KERRY FRANCIS MOORE also known as KERRY MOORE v. JENNEX CORPORATION LTD AND OTHERS

HCMP 2109/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 2109 OF 2015

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JUDGMENT

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Introduction

1. These proceedings were commenced by originating summons.  So far as I am aware, none of the respondents has contended that these proceedings should be converted into a writ action by reason of the existence of or need to resolve factual disputes.

2. Kerry Francis Moore, also known as Kerry Moore, (“Kerry”) is the applicant.  Jennex Corporation Limited (“Jennex”) is the 1^st respondent.  Raymond Lo, also known as Lo Kin Kei, (“Raymond”) is the 2^nd respondent.  Correstone Limited (“Correstone”) is the 3^rd respondent.  Thomas Scott Farnen (“Thomas”) is the 4^th respondent.

3. These proceedings were brought in relation to two shares in Shineland Corporation Limited (“Shineland”).

The Raymond held share in Shineland

4. One share is held by Raymond who acknowledged that he held the share “on trust for and on behalf of Kerry” and Raymond said he “is willing and ready to abide by any order which this court deems fit to make in relation to” this share.  What he has not explained is why he has not done so without an order of the court.

5. In relation to the Raymond held share in Shineland, Thomas deposed in §44 of his 2^nd affirmation that:

“The effect of the terms of the Shineland Nominee Agreement was tolerably clear; [Raymond] was to hold his one [Shineland] share on trust for [Kerry] …”

6. Thus, there is no dispute that Kerry is entitled to have the Raymond held share in Shineland transferred to Marketing Trustees Limited.

The Jennex held share in Shineland

7. The other share in Shineland is held by Jennex.

8. Kerry’s case is that this share is held by Jennex on trust for him under the Deed of Trust dated 24 July 2003 made by Jennex as “Trustees” with the Settlor.  Clause 16(b) of the Deed provided that:

“The ‘Trust Fund’ means … (b) all further money, investments or other property paid or transferred by any person or persons to or placed under the control of and (in either case) accepted by the Trustees as additions to the Trust Fund”.

9. There is no dispute that the Shineland share was transferred to Jennex.  What remains is the question of acceptance by Jennex as an addition to the Trust Fund.

10. (1)  Kerry affirmed in §32 of his Third Affirmation that:

“Last but not least, [Thomas’] case conflicts with the way the Shineland Trust has been administered going as far back as 2004. I refer in particular to the documents entitled ‘Shineland Trust Financial Statements for the Year Ended 30 June 2004’ (the ‘Shineland Trust 2004 Financial Statements’) and ‘Shineland Trust Financial Statements for the Year Ended 30 June 2005’ (the ‘Shineland Trust 2005 Financial Statements’). These financial statements were prepared by Mr Owen Williams, a New Zealand qualified accountant, who had prepared financial Statements for each of the sub‑trusts from 2004 onwards.”

(2)  The Shineland Trust 2004 Financial Statements showed “Income Dividends Received” and “Trustees Income”, both of US$639,624.  Kerry was identified as “Beneficiaries”.  Jennex was the “Trustees” under the “Shineland Trust Particulars as at 30 June 2004” and “Joseph Chu Lo and Lau” were named as solicitors.  Raymond is a solicitor and partner of Joseph Chu Lo and Lau (“Raymond’s Firm”).

(3)  The Shineland Trust 2005 Financial Statements showed “Dividends Received” of US$651,808.  Kerry was identified as “Beneficiaries”.  Jennex was the “Trustees” under the Particulars for the Shineland Trust as at 30 June 2005 and Raymond’s Firm were named as solicitors.

(4)  Mr John Hui has made no application to have Kerry attend for cross‑examination on his 3^rd affirmation.  He also told me categorically that he was not challenging the authenticity of the financial statements.  Authenticity being not in issue, it is irresponsible for Mr John Hui to allege, without any or any cogent evidence, that the financial statements were “manufactured” or the like: see the section under “Postscript” below.  I accept the two financial statements as credible evidence that the Jennex held Shineland share had been accepted by Jerry as an addition to the Trust Fund and that the share had been held by Jennex on trust for Kerry. 

11. Mr Wilson Leung claimed that Raymond and Correstone adopted a neutral position as to whether the Jennex held share was held on trust for Kerry.  Raymond is a solicitor and partner of Raymond’s Firm and Correstone is a service company owned by Raymond’s Firm.  Raymond and Correstone had both resigned as director and shareholder of Jennex leaving Jennex with no director or shareholder.

12. Raymond argued that they acted as nominees in accordance with the Trustee Appointment Agreement and all their actions on behalf of Jennex therefore required approval from all four Appointors.  This argument is similar to Thomas’ argument as to which see below.  The “Trustee Appointment Agreement” does not require approval from all Appointors for actions on behalf of Jennex.  I reject Raymond’s argument.

13. Jennex was the trustee for the Shineland trust but Thomas argued that Jennex held the Shineland share beneficially.

14. It is not disputed that the profits from the Shineland share were held by Jennex on trust for Kerry.  But, Mr John Hui contended that holding the profits from the share on trust did not mean that the share was held on trust.

15. To start with, this contention seems illogical. If the Shineland share was held by Jennex beneficially, how did the dividends paid out on or profits from the Jennex held Shineland share become trust property? Moreover, what is the point of holding a share beneficially if the profits or dividends are not?

16. There is an undated written document entitled “Terms and Conditions for Acceptance of Appointment as Trustee” made by (1) Jennex as “The (sic) Trustee”, (2) Owen Neil Williams, Joel Martin Truscott, Kerry and Thomas as “the [sic] Appointors”, and (3) The Partners of [Raymond’s Firm]. The “Background” in the document read as follows:

“Background:

(A) The Appointors are beneficiaries under the Jennex Trading Trust, Fraiser Trust, Shineland Trust and the East Orient Trust and instrumental in establishing and financing such trusts;

(B) The Appointors wish to appoint the Trustee as sole Trustee of the Fraiser and Shineland Trusts (‘the Trusts’)

(C) The Trustee will provide nominee Director and Shareholder services to companies associated with and/or owned and controlled by the Jennex, Shineland, Fraiser and East Orient Trusts;

(D) Partners of the Firm will also provide nominee Director and/or nominee shareholding services to companies associated with various trusts;

(E)  …”

17. Mr John Hui contended that Recitals C & D established that Raymond and Correstone were nominees of all four Appointers, ie Owen Neil Williams, Joel Martin Truscott, Kerry and Thomas.

18. I have no hesitation in rejecting Mr John Hui’s contention as wholly unmeritorious.  Recitals C and D established nothing of the sort.  The point is so obvious that it is not capable of much elaboration.

19. Mr John Hui asserted in §9 of the 4^th respondent’s Skeleton Submissions that the beneficiaries of the four sub‑trusts are:

Sub‑trust	Beneficiary/beneficiaries
Shineland Trust	Kerry
East Orient Trust	Thomas and his ex‑wife
Fraiser Trust	Joel Martin Truscott
Peninsular Housing Trust	Owen Neil Williams

20. Thus, each of the four Appointors (Thomas’s ex‑wife was a co‑beneficiary with Thomas) has his own sub‑trust. 

21. Just as Kerry has no business to meddle in the East Orient Trust, Thomas has no business to meddle in the Shineland Trust.  If Mr John Hui’s contention were tenable, Thomas and the other two Appointors could meddle in the Shineland Trust, then Kerry and the other two Appointors could meddle in the East Orient Trust.  This is plain nonsense and defeats the purpose of each of the four Appointors (Thomas’s ex‑wife was a co‑beneficiary with Thomas) having his own sub‑trust.

22. I hold that Thomas and the other two Appointors had no interest, no right and no say in the Shineland Trust.

23. As Kerry is the sole beneficiary and protector of the Shineland Trust, the Jennex held Shineland share should also be transferred to Marketing Trustees Limited.

Disposition

24. I make an order in terms of §§(1) – (4) of the Re‑Amended Originating Summons.

25. If Raymond and Jennex should fail to make the transfers as directed by me, Kerry is at liberty to apply to a judge to order the transfer to be carried out by some other fit and proper person to effect the transfer.

26. The trust (and sub‑trust) structure is complicated.  The events date back a couple of decades.  There is no or no proper introduction or explanation of the factual background.  The documents and authorities filed (nine lever arch files in all) are voluminous and most of them have not been referred to at the hearing.  P C Woo & Co lodged a bundle called “Core Hearing Bundle (2)”.  This bundle was hardly referred to.  The arguments range over a large number of issues, most of which are irrelevant.  Much of Thomas’ affirmations and arguments are irrelevant and inadmissible.

Costs order nisi

27. This is an unnecessary litigation.  Raymond should not have made it necessary for Kerry to apply to court.

28. Thomas’ conduct (including the conduct of his counsel) is deplorable.

29. I make an order nisi under Order 42, rule 5B(6) of the Rules of the High Court, Cap 4A, that Kerry’s costs be taxed on indemnity basis and paid by the Raymond, Correstone and Thomas.

Postscript

30. Before leaving this case, I must record the conduct of Mr John Hui in persisting to make very serious allegations in the course of his submissions. 

31. These proceedings were commenced by originating summons.  So far as I am aware, none of the respondents has contended that these proceedings should be converted to a writ action by reason of the existence and need to resolve factual disputes.  If the very serious allegations made by Mr John Hui were material to the resolution of the litigation, he should have applied to convert the proceedings to a writ action.  But he has not.

32. A litigant or counsel must not make very serious allegations (including fraud) without cogent evidence supporting the same.  This much is trite and I will cite two cases to make good this proposition.

33. In Associated Leisure Limited and others v Associated Newspapers Limited [1970] 2 QB 450 at p 456, Lord Denning MR said:

“… the rule, well settled, which I will read from Gatley on Libel and Slander, 6th ed. (1967), p. 462, para. 1046:

‘A defendant should never place a plea of justification on the record unless he has clear and sufficient evidence of the truth of the imputation, for failure to establish this defence at the trial may properly be taken in aggravation of damages.’

I have always understood such to be the duty of counsel.  Like a charge of fraud, he must not put a plea of justification on the record unless he has clear and sufficient evidence to support it.”

34. In Choy Bing Wing v Chief Executive of HKSAR China and others [2006] 1 HKLRD 666 at §9, J Lam J (as he then was) said:

“The Writ contained very serious allegations which should not be advanced without cogent evidence supporting the same. It is well established that the court will not allow allegations of such nature to be made without proper evidence and if they were made irresponsibly, it will exercise its inherent jurisdiction to strike out the same (see C S Low Investment & Others v Freshfields [1991] 1 HKLR 12 at p.23A–D; Tam Chi Kok Gabriel v Fok Eugina (unrep., HCA No 1859 of 1992, [2003] HKEC 723); Re Gagich (unrep., HCAJ No 361 of 1995); 林哲民訴特佳機器廠有限公司及另一人 (unrep., CACV No 122 of 2004) para.25).”

35. Mr John Hui criticised the Financial Statements relied on by Mr Andrew Lynn. I asked Mr John Hui whether he was disputing authenticity and he replied in the negative.

36. Soon after his reply, he used the word “manufactured”.  I did not see how he could responsibly allege manufacture of a document if he was not disputing authenticity.  I stopped him and he withdrew the “manufacture” allegation.

37. Having withdrawn the allegation of “manufacturing”, he felt it proper to go on to allege that the document was “created by this party in favour of one position”.  I asked him to prove the “creation” of the document.  He made no attempt to do so.

38. Undaunted, Mr John Hui went on to accuse Kerry of trying to alter the checks and balances initially imposed and tried to “extract” money from this trust.

39. I asked him to make good his allegation.  What he did was to assert that the application “is premeditated by an ulterior motive of extracting money from the trust structure by altering the balance …”.

40. Making very serious allegations without any or any cogent evidence in support is serious misconduct.  Smearing does not take Thomas’ case any further.