RE CHUI TAK KEUNG DUNCAN

HCBI 2/2021

[2022] HKCFI 2962

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

BANKRUPTCY PROCEEDINGS

INTERIM ORDER APPLICATION NO. 2 OF 2021

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J U D G M E N T

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A.  INTRODUCTION

1.  There are three applications before me:

1.1  the application of Zhongcai Finance Limited (“Zhongcai”) pursuant to s.20J of the Bankruptcy Ordinance (Cap.6) (“BO”), by summons filed on 9 April 2021, for an order that the approval of the voluntary arrangement given at the creditors’ meeting of 24 March 2021 (“the Meeting”) be revoked or suspended, and/or that directions be given to the Nominees (as defined below) or any other person for the summoning of a further meeting of the Debtor’s creditors to consider any revised proposal he may make or to reconsider his original proposal (“Zhongcai’s s.20J Summons”);

1.2  the application of Profit Big Enterprises Limited (“Profit Big”, formerly known as VIP Credit Limited) also pursuant to s.20J BO, by summons filed on 23 April 2021, for an order that the approval of the voluntary arrangement given at the Meeting be revoked or suspended (“Profit Big’s s.20J Summons”);

1.3  the application of Zhongcai pursuant to rr.122Q and 204 of the Bankruptcy Rules (“BR”), by summons filed on 5 October 2021, for leave to appeal out of time, against the decision of the Chairman (as defined below) to admit the claims of various family members of the Debtor and Coqueen Company Limited (“Coqueen”) at the Meeting, and its appeal if such leave be allowed (“Zhongcai’s r.122Q Summons”).

2.  Zhongcai and Profit Big are creditors of the Debtor. Zhongcai’s application is also supported by another creditor, Bosonic Limited (“Bosonic”).

B.  THE BACKGROUND

3.  On 10 November 2020, a bankruptcy petition was filed against the Debtor (“Mr Chui”) in HCB 7518/2020 by Profit Big.

4.  Before the petition was heard, on 4 January 2021, Mr Chui applied for an interim order pursuant to ss.20 and 20A BO, seeking to stay the proceedings against him. He filed a supporting affirmation on 4 January 2021 (“Chui 1^st”) exhibiting a proposal for an individual voluntary arrangement (“the IVA Proposal”) in accordance with s.20A BO and r.122C BR. Annexed to the IVA Proposal was a Statement of Affairs as at 4 January 2021 (“the SOA”).

5.  Under the IVA Proposal, Mr Chui proposed $13m, to be provided by a “white knight”, as a full and final settlement of 3.19% of all his indebtedness. Paragraph 2.3.1 of the IVA Proposal stated “Please refer to Annex 4, which is a summary of creditors from my SoA which is subject to details to be provided by the creditors to the Nominees for verification and adjudication for the purpose of the IVA…” Paragraph 2.3.5 of the IVA Proposal stated “The indebtedness due to my family members are in excess of HK$206 million…” The list of creditors at Annex 2 to the IVA Proposal gave the figure of $206,800,000 for “Family Members”. The SOA annexed to the IVA Proposal gave the figure of $206,800,000 for “Associate creditors”, and a total of $614,315,485 as the net deficiency of assets over liabilities.

6.  On 22 February 2021, the court granted an interim order (“the Interim Order”).[1] Pursuant to s.20(2) BO, the order has the effect that during the period for which it is in force, no bankruptcy petition (and other forms of legal proceedings) relating to the debtor can be presented or proceeded with. Mr Alan Chung Wah Tang and Mr Kan Lap Kee were appointed as joint and several nominees (“the Nominees”) to act in relation to the IVA Proposal.

7.  By letters dated 3 or 10 March 2021, the Nominees asked members of Mr Chui’s family, including Chui Pui Kun (“Father”), Chui Chan Oi Lin Eileen (“Mother”), Chui Shuk Wah Janet (“Sister”), Stella Ling Hung (“Wife”), Elizabeth Ling (“Mother-in-Law”) and Coqueen, a company owned by Mr Chui and family members, for documents and information in respect of their claims against Mr Chui for debts outstanding to them. (These debts will be referred to as “the Family Debts” and the creditors as “the Family Members”.)

8.  On 4 March 2021, the Nominees filed their report in relation to their IVA Proposal (“the Nominees’ Report”). Paragraph 8.1 of the report summarised Mr Chui’s debts as totaling around $614.3m, with $206,800,000 being the Family Debts. Paragraph 8.18 of the report that Mr Chui disclosed that he owed Coqueen, Father, Mother, Sister and Wife “around $206m”.

9.  Between 15 and 22 March 2021, the Debtor sent several emails to the Nominees, providing what was said to be evidence of the Family Debts.

10.  The creditors considered the IVA Proposal at the Meeting on 24 March 2021. The Meeting was chaired by Mr Kan Lap Kee (“the Chairman”). The Report of the Chairman of the Creditors’ Meeting dated 31 March 2021 (“the Chairman’s Report”) at paragraph 9 set out a summary of creditors’ claims as at 24 March 2021, as reported at the Meeting. The total amounts of the debts claimed against Mr Chui, whether by Family Members or other creditors, had increased, from $614,315,485 to $904,434,808.16. Of these, the Family Debts had increased from $206,800,000 to $427,822,285.38. The debts of other unsecured creditors had increased from $267,115,485 to $304,135,682.04, some of these claims being brought forward only at the Meeting. The estimated rate of return which could be expected by those creditors entitled to a dividend payment on admitted claims would be 2.73% (instead of the 3.19% originally anticipated in the IVA Proposal). The change in the rate of return was brought about not by the increase in the Family Debts (since the Family Members had decided to forgo their rights to a dividend payment) but by the increase in other debts.

11.  Paragraph 11 of the Chairman’s Report noted that the proxy holder for Zhongcai raised questions in relation to the increase of some $221m in the amounts claimed by the Family Members to be admitted for voting purposes. The Chairman responded that the claim amounts had been “updated according to the claim amounts as per the Statement of Affairs with reference to new claims and any details of supporting documents, if any, received from all creditors since the notices to creditors were sent.” Zhongcai also asked whether the Family Members would waive their debts for voting purposes. Mr Chui responded that the Family Members would exercise their rights to cast a vote, but would forgo their rights to receive a dividend distribution under the IVA Proposal.

12.  As recorded in paragraph 22 of the Chairman’s Report, the IVA Proposal was approved by 79.38% of the vote by value of the creditors’ claims, including those of the Family Members (“the Decision”).

13.  The Nominees have since filed a notice dated 2 March 2022, indicating that they have ceased to act as from 28 February 2022.

C.  THE MATTERS COMPLAINED OF

14.  Both Zhongcai’s and Profit Big’s s.20J Summonses are based on complaints that there was a material irregularity at or in relation to the Meeting, within the meaning of s.20J(1)(b) BO, arising from the following matters:

14.1  that the Family Debts (both as originally claimed and as subsequently increased at the Meeting) were not genuine;

14.2  that the increase in the Family Debts was a manipulation of the IVA process and contrary to the principles of good faith;

14.3  that the Nominees failed to properly discharge their duty in admitting the Family Debts;

14.4  that the Debtor failed to give full and frank disclosure regarding the Family Debts, which would have materially affected how the creditors assessed the terms of the IVA Proposal;

14.5  the actual rate of return to the creditors was lowered from 3.19% in the IVA Proposal to 2.73% at the Meeting; and

14.6  the Nominees failed to provide proof of the Family Debts, whether before or after the Meeting.

15.  As for Zhongcai’s r.122Q Summons, this is based on a complaint that the Chairman wrongly admitted the claims of the Family Members for voting purposes under r.122Q BR. Zhongcai acknowledges that this overlaps substantially with the complaints under Zhongcai’s s.20J Summons.

D.  THE APPLICABLE PRINCIPLES

D1.  The nature of an IVA

16.  The statutory scheme for IVAs is set out in ss.20 to 20L BO and rr.122A to 122ZD (Division 5) BR.

17.  It is relevant to first have regard to the nature of an individual voluntary arrangement (“IVA”). In relation to the comparable statutory provisions in the Insolvency Act 1986, in Kapoor v National Westminster Bank [2011] EWCA Civ 1083 at [67], Etherton LJ said:

“An IVA is a means by which an insolvent debtor can escape the full and rigorous consequences of a bankruptcy order, including the right of the creditors to select the trustee in bankruptcy, the supervision of the trustee by the creditors and the court, the ascertainment, collection and distribution of bankruptcy estate by the trustee, and the possibility of holding a public or private examination of the bankrupt on oath. In such cases, such as the present, where independent creditors have doubts as to whether the debtor has been full and frank in the information he has provided, and in particular, as to the full extent of his assets, an IVA has potentially severe disadvantages for those creditors. That is no doubt the reason why, when the new statutory scheme for IVAs was introduced by the 1986 Act, it was expressly provided in r 5.23(4) of the 1986 Rules that the resolution approving the IVA would be invalid if more than half in value of the independent creditors, that is non-associates of the debtor, voted against the resolution.”

18.  In Chin Wai Kay Geordie v Mok Yu Hon [2012] 2 HKLRD 657 (“Chin Wai Kay Geordie (CA)”), J Lam J (as he then was) reviewed the fundamental principles underlying the statutory scheme for IVAs at [24] to [33]. It is important to read these in full, but here I highlight a number of aspects which should particularly be borne in mind.

18.1  There is a distinction between insolvencies due primarily to incompetence and insolvency where, for reasons of conduct, commercial morality or public concern, a full investigation is necessary. It is essential that no opportunity should be given to an unscrupulous debtor to bypass the procedures devised to identify those who should be subject to the full investigation process of bankruptcy.

The debtor’s duty of candour

18.2  A debtor has a duty to give full and frank disclosure of his affairs. Rule 122H(5) BR requires that the statement of affairs of a debtor (which has to be supplied within seven days of his proposal under r.122H(2)) be certified by him as correct to the best of his knowledge and belief. Section 129(1)(f) BO provides for the criminal liability of a debtor (if eventually adjudged bankrupt) if he makes any material omission or misstatement in any statement relating to his affairs, unless he proves that he had no intent to defraud. A debtor should supply full and accurate information about his creditors, including all necessary information regarding the nature of the debts in question, and if a debt of a particular creditor is likely to be challenged (not only by the debtor but also by other creditors), information to enable the nominee to admit or reject that creditor’s claim as to entitlement to vote.

18.3  It is not enough for a debtor to come clean at the creditors’ meeting. He should lay his cards on the table right from the beginning in his proposal and the very first statement of affairs.

18.4  The integrity of the IVA process depends very much on the candour of a debtor in his statement of affairs and other information provided by him concerning his financial position. The nominee relies on the information provided by the debtor, so that complete candour by the debtor is needed. The nominee has to form a professional opinion as to the viability of a proposal based on the information provided from the debtor. As chairman of the creditors’ meeting, the nominee also depends on the accuracy of the information provided by the debtor to perform the tasks of admitting or rejecting creditors’ claims as to the entitlement to vote.

The nominee’s responsibilities

18.5  The insolvency practitioners involved in implementing IVAs carry heavy responsibilities. The court places substantial weight on the nominee’s opinion in deciding whether an interim order should be granted.

18.6  At least in those cases where the fullness or candour of the debtor’s information has properly come into question, the nominee should have taken such steps as are in all the circumstances reasonable to satisfy himself, and should have satisfied himself on three counts, namely that (1) the debtor’s true position as to assets and liabilities does not appear to him in any material respect to differ substantially from that which it is to be represented to the creditors to be; (2) it does appear to him that, broadly, the debtor’s proposal as put to the creditors’ meeting has a real prospect of being implemented in the way it is to be represented it will be; (3) the information that he has provides a basis such that, within the broad limits inescapably applicable to what have to be the speedy and robust functions of admitting or rejecting claims to vote and agreeing values for voting purposes, no already-manifest yet unavoidable prospective unfairness in relation to those functions is present.

18.7  If, for whatever reason, the nominee’s inquiries in questionable cases have been so restricted or unsatisfactory that the nominee would be unable to assure creditors that he had satisfied himself that these three minima had been met, he should not unequivocally report that in his opinion, a meeting of creditors should be summoned. Where such doubts have reasonably arisen, it cannot be right for the nominee to unquestioningly accept whatever is put front of him on the supposed basis that it is not for him, but for the creditors, to accept or reject the proposal. It is fundamental to the intended operation of IVAs that what the creditors vote on is not the debtor’s raw material but a proposal that (to the aforesaid qualified extent) has survived scrutiny and which (at least to that extent) has commended itself to an independent professional insolvency practitioner as proper to be put to, and capable of being not unfairly voted upon by, the creditors.

D2.  Challenge to decision of creditors’ committee

19.  A meeting of a debtor’s creditors may be summoned by the nominee under s.20E BO. The creditors’ meeting is to decide whether to approve the debtor’s proposed voluntary arrangement: s.20F(1) BO.

20.  Challenges to decisions made at the creditors’ meeting, or to its process, may be made under s.20J BO:

“(1) Subject to this section, an application to the court may be made, by any of the persons specified in subsection (2), on one or both of the following grounds —

(a) …

(b) that there has been some material irregularity at or in relation to such a meeting.

(2) The persons who may apply under this section are—

(a) the debtor;

(b) a person entitled, in accordance with the rules, to vote at the creditors’ meeting;

(c) the nominee (or his replacement under section 20K(3)); and

(d) if the debtor is an undischarged bankrupt, the trustee or the Official Receiver.

…

(4) Where on an application under this section the court is satisfied as to either of the grounds mentioned in subsection (1), it may do one or both of the following—

(a) revoke or suspend any approval given by the meeting;

(b) give a direction to any person for the summoning of a further meeting of the debtor’s creditors to consider any revised proposal he may make or, in a case falling within subsection (1)(b), to reconsider his original proposal.

…

(8) Except in pursuance of the preceding provisions of this section, an approval given at a creditors’ meeting summoned under section 20E is not invalidated by any irregularity at or in relation to the meeting.”

D3.  Material irregularity

21.  An irregularity in a statement of affairs or a proposal for an IVA is capable of constituting an irregularity for the purposes of s.20J(1)(b): Re Chin Wai Kay Geordie [2010] 3 HKLRD 456 (“Chin Wai Kay Geordie (CFI)”) at [22]; Re a Debtor (No.87 of 1993) (No.2) [1996] BCC 80 at 108E (in relation to s.262(1) Insolvency Act 1986, the English equivalent to s.20J(1) BO). This would include material errors or omissions in the debtor’s proposal or his statement of affairs: Tradition (UK) Ltd v Ahmed and others [2009] BPIR 626 at [88].

22.  The information that is provided by a debtor in his statement of affairs must not be false or misleading, and it must also be complete: see Cadbury Schweppes plc v Somji [2001] 1 WLR 615 at [43] (in relation to s.276(1)(b) Insolvency Act 1986, the English equivalent to s.20L(1)(b) BO).

23.  As to materiality, generally, an irregularity will not be material for the purposes of s.20J(1)(b) unless the court is satisfied that had it not occurred, the result of the meeting would have been different. The assessment is to be made objectively. See Chin Wai Kai Geordie (CFI) at [22] to [23], applying Cadbury Schweppes plc at [25], where Robert Walker LJ said (in relation to s.276(1)(b) Insolvency Act 1986):

“In order to determine whether there had been a material omission [the judge] asked himself whether, had the truth been told, it would be likely to have made a material difference to the way in which the creditors would have considered and assessed the terms of the proposed IVA. I consider that that is the correct approach, so long as the question is to be answered objectively, and so long as it is borne in mind that as well as the creditors which were represented at the meeting on 20 December 1999, Mr Cooper held proxies for a number of creditors which were not present by their own representatives. Had Mr Cooper been informed on that day of an important new development which ought to be reported to those for whom he held proxies it would on the face of it have been his duty to adjourn the meeting and report to the other creditors, even if that meant having to obtain an extension of time…”

24.  On the objective assessment of materiality, see also Joseph Golstein v Colin Michael Arthur Bishop [2016] EWHC 2187 (Ch) at [66]:

“The subjective approach of the actual creditors is not the touchstone for assessing materiality. However, the actual vote of the actual creditors will reflect their subjective approach. It is not, therefore, correct to ask whether, had they been told the truth, the actual creditors would have considered and assessed the matter differently, let alone whether they would have voted differently. Instead, the test is to consider whether an objective creditor would have considered and assessed the matter differently depending on whether the truth had been revealed to him.”

25.  Materiality for the purpose of s.20J has to be considered from the point of view of the creditors’ meeting, rather than the IVA process in general: Chin Wai Kai Geordie (CFA) at [34], [39] (J Lam J).

26.  In assessing whether there has been a material irregularity, the duty of good faith between a debtor and his creditors should be taken into account: Kapoor v National Westminster Bank plc and anor [2011] EWCA Civ 1083 at [69], [80].

D4.  Creditor’s entitlement to vote at meeting

27.  Rule 122Q BR provides as follows:

“(1) Subject as follows, every creditor who was given notice of the creditors’ meeting is entitled to vote at the meeting or any adjournment of it.

…

(4) The chairman has power to admit or reject a creditor’s claim for the purpose of his entitlement to vote, and the power is exercisable with respect to the whole or any part of the claim.

(5) The chairman’s decision on entitlement to vote is subject to appeal to the court by any creditor, or by the debtor.

(6) If the chairman is in doubt whether a creditor’s claim should be admitted or rejected for the purpose of his entitlement to vote, he shall make a note of it and allow the creditor to vote, subject to his vote being subsequently declared invalid if the objection to the claim is sustained.

(7) If on an appeal the chairman’s decision is reversed or varied, or a creditor’s vote is declared invalid, the court may order another meeting to be summoned, or make such other order as it thinks just, but the court’s power to make an order under this subrule is exercisable only if it considers that the matter is such as to give rise to unfair prejudice or a material irregularity.

(8) An application to the court by way of appeal under this rule against the chairman’s decision shall not be made after the end of the period of 28 days beginning with the day on which the nominee’s report to the court is made under section 20G of the Ordinance.

(9) The chairman is not personally liable for any costs incurred by any person in respect of an appeal under this rule.”

28.  On an appeal under r.122Q BR, the court is not limited to a review of the chairman’s decision. The court is entitled to approach the matter of voting entitlement de novo, and is not confined to considering only the evidence that was available to the chairman at the meeting. See Moises Gertner v CFL Finance Limited and another [2018] BPIR 1605 at [39] (in relation to the then r.5.22 Insolvency Rules 1986, similar to r.122Q BR).

29.  The court needs to come to a conclusion as to whether, on a balance of probabilities, the claim against the debtor is established and, if so, in what amount. The burden lies on the party seeking to establish that the debt ought to have been admitted. See Tradition (UK) Ltd at [90] to [91].

30.  The parties did not address me on the relationship between r.122Q BR and s.20J BO. Relevantly for present purposes, wrongly admitting a creditor’s claim for the purpose of his entitlement to vote would be a material irregularity under both r.122Q BR and s.20J: see Tradition (UK) Ltd at [88]. Furthermore, on a proper construction of the two provisions, r.122Q BR does not appear to provide a means of challenge to a decision of a creditors’ meeting which goes beyond that under s.20J BO: Narandas-Girdhar v Bradstock [2016] 1 WLR 2366 at [54] to [56], per Briggs LJ.

E.  ZHONGCAI’S R.122Q SUMMONS

31.  I will first briefly deal with Zhongcai’s application to bring its r.122Q BR appeal out of time. The point is of little consequence, since, as I have indicated above, any r.122Q BR challenge would not go beyond the scope of the s.20J BO challenge, and since, on the facts of the present case, Zhongcai’s complaints under r.122Q BR have already been raised in its s.20J BO application. The Affirmation of Lau Ip (“Lau 1^st”) in support of Zhongcai’s s.20J Summons indicated that challenge was being made to the inclusion of the Family Debts (both original and additional) for voting purposes (see paragraphs 5 to 7, 31, 32).

32.  Under r.204 BR, the court may under special circumstances and for good cause shown, extend or abridge the time appointed by the rules for doing any act or taking any proceeding.

33.  “Special circumstances” refers to the surrounding circumstances which may afford an excuse for delay in complying with the time limit, whereas “good cause” relates to the merits in respect of the proceedings for which an extension of time is sought. Thus even if an applicant can show merits (good cause), he still has to show special circumstances to explain his delay. See Li Wo Hing v Raiffeisen Bank International AG (Beijing Branch), unreported, HCSD 19/2014, 10 July 2014 at [11].

34.  Zhongcai did not seek to appeal under r.122Q within 28 days from the Chairman’s Report of 31 March 2021 as required under r.122Q(8), but only by summons of 4 October 2021. In essence, it says that it was prompted to bring the appeal only when counsel (then acting) for Mr Chui in June 2021 observed that no real complaint had been made as to the claims of the Family Members. However, it did not have sufficient information to decide whether to lodge an appeal under s.122Q until the 2^nd Affidavit of Chui Tak Keung Duncan was filed on 20 August 2021 (“Chui 2^nd”), disclosing the evidence relied upon in support of the Family Debts.

35.  I do not consider that any special circumstances are made out. Zhongcai’s s.20J Summons was issued on 9 April 2021, with Lau 1^st of 7 April 2021 in support. In that affirmation, it was said that Zhongcai questioned whether the Family Debts were genuine; that the increase was irregular, and that although Zhongcai did not yet have full information, it was bringing its application under s.20J BO given the 28-day time limit, pending the receipt of further information. There is no explanation as to why Zhongcai did not take a similar approach to an appeal under r.122Q.

36.  There is therefore no proper basis for me to exercise my discretion to extend time for the bringing of such an appeal. However, as indicated above, this is of little consequence in the present case.

F.  THE FAMILY DEBTS

37.  Most of the irregularities complained of by Zhongcai and Profit Big relate to the Family Debts, to which I now turn. In addition to affidavit evidence filed in support of the existence of the Debts, Mr Chui also tendered himself for cross examination by Zhongcai and Profit Big, pursuant to the order of DHCJ Winnie Tsui of 29^th November 2021. However, none of the Family Members gave any evidence in support of the debts; Mr Chui said he did not ask them to do so. Nor did the Nominees give evidence in relation to their involvement in the IVA process.

38.  As a preliminary point, I observe that counsel for Zhongcai, Mr Lincoln Cheung, pitched his case high, seeking to establish at every turn that all of the Family Debts were “concoctions”, and that Mr Chui was dishonest and his evidence consisted of “fabrications”. This tended to cloud the issues. It seems to me that the determinative issue, in the circumstances of this case, is not so much whether Zhongcai has established that there is sufficiently cogent evidence necessary to sustain serious allegations of this nature, but rather, whether, on a balance of probabilities, Mr Chui has shown that the debts he relies are established for voting purposes.

39.  As will be seen below, I have not acceded to Mr Cheung’s invitation to disbelieve Mr Chui wholesale. In considering Mr Chui’s affidavit and oral evidence, I have had regard to the principles for assessing the credibility of a witness’ evidence as summarised in Joint and Several Trustees of the Property of Yeung Wing Sing v Yeung Wing Sing [2021] HKCFI 2018 at [26] to [27]. On the whole, I found Mr Chui to be a straightforward witness. He had an impressive memory of the documents and mastery of detail, but I do not agree with Zhongcai that this should be held against him. I have however borne in mind that Mr Chui is not a disinterested witness, but rather, one with high stakes in the outcome of the dispute. As he stated in the IVA Proposal, its key purpose was to secure a compromise with creditors so as to rescind the bankruptcy petition against him and avoid the stigma of bankruptcy. Thus where Mr Chui’s evidence is not independently supported by contemporaneous documents, I have scrutinised it closely, although bearing in mind that in a family setting, not all transactions would necessarily have been documented. Where his evidence has been contradicted by contemporaneous documents, I have placed greater weight on the latter. Where his evidence has been self-contradictory, I have given it little weight. There were occasions where his evidence did not reflect the whole truth,[2] but I would not extrapolate from this to reject his evidence wholesale.

F1.  Interim dividends of Coqueen

40.  In Chui 2^nd, it was said that one reason for the increase in Family Debts was that Mr Chui’s parents had forgotten to take into account the amount owed by Mr Chui arising from the declaration of dividends by Coqueen in the financial year ending 31 March 2014. Mr Chui’s evidence was that a sum of $180,000,000 was recorded as “interim dividend paid” in Coqueen’s audited financial statements for the year ending 31 March 2014 (“Coqueen’s 2014 Audited Accounts”). At the time, Father was a 69% shareholder in Coqueen, Mother was a 29% shareholder, and Mr Chui and Sister were each a 1% shareholder. Accordingly, Father was entitled to $124,200,000 of the dividend, and Mother was entitled to $52,200,000; and the Family Debts were increased by these two amounts, totaling $176,400,000. Mr Chui further produced a shareholders’ resolution of Coqueen dated 3 March 2014, stating that all the shareholders instructed Coqueen to credit their respective shares of the dividend to the current account with Mr Chui.

41.  It is not disputed that Coqueen declared a dividend of $180,000,000, or that it was credited to Mr Chui’s current account with Coqueen. Rather, the challenge is to Mr Chui’s account that he received Father’s and Mother’s share of the dividend ($124,200,000 and $52,200,000 respectively) by way of loan.

42.  Zhongcai’s case (and that of Profit Big) is that these debts to Father and Mother were a “concoction”, for the following reasons.

42.1  The contemporaneous corporate documents did not suggest that the amounts were loans to Mr Chui.

42.2  The amount of the debt stated in the annotated spreadsheet summary of the audited accounts of Coqueen prepared by Mr Chui on 15 March 2021 (“the Coqueen Summary”) stated the total amount of the debt to be $169,889,227 rather than $176,400,000.

42.3  Mr Chui’s explanations as to why the amount of $176,400,000 was not included in the IVA Proposal or SOA were fabricated.

42.4  Mr Chui’s case was internally inconsistent, given that he did not suggest that he owed a debt to Sister for her portion of the dividend which was paid to him.

42.5  Mr Chui’s evidence that he did not know why the Nominees reduced the amount owed to Father to $118,922,458.90 was inconsistent with the fact that he himself had put down this amount on the Coqueen Summary.

43.  I bear in mind that I also have to consider whether these debts were properly admitted to vote (Tradition (UK) Ltd at [88]) and that for this purpose, the test is whether, on a balance of probabilities, the claim against Mr Chui as the debtor is established, with the burden lying on Mr Chui, being the party seeking in the present proceedings to establish that the debts were rightly admitted.

44.  On the face of it, there would not necessarily be anything untoward in Father and Mother lending their share of the dividend to Mr Chui. Similarly, the fact that there is no reference to a loan in either the board resolution declaring the dividend, or the Coqueen shareholders’ resolution instructing Coqueen to credit each of Father’s, Mother’s, Sister’s and Mr Chui’s share of the dividend to Mr Chui’s current account with Coqueen, is not in itself remarkable. Whether the shareholders were crediting their share of dividends to Mr Chui’s account by way of loan was not a matter that concerned Coqueen.

45.  I also do not consider it necessarily unbelievable that Mr Chui did not recall the loans at the time of preparing the IVA Proposal or the SOA, even though their total was of such a large amount. I have to say that this averred omission and slip in memory is somewhat surprising given the meticulous organisation of material and impressive degree of recollection of detail which Mr Chui demonstrated throughout his oral evidence. However, Mr Chui’s evidence was that he had originally referred to Coqueen’s management accounts for 2019 in preparing the SOA, and he did not review Coqueen’s 2014 Audited Accounts until Father reminded him to do so upon receiving the Nominees’ request for supporting documents, whereupon he recalled the relevant events. It seems to me that this is not implausible.

46.  However, even proceeding on that basis, there remain a number of puzzling points.

47.  First, if Father and Mother had lent their share of the dividend, as was said to be evidenced by the shareholders’ resolution of 3 March 2014, then the entirety of their shares ($124,200,000 and $52,200,000, totaling $176,400,000) would have been lent. However, the Coqueen Summary prepared by Mr Chui in March 2021, said to have been collated upon his recollection of the loan, stated the total loan from his parents to be $169,889,227. Mr Chui’s explanation in cross examination was that when he prepared the summary, he had not looked at Coqueen’s ledgers, and had only referred to the audited accounts; Father had reminded him that the dividend had been used to reduce his current account with Coqueen; the audited accounts showed that the reduction from 31 March 2013 to 31 March 2014 was $169,889,227; he “wanted to calculate conservatively how much [his] parents should claim, as a minimum”, as being the debt owed to them, and this was the figure stated on the Coqueen Summary as a result. I do not understand this reasoning. If the entirety of the $176,400,000 was lent to Mr Chui and credited to his current account with Coqueen as he says, then even if there may have been other changes to his current account, such that the overall reduction in the amount owed to Coqueen between 31 March 2013 to 31 March 2014 was of a different amount, this would not have affected the fact that $176,400,000 was indeed lent to him. There would be no question of conservatism or otherwise as to the amount of the debt: it should simply have been $176,400,000. Nor would the amount of the loan have been calculated by reference to the audited accounts. It would simply have been the sum of Father’s and Mother’s share of the dividend, totaling $176,400,000.

48.  Indeed, in Chui 2^nd (see paragraph 41), Mr Chui’s evidence was that a total of $176,400,000 was lent, and there was no suggestion in this affidavit that the loan was of a different amount. Whilst this affidavit also exhibited the Coqueen Summary, the part of the document which referred to the loan from Father and Mother as totaling $169,889,227 had been redacted from the exhibited version, and only subsequently disclosed pursuant to the court’s order. The affidavit did not disclose that in March 2021, Mr Chui had calculated $169,889,227 as being the amount of the loan from his parents, and that this was the figure put forward to the Nominees, rather than $176,400,000.

49.  Second, on the Coqueen Summary, $118,922,458.89 (70%) of the $169,889,227 is attributed to “Loan from Father” and $50,966,768.19 (30%) is attributed to “Loan from Mother”.[3] These are close to, but not identical to, Father’s and Mother’s respective shareholdings in Coqueen of 69% and 29%. It is unclear how this division was arrived at or what the basis for it might be. It is, however, a further deviation from the supposed loan amounts of $124,200,000 and $52,200,000.

50.  Incidentally, the amount attributed to Father in this way ($118,922,458.90) was eventually the amount allowed by the Nominees as being the debt owed to Father. The Nominees have never explained why this was the amount allowed. Mr Chui says he does not know why the Nominees allowed this amount. I note that in Chui 2^nd, when Mr Chui first said that he did not know why the Nominees allowed this amount rather than the supposed actual debt of $124,200,000, giving the impression that the figure of $118,922,458.90 had been calculated by the Nominees on an unknown basis, he did not disclose that he himself had put forward this very amount of $118,922,458.90 in the Coqueen Summary as being the debt owed to Father.

51.  Third, Mr Chui says that Sister’s share of the dividend was also lent to him. However, no claim was made by the Sister of this amount as a debt owed to her. Mr Chui says that she overlooked this.[4] This may be so, although Sister has given no evidence to confirm that this was the case. Yet even if so, this would not explain why no reference to the Sister’s loan was included in the Coqueen Summary prepared by Mr Chui (which was drawn up after he had recalled the declaration of the dividend and the loan made by Coqueen’s shareholders of their respective shares of the dividend). On the contrary, his note on the Coqueen Summary states, against the figure of $169,889,227, “dividend of CPK and Mrs Chui used to repay loan owed by DC in 2013-2014”. In other words, Mr Chui did not attribute any of the Sister’s share of the dividend as having gone towards repayment of Mr Chui’s debt to Coqueen.

52.  All of these points call into question whether there was indeed a loan of Coqueen’s shareholders’ dividend in 2014 as claimed. There has been no evidence from Father, Mother or Sister to shed any further light on the matter. In the circumstances, I am not satisfied on the balance of probabilities that there was a loan from Father of $124,000,000 (or $118,922,458.90 as admitted by the Nominees) or from Mother of $52,200,000.

F2.  Indemnity for Imperia Capital’s indebtedness to Coqueen

53.  Mr Chui has treated his indebtedness to Coqueen as part of the Family Debts, given that Coqueen is owned as to 99% by members of his family. Included within the debts claimed by Mr Chui to be owed to Coqueen is an amount of $115,997,990.12 owed by one Imperia Capital International Holdings Limited (“Imperia Capital”) to Coqueen. Imperia Capital is Mr Chui’s personal investment holding company. Mr Chui’s evidence is that he was originally the sole director and shareholder; in around mid-2008, Father became the majority shareholder, but on the basis that Mr Chui would continue to be personally liable for Imperia Capital’s debts to Coqueen.

54.  In Chui 2^nd, in support of the amount owed by Imperia Capital, Mr Chui produced a letter of indemnity dated 2 November 2014 (“the Letter of Indemnity”), in which he stated:

“I hereby confirm my intention to indemnify any financial losses that [Coqueen] may incur if any of those amounts [$115,997,990.12] turn out to be irrecoverable.”

55.  Mr Chui’s evidence is that in about June 2013, Coqueen was to receive $115,997,990.12 from Professional Guide Enterprise Limited (“Professional Guide”), following settlement of a dispute over the Fook Lam Moon companies. It was decided by Coqueen’s board that the funds would be lent to Imperia Capital and/or Mr Chui (I return to this below). Mr Chui withdrew the sum in instalments. In order to distinguish between this loan and other loans from Coqueen, it was decided that the funds from Professional Guide would be booked to Imperia Capital’s current account with Coqueen. The auditors of Coqueen required the Letter of Indemnity to satisfy them that Mr Chui would bear the liabilities of Imperia Capital in the amount of $115,997,990.12.

56.  It is Zhongcai’s case that the Letter of Indemnity was a recent fabrication for the purpose of resisting the proceedings. This point can be dealt with shortly. Mr Chui produced an email from Coqueen’s auditors confirming that they received the Letter of Indemnity from Mr Chui’s colleague in 2014. Mr Chui was able to locate the original email of 18 November 2014 to the auditors to which the Letter of Indemnity was said to have been attached, although the attachments to the email were missing. However, the title of the email was “RE: Coqueen – Minutes for Interim Dividends”, and in response to a query in 2021 as to whether the Letter of Indemnity (as attached to the 2021 query) was sent in 2014 together with the minutes regarding the interim dividend, the auditors confirmed that they received the email and attachment in 2014. Whilst the auditors did not specify what the attachment was, the context of the query indicates that it was the Letter of Indemnity. Mr Chui has explained that Coqueen’s auditors required the letter for the purpose of being sure that Mr Chui would indemnify Coqueen for any losses arising out of the arrangement before the audit for the year ending 31 March 2014 could be finalised. There is no reason to think that the auditors are colluding in the alleged fabrication or are mistaken as to what they received in 2014.

57.  Zhongcai says, however, that this is not all. They say that the letter must have been fabricated because Coqueen’s 2014 Audited Accounts show that the amount due from Imperia Capital to Coqueen as at 31 March 2014 was only $96,104,000. It was only in Coqueen’s audited financial statements for the year ending 31 March 2018 that the figure of $115,997,990.12 appeared. There was a great deal of cross-examination about this, along the lines that only a fortune teller could have put down the figure in the Letter of Indemnity, but ultimately, it seems to me that the sum was known by 4 June 2013, when the two amounts of $68,838,729.41 and $48,159,260.71 (totaling $115,997,990.12) were entered in the ledger for Professional Guide’s account with Coqueen. It is true that this was then advanced by Coqueen to Imperia Capital in tranches between 4 June 2013 and 31 March 2015, in other words, with some tranches being borrowed after the date of the Letter of Indemnity. Thus the wording of the Letter of Indemnity is not correct in stating that as at 31 March 2014, Imperia owed the full amount of $115,997,990.12 to Coqueen. However, I do not consider this to constitute cogent evidence that the letter was fabricated for the purpose of the present hearing. The drafting may simply have been careless.

58.  In any event, Zhongcai does not appear to take issue with the audited financial statements of Coqueen for subsequent years (after 2014). I note that for the years ending 31 March 2015, 2016 and 2017, the amount stated to be owing by Imperia to Coqueen increased to some $120m-odd, and then for the year ending 31 March 2018 (well before the commencement of these proceedings), it was stated to be $115,997,990.12.

59.  However, Zhongcai submits, in the alternative, that the Letter of Indemnity is unenforceable, as it does not satisfy the requirements of a contract, there being no evidence of Coqueen having accepted Mr Chui’s “offer” in the letter and it being unsupported by consideration.

60.  It seems to me that the Letter of Indemnity simply does not create any legal obligation on the part of Mr Chui, whether to Coqueen or Imperia Capital, to bear Imperia Capital’s debt. It indicates a mere intention on Mr Chui’s part to indemnify Coqueen for its losses in certain circumstances.

61.  Zhongcai also submitted that there is no evidence that the amounts owed by Imperia Capital are irrecoverable, or that Coqueen has suffered any financial loss, such as to trigger any obligation on the part of Mr Chui. I accept Mr Chui’s submission that the point was not put to him, and cannot now be taken. In any event, there is some evidence in the Nominees’ Report (see paragraphs 7.2.3, 7.2.12) that Imperia Capital had little assets with which to repay any substantial debt.

62.  Lau 2^nd having objected to the inclusion of Imperia Capital’s debt to Coqueen as a debt on the part of Mr Chui, Mr Chui’s evidence then developed. In the 3^rd Affidavit of Chui Tak Keung Duncan (“Chui 3^rd”),[5] Mr Chui described the amounts lent by Coqueen to Imperia as loans “effectively” advanced to him (by Coqueen). In oral testimony, Mr Chui developed this further, saying that there were in fact back-to-back loans: from Coqueen to Imperia Capital, and then from Imperia Capital to him, so that he owed the debt directly to Imperia Capital. It seems that the only significance of this would be to support an argument that he owed a debt irrespective of the enforceability of the Letter of Indemnity. However, the documents produced by Mr Chui do not show that any back-to-back loan was made:

62.1  the audited accounts relied on by Mr Chui as evidencing the debt describe the loan as owed by Imperia to Coqueen;

62.2  the ledgers produced by Mr Chui describe the funds as having been received by Mr Chui “on behalf of Imperia”;

62.3  the basis of the Letter of Indemnity is that there was a loan made to Imperia Capital, not Mr Chui.

63.  Indeed, even in Chui 2^nd at paragraphs 32 and 34, Mr Chui described the amount of $115,997,990.12 as a debt “owed by Imperia Capital to Coqueen”. It was only in Chui 3^rd, in response to Zhongcai’s pointing out that the amount was owed by Imperia Capital rather than Mr Chui, that Mr Chui said that the funds were to be booked to Imperia Capital’s current account with Coqueen but treated and described as monies received by Mr Chui, and that the loan (from Coqueen) was to be treated as “effectively” advanced to him. However, in the ledgers, the amounts were described as received by Mr Chui “on behalf of Imperia Capital”, not in his own right.

64.  It was only in oral evidence that Mr Chui sought to explain the ledger treatment by saying that there was a back-to-back loan from Coqueen to Imperia Capital and then from Imperia Capital to himself. This was not the explanation which he had given in Chui 2^nd or Chui 3^rd. Imperia Capital was not previously identified as the creditor for this debt. I do not accept this oral evidence, it being contradicted by the contemporaneous records and his own considered affidavit evidence.

65.  Mr Chui further submitted in closing submissions[6] that from Coqueen’s perspective, the loan was made to Imperia Capital; but from Imperia Capital’s perspective, the loan was made to Mr Chui. The audited accounts and ledgers only focused on the former, and not the latter, with the Letter of Indemnity seeking to address the latter. However, the Letter of Indemnity does not describe the loan as one from Imperia Capital to Mr Chui; indeed he would not be giving an indemnity if he was himself the debtor.

66.  Accordingly, I find that Mr Chui has not established that any debt was owed by him to Coqueen under the terms of the Letter of Indemnity, and I reject Mr Chui’s argument that the debt was one owed to Imperia Capital.

F3.  Mother’s claims (other than the interim dividend from Coqueen)

67.  Other than Mother’s share of the interim dividend from Coqueen which I have addressed above, Mother’s claims fell into two categories: loans made directly to Mr Chui in the amount of $48,023,250, and repayment made on Mr Chui’s behalf to Coqueen in the amount of $1,684,000.

68.  Mr Chui produced in evidence a table (CTKD-16) listing out the dates and amounts of sixty-two loans said to have been made by Mother to himself between December 2008 and March 2021, together with deposit slips and bank statements in support of the loans. The table is said to have been prepared by Sister.

69.  There are two transactions which were transfers of funds from one of Mother’s accounts to another of her accounts, in the amount of $1,000,000 on 22 January 2009, and in the amount of $1,000,000 on 13 February 2009. Mr Chui’s evidence is that Mother was unable to locate copies of her bank statements to show how the sums were subsequently transferred to him. He says that he and Mother recall that they were paid to him because the DBS account from which the transfers were made was an investment account, which were “sufficient indication that she had to liquidate her investments from the DBS account in order to make the two HK$1,000,000 available to me at that time”.

70.  I am not satisfied on the balance of probabilities that these two loans were made. The fact that Mother liquidated her investments is not probative of whether the proceeds were paid to Mr Chui. There is no evidence from Mother. Mr Chui says that Mother was unable to locate her bank statements to show how the transfer was made to him, but he did not say that his own bank statements were unavailable for this purpose.

71.  I draw the inference that Mother’s evidence and Mr Chui’s bank statements would not have assisted in establishing the existence of these loans. Where a person without explanation fails to call as a witness a person who he might reasonably be expected to call, or produce a document or other real evidence that he might reasonably be expected to disclose, it is open to the Court to infer that that person’s evidence would not have helped that party’s case: South China Securities Ltd v Lam Kwen Yuen [2012] 5 HKLRD 524 at [7]. In the present case, Mr Chui accepted that there was nothing to prevent Father, Mother or Sister from giving evidence; he simply did not ask them to do so. He would have been aware from Zhongcai’s evidence that his claim about the Family Debts was hotly disputed and that these family members’ evidence would have been of relevance. Indeed, I note that for some other transactions (for example, in relation to Sister’s payment for Mr Chui’s insurance policy which was claimed as a loan from Sister), Mr Chui supplemented the evidence originally given to the Nominees and in Chui 2^nd by producing further supporting documents, so he was well aware that he could advance his case by providing additional evidence.

72.  There are two transactions in which Mother drew a cheque, one in favour of herself dated 18 January 2019 for $600,000, and the other a cash cheque dated 20 June 2019 for $1,000,000. Mr Chui’s evidence is that Mother would not have had need for so much cash, and that it was used to pay his creditors; however, due to lapse of time, he did not have any records of the recipients of the funds.

73.  I am not satisfied that these two loans were made. Again, there is no evidence from Mother. Again, Mr Chui did not produce his own bank statements. On the contrary, in cross-examination, when it was specifically put to him that he could have provided the statements to the Nominees if he had wanted to, his answer was that he was not asked to do so (and not that he did not have them). The transactions were relatively recent, and yet no records (or any other details) of any of the ultimate recipients of the funds were produced. Again, I draw the inference that such evidence and documents would not have helped to establish the making of the loans.

74.  There are then numerous transactions for which only redacted copies of Mother’s bank statements were produced. These transactions fell into one of four categories:

74.1  withdrawals annotated “debit as advised”;

74.2  withdrawals annotated “cheque” and bearing a cheque number;

74.3  withdrawals annotated “cash”; and

74.4  withdrawals annotated “CR TO 6[XX]-[XXXXXX]-001” (Mr Chui’s account number).

75.  I am not satisfied on a balance of probabilities that withdrawals under the first three categories were loans made by Mother to Mr Chui. No particulars of any of the transactions have been given against which any sort of verification can be made. There is no information as to the recipient of the funds. Copies of the cheques have not been provided. Mother has not given evidence. Mr Chui has not provided bank statements showing the receipt of the funds. Again, I draw the inference that this evidence would not have been helpful in establishing the existence of the loans.

76.  As to the remaining loans, these were either said to be made from Mother directly to Mr Chui (and there is documentary evidence that they were deposited into Mr Chui’s account), or made to third parties which appear to be Mr Chui’s creditors, such as Zhongcai itself. Zhongcai sought to argue that mere payment is not sufficient evidence of a debt, citing Big Island Construction (HK) Ltd v Wu Yi Development Co Ltd (2015) 18 HKCFAR 364. However, what the Court of Final Appeal decided was that there is no presumption of an obligation to repay arising from the fact of a payment to a stranger. In the present case, Mr Chui is not relying on a presumption. He has given evidence that Mother paid these amounts to him, or on his behalf, by way of loan, and Zhongcai has not challenged them other than in a general manner (save in respect of Guo Fu Lou (HK) Limited (“GFL”)). In respect of these transactions, I accept Mr Chui’s evidence that they were loans from Mother.

77.  In relation to the few payments made to GFL by Mother, as evidenced in GFL’s ledgers or other contemporaneous documents, it was said that it was inconceivable that Mother would not have lent money directly to the company directly, but only through Mr Chui.[7] Zhongcai further says that the SOA did not identify receivables from GFL as Mr Chui’s assets, which it would have done had Mother and the other Family Members lent money to GFL on Mr Chui’s behalf. I do not find Mr Chui’s explanation that he sometimes asked members of his family to deposit money to GFL, promising to repay them, to be incredible as Zhongcai submitted. After all, he was the family member who took an active part in the business. I also accept his explanation that the SOA did not include any receivables as an asset because GFL had no means to repay him, being insolvent with net liabilities of over $11m by September 2020.

78.  I then come to the payments said to have been made on Mr Chui’s behalf to Coqueen, between July 2020 and February 2021, totaling $1,684,000. No supporting documents were provided in respect of these payments, whether to the Nominees or in the evidence before the court (other than Sister’s table). Neither Mother nor Sister have given any evidence. I draw the inference that their evidence would not have assisted in establishing the existence of these loans. I am not satisfied that payments were made by Mother as claimed.

79.  I am therefore not satisfied that of the claimed loans, the following amounts, totaling $29,797,250, were loans made by Mother to Mr Chui.

Self-transfers

22 January 2009	$1,000,000	self-transfer
13 February 2009	$1,000,000	self-transfer

Cheque to self and cash cheque

18 January 2019	$600,000	cheque in favour of Mother
20 June 2019	$1,000,000	cash cheque

“Debit as advised” / “cheque” / “cash”

5 December 2014	$350,000	“debit as advised”
24 or 25 April 2015[8]	$138,000	“cheque”
20 July 2015	$2,500,000	“debit as advised”
30 December 2015	$138,000	“cheque”
12 July 2016	$500,000	“debit as advised”
17 or 28 January 2017[9]	$227,000	“cash”
29 December 2016	$917,600	“cheque”
21 July 2017[10]	$4,000,000	“debit as advised”
14 September 2018[11]	$1,000,000	“cheque”
27 December 2018	$2,500,000	“debit as advised”
20 February 2019	$280,000	“cheque”
21 February 2019	$280,000	“cheque”
27 June 2019	$2,000,000	“cheque”
22 July 2019	$3,000,000	“cheque”
1 August 2019	$1,000,000	“cheque”
10 September 2019	$200,000	“cash”
31 October 2019	$300,000	“cheque”
8 November 2018	$122,650	“cheque”
26 November 2019	$200,000	“debit as advised”
17 December 2019	$1,500,000	“cheque”
7 April 2020	$400,000	“debit as advised”
8 July 2020	$100,000	“debit as advised”
17 July 2020	$200,000	“debit as advised”
4 August 2020	$700,000	“debit as advised”
3 August 2020	$490,000	“cheque”
17 August 2020	$100,000	“cheque”
19 August 2020	$500,000	“cheque”
10 September 2020	$300,000	“debit as advised”
10 or 22 September 2020[12]	$150,000	“cash”
10 September 2020	$150,000	“cheque”
5 October 2020	$150,000	“debit as advised”
10 February 2021	$120,000	“cheque”

Total of various payments said to have been made to Coqueen

July 2020 to February 2021

$1,684,000

F4.  Sister’s claims

80.  Sister claimed that she made forty-one loans to Mr Chui totaling $4,161,000.

81.  Mr Chui produced in evidence two tables prepared by Sister (CTKD-17, CTKD-18) listing out the loans, together with various documents in support of the loans. (The second table revised the amount claimed to $4,352,000, but the Nominees considered Sister’s claims by reference to the original amount of $4,161,000.[13])

82.  Zhongcai made the same complaints in relation to these loans as for the loans from Mother.

83.  For similar reasons as given in relation to loans from Mother, I am not satisfied on a balance of probabilities that transactions which were said to be evidenced solely by redacted bank statements and described as:

83.1  withdrawals annotated “debit as advised”,

83.2  withdrawals annotated “cheque” and bearing a cheque number, and

83.3  withdrawals annotated “cash”,

were loans made by Sister to Mr Chui. No particulars of any of the transactions have been given. There is no information as to the recipient of the funds. Copies of the cheques have not been provided. Sister has not given evidence. Mr Chui has not provided bank statements showing the receipt of the funds. Again, I draw the inference that this evidence would not have been helpful in establishing the existence of the loans.

84.  Zhongcai submitted that payments to third parties such as Bupa (Asia) Limited and GFL could not be loans to Mr Chui. However, Mr Chui has produced additional evidence showing that the payment to Bupa (Asia) Limited was for his medical insurance policy, and in Chui 3^rd, he confirmed that payments to GFL were made on his behalf. No specific challenge was made in relation to payments to other third parties when Mr Chui gave evidence and I accept Mr Chui’s general evidence that payments were made on his behalf by members of his family, on the basis that he would eventually pay them back.

85.  There were payments made to GFL either by credit card or by transfer into its bank account, and shown on Sister’s credit card or bank statements or GFL’s ledgers. As with the payments made by Mother, I accept Mr Chui’s evidence that these were loans to him.

86.  There were payments made directly to Mr Chui’s account. I accept his evidence that these were loans to him.

87.  There were items in the table for which no supporting documents were produced at all. I do not accept, on the balance of probabilities, that these were loans made to Mr Chui.

88.  I am therefore not satisfied that of the claimed loans, the following amounts, totaling $842,000, were loans made by Sister to Mr Chui.

“Debit as advised” / “cheque” / “cash”

29 October 2019	$60,000	“debit as advised”
17 December 2019	$300,000	“cheque”
24 March 2020	$300,000	“debit as advised” “cheque deposit”
17 June 2020	$120,000	“debit as advised”

No supporting documents at all

7 September 2020	$12,000
7 December 2020	$50,000

F5.  Wife’s claims

89.  Wife claimed that she made thirty-two loans to Mr Chui totaling $20,583,206.60.

90.  Mr Chui produced in evidence a table prepared by Wife (CTKD-19) listing out the loans, together with various documents in support of the loans, consisting mostly of copies of cheque stubs noting loans made to Mr Chui, and some bank statements, credit card statements, cheques, and deposit slips.

91.  There were two loans which were supported by redacted bank statements which only showed withdrawals marked “debit as advised”. As with loans claimed by Mother and Sister, I do not consider that on the balance of probabilities, it has been shown that loans were made to Mr Chui in these amounts. They were as follows.

5 June 2019	$1,300,000	“debit as advised”
30 July 2019	$50,000	“debit as advised”

92.  Otherwise, I consider that on the balance of probabilities, the loans have been established, with the recipient of the funds being indicated to be Mr Chui. I consider Zhongcai’s submission that cheques written to Mr Chui may not have been deposited to be inherently unlikely. Zhongcai also submitted that some of the cheque stubs stated that the loans were to be short-term, and that some were dated many years ago so that the loans would be time-barred from recovery, such that Mr Chui and Wife must have deliberately put in unenforceable claims to increase Wife’s entitlement to vote. As this point was not put to Mr Chui in cross-examination, it would not be right to make such a finding against him.

93.  I am therefore not satisfied that of the claimed loans, $1,350,000 were loans made by Wife to Mr Chui.

F6.  In-laws’ claims

94.  Mr Chui says that in around 2002 or 2003, he borrowed US$300,000 from his in-laws (“In-laws”) at an interest rate of 5% per annum, and that in November 2019, he borrowed a further HK$1,000,000 from Mother-in-Law. After taking into account interest, and repayments made of HK$1,800,000 in 2013 and HK$800,000 in 2014, the total amount owing, as reported to the Nominees, was HK$3,839,098.21.

95.  Mr Chui said that the US$300,000 loan was evidenced, in part, by a TT receipt dated 13 Jun 2003, showing the remission of US$100,000 to Mr Chui. The name of the remitter was partly redacted, and read “LING CH---”. The other piece of evidence was an email sent to Wife dated 23 March 2015 in which Mr Chui set out various payments which he said “should be related to your mom’s loan of USD 300,000”. The email bore some annotations on it. In Chui 2^nd, it was said that these were “hand annotations made at the time by my wife”. In cross-examination, when it was pointed out that the email was stated to have been printed out on 13 March 2021, Mr Chui said that in fact, the email was a reprint, as Wife had made other notes on the original email and did not want to disclose those, and the reprint was re-annotated by his wife (with certain annotations left out). It was put to Mr Chui that he was lying when he gave this last piece of evidence. It was not, however, suggested that the original email was never sent, or that the freshly-made annotations were not a faithful reproduction of the original, or that relevant annotations had been omitted when Wife made the re-annotations. Nor was any challenge made to the accuracy of the reference to the loan of US$300,000, or to the annotations made by Wife as to the partial repayments of HK$1,000,000 and HK$800,000 having been made. On balance, I consider that on the balance of probabilities, the loan of US$300,000 was made.

96.  Zhongcai also submitted that Mr Chui gave conflicting evidence as to the interest rate applicable to the loan. Mr Chui had originally told the Nominees that an interest rate of 2.5% per annum was applicable, whereas in Chui 2^nd, he said that it was 5% per annum. Mr Chui’s explanation was that whilst the rate of interest was originally 2.5%, it was increased to 5% in about 2015, to be applicable to the whole of the loan and any further loans, as he had not been able to repay the original loan for many years. Whilst it may be that this could have been better explained in Chui 2^nd, I accept that it was a case of Mr Chui setting out the ultimate position rather than one of fabrication.

97.  The HK$1,000,000 loan is evidenced by a cheque stub to GFL. It is said that there is no evidence that the cheque was actually written, or deposited. It is also said that the amount does not appear in GFL’s ledgers. As to the first point, it seems inherently unlikely that no cheque was written or deposited. The second point was not put to Mr Chui.

98.  I accept that on the balance of probabilities, Mr Chui owed $3,839,098.21 to In-laws.

F7.  Impact of disputed debts on voting

99.  It will be seen from the above that I have not accepted Zhongcai’s case that the Family Debts are all concoctions, but that I find that some of them have not been established on a balance of probabilities.

100.  I now set out a comparison of the claims which were actually admitted to vote at the Meeting with the claims which would have been admitted in accordance with my findings above, as follows (leaving aside creditors who abstained from voting).

Creditor	Amount of claims admitted to vote at the Meeting ($)	Amount of claims which would have been admitted based on above findings ($)
Coqueen	181,326,503.67	65,328,513.55
Father	118,922,458.90	0
Mother	98,990,018.00	16,992,768.00[14]
Sister	4,161,000.00	3,319,000.00
Wife	20,583,206.60	19,233,206.60
In-laws	3,839,098.21	3,839,098.21
(sub-total for Family Members)	427,822,285.38	108,712,586.36
Other creditors voting in favour of the IVA Proposal	202,854,648.48	202,854,648.48
Creditors voting in favour of the IVA Proposal (including Family Members)	630,676,933.86	311,567,234.84
Creditors voting against the IVA Proposal	163,862,996.22	163,862,996.22
Total claims voting[15]	794,539,930.08	475,430,231.06
Percentage of claims voting in favour of IVA Proposal	79.38%	65.53%

101.  The claims voting in favour of the IVA Proposal would have been 65.53%, less than the requisite 75% majority for the IVA Proposal to pass. There was therefore a material irregularity at the Meeting: cf. Tradition (UK) Ltd at [200]. The IVA Proposal ought not to have been approved, and the Decision should therefore be revoked.

G.  WHETHER MANIPULATION OF THE IVA PROCESS IN BREACH OF PRINCIPLE OF GOOD FAITH

102.  Zhongcai complains that the increase in the Family Debts was an abuse of the IVA regime, in that:

102.1  the Family Members decided to forego their dividend distribution in the IVA process, which made no commercial sense, thus showing that the Family Debts were not genuine. Furthermore, the timing of their decision to do so only on 23 March 2021 indicated there must have been some agreement amongst them to do so;

102.2  the requisite majority for approving the IVA Proposal could not have been achieved but for the admission of the additional claims which were notified to the creditors at the Meeting, which suggests that the Family Members’ sole purpose was to ensure that Mr Chui could avoid being adjudged bankrupt, without regard to whether the IVA Proposal was viable and in the interest of other creditors;

102.3  the disclosure of the additional claims was made only at the Meeting, so that those creditors voting by proxy given to the Chairman in advance could not have reconsidered their stance, and all creditors in general did not have much time to consider their stance. The Meeting was therefore a “stitch-up” to help Mr Chui evade bankruptcy. In this regard, Mr Chui’s oral testimony that avoiding bankruptcy was a reason, but not the main reason, for the IVA Proposal contradicted what he stated in paragraph 2.1.2 of the proposal itself, namely, that the purpose was to secure a compromise with debtors so as to have the bankruptcy rescinded and to avoid the stigma of bankruptcy.

103.  A similar submission was made in Tradition (UK) Ltd: see [94] to [96]. As the learned judge in that case did, I can see that the matters complained of by Zhongcai are such as to excite the court’s suspicion as to the bona fides of the disputed debts. Mr Chui’s evidence was that by October 2020 he already knew that Father’s and Mother’s claims would be greater than what was eventually to be stated in the IVA Proposal in January 2021. Yet he did nothing in the months after October 2020 to ascertain with more precision what those claims might be, and it was only in March 2021 when the Nominees asked for supporting evidence that, he says, it was discovered that the loans of the interim dividend had been overlooked. He further said that he took no steps between October 2020 and March 2021 to verify any of the Family Members’ claims. He sought to distance himself from the claims of the Family Members, saying that he had finished his job as far as he was concerned once he completed the IVA Proposal, and it was the Family Members who put in additional claims in March 2021. Yet at the same time, he was the one who liaised with the Nominees in March 2021 to assist the Family Members in putting in their claims.

104.  However, I have borne in mind that my task is to consider the validity of the disputed claims by reference to the evidence relating to that claim, and not on the basis of any predisposition to find that there has been a “stitch-up”: Tradition (UK) Ltd at [96]. I have considered the debts in the previous section accordingly.

105.  In any event, it seems to me that insofar as Zhongcai seeks to submit that the Family Members had a duty to consider their votes by reference to whether the IVA Proposal was viable and in the interest of other creditors, that is going too far. Mr Cheung did not identify any authority to say that a creditor has to exercise his vote with regard to the interests of other creditors.

106.  Zhongcai argued that the increase in Family Debts was a breach of the principle of good faith, citing Kapoor. However, the present case is not one like Kapoor where there was an express arrangement made to subvert the legislative policy behind the IVA regime. If the Family Debts were genuine debts, they were not an arrangement made to subvert the IVA regime, and the Family Members were entitled to vote in favour of the IVA Proposal. If, on the contrary, the Family Debts were not genuine, then they would not entitle the Family Members to vote, and there is no need to consider additionally whether the Family Debts amount to some kind of scheme to subvert the policy of the IVA regime.

H.  WHETHER MATERIAL IRREGULARITY IN FAILING TO GIVE FULL AND FRANK DISCLOSURE REGARDING FAMILY DEBTS

107.  Zhongcai submits that even if the Family Debts were genuine, Mr Chui’s statements in the IVA Proposal and SOA to the effect that the Family Debts were in the sum of “over HK$206 million” were misleading or false, in particular, given that Mr Chui could not have forgotten about the debt arising from the interim dividends. Zhongcai also submits that Mr Chui turned a blind eye to the inaccuracy of the IVA Proposal and SOA given that he had ample time after October 2020 (when he was aware that the Family Members were claiming more than $206 million) to check the level of the actual claims but failed to do so.

108.  As I have indicated earlier, whilst it was somewhat surprising that Mr Chui forgot about the loan said to arise from the interim dividends, I do not consider that it was necessarily unbelievable that he did so. As to the other additional claims, it was Mr Chui’s evidence that it was the Family Members who came up with the additional claims when asked by the Nominees for supporting evidence of their claims in March 2021; there is nothing to suggest that this is untrue. In the circumstances, I decline the invitation to find that Mr Chui deliberately made a false statement in the IVA Proposal and SOA as to the amount of the Family Debts or turned a blind eye to the falsity of such a statement.

109.  That being the case, I am not persuaded that the mere omission to refer to the additional Family Debts would in itself be a material irregularity. Zhongcai submitted that the difference between what was presented as the level of the Family Debts in the IVA Proposal and SOA and the actual level was substantial and therefore likely to have affected how creditors may have voted at the Meeting, and possibly even the result of the voting. Zhongcai referred to the evidence that two creditors, Bosonic and Macy’s Candies Limited, say that they would have voted differently had they been aware of the increase in the level of Family Debts. I would however observe that the materiality of an irregularity is to be assessed objectively, and not by reference to what any actual creditor may say, ex post facto: Chin Wai Kai Geordie (CFI) at [22] to [23]; Joseph Golstein at [66]. The increase in the level of Family Debts would not have affected the rate of return which a creditor would obtain (given that the Family Members had opted not to receive any dividend), and Zhongcai’s submission is premised on the basis that the Family Debts are genuine (albeit notified to the other creditors only at the Meeting). Objectively, there is no reason why a creditor who was in favour of the IVA Proposal (and therefore of receiving the return under such a proposal) would not have continued to vote in favour of the proposal, even if it transpired that the debtor in fact owed more money to associated creditors than originally thought, if this would not affect the return to be received.

I.  WHETHER MATERIAL IRREGULARITY ARISING DUE TO NOMINEES’ FAILURE OF DUTY

110.  Zhongcai submitted that the Nominees failed to discharge the duties expected of them, in that they failed to properly admit or reject creditors’ claims as to entitlement to vote and to satisfy themselves that Mr Chui’s true position as to assets and liabilities did not appear to them, in any material respect, to differ substantially from that which was represented to the creditors. Zhongcai says that:

110.1  the proof of the Family Debts was inadequate;

110.2  it is doubtful that the Nominees carried out any proper enquiry or verification as to the Family Debts;

110.3  the Nominees pressed on with the Meeting despite knowing that the Family Debts were substantially greater than that represented in the IVA Proposal and Statement of Affairs, and without giving any notice of this to the creditors prior to the Meeting.

111.  Zhongcai submits[16] that the first two points (the failure of the Nominees to properly verify the Family Debts) affected the voting result, and that the last point (the decision to press on with the Meeting) likely affected how the other creditors would have voted at the Meeting. It is said that there was therefore an irregularity at or in relation to the Meeting.

112.  In relation to the third point, it seems to me that, as set out in the previous section, there is no reason why a creditor who was in favour of the IVA Proposal (and therefore of receiving the return under such a proposal) would not have continued to vote in favour of the proposal, even if given notice that the debtor in fact owed more money to associated creditors than originally thought, if this would not affect the return to be received by that creditor. This would apply equally to creditors voting in person and by proxy. I therefore do not consider that Zhongcai has established that even if they had known about the additional Family Debts, creditors (other than the Family Members) would have voted differently at the Meeting.

113.  These observations apply equally to Big Profit’s argument[17] that the Nominees failed to inform the creditors prior to Meeting about the increase in Family Debts, to explain the debts at the Meeting, and to supply particulars of the Family Debts after the Meeting. In particular, failure to supply particulars of the Family Debts after the Meeting would not have affected the outcome of the Meeting.

114.  In relation to Zhongcai’s first two points, it seems to me that this complaint overlaps greatly with the complaint considered under section F above. As I have found, a number of the Family Debts ought not to have been allowed for voting purposes, and had they been disallowed, the IVA Proposal would not have been approved, so that there was a material irregularity at the Meeting. The only additional submission sought to be made, therefore, is Zhongcai’s complaint that the Family Debts were wrongly allowed by reason of the Nominees’ breach of duty. This would not give rise to any additional material irregularity on which Zhongcai can rely for the purposes of s.20J BO; it only seeks to examine the reasons by which the material irregularity came into being. I do not consider that it is necessary to go into such reasons. Nor, in fairness to the Nominees, would it be appropriate to do so (and this applies in respect of Zhongcai’s third point as well). Whilst the Nominees were served with Zhongcai’s s.20J Summons and Profit Big’s s.20J Summons and the supporting affirmations, the focus at that stage was placed on the genuineness of the Family Debts, rather than on the Nominees’ conduct. The Nominees have since obtained the court’s leave to be excused from the proceedings, without demur from Zhongcai and Profit Big, and were not represented at the hearing before me. There has been no detailed argument as to the scope of the duty of nominees in the IVA process. In those circumstances, it would not be appropriate to embark on a detailed examination of the Nominees’ conduct.

J.  WHETHER MATERIAL IRREGULARITY IN LOWERED RATE OF RETURN

115.  Counsel for Profit Big, Mr Jason Ko, sought to take a new point at the hearing. He submitted that the fact that the rate of return to creditors was lowered from 3.19% as stated in the IVA Proposal to 2.73% at the Meeting was a material irregularity at the Meeting.

116.  This reduction in the rate of return was not due to the increase in the Family Debts, as the Family Members had chosen to forgo their entitlement to receive any return. Rather, the reduction arose due to the increase in the debts claimed by other creditors to be owed to them. Some of these claims were made at the Meeting, and some prior to the Meeting.

117.  Initially, I had concerns as to whether it would be fair to allow Profit Big to raise the point, as the grounds for challenging the Decision set out in Profit Big’s affirmation did not include this point.[18] However, Mr Chui indicated that he had already responded to Profit Big’s argument on the point and would not have put in any other evidence.

118.  Mr Ko submitted that the fact that the lowered rate of return was never disclosed in the IVA Proposal, the SOA, or the Nominees’ Report prior to the Meeting was a material irregularity. He cited Re A Debtor (No.87 of 1993) (No.2) (supra) for the proposition that material inaccuracy in the SOA had a serious impact on the voting process and outcome.

119.  It seems to me that the factual premise of the argument is incorrect in the first place. Mr Ko’s argument presupposes that the lowered rate of return could have been disclosed in the IVA Proposal, SOA and Nominees’ Report, or otherwise prior to the Meeting.[19]

119.1  There is no evidence that as at the date of the SOA, it (or rather, the IVA Proposal in which it was contained) was inaccurate in its statement of “about 3.19% return”. It is not suggested that the additional creditors’ claims were known at the time. Nor is there any evidence that any additional claims were known at the time of the Nominees’ Report.

119.2  Furthermore, it appears from paragraphs 9 and 15 of the Chairman’s Report that a substantial amount of the claims which led to the lowered rate of return were lodged only at the Meeting itself, so that the final actual rate of return of 2.73% could only be known at that time. In other words, even if a lesser rate of return could have been notified to creditors prior to the Meeting, it would not have been 2.73%, but rather, a figure closer to 3.19%. Mr Ko did not seek to identify what that rate of return might have been, or the date at which it could have been known, so as to enable creditors to consider the same prior to the Meeting or prior to lodging their proxies. He relied only on the change from 3.19% to 2.73% as being material, but accepted that some other change might not be material.[20]

120.  Insofar as may be necessary, I am not persuaded in any event, on the available evidence, that even a change from 3.19% to 2.73% was material.

120.1  Mr Chui had set out at paragraph 5.2 of the IVA Proposal that if the proposal were not approved, a bankruptcy order against him would generate a return of nil or close to zero, whereas under the IVA Proposal with a third party providing $13 million, there would be a return of about 3.19% if the Family Members forwent their dividends. This was also the assessment of the Nominees: at section 12 of the Nominees Report, the Nominees contrasted the return of 3.19% which was more certain than a bankruptcy which might or might not lead to any fruitful asset realisation, and which might well involve delay and expense. It seems to me that the objective creditor who preferred the certainty of what was admittedly a small return over the uncertainty of what was likely to be an even lesser return would not have assessed the matter differently.

120.2  Moreover, creditors who attended the Meeting in person would have learnt of the reduced rate of return at the Meeting and would have been able to decide for themselves whether or not to accept it. This was not a matter that required an adjournment to consider (unlike the irregularities in Re A Debtor (No.87 of 1993) (No.2)). Creditors who did not attend the Meeting in person but only by proxy would, or ought to, have been aware that the final amount of debts which might be admitted for voting purposes could be subject to change at the Meeting (and that this could therefore change the rate of return received), and that they might not be able to reconsider their votes in such a situation: see r.122Q BR.

121.  For completeness, I note that as a matter of fact, none of the creditors, including Profit Big itself, made any complaint as to the lowered rate of return, whether at the Meeting or thereafter.

K.  RELIEF

122.  Under s.20J(4) BO, where the court is satisfied that there has been some material irregularity at or in relation to a creditors’ meeting, it may revoke or suspend any approval given by the meeting, and/or also give a direction for a further creditors’ meeting to reconsider the debtor’s proposal.

123.  At the hearing, Zhongcai submitted that there should simply be a revocation of the Decision, and that no further meeting should be called, given that (1) the “severe irregularity” meant that no trust could be placed in Mr Chui any more, and (2) the Nominees had ceased to act so that it might not be viable to continue the IVA process.

124.  Mr Chui has not suggested that in the event that the Decision is revoked, any direction should be given for the summoning of any further meeting of creditors to consider any revised proposal or to reconsider his original IVA Proposal.

125.  In the circumstances, I do not give any direction for any further creditors’ meeting.

L.  DISPOSITION

126.  I revoke the Decision.

127.  I dismiss Zhongcai’s r.122Q Summons.

128.  I make a costs order nisi that:

128.1  the costs of and occasioned by Zhongcai’s s.20J Summons be paid by Mr Chui;

128.2  save as to the costs of its affirmations filed in these proceedings, there be no order as to costs on Profit Big’s s.20J Summons, which was made by Profit Big initially as a “substantially similar application” as Zhongcai’s application. At the hearing, Profit Big altered the focus of its application to its new argument as to the lowered rate of return, which Mr Ko accepted would be subject to an appropriate costs order if he were to be allowed to advance it, and in any event, that argument has failed;[21]

128.3  save that the costs of its affirmations filed in these proceedings be paid by Mr Chui, there be no order as to the costs of Bosonic, which advanced no additional argument in support of Zhongcai’s and Profit Big’s s.20J Summonses.