POWER SECURITIES CO LTD (formerly known as JUN YANG SECURITIES CO LTD) v. SIN KWOK LAM AND OTHERS

CACV 594/2019 & CACV 59/2020

(Heard Together)

[2023] HKCA 594

On Appeal From [2021] HKCFI 2920

CACV 594/2019

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 594 OF 2019

(ON APPEAL FROM HCA NO 1719 OF 2018 and

HCA NO 1071 OF 2019)

_________________________________________

HCA 1719/2018

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1719 OF 2018

___________________________________________

BETWEEN

______________________________________

(By Original Action)

BETWEEN

______________________________________

(By Counterclaim)

AND

HCA 1071/2019

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1071 OF 2019

________________________

BETWEEN

________________________

(HEARD TOGETHER)

AND

CACV 59/2020

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 59 OF 2020

(ON APPEAL FROM HCA NO 1071 OF 2019)

BETWEEN

______________________

(HEARD TOGETHER)

___________________

J U D G M E N T

___________________

Hon Chu VP:

1.  I agree with the judgment of Yuen JA.

Hon Yuen JA:

Introduction

2.  On 5 December 2019, Coleman J (“the judge”) gave a judgment (“the Judgment”)¹ in two actions heard together, viz.

(1) HCA1719/2018 (“the 2018 Action”) in which:

in the original action,

- Power Securities Co Ltd (“Power Securities”) was the plaintiff,

- Sin Kwok Lam (“Mr Sin”), Mai Shao Hang (“Mai”), Best Year Enterprises Ltd (in liquidation)² (“Best Year”) and Enhance Pacific Ltd (“EPL”) were the defendants; and

in the counterclaim,

- Best Year³ and Mr Sin were the plaintiffs, and

- Power Securities, Ng Kam Lung Volais (“Mr Ng”), Tang Ching Ho (“Mr Tang”) and Sit Sai Hung Billy (“Mr Sit”) were the defendants.

(2) HCA1071/2019 (“the 2019 Action”) in which:

- Best Year and Mr Sin were the plaintiffs,

- Power Securities and Mr Tang were the defendants.

3.1.  The judge had to determine:

(1) applications made by Power Securities and Mr Sit, and Mr Tang, and Mr Ng to strike out Mr Sin’s counterclaim in the 2018 Action and his claim in the 2019 Action where they concern those parties;

and failing (1),

(2) applications for the two actions to be consolidated or heard together; and

(3) applications relating to Mr Sin’s filing of evidence out of time and in breach of an unless order.

3.2.  For reasons summarized later in this Judgment, the judge struck out Mr Sin’s pleadings in both actions, and dismissed his counterclaim in the 2018 Action and his claim in the 2019 Action. Accordingly, the judge made no order on the other applications.

4.1.  On 27 December 2019, Mr Sin lodged a notice of appeal (CACV594/2019) against the Judgment in both actions. On 11 March 2020, he lodged a notice of appeal (CACV 59/2020) which was an appeal from the 2019 Action only, but which contained similar contents as the notice of appeal in CACV594/2019.

4.2.  On 11 June 2020, the notices of appeal in both appeals were superceded by a supplemental notice of appeal which contained similar contents. These were the appeals which came before this court.

5.  After the hearing of the appeals, the Privy Council (“PC”) gave judgment in Primeo Fund (in official liquidation) v Bank of Bermuda (Cayman) Ltd and another⁴. The parties made further written submissions in relation to this judgment which will be discussed in §§61 - 67 below.

Background

The parties

6.1.  Best Year was a BVI company of which Mr Sin was the sole shareholder and sole director until 5 March 2018, when he transferred the shares to Yan Xianchang (“Yan”) and ceased to be the director.

6.2.  EPL was also a BVI company of which Mr Sin was the sole shareholder and sole director until 2 March 2018, when he transferred the shares to Mai and ceased to be the director.

7.1.  First Credit Finance Group Ltd (“First Credit”), which was in the business of money lending, was listed on the GEM Board of the Hong Kong Stock Exchange.

7.2.  Mr Sin indirectly held 16.51% of its shares (“the Sin Block”), “of which 559,856,000⁵ shares were held via Best Year and 39,200,000 shares were held via [EPL]”⁶. He was the chairman and executive director of First Credit until 7 February 2018.

7.3.  Trading in First Credit shares has been suspended by the Securities and Futures Commission since 24 November 2017.

8.  Power Securities was a securities company. Mr Sit was one of its directors. Mr Sin alleges that Mr Tang exercised de facto control over Power Securities, and that Mr Ng was Mr Tang’s nominee.

The Margin Agreement

9.  On 16 February 2016, Best Year and Power Securities entered into an agreement (“the Margin Agreement”) under which

- Power Securities was to act as Best Year’s securities broker, and

- Power Securities would provide credit to Best Year for its dealings in securities on a margin securities trading account (“the Margin Account”) held by Best Year, secured by a deposit of 180 million First Credit shares (“the pledged shares”) which were part of the Sin Block.

10.  On 8 September 2017, as a result of a drop in First Credit’s share price, a margin shortfall occurred in the Margin Account. Power Securities made margin calls on Best Year, which were not complied with. Pursuant to the provisions of the Margin Agreement, the entire sum owing (about $55 million) became immediately due and payable.

11.  Between 14 and 25 September 2017, Power Securities liquidated the pledged shares, but as at 25 September 2017, a debit balance of $29,277,247.70 (“the debit balance”) remained owing.

Power Securities’ action against Best Year for the debit balance in the 2017 Action

12.  On 11 December 2017, Power Securities sued Best Year in HCA2851/2017 (“the 2017 Action”) for the payment of the debit balance together with interest, and further or alternatively, damages for breach of the Margin Agreement.

13.1.  On 21 September 2018, Power Securities applied for summary judgment.

13.2.  Mr Sin filed an affirmation in opposition on behalf of Best Year, exhibiting a draft Defence and Counterclaim in which Best Year was the sole plaintiff. In the affirmation, he alleged that Power Securities, Mr Sit, Mr Tang and Mr Ng (“the alleged wrongdoers”) were parties in a conspiracy, manipulating the market to cause a drop in the share price of First Credit and disposing of the pledged shares, so that Mr Tang could gain majority control of First Credit (“the alleged conspiracy”).

14.  On 3 January 2019, Master Martin Wong gave summary judgment against Best Year.

15.1.  On 8 January 2019, Best Year filed an appeal against this order.

15.2.  On 22 May 2019, Best Year made an application to adduce fresh evidence on appeal. The application was dismissed by Mimmie Chan J on 20 June 2019, from whose order there was no appeal.

16.  On 24 June 2019, Best Year was wound up by Harris J after he rejected its argument of the alleged conspiracy in opposition to the petition.

17.  On 28 June 2019, pursuant to the winding-up order, Master Kwang made an order staying Power Securities’ claim against Best Year and Best Year’s counterclaim in the 2018 Action.

18.  On 18 July 2019, Mimmie Chan J made a consent order staying Best Year’s appeal against the summary judgment in the 2017 Action.

Events after commencement of the 2017 Action

19.  Rewinding to 7 February 2018, Mr Sin ceased to be chairman and executive director of First Credit.

Best Year’s disposition of First Credit shares to EPL

20.  Two days later, on 9 February 2018, Best Year sold its known remaining assets (being 365,656,000 shares in First Credit) to EPL for $9,982,408.40 ($0.0273/share⁷). The transaction was done “off exchange”, i.e. it was not done through open trading on the stock exchange⁸.

Sin’s involvement with Best Year and EPL

21.1.  It is common ground that at the time of the above disposition, Mr Sin was the sole shareholder and sole director of both Best Year and EPL.

21.2.  On 2 March 2018, Mr Sin transferred his shareholding in EPL to Mai, and ceased to be its director.

21.3.  On 5 March 2018, Mr Sin transferred his shareholding in Best Year to Yan, and ceased to be its director.

21.4.  Mr Sin’s case is that since 2 March 2018 and 5 March 2018, he has had no control over or interest in EPL and Best Year respectively⁹.

EPL’s disposition of First Credit shares

22.  On 8 and 12 March 2018 respectively, EPL sold to unknown parties, also off exchange,

- 145,160,000 First Credit shares at $0.08/share, and

- 129,840,000 First Credit shares at $0.09/share¹⁰.

Best Year’s action against Power Securities etc in the 1700 Action

23.1.  On 24 July 2018, Best Year started proceedings against the alleged wrongdoers in HCA1700/2018 (“the 1700 Action”) alleging (among other things) that these defendants had conspired to injure it by generating a fall in value in First Credit shares in September 2017. Best Year claimed that as a result, it had suffered loss and damage. Mr Sin was not a party.

23.2.  On 26 September 2018¹¹, this action was withdrawn on Mr Sin’s instructions as Best Year’s “authorized representative”.

Power Securities’ action against Sin, etc in the 2018 Action

24.1.  The day after the 1700 Action was instituted, on 25 July 2018, Power Securities started the 2018 Action against Mr Sin, Mai, Best Year and EPL. In brief, Power Securities claimed (among other things), that:

- Mai was an associate and/or nominee of Sin;

- Mr Sin controlled EPL;

- Best Year and EPL were connected parties;

- Best Year’s sale of First Credit shares to EPL on 9 February 2018 was made at an undervalue and with intent to defraud creditors, and in particular to prevent enforcement by Power Securities;

- EPL’s sales of First Credit shares between 8 and 12 March 2018 were also at an undervalue;

- further or alternatively, the defendants conspired to injure (by unlawful means) Power Securities’ economic interests by selling the First Credit shares belonging to Best Year to EPL, so that Power Securities would not be able to enforce payment of the debit balance against Best Year.

24.2.  Power Securities claimed (among other things):

- declarations that the 9 February 2018, 8 March and 12 March 2018 sales of First Credit shares were voidable pursuant to s.60(1) Conveyancing and Property Ordinance cap.219;

- orders that those sales be set aside;

- injunctions against EPL from dealing with

(i) the remaining part of the First Credit shares which Best Year had sold to it on 9 February 2018, and

(ii) any proceeds from its sales of First Credit shares on 8 March 2018 and 12 March 2018, which are held on resulting or constructive trust for Power Securities.

Counterclaim in the 2018 Action

25.1.  On 8 March 2019, Best Year filed a counterclaim. It was the only plaintiff in the counterclaim at this stage. At §4, Mr Sin’s sale of his shareholding in Best Year to Yan was pleaded, at §77, Best Year’s sale of First Credit shares to EPL was pleaded, and at §79, Mr Sin’s sale of his shareholding in EPL to Mai was pleaded.

25.2.  At §85, it was pleaded that “Mr Sin and Best Year have suffered loss and damage in terms of the significant diminution in the value of the shares in First Credit, with quantum to be assessed” (emphasis added) but his loss was not particularised.

25.3.  After Best Year was wound up on 24 June 2019, the counterclaim in the 2018 Action was amended on 5 July 2019 (“ADCC”) only by adding Mr Sin as 2^nd plaintiff.

Best Year and Sin’s claims against Power Securities and Tang in the 2019 Action

26.1.  On 17 June 2019 a week before the hearing before Harris J to wind-up Best Year, Best Year and Mr Sin filed a statement of claim (“SOC”) against Power Securities and Mr Tang. It also pleaded the alleged conspiracy and claimed that the summary judgment against Best Year was obtained by fraud.

26.2.  In this action, Mr Sin claimed as a result of the alleged conspiracy:

- a declaration that the summary judgment against Best Year had been obtained by the fraud of the defendants, and an order that it be set aside;

- an order for the taking of a true account of Best Year’s Margin Account;

- an order that Power Securities pay Best Year any credit sum so shown; and

- damages suffered by Best Year and Mr Sin (§8(3) and §59).

26.3.  It would appear from the court files that this action has not been stayed vis-a-vis Best Year even though it has been wound up. The position of Best Year’s liquidators is not known. It was not referred to by the judge, nor by the parties before us.

Applications to strike out

27.  The alleged wrongdoers applied in June and July 2019 to strike out Mr Sin’s pleadings on the basis that: (1) they disclosed no reasonable cause of action, and/or (2) that they were frivolous, vexatious and/or otherwise an abuse of process, “in that the claims therein are barred by the principle against reflective loss”.

Re-amendment of the counterclaim in the 2018 Action

28.1.  In the counterclaim in the 2018 Action, as noted above Mr Sin was added as a claimant by amendment on 5 July 2019. At §85 ADCC, it was pleaded that “Mr Sin and Best Year have suffered loss and damage in terms of the significant diminution in the value of the shares in First Credit, with quantum to be assessed” but his loss was not particularised.

28.2.  After the applications to strike out were filed, the RADCC was filed on 20 August 2019 deleting Best Year as a plaintiff in the counterclaim and adding that:

- by reason of the above conspiracy, Mr Sin had to “extricate himself from the First Credit stock market” and disposed of his shareholdings in Best Year and EPL “which indirectly held the remainder of Sin’s First Credit Shares” at a depressed price, which would otherwise have obtained a much higher price had the conspiracy not taken place (§102);

- his loss was “not reflective of Best Year and/or [EPL]’s loss for inter alia the reason that Mr Sin’s loss would not be made good if Best Year and/or [EPL] are able to recover its own loss, since Mr Sin no longer has any interest and is no longer a shareholder in either Best Year or [EPL]” (§102A);

- each of the alleged wrongdoers was jointly and severally liable to pay damages in respect of the loss and damage Mr Sin suffered (§103) together with interest (§104).

29.  When the judge said in the Judgment (§27) that it was “only on 20 August 2019 by the filing of the RADCC that Sin alleged for the first time that he had personally suffered loss as a result of the Alleged Conspiracy”, that should be understood to mean Mr Sin’s claims of loss by reason of his sales of his shareholding in Best Year and EPL, as particularised in the new §§102 - 103 of the RADCC. As noted above, in the ADCC in the 2018 Action¹² and the SOC in the 2019 Action SOC¹³, Mr Sin had already alleged that he (as well as Best Year) had suffered loss and damage by the alleged wrongdoing, although his loss was not particularised.

Sin’s pleadings in the 2018 and 2019 actions

30.  Mr Sin’s pleadings in both actions by the time the applications to strike-out were heard before the judge may be summarized as follows:

- in 2017 - 2018, Mr Tang, who was in de facto control of Power Securities through its parent company, engaged in a plan to acquire majority control of First Credit;

- in August 2017, Mr Tang had asked Mr Sin to sell the Sin Block to him, but no agreement was reached;

- on 8 September 2017, there was a fall in the traded share price of First Credit, leading to a margin shortfall in Best Year’s Margin Account;

- the fall in the First Credit share price, which continued over a number of days, was the result of a conspiracy among the alleged wrongdoers (together with a non-party) to injure Mr Sin and Best Year by driving down the share price by way of illegal market manipulation, so as to enable Mr Tang (through his nominee Mr Ng) to acquire control over First Credit at a substantially discounted price, and Power Securities’ disposal of the pledged shares was in furtherance of the conspiracy;

- on 16 - 17 September 2017, Mr Sin made an oral repayment agreement with an assistant manager in Power Securities, varying or waiving the terms of the Margin Agreement; under the oral repayment agreement, Power Securities would not continue to liquidate the pledged shares, in exchange for repayments to be made by Mr Sin; however, Power Securities continued to liquidate the shares, and Mr Sin consequently did not make any repayments;

- in mid-November 2017, Mr Sin agreed to sell the remainder of the Sin Block to Mr Tang (and another), but no payment was made;

- on 9 February 2018, Best Year sold its 365,656,000 First Credit shares to EPL because Mr Sin intended the sale “to be a clean cut from First Credit”¹⁴ in view of its change of board; although he was the sole shareholder and sole director of both the seller and the purchaser of the shares, it was a bona fide arms-length commercial transaction at fair market price;

- on 2 and 5 March 2018 respectively, Mr Sin sold his 100% shareholding in EPL to Mai (his close friend but not his associate and/or nominee) for $16,194,240, and his 100% shareholding in Best Year to Yan for US$1;

- Mr Sin no longer had any interest in or control of EPL and Best Year after 2 March 2018 and 5 March 2018 respectively;

- EPL’s sale of First Credit shares on 8 March 2018 and 12 March 2018 were not at an undervalue, and in any event, Mr Sin was not involved in the decision to transfer the shares;

- the 2018 Action was a further attempt by the alleged wrongdoers to “perpetrate the conspiracy to appropriate the remaining First Credit shares from Sin, Best Year and EPL”¹⁵.

The judge’s Judgment

31.  In the Judgment, the judge set out the principles applicable to strike out applications (§§35 - 37). It has not been suggested on appeal that the judge was wrong in his understanding of the relevant principles.

The judge’s decision on the bar against reflective loss

32.1.  At §38, the judge referred to what he called the “three scenarios”¹⁶ setting out the principles applicable to reflective loss in Lord Bingham’s judgment in Johnson v Gore Wood & Co (a firm)¹⁷, as follows:

“(1) Where a company suffers loss caused by a breach of duty owed to it, only the company may sue in respect of that loss. No action lies at the suit of the shareholder suing in that capacity and no other to make good a diminution in the value of the shareholder’s shareholding where that merely reflects the loss suffered by the company. A claim will not lie by a shareholder to make good a loss which would be made good if the company’s assets were replenished through action against the party responsible for the loss, even if the company, acting through its constitutional organs, has declined or failed to make good that loss. ...

(2) Where a company suffers loss but has no cause of action to sue to recover that loss, the shareholder in the company may sue in respect of it (if the shareholder has a cause of action to do so), even though the loss is a diminution in the value of the shareholding. ...

(3) Where a company suffers loss caused by a breach of duty to it, and a shareholder suffers a loss separate and distinct from that suffered by the Company caused by breach of duty independently owed to the shareholder, each may sue to recover the loss caused to it by breach of the duty owed to it but neither may recover loss caused to the other by breach of the duty owed to that other. ...” (Emphasis added).

32.2.  At §39, the judge also referred to a passage in Lord Bingham’s judgment in which he said that at the strike-out stage, “the object is to ascertain whether the loss claimed appears to be one ... which would be made good if the company had enforced its full rights against the party responsible”¹⁸.

32.3.  At §40, the judge also referred to a passage in Lord Millett’s judgment in which he said that the diminution in the value of the shareholder’s shares was of course a personal loss and not the company’s loss, “but that is not the point. The point is that it merely reflected the diminution of the company’s assets”¹⁹.

33.  At §§41 - 42, the judge held, citing the Court of Final Appeal in Basab Inc v Superb Glory Holdings Ltd²⁰, that the focus is upon the type of loss suffered, the critical question being whether the shareholder’s loss could be made good if the company enforced its rights against the wrongdoer. The principle applied even if the wrongdoer’s obligations to the company and the shareholder were wholly distinct and unrelated, and even if the company had chosen not to sue the wrongdoer, so that there would be no issue of double recovery if the shareholder did.

34.  At §43, the judge said that the bar against reflective loss was not limited to claims brought by a shareholder in his capacity as such. “For example, it has been held to be applicable to creditors or employees of a company who are not shareholders themselves” (emphasis added). I will discuss this statement later in this Judgment (§72).

35.  At §§44 - 45, the judge discussed the judgment of the English Court of Appeal in Sevilleja Garcia v Marex Financial Ltd²¹. At §49, the judge discussed the Judgment of the Cayman Islands Court of Appeal in Primeo.

36.1.  Pausing here, between the time of the judge’s Judgment and the hearing of this appeal, the UKSC overturned the judgment of the English Court of Appeal in Marex, and after the hearing of our appeal, the PC overturned the judgment of the Cayman Islands Court of Appeal in Primeo. As a result, we received post-hearing written submissions from the parties on Primeo (PC).

36.2.  The UKSC judgment in Marex and the PC judgment in Primeo will be discussed later in this Judgment.

37.1.  Coming back to the judge’s Judgment, at §47, the following holdings are significant:

“I have been told that the decision in [Marex] is going, with leave, to the UK Supreme Court. Nevertheless, I agree with the analysis of the [UK] Court of Appeal on the above points²². It would be an illogical and unprincipled distinction, if one is drawn between a claim made by a person as a shareholder and a claim made by a person as a former shareholder, if the loss that he himself says he has suffered would have been made good by restoration of the company’s assets. Indeed, if such a distinction were to be made, that would be a recipe for abuse, stripping the principle of much of its force”. (Emphasis added).

37.2.  At §50, the judge noted that the ratio of the Cayman Islands Court of Appeal judgment in Primeo “does not say - that a shareholder whose claim is barred [by reflective loss] can avoid the bar by ceasing to be a shareholder”.

38.1.  At §53, the judge held that it was necessary to look at the facts and nature of Mr Sin’s claim “with the focus on the nature or type of the loss being pursued” (emphasis added).

38.2.  In his analysis of the reflective loss argument, the judge assumed (as it was a strike-out application) that Mr Sin did in fact divest himself of ownership of Best Year and EPL (§74).

38.3.  However, at §§76 - 77, the judge noted that “the real alleged loss being the diminution in the share value of First Credit said to have arisen from the market manipulation caused by the Alleged Conspiracy, was in fact only suffered by Best Year and EPL”, for only they, not Sin, were the shareholders of First Credit. The loss to Mr Sin was the diminution of the value of the shares in Best Year. If Best Year recovered the difference in First Credit’s share value, its (Best Year’s) assets would be replenished, and the value of Mr Sin’s shares in Best Year would be restored. Therefore, Mr Sin’s alleged loss was “precisely that type of loss precluded by the principle against recovery of reflective loss” (emphasis added).

39.1.  In §§78 - 79, the judge noted the “significant contradiction” on the face of Mr Sin’s pleadings as to why he caused Best Year to sell the First Credit shares to EPL, and his sale of his shareholdings in EPL and Best Year. At §96(2) RADCC, Mr Sin referred to the “clean cut” from First Credit by reason of the change of board²³. Yet at §102, he said he had cut his losses “to avoid even further injury to be inflicted” by the alleged conspirators.

39.2.  In any event, at §§80 - 82,

- the judge held that the damage or loss occurred at the time of the drop in share price of First Credit, and the alleged tortious conduct had finished by the end of September 2017; thus, there was no basis for a claim, and no loss suffered by Mr Sin from his sale of his shareholdings in Best Year and EPL, which were separate and distinct from that suffered by Best Year and EPL;

- the judge also noted (obiter) that despite Mr Sin having direct knowledge of the alleged conspiracy which Best Year could have utilized in proceedings against the alleged conspirators, Mr Sin did not make use of this by imposing a condition that the consideration for the sale of his shareholding would be varied if Best Year were to recover damages against the conspirators.

39.3.  In §§83 - 84, the judge held that Mr Sin’s disposals of his shareholdings in Best Year and EPL did not alter the legal analysis, holding that it would be “illogical and legally nonsensical” for Mr Sin’s claim, which would be barred by reflective loss when he was a shareholder, to be “revived” when he chose to sell his shareholdings in Best Year and EPL. Mr Sin’s claim remained one for loss arising from the diminution of the value of First Credit shares.

40.  The judge stated that his decision on the reflective loss argument was dispositive of the applications to strike out, although he also considered other arguments advanced by some of the applicants (§86).

The judge’s decision on Res Judicata/issue estoppel

41.  Power Securities and Mr Sit had also advanced an argument based on res judicata or issue estoppel, the relevant principles being set out by the judge in §§55 - 61.

42.  Power Securities and Mr Sit relied on the summary judgment given against Best Year in the 2017 Action, where the same allegations of conspiracy had been made but were rejected by the court.

43.  In discussing this argument, the judge proceeded on the assumption that Mr Sin has sold his shareholding in Best Year (§91) but nevertheless held that Mr Sin was a privy of Best Year by reason of his relationship with it, having been its sole controller at first, and then, even after the sale of his shareholding and no longer being a director, being involved in the litigation, by e.g. verifying the pleadings and being the deponent of the affirmation filed in opposition to the application for summary judgment (§§88 - 91). The judge held that as Mr Sin was a privy of Best Year, the summary judgment in the 2017 Action was binding on him.

The judge’s decision on Henderson abuse of process

44.  At §§62 - 73, the judge set out the relevant principle for res judicata in the wider sense set out in Henderson v Henderson ²⁴(ie a party should not be allowed to raise in subsequent proceedings claims or issues which he could and should have raised in earlier proceedings, as that amounts to an abuse of the process).

45.  The judge noted that the same allegation of conspiracy had been made in the 2017 Action and in the winding-up proceedings, and had been rejected in both. The judge described Mr Sin as “the instigator/director/instructor/driver” of the Best Year position in those proceedings (§96), and he could have pursued his claim as an additional party to the counterclaim in the 2017 Action (§§98 - 99).

The judge’s decision on duplication of actions

46.  In any event, the judge held that he would have dismissed the 2019 Action as “Best Year is for all practical purposes unlikely to pursue the 2019 Action and Mr Sin’s only interest and claim in the 2019 Action is already canvassed, or perfectly capable of being fully canvassed, in the 2018 Action” (§101).

Appeal

47.  Mr Sin’s main grounds of appeal may be summarized as follows:

- the bar against reflective loss should not apply when a claimant no longer holds any shares when he makes the claim, because even if the company enforced its rights in full, a former shareholder’s loss would not be made good;

- Mr Sin was not a privy of Best Year for the purposes of res judicata;

- in considering Henderson abuse, the judge was wrong in equating “could” have joined the 2017 Action with “should”;

- there was good reason for a separate 2019 Action as its “primary purpose” was for Best Year to advance a claim to set aside the summary judgment in the 2017 Action for fraud, and directions (for consolidation or for the actions to be heard together) could have been given instead of a strike-out order.

Argument based on bar against reflective loss

48.  Mr Joffe argued that:

- the rationale of the bar against reflective loss was the prevention of double recovery and recovery by the shareholder at the expense of the company. He argued that this is the law in Hong Kong as set out by the CFA in Waddington Ltd v Chan Chun Hoo ²⁵ and Basab. Although the UKSC in Marex has “fundamentally changed” the law in England in disapproving double recovery as the rationale for the principle, we should not follow Marex as this court is bound by the CFA judgments;

- the Cayman Islands Court of Appeal in Primeo held that the crucial time for the applicability of the bar against reflective loss is the time when the claim was made, and the PC decision overturning that decision was based on Marex which we should not follow;

- where a claimant makes a claim after he had disposed of his shares, he would not benefit even if the company recovered its loss (relying on Stein v Blake²⁶);

- in the present case, the counterclaim was made on 8 March 2019²⁷ when Mr Sin was no longer a shareholder;

- in any event, the relevant consideration was the type of loss, not how or when the claimant’s cause of action arose;

- in applying the bar against reflective loss, the judge had relied on the illogicality of the distinction between a creditor who holds one share, and a creditor who holds no shares, but the UKSC has since held in Marex that the principle does not apply to creditors at all; and

- the causation argument (ie that the loss was caused by Mr Sin’s own decision to dispose of the shares) was a separate matter from reflective loss and was not an independent ground for strike-out.

Discussion

49.  The first issue is what is the common law on reflective loss now as declared by the UKSC and followed by the PC, and whether this court should apply it.

The common law on reflective loss declared by the UKSC in Marex

50.1.  I shall first discuss the UKSC judgment in Marex, where the English Court of Appeal’s judgment was the first case in the UK in which the bar against reflective loss was applied to a claimant which was purely a creditor of a company (§77). An enlarged panel of seven justices of the UK Supreme Court was convened “with the object of examining the rationale for the reflective loss principle and the coherence of the law in this area” (§115).

50.2.  In the result, the majority decided on “bright line” rules which reduce complexity²⁸, whereas the minority decided on a more nuanced approach which in their view, would avoid the “serious injustice in relation to a shareholder who ... has a good [personal] cause of action and has suffered loss which is real and is different from any loss suffered by the company” (§167).

50.3.  In short, the majority held that avoidance of double recovery did not justify the reflective loss rule, but that the rule remained applicable to cases of company law (but not to the general law of damages), by reason of the “proper plaintiff” rule in Foss v Harbottle²⁹. The minority held that the reflective loss rule was not justified even in company law cases.

Marex (UKSC)

51.1.  The claimant was a creditor of two companies. It obtained judgment against them. The defendant (who controlled the companies) stripped the companies of their assets. The companies were wound up, but as the defendant controlled the liquidator first appointed (§20), the latter took no steps to recover the assets.

51.2.  The claimant applied for leave to serve the defendant out of the jurisdiction. The judge at first instance gave leave. The English Court of Appeal overturned that decision, on the basis that the claim was barred by the principle against reflective loss which was thought to apply to the general law of damages.

52.  In the UKSC, Lord Reed PSC for the majority³⁰ undertook a detailed analysis of the bar against reflective loss which I understand to be as follows (in summary).

Generally,

- where A and B suffer loss as a result of C’s conduct, both A and B can sue, and C has to compensate both (§2).

- Even if the losses are interrelated, that does not stop A or B from suing C, but the court will not allow double recovery (§§3 - 5).

- The avoidance of double recovery can be achieved by remedial routes (§5), e.g. rules for priority (§6), subrogation, and an order that one claimant account to the other claimant (§7) etc.

In company law however,

- a rule³¹ was established in Prudential Assurance Co Ltd v Newman Industries Ltd (No. 2)³² (“the Prudential rule”) that:

- a shareholder cannot even bring a claim at all in respect of a diminution in the value of his shareholding³³ which is merely the result of the company’s loss because of a wrong done to the company

- even if the wrongdoer’s conduct also involved a wrong done to the shareholder and

- even if the company has not sued (or has compromised with) the wrongdoer (§9).

- The rationale of the Prudential rule was the rule in Foss v Harbottle, i.e. the only party who can seek relief for an injury done to a company is the company itself. Company autonomy operates through the majority shareholder rule (§34), and the management of a company’s affairs is entrusted to the decision-making organs under the articles of association (§35). Any abuse of these situations of company autonomy can be remedied by e.g. a derivative action (§24).

- Therefore, although a shareholder does suffer loss, the law does not recognize the loss as being separate and distinct from the company’s loss (§28)³⁴. That is the rationale for the bar against reflective loss.

- Contrary to what Lord Millett said in Johnson, the avoidance of double recovery does not justify the bar against reflective loss³⁵, because:

(a) a share is just a right of participation in the company, it is not a proportionate part of a company’s assets, nor does it confer on a shareholder any interest in such assets (§31); when Lord Millett said (in Johnson) that the company and the shareholder are treated as one in respect of the loss, that was inconsistent with the fundamental principle of separate corporate personality under Salomon v A Salomon & Co Ltd³⁶ (§61);

(b) a wrong done to the company (especially if it is a large public company) may not cause any diminution in value of a shareholder’s shares (§32, §55);

(c) avoidance of double recovery cannot explain why the shareholder cannot sue a wrongdoer when the company has decided not to sue, or has not recovered its full loss in a compromise, so there is no (or less) risk of double recovery (§55), and Lord Millett’s explanation on the grounds of causation (§56) and policy considerations (§§58 - 59) are unsatisfactory;

(d) the extension of avoidance of double recovery to situations where the claimant who has suffered loss is not a shareholder (eg a creditor) is inconsistent with the Prudential rule (§60); a company may not be regarded as the alter ego of its creditors or employees (§62).

53.  At §67, Lord Reed held:

“In summary, Johnson gives authoritative support to the decision in Prudential that a shareholder is normally unable to sue for the recovery of a diminution in the value of his shareholding or in the distributions he receives as a shareholder, which flows from loss suffered by the company, for the recovery of which it has a cause of action, even if it has declined or failed to make good that loss. Lord Bingham’s speech [in Johnson] is consistent with the reasoning in Prudential. On the other hand, the reasoning in the other speeches, especially that of Lord Millett, departs from the reasoning in Prudential and should not be followed”.

54.1.  At § 79, Lord Reed held that it is necessary to distinguish between:

(1) cases where claims are brought by a shareholder in respect of loss

- which he has suffered in that capacity

- in the form of a diminution in share value or in distributions

- which is the consequence of loss sustained by the company, in respect of which the company has a cause of action against the same wrongdoers; and

(2) cases where claims are brought, whether by a shareholder or by anyone else, in respect of loss which does not fall within that description, but where the company has a right of action in respect of substantially the same loss.

54.2.  In case (1), the shareholder cannot sue, even though he may claim to have suffered loss as a consequence of the company’s loss, and even though the value of his shares is not “fully replenished” by what the company does (eg deciding not to sue, or deciding to compromise for a lesser sum). The reason for the shareholder not being able to sue is the Foss v Harbottle rule (§§80 - 81).

54.3.  At §83, Lord Reed held:

“The critical point is that the shareholder has not suffered a loss which is regarded by the law as being separate and distinct from the company’s loss, and therefore has no claim to recover it. As a shareholder (and unlike a creditor or an employee), he does, however, have a variety of other rights which may be relevant in a context of this kind, including the right to bring a derivative claim to enforce the company’s rights if the relevant conditions are met, and the right to seek relief in respect of unfairly prejudicial conduct of the company’s affairs”. (Emphasis added).

55.  In the case of a pure creditor, there is no conflict with the rule in Foss v Harbottle (§85). In Lord Hodge’s judgment, he gave another example of a shareholder pursuing a personal claim against the wrongdoers in another capacity, such a guarantor, where the bar does not apply (§98).

56.1.  At §89, Lord Reed re-affirmed the approach adopted in Prudential and by Lord Bingham in Johnson, and departed from the reasoning in the other speeches in the latter.

56.2.  As noted by Lord Reed in §78, Lord Millett’s approach in Johnson was followed by the CFA in Waddington. I will discuss this in §71 below.

57.1.  Lord Sales JSC for the minority³⁷ agreed that the appeal should be allowed, but for fundamentally different reasons. Essentially, he considered the holding of the English Court of Appeal in Prudential was too wide (§148). Although the decision itself was correct because the plaintiff in that case had no cause of action for a personal claim (§148), he considered that the reasoning for the court’s wider holding was not sustainable (§143) as it had not focused on the independent nature of the cause of action that a shareholder plaintiff may have in his personal capacity³⁸ (§142), and it is a “false premise” to predicate that the loss suffered by the company and the loss suffered by a shareholder is “identical” (§151, §180).

57.2.  Lord Sales held that Prudential did not lay down a rule of law that a shareholder is deemed to suffer no different loss of his own (§118). He considered that where the wrongs and the losses suffered are different, and the shareholder and the company each have distinct causes of action, the shareholder’s personal cause of action falling outside the rule in Foss v Harbottle (§165), the company can recover e.g. for loss of profits, and the shareholder can recover for the diminution in value of his shares (§155).

58.  Lord Sales noted that even if the company does recover its loss from the wrongdoer, it may be some time later, and the shareholder may still have suffered a loss, depending on timing (§153). In some passages which may be relevant to the case before us, he said (§153):

“Nor does it follow that the value of the shares held will automatically be restored to what it would have been previously but for the defendant’s wrongdoing. The company’s prospects, as judged by the market, may be radically different at the later point in time. Or the shareholder may already have sold the shares at a price discounted for uncertainty regarding possible recovery by the company” (emphasis added);

and (§158):

“One could also envisage a situation in which, after the defendant’s wrongdoing, a claimant shareholder decided to sell his shares in the company, and in consequence of that wrongdoing received a lesser price than he otherwise would have done. In that case he could recover for the crystallised loss he has suffered by way of the diminution in the shares’ value due to the wrong committed by the defendant. ...” (emphasis added).

59.1.  Unlike Lord Reed, Lord Sales considered that the issue of double recoverability was important (§119), as shown in Johnson where that issue was common among all five law lords (§174).

59.2.  Lord Sales held, in relation to double recovery, that if the losses are not identical, double recovery would not necessarily follow from allowing the shareholder to bring his personal claim (§182). In any event, the court could take steps to “manage the coincidence of claims by the claimant and by the company by procedural means” (§161), for a “procedural approach allows for nuanced adjustment of the vindication of parallel claims in the light of all relevant evidence about the circumstances regarding the interests of the company and the shareholder ... to ensure no double recovery ...” (§162).

60.  In conclusion, the majority held that the reflective loss rule was “a rule of substantive law associated with the rule in Foss v Harbottle and concerned with the recognition in law of particular types of loss. It is not a procedural rule concerned only with the avoidance of double recovery”³⁹. That should now be taken as the common law (as declared by the UKSC) governing the rule barring reflective loss.

Primeo (Privy Council)

61.  I shall now discuss Primeo. By the time this was heard in the Privy Council (April 2021) by five of the seven justices in Marex, the judgment in Marex had been delivered (July 2020) and it was agreed by the parties that Cayman Islands law regarding the reflective loss rule was the same as English law, i.e. as determined by the majority in Marex.

62.1.  Primeo had “invested” substantially in a Ponzi scheme operated by Bernard Madoff (in fact, every time funds were received by the scheme, they were immediately misappropriated). Primeo at first directly “invested” in the scheme. Later, it transferred its “investment” to a fund company, Herald, in which it acquired shares (“the Herald Transfer”). Primeo then made further “investments” in the scheme through Herald and another fund company in which Primeo bought shares.

62.2.  Primeo suffered losses as a result of the collapse of the scheme, and sued their professional service providers which (Primeo alleged) as administrators, had failed to perform their accounting duties with reasonable skill and care. Primeo alleged that if they had done so, they would have found the accounts were falsely over-valued by reference to the scheme’s fictitious assets. Primeo’s auditors would then have found there was insufficient audit evidence, and Primeo would not have made some of those “investments”, or would have redeemed them at a time when repayments could have been received.

63.  The Cayman Islands Grand Court held at first instance that Primeo’s claims infringed the reflective loss rule. This was upheld in the judgment of the Cayman Islands Court of Appeal (delivered before the UKSC judgment in Marex).

64.  In the Privy Council, five issues were identified, only two of which are material to this appeal, viz:

(1) the timing issue and

(2) the Herald Transfer issue.

65.  Regarding (1) and (2), the issue was “what was the relevant time to determine whether the reflective loss rule applies”, ie. was it

- when Primeo acquired its cause of action against the administrators (before it became a shareholder of Herald), or

- when Primeo issued proceedings against the administrators?

66.1.  The Board held that the court must determine when the loss occurred, and the nature of the loss at that time (ie whether the loss had a status which was recognised by the law). At §59, it held:

“In the Board’s view, since the [reflective loss] rule is substantive rather than procedural in character, the relevant time to assess whether it applies or not is when the loss which is said by the claimant to be recoverable at law is suffered by it. The timing of the bringing of a claim and the circumstances which may pertain at that point in time are adventitious happenstance and have nothing to do with the operation of the rule”. (Emphasis added).

66.2.  In a passage particularly relevant to our case, the Board held (§61):

“A shareholder which suffers a loss in the form of a diminution in value of its shareholding which is not recoverable as a result of the application of the reflective loss rule cannot later convert that loss into one which is recoverable simply by selling its shareholding. It is necessary to focus on the nature of the loss in respect of which the shareholder’s claim is made. It is not enough to consider the position as at the date of the issue of proceedings without regard to the nature of the loss and a consideration of whether it is, in the eyes of the law, separate and distinct from that of the company”. (Emphasis added).

66.3.  And at §62, the Board referred to “strange and unprincipled results [if a claimant can sue after selling his shares] which ... undermine the Marex principle itself and the values it protects”, including:

“(b) it leads to the conclusion ... that the shareholder can sell its shareholding and then seek to vindicate its own causes of action against the wrongdoers; but this would make the reflective loss rule easy to circumvent and would subvert its intended effect ...”.

67.  Since Primeo had already acquired a cause of action against the service providers before the Herald Transfer, and since the reflective loss rule was “forward-looking” in that it is directed to characterisation of loss suffered by a claimant after it becomes a shareholder, Primeo was not barred from suing for loss before the Herald Transfer (§§66 - 67). In respect of the issue of possible double recovery by Primeo, the Board held that it would have to be managed by procedural mechanisms (§§71 - 72).

Should this court apply Marex?

68.  The next issue is whether this court should follow the UKSC judgment in Marex.

69.1.  In Monat Investment Ltd v All persons in occupation of Part of the Remaining Portion of Lot No.591 in Mui Wo D.D. 4 No16 Ma Po Tsuen, Mui Wo, Lantau Island⁴⁰, which was concerned with a UKSC decision⁴¹ which revised the common law in relation to the defence of illegality, this court⁴² discussed the stare decisis rule in Hong Kong which was stated by the CFA in Solicitor (24/07) v Law Society of Hong Kong⁴³.

69.2.  In Monat, this court examined previous CFA cases on the defence of illegality which only followed Tinsley pursuant to the stare decisis rule set out in Solicitor (24/07). We came to the view that as the nature of the issue (the common law defence of illegality) was the same in Hong Kong as in the UK, no constitutional provisions were engaged, and there were no local circumstances which detracted from the persuasive effect of the UKSC decision in Patel, it was logical for this court to follow the common law as now expounded by the UKSC in Patel.

70.1.  In the present case, the CFA had pronounced on the reflective loss rule in Hong Kong in Waddington and Basab, and did not simply follow Johnson as a matter of stare decisis. In Waddington, Lord Millett⁴⁴ referred to his judgment in Johnson and the avoidance of double recovery. Nevertheless, he held that the reflective loss rule was “a matter of principle” (§82). In Basab, Tang PJ giving the judgment of the appellate committee⁴⁵ refused leave to appeal, applying the reflective loss rule and referring to the avoidance of double recovery (§8).

70.2.  Accordingly, I am of the view that in the present case, where there is a difference between Waddington and Marex (whether the avoidance of double recovery does or does not justify the reflective loss rule), this court remains bound by Waddington.

70.3.  Be that as it may, the decision of the UKSC to overturn double recovery as one justification for the reflective loss rule only affects claims under the general law of damages (eg by creditors), not claims for diminution in value of shares under company law, where the barring of such claims is justified essentially by the rule in Foss v Harbottle (§52 above) which is engaged by the nature of the claimant’s loss. It is clear to me that our case would fall within case (1) of Marex (see §54.1 - 54.2 above).

Sin’s claim

71.  As the CFA held in Waddington, as “a matter of principle”, a shareholder cannot claim for loss which was merely reflective of the loss suffered by the company. The fact that the reflective loss rule was justified by the avoidance of double recovery did not turn the principle into only a procedural rule. Importantly, Mr Joffe accepted at the hearing that double recovery was not the only rationale for the bar against reflective loss in Hong Kong (see Wah Nam Group Ltd v Roderick John Sutton⁴⁶ and Topping Chance Development Ltd v CCIF⁴⁷). Irrespective of whether the rule was justified by the avoidance of double recovery, the focus was on the nature of the loss, not whether the shareholder has an independent cause of action, or whether the company’s actions or inactions would or would not replenish his loss.

72.  In our case, the loss Mr Sin claims was the diminution in value of the shares of Best Year and EPL, caused by the alleged wrongdoers’ market manipulation of the First Credit share price in September 2017. As the diminution must have crystallised before trading in First Credit was suspended in November 2017 (before Mr Sin sold his shares in Best Year and EPL), the nature of his loss was clearly reflective loss. The judge was clearly right in so finding. The subsequent sales did not make any difference to the nature of Mr Sin’s loss. In selling his shares, he was only liquidating or quantifying the loss which he had suffered. The fact that the judge had referred to the reflective loss rule applying to a creditor (which would not be supportable on the rationale of reflective loss being the rule in Foss v Harbottle, which does not apply to creditors⁴⁸) does not affect the crux of his judgment, which was based on the principle which applies to a shareholder.

73.  Our case is different from the hypothetical situation postulated at p.320 F - H in Stein v Blake, where Millett LJ (as he then was) contrasted the case before him with a situation where there was not only misappropriation of the company’s assets, but also concealment of the misappropriation inducing the shareholder to sell his shares at an undervalue. In the case before us, Mr Sin was (on his own case) well aware of the alleged conspiracy before he sold the shares in Best Year and EPL.

74.  The fact that Mr Sin made his claim only after he sold the shares in Best Year and EPL does not make any difference. Waddington held that the reflective loss rule was a matter of principle, not a procedural rule. Therefore, the bar applied at the time when the cause of action accrued to Mr Sin, which was at the latest November 2017. The decision in Primeo discussed at §66 above supports this view.

75.  The judge was therefore right to strike-out the RADCC in the 2018 Action and the SOC in the 2019 Action on the reflective loss rule (which he said was dispositive of the matter) and to make the consequent orders.

Other grounds

76.1.  As a matter of completeness, I would add that I would not have supported the other grounds for strike-out.

76.2.  For the purposes of the strike-out, it had to be assumed that Mr Sin had in fact sold his shares in Best Year and in fact had no further interest in or control of it. He was only its authorised representative. In Prest v Petrodel Resources Ltd and others⁵⁰, the UKSC “re-emphasised the distinct legal personality of a company distinct from that even of a sole shareholder. It examined the strictly limited circumstances in which the court can pierce the ‘corporate veil’ to impose legal consequences on the person or persons behind the veil which did not include res judicata”⁵¹. In the present case, the judge did not seek to rely on piercing the corporate veil (§73). As the divesting of Mr Sin’s interest in Best Year had occurred in March 2018, he could not have been its privy (even “in reality”⁴⁹) for the purposes of res judicata/issue estoppel when summary judgment was entered against it in January 2019.

76.3.  As for Henderson abuse, it cannot be assumed that, after the sale of Mr Sin’s shares in Best Year, its new controller would have agreed to his participation as a party in Best Year’s proceedings. The fact that Mr Sin was Best Year’s authorized representative does not mean that he controlled the conduct of the case on its behalf⁵². And, as noted above, nothing is known of the position of Best Year’s liquidators, e.g. whether they would continue to seek to set aside the summary judgment for fraud. In the absence of such information, the respondents’ argument based on Mr Sin’s actions being an abuse of process as a collateral attack on the summary judgment is not plainly and obviously established.

76.4.  As for duplication of actions, it is well-established that a strike out is a last resort, and it would appear from the Judgment that the judge had not considered other, less robust, directions such as an order that the actions be heard together.

Order

77.  For the reasons above, I would dismiss the appeals. It was agreed that costs would follow the event with certificate for two counsel, where two counsel appeared for a respondent.

Hon Barma JA:

78.  I agree with the judgment of Yuen JA.