CAPITAL CENTURY TEXTILE CO LTD v. LI DIANXIAO AND ANOTHER

HCA 263/2012

[2025] HKCFI 650

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 263 OF 2012

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BETWEEN

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DECISION

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Introduction

1.  Capital Century Textile Company Limited (“the Company”) obtained judgment in this action against Li Dianxiao (“Li”) and Cong Bo Wai after trial before Lisa Wong J on 17 September 2021 (“the Judgment”). Li was unrepresented and absent at the trial.

2.  By the Judgment, as against Li, who was the former shareholder and director of the Company, is ordered to transfer the office of the Company registered in his sole name to the Company and give accounts of all the rental income received and retained by Li in respect of certain properties held in his name on trust for the Company and all the proceeds of sale received and retained by Li in respect of some of such properties. Li is further ordered to pay the Company all sums found to be due from him to the Company on the taking of such accounts.

3.  Li applied for a stay of execution pending the determination of his appeal to Lisa Wong J by summons dated 31 May 2023. His application was dismissed by a decision dated 14 September 2023 on the ground that his appeal was not arguable. Li was ordered to pay the Company’s costs of his application assessed at HK$90,000 by the learned judge on 18 October 2023 (“the CFI Application Costs”).

4.  Li renewed his application to the Court of Appeal by summons dated 10 November 2023 and was rejected by a decision dated 11 July 2024. By the decision, Li was ordered to pay the Company its costs of the application summarily assessed at HK$80,000 (“the CA Application Costs”).

5.  Li has done nothing to comply with the Judgment. It is common ground that Li was imprisoned in Beijing for corruption offences from 29 August 2008 to 28 August 2024.

6.  On 6 September 2024, the Company made an ex parte application to Winnie Tsui J for a post-judgment Mareva Injunction against Li (“the Ex Parte Application”). An interim Mareva Injunction (“the Interim Injunction”) was granted to the Company at the hearing (“the Hearing”).

7.  Pursuant to the Interim Injunction, the Company issued a summons dated 9 September 2024 (“the Injunction Summons”) for its application to, among other things, continue the Interim Injunction.

8.  By summons dated 12 September 2024 (“the Discharge Summons”), Li applies for an order that the Interim Injunction be set aside or discharged or alternatively be varied.

9.  I heard both the Injunction Summons and the Discharge Summons on 13 September 2024. I made an order that both Summonses be heard together on a date to be fixed and that the Interim Injunction be continued until the determination of the Summonses with a variation of the term to the effect that Li be allowed a sum of HK$300,000 as his legal expenses.

10.  Alarmingly, it was disclosed to this court at the hearing of another application of the Company on 12 December 2024 that Li made a total lump sum withdrawal of HK$615,937.91 (“the BOC Withdrawal”) from his account open with the Bank of China under account number 012-891-1-014955-7 (“the BOC Account”) on 13 September 2024 in breach of the Interim Injunction. The BOC Account has zero credit balance as a result. Mr Kwok, for Li, accepted unequivocally that it was a breach due to an oversight but he asserted that it was in a technical sense only.

11.  By summons dated 3 January 2025 (“the Release Summons”), Li applies for an order, among other matters, that a sum of HK$1,850,000.00 (“the Sum”) be released to him from the BOC Account restrained under the Interim Injunction.

12.  I agree with Mr Kwok that I should first dispose of the Discharge Summons.

The Discharge Summons

13.  Mr Kwok advances two broad grounds to support Li’s application to discharge the Interim Injunction. First, he submits that there is no justification that the application for the Interim Injunction was made on an ex parte basis without notice. Secondly, he submits that the Company failed to discharge its duty to make full and frank disclosure in the Ex Parte Application.

14.  Mr Kwok submits that there was neither urgency nor secrecy in the Ex Parte Application. He refers to Ho Tak Eng t/a Hung Man Interior Design Co v Fame Brilliant Ltd [2006] 1 HKLRD 34 in which Rogers VP at §8 explained the importance of these two requirements.

15.  First, Mr Kwok points out that Li was all along represented and he could always be found and informed of the making of the Ex Parte Application. The Company did not allege any impracticality of notification. I find no validity and relevance of this submission.

16.  Next, Mr Kwok stresses that there is no evidence to suggest that Li has ever taken any step to frustrate execution and hence there was no secrecy. He points out that the reliance of the Company on the propensity of Li’s dishonest conduct some 16 years ago and his recent release from the prison are misplaced. He says that the Company was able to enforce the Judgment during the incarceration of Li and thus his discharge should be irrelevant.

17.  Mr Kwok further argues that there was no exceptional circumstances that the Company should give no notice to Li and there were ample opportunities for the Company to do so. He highlights that the 10^th Affirmation of Lai Siu Kuen in support of the Ex Parte Application (“the Supporting Affirmation”) was sworn on 5 September 2024 and the Ex Parte Application was heard in the late afternoon on the following day, which was a Friday, after a lapse of more than 24 hours. He submits that the lack of notice was a deliberate tactic deployed by the Company.

18.  Mr Kwok also draws my attention to the fact that the Interim Injunction was only served on Li on the following Monday, 9 September 2024, at around 5:30 p.m.. He says that the Ex Parte Application could have been made on 9 September 2024 with due notice given to Li to attend the Hearing since in any event Li would only be served the Interim Injunction in the afternoon of 9 September 2024.

19.  Mr Kwok relies on Shanghai Liyou Investment Management Ltd v Ningxia Zhongyincashmere International Group Co Ltd [2016] HKEC 1140 in which Recorder Madam Linda Chan SC (as she then was) found that the plaintiff had adopted a deliberate tactic of not giving any notice of its ex parte application to the defendants when it had ample opportunity to do so. The learned Recorder held that on this basis alone the injunction must be discharged.

20.  Mr Chong, for the Company, confirms that at the Hearing, the urgency and secrecy of the Ex Parte Application was canvassed and at the end, the learned judge was satisfied that the Interim Injunction should be granted on an urgent basis in the absence of Li.

21.  I am not impressed with Mr Kwok’s submission at all. I believe that the Company was fully justified to ask for the Interim Injunction on an ex parte without notice basis.

22.  First and foremost, the BOC Withdrawal provides a solid proof that Li is prone to dissipation of his assets intimating scant regard for his legal obligations in this litigation. Once Li was released from prison, he was able to deal with his monies in his bank accounts in Hong Kong and keeps them away from the Company. Hence, the Company could not afford to tip Li off by giving him notice of the Ex Parte Application.

23.  At the Hearing, the convictions of Li in the Mainland were emphasised. Li was found guilty of two corruption offences by two different courts in Beijing and the following details were provided by Mr Chong in his skeleton submissions:

(1) A corruption charge tried at the Beijing No 2 Intermediate People’s Court (北京市第二中級人民法院) where Li was found guilty and sentenced for 15 years custodian sentence (“First Corruption Charge”);

(2) A corruption charge tried at the Beijing No 3 Intermediate People’s Court (北京市第三中級人民法院) where Li was found guilty and sentenced for 16 years custodian sentence (“Second Corruption Charge”).

(3) The two custodian sentences were to run concurrently (i.e. 29^th August 2008 to 28^th August 2024).

(4) For the First Corruption Charge, it is stated in the court’s decision (p 32) found that:-

“本院認為: 被告人李殿孝身為受國有針織公司和永年公司委派到非國有永大公司中從事公務的國家工作人員，利用受針織公司和永年公司指派擔任永大公司董事長的職務便利，擅自變賣屬於針織公司的永大公司廠房，並將出售所得款項人民幣1500萬元據為己有，其行為屬於利用職務上的便利侵吞國有資產，已構成貪污罪，依法應予懲處…”

(5) As for the Second Corruption Charge, it is stated in the court’s decision (pp. 3 and 10) that:-

“經審理查明:-

北京市針棉織品進出口集團公司(以下簡稱針棉集團)為全民所有制企業，自1984年起，被告人李殿孝任該公司副總經理，後被派駐香港。1990年10月5日，國際永年紡織有限公司(以下簡稱永年公司)在香港成立，永年公司為針棉集團海外企業機構，被告人李殿孝為永年公司負責人。被告人李殿孝與原永年公司工作人員張九常，鍾群在香港開立多個聯名銀行帳戶用於永年公司經營。

1993年至1996年年間，被告人李殿孝利用擔任上述職務的便利，使用李殿孝，鍾群渣打銀行聯名帳戶(尾號523-8)內252249.41美元(折合人民幣213萬餘元)用於支付北京市西城區阜成門外大街2號A1912部分房款; 使用上述帳戶內374464.48美元(折合人民幣324萬餘元)購買北京市朝陽區紫玉東路1號一期608號(紫玉山莊J9室)。

…

本院認為，被告人李殿孝作為國家工作人員，利用職務便利，非法占有公共財物，且數額特別巨大，其行為已構成貪污罪，依法應予懲處。北京市人民檢察院第三分院指控被告人李殿孝犯貪污罪的事實清楚、證據確實、充分、指控罪名成立。…”

24.  Mr Kwok says that the two Corruption Charges are irrelevant. He relies on Crete Maritime Corp v Emirates Shipping Line DMCEST [2017] 5 HKLRD 345. At §18, Anthony Chan J referred to Pacific Concepts (HK) Ltd v Michel Brennion (unreported, HCA 2672/2008, 13 March 2009) in which Andrew Cheung J (as he then was) said that it is not a proposition of law that an unacceptably low standard of commercial morality would constitute a real risk of dissipation. The learned judge then at §20 went on to say that it is no more than a matter of common sense for unacceptably low commercial morality to be taken into account in the assessment of risk of dissipation. The propensity of a defendant of such disposition to make himself judgment proof is only one piece of evidence and it would be exceptional to be able to support a case of dissipation of assets based on that one piece of evidence.

25.  On this basis, Mr Kwok submits that the Company cannot rely on the propensity evidence alone to infer a real risk of dissipation.

26.  Mr Kwok, moreover, repeatedly submits that the First and Second Corruption Charges were committed 16 years ago and Li has already become a very different person. He submits that those convictions could have no bearing on his present commercial morality and hence his propensity to dissipate his assets to avoid execution of the Judgment.

27.  I cannot accept these submissions. As pointed out by Anthony Chan J in Crete Maritime Corp at §21, in the context of unacceptably low commercial morality the court deals with a spectrum of conduct. At one end, there are clear cases of fraud and a good example is internet fraud. In those cases, the real risk of dissipation may be said to be self-evident and this sits with common sense because the fraudulent exercise is designed to deprive the plaintiff of his assets.

28.  In the present case, the Corruption Charges directly related to Li’s dealings in a joint venture company of which the Company is interested and involved Li’s misappropriation of the public properties in his office. These were undoubtedly dishonest offences. The conduct of Li is at or very close to the fraud or dishonesty end of the spectrum, as indicated by on the lengthy custodial sentence imposed on him. These should speak volume of Li’s lack of integrity and not just his commercial immorality. In the premises, the risk of dissipation must be self-evident.

29.  During his incarceration in Beijing, Li was unable to deal with his bank accounts in this jurisdiction. Upon his release, Li has been able to dissipate his monies promptly with ease and in light of his dishonest disposition, I accept the validity of the concern of the Company that Li might immediately dissipate his assets when he was made aware of the Ex Parte Application. Secrecy was indeed in existence and it justified the lack of notice given to Li.

30.  For the same reason, I accept that the release of Li constituted a triggering event and necessitated the Ex Parte Application. There was urgency in obtaining the Interim Injunction to prevent Li from dissipating his assets in Hong Kong.

31.  On the other hand, I cannot accept Mr Kwok’s submission that the lengthy sentence completed in the Mainland must have served its reformatory purposes and Li should have been successfully rehabilitated. I am unable to share his optimism. There is simply no evidence as to how Li has become a less dishonest person since his convictions. Quite on the contrary, the BOC Withdrawal, despite the purported explanation given by Li, shows that Li does not have due regard to his legal obligations and the court orders.

32.  This is also demonstrated by his unexplained refusal or failure to comply with the CFI Application Costs and the CA Application Costs.

33.  It is worthy of note that Li appears not to have treated this litigation seriously. As a result of his breach of Master Ho’s unless order dated 27 September 2016, Li was debarred from adducing any evidence at the trial. Indeed he was unrepresented and absent at trial. The claim of the Company was found to be made out in the absence of any evidence emanating from him. His appeal against the factual findings of Lisa Wong J in the Judgment in these circumstances appears to be a daunting task. Both Lisa Wong J and the Court of Appeal shared this view when rejecting Li’s applications for a stay of execution pending appeal.

34.  It is remarkable that there has been an inexplicable delay in his prosecution of his appeal too despite the repeated warnings of the Registrar of Civil Appeals. Up till now, according to Mr Chong, Li has failed to make an application to fix a hearing date for his appeal. This surely casts doubt on the bona fide of his appeal.

35.  In the premises, I am of the view that there was sufficient urgency and secrecy to justify the Ex Parte Application with no notice given to Li. Whether practically the Company could give notice to Li is beside the point. Nor does the slight delay in the service of the Interim Injunction on Li make any material difference. Li has not shown any prejudice suffered in any event.

36.  Now I turn to the allegation that the Company failed to discharge its duty to make full and frank disclosure. Mr Kwok observes that there is no mention of any urgency and secrecy of the Ex Parte Application in the Supporting Affirmation. He argues that the Company must have failed to draw the attention of Winnie Tsui J to the principles governing ex parte injunctions and the lack of exceptional circumstances for the Company not to give any notice to Li. He goes on to submit that such material non-disclosure is serious, tactical and deliberate. On this ground alone, the Interim Injunction should be discharged.

37.  Mr Kwok again relies on Shanghai Liyou Investment Management Ltd in which the learned Recorder reiterated that if material non-disclosure is established the court will be astute to ensure that a plaintiff who obtains an ex parte injunction without full disclosure is deprived of any advantage he may have derived by that breach of duty (§45).

38.  In that case, counsel for the defendant made a similar complaint about material non-disclosure when the application was made to a criminal judge on duty. Counsel for the plaintiff did not dispute the alleged non-disclosure.

39.  In the present case, the Ex Parte Application was heard by an experienced civil judge on duty. It would be surprising if the learned judge would have begun to consider the merit of the application for the post-judgment Mareva injunction without first having been convinced that the essential requirements of the application to be made on an ex parte without notice basis had been met.

40.  In addition, I accept the explanation of Mr Chong that the learned judge did have a discussion with him about the urgency and secrecy of the Ex Parte Application.

41.  In the premises, I fail to see any material non-disclosure and this ground must be rejected.

42.  The Discharge Summons falls to be dismissed.

The Injunction Summons

43.  Mr Kwok objects to the continuation of the Interim Injunction on the ground that there is no risk of dissipation and that the value of Li’s assets being frozen is excessive.

44.  I have already explained why I agree that there is actual risk of dissipation demonstrated by the dishonest conduct of Li. I need not make any repetition.

45.  In regard to the value of the assets to be frozen, Mr Kwok points out that HK$17 million is not justified. The amount comprises HK$3,887,413.70 of costs of the action to be taxed and HK$14 million to be found due after the taking of the accounts ordered.

46.  For the untaxed costs, Mr Kwok refers to Crete Maritime Corp at §§37-41 and submits that a claim for costs should not be included in a Mareva injunction without sufficient justification both as to entitlement and quantum or the application may become part of an application for security for costs.

47.  I do not think Crete Maritime Corp can assist Li. There, Anthony Chan J expressly indicated that he did not need to make a conclusion on the issue as to whether a Mareva injunction should include costs of the applicant in intended proceedings though he had a good deal of reservation.

48.  The learned judge’s major concern is the existence of many uncertainties on costs entitlement. He opined that even an applicant with a strong case may not get a favourable costs order at the end. The learned judge also considered that the amount of costs would be reduced after taxation.

49.  It should be borne in mind that the Company is already a judgment creditor and the Ex Parte Application was for a post-judgment Mareva injunction. It is a very different case from Crete Maritime Corp. Here, the Company has already been awarded a costs order against Li and there is no uncertainty about its entitlement to costs.

50.  The Supporting Affirmation reveals that the Company has incurred costs and disbursements of approximately HK$3,887,413.70 as shown in its Amended Bill of Costs dated 13 June 2024. The taxation hearing was fixed on 7 October 2024. At the hearing, the parties indicate to this court that the substantive taxation is yet to take place. I have not heard any submission from Mr Kwok that the amount claimed is grossly inflated and substantial deduction would be made after taxation.

51.  For the estimate of the amount of HK$14 million, it actually consists of HK$1,066,000 being net deposits forfeited from the aborted sale of the Provident Centre Flat in 1997, HK$3,344,321.07 being net proceeds of sale of the said property in 1998, HK$7,780,000 being net proceeds of sales of the Pacific Palisades Flat in 2007 and HK$1,908,000 being rental income of the said property from 1998 to 2007. These net sale proceeds and rental income are the subject matters of the accounts ordered in the Judgment.

52.  In addition to the foregoing matters, Li is ordered to give an account of:

(1) The rental income yielded from letting the China Harbour Office since 2006;

(2) The rental income yielded from letting the China Harbour Office since 2006; and

(3) All the monies and benefits received from holding the Tanner Garden Flat between 7 September 2004 to 3 July 2007

53.  The Company has not included any sums likely to be payable by Li after the taking of the accounts of these matters in the estimated amount of HK$14 million.

54.  Thus, on this evidence, I opine that there is a sound basis for the court to order a post-judgment Mareva injunction up to HK$17 million worth of the assets of Li.

55.  Next, Mr Kwok refers to the charging order the Company obtained in respect of a property owned by Li known as Kashi Court (“the Kashi Court Property”) granted by Lisa Wong J dated 18 October 2023. The valuation of the Kashi Court Property is about HK$6 million as at 3 September 2024 according to a surveyors’ report. Mr Kwok argues that the amount to be frozen by the Interim Injunction should have taken into this security.

56.  In the Supporting Affirmation, it is averred that the Kashi Court Property is charged for the CFI Application Costs only and given the modest amount of HK$90,000, the charging order could be easily discharge and hence Li could avoid an order for sale. This must be right.

57.  All in all, I find no merit in the submissions of Mr Kwok. The Company is clearly entitled to the Interim Injunction. Mr Kwok has failed to persuade me that there is any impropriety in the Interim Injunction.

58.  On the other hand, by the Injunction Summons, the Company also seeks a disclosure order (“the Disclosure Order”) in the following terms:

(1) Li do, within 14 days from the date of the Order to be made, make and serve on the Company an affidavit disclosing all bank accounts and securities brokerages accounts owned by him and their balance, with copies of bank statements, whether solely or jointly, within Hong Kong from 6 September 2006 to the date of the order;

(2) Li do within 14 days from the date of the order to be made, provide and render a true and proper account on the sum of HK$615,937.91, being the BOC Withdrawal, supported by documents and verified by an affirmed by Li.

59.  Mr Chong draws my attention to Chinachem Charitable Foundation Limited v Chan Chun Chuen & Anor. (unreported, HCAP 8 of 2007, 27.2.2012) at §§37-39 where Poon J (as he then was) explained the nature of a post-judgment disclosure order in the following terms:

37. A pre-judgment disclosure order should be no wider than the injunction to which it is ancillary. However, there is no similar restriction for a post-judgment disclosure order : see Hong Kong Civil Procedure 2012, Vol 1, paras 29/1/77 and 29/1/78. The court may order disclosure after judgment in order to render the judgment effective, in the sense of capable of enforcement : Maclaine Watson & Co Ltd v International Tin Council (No 2) [1989] Ch 286, per Kerr LJ at p 303F-G.

38. In Babanaft International Co SA v Bassatne and Another [1990] Ch 13, Nicholls LJ observed at pp 42G-43D that in the post-judgment regime where the judgment creditor is at liberty to attach assets of the judgment debtor in execution of the judgment, a freezing order may often be ancillary to a disclosure order for the obvious reason that the disclosure order is needed in order to ascertain the whereabouts of assets which may be attached but a freezing order may be necessary in order to prevent an unscrupulous judgment debtor from removing those assets from an identifiable location before attachment can be effected.

39. In other words, in a post-judgment situation, the jurisdiction to make the disclosure order arises both as a power ancillary to and in support of the injunction and independently of the injunction as a power in support of the execution of the judgment : Gidrxslme Shipping Co Ltd v Tantomar-Transportes Maritimos Lda [1995] 1 WLR 299, per Colman J at p 310E-G. His Lordship went on to observe at p 312E-F that in cases of post-judgment, “it is just and convenient that the judgment or award creditor should normally have all the information he needs to execute the judgment or award anywhere in the world”.

60.  Mr Kwok does not dispute the foregoing legal principles. Nor does he make any submission to oppose the grant of the Disclosure Order.

61.  On the application of such legal principles to the present case, I opine that it is just and convenient that the Disclosure Order should be granted to the Company to assist its enforcement of the Judgment in particular by way of policing the Interim Injunction against Li. The Company clearly needs the Disclosure Order in light of the BOC Withdrawal to avoid further dissipation in violation of the Interim Injunction.

The Release Summons

62.  Li now applies for an order that he be allowed to withdraw the Sum from the bank accounts restrained under the Interim Injunction, which should retrospectively include the BOC Withdrawal.

63.  In his 3^rd Affirmation, Li explains that he requires the Sum to pay his ongoing litigations including his appeal in this action. He alleges that Madam Lai who is a director and shareholder of the Company has all along been in total control of his finance. Li claims that he literally has no money to spend and all his legal actions would be stifled without funding.

64.  Mr Kwok merely refers to the non-proprietary test and urges this court to consider that the Company is not making any proprietary claim of the money of Li.

65.  First of all, different considerations apply when the funds are being frozen by a post-judgment injunction. As noted by the learned editors of Commercial Injunctions (7^th Edn.) at §3-024, once the claimant has obtained an enforceable judgment, the position is different. The claimant may then be able to make an individual defendant bankrupt. The following observation of Sir John Donaldson MR (with whom the other members of the Court of Appeal agreed) about the nature of a post-judgment injunction in Deutsche Schachtbau-und Tiefbohrgesellschaft GmbH v R’as Al-Khaimah National Oil Co (No.1) [1990] 1 A.C. 295 is referred to:

“The purpose of the injunction was … to maintain the status quo during the period covered by the stay of execution and not to preserve assets against the probability that DST (the defendant) might at some later date be able to establish its claim – the ordinary Mareva situation.”

66.  Here, Li has failed to obtain a stay of execution twice. The Company is fully entitled to enforce the Judgment against the assets of Li. The threshold that Li should meet to obtain a release of his fund which will inevitably obstruct or frustrate execution of the Judgment must be high and a release cannot be ordered lightly in the absence of cogent reasons.

67.  Li has failed miserably to meet the threshold on the evidence. As pointed out by Mr Chong, Li managed to pay for his legal costs during his incarceration. Li was involved in a number of lawsuits with legal representation. He was represented in the criminal trials in Beijing. He made different applications to the court in Hong Kong in this action. He also instituted an action in the High Court under HCA751/2022 against, among other persons, the Company and Madam Lai and in that action, he was involved in some interlocutory applications.

68.  It cries out for an explanation as to how Li settled all the legal costs thus far incurred. Li must have his financial resources. Yet, Li does not say a word about his financial sources and merely asserts that his legal actions will be stifled if the Sum is not made available to him.

69.  On an application for a variation to permit funds to be released to meet legal costs, it is relevant to take into account whether legal costs have in the past been met from other funds or by third parties, and if so whether there is a real risk that if the variation were not permitted the defendant would be unfairly prejudiced. It is relevant to consider not only the defendant’s own assets but whether there are others who may be willing to assist the defendant to obtain legal advice and representation. If relevant evidence is not adduced which would be reasonably available the court may draw negative inference about the underlying facts: Commercial Injunctions §21-047.

70.  Li only has himself to blame when he chose not to adduce relevant and persuasive evidence of his financial position to support his application for a release of the Sum to him.

71.  This court has then come to the conclusion that I should not exercise my discretion to allow a variation or a release in the absence of good grounds shown. The Release Summons must be rejected.

Conclusion and orders

72.  For the reasons given, this court is of the view that both the Discharge Summons and the Release Summons are unmeritorious and must be dismissed.

73.  On the other hand, the Interim Injunction should be continued and, accordingly, the Injunction Summons should be allowed. This court also grant the Disclosure Order.

74.  Costs should follow the event. I make an order nisi that costs of and occasioned by all the three Summonses including all costs reserved should be paid by Li to the Company, to be taxed if not agreed.