TANG SIU WING AND ANOTHER v. THE COMMISSIONER OF ESTATE DUTY

HCED 1/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ESTATE DUTY APPEAL NO 1 OF 2013

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J U D G M E N T

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A. INTRODUCTION

1.  The appellants are the executors (“the Executors”) and 2 of the Children of the deceased (“Tang Senior”).

2.  The respondent (“the Commissioner”) assessed the estate duty payable in respect of the estate of Tang Senior, including a Promissory Note evidencing a debt of HK$110,000,000 owed to Tang Senior by one Citiwin International Limited (“Citiwin”), a company beneficially owned by his 4 Children.

3.  This is the Executors’ appeal against the assessment in relation to the Promissory Note.  Their case is that the interest in the Promissory Note had been assigned to a third party by Tang Senior for valuable consideration, ie for shareholding in a Kenyan company.  Accordingly, the Promissory Note did not form property of the estate.  The interest under the shares is outside Hong Kong and thus is not subject to Hong Kong estate duty. 

B.  THE FACTS

4.  The facts in Section B form the background facts, based largely on undisputed evidence.

5.  Tang Senior was a famous Chinese opera singer.  He and his family had been living in the Wing Cheung Mansion since about 1970s.

6.  In 1996, Tang Senior made 3 major moves concerning his assets.  Firstly, he made his Last Will in September 1996 naming his 4 Children as beneficiaries, to the exclusion of his Wife (“the Wife”). 

7.  Secondly, Tang Senior “sold” his 9/10^th interest in Wing Cheung Mansion to Citiwin for HK$110M.  Citiwin has been beneficially owned by the 4 Children with equal shares since 21 August 1996 and they have also been its directors.  The remaining 1/10^th remained with the Wife.

8.  Thirdly, instead of receiving HK$110M from Citiwin, Tang Senior received the Promissory Note, by which Citiwin promised to pay to him a sum in Australian dollars, being the equivalent of HK$110M.  Repayment was due in one month, ie on 24 October 1996, but was extended by 85 days in writing between Citiwin and Tang Senior.

9.  Citiwin obtained, on or about 22 November 1996, A$5 million banking facilities, from Bank of China, Australia, secured by an all-monies mortgage over Citiwin’s interest in Wing Cheung Mansion.

10.  On 3 January 1997, Tang Senior was admitted to hospital for check-up.  He had remained there until his passing on 21 April 1997, at the age of 80.

11.  In the interim, in February 1997, Citiwin had repaid HK$5 million on 2 occasions to Tang Senior.  Tang Senior must have known about the repayments as he had made 2 withdrawals, each of HK$4,000,150.

12.  Since the death of their father, the Children had been involved in a series of litigation with the Wife, concerning the validity of the Last Will, and the extent of Tang Senior’s estate.  The litigation ended after 9 years, in about July 2006.

13.  The Executors plainly have no intention to evade estate duty because as early as 23 July 1997, they had already informed the Commissioner about the existence of the Promissory Note.  However, the Executors’ version as to the location of the original Promissory Note has undergone changes as follows:

(a) On 13 February 2009, they claimed that it was with the mortgagee in Australia;

(b) On 9 February 2011, 14 years after the death of Tang Senior, the Executors claimed for the first time that Tang Senior had, by a Deed of Assignment dated 18 October 1996 (“the Deed”), assigned his rights under the Promissory Note to one Silas Githinji (“SG”).  The consideration was an investment in Wasonga Mining Project in Kenya (“the Project”).  By a letter of the same date (“the 1996 Letter”), Tang Senior instructed SG to carry out the terms of the Deed. 

14.  Between 2011 and 2014, the Executors have provided the following documents to the Commissioner in support of their case:

(a) A letter from the Ministry of Foreign Affairs of Kenya (“MFA”) dated 8 September 2010 (MFA’s Letter”);

(b) Copies of the Deed and the 1996 Letter were given to the Commissioner on 9 February 2011;

(c) A letter dated 12 October 2012 from Mr Nyandoro, solicitor for SG, confirming that Tang Senior has 20% interest in a company called Wasonga Investment Company Ltd (“Wasonga”);

(d) Certified copies of the Promissory Note, the Deed and the 1996 Letter (“the 3 Documents”), given to the Citiwin in 2012;

(e) Certified copies of company records of Wasonga allegedly obtained from the Companies Registry of Kenya and Department of the Registrar-General, given to the Commissioner in 2014;

(f) A statutory declaration dated 29 June 2012 of Mr Chiu Sung Hong (“Uncle Chiu”) which showed that Tang Senior told Uncle Chiu in about October 1996 about an investment in mine business in Kenya. Uncle Chiu had seen the Promissory Note and the Deed which were signed.  He was of the view that Tang Senior was a gambler who was trusting and had made risky investments in the past without proper documentation. 

15.  On 22 February 2013, the Commissioner issued the subject Certificate of Assessment.  The value of the Promissory Note was assessed at HK$100 million taking into account the HK$10 million repayment.

C.  THE PARTIES’ RESPECTIVE CASE

16.  The Executors’ case is that in mid-2009, they were first made aware by their family friend, Uncle Chiu, that Tang Senior might have some investments in a mining project in Kenya. 

17.  One of the Executors, Tang Siu Wing (“Mr Tang”), therefore visited the MFA in January 2010.  Through MFA, he was able to contact Mr Nyandoro in Kenya in October 2012, the lawyer who was and still is acting for SG and holds the original of the 3 Documents.

18.  The Deed was governed by the laws of the Republic of Kenya.  The material terms of the Deed were as follows:

“1. The Assignee [SG] agrees the Assignor to accept the Promissory Note on a discount that the Promissory Note will not be less than 10 million United States Dollars on the following terms and conditions.

2. The Assignor assign the Promissory Note to the Assignee in return the Assignee will pay 10 million United States Dollars into the project in the named (sic) of the Assignor.

3. The Assignor shall have the right to redeem the Promissory Note from the date hereof until the enforcement by paying the Assignee 12 million United States Dollars.

4. Both parties herein shall keep confidential the contents of this Assignment and Agreement, all subsequent information regarding the intended operations on the mining project and all results of any drilling or other investigations or reports in connecting therewith and not to divulge the same to any third party unless with the written consent of the other party.”

19.  By the 1996 Letter, Tang Senior stated that he:

“irrevocably authorize you [SG]/your lawyer to complete the Deed between [SG] and [Tang Senior] in respect of the Wasonga Mining Project in the Republic of Kenya and to do all things necessary to ensure the said Deed is enforceable under the Laws of Republic of Kenya.”

20.  It is the Executors’ case that the rights under the Promissory Note had been assigned by Tang Senior in his lifetime in consideration of SG’s promise to inject US$10 million into the Project in the name of Tang Senior (“the assignment”). Tang Senior also acquired 20% shareholding in Wasonga, representing 20% beneficial interest in the Project.  The transaction was arranged and effected by Mr Nyandoro.  Accordingly, the beneficial interest in the Promissory Note no longer belonged to Tang Senior upon his death and therefore should not be chargeable to estate duty.

21.  The Commissioner does not have a positive case.  However, he challenges the evidence submitted by the Executors from 3 angles:

(1) The inherent probabilities of the assignment;

(2) The authenticity of the documents submitted by the Executors;

(3) The legal effect of the assignment.

D.  LEGAL PRINCIPLES

22.  There is no dispute that the burden is on the Executors to prove, on balance of probabilities, that the Promissory Note did not form property passing upon the death of Tang Senior.

23.  Even if the motive behind a transaction was to reduce estate duty, such motive in itself did not mean that a party acted in a manner which was less than genuine: Attorney-General v Duke of Richmond and Gordon [1909] AC 466, 475.

“That motive [to relieve the payment of estate duty] does not, however, vitiate the transactions, no more than it vitiates a voluntary alienation of property made with the same purpose and object twelve months before a donor's death. Just as there is nothing illegal or immoral in making such a gift, or in living for twelve months afterwards so as to make it an effectual means of escape from death duties, so there is, in my opinion, nothing illegal or immoral in making the dispositions of property which were made in this case.”

24.  Notwithstanding the myriad of documents, the resolution of this appeal depends much on the credibility of the Executors’ witnesses. The proper approach in making findings of fact and assessing credibility is as follows:

(1) Generally speaking, contemporaneous written documents and documents which came into existence before the problems in question emerged are of the greatest importance.

(2) In deciding whether to accept the evidence of a witness, importance should be attached to the inherent likelihood or unlikelihood of an event having happened, or the apparent logic of such event.

(3) In determining the credibility of a witness, importance should be attached to the consistency of such evidence with other undisputed or indisputable evidence and the internal consistency of such evidence. The latter type of consistency is often tested by a comparison between the oral testimony of the witness and his or her witness statement.

(4) The truthfulness or reliability of witness cannot be determined solely or mainly from the appearance or demeanour of such witness.

(5) In any case where the credibility of a witness features prominently in the court’s determination, it is essential always to test his veracity by reference to the objective facts proved independently of his testimony, in particular, by reference to the documents in the case, and also to pay particular regard to his motives and to the overall probabilities. It is frequently very difficult to tell whether a witness is telling the truth or not; and where there is a conflict of evidence, reference to the objective facts and documents, to the motives of the witness concerned and to the overall probabilities can be of very great assistance to a judge in ascertaining the truth.

Hui Cheung Fai v Daiwa Development Ltd, HCA 1734/2009, 8 April 2014, §§76-81, Deputy Judge Eugene Fung SC.

E.  THE WITNESSES

25.  The Executors have called Mr Tang, Uncle Chiu and Mr Nyandoro as witnesses.  The sum total of their evidence is that the Deed existed in 1996 and the original of the 3 Documents are now with Mr Nyandoro.

26.  However, SG was not called as a witness.  As far back as 20 October 2011, the Commissioner had already asked if the Executors had been in contact with SG after the death of Tang Senior.  Noting the size of the investment, the Commissioner also asked specific questions eg on the location of the mines, details of the investment, and copies of accounts and details of returns for each year since 1996.  Those were questions which SG could have answered. The Executors accepted the need to answer these questions by issuing a letter to MFA, but not SG.

27.  In §30 of Tang-1^st, Mr Tang stated he “had not tracked down” SG. That could not be true.  SG was a personal friend of Mr Nyandoro who still held some active files for him.  When asked by the court why he did not contact SG, Mr Tang did not answer directly.  All that he said was that he did ask Mr Nyandoro for details of the Project but Mr Tang did not pursue further when no details were forthcoming.

28.  Mr Tang also claimed that their lawyers had never advised them to meet SG.  Since the Executors had not got the probate, they had no right over the mines. With respect, the Executors did not go to Kenya to enforce the rights under the Deed but to find out the truth.  Probate was irrelevant.  The lawyers’ advice would not avert the negative impact of SG’s absence.

29.  Further, Mr Tang and SG seemed not interested in their rights.  Mr Tang did not try to ascertain from SG to see if the Estate could benefit from the Project.  Likewise, SG did not make a claim under the Promissory Note.  It was not even clear if Mr Nyandoro had told SG anything about this case before disclosing documents to Mr Tang.

30.  The failure to call SG is a matter from which this court can draw the inference that there is something material which the Executors want to hide from this court: Li Sau Keung v Maxcredit Engineering Ltd [2004] 1 HKC 434, 443G-444B.

F.  THE KENYAN EXPERTS

31.  Mr Opiyo, a Kenyan expert commissioned by the Executors, was far from being independent.  He was the ex-managing partner of Mr Nyandoro and he used to deal with the Wasonga file.  He left the partnership in February 2016 and moved out of the office in May.  This was only disclosed by Mr Nyandoro in the witness box.

32.  As it turned out, the evidence of Mr Nyandoro contradicted Mr Opiyo’s in terms of the existence of an electronic database in the Companies Registry (“the Database”) and the existence of a reconstructed “skeleton file” of Wasonga (explained in Section H4 below) at the Companies Registry.

G.  INHERENT PROBABILITIES OF THE ASSIGNMENT

G1.  The change in the Executor’s case

33.  It was only in the witness box that Mr Tang first said that the other Executor, Angela, made a “mistake” in saying that the original Promissory Note was in Australia.  Why that mistake came about was never explained despite the Commissioner’s demands and a meeting with the Executors’ solicitors on 2 June 2010 at the invitation of the Executors.  Angela never made an affirmation and so the Commissioner was not able to cross-examine her.

34.  The mistake legitimately caused the Commissioner to raise query.  Mr Paul Leung, counsel for the Commissioner, pointed to a change of solicitors on the part of the Executors in February 2010 subsequent to Angela’s “mistake”. However, there was not enough evidence for this court to draw an inference that the Executors had in any way been dishonest whilst using the ex-solicitors as scapegoats.

35.  The only “connection” between the Children and Australia was Uncle Chiu.  However, Uncle Chiu did not have interest in the estate of Tang Senior. I find that the mortgage was taken out in Australia probably because devaluation of the Australian dollar would bring about reduction in the repayment amount.  This was borne out by the financial statements of Citiwin for the year 1997.  If Uncle Chiu was involved in financial or estate duty planning for Tang Senior, I could see no reason why he needed to hide anything about what happened in Australia. 

36.  Next, how the Executors first learnt about the assignment was wholly fortuitous.  There was inconsistency in the evidence.  Mr Tang said that it was after all the litigation within the family had ended whereas Uncle Chiu said it was during the litigation. 

37.  The assignment would have the effect of reducing estate duty.  If Uncle Chiu had told the Executors about the mine during the litigation with the Wife, it would be surprising since the Executors had waited for at least 5 years before they informed the Commissioner in 2011.  I find it likely that Mr Tang’s version in paragraph 36 was correct.

G2.  Assignment in lack of commercial sense and logic

38.  I accept that Tang Senior was of sound mind and in good health in 1996. There was no sign that he was at risk of death.  It appeared that his plan in 1996 was to pass on more assets to the Children, who were then in their 20s. He wanted to test their business acumen, according to Mr Tang.

39.  Given the redemption clause in the Promissory Note, it may be that Tang Senior had never intended to give away Wing Cheung Mansion.  He retained some control over the building by imposing the 30-day repayment period, but being flexible about the repayment period.

40.  The purported signatures on the Deed and the 1996 Letter were in Chinese.  The Deed mentioned that Tang Senior did not have money, which matched the position reflected in the Schedule of Properties.

41.  However, the assignment simply lacked commercial sense and logic.

42.  Firstly, by the 3 Documents, Tang Senior had divested himself of about 48% of the value of his estate (as can be gleaned from the Schedule of Properties).  Wing Cheung Mansion (with the family home inside) was changed from a property free from incumbrances into one that was subject to a mortgage for A$5 million.  All of these happened within 7 months, when Tang Senior was aged 79, in exchange for unknown returns from a mine(s) of unknown location. The estate had far less than US$12 million to redeem the Promissory Note.  SG could have demanded for payment within 6 days of the Deed.  The family could have been evicted and the plan to test the Children’s business acumen could have failed. 

43.  Mr Tang testified that the aggregate worth of the Tang family as a whole made the risk of eviction non-existent.  However, there was no evidence in support of what he said.

44.  Secondly, the Last Will, the Promissory Note and all of the conveyancing documentation to transfer Wing Cheung Mansion to Citiwin were prepared by solicitors.  All of those transactions involved parties within the family.  And yet the Deed and 1996 Letter were made 3 weeks later without lawyers, in unknown circumstances, with a foreigner, without a witness and without SG’s signature.  Mr Tang testified that Tang Senior had never been to Kenya and he was not aware of his father having Kenyan friends.

45.  The Deed, on its face, included recitals and legal jargon and expressly referred to Kenyan law, evidencing some input of a person with legal background.  The meaning of the Deed was clear but, without disrespect, was not expressed in good English.  Mr Tang’s evidence that his father’s English standard for single English words was up to matriculation standard could hardly convince this court that Tang Senior drafted or understood the meaning and effect of the Deed.  Moreover, Mr Tang’s evidence contradicted Angela’s evidence in HCA 3282/2002, §55, that her father was not conversant with English.

46.  Mr Vincent Chen, counsel for the Executors, submits that Uncle Chiu’s evidence dispersed any doubt as to whether Tang Senior understood the contents of the Deed of Assignment.  I do not agree.  Taking his evidence at its highest, Uncle Chiu did not talk about the legal effect of the assignment with Tang Senior.

47.  Thirdly, Uncle Chiu explained that Tang Senior was a risk taker who would not put things in writing even in a $100 million deal with a Hong Kong tycoon.  Mr Tang also testified that in the past his father also invested in high risk business (such as building a hotel in Vietnam or casino business).

48.  This sort of assertions is easy to make and hard to prove.  The court has not seen proof of a single deal of such high risk investment.  I decline to rely on bare assertions.

49.  Fourthly, Mr Vincent Chen submits that it could well be that Tang Senior was promised a quick and substantial return, more than sufficient to cover the redemption price of US$12 million.  With respect, quite apart from this being speculative, such submission highlighted the absence of SG as a witness.

50.  Fifthly, Mr Paul Leung points out that the issued share capital of Wasonga was 100 Kenya shillings, equivalent to about HK$13.66 in 1996.  Thus 20% shareholding in Wasonga was worth HK$2.73 in 1996.  However, I place little weight on this.  Many HK$2 shelf companies in Hong Kong do own substantial assets.

51.  Sixthly, if it was Tang Senior’s wish to keep Wing Cheung Mansion free from estate duty, that was perfectly legitimate.  It was also perfectly understandable if he did not want one or some of his family members to know about his investment in Kenya at that time.  But why would he not leave a single trace for his family members to follow up the investment?

52.  It was only in the witness box that Mr Tang first mentioned about having made enquiries with the Wife (the most likely person who would have known anything about the assignment) and Angela but to no avail.  There was no chance for the Commissioner to cross-examine them.

53.  Mr Vincent Chen relied on the confidentiality clause in the Deed.  With respect, Tang Senior himself did not rely on that clause.  He had allegedly disclosed the Deed to Uncle Chiu.

54.  Seventhly, Tang Senior acted as if the Deed was non-existent. Six days after its execution, he gave an extension of 85 days for the Children to repay the HK$110 million.  He received HK$10 million repayment, not caring if Citiwin would have to pay HK$10 million a second time to SG under the Promissory Note.

55.  Eighthly, Wasonga was not mentioned in the 3 Documents but only in Tang-1^st.  Save for one of the objects clauses in the Memorandum of Association being “to work the mines and mining rights”, none of the company records connected Wasonga to a mine(s) or showed that SG had injected money in the Project.  There was only the bare assertion of MFA and Mr Nyandoro that the mine was in operation.

56.  Ninthly, SG’s inaction was equally astonishing.  For 20 years, he has never demanded for a cent under the Promissory Note, despite the fact that, on Mr Nyandoro’s evidence, SG had been running the mine and allotted 20% shareholding in Wasonga to Tang Senior.  There was no evidence that he had contacted Tang Senior despite knowing his address from the Deed.  Nor had he contacted Mr Tang since his visit to Kenya.

57.  In explaining SG’s failure to demand for repayment, Mr Vincent Chen drew an analogy with the US Treasury bond that has a maturity period of up to 30 years.  With respect, that was not an apt analogy because the maturity date in the Promissory Note was much shorter.

58.  I find the assignment inherently difficult to believe.

H.   AUTHENTICITY OF THE DOCUMENTS FROM KENYA

H1.   MFA’s Letter dated 8 September 2010

59.  In this letter, MFA stated as follows:

“We are informed that Mr Tang Wing Cheung invested in Wasonga Mining Project in November, 1996 in Kenya with funds from Deed of Assignment relating to the Sale of Assets in Hong Kong. Presently the said project is still on-going.”

60.  Even if I accept that the writer of this letter had the necessary capacity, there was no mention of the source of the information and whether MFA had verified that information.  I thus place no weight on MFA’s Letter.

H2.  Letter from Nyandoro & Co Advocates dated 12 October 2012

61.  This letter confirmed that Tang Senior acquired “20% of the beneficial interest of and in the entire exploration rights to prospect and search for Mining Minerals in the Wasonga Mining Project through our client [SG].” 

62.  It did not identify the location of the mine.  It only answered one of the many questions posed by the Commissioner in his letter to the Executors’ solicitors dated 20 October 2011.  The weight of this letter fell with the company records, which I do not find to be reliable.  (See section H4 below.)

H3.  Certified copies of the 3 Documents

63.  Mr Nyandoro testified that the originals of the 3 Documents were in his office safe.  But based on his oral evidence, what he certified were the copies that Mr Tang gave him.  The source of those copies was unclear but they were not from Mr Nyandoro.  Mr Nyandoro allegedly verified against the originals before certifying.

64.  Mr Nyandoro did not produce the originals because there was no court order to that effect and because of “client confidentiality”.  I accept that was his reason, but the reliability of his evidence has to be tested against other evidence.

65.  Anyhow, there was no evidence of execution by Tang Senior of the Deed and the 1996 Letter.  Tang Senior had never been to Kenya, nor was Mr Tang aware of his father having Kenyan friends.  Of course Tang Senior did not have to sign in Kenya.  However, one thing was clear – since Mr Nyandoro had never seen Tang Senior, the signing was not in Mr Nyandoro’s presence. 

66.  Mr Leung submits that there was evidence to suggest that in 1996, postcodes were not in use in Kenya but one could see that, in the Deed, the address of SG was stated to be a PO box 5768 with a postcode of “0010”.  This could be an indication that the Deed was not created in 1996 but at a much later date.  I decline to accept this submission because, the period when the postcode system came into existence was never made clear. 

H4.  Company records of Wasonga

67.  Wasonga was purportedly set up within 2 months of the Deed.  The Commissioner’s affirmation challenged, with reasons, the authenticity of the certified company records, but most of the challenges have not been answered by the Executors before trial.  Not satisfied with the Executors’ answers, the Commissioner did his own company search of Wasonga, only to find out that the company’s file had gone missing. 

68.  In his oral testimony, Mr Nyandoro disclosed, for the first time, that (i) the Database showed the company name, company number and names of directors; and (ii) that a “skeleton file” had been reconstructed to replace the missing file. 

69.  Item (i) directly contradicted the joint experts report which stated that there was no such database.  Note that one of the experts (Mr Opiyo) was the ex-managing partner of Mr Nyandoro’s firm who used to handle Wasonga’s company file.

70.  Item (ii) was a total surprise in the evidence.  The Commissioner had deposed on affirmation that the company file of Wasonga was missing in 2016 but Mr Nyandoro never deposed to the existence of a skeleton file.  At first Mr Nyandoro was unable to say whether the reconstruction took place before or after Mr Tang visited him in 2012.  He later said that it was in 2013. He was told by the Companies Registry that Wasonga’s file was missing and that his firm should send in documents for reconstruction. 

71.  I find that the reconstruction would not be later than the certification date of the Assistant Registrar of Companies, ie August and September 2013.  It might have been reconstructed at a time when Mr Tang was looking for the company records.  Whilst I trust the good faith of the Assistant Registrar, those documents he certified might have come from the skeleton file. 

72.  It was the clerical staff of Mr Nyandoro’s firm who filed documents with the Companies Registry.  Mr Nyandoro did not supervise it and so he could not tell what documents were filed.  His secretary added the current address and post-code of the firm (set up in 2006), which were not in use in 1996, to some of the documents before filing.

73.  Accordingly, I cannot place weight on the company records as showing the truth of the contents.  I need only illustrate with a few examples.

Example 1: The Certificate of Incorporation

74.  The copy Certificate of Incorporation originally given to the Commissioner bore the company number 74021B (“the B Certificate”).  The Commissioner made his own company search and discovered that a company called Los Angeles Games (Kenya) Limited, incorporated on 6 December 1996 in Kenya bore a strikingly similar company number “74021”. 

75.  The B Certificate also contained a lot of strange features, eg the year “TWO THOUSAND …” was deleted and replaced by “ONE THOUSAND.  It appeared to have a form number on the bottom left corner, containing 10/2008, which may be a reference to the year 2008 and the month of October.  There was also a string of “??????????” above the line where the Registrar of Companies was supposed to sign.  The B Certificate could not be taken at face value.

76.  As confirmed by the experts, when 2 companies were found to have the same company number, the Registry would change the certificate number by adding an alphabet suffix and issue a new Certificate of Incorporation.  And yet Mr Nyandoro certified the B Certificate as “a true copy of the original” without mentioning in his affidavits a prior Certificate of Incorporation or the fact that his office was informed by the Registry about the change.  With Wasonga’s file missing, I am unable to find if there were really 2 companies that bore the same number. 

Example 2: the Annual Returns for 1998-2003

77.  As admitted by Mr Nyandoro, the Annual Returns were not filed annually but the same return was photocopied and the year number on each return was “backdated”.  The annual returns did not bear the signature of a director, accountant or lawyer.  Mr Nyandoro testified that annual returns could be filed this way so long as the directors had not changed.  Again he certified these as “true copy of the original”.

Example 3: the Memorandum and Articles of Association (“M&A”)

78.  Mr Nyandoro had never seen Tang Senior.  It was SG who brought the 2 signed pages on the M&A to him.  Mr Nyandoro “witnessed” the signatures of SG and Tang Senior as he trusted SG who was his personal friend and there was no reason to doubt the “due execution”.

79.  It was expressly put to Mr Nyandoro that the M&A was not really prepared at the end of 1996, to which his reply was “I cannot say for certain”.

H5.  Where were the originals of the 3 Documents?

80.  I can see no reason for Mr Nyandoro to lie.  He was a senior advocate of the High Court of Kenya.  The Law Society of Kenya had issued a certificate of good standing concerning him.  However, he “witnessed” Tang Senior’s signature without seeing him sign.  He certified documents as “a true copy of the original” when documents were only reconstructed copies.  His notion of what was “original” might be different from that of the Hong Kong court.

81.  With the company/skeleton file missing and without hearing from SG, I am not satisfied on balance of probabilities that the originals of the 3 Documents are with Mr Nyandoro.

I.  THE STATUTORY DECLARATION OF UNCLE CHIU

82.  Uncle Chiu was a long-time friend of Tang Senior.  He did not appear to have interest in the outcome of this case or a motive to lie.

83.  Two incidents have happened outside the court room: (i) when Uncle Chiu commented to court marshalls on the performance of the Executors’ counsel; and (ii) appeared to be with the Executors during a break when his oral evidence was not yet complete.  Having heard the explanations, I do not consider those incidents to have any effect in undermining the credibility of Uncle Chiu.

84.  At one stage in his evidence, Uncle Chiu was confused about description of documents but eventually he could distinguish between the Sale and Purchase Agreement relating to Wing Cheung Mansion, the Promissory Note and the Deed. There was no explanation as to why he could still remember the Promissory Note and the Deed years after he had met Tang Senior purportedly about the investment in Kenya.  It was illogical for Tang Senior to mention a “proposal” to invest on the one hand and show Uncle Chiu the executed Promissory Note and the Deed at the same time.  There was simply no reason for Tang Senior to seek Uncle Chiu’s advice, especially since there was no evidence that Uncle Chiu could practise law outside Australia and the Kenyan deal was struck already.

85.  Be that as it may, I am satisfied that Uncle Chiu was truthful although he was imprecise.  I find that he had seen the signed Promissory Note and the Deed in about October 1996 and that Tang Senior had talked to him about the mine investment in Kenya.  I add that it was not clear if the Promissory Note and the Deed he had seen were originals or copies.  His evidence did not deal with where the originals had gone.

J.  LEGAL EFFECT OF THE ASSIGNMENT

86.  Even if the originals of the 3 Documents are in Kenya with Mr Nyandoro, I am still not satisfied that the rights in the Promissory Note had passed to SG for the following reasons. 

87.  The experts agreed that under Kenyan law, the Deed was valid in transferring an actionable claim.  It was not mandatory to inform Citiwin of the assignment.  There was no requirement for the assignee to sign the assignment or have it attested. 

88.  The experts, however, could not agree if the Deed was a contract. Mr Opiyo said that the general tone of the 1996 Letter suggested that SG must have indicated willingness to comply with the Deed.  Mr Coulson said that there was no conduct to signify acceptance of the contract.

89.  Mr Vincent Chen submitted that it was an outright assignment.  I am unable to agree.  Even accepting that Tang Senior was a gambler in high risk investment, it could not sensibly be said that he gave out the Promissory Note for nothing.  Accordingly, the Deed must be read with the 1996 Letter.  There was a clear intention on the part of Tang Senior to create a contract and SG was expected to invest in the Project.

90.  The Promissory Note and 1996 Letter were not signed by SG.  There was nothing to signify SG’s consent to their terms.  There was no evidence of SG’s payment of US$10 million into the Project.  There was no satisfactory evidence that Tang Senior had been allotted 20% shares in Wasonga.  So there was no acceptance of the contract by SG’s conduct.  This tallied with the objective circumstances that for 20 years SG had not enforced the Promissory Note or liaised with Tang Senior.

K.  CONCLUSION

91.  The assignment was inherently difficult to believe.  Although Uncle Chiu’s evidence showed existence of the Deed in 1996, there is no satisfactory evidence of where the originals of the 3 Documents have gone. Even if the originals are with Mr Nyandoro, there is no satisfactory evidence that a contract was formed with SG or that interests in the Promissory Note had passed to SG before Tang Senior’s death.

92.  I therefore dismiss this appeal.  On a nisi basis, I order the estate of Tang Senior to bear the costs of these proceedings.

93.  I thank Mr Vincent Chen and Mr Paul Leung for their dedication, succinctness in submission and assistance to the court.