CHINA MEDICAL TECHNOLOGIES, INC (IN LIQUIDATION) AND OTHERS v. BANK OF CHINA (HONG KONG) LTD

HCA 1742/2018

[2021] HKCFI 3042

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1742 OF 2018

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J U D G M E N T

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Introduction

1.  The Writ in this action was issued on 27 July 2018 claiming damages, equitable compensation, restitution and a declaration under s 275 of the Companies (Winding Up and Miscellaneous Provisions) Ordinance, Cap 32 (“CO”) in respect of the fraudulent transfer of US$355.5 million (“Funds”) belonging to the 1st Plaintiff and/or the 2nd Plaintiff to Supreme Well Investments Limited (“Supreme Well”) between November 2006 and December 2009. The Defendant was the banker of the 1st Plaintiff.  The Defendant was also the banker of Supreme Well.

2.  By summons dated 21 December 2018, the Defendant applied to strike out the Statement of Claim and dismiss the action.  Subsequently, the Plaintiffs were granted leave to amend the Statement of Claim while the Defendant was granted leave to amend the striking out summons.

3.  There is before this court the Defendant’s application by Amended Summons dated 17 February 2021 (“Defendant’s Summons”) for an Order that the Amended Statement of Claim filed on 28 July 2020 (“ASOC”) be struck out and this action be dismissed on the grounds that:

(1)  It discloses no reasonable cause of action;

(2)  It is scandalous, frivolous or vexatious;

(3)  It may prejudice, embarrass or delay the fair trial of the action; and/or

(4)  It is otherwise an abuse of the process of the Court.

4.  There is also before this court the Plaintiff’s application by summons dated 26 April 2021 (“Plaintiff’s Summons”) seeking leave to file a Re-Amended Statement of Claim (“RASOC”) and an amended Further and Better Particulars of the Statement of Claim (“AFBPs”).  The proposed amendments remove the claims based on breach of contract and negligence.  The remaining causes of action are dishonest assistance, knowing receipt, unjust enrichment/restitution and fraudulent trading under s 275 CO.[1]

Factual Background

5.  The factual background for the purpose of the present application is set out in some detail in the Defendant’s skeleton submissions.  As the Plaintiffs do not appear to dispute that, this court will adopt it, with certain modifications, as follows. 

6.  The 1st Plaintiff was incorporated in the Cayman Islands on 6 July 2004 and was listed on the NASDAQ on 10 August 2005. At all material times prior to its winding up, the 1st Plaintiff was held out as having a principal business of developing, manufacturing and marketing advanced surgical and medical equipment in the PRC. The 2nd Plaintiff was a wholly owned subsidiary of the 1st Plaintiff.

7.  Between 2006 and 2013, the 1st Plaintiff’s board of directors consisted of the following individuals:

Name	Position
Mr Wu Xiaodong (“Wu”)	Chairman and Chief Executive Officer
Mr Samson Tsang Tak Yung (“Tsang”)	Director and Chief Financial Officer
Minshi Shen	Director and Chief Operating Officer
Ting Zheng	Director
Lawrence Arthur Crum (“Dr Crum”)	Independent non-executive director
Cole R Capener (“Mr Capener”)	Independent non-executive director
Iain Ferguson Bruce (“Mr Bruce”)	Independent non-executive director
Ruyu Du (“Dr Du”)	Independent non-executive director
Yuedong Li (“Dr Li”)	Independent non-executive director
Guoming Qi (“Dr Qi”)	Independent non-executive director

8.  The Plaintiffs’ case is that the alleged fraud was committed on the 1st and 2nd Plaintiffs by the following individuals who were directors or officers of the 1st Plaintiff:

(1)  Wu;

(2)  Tsang;

(3)  Mr Feng Zhu (“Zhu”), the Vice President for Business Development and Investor Relations as well as Senior Vice President of Operations of the 1st Plaintiff; and

(4)  Zhong Chen (“Chen”), Chief Technology Officer of the 1st Plaintiff.

(collectively “4 Individuals”)

9.  In essence, the Plaintiffs claim that the 4 Individuals had breached their fiduciary duties to the 1st Plaintiff by causing the 1st Plaintiff to acquire fluorescent in situ hybridization technology (“FISH Technology”) for US$176.8 million in February 2007 (“FISH Transaction”) and surface plasmon resonance technology (“SPR Technology”) for US$345 million in October 2008 (“SPR Transaction”) from Supreme Well and its subsidiaries (“Supreme Well Group”).

10.  The FISH and SPR Transactions were presented to the Board of the 1st Plaintiff as arm’s length commercial transactions.  In fact, Supreme Well and the Supreme Well Group were secretly controlled by Tsang and the medical technology purportedly acquired by the FISH and SPR Transactions was of little or no value.  The Plaintiffs allege that Wu and Tsang caused the 1st Plaintiff to pay out significant sums as the purported consideration for the FISH and SPR Transactions, which were then transferred onwards to various third party recipients controlled by or connected to the 4 Individuals. These payments can be grouped into 2 tranches.

11.  The first tranche of payments (“First Tranche”) consists of transfers from the 1st and 2nd Plaintiffs to Supreme Well and Innovative Technology Investment Ltd (“Innovative”) as follows:

(1)  Between November 2006 and December 2008, Wu and/or Tsang caused the 1st Plaintiff to transfer a total of US$303.75 million to Supreme Well, including its account with Bank of East Asia (Hong Kong) Ltd (“Supreme Well BEAHK Account”) and its accounts with the Defendant (“Supreme Well BOCHK Accounts”), by 52 cashier orders purchased with funds from the 1st Plaintiff’s account with the Defendant (“P1 BOCHK Account”).

(2)  In February 2007, Wu and/or Tsang caused the 1st Plaintiff to transfer US$10 million to Innovative’s account with the Defendant (“Innovative BOCHK Account”) by 2 cashier orders purchased with funds from the P1 BOCHK Account.

(3)  Between December 2008 and January 2009, Wu and/or Tsang caused the 1st Plaintiff to transfer more than US$100 million to the 2nd Plaintiff’s account with Standard Chartered Bank (Hong Kong) Ltd (“P2 SCBHK Account”). Between March and December 2009, Wu and/or Tsang then caused the 2nd Plaintiff to transfer a total of US$51.75 million to the Supreme Well BOCHK Accounts by 3 cashier orders purchased with funds from the P2 SCBHK Account.

12.  The second tranche of payments (“Second Tranche”) consists of payments from Supreme Well and Innovative to bank accounts of other entities associated with or controlled by the 4 Individuals, including East Hope International Ltd, Innovative, Kam Hing Trading Co, Worldpro Investments Ltd and Neway Global Investments Ltd (“Third Party Payees” and “Third Party Accounts” respectively).

13.  It is not in dispute that on 10 February 2009, the 1st Plaintiff’s auditor KPMG Hong Kong received an anonymous letter (“Anonymous Letter”) alleging that the FISH and SPR Transactions were, in essence, fictitious related-party transactions designed to siphon off a significant portion of the 1st Plaintiff’s assets.  The Anonymous Letter stated that:

(1)  The FISH and SPR Transactions involved possible illegal and fraudulent activities.

(2)  The FISH and SPR Transactions were highly unusual and suspicious by reason of the following facts:

(a)  Supreme Well and its subsidiary Molecular Diagnostics Technologies Ltd were BVI shell companies with no apparent business operations;

(b)  the two shell companies were controlled by certain parties in China with relationship to the CEO and management of the 1st Plaintiff;

(c)  the SPR Technology was still under research and development and had not been approved by any health authorities in the world for commercial sale; and

(d)  the consideration for the transactions involved a substantial portion of the 1st Plaintiff’s cash balance.

(3)  The irregularities had led industry insiders to believe that the 1st Plaintiff grossly inflated the price of its acquisitions and channelled cash from investors to company insiders’ pockets without proper disclosure and possibly in violation of laws.

14.  On 12 February 2009, KPMG Hong Kong provided a copy of the Anonymous Letter to Mr Bruce in his capacity as the Chairman of the 1st Plaintiff’s Audit Committee.  After receiving the Anonymous Letter, the Audit Committee was advised on 20 February 2009 that it should engage independent lawyers to undertake an investigation of the matters alleged.  On 6 April 2009, the Audit Committee resolved to appoint Paul, Weiss, Rifkind, Wharton & Garrison LLP (“Paul Weiss LLP”) as independent counsel to conduct an investigation into the allegations in the Anonymous Letter (“Investigation”). For this purpose, Paul Weiss LLP enlisted the assistance of New York firm AlixPartners LLP (“AlixPartners”) as forensic accountants.

15.  Paul Weiss LLP and AlixPartners proceeded to carry out the Investigation from April 2009 onwards.  The bulk of the work (at least as far as the FISH and SPR Transactions are concerned) was completed by July 2009.  On 18 July 2009, Paul Weiss LLP provided a substantive report on the Investigation orally to the Audit Committee.  In broad terms, the advice was that the allegations in the Anonymous Letter had no merit.  On the same day, the Audit Committee resolved that “the allegations of the fraudulent activities contained in the anonymous letter had no merit”.  A month later, the Audit Committee resolved to close the Investigation.

16.  On 27 July 2012, the Grand Court of the Cayman Islands ordered that the 1st Plaintiff be wound up as insolvent and that Mr Cosimo Borrelli and Mr Kenneth Krys be appointed as the joint official liquidators of the 1st Plaintiff.  On 29 November 2012, the Hong Kong Court ordered that Mr Borrelli and Ms Yuen Lai Yee (“Liquidators”) be appointed as the joint and several provisional liquidators of the 1st Plaintiff until the determination of a petition to wind up the 1st Plaintiff in Hong Kong.  On 1 September 2014, the Hong Kong Court ordered that the 1st Plaintiff be wound up and that the Liquidators continued as provisional liquidators of the 1st Plaintiff. On 2 February 2015, the Liquidators were appointed as the joint and several liquidators of the 1st Plaintiff in Hong Kong.

17.  Meanwhile, on 2 December 2014, the Liquidators filed a protective writ (“2014 Writ”) against the Defendant in HCA 2448/2014 (“2014 Action”).  The validity of the 2014 Writ lapsed and the Order to extend the writ was set aside by Au-Yeung J, as affirmed by the Court of Appeal.  Leave to appeal was refused by the Appeal Committee of the Court of Final Appeal.

18.  On 27 July 2018, the Plaintiffs filed the Writ in the present action.

19.  On 19 March 2015 and 14 December 2016, the 1st and 2nd Plaintiffs filed the writ of summons in HCA 577/2015 and in HCA 3272/2016 respectively.  In those proceedings, the 1st and 2nd Plaintiffs brought claims against Paul Weiss LLP and its associated Hong Kong firm Paul, Weiss, Rifkind, Wharton & Garrison (collectively “Paul Weiss”) for allegedly negligent advice or misstatements given to the 1st Plaintiff’s Audit Committee in July 2009.

20.  In broad terms, their claim was that Paul Weiss had failed to act with reasonable care, skill and diligence by reason of their (1) failure to adequately investigate whether the FISH and SPR Transactions were related party transactions, (2) failure to adequately investigate whether the consideration paid pursuant to those transactions was grossly inflated, (3) failure to adequately investigate certain unusual features of the transactions and (4) failure to adequately advise the 1st and 2nd Plaintiffs.  A substantial part of the 1st and 2nd Plaintiffs’ allegations was that Paul Weiss failed to undertake reasonable independent enquiries to determine whether Supreme Well and its subsidiaries were related parties as alleged.  But for the negligent advice, they would have been able to take steps to recover the payments to Supreme Well et al and stop any further payments to those parties in July 2009.  Their case was that they should and would have been able to discover the Alleged Fraudulent Scheme within a very short period of time after the commencement of the Investigation. 

21.  In February 2018, Paul Weiss applied to set aside service of the writs on Paul Weiss LLP in Hong Kong on the ground that it did not carry on business in Hong Kong and to stay the proceedings on the ground of forum non conveniens.  The applications were dismissed by G Lam J (as he then was) on 25 October 2019.

Deliberation

22.  The applicable principles are uncontroversial.  They are stated in Hong Kong Civil Procedure 2021 at para 18/19/4:

(1)  Striking out a plaintiff’s claim should only be done in “plain and obvious” cases.

(2)  Plain is not the same as simple and obvious is not the same as short.  If on a careful reading of the Statement of Claim however complicated, it can be seen that there is no cause of action, the Court can, and probably will, order it to be struck out.

(3)  The claim must be “obviously unsustainable”, the pleadings “unarguably bad” and it must be “impossible, not just improbable, for the claim to succeed” before the Court will strike out a claim.

(4)  There should be no trial upon affidavits.  Disputed facts are to be taken in favour of the plaintiff.

(5)  Where the legal viability of a cause of action is sensitive to the facts or requires a minute and protracted examination of the documents and facts of the case, an order to strike out should not be made.

23.  As succinctly summarised in its Executive Summary, the Defendant submits that the remaining causes of action of knowing receipt, fraudulent trading, unjust enrichment/restitution and dishonest assistance should be struck out and the action be dismissed because:

(1)  The knowing receipt claim is not reasonably arguable because there was no “beneficial receipt” by the Defendant. 

(2)  The fraudulent trading claim is not reasonably arguable because the 1st Plaintiff was in the business of developing, manufacturing and marketing medical equipment which involved the acquisition of other businesses, whereas the fraudulent transactions and the consequent misappropriation of the 1st Plaintiff’s funds was a fraud committed in the course of the 1st Plaintiff’s business - it was not the carrying on of a fraudulent business.

(3)  The fraudulent trading claim fails to comply with the mandatory requirement of Rule 58 of the Companies (Winding-Up) Rules that it should be made by summons and should be served in the manner in which an originating summons is required to be served.  Non-compliance with Rule 58 cannot be cured by Rule 209 because Rule 58 is a statutorily required procedure and is not a mere formality.  Insofar as the Court has a residual discretion, it should not cure the non-compliance because the Plaintiffs were well aware of the Rule 58 requirement before they issued the writ in this action.

(4)  The knowing receipt, dishonest assistance and restitution claims are time-barred.

Knowing Receipt

24.  The paragraphs in the draft RASOC directly relevant to knowing receipt are as follows.

“79. In the period from November 2006 to December 2008, Mr Wu and/or Mr Tsang caused the First Plaintiff to pay a total of US$303.75 million to Supreme Well by way of 52 cashier orders purchased with funds from the First Plaintiff’s BOCHK Account, of which account Mr Wu and Mr Tsang were the only authorised signatories.

80. In the case of each misappropriation from the First Plaintiff’s BOCHK Account, Mr Tsang sent a written instruction to the Defendant, addressed to one or more of the Known BOC Employees including Loman Lo and Jackie Chiu, that (a) requested the payment of funds from the First Plaintiff’s BOCHK Account to Supreme Well via cashier order and (b) advised that the cashier orders would be collected from the Defendant, in most instances by Mr Tsang personally. In each instance, the cashier orders were collected by Mr Tsang and/or another individual from the Defendant’s King’s Road Branch on the same day or in the days immediately following the payment instruction, and were then deposited within one or two business days into accounts in the name of Supreme Well either at the Defendant’s King’s Road Branch, or at a branch of BEAHK.

…

82. In each instance, the First Plaintiff’s BOCHK Account was debited the face value of the cashier orders upon their collection, and the Supreme Well accounts were credited these amounts upon their deposit into the relevant accounts.

…

259. Further or alternatively, the Defendant was liable to the First and/or Second Plaintiffs in knowing receipt, in that:

259.1 misappropriated funds deposited into bank accounts held with the Defendant in the total amount of at least US$205 million by cashier orders on or about 5 March 2007 (US$76.8 million), 29 May 2007 (US$7.45 million), 2 August 2007 (US$22 million), 11 February 2008 (US$20 million), 16 October 2008 (US$47 million), 10 March 2009 (US$10 million) and 3 July 2009 (US$21.75 million), and any benefits derived therefrom, were received beneficially by the Defendant;

259.1A. each of the misappropriations were conducted by a deposit of one or more cashier orders by Mr Tsang on behalf of Supreme Well as customer, which deposits had the effect in law of creating a loan by Supreme Well to the Defendant;

…” (emphasis added)

25.  It is well established that one of the essential elements of this cause of action is the beneficial receipt by a defendant of assets which are traceable as representing the claimant’s own assets: El Ajou v Dollar Land Holdings Plc (No 1) [1994] 2 All ER 685, 700.

26.  The Defendant submits that the Plaintiffs’ case fails to satisfy the requirement of beneficial receipt because as a matter of law, the Defendant, as a bank, did not beneficially receive any assets.  The bank only receives money as agent for the account holder and does not receive it for its own use and benefit, unless the money pays off an overdraft: Agip (Africa) Ltd v Jackson [1990] Ch 265, 292B (per Millett J); Lewin on Trusts (20th ed) para 42-085.   

27.  It is true that the above legal proposition is supported by the authorities cited.  But that proposition is inconsistent with other equally well-established principles that (i) a deposit by a customer (including a deposit by a cheque) creates a relationship of debtor and creditor between the bank and the customer^[2] and that (ii) money paid into a bank account belongs legally and beneficially to the bank and not the account holder.  In Foskett v McKeown [2001] AC 102, 128A, Lord Millett observed that:

“ … Money paid into a bank account belongs legally and beneficially to the bank and not to the account holder. The bank gives value for it, and it is accordingly not usually possible to make the money itself the subject of an adverse claim. Instead a claimant normally sues the account holder rather than the bank and lays claim to the proceeds of the money in his hands…”

28.  Further, the distinction drawn in Agip (Africa) Ltd v Jackson between receipt by a bank into an account that is in credit and receipt into an account that is overdrawn is not universally accepted. For instance, Agip (Africa) Ltd v Jackson has been criticised in Uzinterimpex JSC v Standard Bank Plc [2008] 2 Lloyd’s Reports 456 in which Moore Bick LJ said at [39] ‑ [40]:

“ 39. … However, it has long been established that the relationship between banker and customer is one of creditor and debtor: see Foley v Hill (1848) 2 HL Cas 28. The customer whose account is in credit lends the money to the bank for use by it in its business. The distinction drawn in Agip v Jackson between receipt by a bank into an account that is in credit and receipt into an account that is overdrawn has been criticised on the grounds that the nature of the relationship between banker and customer is such that the bank always has the benefit of using the customer’s money for its own purposes until such time as it is called upon to repay the debt: see in particular Bryan, ‘Recovering Misdirected Money from Banks: Ministerial Receipt at Law and in Equity’ published in Restitution and Banking Law, 1998, ed Rose. …

 40. In my view there is a good deal of force in Dr Bryan’s criticism of the decision in Agip v Jackson, but it is unnecessary for the purposes of this appeal to decide whether it is well-founded …”

29.  For the present purpose, another distinction is drawn by the learned editors of Goff and Jones The Law of Unjust Enrichment (9th ed) at paras 28-08 to 28-10 between deposit of funds by the account holder himself and deposit of funds by a third party:

“ In a series of cases against banks which have received and dealt with misapplied trust property, the question has arisen whether the bank has received the property for its own benefit or has acted ministerially. To understand the authorities on this issue properly, it must be appreciated that the situation where the misapplied property has been deposited by the account holder differs from the situation where the property has been deposited by a third party.

In the first situation, the bank always receives the money beneficially, and never receives it ministerially: there is simply a loan of money from the account holder to the bank, or if the account is overdrawn, a repayment of the debt owed to the bank by the account holder. Hence, the bank is potentially liable to claims that are predicated on the basis that it has received misapplied property for its own benefit, where a trustee or fiduciary himself deposits trust money into his personal account. Certain cases to the contrary, which suggest that in this situation a bank can only be liable as a dishonest assistant, are incorrect in principle.

In the second situation, where cash is deposited with a bank by a person other than the account holder, or the bank’s own account with a central clearing bank is credited as a result of instructions from such a person, the bank will almost always take the proceeds of the transaction ministerially as agent for the account holder. It has been hard for the courts and legal scholars to accept this proposition although cases can be marshalled in its support. One reason for their difficulties may be that they have not always clearly understood that a bank which receives a third-party deposit on its customer’s behalf does not receive ‘beneficially’ simply because it takes good title to the money and then uses the money as its own: ‘beneficial receipt’ as distinguished from ‘ministerial receipt’ of money entails not merely that a defendant takes good title to the money, but also that the defendant does not have to account for an equivalent sum to a principal who is legally liable to the claimant from the moment of the defendant’s receipt.” (emphasis added)

30.  In its Reply submissions, the Defendant submits that an intra-bank transfer ie a “payment” from account A to account B of the same bank has no effect on the level of a bank’s assets.  What happens is a change in entries in the bank’s internal accounts as Lord Millett explained in Foskett v McKeown at 128B-C.  That may well be so.  If the Plaintiffs’ pleaded case were that the misappropriated funds were transferred directly from the P1 BOCHK Account to the Supreme Well BOCHK Accounts, then the Defendant might have a point.  But that was not what the Plaintiffs have pleaded. 

31.  As pleaded in paragraph 259.1A of the draft RASOC, Tsang deposited the cashier orders in question on behalf of Supreme Well into its bank accounts with the Defendant as customer.  That is the first situation referred to in Goff and Jones quoted above.  If so, the Defendant received the funds represented by the cashier orders beneficially instead of ministerially.

32.  To conclude, as submitted by Mr Manzoni SC, there is at least a difficult and unsettled question of law involved in this cause of action and that it is inappropriate to strike it out.

Fraudulent Trading - no cause of action

33.  The Plaintiffs’ case on fraudulent trading is pleaded at paras 261 and 262 of the RASOC:

“261. Further or alternatively, by reason of its conduct as pleaded herein, the Defendant was knowingly a party to the carrying on of the business of the First Plaintiff with intent to defraud creditors of the First Plaintiff, with reckless indifference as to whether or not the creditors of the First Plaintiff were defrauded and/or whether or not the business of the First Plaintiff was carried on for a fraudulent purpose.

262. In the premises, the Third Plaintiffs seek remedies against the Defendant under s. 275 of the Companies Ordinance in respect of the debts and other liabilities of the First Plaintiff in the amount of at least US$355.5 million or as the Court may direct.”

34.  At para 159 of the AFBPs, the Plaintiffs further elaborated on its plea at para 261 as follows:

(1)  The 1st Plaintiff’s business involved the acquisition of inter alia technologies to complement its existing business.

(2)  The business operations of the 1st Plaintiff were conducted by the 4 Individuals.

(3)  The FISH and SPR Transactions, presented to the Board and public as legitimate arm’s length transactions, were not arm’s length transactions made for proper commercial purposes.  They were undisclosed related party transactions.

(4)  By procuring and carrying out the FISH and SPR Transactions, the 4 Individuals intended to defraud the creditors of the 1st Plaintiff, or were recklessly indifferent as to whether those creditors were defrauded or otherwise acted for a fraudulent purpose. 

(5)  The Defendant participated in the carrying on of the 1st Plaintiff’s business by executing all payment instructions from Tsang and/or Wu.

35.  Section 275 CO provides:

“If in the course of the winding up of a company it appears that any business of the company has been carried on with intent to defraud creditors of the company or creditors of any other person or for any fraudulent purpose, the court, on the application of the Official Receiver, or the liquidator or any creditor or contributory of the company, may, if it thinks proper so to do, declare that any persons who were knowingly parties to the carrying on of the business in manner aforesaid shall be personally responsible, without any limitation of liability, for all or any of the debts or other liabilities of the company as the court may direct.”

36.  As stated in para 16-039 of McPherson & Keay The Law of Company Liquidation (4th ed), carrying on business is interpreted broadly.  Indeed, “carrying on business” is so broad that it is not necessary for the liquidator to prove that there has been a course of conduct, as a single transaction or act is able to constitute it, citing Re Gerald Cooper Chemicals Ltd [1978] Ch 262.

37.  At paragraph 67 of its skeleton submissions, the Defendant argues that the Plaintiffs clearly fail to establish the Alleged Fraudulent Scheme constitutes the “carrying on” of the 1st Plaintiff’s business as what the Plaintiffs have pleaded is not the carrying on of the 1st Plaintiff’s business, but simply a fraud on the 1st Plaintiff.  The long and short of the Defendant’s argument is that because the FISH and SPR Transactions were not proper commercial transactions but were used as a means of misappropriating the 1st Plaintiff’s funds payable as consideration thereunder, they could not amount to the carrying on of the 1st Plaintiff’s business.

38.  This court does not agree.

39.  On the Plaintiffs’ pleaded case, the 1st Plaintiff did enter into and complete the FISH and SPR Transactions as part of its business which involved the acquisition of technologies.  By entering into the Transactions, the 1st Plaintiff was to obtain the technology and other assets for the purpose of selling FISH and SPR products.  The fact that (i) the technology had no or little commercial value, and (ii) the Transactions were used as a means of misappropriating the 1st Plaintiff’s funds and were a fraud on the 1st Plaintiff, does not alter the pleaded fact that the 1st Plaintiff had entered into the Transactions as part of its business.  Equally, the fact that the Transactions were intended to defraud the 1st Plaintiff does not mean that they could not be intended to defraud the 1st Plaintiff’s creditors - the two are not mutually exclusive.  As far as the pleaded intention to defraud the 1st Plaintiff’s creditors is concerned, that is fact sensitive and, for the purpose of striking out, is to be taken in favour of the Plaintiffs.

40.  What the Defendant seems to be suggesting is that because the Transactions were fraudulent transactions, they could not constitute the carrying on of the 1st Plaintiff’s business.  With respect, it is exactly because the Transactions were fraudulent which triggers section 275 CO.  As Mr Manzoni SC submits, accepting the Defendant’s argument in this respect would require an absurd interpretation of the section, which would exclude businesses which are predominantly fraudulent.

41.  To conclude, this court is of the view that it is arguable the pleaded case of fraudulent trading does disclose a reasonable cause of action. 

Fraudulent Trading - procedural objection

42.  The Defendant submits that the claim based on fraudulent trading should be struck out on the ground that it fails to comply with Rule 58 of the Companies (Winding-Up) Rules. The objection is purely technical since there is no suggestion that the Defendant has suffered any prejudice as a result. 

43.  The relevant parts of Rule 58 provide:

“(1) An application under any of the following provisions—

(a) section 276 of the Ordinance;

(b) section 275(1), (2) or (4) of the Ordinance;

…

shall be made by a summons returnable in the first instance in chambers, in which summons shall be stated the nature of the declaration or order for which application is made, and the grounds of the application, and which summons, unless otherwise ordered by the court, shall be served, in the manner in which an originating summons is required by the Rules of the High Court (Cap 4 sub leg A) to be served, on every person against whom an order is sought, …”

44.  In relation to a claim under section 276 CO brought in a writ action, this court held in China Medical Technologies, Inc v Wu Xiaodong [2020] 1 HKLRD 342 that the procedure under Rule 58 is mandatory.

45.  In that case, the defendant applied to strike out a number of paragraphs of the Statement of Claim relating to inter alia the claim made under section 276 CO on the ground that they disclosed no reasonable cause of action and constituted an abuse of process while the plaintiffs applied under RHC O 2 r 1 to cure any irregularity in the manner of commencement of the section 276 claim.

46.  In support of the striking out application, counsel for the defendant advanced 4 grounds in support[3]:

“(1) The s 276 ‘claim’ should have been commenced by Summons under Rule 58(1) of the Companies (Winding up) Rules, Cap 32H (‘Rule 58’) in the winding up proceedings in Hong Kong.

(2) The s 276 ‘claim’ pleaded in a High Court Action is misconceived in principle. The section provides a summary procedure whereby the rights of a company in liquidation may be enforced against past or present officers within existing winding up proceedings.

(3) S 276 does not create any new duty on the part of, or any independent cause of action against, officers of a company.

(4) It is both improper and inappropriate for the Plaintiffs to advance a ‘claim’ under s 276 by way of pleadings in an ordinary High Court Action.”

47.  This court held the first 2 grounds boiled down to procedural irregularity in that the plaintiffs had failed to follow the procedure under Rule 58 - they were not concerned with whether or not the pleaded section 276 claim disclosed a reasonable cause of action.  It was in that context that this court held that the procedure under Rule 58 is mandatory and suggested at [14] the following:

“ … But convenience of the Plaintiffs is not a valid ground to ignore the mandatory terms of Rule 58. It is pointless for the Plaintiffs to issue the O2 r1 Summons to cure the irregularity in the manner of commencement of the ‘claim’ made pursuant to s 276 so that it can be continued by way of the Amended Writ of Summons in this Action. The simplest and most cost‑effective way to cure the irregularity is to issue a misfeasance Summons and seek appropriate directions from the court, if so advised, such that the Summons and this Action can be heard together in order to avoid the possibility of conflicting decisions. …” (emphasis added)

48.  As far as the 3rd and 4th grounds are concerned, they were concerned with whether or not the section 276 claim disclosed a reasonable cause of action. As to that, this court said at [15]:

“15. As for the 3rd and 4th objections, as this court points out earlier, s 276 is a procedural section only—legally speaking, there is no such thing as a s 276 ‘claim’, or ‘cause of action’ for that matter. If so, the application to strike out such parts of the SOC concerning s 276 as disclosing no reasonable cause of action must succeed. The s 276 ‘claim’ is not a cause of action at all—let alone a reasonable cause of action.”

49.  It is for this reason that this court struck out the section 276 “claim” as disclosing no reasonable cause of action. 

50.  Judging from the Plaintiffs’ skeleton, it seems that they advisedly accept the correctness of this court’s decision in China Medical Technologies, Inc v Wu Xiaodong as well its applicability to a claim under section 275 CO.  Indeed, the Plaintiffs have issued a summons in HCCW 435/2012 on 31 August 2020 (“Summons”) asserting a claim under s 275 CO against the Defendant and seeking consolidation of the summons with the present action.

51.  Given this court’s conclusion that it is arguable the pleaded case of fraudulent trading does disclose a reasonable cause of action, it is obviously inappropriate to strike it out on the 1st ground that it discloses no reasonable cause of action.  The Defendant has not made it clear and this court does not see how the failure to follow the Rule 58 procedure comes within the other 3 grounds for striking out. 

52.  In any event, as this court sees it, the most appropriate and direct way to cure the procedural irregularity is to actually follow the procedure under Rule 58, which the Plaintiffs have done by issuing the Summons on 31 August 2020.  Mr Manzoni SC further invites this court to follow the same course as that suggested in China Medical Technologies, Inc v Wu Xiaodong viz to consolidate the Summons with the present action.  That course would be in line with the underlying objectives of the CJR in promoting a sense of reasonable proportion and procedural economy in the conduct of proceedings in that it would avoid unnecessary further amendments to the RASOC without causing any prejudice to the Defendant. 

53.  However, since the Summons has been adjourned by consent pending the determination of the Defendant’s present application[4] and the Defendant is not agreeable to vary the consent order, it is inappropriate for this court to make an order for consolidation at this stage.  But this court expects the parties to fulfil their duty under RHC O 1A r 3 and deal with the Summons properly after this Judgment is handed down. 

54.  Given that the non-compliance with Rule 58 has already been cured by the issue of the Summons, it is academic and hence unnecessary to consider the questions raised by the parties as to whether non-compliance with Rule 58 can be cured by Rule 209 of the Companies (Winding-Up) Rules or RHC O 2 r 1(3). 

Limitation

55.  An order striking out a statement of claim, which is based on a limitation defence, can only be sustained if that defence is manifestly and immediately destructive of the plaintiff’s claim: Kensland Realty Ltd v Tai Tang & Chong(2008) 11 HKCFAR 237 at [153] per McHugh NPJ.

56.  The Defendant submits that the claims for (i) knowing receipt, (ii) unjust enrichment/restitution and (iii) dishonest assistance are all subject to a 6-year limitation period and that each of these causes of action must have accrued by 4 December 2009 ie the date on which the last of the First Tranche payments were completed at the latest.  Thus over 8 years had elapsed between the accrual of the pleaded causes of action and the issuance of the writ in this action on 27 July 2018. 

57.  Judging from the Plaintiffs’ skeleton argument as well as its Annexure 2, it does not appear the above is in dispute.  What the Plaintiffs seek to argue is that they are entitled to rely on section 26(1) of the Limitation Ordinance (“LO”) on the basis that the action is based upon the fraud of the Defendant; alternatively, section 22 on the basis of the 1st and 2nd Plaintiffs’ disability.

Section 22

58.  Section 22(1) and (3) LO provides:

“(1) If on the date when any right of action accrued for which a period of limitation is prescribed by this Ordinance, the person to whom it accrued was under a disability, the action may be brought at any time before the expiration of 6 years from the date when the person ceased to be under a disability or died, whichever event first occurred, notwithstanding that the period of limitation had expired: …

(3) For the purposes of this section and section 22A, a person shall be deemed to be under a disability while he is an infant or of unsound mind, …” (emphasis added)

59.  The Plaintiffs’ pleaded case is that they had suffered from a “disability” until the Liquidators were appointed on 27 July 2012 because the 1st and 2nd Plaintiffs were, until then, controlled by the wrongdoers Wu and Tsang.  At paragraph 49 of their skeleton, they submit that (i) the definition of “disability” cannot be restricted to cases of infancy and unsound mind and (ii) the most obvious way that a company could come within the definition of “disability” is when it was controlled by wrongdoers, such that it was unable to act to advance its own interests.  No authority is cited in support of the above submissions save for (i) the Australian decision Gerard Cassegrain & Co Pty Ltd v Cassegrain [2011] NSWSC 1156[5] in which a company was held to be under a disability during the period when it was in receivership, and (ii) section 3 of the Interpretation and General Clauses Ordinance, Cap 1 which defines “person” to include “corporate” person. 

60.  As explained in the Defendant’s Reply submissions, Gerard Cassegrain & Co Pty Ltd v Cassegrain does not assist the Plaintiffs since section 11 (3) of the NSW Limitation Act 1969, which the Australian Courts relied upon, provides for an entirely different definition of “disability” from our section 22 which involves a detailed factual inquiry into a plaintiff’s mental and physical circumstances.  Section 3 is also of little assistance since under section 2 of Cap 1, the definitions apply save where the contrary intention appears from inter alia the context of any other Ordinance, in the present case, the LO.  Hence, one still has to ascertain the meaning of “disability” in the context of section 22.  As the Hong Kong and UK authorities show, corporations are excluded from the ambit of section 22. 

61.  In Chan Kam Nun v Immigration Department [2018] 1 HKLRD 1251, the defendant applied to strike out the Statement of Claim on the ground inter alia that it was time-barred.  In answer to that, the plaintiff, a natural person, relied on section 22 to postpone the running of time.  The Master granted the defendant’s application and rejected the Plaintiff’s argument that because of his inability to return to Hong Kong and his lack of means to instruct a lawyer, he was under a “disability”.  The Master’s decision was upheld on appeal. 

62.  It was in this context that DHCJ To concluded that the term “disability” should be given a narrow meaning to include only “a lack of mental capacity” by reason of being a minor or being mentally disabled or suffering from mental disorder.  At [19], the learned Deputy Judge said:

“19. I have to adopt an even narrower interpretation.  The English equivalent of the term ‘無行為能力’ is “disability”.  Both the Chinese term and its English equivalent have a very broad meaning, including a lack of ability to act, such as lack of money, physical power, physical fitness, intellectual ability and mental ability, and also covering people like minors, mentally handicapped, mentally disabled, physically disabled and physically handicapped.  However, as a legal term or expression, it carries a relatively narrow meaning.  … Therefore, ‘disability’ refers to a lack of mental ability, that is to say, not having sufficient intellectual ability to make a rational decision, by reason of being a minor or mentally disabled or suffering from mental disorder.”

63.  As the Defendant points out, there is nothing to suggest that Chan Kam Nun is wrongly decided.  None has been put forward by the Plaintiffs.

64.  As for UK authorities, the Plaintiffs have very properly drawn this court’s attention to the case of Kazakhstan Kagazy Plc v Baglan Abdullayevich Zhunus [2017] EWHC 3374 at [559] in which Picken J held that the English equivalent of section 22 only applies to natural persons. 

65.  The Defendant submits that the short point here is that there is no difficult point of law or factual issue.  The Plaintiffs’ reliance on section 22 is plainly misconceived.  This court agrees.

Section 26(1)

66.  Section 26(1) 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) the action is based upon the fraud of the defendant;

…

the period of limitation shall not begin to run until the plaintiff has discovered the fraud, concealment or mistake (as the case may be) or could with reasonable diligence have discovered it.”

67.  The pleas relevant to section 26 (1) are set out in paragraphs 272 to 273 of the RASOC:

“272. The Defendant’s conduct as pleaded herein was dishonest and/or unconscionable, comprising ‘fraud’ within the meaning of s. 26(1) of the Limitation Ordinance (Cap 347) (‘Limitation Ordinance’). The Plaintiffs first discovered that Mr Tsang was the sole ‘Authorised Person’ on the First Plaintiff’s Supreme Well BOCHK Accounts in February 2014, and in the period thereafter, that the Defendant had engaged in the dishonest and/or unconscionable conduct alleged herein.

273. The Plaintiffs could not with reasonable diligence have discovered the Defendant’s dishonest and/or unconscionable conduct sooner than they did. In the premises, section 26(1) of the Limitation Ordinance operates so as to postpone the limitation period in respect of the Plaintiffs’ claims for dishonest assistance and knowing receipt.” (emphasis added)

68.  Further and Better Particulars of the said pleas are given in paragraphs 172 to 180 of the AFBPs:

“172. During the period from at least November 2006 to February 2012:

172.1 the FISH Transaction was presented to the Board of the First Plaintiff and the public as a legitimate arm’s length acquisition by the First Plaintiff and its subsidiaries of the FISH Technology from supposedly independent third parties, Supreme Well and its subsidiaries, for purchase consideration of US$176.8 million; and

172.2 the SPR Transaction was presented to the Board of the First Plaintiff and the public as a legitimate arm’s length acquisition by the First Plaintiff and its subsidiaries of the FISH [sic] Technology from supposedly independent third parties, Supreme Well and its subsidiaries, for purchase consideration of US$345 million.

173. On 10 February 2009, the Plaintiffs’ auditor, KPMG Hong Kong received an anonymous letter (‘Anonymous Letter’) [CMTL.009.007.102274]. The Anonymous Letter alleged, inter alia, that the vendors in the FISH and SPR Transactions were British Virgin Islands shell companies with no apparent business operations, which are controlled by certain parties in China with relationships to the First Plaintiff’s management.

174. Following receipt of the Anonymous Letter, the Audit Committee of the First Plaintiff engaged law firm Paul, Weiss Rifkind, Wharton & Garrison LLP and / or Paul, Weiss Rifkind, Wharton & Garrison (a Hong Kong firm) (‘Paul Weiss’) to inter alia conduct an independent internal investigation into the allegations made in the Anonymous Letter. Paul Weiss in turn engaged forensic accounting firm AlixPartners LLP.

175. Following the conduct of the internal investigation, Paul Weiss advised the Audit Committee, inter alia that (‘Paul Weiss Advice’)

175.1 there was no merit whatsoever to the allegations raised by the Anonymous Letter;

175.2 there was nothing out of the ordinary to report with respect to the FISH and SPR Transactions;

175.3 they did not find any evidence to support the allegations in the Anonymous Letter; and

175.4 the FISH and SPR Transactions had the earmarks of a legitimate, arms-length transaction and that they had concluded that they were not related party transactions.

176. By press release dated 30 July 2009, the First Plaintiff publicly announced that the Anonymous Letter had been received, and that the Audit Committee had conducted an independent internal investigation with the assistance of Paul Weiss and Alix Partners, who had reported to the Audit Committee that ‘the investigation has not identified evidence to support the allegations made in the anonymous letter’ [CMTL.001.006.005413].

177. Following receipt of the Paul Weiss Advice, it was reasonable for the Plaintiffs not to conduct further investigations into the allegations made in the Anonymous Letter. The Plaintiffs were not aware of any evidence that the FISH and SPR Transactions were related party transactions, or that the Defendant knew this to be the case, or even that the proceeds of the FISH and SPR Transactions had been received into accounts held with the Defendant.

178. In any event, further investigation prior to the appointment of the Liquidators would not have led the Plaintiffs to discover that Mr Tsang was the sole ‘Authorised Person’ on the Supreme Well Primary BOCHK Account and the Supreme Well Secondary BOCHK Account (‘SW Signatory Information’), and therefore the Defendant’s knowledge of this, prior to February 2014.

179. Following the appointment of the Liquidators on 27 July 2012, the Liquidators investigated the affairs of the First Plaintiff, but could not with reasonable diligence, have discovered the Defendant’s dishonest and/or unconscionable conduct by reference to the SW Signatory Information or otherwise sooner than they did, in that:

179.1 immediately following the Liquidators’ appointment, by letter dated 2 August 2012 [FOLDERS.021.000094], the Liquidators requested that the Defendant provide information regarding the First Plaintiff’s accounts with BOCHK, including copies of bank statements. The Defendant initially declined to provide the Liquidators with the requested information without a Court Order issued by the Hong Kong Court;

179.2 by letter dated 19 October 2012, the Defendant advised it would provide the requested information upon receipt of a sealed copy of the Order of the Grand Court of the Cayman Islands by which the Liquidators were appointed [FOLDERS.021.000015]. This Order was provided to the Defendant by letter dated 25 October 2012 [FOLDERS.021.000018];

179.3 by letter dated 8 November 2012 [FOLDERS.021.000020], the Defendant provided information to the Liquidators which identified the payments out of the First Plaintiff’s BOCHK Account, but not to whom the payments were made, and accordingly, the Liquidators did not know which payments, if any, had been made to Supreme Well;

179.4 by letter dated 27 November 2012 [FOLDERS.021.000021], the Liquidators requested copies of remittance instructions, confirmations, debit advices and withdrawal slips in relation to 85 payments made from the First Plaintiff’s BOCHK Account so that they could identify to whom the payments were made;

179.5 by letter dated 31 January 2013 [FOLDERS.021.000046], the Defendant provided transaction records in relation to the requested payments. This information identified that US$303.75 million had been paid directly to Supreme Well by way of 48 cashier orders, but did not identify where the cashier orders had been deposited. By letter dated 28 March 2013, the Liquidators requested this information from the Defendant [FOLDERS.021.000050];

179.6 by letter dated 4 June 2013 [FOLDERS.021.000065], the Defendant provided the Liquidators with 47 of the 48 cashier orders drawn in favour of Supreme Well. The cashier orders disclosed that Supreme Well deposited 31 of the orders with the Defendant. Thus, the Liquidators became aware that Supreme Well held an account with the Defendant. However, the Liquidators did not have any information in relation to the account, other than its account number;

179.7 by letter dated 5 July 2013 [FOLDERS.021.000083], the Liquidators requested details of all bank accounts held by Supreme Well, Zhu Feng, Chen Zhong. Mr Tsang, Mr Wu and Chengxuan, and copies of their bank account statements;

179.8 by letter dated 18 July 2013 [FOLDERS.021.000087], the Defendant advised the Liquidators that it would not provide the requested information unless they received a Court Order, search warrant, or consent from the account holders;

179.9 at that time, the Liquidators had an extant petition to the High Court of Hong Kong for an order that the First Plaintiff be wound up in Hong Kong, which was listed for hearing on 26 and 27 August 2013. In the event that the petition was granted, the Hong Kong Liquidators would be able to seek orders for production of documents from the Defendant relating to Supreme Well’s account with the Defendant;

179.10 on 5 September 2013, the High Court of Hong Kong informed the Liquidators that it intended to dismiss the petition to wind up the First Plaintiff and set aside the appointment of its provisional liquidators;

179.11 in or around mid-September 2013, during the course of confidential discussions between the Liquidators and the Hong Kong Police, it became obvious to the Liquidators that the Hong Kong police had obtained from the Defendant documentation relating to Supreme Well’s bank account with the Defendant (‘SW BOC Documents’), and that the SW BOC Documents would be helpful for the Liquidators’ investigations. Thereafter, the Liquidators took steps to obtain the SW BOC Documents from both the New York branch of the Bank of China (BOCNY) and the Hong Kong Police;

179.12 on 26 September 2013, the foreign representative of the First Plaintiff filed a motion in the US Bankruptcy Court for the issuance of subpoenas against BOCNY for the production of the SW BOC Documents. The motion was approved by the US Bankruptcy Court, and on 23 October 2013, the subpoena was issued, and thereafter served on BOCNY. By letter dated 19 November 2013, BOCNY advised the Supreme Well had never been a customer of Bank of China in the USA and that no responsive documents were found in respect of the subpoena. On 6 December 2013, BOCNY filed a response and objection to the subpoena;

179.13 the Liquidators thereafter sought, and on 6 February 2014 obtained from the High Court of Hong Kong, a confidential order for of production the SW BOC Documents by the Commissioner of Police, with such production to only be made if no notice of objection is made by the Defendant within seven days; and

180. the Defendant was served with the 6 February 2014 Order and made no objection to production of the documents to the Liquidators. Accordingly, on 20 February 2014, the Liquidators received the SW BOC Documents, which disclosed to them the SW Signatory Information for the first time.” (emphasis added)

69.  As far as the facts pleaded in paragraph 179 regarding the Liquidators’ request for documents from the Defendant are concerned, they are supported by the 1st affidavit of Cosimo Borrelli filed herein on 25 August 2020 at section B4 (“Borrelli 1”).

70.  In their skeleton, the Plaintiffs submit that time under section 26 does not start to run until a plaintiff has, or could with reasonable diligence, have, discovered the fraud of the defendant.  Discovery of the fraud perpetrated by Tsang or Wu is not of itself sufficient for time to run - the Plaintiffs also have to know or be able to discover the Defendant’s part in their fraud.

71.  In the present case, it is pleaded that the Defendant’s fraud was in fact not discovered until February 2014, at the earliest.  That plea, even if disputed, has to be taken in favour of the Plaintiffs for the present purpose.  The question then is whether the Defendant’s fraud could with reasonable diligence have been discovered earlier than in 2014 and if yes when. 

72.  On the Plaintiffs’ part, their primary allegation of fraud against the Defendant is that its 2 employees, Loman Lo and Jackie Chiu, were aware that the FISH and SPR Transactions were improper.  Loman Lo and Jackie Chiu were aware of this because they were the relationship managers of the P1 BOCHK Account and the Supreme Well BOCHK Accounts, as well as other accounts through which the misappropriated funds were laundered.  In order for the Plaintiffs to discover the Defendant had the requisite knowledge that the FISH and SPR Transactions were improper, they needed to discover that the Defendant knew Tsang was on both sides of the FISH and SPR Transactions by discovering that Tsang was the account signatory of the Supreme Well BOCHK Accounts.  The Plaintiffs only found out about that when they obtained the Supreme Well bank documents in February 2014.  It was therefore only at that time that the Plaintiffs discovered the fraud of the Defendant.  The Writ in this action was issued and served within 6 years.

73.  On the other hand, the Defendant submits that the Plaintiffs have failed to show that, objectively, a well-advised plaintiff with their resources could not with reasonable diligence have discovered the claim against the Defendant[6]. This is because the only essential fact that the Plaintiffs said was missing is information of the Defendant’s knowledge that Tsang was on both sides of the FISH and SPR Transactions by being the sole “Authorised Person” of the Supreme Well BOCHK Accounts (“Supreme Well Signatory Information”).  It submits that from the following undisputed facts, the Plaintiffs could with reasonable diligence have discovered the Supreme Well Signatory Information well before the cut-off date of 27 July 2012.

74.  First, the 1st Plaintiff’s board of directors was put on notice of the Alleged Fraudulent Scheme by the Anonymous Letter on 4 February 2009 ie more than 3 years before the cut-off date.  The Anonymous Letter did more than merely put the 1st Plaintiff on notice of the existence of a potential fraud.  It expressly suggested that the FISH and SPR Transactions were fraudulent related party transactions, involving a grossly inflated consideration, which were designed to siphon off the 1st Plaintiff’s assets to entities associated with its CEO and officers.

75.  Second, on the Plaintiffs’ own case, (i) Paul Weiss was negligent and (ii) had Paul Weiss not been negligent, the 1st and 2nd Plaintiffs would have discovered the Alleged Fraudulent Scheme earlier.

76.  Third, it is the Plaintiffs’ own case in the Paul Weiss Proceedings that had Paul Weiss not been negligent, the 1st and 2nd Plaintiffs would have prevented payments made after 1 July 2009 and taken steps to freeze, trace and recover the funds paid out prior to 1 July 2009.

77.  Fourth, it is undisputed that it took less than 1 year and 7 months, between their appointment on 27 July 2012 and 6 February 2014, for the Liquidators to obtain the requisite documents from the Defendant and discover the Supreme Well Signatory Information.

78.  On the basis of the above, the Defendant submits that (i) assuming Paul Weiss had not been negligent and the Plaintiffs were motivated by a reasonable sense of urgency, it is clear that the 1st and 2nd Plaintiffs could have discovered the Alleged Fraudulent Scheme by July 2009 or shortly thereafter and then traced the funds into Supreme Well’s bank accounts and (ii) having discovered the Alleged Fraudulent Scheme by the 4 Individuals, the Plaintiffs have not shown that a well-advised company in the position of the 1st and 2nd Plaintiffs could not, with reasonable diligence, have proceeded to discover the Supreme Well Signatory Information before the cut-off date of 27 July 2012. 

79.  It seems to this court that the Defendant’s said submissions are at most reasonably arguable but fall well short of being manifestly and immediately destructive of the plaintiff’s reliance on section 26(1) LO. 

80.  Whether or not the Plaintiffs could, with reasonable diligence, have discovered the fraud of the Defendant earlier than February 2014 and if yes when is highly facts sensitive and requires a minute and protracted examination of the documents and facts of the case.  The Defendant’s submissions depend heavily on inter alia the knowledge of the 1st Plaintiff’s board of directors, including in particular that of its Audit Committee, and the action that they could have taken with that knowledge, after receiving the Anonymous Letter on 4 February 2009.  The Defendant’s submissions also rely on an examination of Paul Weiss’ conduct in investigating the allegations in that letter.  But as the Plaintiffs point out, Paul Weiss’ investigation was directed at possible wrongdoing by the former management of the 1st and 2nd Plaintiffs, not at the conduct of the Defendant.^[7]  Whether Paul Weiss should nevertheless have gone on to look into the Defendant’s conduct is clearly debatable.

81.  To conclude, in accordance with the well-established principles governing striking out, the matter is wholly unsuitable to be decided in this application.  Subject to the Defendant’s submission below to the effect that the claims in unjust enrichment and knowing receipt are outside the ambit of section 26(1)(a), this court is not satisfied it is plain and obvious that the Plaintiffs would be unable to rely on section 26(1)(a) to postpone the running of time. 

82.  The Defendant’s submission is straightforward.  Section 26(1)(a) only applies if the fraud of the defendant is an essential element of the cause of action.  If fraud is not an essential element, the fact that the pleadings also make reference to fraud or conduct amounting to fraud does not suffice: Beaman v ARTS Ltd [1949] 1 KB 550, 558 per Lord Greene MR, 567 per Somervell LJ.

83.  The issue was recently canvassed by Mimmie Chan J in Hing Yip Holdings (Hong Kong) Limited v Cellmark China Limited [2021] HKCFI 1396, 17 May 2021 concerning claims based on want of authority and knowing receipt.  At [230] to [236], the learned Judge analysed the authorities and concluded obiter that fraud was not an essential element of either claim so that section 26(1) had no application.  At [232] to [236], the learned Judge explained her reasoning as follows:

“232. For section 26 (1) to apply, the Plaintiff has to establish either that the action is based upon the fraud of the Defendants, or any fact relevant to the Plaintiff’s right of action had been deliberately concealed from the Plaintiff by the Defendants, in which case limitation shall not begin to run until the Plaintiff had discovered the fraud or concealment, or could with reasonable diligence have discovered it.

233. Whilst the Defendants accept that dishonest assistance is based upon fraud (to fall within section 26 (1) (a)), they do not accept fraud to be a necessary allegation to constitute knowing receipt and want of authority. Knowing receipt requires unconscionability on the basis of the defendant’s knowledge (BCCI v Akindele; Williams v Central Bank of Nigeria [2014] AC 1189) but as Counsel submitted in the context of the Plaintiff’s claim in knowing receipt, unconscionability requires a lower standard than dishonesty (Akai). The Plaintiff relies on Williams v Central Bank of Nigeria [2014] AC 1189 to contend that knowing receipt is accepted as activating section 26 (1) (a) of LO. In that case, Lord Neuberger observed at para 119 of his judgment:

‘Finally, it is right to mention that in some cases of dishonest assistance or knowing receipt, even though the normal six-year period may have expired, a claimant may be able to invoke section 32 of the 1980 Act, which postpones the commencement of the six years, in cases ‘based on the fraud of the defendant’, or where the defendant has ‘deliberately concealed’ relevant facts from the claimant.’ (Emphases added)

234. The above only states that in some cases, the six-year limitation may be postponed either in cases which are based on fraud, or where the defendant has deliberately concealed relevant facts. It is not, on its face, a broad and general statement that all cases of knowing receipt are based on fraud as a necessary element of the cause of action.

235. The Defendants rely on Brent Borough Council v Davies [2018] EWHC 2214 (Ch), which contains a more thorough analysis. There, the Court explained its basis for finding that knowing receipt is not based on fraud, and I agree with that finding:

…

236. The necessary elements required for setting aside the transactions on the basis of want of authority are lack of actual and apparent authority, and do not include fraud.”

84.  Relying on Beaman v ARTS Ltd and Hing Yip Holdings (Hong Kong) Limited (and the authorities cited therein), the Defendant submits that since fraud does not form an essential element of the unjust enrichment[8] or knowing receipt claim, the Plaintiffs cannot rely on section 26(1) to postpone the running of time.  

85.  The Plaintiffs, on the other hand, refer this court to a recent decision by DHCJ Le Pichon in China Metal Recycling (Holding) Limited (in Liquidation) & Anor v UBS AG & Anor [2021] HKCFI 918 at [61] - [72] in which the learned Judge examined the issue whether section 26 is limited to common law fraud or extends to unconscionable conduct. At [72], the learned Judge concluded that there was a serious question to be tried that the meaning of fraud in section 26 included where the defendant acted with “some knowledge of the impropriety of the conduct involved” or unconscionably. 

86.  In this court’s view, China Metal Recycling (Holding) Limited (in Liquidation) only assists the Plaintiffs in so far as the knowing receipt claim is concerned.  It is accepted by the parties that one of the essential elements of that claim is “knowledge on the part of the defendant that the assets are traceable to a breach of fiduciary duty or breach of trust”: El Ajou v Dollar Land Holdings Plc (No 1) supra. In section F of the draft RASOC, the Plaintiffs have pleaded extensively on the Defendant’s knowledge of the misappropriation by the 4 Individuals.  Hence, it is at least arguable that section 26(1) can cover the Plaintiffs’ claim for knowing receipt, as the Defendant originally conceded in its skeleton submissions. 

87.  As for the unjust enrichment claim, not only is fraud not an essential ingredient of the claim, the Plaintiffs have not even pleaded any unconscionable conduct on the Defendant’s part or knowledge of the impropriety of the 4 Individuals’ conduct.  All that the Plaintiffs have pleaded, at paragraph 260 of the draft RASOC, was want of authority of the 4 Individuals, period.  With respect, this court fully agrees with Mimmie Chan J when her Ladyship concluded that a claim based simply on want of authority must be outside the ambit of section 26(1).  In fact, if one looks carefully at para 273 of the draft RASOC, the Plaintiffs have not relied on section 26(1) in relation to this claim.

88.  To conclude, of the 3 claims which are prima facie time-barred, this court is of the view that it is arguable that the Plaintiffs can rely on section 26(1) to postpone the running of time for the knowing receipt and dishonest assistance claims, but not the unjust enrichment claim.  In other words, this court is of the view that the limitation defence is manifestly and immediately destructive of the unjust enrichment/restitution claim which should be struck out. 

Disposition and costs

89.  The unjust enrichment/restitution claim pleaded at paragraph 260 of the ASOC is hereby struck out.  Save as aforesaid, the Defendant’s Summons is hereby dismissed. 

90.  Concerning the Plaintiffs’ Summons, there does not appear to be any “opposition” from the Defendant save that it would be futile to give leave to the Plaintiffs if it succeeds in striking out the entire ASOC. Since this court is not minded to strike out the entire ASOC, the Plaintiffs’ Summons is hereby allowed.  There shall be an Order in terms of paragraphs 3 to 5 of the Draft Order annexed to the Plaintiffs’ skeleton, save that the time for the Defendant to file and serve its Defence be revised to 56 days from the date of this Order. 

91.  As for costs, in the absence of agreement between the parties within 14 days, they are directed to obtain a hearing date for submissions on costs, 1 hour reserved. 

92.  Liberty to apply. 

93.  It remains for this court to thank counsel on both sides for their helpful assistance.