LEE SEE WOO v. CHAN CHUN FAI AND OTHERS

CACV 10/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 10 OF 2013

(ON APPEAL FROM HCMP NO. 1318 OF 2007)

________________________

________________________

________________________

REASONS FOR JUDGMENT

________________________

Hon Barma JA (giving the Reasons for Judgment of the Court):

Introduction

1. This was an appeal by the plaintiffs against the judgment of Deputy Judge Whitehead SC given on 21 December 2012 after a trial which took place in September 2012.  The dispute related to the parties’ rights over what were originally 200,800,641 shares in a company called New Chinese Medicine Holdings Limited (“the Company”) (the shares were subsequently consolidated so that one new share was issued for every four shares held, but this is not material for the purposes of these proceedings).  The plaintiffs claimed between them to be the registered holders of 85% of these shares, and sought by these proceedings to discharge stop notices which had earlier been issued by the defendant (“Mr Lee”) in respect of all of the shares, on the basis that he had a charge over them.  By his counterclaim (brought against the plaintiffs and two additional parties), Mr Lee sought declaratory relief to the effect that the shares remained subject to a charge in his favour.  He also made an alternative claim for payment to him of HK$14 million by Mr Chu Hon Pong (the 4^th defendant to counterclaim) (“Mr Chu”) on the basis that Mr Chu had agreed to pay Mr Lee this amount as the consideration for the assignment by Mr Lee to Richfair Limited (the 5^th defendant to counterclaim) (“Richfair”) of his charge over the shares, and the underlying debt secured by the charge.

2. By his judgment, the learned Deputy Judge dismissed the plaintiffs’ claim and granted the declaratory relief sought by the defendant, declaring that the whole of the shareholding with which these proceedings are concerned, including the shares now purportedly registered in the names of the plaintiffs, remained subject to a charge in favour of the defendant.  However, he made no order on the defendant’s alternative claim for payment of HK$14 million, despite finding the agreement alleged by the defendant to be established, on the basis that the defendant had elected to maintain his interests under the share charge, and had thereby foregone the claim to be paid the HK$14 million.

3. The plaintiffs appealed against the dismissal of their claim, and they, Mr Chu and Richfair, appealed against the making of the declaration in Mr Lee’s favour.  Mr Lee issued a respondent’s notice, seeking payment of HK$14 million to him by Mr Chu, but only if the appeal were allowed.  In other words, if the appeal were to be dismissed, Mr Lee would be content with the Deputy Judge’s order and would not seek to pursue his claim for the HK$14 million.

4. At the conclusion of the hearing, we dismissed the appeal, made no order on Mr Lee’s the respondent’s notice, and ordered the costs of the appeal to be paid to the defendant by the plaintiffs and defendants to counterclaim, with a certificate for two counsel, to be taxed on the party and party basis if not agreed.  So far as the respondent’s notice was concerned, we made no order as to costs.  We indicated that we would hand down our reasons later, which we now do.

The factual background

5. The factual background to these proceedings is set out in detail in the judgment below.  For present purposes, however, it can be summarised as follows.

6. The Company was at all material times listed on the Hong Kong Stock Exchange Limited.  Its controlling shareholder was Madam Leung Oi Wah (“Madam Leung”), who held 48% of its issued share capital – the shares with which these proceedings are concerned – through two BVI companies, Great Fair Limited (“Great Fair”) and Wealth Way Limited (“Wealth Way”), which she owned and/or controlled.  Mr Jacky Wong (“Mr Wong”), who played a prominent role in the events which lie at the heart of this dispute, was the boyfriend of Madam Leung.  Madam Leung and Mr Wong were well acquainted with Mr Lee, the 1^st plaintiff Mr Chan Chun Fai (“Mr Chan”) and Mr Chu.  The extent of Mr Lee’s, Mr Chan’s and Mr Chu’s acquaintance with each other, however, was a matter of dispute.

7. Madam Leung was, by early 2003, indebted to each of Mr Lee, Mr Chan and Mr Chu.  It appears that she owed Mr Lee some HK$12,850,000, while Mr Chan was owed some HK$5,000,000 and Mr Chu was owed some HK$27,800,000.  So far as the debt to Mr Lee was concerned, this was the subject of a loan agreement and two supplemental agreements, dated 20 April 2000, 30 April 2002 and 7 March 2003 respectively.  The loan agreement provided for the making of a loan of up to HK$10,000,000 by Mr Lee to Madam Leung, which was to carry interest at 36% p.a. and be repayable by 30 April 2002.  The supplemental agreements provided for extensions of the repayment date, to 30 June 2003 and 30 April 2005 respectively.  The original loan was unsecured, but the supplemental agreements provided for Madam Leung to procure Great Fair and Wealth Way to execute share charges over their respective shareholdings in the Company – i.e. the 200,800,641 shares with which these proceedings are concerned.  There is no dispute that as a result of these agreements, Mr Lee was, at all material times after 30 April 2002 entitled, as a matter of contract, to have share charges over the shares executed in his favour, and was therefore to be regarded as having an enforceable security interest over the shares.  The share charges were eventually provided under charge documents that were dated 7 March 2003, the same date as the second supplemental agreement was dated (they were probably not executed on this date, but this does not matter).

8. On about 29 January 2003, Richfair was incorporated in the BVI.  According to its corporate records, on about the same date, shares were allocated so that Richfair was held as to 50% by Mr Wong’s brothers, Wong Chai Kit and Wong Chai Hong (as nominees for Madam Leung), as to 30% by Mr Chu, 15% by Mr Lee and 5% by Mr Chan.  Mr Lee, however, contended that he was not aware of being a shareholder in Richfair until sometime later.

9. On about 11 March 2003, a meeting took place at the Company’s offices.  It was attended by Mr Lee, Mr Chu, Mr Chan, Madam Leung, Mr Wong, Mr Wong’s brothers, and a solicitor, Mr Philip Wong (who was unrelated to the other Mr Wongs who attended the meeting).  At this meeting, certain documents were executed by Mr Lee.  What those documents were was the main issue in dispute in these proceedings.

The rival cases as to the deed of assignment

10. According to the plaintiffs, Mr Chu and Richfair, these documents were two (duplicate) assignments in favour of Richfair of the whole of Mr Lee’s interest in the debt owed to him by Madam Leung, together with the benefit of the share charges executed by Great Fair and Wealth Way.  The assignments recited that Mr Lee was indebted to Richfair for HK$14 million, and that the assignment by Mr Lee of Madam Leung’s debt and the associated security was in full and final settlement of Richfair’s claims against him.

11. Mr Lee agreed that he signed some documents at the meeting.  However, he said that the documents relied on by the plaintiffs were not the documents that he had signed, in that although his signature appearing on the second page of each document was genuine, the first page was not what had been at the front of the documents when he signed them.  In other words, the documents now relied upon were documents the first page of which had been subsequently substituted.  According to Mr Lee, the first page of the documents which he signed said nothing about any debt owing by him to Richfair, but referred instead to an agreement under which Mr Chu was to pay him HK$14 million in consideration of his assigning the debt owed to him by Madam Leung, and the security over the shares, to Richfair.  Mr Lee also alleged that the assignment was conditional on full payment of the HK$14 million.

12. Mr Lee’s position was that he had been told by Mr Wong that Mr Chu wanted to obtain control of the Company, and was prepared to pay Mr Lee HK$14 million for an 85% interest in the debt owed by Madam Leung to Mr Lee, and the associated security over Madam Leung’s shareholding in the Company.  Although Mr Lee was to assign the whole of his debt and the security for it to Richfair, he would retain a 15% interest in them by being given a 15% interest in Richfair.

13. It was accepted at the trial that Mr Lee had never been indebted to Richfair, whether for HK$14 million or any other sum.

Events after the 11 March 2003 meeting

14. Mr Lee says that as he never received payment of the HK$14 million, he caused stop notices to be issued in respect of the shares on 18 and 21 November 2003 (one in respect of Great Fair’s shareholding, and the other in respect of Wealth Way’s shareholding).

15. In announcements made by the Company during May and June 2005, some two years after the alleged assignment by Mr Lee to Richfair, it was stated that Madam Leung’s shareholding was, to the best of the Company’s knowledge, charged to Mr Lee to secure her indebtedness to him.

16. In about August 2005, Mr Chu was able to obtain 80% of the shares (after they had been consolidated) and had them registered in the names of the 1^st and 2^nd plaintiffs.  How this was achieved notwithstanding the stop notices was not made clear, but for present purposes, nothing turns on this.  Thereafter, Mr Chu became a director and the chairman of the Company.

These proceedings

17. On 13 July 2007, the plaintiffs commenced these proceedings to discharge the stop notices which Mr Lee had issued in November 2003.  Their application was supported by an affirmation by Mr Chu, in which he produced the assignments in their present form, and deposed (untruthfully) that Mr Lee had been indebted to him and others, including Mr Chan, through Richfair, for a sum of HK$14 million, which Mr Lee had settled by the assignment to Richfair of Madam Leung’s debt to him together with the security for it over the shares.  In response, Mr Lee denied this, and set out his version of what had been agreed, along the lines described above.

18. By the trial, however, the case of the plaintiffs and defendants to counterclaim on the reason for the assignment had changed.  It was no longer suggested that Mr Lee had been indebted to Mr Chu and others, and that the assignment had been executed to settle such liabilities.  Instead, it was said that in about early 2003, Mr Wong had approached Mr Chu, Mr Chan and Mr Lee about Madam Leung’s indebtedness to them, and obtained their agreement that they should give Madam Leung additional time to repay in exchange for Madam Leung pledging 50% of her shareholding in the Company to them in proportion to the amount of her debts to each of them, keeping the other 50% of her shareholding with a view to “re-establishing herself”.  Richfair was incorporated with the shareholdings described in paragraph 8 above for the purposes of this arrangement.  However, rather than entering into a direct pledge of Madam Leung’s shareholding to Richfair, because of concerns that this might trigger an obligation to make a general offer for all of the Company’s shares, Mr Lee and Mr Wong suggested that the shareholding should be charged first to Mr Lee as security for his debt, and that Mr Lee should then assign the security, together with his debt, to Richfair.  For his part, Mr Lee denied that there was any such arrangement.

The judgment below

19. The Deputy Judge rightly identified “the genuineness of the deed of assignment” as being “central to the resolution of this case”.  He went on to record Mr Lee’s assertion that the assignment was a forgery or a sham document in the sense explained in paragraph 11 above, and after noting that there had been some discussion between counsel and the court about “persuasive” and “evidential” burdens, expressed the view that as the deed of assignment was on its face a regular document, the burden of displacing what was recorded in it rested upon Mr Lee, as he was saying that it was a forgery or sham, and that this burden was a heavy one, calling for proof by evidence of a suitable level of cogency, having regard to the seriousness of the allegation (paragraphs 77 to 81 of the judgment below).

20. The Deputy Judge then went on to consider the evidence, and concluded that Mr Lee had discharged this burden.  In coming to this conclusion, he placed weight on a number of matters, namely:-

(1)  The false evidence of Mr Chu and Mr Wong as to Mr Lee being indebted to Mr Chu and others through Richfair, provided on behalf of the plaintiffs, in support of the application to discharge the stop notices (paragraphs 86 to 92 of the judgment below).

(2)  His rejection of Mr Chu’s evidence to the effect that he did not really know much about the (non-existent) indebtedness of Mr Lee that was referred to in the recitals to the deed of assignment (paragraph 90 of the judgment below).

(3)  The fact that the recitals to the deed of assignment put forward by the plaintiffs were “blatantly untrue” in respect of such alleged indebtedness of Mr Lee (paragraph 92 of the judgment below).

(4)  The inherent improbability that Mr Lee would acknowledge a non-existent liability on his part to Richfair (or Mr Chu and others) (paragraph 93 of the judgment below).

(5)  The inconsistency between the cases advanced by the plaintiffs initially and at trial as to the reason for the assignment (paragraph 94 of the judgment below).

(6)  The fact that the recitals to the assignments bore no resemblance to the arrangements which the plaintiffs, Mr Chu and Richfair said had been made in early 2003 (paragraph 83 of the judgment below).

(7)  The “nonsensical” nature of the explanation for the need to involve Richfair and enter into the assignment as having arisen out of a concern to avoid the need to make a general offer for the entire shareholding of the Company (paragraphs 95 and 96 of the judgment below).

(8)  The lack of commercial sense, from Mr Lee’s point of view, of entering into an arrangement whereby he in effect gave away an 85% interest in Madam Leung’s debt to him and the security to which he was entitled over the whole of Madam Leung’s shareholding in the Company, and obtained nothing in return, whereas Mr Chu and Mr Chan would obtain an interest in that debt and the security for it, all the while retaining for themselves (and not sharing with Mr Lee) the benefit of the debts owed to them by Madam Leung, and such security as they had for those debts (paragraphs 97 to 105 of the judgment below).

(9)  The subsequent announcements by the Company in May and June 2005, which recorded that the shareholding was charged to Mr Lee as security for Madam Leung’s debts to him (paragraph 106 of the judgment below).

21. The Deputy Judge also accepted Mr Lee’s evidence as to the agreement that he said he had made with Mr Chu to be paid HK$14 million for the assignment to Richfair of the debt owed by Madam Leung and the security over the shares, dealing briefly with a number of criticisms of that evidence that had been advanced by Mr Lin, counsel for the plaintiffs and defendants to counterclaim (paragraphs 108 to 119 of the judgment below).  In the end, however, the Deputy Judge concluded that Mr Lee had, by issuing the stop notices, elected to treat that agreement as having been repudiated (by the non-payment of the HK$14 million), and to rescind the assignment and retain and rely upon his rights in respect of the loan he had made to Madam Leung and the security he held for that loan.

The arguments on appeal

22. Before us, Mr Lin’s arguments were directed towards what he submitted was the Deputy Judge’s erroneous acceptance of Mr Lee’s evidence, for which no adequate explanation had been given.  In his skeleton argument, Mr Lin carefully examined various aspects of Mr Lee’s evidence which he had criticised in his submissions below, contending that the Deputy Judge had failed to properly address or deal with such criticisms.  In such circumstances, he submitted, the Deputy Judge having held that the legal or persuasive burden of establishing that the deeds of assignment were forgeries or shams rested with Mr Lee, it was wrong for the Deputy Judge to find that Mr Lee had discharged that burden, and the appropriate course would be for us to set aside the Deputy Judge’s findings and enter judgment in favour of the plaintiffs and defendants to counterclaim, or at least to set aside the findings and order a retrial.

23. Mr Zimmern, for Mr Lee, disagreed.  He submitted that the Deputy Judge was quite right to prefer Mr Lee’s evidence to that of the plaintiffs and defendants to counterclaim.  But in any event, he said, the Deputy Judge had been wrong to find that the persuasive burden of showing that the deed of assignment was not genuine rested on Mr Lee.  The correct approach, said Mr Zimmern, was that the legal and persuasive burden of establishing that the deed of assignment was genuine rested throughout on the plaintiffs, who were the parties relying on it in support of their application to discharge the stop notices.  While Mr Lee had an evidential burden which required him to adduce evidence (which Mr Zimmern accepted had to be sufficiently cogent) to raise a case that the deed of assignment relied upon by the plaintiffs and defendants to counterclaim was not genuine, once he had done this, the burden of establishing that the document was indeed genuine would rest with the plaintiffs and defendants to counterclaim.  Having regard to the matters identified by the Deputy Judge (which we have summarised in paragraph 20 above), the plaintiffs and defendants to counterclaim had clearly failed to discharge that burden, whether or not Mr Lee’s case as to what the first page of the document actually said was accepted.

Burden of proof

24. In our view, this is correct.  With respect to the Deputy Judge, he was in error in concluding that the legal or persuasive burden of establishing that the deed was not genuine lay on Mr Lee.  The plaintiffs were the parties who had put the deed of assignment forward as the basis for their claim to have the stop notices discharged.  The legal or persuasive burden of establishing that the document was genuine therefore rested with them – see e.g. Pacific Electric Wire & Cable v Texan Management Ltd (unreported, CA, CACV 90/2012, 17  September 2013 at paragraphs 61 to 63).  It is true that Mr Lee had an evidential burden requiring him to adduce sufficiently cogent evidence to raise a case that the documents were not genuine, but if he did so, it would remain for the plaintiffs and defendants to counterclaim to overcome that evidence and to satisfy the court that they were.  On the other hand, insofar as Mr Lee wished (or needed) to establish that the document that he signed was in some other specific form, that was a matter on which the legal and persuasive burden rested with him.

25. In other words, all that Mr Lee needed to do to defeat the plaintiffs’ case was to put forward evidence to show that the deed of assignment was not genuine – for this purpose, he did not need to establish what the genuine version of the document actually said.  As the declaratory relief that he was counterclaiming necessarily followed from his defeating the plaintiffs’ case, he would be entitled to that relief regardless of what the genuine version of the document actually was.  On the other hand, if Mr Lee wished to obtain judgment for the HK$14 million he said he was owed, he would need to take the further step of establishing (the legal burden being on him to do so) that the genuine version of the document was as he alleged it to be, reflecting an agreement by Mr Chu to pay him HK$14 million as the consideration for the assignment.

Whether the deed of assignment was a genuine document

26. In our view, Mr Lee has clearly discharged the evidential burden of showing that the document was not genuine.  The matters to which we have referred in paragraph 20 above provide ample grounds for the Deputy Judge to have concluded that the deed of assignment in the form put forward by the plaintiffs and defendants to counterclaim was not a genuine document.  In our view, the Deputy Judge was not only entitled to find that the deed of assignment put before him was not genuine, but was right to do so.  Further, those matters did not depend on the evidence of Mr Lee, so any criticisms that might be made of his evidence do not assist the plaintiffs and defendants to counterclaim in any meaningful way.  We explain below our reasons for coming to this view.

27. The problematic nature of the deed of assignment that was put forward by Mr Chu clearly raises cogent grounds for concern as to whether or not it was in fact genuine.  It contained what were accepted by the plaintiffs and Mr Chu to be untruths as to the supposed indebtedness of Mr Lee to Richfair (or, as the case may be, Mr Chu, Mr Chan and unspecified others). It was accepted at the trial that Mr Lee did not owe Mr Chu, Mr Chan or Richfair anything.  It was therefore inherently most improbable that he would have signed a document acknowledging a non-existent indebtedness on his part, still less one which appeared to have the effect of settling that non-existent debt.  This in itself was a cogent reason for thinking that the deed of assignment proffered by the plaintiffs and defendants to counterclaim was not a genuine document.

28. The fact that Mr Chu’s evidence in his affidavit in support of the application to discharge the stop notice asserted (again untruthfully) that Mr Lee was indebted to him (and others) through Richfair was clearly further reason for harbouring doubts as to the genuineness of the deed of assignment which he was putting forward.

29. Similarly, the dramatic change in the case being put forward, which had the consequence that the deed of assignment relied upon was not just untruthful in its recitals, but was quite inconsistent with the rationale for the assignment being put forward at trial, also cast doubt on the genuineness of the document.

30. None of the foregoing matters depended on any evidence coming from Mr Lee.  The fact that Mr Lee was not actually indebted to any relevant person was accepted by the plaintiffs and defendants to counterclaim.  The untruthful evidence and documentation advanced came from them, and not from Mr Lee.  The change of case was apparent from what was being said on their behalf, and did not depend on anything that Mr Lee testified to.

31. The reason advanced for the need for the deed of assignment, i.e. the desire to avoid the risk of having to make a general offer for the shares of the Company, was aptly described by the Deputy Judge as “nonsensical”.  There are several reasons for this:-

(1)  Mr Wong and Mr Chu accepted at the trial that there was in fact no such risk, and that they were aware of this as at 2003.

(2)  Even if it had been thought (which having regard to that evidence, it was not) that such a risk might arise by the granting of a pledge over a 48% shareholding in the Company (a general offer is required where there is a sale and purchase of 30% or more of the issued shares in a listed company), given that Madam Leung was, on this case to retain half of her shareholding for herself, it would have sufficed for a pledge to have been granted over half of the shareholding, or 24% of the Company’s issued shares.

(3)  Further (leaving aside the fact that Mr Lee was entitled to security over the whole of 48% shareholding), it would presumably have been possible for pledges of smaller shareholdings to have been made directly to Mr Chu, Mr Chan and Mr Lee in rough proportion to the amounts they were owed by Madam Leung if that had truly been the arrangement.

(4)  Finally, it is impossible to see why a pledge of a 48% shareholding in the Company to Mr Lee (as in fact happened) would not have been liable to trigger a general offer, whereas a pledge of the same percentage shareholding to Richfair might (on the case being advanced) do so.

32. This improbable and implausible reason put forward for the asserted arrangement was, to our mind, a strong reason for thinking that the arrangement in question did not truly exist, and thus that the deed of assignment purportedly executed as part of such arrangement was not a genuine document.

33. Again, none of these points depend on the evidence of Mr Lee, or his credibility as a witness.

34. Further, the asserted arrangement itself was one which, as the Deputy Judge noted, made no commercial sense from Mr Lee’s standpoint, and was therefore one which was highly improbable.

35. As we have noted, by the time of the meeting at the Company’s offices on 11 March 2003, Mr Lee was already contractually entitled to a charge over the whole of Madam Leung’s shareholding in the Company by way of security for the loan he had made to her.  The version of events relied upon by the plaintiffs and defendants to counterclaim at the trial wholly ignored this fact.  It is difficult to see what attraction the supposed proposal put forward by Mr Wong could have had for Mr Lee, who was already more or less fully secured in respect of the loan he had made.  The proposal would have left Mr Lee with only a 15% interest in his loan and the associated security, for which, as we have noted, he would get nothing additional in return.  This, in itself, is so commercially unrealistic and improbable a proposition as to cast very grave doubt upon it. But beyond that, it would seem that both Mr Chu and Mr Chan would be entitled to retain the whole benefit of their loans to Madam Leung and of any security that they might separately hold.  So they would, in effect, get something (an interest in Mr Lee’s loan and security) for nothing, while Mr Lee would give up something of value for nothing in return.  This casts further doubt on the story that was advanced by the plaintiffs and defendants to counterclaim.  Finally, it may be noted that as Madam Leung was to hold 50% of Richfair, the assignment would involve Mr Lee giving back 50% of his loan and the security over the shares to Madam Leung – a further indication that the scheme put forward as having been agreed was devoid of commercial or common sense.

36. Once again, none of these matters depended on evidence given by Mr Lee, or on his credibility as a witness.  They all arose out of the case being advanced by the plaintiffs and defendants to counterclaim.

37. In these circumstances, it seems to us scarcely surprising that the Deputy Judge did not regard the deed of assignment as genuine.

38. Against this, Mr Lin sought to rely on:-

(1)  The terms of the deed of assignment, in particular the fact that the contents of the second page, which Mr Lee accepted was genuine, seemed to match well with the terms of the first page, which he did not, and did not sit well with the version of the agreement put forward by Mr Lee.

(2)  The fact that Mr Chu could have obtained the whole of Mr Lee’s loan to Madam Leung, together with the security over the shares, by paying it off for less than the HK$14 million which Mr Lee said he had been promised.

(3)  Inconsistencies and unsatisfactory aspects of the evidence given by Mr Lee.

39. In our view, none of these matters are sufficient to overcome the factors which we have identified above on which the Deputy Judge relied to find that the document was not genuine.

40. The apparent correspondence between the first and second pages of the deed of assignment is perhaps the best of these points, but as Mr Zimmern submitted, one would expect that the document put forward would be internally consistent.  Even if one accepts that this point has some force, it must still be set against the other matters pointing towards the conclusion that the document was not genuine, and when this is done, the balance comes down, we think, heavily in favour of the latter conclusion.  Insofar as the point casts doubt on the case advanced by Mr Lee, it does not assist the plaintiffs and defendants to counterclaim in discharging the burden on them to establish that the deed of assignment was a genuine document.

41. As for the second point, while there might have been more cost effective ways for Mr Chu to have obtained control over the Company, as Mr Zimmern pointed out, the price paid was a matter for Mr Chu, and might have been offered for a number of reasons.  But at the end of the day, this too is a point that casts doubt on Mr Lee’s case, but does not assist the plaintiffs and defendants to counterclaim in establishing theirs.

42. As for the criticisms of Mr Lee’s evidence, these stand in the same position.  Even if Mr Lee’s evidence had been rejected, this would not assist the plaintiffs and defendants to counterclaim, as they could not, for the reasons already given, establish that the document they relied upon was genuine.

Conclusion

43. We are therefore satisfied that the Deputy Judge was right to conclude that the deed of assignment was not a genuine document. In the light of that finding, the plaintiffs’ case was bound to fail.  As Mr Lee no longer pursues his claim for payment of the HK$14 million, it is not necessary to consider whether or not that case should have been accepted by the Deputy Judge as having been proved, and we prefer to express no view as to that.

44. For the foregoing reasons, we dismissed the appeal, with costs to Mr Lee, and did not find it necessary to make any order in respect of his respondent’s notice.