFin and NCHKCap in August 1997 to review NCHKFin’s money lending activities and its internal control and risk management systems and procedure.  He submitted that the loans advanced to the 7 Debtors were performing loans, at least as at 31 July 1997.  According to the draft LSR, Mr. P.C. Chiu, the finance director of NCHKGp, was confident about the likelihood of recoverability of the majority of the outstanding balances.  In the same vein, Mr. Scott pointed out that no provisions were made in the Plaintiffs’ financial statements to indicate any impairment of recoverability of the outstanding loans.

58. Mr. Scott argued, therefore, that in relation to the loans advanced to the 7 Debtors, the indebtedness only became unrecoverable when NCHKFin went into liquidation, that is, 25 January 1999.  The cause of action in negligence did not accrue before that date.

59. The general principles on when an action in negligence accrues are set out in the following passages in the judgment of the Court of Final Appeal in Kensland Realty Ltd. (in liq) v. Tai, Tang & Chong (a firm)[6] .  At paragraph 51, Ribeiro PJ said :

“51.    A cause of action in tort accrues when the damage which results from the tortuous conduct is real, as distinct from minimal or negligible¹¹ and is actual, as opposed to purely contingent.¹²  The concept of ‘damage’ is given a broad meaning.  It encompasses damage consisting of ‘any detriment, liability or loss capable of assessment in money terms.’¹³  Where economic loss is involved, it includes loss suffered ‘by payment of money, by transfer of property, by diminution in the value of an asset or by the incurring of a liability.’¹⁴  Whether damage has been incurred in any particular case is a question of fact.¹⁵  Its precise quantification may only be possible at a later date, by which time it may have become more serious, but that does not detract from the earlier accrual of the cause of action.¹⁶  The damage must, however, be recoverable as falling within the measure of damages applicable to the defendant’s wrong in question.¹⁷”

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11. Cartledge v Jopling [1963] AC 758 at 771-772 per Lord Reid and 773-4 per Lord Evershed;  Haward v Fawcetts [2006] 1 WLR 682, §3 per Lord Nicholls.

12. Wardley Australia v State of Western Australia (1992) 175 CLR 514 at 531 per Mason CJ, Dawson, Gaudron and McHugh JJ and 544 per Deane J; Law Society v Sephton [2006] 2 AC 543 at 549-550 per Lord Hoffmann.

13. Forster v Outred [1982] 1 WLR 86 at 94; approved in Nykredit v Edward Erdman (No 2) [1997] 1 WLR 1627 at 1630 per Lord Nicholls.

14. Wardley Australia v State of Western Australia (1992) 175 CLR 514 at 536 per Brennan J; Law Society v Sephton [2006] 2 AC 543 at 549-550 per Lord Hoffmann.

15. UBAF v European American Banking [1984] QB 713; DW Moore v Ferrier [1988] 1 WLR 267 at 278 per Neill LJ; Nykredit v Edward Erdman (No 2) [1997] 1 WLR 1627.

16. DW Moore v Ferrier [1988] 1 WLR 267 at 277 per Neill LJ; Knapp v Ecclesiastical Insurance Group plc [1998] PNLR 172 at 178 and 184 per Hobhouse LJ.

17. First National Commercial Bank plc v Humberts (a firm) [1995] 2 All ER 673; Nykredit v Edward Erdman (No 2) [1997] 1 WLR 1627 at 1630 per Lord Nicholls.

At paragraph 157, McHugh NPJ said :

“157.  …... A plaintiff suffers damage when that person incurs a liability to pay damages, and that is so even though the quantification of the damage is not then ascertainable:  Wardley Australia Ltd v. State of Western Australia (1992) 175 CLR 514 at 536 per Brennan J cited with approval by Lord Nicholls of Birkenhead in Nykredit Mortgage Bank plc v Edward Erdman Group Ltd (No 2) [1997] 1 WLR 1627 at 1634 and by Lord Hoffmann in Law Society v Sephton [2006] 2 AC 543 at 551.  Thus, when a defendant’s negligent breach of a duty of care causes physical harm to the plaintiff or the plaintiff’s property, the defendant incurs a liability to pay damages from that moment.  The time for bringing the plaintiff’s action runs from the moment that the plaintiff suffers damage.  That the damage cannot be quantified, or is not known, at that moment is not relevant.  If the plaintiff acquires a benefit at the same time as acquiring the liability, however, it may not be possible to determine whether the plaintiff has suffered damage until an adverse balance is struck between the benefit and the burden of the liability: Wardley Australia Ltd v State of Western Australia (1992) 175 CLR 514 at 536 per Brennan J.  Similarly, if the damages are not payable until the happening of a further event, the plaintiff’s liability is contingent only and damage is not sustained until the event occurs : Wardley Australia Ltd v State of Western Australia.  Personal guarantees are cases that usually fall within this category.”

60. The first point to note is that the argument now advanced by Mr. Scott departs substantially from the proposed Re-A-PoC.  In the proposed pleading, the Plaintiffs have made clear in the Prayer that they are claiming damages, against both Defendants, under paragraphs 41, 45, 67 and 71.

61. Paragraph 41 sets out how the alleged loss of $399,742,716 is arrived at.[7]  Such loss is the culmination of the matters pleaded in paragraphs 39 and 40.  By claiming to be entitled to damages under paragraph 41, the Plaintiffs are asserting that the loss suffered as a result of the failings of E&Y and/or Wu in respect of the 1994 Accounts consists of: (i) the loss of the opportunity to realise the securities of the respective debtors by 31 March 1995, which would have been worth $134,916,347 as of that date; and (ii) the loss representing the value of the additional advances to the debtors between 1 April 1995 and 25 January 1999 totalling $264,826,369, which could and would have been avoided.

62. Thus, on the Plaintiffs’ pleaded case (in paragraphs 39 to 41), there is no question but that damage has arisen by 31 March 1995 as regards the 1994 Accounts.  By 31 March 1995, the Plaintiffs have already suffered real detriment in having missed the opportunity to realise the debtors’ securities.  Such detriment, as pleaded, is hardly negligible or minimal.  Clearly, subject to the discussion of the point in the next section, the Plaintiffs’ pleaded cause of action culminating in a claim in paragraph 41 has prima facie accrued at the latest on 31 March 1995.[8]

63. Similar analysis applies to the Plaintiffs’ claim under paragraph 45.  Paragraph 45 sets out the claim for damages in respect of the 1994 Accounts on the alternative basis[9].  This claim is based on matters pleaded in paragraphs 42 to 44.  On this alternative basis, the Plaintiffs’ loss consists of: (i) the loss occasioned by missing the opportunity to realise the securities by 30 November 1995, which would have been worth $98,033,800 as of that date; and (ii) the loss representing the value of the additional advances to the debtors between 1 December 1995 and 25 January 1999 totalling $289,529,042, which could and would have been avoided.

64. For the same reason discussed in the preceding paragraph, the cause of action culminating in the claim in paragraph 45 has prima facie accrued at the latest on 30 November 1995.

65. The same applies also to the claims for damages under paragraphs 67 and 71.  These are claims against the Defendants in respect of the 1995 Accounts, put on two bases in the alternative.  For the same reason as above, the Plaintiffs’ pleaded causes of action regarding the 1995 Accounts would have accrued, prima facie, respectively on 31 March 1996[10] and 28 February 1997[11].

66. But even if the Plaintiffs were allowed to depart from the claim as formulated in paragraphs 41, 45, 67 and 71, on the basis of the facts set out in the Re-A-PoC it is still difficult to see how the Plaintiffs can mount an arguable case that damage is not suffered until the debts were ascertained to be irrecoverable on liquidation.  It is the Plaintiffs’ case that the indebtedness of the 7 Debtors were “bad debts in the accounts of NCHKFin”.  It is further asserted that the true financial position of NCHKFin was that bad debts had accrued to the order of $284,573,198 as at 31 December 1994, and $598,923,558 as at 31 December 1995.  As Mr. Yu has pointed out, it is the foundation of the Plaintiffs’ case in negligence that the debtors’ covenants for repayment were worthless.  It is the debtors’ inability to discharge the indebtedness that has given rise to the Plaintiffs’ complaint against the Defendants for failure to warn the management against the imprudent manner of NCHKFin’s business and the necessity to make substantial provision for the bad debts, and/or reported the matter to other proper authorities.

67. For the Plaintiffs now to advance a case on the basis that the borrowings of the 7 Debtors were actually performing loans would not only be inconsistent with the factual assertions presently pleaded, the Plaintiffs would essentially be advancing a fundamentally different case against the Defendants.  The Plaintiffs would, in essence, be advancing a case that notwithstanding the fact that the debtors were good on their covenants to repay, it is still a breach of duty on the part of the Defendants not to warn or report the manner in which the business of NCHKFin was being conducted.  But just how such a duty arises or the way it is breached is not immediately discernible from the case as pleaded.

68. I do not propose to recast the case for the Plaintiffs.  Suffice it for me to say that on the basis of the pleading as presently drafted, I do not think it is open to Mr. Scott to graft onto it an argument that the Plaintiffs did not suffer actual loss on the basis of the supposed uncertainty as to the recoverability (or un-recoverability) of the loans until liquidation of the Plaintiffs.

69. Furthermore, as the foundation of the Plaintiffs’ pleaded case is that the borrowers’ repayment covenants were worthless, any further advances to the borrowers would be a loss immediately sustained the moment such an advance is made.  Clearly, for every such advance, the lenders are financially worse off.  This is a scenario analogous to that of the lender’s loss in Nykredit Mortgage Bank Plc v. Edward Erdman Ltd. (No.2)[12], who had advanced money on the strength of an overvalued security.  In such a case, where the borrower had defaulted at once, their lordships were of the view that loss was suffered at once when the loan transaction was entered into, rather than at a later time when the loss became crystallised upon realisation of the security[13].  Therefore, on the basis of the case as pleaded, it would not be open to the Plaintiffs to contend that any loss would depend upon recoverability of the indebtedness.

70. It must, therefore, follow that Mr. Scott’s argument that the nature of the loss is merely contingent and not actual, also fails.  The discussion as to contingent loss in the case of Law Society v. Sephton & Co.[14] does not arise for consideration.

Continuing Duty, Continuing Breach

71. The essence of this argument is that the duty owed by the Defendants is a continuing duty so that every further advance amounts to a fresh breach of duty, both in contract and in tort.  Of relevance to E&Y are the advances made between July 1998 and January 1999 which, on this argument, would be within the 6-year period before the commencement of the Action against them.  For Wu, the relevant advances are those allegedly made on 25 January 1999.

72. In my view the characterisation of the duty as a continuing duty is untenable.  As Mr. Yu has submitted, the essence of the duty in the position of the Defendants is to exercise reasonable care and skill when performing their audit work and in relation to the views expressed in the audit reports.  Any breach of duties arises from failures to exercise such care or skill, and a breach is committed the moment when such failures occur.

73. The question when a breach takes place must be distinguished from when the resulting damage arises.  In the present case, to say that every further advance amounts to a fresh breach is to confuse the two distinct concepts.

74. More specifically, it is the Plaintiffs’ pleaded case that the Defendants have committed breaches of duties at specific points in time.  In relation to the 1994 Accounts, the allegation is that the breach by failing to warn or report occurred at the latest by the end of February 1995.  As an alternative, it is alleged that the breach lies in the failure to present in the audit reports the true financial position of the NCHKFin.  Such breach would have occurred at the time when E&Y signed the accounts and gave their unqualified opinion in respect each of the Plaintiffs, that is, 6 May 1995 in the case of NCHKGp; 28 April 1995 in the case of NCHKCap; and 18 April 1995 in the case of NCHKFin.  In any event, such breach would have occurred at the latest when the reports were laid before the AGM of NCHKGp on 27 October 1995.

75. In relation to the 1995 Accounts, the relevant breaches are said to have occurred at the latest by February 1996, or alternatively, by the time of the following AGM on 18 February 1997.

76. The argument that every further advance gives rise to a separate breach and a separate cause of action is a substantial departure from the pleaded case.  Without a properly formulated pleading on the point, such departure adds an additional hurdle in the Plaintiffs’ way.

Conclusion on Accrual of Cause of Action – Tort and Contract

77. For the foregoing reasons, I take the view (subject to any argument on application of secondary limitation) that the Plaintiffs’ causes of action in contract, in relation to the 1994 Accounts, must prima facie have accrued by the end of February 1995 or alternatively by 27 October 1995; and in relation to the 1995 Accounts, by the end of February 1996 or alternatively by 18 February 1997.

78. I also take the view that the Plaintiffs’ causes of action in negligence, in relation to the 1994 Accounts, must have already accrued by 31 March 1995 or alternatively by 30 November 1995; and in relation to the 1995 Accounts, by 31 March 1996 or alternatively by 28 February 1997.

79. In each case, the causes of action in contract and tort have accrued more than 6 years before the commencement of the respective Actions against the Defendants.

Knowledge under Section 31– Corporate Debtors Claim

80. The Plaintiffs invoke section 31 of the Limitation Ordinance.  That provision is relevant only to negligence.  Section 31(1) provides :

“(1)    This section applies to any action for damages for negligence, other than one to which section 27 applies, where the earliest date on which the plaintiff or any person in whom the cause of action was vested before him first had both –

(a)  the knowledge required for bringing an action for damages in respect of the relevant damage; and

(b)  a right to bring such an action,

(referred to in this section as the ‘date of knowledge’) falls after the date on which the cause of action accrued.”

81. Where section 31(1) applies, the limitation period provided for in section 4 will not apply: section 31(2).  Instead, it becomes permissible to bring the action 3 years from the date of knowledge, if that period expires later than 6 years from the date on which the cause of action accrues: section 31(3).

82. The section focuses on the knowledge of the claimant.  Two important considerations arise:  First, to what must the knowledge relate in order to bring into play the operation of section 31; and secondly, for corporate bodies such as the Plaintiffs, whose knowledge would constitute the relevant knowledge.

What knowledge? – Section 31(5)

83. Section 31(5) provides :

“(5)    In subsection (1) ‘the knowledge required for bringing an action for damages in respect of the relevant damage’ means knowledge –

(a)  of such facts about the damage in respect of which damages are claimed as would lead a reasonable person who had suffered such damage to consider it sufficiently serious to justify his instituting proceedings for damages against a defendant who did not dispute liability and was able to satisfy a judgment;

(b)  that the damage was attributable in whole or in part to the act or omission which is alleged to constitute negligence;

(c)  ……

(d)  ……”

84. Section 31(6) then provides that knowledge that any acts or omissions did or did not, as a matter of law, involve negligence is irrelevant.  Section 31(7) provides that a person’s knowledge includes knowledge which he might reasonably have been expected to acquire from facts ascertainable by him, with assistance of expert advice where reasonable to do so.

85. In Kensland, Ribeiro PJ explained the operation of each of the elements in section 31.  I would venture to highlight a few principles that are of relevance to our present case :

(1)  The knowledge which sets time running under section 31 consists both of the plaintiff’s actual knowledge and knowledge which is imputed to him (para. 68);

(2)  Section 31 is concerned with the plaintiff’s knowledge relating to the damage incurred and not with the defendant’s liability.  The section has nothing to do with whether the plaintiff knew that the defendant’s conduct amounted in law to negligence or that he had a good claim against the defendant (paras. 73, 74);

(3)  Section 31(5)(a) establishes a low threshold.  The knowledge required to set time running is likely to be satisfied where a plaintiff becomes aware of some actual damage, provided that it is not so trivial as to be not worth bothering about (para. 79);

(4)  Section 31 does not require the plaintiff to have detailed knowledge of all the acts and omissions set out in the particulars of his pleadings as constituting negligence.  What matters is the plaintiff’s knowledge of what lies at the core of the pleaded case.  The requisite knowledge is not of the acts or omissions as pleaded but knowledge of the facts constituting “the essence of the complaint of negligence” distilled from such pleading (paras. 103, 105);

(5)  Knowledge of the “essence” of the act or omission is gained “the moment at which the plaintiff knows enough to make it reasonable for him to begin to investigate whether or not he has a case against the defendant”: Hoffmann LJ in Broadley v. Guy Clapham & Co.[15] (para. 107);

(6)  The plaintiff must be shown to have actual or imputed knowledge of all the facts which are essential to the complaint which is eventually formulated as his negligence claim (para. 108).

86. Both Ribeiro PJ (at para. 67) and McHugh NPJ (at para. 177) made the point that where the plaintiff invokes section 31, the onus is on him to prove that he did not have knowledge of one or more of the matters in section 31(5) until a date within the three-year period immediately preceding the issue of the writ.

87. What are the matters essential to the Plaintiffs’ complaint against the Defendants in negligence in the present case?  Despite the many details (including those set out in the draft Reply), the essence of the Plaintiffs’ complaint in respect of the 1994 and 1995 Accounts is that the Defendants had wrongfully given unqualified opinion in respect of both sets of accounts; and in the broader context had failed to give warning as to the imprudent or reckless manner in which NCHKFin was conducting its business, thus causing the Plaintiffs to become unable to realise the securities, but instead have made further advances which could have been avoided.  The essence of this complaint, as I see it, will involve knowledge of matters that need not be more extensive than the following essential facts (“the Essential Facts”):

(i)   that the business of NCHKFin was being conducted in an imprudent, reckless or improper manner, and more specifically, that substantial indebtedness had accrued by the 7 Debtors, who had not provided sufficient security and who did not otherwise possess substantial assets;

(ii) that unqualified audits reports were signed by the Defendants which contain no advice as to the need to make substantial provision for the outstanding loans;

(iii)   that as of the various points in time (see discussion as to accrual of causes of action above), the Defendants did not give any warning or make any report against the imprudent manner of the business of NCHKFin;

(iv)  that the securities held from these debtors were not realised and/or that further advances were, instead, continued to be made to some of them;

(v)    that the making of the further advances and/or the inaction with respect to realisation of the securities were attributable to the Defendants’ failure to give or make timely warning and report.

88. Before discussion of the evidence as to whether the Plaintiffs possessed knowledge of these Essential Facts, it is necessary to consider the rules of attribution with regard to knowledge of corporate plaintiffs.

Whose knowledge? – Rules of Attribution

89. In Meridian Global Funds Management Asia Ltd. v. Securities Commission[16], the Privy Council stated that for the purpose of determining the rights and obligations of a company, one begins by ascertaining the primary rules of attribution with reference to the company’s constitution and the rules implied by company law.  These primary rules are built upon by adopting principles of agency.  In addition, there may still be circumstances where the court would have to fashion a special rule of attribution, for instance, as a matter of interpretation of a particular statute.  This is what Lord Hoffman said[17] :

“The company’s primary rules of attribution will generally be found in its constitution, typically the articles of association, …… There are also primary rules of attribution which are not expressly stated in the articles but implied by company law.

These primary rules of attribution are obviously not enough to enable a company to go out into the world and do business.  Not every act on behalf of the company could be expected to be the subject of a resolution of the board or a unanimous decision of the shareholders.  The company therefore builds upon the primary rules of attribution by using general rules of attribution which are equally available to natural persons, namely the principles of agency.  It will appoint servants and agents whose acts, by a combination of the general principles of agency and the company’s primary rules of attribution, count as the acts of the company.  ……

The company’s primary rules of attribution together with the general principles of agency, …… are usually sufficient to enable one to determine its rights and obligations.  ……

…… [In exceptional cases] the court must fashion a special rule of attribution for the particular substantive rule.  This is always a matter of interpretation: given that it was intended to apply to a company, how was it intended to apply?  Whose act (or knowledge, or state of mind) was for this purpose intended to count as the act etc. of the company ?  One finds the answer to this question by applying the usual cannons of interpretation, taking into account the language of the rule (if it is a statute) and its content and policy.”

90. The general rules of imputing to a principal knowledge acquired by an agent is summarised as follows in Bowstead and Reynolds on Agency[18]:

“    Knowledge Acquired Through Agent

(1)  The law may impute to a principal knowledge relating to the subject-matter of the agency which the agent acquires while acting within the scope of his authority.

(2)  Where an agent is authorised to enter into a transaction in which his own knowledge is material, knowledge which he acquired outside the scope of his authority may also be imputed to the principal.

(3)  ……

(4)  Knowledge is not attributed to the principal where it is acquired by an agent who is defrauding the principal in the same transaction.”

91. The above principles were further explained by Leggatt LJ in R. v. Rozeik[19].  The learned judge affirmed the application of the general agency principle with regard to attribution of knowledge when he said[20] :

“Whether or not a company is fixed with the knowledge acquired by an employee or officer will depend on the circumstances.  It is necessary first to identify whether the individual in question has the requisite status and authority in relation to the particular act or omission in point. ….  An employee who acts for the company within the scope of his employment will usually bind the company since he is the company for the purpose of the transaction in question …...”

  The learned judge went on to explain the “fraud exception” when the company is the victim of the fraud[21] :

“….. But different considerations apply where the company is the victim, and the employee’s activities have caused or assisted the company to suffer loss.  The company will not be fixed with knowledge where the employee or officer has been defrauding it …… 

In such a case knowledge of a manager is not to be imputed to his employers if the manager is acting in fraud of his employers and the knowledge which he has is relevant to the fraud. ….  The reason why the company is not visited with the manager’s knowledge is that the same individual cannot both be party to the deception and represent the company for the purpose of its being deceived.  Unless therefore it was proved that the managers were party to the fraud, with the result that their knowledge can be disregarded, their knowledge must be imputed to the companies ……”

92. First, in the context of section 31 of the Limitation Ordinance, I believe there is no room for doubt that the provision is meant to apply not only to individuals, but also to companies.  Section 31 is modelled on section 14A of the Limitation Act 1980, which was introduced by the Latent Damage Act 1986 to reverse the effect of the decision of Pirelli General Cable Works v. Oscar Faber & Partners[22] for cases involving latent damage.  Insofar as knowledge of corporate bodies are relevant for the purpose of section 31, there appears nothing in the provision – whether as a matter of policy or interpretation of the language – to require the general rules of attribution to be displaced or adjusted.

93. As apparent from the above, there are two aspects of the general agency principles which are of special relevance to the present case.  One is that in order for an officer’s knowledge to be imputed to the company, the person concerned must have the requisite status and he must be acting within the scope of his authority.  The other is what may be conveniently called the “fraud exception” when knowledge of the person concerned is not imputed to the company by reason that his act, in respect of which the knowledge is relevant, is a fraud on the company.

The “Fraud Exception” – the Authorities

94. Mr. Scott submitted that knowledge acquired by a director does not necessarily become the knowledge of the company of which he is a director.  Where directors are acting in breach of their duties to the company, it would be contrary to justice and common sense to treat the knowledge of such person as that of the company.  For these propositions, he relied on the following authorities: Re Hampshire Land Co.[23]; JC Houghton and Co. v. Nothard, Lowe and Wills Ltd.[24]; Arab Bank plc v. Zurich Insurance Co.[25] and China Everbright-IHD Pacific Ltd. v. Ch’ng Poh[26], and also Moore Stephens (a firm) v. Stone & Rolls Limited (in liq)[27] (the last of which is a recent decision delivered by the English Court of Appeal, and further written submissions have been received from the parties on that authority after the hearing).

95. I will first consider JC Houghton and Co. v. Nothard, Lowe and Wills Ltd.  Mr. Scott made the point that the operation of the “fraud exception” is not confined to cases where the agent or officer of the company is guilty of actual fraud.  He contended that the exception extends to cases where the agent or officer is guilty of breach of duty or delinquency, relying on the following passage from the speech of Viscount Sumner[28] in support:

“…… On the other hand, the Lowes knew everything all along, and if by their keeping the matter to themselves, their company could be estopped from denying that it was bound by the 70 per cent. arrangement, they would have relieved themselves and Mr. Prescott from personal liability under their guarantee at the sacrifice of their company’s interests.  Their silence was accordingly a notable breach of duty.  It has long been recognized that it would be contrary to justice and common sense to treat the knowledge of such persons as that of their company, as if one were to assume that they would make a clean breast of their delinquency.  Hence, for the purpose of estopping the company, some knowledge other than theirs has to be brought home to other directors, who can be presumed not to be concerned to suppress it.”

96. JC Houghton and Co. concerns 2 directors (the Lowes) of the respondent company who entered into arrangement with a fruit trade broker.  The essence of the arrangement was that the broker should make certain advances to another company belonging to the 2 directors (N. Co.) in return for a pledge that the broker would receive all the apples consigned to the respondent and be allowed to deduct parts of the proceeds in reduction of the advances.  Against these facts, the House of Lords held that the respondent was not bound by the arrangement as it was not a transaction which the company had authorised; and that the respondent was not estopped from denying the existence of the arrangement by the knowledge of the Lowes as they were parties to the wrong done to the company.

97. It is clear from the facts of the case that the breach of duty or delinquency referred to was in fact an act amounting to equitable fraud on the company.  Viscount Dunedin said[29] :

“…… It may be assumed that the knowledge of directors is in ordinary circumstances the knowledge of the company. …...   But what if the knowledge of the director is the knowledge of a director who is himself particeps criminis, that is, if the knowledge of an infringement of the right of the company is only brought home to the man who himself was the artificer of such infringement ? ...…”

After referring to Re Hampshire Land Co.[30] and Lacey v. Hill[31], his Lordship said :

“This law, in my view, applies to the present case.  The only knowledge brought home to the company is through the Lowes and the secretary.  They were all parties to the arrangement, which was a fraud on the true interests of the company.”  (emphasis added)

98. The next authority is Arab Bank Plc v. Zurich Insurance[32].  That was a case involving actual dishonesty and fraudulent conduct of the managing director.  The reference to “wrongdoing” to which my attention was drawn[33] was a recitation of counsel’s submission.  It does not appear that the judgment of Rix J directly deals with the scope of the application of the “fraud-exception”.

99. Re Hampshire Land Co., was a case concerning a borrowing by a company from a building society.  The borrowing was unauthorised by the company because the relevant resolution was defective.  The question in that case was whether the knowledge of one Mr. Wills (the secretary common to both the company and the society) as to the irregularity should be imputed to the society, so as to preclude the society from recovering the loan.

100. In his judgment, Vaughan Williams J first found that it was not the duty of the secretary, as officer of the society, to receive notice of the irregularity.  Further, the learned judge said[34] :

“……. The case is very much more like the one which [counsel for the society] had to admit was an exception to the general rule that they sought to lay down, for they admitted that if Wills had been guilty of a fraud, the personal knowledge of Wills of the fraud that had had committed upon the company would not have been knowledge of the society of the facts constituting that fraud; because common sense at once leads one to the conclusion that it would be impossible to infer that the duty, either of giving or receiving notice, will be fulfilled where the common agent is himself guilty of fraud.  It seems to me that if you assume here that Mr. Wills was guilty of irregularity – a breach of duty in respect of these transactions – the same inference is to be drawn as if he had been guilty of fraud.  I do not know, I am sure, whether he was guilty of actual fraud; but whether his conduct amounted to fraud or to breach of duty, I decline to hold that his knowledge of his own fraud or of his own breach of duty is, under the circumstances, the knowledge of the company.”

101. My reading of Re Hampshire Land Co. is that the case is not really concerned with the question of attribution or the exclusion of an agent’s knowledge to his own principal, but whether the knowledge of an agent for one principal could be imputed to another of whom he is also an agent.  It is in relation to the situation of common agency that the question of exclusion, based on fraud or irregularity, was discussed.

102. However, it appears from the judgments in Moore Stephens v. Stone & Rolls Ltd. that Re Hampshire Land Co. was taken as laying down the principle regarding the operation of the “fraud exception”.  Moore Stephens v. Stone & Rolls Ltd. involved a claim brought by the liquidators against the company’s auditors.  The company in question was a one-man company, controlled and run by one Mr. Stojevic.  The company was used by Stojevic as a vehicle for defrauding a Czech bank (“KB”).  KB succeeded in its claim against the company.  The liquidators sued the former auditors for failure to expose the fraud.  The auditors invoked the maxim ex turpi causa non oritur actio, arguing (but unsuccessfully) that the company’s loss was caused by its own fraud.  At issue was whether Stojevic’s fraud can properly be attributed to the company.  The judges discussed the Hampshire Land principle in some detail.

103. At paragraph 39, Rimer LJ said :

“The essence of the principle is therefore that a company will not have attributed to it knowledge of a fraud when fraud is being practised on the company itself.  The law does not attribute knowledge of a deception to the person who is being deceived.  Why should it make such an attribution when its agent engaged on deceiving would not himself disclose his perfidy?”

At paragraph 48, the learned judge said :

“The critical question is this: should the court regard the company as villain or victim?  If it is to be regarded as the victim of Mr Stojevic’s dishonesty, the effect of the Hampshire Land principle is that his dishonesty will not be attributed to it, it will not be tainted with it …… ”

At paragraph 54 :

“...… in considering the range of the Hampshire Land principle, a common sense approach is required.  The task is to consider at whom the fraud is directed.  If it is directed at the company, the exception will apply.”

At paragraph 73 :

“In these circumstances, I am of the opinion that this is not a case in which the Hampshire Land principle has any application.  The essence of the case is that it is one in which the sole directing mind and will of the company procured it to enter into fraudulent transactions with banks.  It was the company that dealt with the banks and, so it seems to me, clear that, as between the company and the banks, the principles of attribution require the dishonesty of the company’s sole human agent to be imputed to the company. …… It is not therefore a case in which the company was the target, or the victim, of its agent’s dishonesty.  It was itself the fraudster, it was not the target of the fraud …… ”

104. Relying on Moore Stephens, Mr. Scott submitted that in the present case, the Plaintiffs were, or at least arguably so, victims of the wrongdoing because it was the Plaintiffs’ assets which were lost as a result of the wrongdoing.  Knowledge of the individual directors should not be attributed to the companies.

105. On the other hand, Mr. Yu urged me to read the decision in context.  The case was one of fraud and it does not support a proposition that the Hampshire Land principle has wider application to wrongdoings falling short of equitable fraud against the company.

106. Mr. Yu further submitted, which I accept, that Moore Stephens was essentially concerned with the fraud of the sole controlling director of the company which had been practised against the victim bank, KB.  It was not a case of a company itself being an innocent victim of deception by its officers.  As it is apparent from paragraph 73 of Rimer LJ’s judgment, the company was party to the fraud, not an innocent victim of it[35].

107. Having considered the authorities referred to above, and in particular, the statement of the principle by Leggatt LJ in R. v. Rozeik, it seems to me unnecessary to define the exclusionary rule under the “fraud exception” by reference to fraud or equitable fraud, or breach of duties, or delinquency, or some other shades of irregularity or wrongdoing.  As the authorities have shown, the application of the exclusionary rule is, to a large extent, based on degree and commonsense.  As I understand it, essentially, the rule operates to prevent an officer’s knowledge from being imputed to the company if the relevant knowledge is that pertains to the officer’s wrongful act directed against the company and of which the company itself is the victim.

108. Mr. Scott also referred to passages in Yuen J’s judgment in China Everbright-IHD Pacific Ltd. v. Ch’ng Poh[36], and argued that where there was a constant turnover in membership of the board, knowledge of one or more directors should not readily be attributed to the company.  However, as Mr. Yu pointed out, the passages in the judgment are not concerned with the principles of attribution, but rather whether the company, with reasonable diligence, could have discovered the fraud.

Evidence of Knowledge

109. Before I turn to discuss the evidence, I wish to make a preliminary observation.  When a plaintiff invokes section 31, as in the present case, it is he who bears the onus of setting up a case that he does not have knowledge of an essential fact so that the limitation period should be postponed[37].  It is therefore incumbent upon the Plaintiffs to identify clearly any such fact(s) in respect of which they say knowledge is wanting.  Only when that is done would the Court be in a position to assess, on all the materials available, whether it is at least arguable that the Plaintiffs did not acquire knowledge of the facts relevant to their causes of action at the time in question.  In this regard, I think it is a fair criticism by the Defendants that the Plaintiffs have failed to pinpoint the critical fact(s), as distinct from matters of detail, which they contend were unknown to them at the material time. 

110. I now turn to examine the available evidence in the present case.  The Defendants have drawn my attention to the composition of the Executive Committee of NCHKGp, and the respective boards of directors of NCHKCap and NCHKFin between 1993 and 1998.  As earlier noted, the executive and management powers of NCHKGp have been delegated to the Executive Committee, and among its members, Mr. P.C. Chiu has been the finance director on the committee from 18 February 1993 up to the companies’ liquidation.  On the other hand, the number of directors on the boards of NCHKCap and NCHKFin is relatively small.  Among the directors, the following are common to both NCHKCap and NCHKFin:  Franco Ho[38], William Kwong[39], Anthony Wong[40] and Patrick Wong[41].

111. In addition, there was a Credit Committee comprising P.C. Chiu, Anthony Wong, Franco Ho and William Kwong.  The Credit Committee was charged specifically with monitoring the operations and credit risks of the group, and approving all trading credits granted to clients.

112. The Defendants invited me to have specific regard to the following matters which, they say, show conclusively the Plaintiffs’ knowledge of the matters now complained of.

113. The first are 2 memoranda from P.C. Chiu to William Kwong, dated 4 January and 6 June 1995.  In them, P.C. Chiu set out the outstanding indebtedness, among others, of 6 of the 7 Debtors (with the exception of Eternal March which was a non-securities trading client).  It is clear from the information that the outstanding indebtedness vastly exceeded the market value of the securities, and in some cases, also exceeded the approved credit limit.  In the latter memorandum, P.C. Chiu wrote :

“I like to draw your special attention on the debt level that it is higher than we can tolerate and it also increases the Company’s exposure on doubtful debts.”

114. There is also the E&Y’s “management letter” dated 15 March 1995 to the board of NCHKCap.  The letter set out the deficiencies in the accounting systems and internal controls of the group as was observed during their interim audit for the period ending 31 December 1994.  Among the weaknesses identified was a warning

“…… that several corporate customers had failed to deposit the required margin when they were called upon.  In addition, customers’ securities and open contacts were not sold or liquidated as a result of the shortfall in margin.”

115. Further, there are the 2 draft LSRs (one of which has already been referred to earlier).  They were produced by E&Y pursuant to their engagement to conduct a review of NCHKFin’s money lending activities.  It is an extensive review and I do not propose to set out in detail the contents of the 2 reports.  It suffices to note that in section 6.1 of the 1^st draft LSRs, there was a detailed review of the credit application, the vetting, approval and monitoring procedures for the loans extended to a number of the securities trading clients with balance of more than $25 million as at 31 July 1997.  Six of the 7 Debtors were among those whose margin financing position was individually analysed, and they each showed that their outstanding positions were substantially under-secured.  The following section in the report (section 6.2) contains a similar review of the non-securities trading clients with outstanding loan balances of more than $25 million.  Among them was Eternal March with an outstanding balance over $75 million.  Other than personal guarantees, no specific security was identified.

116. The Executive Summary in the 1st LSR contains the following observation :

“1.4 Our review has highlighted a number of issues, all of which are accepted by NCHK and are being addressed.  They key ones being :

(a)  Especially in the light of the recent market crash, the Group as a whole is exposed to a very real risk of default on some of its outstanding margin financing activities ……;

(b)  …… The debt provisions are hard to assess given the fact that NCHK do have verbal agreement from most, if not all, of their outstanding debtors as regards repayment.  Our concern stems from the recent market volatility and whether some of the debtors retain the ability to repay.  The provision has been suggested against two specific debts being, Golden Bridge and Great Merit, although in essence it should be seen as more of a general provision to address potential credit losses against the entire book.”

117. The 2^nd draft LSR contains the up-dated position with respect to the various debtors.

118. In addition, NCHKFin produced monthly statements and they were available to the management.  The statements, according to the liquidators’ own evidence, show that “the 7 Debtors were consistently short on security and there was no or no adequate margin”.  These monthly statements had been examined by the liquidators upon their appointment in 1999.

119. The correspondence shows that Patrick Wong and P.C. Chiu were closely involved in E&Y’s preparation of the LSRs, as well as liaising with the SFC in relation to the review.

120. On the basis of the contents of draft LSRs, I have no difficulty accepting Mr. Mills’ remarks (one of E&Y’s partners) that those documents have clearly revealed various aspects of concern in NCHKFin’s business, including, that the loans made by NCHKFin comprised a material part of the NCHKGp’s net current assets as at 31 July 1997; that a large part of those assets represented loans made by NCHKFin to a small number of major clients (including the 7 Debtors), which loans were substantially under-collateralised; that in many cases, the only collateral for margin financing was the securities purchased with it and the market value of the collateral was far less than the outstanding balance of the loans; that the margin call procedures were discretionary and subject to Management override, and were considered ineffective and inadequate for NCHKFin to manage its margin finance business.

121. The 2 LSRs were commissioned by NCHKCap and NCHKFin.  According to the LSRs, Patrick Wong’s appointment as a director for both NCHKCap and NCHKFin, had strengthened the senior management, and he had devoted a lot of time and effort in reviewing the system of internal control within the group.  He had obviously played an important role in the review.  There can be no doubt that his knowledge derived from his close involvement must be knowledge of the respective companies.

122. I do not think it can be suggested – in my view not even arguably – that the reports were not known to NCHKCap and NCHKFin.  In any event, it is not a question whether these reports actually came to the knowledge of the directors.  Knowledge of these reports would clearly have been imputed to the respective boards by virtue of section 31(7). 

123. Further, as the evidence shows, all the matters stated in the reports were plainly known to the finance director of the Executive Committee, P.C. Chiu, who was also a member of the Credit Committee.  He himself was the author of the 2 memoranda to William Kwong in 1995.

124. As would be remembered, the Executive Committee was delegated with powers of management of the group business, whereas the Credit Committee was specifically charged with monitoring the credit risks of the group.  In such positions, P.C. Chiu’s knowledge of the matters stated in the reports (in particular, in relation to matters concerning the credit positions of the various clients of NCHKFin, including, relevantly, the 7 Debtors) was plainly attributable to the Executive Committee and the Credit Committee.  As such, I do not think it is arguable that knowledge acquired by P.C. Chiu was not knowledge of NCHKGp.

125. I do not think the fact that NCHKGp has a board of 50 members and not each of them had actual knowledge of such matters; or that 2 of the Executive Committee members (Messrs. Tian and Yu) did not attend meetings or take any active part in the management of the group’s business; or even the fact that some shareholders had written to the chairman to complain about lack of corporate information from the Executive Committee to the board of directors[42], is any answer to the point.  The question is not whether some of those in the management might not have the requisite knowledge, rather the question in the present case is whether by operation of the general rules of attribution, the knowledge acquired by those specifically charged with monitoring the credit positions of the clients should be imputed to the company.  My view on this question is a clear affirmative.

126. In light of the discussion above, I think it is beyond argument that prior to the liquidation of the companies, the first of the Essential Facts – that the business of NCHKFin was being conducted in an imprudent or improper manner, and more specifically, that substantial indebtedness had accrued by the 7 Debtors, who had not provided sufficient security and who did not otherwise possess substantial assets – must have been within the knowledge (actual or imputed under section 31(7)) of NCHKCap, NCHKFin, the Credit Committee, the Executive Committee, and NCHKGp.

127. Furthermore, it must also be known to them, or they must be taken to know by reason of section 31(7), the fact that E&Y had given unqualified audit reports and that no advice had been given as to making provisions for the loans to the 7 Debtors.  It must further be known to them as a fact, or they must again be deemed to know, that the securities held from these debtors had not been realised at the various points in time in question, and that further advances were continued to be made to these debtors.  I do not see any of the Essential Facts could arguably be unknown to them (in the section 31 sense), before liquidation.

128. This is not a case where the “fraud exception” applies to prevent the knowledge of one or more directors from being attributed to NCHKCap, NCHKFin, the Credit Committee, the Executive Committee or NCHKGp.  Clearly, neither of the 2 key figures, P.C. Chiu and Patrick Wong have been accused of having conducted themselves fraudulently, dishonestly or have otherwise committed breaches of duties against the respective companies.  Also insofar as the knowledge acquired from the LSRs by the boards of NCHKCap and NCHKFin is concerned, apart from William Kwong (in relation to whom there will be further discussion in this judgment) none of Franco Ho, Anthony Wong, and others making up the boards have been accused of any wrongdoing whatsoever.

129. I have been referred to what is called the “Sandy Black Report”.  Mr. Black was engaged by the liquidators to review the E&Y working papers to see if there was evidence of negligence and to help formulate the claims against the Defendants.  An extensive report was produced.

130. In the discussion of the role of Wu, the report highlights[43] the fact that Wu had close relationships with the chairman, T.T. Tsui, and William Kwong.  Allegedly, because of the relationship, certain unusual transactions involving Wu were processed through the accounts of NCHKFin and NCHKCap.  However, insofar as the transactions involving the 7 Debtors are concerned, there is nothing to suggest that William Kwong acted in breach of duty, let alone dishonestly or fraudulently.  On the contrary, the Re-A-PoC refers to a memorandum from William Kwong in January 1995, alerting Wu to the margin shortfalls of Golden Bridge and Topview[44].

131. Taking all matters into account, I do not think it is open to the Plaintiffs to argue that NCHKCap, NCHKFin or NCHKGp did not have actual or imputed knowledge of all the Essential Facts pertaining to what the Plaintiffs now complain of regarding their Corporate Debtors Claim.

132. In any event, upon the appointment of the liquidators in early 1999, they would be fixed with knowledge, actual or imputed, of all the Essential Facts.  As the Defendants have submitted, the liquidators have admitted that they had knowledge of the state of NCHKFin’s account and also the under-collateralisation of the loans soon after their appointment.  Given the low threshold for triggering the application of section 31(5)(a), the Plaintiffs have clearly failed to set up an arguable case that one or more of those Essential Facts were unknown to or could not reasonably have been ascertained by the liquidators so as to postpone the running of time until a moment within 3 years of the commencement of the respective actions.

Deliberate Concealment under Section 26 – Corporate Debtors Claim

133. Section 26 provides :

“(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)  ……..

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

(c)  ..…. 

the period of limitation shall not begin to run until the plaintiff has discovered the …… concealment or could with reasonable diligence have discovered it.

(3)  For the purpose of subsection (1), deliberate commission of a breach of duty in circumstances in which it is unlikely to be discovered for some time amounts to deliberate concealment of the facts involved in that breach of duty.

(6)  Sections 31 and 32 shall not apply to any action to which subsection (1)(b) applies (and accordingly the period of limitation referred to in that subsection, in any case to which either of those sections would otherwise apply, is the period applicable under section 4(1)).”

134. The crucial phrase “any fact relevant to the plaintiff’s right of action” in subsection (1)(b) was explained by the English Court of Appeal in Johnson v. Chief Constable of Surrey[45].  Johnson’s case concerned a claim for damages for false imprisonment, and a question arose as to whether material facts had been concealed from the plaintiff so as to attract the application of the equivalent of our section 26(1)(b) to save the action from being time-barred.  Rose LJ said the following :

“…… The crucial question is as to the meaning of the words in section 32(1)(b) [equivalent of our section 26(1)(b)] ‘any fact relevant to the plaintiff’s right of action.’  It is to be noted that the statute does not refer to ‘the plaintiff’s action’ but to his ‘right of action’.

For my part, I accept Mr Glasgow’s [counsel for the defendant] submission that, in construing the section, there is no middle ground between facts and evidence.  It may be that the plaintiff’s case following the quashing of the convictions would be evidentially stronger and have a better prospect of success.  But I am unable to accept Mr Hytner’s [counsel for the plaintiff] submission that the quashing of the convictions adds anything to the plaintiff’s knowledge of facts relevant to his right of action.  Facts which improve prospects of success are not, as it seems to me, facts relevant to his right of action. ……”

135. Similarly, Russell LJ in Johnson spoke of giving the words a narrow interpretation, and any fact in question must be relevant to the plaintiff’s “right of action” and not to “the plaintiff’s action” or “his case” or “his right to damages”.  Neill LJ said those words meant “any fact which the plaintiff has to prove to establish a prima facie case.”  See also Buxton LJ in The “Kriti Palm”[46] at para. 453; and Neill LJ in C. v. Mirror Group Newspapers [47] at p.138 G-H.

136. Further, the authorities of Sheldon v. R.H.M. Outhwaite Ltd.[48] and Ezekiel v. Lehrer[49] establish clearly that there can be no question of “concealment” when the plaintiff is already aware of the facts relevant to his right of action.  In Sheldon, Lord Browne-Wilkinson said[50] :

“For myself, I do not find it absurd that the effect of section 32(1) [equivalent of our section 26(1)(b)] is to afford to the plaintiff a full six-year period of limitation from the date of the discovery of the concealment.  In such a case, the plaintiff must have been ignorant of the relevant facts during the period preceding the concealment: if he knew of them, no subsequent act of the defendant can have concealed them from him.”

In Ezekiel, Jonathan Parker LJ similarly said[51] :

“Lord Browne-Wilkinson’s reference [in Sheldon] to ‘the period preceding the concealment’ is plainly a reference to the period beginning with the accrual of the cause of action.  In my judgment a Claimant who was at some point during that period aware of the fact which he alleges was subsequently concealed from him cannot avail himself of section 32(1)(b) [equivalent of our section 26(1)(b)].”

137. The particulars for deliberate concealment are given in the Plaintiffs’ draft Reply.  However, despite the extensive particulars, they do not clearly point to how it is said that the Plaintiffs lacked knowledge of any fact(s) essential to their complaint for breach of duties.  I do not propose to repeat here my reasons for concluding that the Plaintiffs did have knowledge of all the Essential Facts.  On the basis of the knowledge already acquired by the Plaintiffs, (and subsequently by the liquidators upon their appointment) I also conclude that the Plaintiffs have failed to set up an arguable case that there has been concealment of fact(s) relevant to their right of action.  In this connection, it should also be borne in mind Lord Browne-Wilkinson’s statement in Sheldon that “facts relevant to the plaintiff’s right of action” do not include facts which improve the plaintiff’s prospect of success.  The liquidators’ complaint as to concealment of details of E&Y’s audit work; destruction of the audit working papers; or the obstruction or opposition to the section 221 proceedings, are therefore clearly irrelevant for the present purpose. They are not essential matters or “relevant facts” for the purpose of section 26(1)(b).

138. On the other hand, insofar as the Plaintiffs also allege that there was deliberate concealment of the conflict of interest by reason of Wu’s membership on the Executive Committee as financial adviser and E&Y’s position as auditors, such a fact was in fact stated expressly in NCHKGp’s financial statements.  I fail to see any credible argument that conflict of interest has been concealed.

139. The Plaintiffs further contend that the breaches of duty committed by the Defendants were committed deliberately and section 26(3) is engaged.  However, the short answer is that section 26(3) merely provides that “deliberate commission of a breach of duty in which it is unlikely to be discovered for some time amounts to deliberate concealment of the facts involved in that breach of duty”.  On my earlier finding that the Plaintiffs did have knowledge of the facts essential to their complaint and such knowledge had rendered allegations of deliberate concealment irrelevant, there is no room for the operation of section 26(3).  The allegations of deliberate breach of duty therefore do not assist the Plaintiffs.

Claim in Equity & Equitable Compensation – Corporate Debtors Claim

140. In addition to putting their case on contract and negligence, the Plaintiffs also pleaded breach of fiduciary duties on the parts of the Defendants, based on their position as auditors, and as an officer and shadow or de facto director of the Plaintiffs.  The essence of the Plaintiffs’ complaint is that the Defendants have placed themselves in a position of conflict of interest, and had ultimately failed to conduct themselves in the best interest of the Plaintiffs.  The Plaintiffs claim equitable compensation for breach of such duties.

141. As the Defendants have submitted, where a claim is made in equity which corresponds to a claim at common law, the statutory limitation period applicable to the common law claim will be applied to the claim in equity, albeit that no limitation period is expressly prescribed by statute in respect of the equitable claim.  Section 4(7) of the Ordinance provides:

“(7)    This section shall not apply to any claim …… for other equitable relief, except in so far as any provision thereof may be applied by the court by analogy in like manner as the corresponding enactment contained in the Limitation Act 1980 is applied in the English Courts.”

142. The corresponding provision under the Limitation Act 1980 is section 36(1), which is in the following terms :

“(1)    The following time limits under this Act [for actions founded on tort and simple contract] shall not apply to any claim ……. for other equitable relief, except in so far as any such time limit may be applied by the court by analogy in like manner as the corresponding time limit under any enactment repealed by the Limitation Act 1939 was applied before 1 July 1940.”

143. The authors of Snell’s Equity[52]explain thus

“For the purpose of determining appropriate limitation period, a breach of fiduciary duty is treated as equivalent to a breach of trust.  In general, therefore, a six-year limitation period applies to claims against fiduciaries for breach of fiduciary duty, either by direct application of the Limitation Act 1980 or by analogy with that statute.  Where a claim for breach of fiduciary duty is based on the same facts as a claim for breach of contract or a claim in tort, and there is ‘correspondence’ between the remedies available, the six-year limitation period is applied by analogy.”

144. In Cia de Seguros Imperio v. Heath (REBX) Ltd.[53], which was a claim for compensation for dishonest breach of fiduciary duty, Waller LJ said

“In my view the authorities cited by Mr. Gross and the broad principles set out in the above quotations support the submission that equity would have taken the view that it should apply the statute by analogy to a claim for damages or compensation for a dishonest breach of fiduciary duty.  I say that because what is alleged against Heaths as giving rise to the dishonest breach of fiduciary duty are precisely those facts which are also relied on for alleging breach of contract or breach of duty in tort.  It is true that there is an extra allegation of ‘intention’ but that does not detract from the fact that the essential factual allegations are the same.  Furthermore, the claim is one of ‘damages’.  The prayer for relief has now been amended with our leave to add a claim for ‘equitable compensation’, but the reality of the claim is that it is one for damages, the assessment of which would be no different whether the claim was maintained as a breach of contract claim or continued simply as a dishonest breach of fiduciary duty claim.”

Clarke LJ expressed a similar view[54] :

“I would certainly have expected a court of equity to apply the common law time limits by analogy on the facts of this case.  As Waller LJ has pointed out, ……. the essential nature of the pleaded case is the same whether it is put as damages for breach of contract, damages for breach of duty or damages (or compensation) for breach of fiduciary duty.  The only additional element is the defendant’s alleged intention, which on the facts here adds nothing of substance to the claim for damages.  Indeed it would be quite unnecessary to include this claim if it were not thought necessary to do so in order to advance the time bar argument.”

145. In the present case, the relief sought for breach of fiduciary duties in relation to the Corporate Debtors Claim, although claimed as equitable compensation, is plainly founded on essentially the same factual matters as the claims in negligence and contract.  Quoting the words of Clarke LJ, the conflict of interest element here “adds nothing of substance to the claim for damages”.  The equitable claims are clearly subject to the same limitation periods by analogy under s.4(7).

146. The Plaintiffs pointed to the so-called “Triangular Debt Arrangement” as an illustration of the Defendants’ breach of duties.  It is alleged that E&Y had wrongly treated a sum of over $493 million due from Topview to NCHKFin, and the equivalent sum owed by NCHKFin to NCHKGp as “back to back loans”.  The error, it is said, arose from the fact that it was Century City and Regal Hotels who provided the funds for NCHKGp to be advanced to NCHKFin and then to Topview, and that Century City and Regal Hotels had been erroneously treated as equivalent to Topview.

147. It is alleged that because of E&Y’s failure to warn or their concealment of the existence of the Triangular Debt Arrangement, it has led to a number of steps having been taken to the serious detriment of NCHKGp (including the disposal of valuable assets to a subsidiary of Century City; the appointment of Kenneth Ng (a director of Century City) to the Executive Committee; and the Executive Committee’s approval of certain power of attorney and declaration of trust).  All these steps eventually resulted in NCHKGp’s loss of the opportunity of avoiding its liability vis-à-vis Century City and Regal Hotels by way of set-off[55].

148. However, as Mr. Yu submitted, although the Triangular Debt Arrangement is said to support the allegation of breach of fiduciary duties, in substance it is no more than a claim that E&Y has negligently failed to properly advise the Plaintiffs in respect of that transaction.  The fact that the failure to advise has led to the entering into new arrangements with Century City and Regal Hotels to the detriment of the Plaintiffs, does not cloth the claim with fiduciary characteristics.

149. In any event, even if the breach arising from the Triangular Debt Arrangement is fiduciary in nature, that does not have the effect of avoiding the application of the primary limitation periods as in the case of actions founded on contract and negligence: Cia de Seguros Imperio[56].

150. The Plaintiffs, however, contend that even if the equitable claims fall within section 4(7) of the Limitation Ordinance by analogy, they are claims by a beneficiary under a trust in respect of fraud or fraudulent breach of trust to which a trustee was a party or privy, and by reason of section 20(1), no limitation period applies.  Mr. Scott further submitted that the nature of the fraud need only be pleaded in the Reply as and when the Defendants raise a defence of limitation, citing Lewin on Trust, 17^th edition, para. 44-10 and Banque Commerciale S.A. v. Akhil Holdings Ltd.[57] (a decision on the Australian legislation equivalent to our section 20(1)(a)).

151. However, as the pleadings presently stand (including the draft Reply) I am unable to discern exactly how the case of fraud against each of the Defendants is framed.  My comment is not simply confined to matters of pleading.  More importantly, on the materials before me I do not see the basis of the argument that the claim for breach of fiduciary duties here involves the element of fraud on the part of the Defendants.  On the Corporate Debtors Claim, the Sandy Black Report certainly does not go so far as to suggest fraud on the part of the Defendants.  As I see it, even if my conclusion as to application of section 4(7) by analogy is wrong, the claim for breach of fiduciary duties is nevertheless governed by section 20(2), where a 6-year limitation period still applies.

The Retainer Fees Claim

152. This claim is made by NCHKGp against both Defendants for restitution of the fees paid to E&Y between 1 February 1993 and 24 January 1997, totalling $6.4 million.  This claim is made up of 3 sums, 2 specific sums of $500,000 each, and other monthly fees aggregating $5,400,000.  The gist of the claim has already been outlined earlier in this judgment[58].

153. Insofar as NCHKGp claims not to be liable for such fees (whether on the ground that the works had not in fact been performed by Wu and E&Y; or by reason of their being pre-incorporation expenses; or that they were paid in breach of the articles without proper authority of the company) the nature of such a claim is restitutionary on the basis of money had and received.  As such, it is subject to the same 6-year limitation period as actions founded on contract: Westdeutsche Landesbank v. Islington London  Borough Council.[59]  In that case, Hobhouse J held that the words “action founded on simply contract” under the provision equivalent to our section 4 “are sufficiently broad to cover an action for money had and received”[60].  See also The Law of Restitution, Goff and Jones, 7^th edition, paras. 43-001, 43-002, 43-011.

154. The causes of action for recovery of these payments accrued when the payments were made.  They are, prima facie, more than 6 years before the commencement of the respective Actions.

155. On the other hand, insofar as NCHKGp puts the claim on the basis that the payments were made to and accepted by E&Y in breach of fiduciary duties, for the same reason discussed in paragraphs 140 to 145 above, it is also subject to the 6-year limitation period. 

156. Concealment is raised in the draft Reply in relation to these retainer fees.  The essence of the allegation is that neither the said payments nor their purposes had been approved by the Board, or the Executive Committee, and they were never disclosed to the independent directors or shareholders[61]. 

157. I approach the question by asking which of the particular fact(s) “relevant to NCHKGp’s right of action” is said to have been deliberately concealed.  As Mr. Strachan pointed out, the liquidators themselves made reference to the fact that the invoices for the 2 sums were in fact among E&Y’s correspondence files.  It is for the Plaintiffs to make out a case that the company who made the payments was either not aware of its own payments or the purpose of such payments.  The question is not whether E&Y had concealed the fact of these payments from the liquidators.  The question is whether NCHKGp has set up a case that the Defendants had concealed these payments from the company when they were made.

158. Mr. Strachan further pointed out that there is evidence from Mr. Mills that the invoices were settled by NCHKGp on or around their respective dates.  NCHKGp’s bank accounts were operated by any two of the authorized signatory directors.  Those who had signed the cheques would have knowledge of the payments.  Such knowledge would be knowledge attributable to the company.  Unless NCHKGp is able to adduce credible evidence that those responsible for making the payments did so to commit a wrong against the company, knowledge on their parts being knowledge of the company, would preclude the application of section 26: see Sheldon v. R.H.M. Outhwaite Ltd.[62] and Ezekiel v. Lehrer[63] discussed above.

159. My view is that the Plaintiffs have failed to properly set up a case of deliberate concealment in relation to the retainer fees.  Such failure makes it difficult, if not impossible, to assess whether there is at least an arguable case that section 26 might be engaged, or whether it is defeated by the fact that NCHKGp itself should be treated as already in possession of knowledge of the essential fact(s).

The Audit Fees Claim

160. This claim is made only against E&Y.  The sum pleaded in paragraph 80 of the Re-A-PoC as fees and disbursements paid to E&Y is $27,862,673.  However, only 2 specific amounts, namely, $5,055,426 and $2,854,684 are claimed by NCHKGp and NCHKCap respectively[64].

161. For the same reason as in the Retainer Fees Claim, I am of the view that the applicable limitation period is 6 years from the respective payments of those fees. 

162. However, these fees are said to have been paid between February 1993 and 30 January 1999.  There is no breakdown as to when payment for each sum was made.  As far as E&Y is concerned, any payment after 30 July 1998 would not yet be out of time.  For the purpose of E&Y’s strike out application, NCHKGp’s claim for $5,055,426 and NCHKCap’s claim for $2,854,684 are not plainly and obviously time-barred.

The Accounts Claims

163. The Plaintiffs make 3 claims against Wu in respect of the unusual transactions in his accounts allegedly held by him with NCHKCap. 

The Galvanic-Transfer Claim

164. In this claim, it is alleged that Wu had a short term loan account with NCHKCap.  As at 31 December 1994, an amount of $11,190,783 was due and owed by Wu in this account.

165. It is pleaded that “on a date after 1^st January 1995, the entire sum of $11,190,783 …… was, without commercial reason, transferred to another account with NCHK Finance in the name of Galvanic Limited, ….. which at all material times was owned and controlled by [Wu]”[65].  It is further alleged that the sole or predominant purpose of the transfer was to release Wu from personal liability for the indebtedness.

166. On behalf of Wu, Mr. Strachan argued that insofar as the claim is made in contract or for restitution, a 6-year limitation period applies.  Insofar as the claim is based upon Wu’s breach of fiduciary duties, applying section 4(7) or section 20(2), the limitation period is still 6 years.  The cause of action, he submitted, accrued on 31 December 1994 at the latest.

167. In my view, the causes of action did not accrue on 31 December 1994 (which was only the date of the state of Wu’s account as shown in NCHKCap’s ledgers), but on the date of the wrongful transfer.  Although paragraph 88 of the Re-A-PoC does not pinpoint the date, it appears from the liquidators’ evidence that the transfer took place on 1 January 1995[66].  That was more than 6 years before the commencement of the Action against Wu.

168. The Plaintiffs rely on section 20(1).  It is alleged that the transfer to Galvanic’s account constituted a fraudulent breach of trust, or a secret profit by Wu[67].  Mr. Strachan first raised a procedural objection that there was no plea of fraud in the Re-A-PoC and no reference to section 20(1) in the draft Reply.  However, as Mr. Scott has submitted, the Plaintiffs would still be entitled to rely on section 20(1) in their Reply in response to the Defendants’ plea of limitation: see paragraph 150 above.  It is therefore important to consider the evidence whether it supports an arguable case of fraudulent breach of trust in relation to the impugned transfer from Wu’s account to Galvanic’s.

169. The liquidators’ evidence is set out in paragraph 74 of the Affirmation of Chan Wai Dune (one of the joint liquidators).  It is alleged that there is nothing in the minutes of the board of directors of NCHKCap to show any authorisation of such a transfer, nor was the company aware of Wu’s connection with Galvanic.  However, these are more in the nature of assertions rather than evidence. 

170. I have examined the Sandy Black Report.  There is a section in the report headed “Galvanic Account in Capital in 1995”[68], but it concerns preferential rates of interest being granted by NCHKCap in respect of Galvanic’s account.  It has nothing to do with the allegation concerning the transfer of Wu’s account to Galvanic’s.

171. I have also considered the section headed “Treatment of Year End Balance”[69].  I am unable to associate what is stated in that section with the present allegation I am dealing with.

172. I am quite unable to see any evidential basis for the assertion that the transfer was for the sole or predominant purpose of releasing Wu from personal liability and hence a fraud, or fraudulent breach of trust.  My view is that NCHKCap has failed to set up even an arguable case that section 20(1) is engaged.

173. Likewise, in order to invoke section 26(1)(b), it is for NCHKCap to identify the fact(s) relevant to its right of action alleged to have been deliberately concealed.  I do not wish to repeat essentially the same reasoning as in the case of the retainer fees.  The question is not whether Wu had concealed from the liquidators the fact of this transfer.  The question is whether NCHKCap has properly set up a case that Wu had concealed the transfer from the company deliberately.

174. I hold the same view that the failure of NCHKCap to properly set up the case of concealment makes it difficult, if not impossible, to assess whether there is at least an arguable case that section 26 might be engaged, or whether it is defeated by the fact that NCHKCap itself should be treated as already having knowledge of the essential fact(s).

The Payment-Outs Claim

175. This is a claim for $44,049,295, being the balance of money transferred out of Wu’s account on Wu’s instructions, such transfers having occurred between 30 April 1994 and 31 December 1995.  Prima facie, a limitation period of 6 years applies to a claim for recovery of the amount running from the end of 1995 at the latest.

176. By the proposed amendment in paragraph 98 of the Re-A-PoC, this claim is put on the basis that because of Wu’s position on the Executive Committee, he was able to “carry out the actions”, or alternatively, be in a position not to disclose the payment-outs.  Insofar as NCHKCap intends paragraph 98 to be an averment of concealment under section 26, I am unable to understand exactly the way the concealment is alleged to have arisen by virtue of Wu’s position, without more.  The plea as drafted is clearly deficient in particulars.  The draft Reply is hardly more illuminating.

177. That said, however, Mr. Scott submitted that the Sandy Black Report shows that there is compelling evidence that Wu had concealed his involvement in the transactions from his account, referring in particular to the backdating of documents and fictitious entries.  Indeed, for instance, the discussion in relation to the loan to Enkson of $11 million transferred from Wu’s account to NCHKFin’s[70]; and the loan of $11 million to T.T. Tsui and eventually transferred to Great Merit[71], with allegations of backdating of documents, are clearly matters relevant to making up the claim of wrongful transfers[72].

178. Indeed, having considered the Sandy Black Report, I am unable to say that the allegations of deliberate concealment relating to the Payment-Outs Claim are bound to fail.  Although the case of concealment has not been properly formulated, I do not think this part of the claim should be struck out.

The Unauthorised Interest Claim

179. This claim concerns 2 sums paid by NCHKCap to Wu, one for $1,085,724 on 31 March 1995 and another for $150,093 between 22 May 1995 and 5 December 1995.  It is alleged that these payments, purported to be interest, had not been authorised by NCHKCap.

180. Insofar as these are claims for restitution, prima facie the 6-year limitation period applies and the causes of action for their recovery would have accrued by 5 December 1995 at the latest.

181. NCHKCap relies on deliberate concealment.  It is said that these payments were not disclosed by Wu to the board of directors of NCHKCap despite his duty to do so.  However, as Mr. Strachan pointed out, it is the liquidators’ evidence that they have learned of the payments “from a review of the accounting ledgers”[73] and the liquidators did not suggest that these payments were not apparent from the NCHKCap’s own accounting records.  The fact that the payments did not appear in the board minutes of NCHKCap or the Executive Committee is far from being sufficient as a basis for setting up a case of deliberate concealment.

182. The Plaintiffs point to the friendship between William Kwong and Wu and to the allegation of improper purpose of these payments.  However, the Sandy Black Report makes no reference to these interest payments despite the fact that the liquidators had been undertaking investigation since 1999.  As matters stand, NCHKCap is effectively asking the court to draw inferences of impropriety against Wu and William Kwong with regard to these payments based on other dealings between them (unrelated to the Accounts Claim here) which the Report says are questionable.  I do not believe a case of deliberate concealment has been properly set up.

Result

183. Apart from the Audit Fees Claim against E&Y and the Payment-Outs Claim against Wu, the other claims against the Defendants are time-barred.

184. As NCHKGp and NCHKCap have been identified separately as the claimant for the respective parts of the Audit Fees Claim[74], and only NCHKCap is making a claim for the Payment-Outs, the question of who should be the proper Plaintiff and “reflective loss” does not arise.  I do not propose to deal with the submissions on that question.

Orders

185. I would therefore make the following orders :

(1)  On the 1^st Defendant’s strike-out summons[75],

(i)    paragraphs 7 to 21B, and 28 to 79 of the Amended Consolidated Points of Claim, insofar as they relate to the 1^st Defendant, and paragraphs (1)(i) to (1)(v) of the Prayer be struck out;

(ii)  all claims by NCHKFin be struck out;

(2)  On the 2^nd Defendant’s strike-out summons[76],

(i)    paragraphs 29, 29B, 36A to 45, 60, 61, 62A to 79, 85 to 89A, 93 to 97, insofar as they relate to the 2^nd Defendant, and paragraphs (2)(i) to (vi) and (viii) of the Prayer be struck out;

(ii)  all claims by NCHKGp and NCHKFin be struck out;

(3)  The 1^st and 2^nd Defendants’ summonses for trial of the preliminary issue be adjourned with liberty to restore;

(4)  The Plaintiffs’ summons to re-amend be allowed only to the extent of paragraph 98 of the proposed Re-A-PoC, with reference to “paragraphs 85 to 97” be replaced by “paragraphs 90 to 92”, and of paragraph (2)(viiiA) of the Prayer.

186. As the overall arguments for these applications have not been significantly lengthened by the submissions on the Audit Fees Claim, I would make an order nisi that the Plaintiffs pay the costs of the 1^st Defendant’s strike-out summons and the Plaintiffs’ amendment summons, to be taxed forthwith if not agreed.

187. I would make an order nisi that the Plaintiffs pay three-quarters of the 2^nd Defendant’s costs both of the 2^nd Defendant’s strike-out summons and the Plaintiffs’ application for amendment, to be taxed forthwith if not agreed.

188. Out of caution, I would give liberty to the parties to apply in case the exact order needs to be further worked out or clarified.

189. It remains for me to thank counsel for their submissions.

[1] [1985] 2 HKC 746

[2] [1983] 1 QB 398 at 408

[3] At p.404

[4] At p.408

[5] [1992] 2 HKC 317 at 320

[6] [2008] 3 HKC 90

[7] See para. 30 above.

[8] It should be recorded that during the hearing, counsel for the Plaintiffs submitted a version of the Prayer which had removed the dates when damages were allegedly suffered and the specific amounts claimed.  However, given that damages are specifically claimed under paragraphs 41, 45, 67 and 71, such claims cannot be considered in isolation from the facts which culminate in these several paragraphs in order to determine when each of such claims accrues.  

[9] See para. 31 above.

[10] See para. 65, Re-A-PoC.

[11] See para. 68(4), Re-A-PoC.

[12] [1997] 1 WLR 1627

[13] See Lord Nicholls at p.1632D and Lord Hoffmann at p.1639C-D

[14] [2006] 2 AC 543 

[15][1994] 4 All ER 439 at 449

[16] [1995] 2 AC 500

[17] At p.506-7

[18] 18^th edition (2006), 8-207

[19] [1996] 1 BCLC 380

[20] At p.385

[21] At pp.385-6

[22] [1983] 2 AC 1

[23] [1896] 2 Ch 743

[24] [1928] AC 1

[25] [1999] 1 Ll. Rep. 262

[26] HCA 12837/1995, Yuen J.

[27] [2008] EWCA Civ 644, dated 18 June 2008

[28] At p.19

[29] At p.14

[30] See supra

[31] (1876) 4 Ch. D. 537

[32] See supra

[33] Ibid. p.278

[34] At p.749

[35] See para. 73 of Rimer LJ’s judgment, ibid.

[36] See supra, judgment at pp.31 & 32

[37] See Kensland Realty Ltd., supra, paras. 67 & 153 

[38] As director for NCHKCap between 1 March 1993 and 8 September 1998; for NCHKFin between 23 march 1994 and 21 August 1998

[39] As director for NCHKCap between 8 March 1993 and 15 June 1998; for NCHKFin between 20 October 1993 and 15 June 1998

[40] As director for NCHKCap between 22 March 1993 and 8 September 1998; for NCHKFin between 6 July 1993 and 21 August 1998 

[41] As Joint Managing Director for NCHKCap between 26 May 1997 and 4 January 1999; for NCHKFin between 6 August 1997 and 27 October 1998

[42]See letter dated 20 November 1998

[43] At para. 8

[44]Paras. 28(6) & 32, Re-A-PoC

[45] Unrep., Transcript 19 October 1992

[46] [2007] 1 Lloyd’s Rep 555 at 626

[47] [1997] 1 WLR 131

[48] [1996] 1 AC 102

[49] [2002] Lloyd’s Rep 260

[50] Supra at p.144 A-B, see also Lord Nicholls at p.152F

[51] Supra at para. 44

[52] 31^st edition (2005), para. 7-148 

[53] [2001] 1 WLR 112 at 120

[54] At p.125

[55] Paras. 71B – 71E, Re-A-PoC

[56] See supra

[57] (1990) 169 C.L.R. 279 

[58] Para. 35

[59] [1994] 4 All ER 890 at 942-3

[60] Ibid.

[61] See draft Reply, paras. 6(1)(xxi) - (xxv), 6(5), 6(9), 6(13)

[62] Supra, footnote 49

[63] Supra, footnote 50

[64] See para. 84 and Prayer (1)(vi), Re-A-PoC

[65] Para. 88, Re-A-PoC

[66] See Affirmation of Chan Wai Dune, para. 74(2)

[67] See Affirmation of Chan Wai Dune, para. 74(4)

[68] Sandy Black Report, paras. 267 to 276

[69] Sandy Black Report, paras. 256 to 257

[70] Sandy Black Report, paras. 231 to 246

[71] Sandy Black Report, paras. 247 to 254

[72] See Schedule 12, Re-A-PoC

[73] See Affirmation of Chan Wai Dune, para. 77

[74] Prayer (1)(vi), Re-A-PoC

[75] Amended Summons dated 12 December 2007

[76] Amended Summons dated 2 April 2008