TIN CHI PING v. CHOW WAI FAN AND OTHERS

HCCW 661/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

COMPANIES WINDING‑UP PROCEEDINGS NO 661 OF 2006

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A. INTRODUCTION

1. By a Petition dated 15 December 2006 and filed and presented on 19 December 2006, the Petitioner petitions for:

(1)  An order that the 1^st and the 2^nd Respondents shall purchase all the shares held by him in the 3^rd Respondent (“the Company”)[1] at a price which is fair and just as determined by the Court, under section 168A of the Companies Ordinance (Cap 32) [2].

(2)  Alternatively, an order that the Company be wound up.  The only ground relied upon by the Petitioner is that it is just and equitable that the Company be wound up as its substratum has gone, under section 177(1)(f).

B.  BACKGROUND FACTS

2. The following matters, as stated in this section (§§2‑61) of this judgment, are not in dispute and/or are supported by contemporaneous documents, and I find them as facts.  (I shall deal with factual issues in dispute later in this judgment.)  In particular, I accept the minutes of the board meetings of the Company to be accurate (no one has suggested otherwise) in recording what transpired or had been resolved at such meetings, and my account below of what happened at those meetings is taken from the minutes which I find as facts.

B1. The parties and relevant persons

3. The Company was incorporated on 24 November 1992 under the Companies Ordinance as a company limited by shares. 

4. Its nominal and issued capital was at all material times and is $10,000 divided into 10,000 shares of $1 each.

5. At all material times up to April and May 2004, the Respondents, and one Koh Choi Yu Shirley (who has subsequently changed her name to Koh Yui Yu Shirley) (“Koh”), were the only directors and registered shareholders of the Company. Koh was the registered holder of 4,000 shares (40%), while the Respondents were (and still are) the registered holders of 3,000 shares (30%) each.

6. The 1^st Respondent and Koh met each other in the early 1980’s and have been good friends since.  The 1^st Respondent’s husband is called Chow Sheung Bing (“Chow”), who was at all material times and is a certified public accountant, and had and has his own accounting firm by the name of SB Chow & Co (“the Firm”) since 1980, having gained his accountant qualifications in the early 1970’s.  The 2^nd Respondent was a friend and neighbour of Chow and the 1^st Respondent.

7. Koh is the former wife of the Petitioner.  They married on 24 May 1989 and divorced on 8 July 2004.

B2.   The settlement between the Petitioner and Koh

8. The Petitioner and Koh entered into a “Settlement Deed” dated 13 April 2004 to effect (as recited therein) a:

“… global settlement in relation to their properties and other ancillary matters to achieve a clean break henceforth on the terms appearing hereinafter.”

9. In particular, the following provisions in the Settlement Deed are relevant:

“3. Companies to be Transferred to [the Petitioner]

On or before the completion date, KOH shall by herself and shall procure Music Festival Limited to transfer shares/control in the following companies to [the Petitioner], particulars of documents to be tendered are as follows :-

3.04 Maxtop International Investment Limited

(a) duly executed contract notes and instruments of transfer for 4,000 shares issued from KOH in favour of [the Petitioner] and/or his nominees with relevant share certificates;

(b) written resignation of KOH as director of the Company with acknowledgment signed by her that she has no claim against the Company for loss of office or otherwise;

(c) signed minutes of the Board of Directors approving the present share transfer as well as approving the resignation of KOH as director; the appointment of [the Petitioner] as a director of the Company.

5. Mutual Waiver of Debts

Against like undertaking from [the Petitioner] or companies transferred to [the Petitioner] (under Clause 3) to waive debts owed by KOH or companies transferred to KOH (under clause 4), KOH shall procure herself and the companies transferred to her to waive all debts owing to her or to the companies transferred to her by [the Petitioner] or by companies transferred to [the Petitioner].

The effective date of this mutual waiver shall be the same as the completion date herein i.e. 1^st April 2004.

6.   Tai Tin Trading Development Co. has up till the date hereof been an unincorporated business wholly owned by [the Petitioner]. KOH DECLARES that she shall not in future make any claims/demands against this Company whatsoever.  Likewise, Hoi Wai Electronic Games Co. has up till the date hereof been an unincorporated business wholly owned by KOH and her sister Hui Chor Wan, so is Megawell (Hong Kong) Limited which has up till the date hereof been a limited company owned by KOH and Music Festival Limited.  [The Petitioner] DECLARES that he shall not in future make any claims / demands against these 2 companies.”

10. The Settlement Deed contains a signature of a trainee solicitor of the firm then acting for the Petitioner, stating that she had interpreted the same to the Petitioner. In cross‑examination, the Petitioner accepts (and I find) that the contents of this document were explained to him by his solicitors at the time.

11. The Petitioner has given evidence as to the circumstances under which he signed the Settlement Deed, to the effect that he did so to his unfair disadvantage in various aspects, which Koh denies.  I need not deal with the evidence of the Petitioner and Koh on this because whatever happened between them regarding the Settlement Deed does not concern the Respondents, who are not alleged to be aware of the circumstances.  What happened was that they were shown an extract of the Settlement Deed by the Petitioner which shows that Koh promised to waive all debts owed to her by the Company.

12. Pursuant to the Settlement Deed, on 10 May 2004, the Petitioner was transferred the 4,000 shares in the Company which had been in the name of Koh.  He became a director of the Company on 29 April 2004, with Koh resigning as director on the same date.  The Petitioner and the Respondents were since then the only directors of the Company until 4 November 2005, when at an annual general meeting of the Company held on that date the Petitioner was not re‑elected. The Respondents have since 4 November 2005 up to now been the only directors of the Company.

B3.   The Property and Hoi Wai

13. At all times the sole business of the Company was the holding of a property known as Shop 9, Ground Floor, Hung Wai Building, 3‑5 Fa Yuen Street, Kowloon, Hong Kong (“the Property”), which the Company acquired on 9 March 1993[3] for $15,980,000. 

14. At all times the Property was leased to a video games centre called Hoi Wai Electronic Games Company (“Hoi Wai”), which in fact had been the tenant of the Property since 1986, ie well before the Company acquired the Property.  Hoi Wai ceased to be a tenant of the Property on 7 October 2005, when the Property was sold by the Company.

15. Hoi Wai is the entity referred to at §6 of the Settlement Deed (see §9 above).  It was formed on 1 April 1986 and was originally a partnership consisting of one Cheung Kam (“Cheung”) and three other gentlemen.  On 1 May 1990, the partners of Hoi Wai, as registered with the Business Registration Office (“the BRO”), became Cheung (who remained the holder of the games centre licence issued in respect of Hoi Wai), one Hui Chor Wan (“Wan”) (who was the elder sister of Koh) and the Petitioner.  The Petitioner ceased to be registered as a partner of Hoi Wai with the BRO as from 1 January 1991.  On 1 January 1995, Koh replaced Cheung as a partner registered with the BRO, with Wan taking over as licensee.

16. The Respondents are unable to produce any documents relating directly to the leasing of the Property to Hoi Wai before 2000 because pre‑2000 documents have been disposed of.  According to the land search record of the Property, a lease dated 22 May 1986 for three years starting on 1 April 1986 was granted to Hoi Wai at a monthly rent of $20,000, and a lease dated 8 May 1989 for two years starting on 1 April 1989 was granted to Hoi Wai at a monthly rent of $36,000.  No other tenancy agreements have been registered.  I find the terms of the leases of 1986 and 1989 to be as set out above.  The evidence of Koh and the 1^st Respondent, which I accept, is that the rental being paid by Hoi Wai to the then owner at the time of purchase was $45,000 per month.

17. What the Respondents are able to produce are:

(1) A tenancy agreement dated 16 June 1999 for a lease of the Property to Hoi Wai for three years from 7 July 1999 to 6 July 2002 at $100,000 per month.

(2) A tenancy agreement dated 5 July 2002 for a lease of the Property to Hoi Wai for three years from 7 July 2002 to 6 July 2005 at $100,000 per month.  There also exists another tenancy agreement which is identical to the one referred to in the previous sentence save that the rent is stated to be $138,000 per month, and with the word “CANCELLED” chopped, and the Chinese characters “錯版” (meaning “incorrect version”) written, thereon.  It is common ground that the word was chopped, and the Chinese characters were written, on this agreement by the 1^st Respondent at the directors’ meeting held on 30 December 2004 but the parties disagreed as to the circumstances and reason for the existence of two agreements and why one was cancelled, an issue to which I return below.

(3) A document which on its face purports to be the minutes of a directors’ meeting of the Company held on 28 February 2003 and attended by all three directors at the time (ie Koh and the Respondents), although in fact the document recorded a board resolution by circulation, whereby it was resolved that due to the economic depression as a result of the outbreak of SARS in Hong Kong, the monthly rent for the Property would be reduced from $100,000 to $75,000 during the period of SARS as from 7 April 2003, and that the original rent would be reinstated as soon as the SARS outbreak was over.

(4) Receipt vouchers showing that Hoi Wai paid to the Company as rent for the Property:

(a) $100,000 for each month from January 2000 to March 2003 (the rent for March 2003 was paid on 12 May 2003);

(b) $75,000 for each month from April 2003 (the rent for April 2003 was paid on 17 June 2003) to March 2004 (the rent for March 2004 was paid on 30 March 2004), and

(c) $100,000 for each month from April 2004 (with rent for April 2004 partially paid ($75,000) on 15 May 2004) to December 2004 (with the rent for December 2004 paid on 23 May 2005). 

   Then, according to another voucher, on 10 October 2005, the Company credited $700,000 (being payments totalling $460,000 (entered as accounts receivable, the sum was actually paid in three tranches on 7 October 2005, 18 November 2005 and 10 December 2005), plus the forfeiture of the rental deposit of $240,000) as payment for the rent for January to July 2005.  The tax returns filed by the Company for the period from 1 January 2000 to 31 December 2005 are consistent with the figures shown on the vouchers.

18. As for the period before 2000, the evidence of Koh and the 1^st Respondent is that the monthly rent was $80,000 for the first three years of the lease after the purchase of the Property (ie from about 7 July 1993 to 6 July 1996), and $120,000 for the second three years (ie from about 7 July 1996 to 6 July 1999).  This is consistent with the information submitted by the Company to the Rating and Valuation Department, and by the reprinted bank statements produced by the Respondents save that, from those bank statements, the monthly rent actually paid became $100,000 when the rent was paid in October 1998.  I accept their evidence, and the evidence as constituted by the documents referred to in this and the preceding paragraph, in this regard, and find that the amount paid by Hoi Wai and received by the Company as “rent” every month, was:

(1) $80,000 for 7 July 1993 to 6 July 1996;

(2) $120,000 for the second lease starting on 7 July 1996, until the rent paid in October 1998 (although it is not clear for which month was this payment for, as Hoi Wai was usually late in paying rent) when it became $100,000 up to and including March 2003 (see §17(4)(a) above).  There is no evidence for the reason for the change in October 1998;

(3) $75,000 for April 2003 to March 2004; and

(4) $100,000 for April 2004 to July 2005, with the rent for the last three months of the tenancy (7 July 2005 to 6 October 2005) waived (see §57(1) below),

without prejudice to the Petitioner’s allegation that the “real” rent was more than these sums which were split into two parts (rent and shareholders’ advance) (see §28 below), an issue I deal with below. 

19. The Property was purchased by the Company with contributions from the three shareholders in the proportion of their shareholding, and the assistance of a loan from the China State Bank (later becoming part of the Bank of China) (“the Bank”), secured by a mortgage over the Property.  There is, however, no evidence as to the exact amount put in by each shareholder initially. 

20. For the initial contribution put in by Koh as the 40% shareholder, there is an issue as to whether the Petitioner was, as he alleges, the source of the funds to the knowledge of the Respondents and Chow, or whether the money came from Koh, whose evidence is that she put together the funds from various sources, including loans from Chow ($1,500,000), her elder sister, Hui Chor Fong (“Fong”), and other friends, as well as funds from businesses jointly owned by her and the Petitioner.  I shall deal with this issue below.

21. The loan from the Bank was in the sum of $10,000,000, to be repaid by 120 monthly instalments.  The initial monthly instalment was $122,652.63 but, as was standard in mortgage loans in Hong Kong, the interest rate, and therefore the monthly amount payable, fluctuated.  Again no documents relating directly to the mortgage payments before 2000 are available.  From the available bank statements and payment vouchers, payment for the period from 6 December 1999 to 6 January 2000 was $133,640.  While the monthly amount fluctuated, it remained roughly the same until for the period from 6 June 2001 to 6 July 2001, when it went down to $125,632.62, which again remained roughly the same until the last instalment was paid off in July 2013.

22. As for the period before 2000, the reprinted bank statements show that the monthly mortgage payments remained more than $122,000 throughout, going beyond $132,000 (and sometimes even beyond $140,000) since January 1995 until June 2001.

23. On 14 January 2000, the Bank granted further overdraft facilities to the Company up to $200,000.  This was revised to a limit of $500,000 on 8 August 2000.

24. It is common ground that the holding of the Property was the sole object and purpose of the Company.  The Property having been sold in 2005, unless I hold that I should order the Respondents to buy out the shares of the Petitioner under section 168A, which is the primary relief sought by the Petitioner but which the Respondents resist, it is also common ground that it is just and equitable that the Company be wound up under section 177(1)(f).

25. I should point out that the Respondents are in fact willing to buy out the shares of the Petitioner but they deny that there had been any unfairly prejudicial conduct undertaken by them, and if they are right then I have no jurisdiction to make any orders under section 168A: In re Bird Precision Bellows Ltd [1986] Ch 658 at 670F per Oliver LJ; Re Oriental Overseas Maritime Services Limited (HCCW 833/2005; 25 November 2005) at §15 per Kwan J. The proper valuation of the shares depends on the resolution of certain factual disputes before me and thus the parties cannot simply agree a buy out with expert valuation.

B4.   The shareholders’ advance

26. According to the audited reports of the Company, at the end of each year the following amounts were owed by the Company to the shareholders as shareholders’ advance:

Year	Amount
1994	$8,364,010
1995	$9,025,210
1996	$9,390,210
1997	$9,715,210
1998	$10,024,210
1999	$10,420,210
2000	$10,838,210
2001	$11,256,210
2002	$11,752,210
2003	$12,067,210
2004	$6,925,326
2005	0

27. The Respondents are able to produce vouchers only for the shareholders’ advance for January 2000 and later.  According to the vouchers, the amount advanced was $38,000 for each of January 2000 to March 2003, and $25,000 for each of April 2003 to March 2004.  Without prejudice to the Petitioner’s case as described in §28 below, I find that the sum paid in by Koh every month and credited as shareholders’ advance was $38,000 for January 2000 to March 2003 and $25,000 for April 2003 to March 2004.

28. The evidence of Koh, Chow and the Respondents is that it was agreed between them, before the Property was purchased, that Koh would ensure that there would be sufficient receipt every month by the Company to pay for the mortgage instalment, by her personally paying a sum to the Company on top of the rent to be paid by Hoi Wai, that the monthly sum so paid in would be considered as a payment by all three shareholders (Koh and the Respondents) in the proportion of their respective shareholding, and the amount to be paid in monthly was fixed at the commencement of each three‑year lease term.  There is no dispute that the shareholders’ advance as recorded in the audited reports of the Company were made up of the initial contributions made by the shareholders which (together with the loan from the Bank) funded the acquisition of the Property, together with these monthly payments by Koh.[4]  However, the Petitioner disputes the evidence of and on behalf of the Respondents as to these payments, and alleges that the payment of rent and a further sum every month was to implement an arrangement, first suggested by Chow, whereby the agreed “real” monthly rent (for example, $120,000 in the first three‑year term) would be split into two parts (with only $80,000 “officially” as rent, and the $40,000 not recorded as such) so that only one part (rent, but at only $80,000 rather than $120,000) would be chargeable to tax and not the other part.  In effect, it is alleged that Chow proposed a scheme to evade tax and to defraud the Revenue.  This is an issue which I shall deal with below.

29. Without prejudice to the Petitioner’s case as described in §28 above, I find the following to be the amount paid in monthly by Koh and credited as shareholders’ advance, by reference to the reprinted bank statements and vouchers:

(1)  $40,000 per month for the first three‑year term;

(2)  $25,000 per month for the second three‑year term starting from 7 July 1996, until October 1998 when the amount paid in (again it is unclear which month this was for) became $28,000 per month;

(3)  in and from August 1999 the amount paid in became $38,000 per month; and

(4)  for April 2003, the amount became $25,000 per month (paid on 17 June 2003), which remained the amount so paid until the last such payment on 13 April 2004 for March 2004.

Based on the above finding, the total amount paid in as shareholders’ advance over the years would be about $4,367,000 (on top of the initial contributions from each of Koh and the Respondents).  However, only $1,746,800 (40%) would have been credited to Koh.

B5.   Events after the Petitioner became shareholder and director

30. After the Petitioner became a director and shareholder of the Company, I find the following events to have taken place.

31. By a letter dated 10 September 2004 to the Company for the attention of the Respondents, the Petitioner, referring to his directorship of the Company, stated:

“… I have asked Mr. S.B Chow several times to provide the related documents to me. But recently he referred me to ask you to do that. Could you please kindly provide the documents such as tenancy agreement, bank statements … etc to me? I also heart [sic] from Mr. S.B Chow before that there was some profit in the company. I want to know when it will be shared to each director.”

32. There was no reply to this letter. 

33. By another letter dated 23 December 2004 to the Company for the attention of the 1^st Respondent (and copied to the 2^nd Respondent), the Petitioner, in his capacity as a director of the Company, stated:

“With reference to my letter sent to you on 10 September 04 requested to share the profits of [the Company]. However I haven’t received your any reply yet. Now I would like to request you again when the profits will be shared to each director or shared holder. If not, please give a reasonable reason.

In addition, I also would like to ask for you provide me a Profit & Lost or Bank Statement monthly.”

34. There was no reply to this letter.

35. On 23 December 2004, the 1^st Respondent gave a notice to convene a directors’ meeting of the Company to be held on 30 December 2004.  The agenda included consideration of the approval of repayment of debts due to the “existing and past shareholders” of the Company, as well as the renewal of the tenancy of the Property granted to Hoi Wai (which was due to expire on 6 July 2005).

36. Annexed to the notice of 23 December 2004 was the balance sheet of the Company as at 30 November 2004.  According to the balance sheet, as at 30 November 2004, accumulated profits were $6,098,220.01, there was $740,026.51 in the bank, and the Company owed the following debts as shareholders’ advance:

the 1st Respondent	$3,672,663
the 2nd Respondent	$3,672,663
Koh	$4,896,884

The three debts were in the ratio of 3:3:4, in line with the creditors’ shareholding in the Company before 10 May 2004.

37. The directors’ meeting held on 30 December 2004 was attended by all three directors.  At that meeting:

(1)  It was resolved (by a majority, with the Petitioner opposing) that the shareholders’ advance be (partially) repaid as follows:

(a)  the 1st Respondent	$210,000
(b)  the 2nd Respondent	$210,000
(c)  Koh	$280,000

   However, at the insistence of the Petitioner (who had produced the relevant part of the Settlement Deed), the re-payment to Koh was withheld pending clarification with her regarding her position in the matter.

(2)  It was also resolved (by a majority, with the Petitioner opposing) that the Company should consider renewing the tenancy of the Property with Hoi Wai from 7 July 2005, and to negotiate an increase of the monthly rent from $100,000 to $130,000[5].

(3)  Sale of the Property was also discussed and by a majority (with the Petitioner opposing) it was resolved that the Company should consider selling the Property if the price reached $34,000,000, and it was agreed that this would be considered separately at a future meeting.

38. By a letter dated 31 December 2004, solicitors then acting for the Company wrote to Koh as follows:

“… at the board meeting of 30-12-2004 [the Petitioner] (to whom you had transferred your shares) voted against the resolution on repayment of the loan owing to you. [The Petitioner] produced to the board the enclosed copy pages 3 & 4 of a document, which he alleged to be settlement agreement between you and him. [The Petitioner] maintained that under the alleged agreement you have waived all claims against the Company.

The Company noted that it has not received from you any waiver of loan.

During the meeting [the Petitioner] telephoned his solicitor, a Mr. Chan, and asked [the 2^nd Respondent] to speak with him. It was agreed over that telephone conversation that the proposed repayment to you be withheld pending [the Petitioner’s] solicitors’ letter (if any) on the issue and pending receipt of your clarification.

In the circumstances, please clarify in writing to the Company your agreement with [the Petitioner].  If it was, and is, your intention to waive your claim against the Company on repayment of your loan in the sum of HK$4,896,884.00 perhaps you would be kind enough to return to the Company the enclosed waiver signed by you in the presence of witness who should also sign thereon.”

39. By a letter dated 3 January 2005 to the Company for the attention of the 2^nd Respondent (and copied to Koh), solicitors then acting for the Petitioner referred to the Settlement Deed and in particular the term that she was to transfer all her shares in the Company to the Petitioner (ie §3.04, a copy of which was enclosed), and her acknowledgment that she had no claim against the Company for loss of office or otherwise, and stated:

“… by theses [sic] terms and by virtue of Koh so doing in accordance with the said terms, Koh had relinquished all her interest in the Company, including her interest in any loan to the Company. Any interest would be held on trust for our client. Further, we are instructed that Koh had never advanced the loan of 280,000 to the Company …

Our client’s position is that the sum of HK$280,000 should not be issued to Koh as ex-shareholder, as resolved in the said Board meeting. Any such issue would be assisting the breach of the said Deed of Settlement by Koh. If the Company should ever resolve such payment, it should be issued to our client.

You are therefore requested to withhold the cheque in favour of Koh …”

Thus, the Petitioner’s stance was that there was no loan advanced by Koh to the Company, and if there were loans the Petitioner was entitled thereto by reason of the Settlement Deed because Koh’s shares had been transferred to him and the fact that she had “relinquished” her interest in the Company including her interest in any loan.  It was not alleged that he was the source of any money for the loans.

40. By a deed dated 13 January 2005 (“the Waiver”), Koh confirmed that:

“I have irrevocably waived all my rights and claims against you [the Company] on repayment of the loan of HK$4,896,884.00 due and owing to me and I also confirm that I have irrevocably abandoned all my interest in relation thereto.”

41. On 18 January 2005, the 1^st Respondent gave a notice to convene a directors’ meeting of the Company to be held on 27 January 2005.  The agenda included consideration of the acceptance of the Waiver, of a request by Hoi Wai that at the expiry of the existing tenancy the same be renewed to 6 October 2005 at the monthly rent of $100,000, and of a proposal to lease out the Property at prevailing market rent after expiry of the existing tenancy.  A copy of the Waiver was annexed.

42. The Petitioner attended the directors’ meeting on 27 January 2005 but left in the middle of it after heated discussions between him and the Respondents. After the Petitioner had left, it was resolved that the Company should accept the Waiver and the entire amount of $4,896,885 be taken up as “other revenue” of the Company for the year ending 31 December 2004.  It was further resolved that the tenancy of the Property granted to Hoi Wai be extended to 6 October 2005 at the same rental of $100,000 per month, and the Company would consider leasing out the Property to a new tenant at the prevailing market rent after expiry of the existing tenancy.

43. On 18 February 2005, the 1^st Respondent gave a notice to convene a directors’ meeting of the Company to be held on 26 February 2005 to consider the audited accounts of the Company for the year ending 31 December 2004.  The draft accounts, which recorded the waiver of $4,896,884 in the income statement, and where in the balance sheet the “Shareholders’ advance” was reduced to $6,925,326,[6] were faxed with the notice.

44. By a letter dated 24 February 2005 to the Company for the attention of the Respondents, the Petitioner requested the meeting to be rearranged as he would be busy at the scheduled time.  In the letter, the Petitioner said he:

“… roughly saw the account report. I would strongly like to remind you that if you insist to embezzle the amount HK$4,896,884.00 with a dirty trick, there will be a criminal offence.”

45. However, the meeting took place as convened on 26 February 2005, and the Petitioner did not attend.  The Respondents did.  At the meeting, the audited accounts were approved.

46. On 17 March 2005, the 1^st Respondent gave a notice to convene a directors’ meeting of the Company to be held on 24 March 2005 to consider an offer for the Property in the sum of $33,800,000 to be completed on or before 7 October 2005.

47. The directors’ meeting proceeded on 24 March 2005 in the absence of the Petitioner. In attendance were the 1^st Respondent and one Ms Hui Pui Chun Susan as the alternate director of the 2^nd Respondent.  Four offers had been made, and it was resolved that the Company should accept the highest offer.

48. By a letter dated 8 April 2005 to the Company for the attention of the 2^nd Respondent and copied to the 1^st Respondent, the Petitioner, as a director of the Company, asked for copies of the following documents for “all the years”:

(1)  all annual audited reports for every year;

(2)  all profits tax return and tax computation for every year;

(3)  audit adjustments for every year;

(4)  profit and loss account for every year;

(5)  balance sheet for every year;

(6)  general ledger for every year;

(7)  receipt for every year;

(8)  tenancy agreement;

(9)  provisional sales and purchase agreement;

(10)  sales and purchase contract;

(11)  mortgage loan agreement;

(12)  the deed of No 9 Hung wai Bldg;

(13)  all bank monthly statements;

(14)  all minutes; and

(15)  other documents related to the company.

A chaser dated 22 April 2005 threatened legal action if the documents were not provided within seven working days.

49. By a sale and purchase agreement dated 15 April 2005, the Company agreed to sell the Property to Watson Limited for $34,800,000.[7] 

50. In a letter dated 28 April 2005 to the Petitioner, signed by both the Respondents on behalf of the Company, it was stated:

“The requested documents are, in our view, fundamental books and records kept by the Company which are strictly confidential. We think that your requests are very extraordinary. Before we shall entertain your requests, we are obliged to take special care on the matter in order to protect the interests of the Company. We should therefore be grateful if you would provide the following information for our consideration so that we may put your requests for approval by the board of directors:-

(1) Why do you need to have copies of all the documents of the Company as listed in your letter for all the past years?

(2) What are your purposes of having to keep copies of these documents? What will you use these documents for?

(3) Why do you need these documents with top urgency?”

A copy of the approved audited accounts was enclosed, and the Petitioner was also informed of the resolution to sell the Property for $34,800,000.

51. By a letter dated 6 May 2005 for the Company for the attention of the 2^nd Respondent and copied to the 1^st Respondent, the Petitioner said:

“Being both a director and shareholder of [the Company], I have my rights under the Companies Ordinance to read the documents that I have requested.

You mentioned about me previous absence from board meetings. I do not want to repeat background leading to the events and our disagreement over the affairs of [the Company]. I only need to say that everything I did and am proposing to do are for the good of [the Company]. I think [the Company] must be run in a way which is fair to all shareholders. The company is now not being run in a way which is fair to all shareholders. You do not have to agree with me. I do not want to argue with you now. I only want to exercise my right, which is clearly not conditional no [sic] the questions that you put to me. Please let me have the documents that I asked for within the next SEVEN days. If not, I think I will have no alternative but to take legal action.

The next matter, how do you propose to deal with the money received from sale of the shop?  Please let me know within the next SEVEN days, too.”

52. By a letter dated 11 May 2005 to the Petitioner, signed by the Respondents on behalf of the Company, it was stated:

“We refer to your letter dated 6 May 2005 and regret that you are unable to provide any reply to our concerns raised in our letter dated 28 April 2005. We are therefore unable to dispel our doubts on your intention to obtain the long list of documents of the Company. You are reminded that as a director, you owe a fiduciary duty to the Company and all the rights conferred to you must be exercised in good faith and in the best interest of the Company. While we respect your rights as a director and shareholder of the Company, we do not consider that you have exercised your rights on a proper manner and with reasonableness. However, we do not hesitate to remind you that the other directors are not obliged to serve you and that your unfriendly attitude on the matter is not welcome.

You also mentioned in your letter that ‘The Company is now not being run in a way which is fair to all shareholders’. Such allegation is serious and without prejudice to our rights, we demand that a full justification be given forthwith.

We also advise that the sales proceed received arising from the sale of the Company’s property is now put into the Company’s savings account to earn interest for the Company and its final disposal will be decided by the board of directors.”

53. By a letter dated 23 June 2005 to the Company, Hoi Wai stated it was a condition for the Company to agree to buy the Property that Hoi Wai undertook to rent the Property, and there was an oral agreement between it and the Company that if Hoi Wai agreed to rent the Property the Company undertook to lease the same to it.  Hoi Wai complained that the Company suddenly sold the Property because of the dispute between the shareholders, thereby breaching the oral agreement and causing Hoi Wai loss.  Since it was facing closure, Hoi Wai requested compensation and an extension of the lease until the end of December 2005.

54. On 4 October 2005, the 1^st Respondent gave a notice to convene a directors’ meeting of the Company to be held on 10 October 2005[8] to:

(1)  consider and approve the final settlement in respect of the outstanding rental due by Hoi Wai;

(2)  review the Company’s final position after the disposal of the Property;

(3)  consider and approve the repayments of the advances from the shareholders, with each of the Respondents to be paid $3,462,663; and

(4)  consider and approve the payment of dividends.

55. By a letter dated 6 October 2005 to the Company for the attention of the 2^nd Respondent, solicitors then acting for the Petitioner stated that the Company had failed to explain why the Petitioner, as a director of the Company, was not entitled to have access to the documents asked for, and again asked for the documents to be produced within seven days or an application to the court would be made without further notice.

56. On 7 October 2005, the 1^st Respondent gave a notice to convene the annual general meeting of the Company to be held on 4 November 2005 inter alia to receive and consider the accounts and directors’ report the year ending 31 December 2004, and to elect directors.  On the same date, Hoi Wai vacated the Property, which was assigned by the Company to the purchaser thereof.

57. The directors’ meeting on 12 October 2005 was attended by all three directors.  The Petitioner brought his solicitor along, but the latter was not allowed by the 2^nd Respondent (who chaired the meeting) to attend.  At the meeting:

(1)  The 2^nd Respondent explained that, as a measure to encourage Hoi Wai to vacate the Property on or before the completion date for the sale of the Property, and also as a token of appreciation for the long term relationship with Hoi Wai, the Company “had agreed”, and reaffirmed at the meeting, that it accepted a total of $700,000 in full and final settlement of all arrears of rent owed by Hoi Wai up to 7 October 2005.  The Petitioner said that he did not know anything about the rental and insisted on having complete copies of all the Company’s books and records as requested.  The 2^nd Respondent explained that the Company had given all the necessary documents to the Petitioner upon and after he had been appointed a director, said he could see no reason why the Company should be in a position to consider giving him all the documents from the commencement of the Company’s operations unless proper reason could be given by him for the request, and said that the Company would seek to resolve the matter with him through solicitors.

(2)  The 2^nd Respondent suggested that after disposal of the Property the Company should continue to exist until all of its tax obligations were settled and any conflicts resolved.  The Petitioner disagreed and said the Company should be wound up immediately, but the Respondents agreed to keep the Company going.

(3)  It was resolved (by a majority, with the Petitioner opposing) to repay the Shareholders’ Advances to each of the Respondents at $3,462,663.

(4)  An interim dividend of $24,300 per share was declared[9], with $4,000,000 left as provision for contingencies and profits tax liabilities.

58. The annual general meeting on 4 November 2005 was attended by the Petitioner, the 1^st Respondent and a Mr Terence Chu (a solicitor) as proxy for the 2^nd Respondent. At the meeting:

(1)  The audited accounts and directors’ report for the year ending 31 December 2004 were approved and adopted (with the Petitioner opposing).

(2)  The Respondents were re‑elected as directors of the Company.  The Petitioner was not.

59. That was the first annual general meeting of the Company ever held.  Previously all resolutions that were required to be passed at an annual general meeting (such as approval of financial statements) were passed by paper resolution circulated amongst shareholders.  The 1^st Respondent admits that the sole purpose of calling this meeting (instead of using the paper resolution method) was to remove the Petitioner as a director.

60. By a letter dated 19 December 2005 to the Company for the attention of the 2^nd Respondent, solicitors then acting for the Petitioner repeated his request for the documents to be provided within seven days, otherwise legal proceedings would be commenced without further notice.

61. By a letter dated 31 December 2005 to the solicitors then acting for the Petitioner, solicitors then acting for the Company stated that as the Petitioner had not been re‑elected as a director at the annual general meeting, he was no longer a director and had no right to inspect the Company’s “books of account”.

C.  THE PARTIES’ CASES

62. The Petitioner’s case can be summarised as follows:

(1)  It was he, and not Koh, who was the sole beneficial owner and proprietor of Hoi Wai (and indeed of all the games centre and trading businesses managed and operated by them), and it was he who came up with the idea, and decided, to purchase the Property because the market in Hong Kong was booming at the time, and so as to secure it for use by Hoi Wai (as moving to new premises would subject Hoi Wai to the need to apply for a new licence). But he did not have enough money to do so. Koh suggested approaching Chow, who in turn brought in the 2^nd Respondent, and the three parties (the Petitioner, Chow and the 2^nd Respondent) eventually agreed to purchase the Property together through a shelf company (which turned out to be the Company, acquired through the Firm).

(2)  It was agreed between the Petitioner, Chow and the 2^nd Respondent that they would invest in the ratio of 4:3:3 and would contribute to the deposit for the purchase (about $5,000,000) and other ancillary expenses in that proportion, with the rest to be borrowed from a bank with the Property mortgaged as security. 

(3)  It was also agreed that the Petitioner would nominate Koh as his nominee shareholder, while Chow would nominate the 1^st Respondent for that purpose.  He was the beneficial owner of the 4,000 shares registered in the name of Koh, who was only holding them on trust for him.

(4)  He was not aware of any loans made to the Company by the shareholders, as he was given to understand that the Company was self‑sustainable from the rentals to be received from Hoi Wai.  Nor was he told by Chow (who was entrusted with the handling of the corporate and accounting matters of the Company) that his initial capital contribution would be transformed into loans from him.[10]  Further, if there was any need for extra financial resources by the Company, the Respondents would have come to him and not Koh as they knew that he was the beneficial owner of the shares in Koh’s name and he was the originating source of all the capital contribution to the Company (not Koh).

(5)  However, the Petitioner subsequently recalled that during one gathering in 1993, Chow mentioned that the Company could in fact arrange the rental payments to be received in two parts, one “officially” as rental (which would be chargeable to tax) and rest by cash (which would not be chargeable to tax).[11]  While he does not know it as a fact, the Petitioner says that the only reasonable inference is that this scheme was implemented thereby explaining the steady increase of the total amount of shareholders’ loans every year.  See §28 above.  (I note that this allegation is not included in the Petition, but is mentioned for the first time by the Petitioner in his 7^th affirmation dated 11 May 2011.  It is suggested that this recollection was prompted by the disclosure of the audited accounts of the Company over the years pursuant to an order of Barma J dated 4 December 2009.)

(6)  There was no reason to give any rental waiver to Hoi Wai, because the lease granted to Hoi Wai actually was going to expire three months before the completion date of the sale of the Property, and thus there was no reason to give any incentive to Hoi Wai to induce it to deliver vacant possession.

63. While the Petition has given a narrative of the facts on which the Petitioner relies, the exact conducts he relies on as being unfairly prejudicial to him as a shareholder of the Company have not been very clearly identified.  In his opening submissions, counsel for the Petitioner identifies the following conducts of the Respondents to be unfairly prejudicial:

(1)  The alleged “manipulation of the Company’s accounts” by the Respondents, namely the splitting up of the monthly rental in the accounts into two parts: rent and shareholders’ loans.

(2)  The failure or refusal by the Respondents to provide the Company’s documents to the Petitioner as requested by him or his solicitors, after he became a director and shareholder of the Company.

(3)  The approval of the repayment of the shareholders’ loans to Koh and the Respondents, and the acceptance of the Waiver.  As the “loans” were in reality profits of the Company, they ought to be repaid to the shareholders as dividend, and so when the “loans” were repaid to the Respondents, they were in effect causing dividend to be declared to themselves to the exclusion of the Petitioner.  The “loans” from Koh could not be waived by her but should be repaid to the Petitioner at the same time as the “loans” were repaid to the Respondents.

(4)  The rental waiver was given to Hoi Wai without prior consultation with the Petitioner although he had become a director of the Company by then (§57(1) above).  There was no legitimate reason to do so, and the waiver was not in the Company’s interest.  It is, however, not suggested by the Petitioner that there was any agreement or understanding or expectation that the Respondents would obtain anything from Koh (in particular the Waiver) in exchange for this waiver of rent.  There is no allegation of any relationship or any causal effect between the two waivers.

64. The case of the Respondents is as follows:

(1)  According to Koh, she was a co‑owner[12] of Hoi Wai (with Wan and Fong), and it was she who came up with the idea of purchasing the Property to secure it for Hoi Wai’s continued use, as her former boss (Lo) had purchased the Property and would most likely refuse to lease it to Hoi Wai anymore (and he even offered to purchase the licence of Hoi Wai).  It was also Koh, who did not have sufficient money to buy the Property (with the Petitioner being against the idea of purchasing the Property), who approached the 1^st Respondent (and later the 2^nd Respondent through Chow, who took over the negotiations with Koh on behalf of the 1^st Respondent) and proposed that they purchased the Property together from Lo.  Koh put together money from various sources, including loans from various persons, including Chow and Fong, as well as taking available funds from the businesses jointly owned by her and the Petitioner, to make up her share of the contribution.

(2)  To induce the agreement to purchase the Property, after initial reluctance from Chow and the 2^nd Respondent, Koh proposed that should the monthly rental from Hoi Wai be insufficient to cover the mortgage payments, she would make good the shortfall in cash, and the cash payments would be deemed to be payments contributed by all three shareholders in the same proportion as their respective shareholding in the Company (agreed at 4:3:3).  Chow and the Respondents agreed.  Chow then explained that any such payments not put in as rent would necessarily be shareholders’ advance.  The amount put in each month was fixed at the beginning of each three‑year term and not month‑by‑month.

(3)  The Petitioner did not participate in any way in the negotiations with Chow or the Respondents or the acquisition of the Property or the setting up (or subsequent operation) of the Company.  This business of the Company of acquiring and holding the Property for leasing to Hoi Wai simply had nothing to do with the Petitioner.  The Respondents said that they were only interested in and agreeable to the purchase of the Property with Koh, and they might not even have proceeded if it was the Petitioner they were dealing with. The Respondents further deny any knowledge of the arrangements, if any, between the Petitioner and Koh (as alleged by the Petitioner) as to the funding and beneficial ownership of the shareholding in the Company registered in the name of Koh.[13]

(4)  It was perfectly legitimate for the Respondents to propose repayment of the loans to themselves after the sale of the Property and to accept the Waiver (and the acceptance of the Waiver was in the best interests of the Company as the amount waived would become the profits of the Company and available for distribution as dividend to the shareholders, including the Petitioner).  The loans were properly made and recorded in the audited accounts of the Company and the Petitioner was not a party to the agreement made at the acquisition of the Property.

(5)  The Petitioner failed to provide acceptable reasons to justify his unreasonable request for virtually all of the documents of the Company since its incorporation.  The 1^st Respondent said that she and the 2^nd Respondent were concerned that the Petitioner might want to use the documents improperly to harm the Company by suing it.

(6)  As for the rental waiver, there were proper reasons for agreeing to a waiver as approved by the Respondents: see §57(1) above.  In their testimony the 1^st Respondent also gave another reason for the rental waiver, namely because of the fact that as the sitting tenant when the Company purchased the Property and had remained so throughout, Hoi Wai never enjoyed any rent‑free period from the Company and the waiver was a way to give that to Hoi Wai.

D.  DISCUSSION

65. I shall attempt to deal with the disputes of fact between the parties in this section in so far as it is necessary to resolve such disputes in the disposal of this Petition in the context of the complaints made by the Petitioner (§63 above), having regard to the evidence given by the witnesses (namely the Petitioner, Koh, Chow and the Respondents) and the documentary evidence.  I am conscious of the fact that the demeanour of a witness is very often not a reliable guide to the question of whether he or she is telling the truth. I shall therefore seek to resolve the disputes and make my findings, if I possibly can, by reference to the inherent probabilities and credibility of the evidence given, in particular against the contemporaneous documents and undisputed facts, rather than by having any reliance on or reference to my observation and impression of the witnesses’ demeanour.  I take note of the guidance given in the authorities including Ting Kwok Keung v Tam Dick Yuen (2002) 5 HKCFAR 336 at §§36‑42 per Bokhary PJ and Tradepower (Holdings) Ltd v Tradepower (Hong Kong) Ltd (2009) 12 HKCFAR 417 at §24 per Ribeiro PJ and §140 per Litton NPJ.  I further bear in mind the guidance given by Mortimer J in All Best Wishes Ltd v Commissioner of Inland Revenue (1992) 3 HKTC 750 at 773:

“A tribunal, which hears oral evidence and considers documents, is not in the position (as it is submitted) that it has to find what the witness says is the fact, even if he is not cross-examined, and even if he is not contradicted by other evidence. A tribunal, in those circumstances, may look at the whole of the circumstances presented to it and may find that the oral evidence is not acceptable on particular matters. Or, may find certain facts contrary to the evidence that has been given and, indeed, contrary to what appears in the documents and other material before it.”

D1.   Hoi Wai and other businesses

66. The situation regarding Hoi Wai is of some importance because not only a finding of its real ownership impacts on the wider picture of the beneficial ownership (as between the Petitioner and Koh) of the various games centre and trading businesses managed and operated by them and thus on the question of the source of funds provided to the Company which eventually made up the shareholders’ advance recorded in the Company’s accounts, such a finding also impacts on the respective cases of the parties as to how the purchase of the Property came about, who were the participants in the joint venture, and what agreements or understanding had been reached between the parties regarding the funding of the monthly mortgage payments to the Bank.

67. The Petitioner’s case is, as stated above, that he was the sole beneficial owner and proprietor of all the games centre and trading businesses, including Hoi Wai.  Koh’s role was no more than an assistant or secretary to him.  On the other hand, Koh’s evidence on this aspect has changed in the course of the proceedings.  While in her affirmations she says that she was the mastermind of those businesses, and that the Petitioner did not have any beneficial interest in the businesses despite the fact that he was made a shareholder and director of various companies concerned out of legal requirements, in her testimony she says that while she was in the amusement games field, and had started running such businesses, before the Petitioner, she accepts that all such businesses, at least after they got married, were jointly owned and operated by them.

68. More specifically, regarding Hoi Wai, the Petitioner’s evidence is that he was the sole beneficial owner thereof, and it was he who proposed and participated in the purchase of the Property and was the source of the contribution for the purchase referable to the 40% interest in the name of Koh.  He contributed the entire purchase price when Hoi Wai was acquired from Cheung and his partners. Cheung was retained as a partner because he was the licensee.  Wan was named as a partner so that she could take over as the licensee at the suggestion of Koh, because Koh could not do so as she had some problems with the authorities regarding the licence for another games centre in her name, and it was not considered desirable for the Petitioner himself to become the licensee because he was already holding other licences at the time.

69. As to why the Petitioner ceased to be a partner on record on 1 January 1991, just a few months after his registration as such on 1 May 1990, he first said that it was because he was too busy with his other businesses.  He said that while he continued to manage and operate Hoi Wai, he did not see the need to have his name retained on the business registration record, and he was too busy to sign various documents which would be required if his name was retained.  However, when cross‑examined further, he said he could not remember why he ceased to be a partner on record of Hoi Wai.

70. The evidence of Koh on Hoi Wai has also changed during the course of the proceedings.  In her affirmations, she says that the purchase consideration was contributed as to 1/3 by Wan and Fong and as to 2/3 by her, the latter out of funds from businesses owned and run by her.  Wan was named as a partner to represent her own interest as well as the interest of Fong, while the Petitioner was named as a partner to represent Koh’s interest “but merely as a nominee with no beneficial interest therein”.  Koh could not be a partner herself because of her problems with another licence in her name.

71. However, in her testimony, having accepted that the various games businesses were jointly owned and operated and developed by both herself and the Petitioner, she also accepts that the 2/3 share of Hoi Wai should be considered to belong to both of them, with their share of the purchase price funded by money which belonged to both of them.  Her evidence that Wan and Fong were the beneficial owners of 1/3 of Hoi Wai remains unchanged. There is no convincing explanation for the change of evidence by Koh from what she alleges in her affirmations, namely that she was the mastermind and sole beneficial owner of those businesses (including 2/3 of Hoi Wai).

72. Koh now says that the Petitioner was named as a partner because with Wan being named a partner, she herself could not be the other partner as the Petitioner would not be happy with the two sisters being the partners to his exclusion. She further accepts that the reason given in her affirmations as to why she could not be a named partner is incorrect, since as long as she, while being a partner, did not become a licensee (who was going to be Wan) her problems with the other licence was irrelevant. 

73. Koh further states that the reason why the Petitioner ceased to be a partner of Hoi Wai on 1 January 1991 was because he had been questioned as a partner by the ICAC, not because of any specific problems with Hoi Wai but as part of a general, industry‑wide, investigation, and he was so unhappy about the incident that he did not want to remain a partner.

74. I do not accept the Petitioner’s evidence in relation to the ownership of Hoi Wai, for the following reasons:

(1)  The Petitioner denies that Wan had any beneficial interest in Hoi Wai, and says that Wan was only named a partner so that she could be a licensee. However, the clear and objective fact is that while Wan became a partner on record right from the time Hoi Wai was purchased from Cheung and his then partners, she did not become a licensee until 4½ years later, which is more consistent with her being a beneficial owner of Hoi Wai than her presence as a mere intended licensee.

(2)  The explanation of the Petitioner as to why he wanted Wan to be the licensee is unconvincing.  He says that it was because people in the games centre industry tended to use different persons to hold separate licences because any problem with one licence in the name of one person might affect all licences in his or her name.  However, on his own case, at the time, the Petitioner had other licences in his name already so it was not that he could or should hold only one at a time.

(3)  Thus, the Petitioner has failed to explain properly the presence of Wan as a partner on record, if he was really the sole beneficial owner of Hoi Wai.

(4)  The reason that the Petitioner first gave as to why he ceased to be a partner on record on 1 January 1991 (he was too busy to sign documents), after being named as a partner on record only on 1 May 1990, is in my judgment incredible. The Petitioner is not really able to demonstrate that the signing of documents like tax returns (the example he gives) would be such a strain on him that he needed to take the rather drastic step of ceasing to be a partner on record (thus leaving Hoi Wai to be in the sole names of Wan and Cheung on record), while at the same time, as he maintains, he continue to manage and operate Hoi Wai.  It is not as if the Petitioner could not have foreseen the amount of time he had to devote to Hoi Wai if he was a named partner when he became one on 1 May 1990, because, according to himself, he already held other games centre licences by that time.  It is in my judgment most unlikely for a sole owner not even to have his name to be on record as a partner on such a ground (in particular when he was named a partner only seven months earlier on acquisition).  His change of stance later at cross-examination to say that he could not remember why his name was taken off as a partner at the BRO hardly enhances his credibility at all in this aspect.

75. On the other hand, I do not find that I can accept Koh’s evidence in relation to the ownership of 2/3 of Hoi Wai (but that does not mean the Petitioner’s case is proven or should be accepted because of this).  As stated, the evidence of Koh on the ownership of 2/3 of Hoi Wai, and of the other games centre and trading businesses has changed as between her affirmations and her testimony without any convincing explanation at all.  While I accept that the parties and the witnesses are giving evidence on matters some of which happened more than 20 years ago and so I cannot expect any clear memory of factual details or perfect consistency between witnesses on the same event, I do expect them to be able to give consistent and coherent evidence on fundamental matters such as who was/were the real beneficial owner(s) of the various games centres (including Hoi Wai) in the name of Koh and/or the Petitioner. The change in the evidence of Koh regarding the 2/3 ownership of Hoi Wai, as I set out above, is fundamental with no convincing explanation from her for the change, and I repeat §71 above.  In the circumstances I do not think that I can accept any of Koh’s versions of evidence regarding the ownership of 2/3 of Hoi Wai and of the other businesses.

76. I would observe that both the Petitioner’s evidence as set out above, and the latest version of Koh, are at odds with §6 of the Settlement Deed which states in clear and unequivocal terms that Hoi Wai had been solely owned at all times by Koh and Wan.  Accordingly, I do not place weight on the inconsistency between §6 of the Settlement Deed and the respective evidence of the Petitioner and Koh in this aspect (namely as between them who was/were the beneficial owner(s) of Hoi Wai). 

77. However, what is clear from the contemporaneous documents is that Wan was a partner of Hoi Wai on record at all times, that she became a licensee as from 1 January 1995 in place of Cheung, and she was the person who signed the leases dated 16 June 1999 and 5 July 2002 on behalf of Hoi Wai.  As noted, the evidence of Koh that Wan and Fong were the beneficial owners of 1/3 of Hoi Wai remains unchanged.  In the absence of any convincing explanation as to the presence of Wan in Hoi Wai (see §74(1)‑(3) above) other than the fact that she was a co‑owner thereof, in the light of what the contemporaneous documents show, I find that Wan was a beneficial owner of Hoi Wai.  This finding is further supported by the reference to Wan as a co-owner of Hoi Wai in §6 of the Settlement Deed, because while as I said §6 is at odds with the evidence of both the Petitioner and Koh as to who were the owners of Hoi Wai, I can see no reason why the parties would, whatever was the position between them regarding ownership of Hoi Wai, state that Wan was a co-owner of Hoi Wai except that it is true.

78. In the premises, I am unable to make a finding as to who were the true beneficial owners of Hoi Wai (save that one of them was Wan), as I am unable to accept the evidence of either the Petitioner or Koh in relation to Hoi Wai.  This is one of those cases where, on the question of Hoi Wai, I have to take the third option or alternative of relying on the burden of proof.  As stated by Lord Brandon of Oakbrook in Rhesa Shipping Co SA v Edmunds [1985] 1 WLR 948 at 955:

“The first reason is one which I have already sought to emphasise as being of great importance, namely, that the judge is not bound always to make a finding one way or the other with regard to the facts averred by the parties. He has open to him the third alternative of saying that the party on whom the burden of proof lies in relation to any averment made by him has failed to discharge that burden. No judge likes to decide cases on burden of proof if he can legitimately avoid having to do so. There are cases, however, in which, owing to the unsatisfactory state of the evidence or otherwise, deciding on the burden of proof is the only just course for him to take.”

79. As the credibility of the evidence of the Petitioner as to the circumstances surrounding the purchase of the Property by the Company, with Koh and the Respondents being the shareholders and directors, leading to the question of whether the Petitioner or Koh was the “real partner” with Chow/the 1^st Respondent and the 2^nd Respondent and the beneficial owner of the 40% shares, the participation (if any) of the Petitioner in the purchase of the Property and subsequently in the negotiation on the rent at each lease renewal, and what were the terms of the joint venture agreement, is to a very large extent dependent on the satisfactory proof of his case that he was the sole owner of Hoi Wai and that Koh did not have any beneficial interest therein or no decision-making power, and thus it was him alone who had the reason, means and incentive to purchase the Property to secure its availability for Hoi Wai’s use, on which I am unable to make any finding in his favour, equally I am unable to, and I do not, make any findings on those further issues in his favour, as there is no further credible evidence in support the Petitioner’s case on those further issues apart from his own testimony, which as I said is dependent to a large extent on the question regarding Hoi Wai on which he fails on the burden of proof.  As I do not accept the Petitioner’s case on Hoi Wai, I do not think that there is any basis for me to accept his evidence in support of his case as summarised at §62(1)‑(5) above.  The Petition, in so far as it is based on the complaints in relation to the shareholders’ advance, must therefore fail.

80. It is of course preferable, if I can, to make findings of fact on the relevant issues and to decide the matter accordingly rather than relying on the burden of proof.  However, as I analyse below, even if I accept the Petitioner’s evidence on Hoi Wai and his case as summarised at §62(1)‑(4) above (I shall deal with §62(5) separately), I do not think that he has established a case of unfair prejudice in relation to the shareholders’ advance in any event. 

D2.   Shareholders’ advance

81. I shall deal with the shareholders’ advance in two parts: (i) the initial contributions and (ii) the subsequent monthly payments.

   D2.a   The initial contribution

82. I do not think that even if I accept as proven (which I do not) the Petitioner’s case as summarised at §62(1)‑(4) above, he has made out a case of unfair prejudice in relation to the initial contribution. 

83. According to the Petitioner’s own testimony, he nominated Koh to be the shareholder of the 40% shares representing his investment in the Company, and he gave the money to Koh for her to put the money into the Company as initial contribution in her capacity as the registered shareholder of the Company.  He no longer insists that the money was to be put in as capital contribution rather than as a loan (as he originally suggests in the Petition).  Rather, he says in his testimony that he let Koh deal with the money that he had given her, and Koh represented him in the management of the Company.  He did not read any audited reports of the Company because he let Koh, who represented him, to handle the affairs of the Company and she would not deceive him, and he himself was not good with accounts.

84. Thus, even on his own case (but which I am not to be taken to have accepted), I do not see how any complaint can be made by the Petitioner in so far as there was any act of the Respondents conducted on the basis that Koh was the creditor of the Company, being the person who had paid in the initial contribution, as properly recorded in its audited accounts, irrespective of whether the Petitioner was the party to this joint venture agreement with the Respondents or Chow or the beneficial owner of the shares, or whether he was the real source of funds, and the Respondents’ knowledge of those matters.  There is no reason why the Respondents should concern themselves with the arrangements (if any) between the Petitioner and Koh regarding the ownership of the shares and the fund being the initial contribution. 

85. As far as the initial contribution is concerned, there is quite rightly no longer any issue about the correctness of its classification as shareholders’ advance in the accounts.[14] On either side’s case, Koh was properly considered and recorded as the creditor of the Company for the portion of the shareholders’ advance being the initial contribution put in by her.

86. That leaves only the question of the Waiver in so far as the Waiver relates to the portion of the shareholders’ advance originally put in by Koh.  As stated, the creditor of that portion as properly recorded in the audited accounts, as far as the Company was concerned, was Koh who, on the Petitioner’s own case, was the nominated shareholder and director and to represent him in the management of the Company and who put in the contribution. 

87. When it was proposed that the shareholders’ advances be (partially) repaid to Koh and the Respondents on 30 December 2004, after the Petitioner became the shareholder and director of the Company, the Petitioner’s case is that he objected because first he queried why there were loans to the Company in such huge amounts, and second he said that because of the divorce settlement between him and Koh resulting in the transfer of the 4,000 shares in the Company to him, all of Koh’s rights and interests in the Company, including any loan owed to her, would also be transferred to him, so that if indeed there was any loan due to Koh that should be repaid to him.  That these two points were taken by the Petitioner regarding the loans at the meeting of 30 December 2004 is also consistent with the evidence of the Respondents, as well as the letter dated 3 January 2005 from his solicitors setting out his case (§39 above).  I therefore find that at the meeting of 30 December 2004 the Petitioner did query the loans, and did object to the partial repayment of the loans, on those two grounds.

88. The first objection he took could not have been valid for the initial contribution (see §85 above).  As far as the Company was concerned, as properly recorded in the audited accounts, the creditor was Koh.

89. As for the second objection, he says that he showed the Respondents an extract of the Settlement Deed dealing with the Company, which is common ground and which I find to have happened.  But what the Settlement Deed shows is that Koh, the creditor, agreed, and indeed was required by the Petitioner himself, to waive all debts owed by the Company to her, and Koh then confirmed that by the Waiver (§40 above).  It does not show that the debt owed to Koh was transferred to the Petitioner.  I therefore do not understand why, as the Petitioner argues, Koh had no right to waive any loans, whether as between them, or in so far as the Company was concerned.  

90. The Respondents say, and I accept their evidence, that upon being shown the Settlement Deed by the Petitioner they consulted their solicitors.  The 2^nd Respondent says, and I accept, that they just wanted to follow the law.  The 1^st Respondent also says, and I accept, that they wanted the solicitors to review the Settlement Deed and to follow up accordingly as to how to deal with the loan. Thus, I find that what happened, on being shown the Settlement Deed by the Petitioner on 30 December 2004, was that the Respondents intended to deal with the sum of $4,896,884 owed by the Company to Koh as per the Settlement Deed with the benefit of legal advice.  This, in my judgment, was the only proper way for the Respondents to act.

91. While there is no direct evidence as to the legal advice provided by the solicitors to the Respondents, what happened (as I have found as a fact at §38 above) was that the solicitors proceeded to ask Koh, by their letter of 31 December 2004, to confirm whether she was indeed waiving the debt owed to her in the sum of $4,896,884, enclosing the Waiver in draft form for her to sign if she so confirmed.  The 2^nd Respondent also says that the thinking of the Respondents at the time was that, in the light of the Waiver, the money could not be paid to Koh, but it could not be paid to the Petitioner either.  This is patently the correct position and I accept this evidence and find that that was the Respondents’ thinking at the time.  In the light of the Settlement Deed (executed also by the Petitioner and which provided for the waiver of debts owed by the Company to Koh) and the Waiver, in my judgment the Petitioner has failed to establish that the acceptance of the Waiver by the Respondents, and to put the money into the general revenue of the Company instead of paying the same to the Petitioner, was unfairly prejudicial conduct.  Again, in my judgment, it was the only proper way for them to act. 

92. The Petitioner also alleges that there was an oral agreement between himself and Koh, as part of their divorce settlement, to the effect that all Koh’s rights and interests in the Company would become his, but he accepts that the Respondents did not know about this, so this oral agreement (even if it existed) must be irrelevant in this case where one is to consider the conduct of the Respondents. Thus, I need not consider if this oral agreement existed or whether evidence thereof is admissible in the light of the parol evidence rule.

93. There is no evidence from the Petitioner that at the meeting of 23 December 2004, he also made a claim to the loan on the basis that he was the source of the money or the beneficial owner of the shares all along.  The letter from his then solicitors of 3 January 2005 (§39 above) did not rely on those grounds either.  Rather, by relying on the transfer of the shares in the Company from Koh to him as the divorce settlement in support of his claim that he would now be entitled to whatever rights Koh had in the Company, including the entitlement to be repaid any loans, the Petitioner was not asserting any beneficial interest of his own which was supposed to have existed all along and to which Koh was also subject as a trustee or nominee, but was seeking to derive some title or interest from a transfer from Koh.

94. In any event, I do not understand how being the beneficial owner of the shares or the originating source of the funds, even if true and if known to the Respondents, would entitle the Petitioner to claim, directly against the Company, the loans put in by Koh as the registered shareholder and, on the Petitioner’s case, his fully authorised representative.  In the light of the Settlement Deed, there could not have been any suggestion that the Respondents were put on any notice of any breach of trust or other improper conduct by Koh in giving the Waiver, when the Waiver was clearly made pursuant to, and required by, the Settlement Deed executed by the Petitioner, which Deed was shown to the Respondents.  What the Respondents did was to deal with the advance credited to Koh in accordance with the Settlement Deed (after taking legal advice) to which the Petitioner was a party.

   D2.b   The monthly payments

95. As for the shareholders’ loan made up of the monthly cash payments put in every month by Koh, the fact is that they were all credited in the financial statements of the Company, audited not by the Firm but by independent auditors, as shareholders’ advance.  There is no dispute that the payments were paid in every month in cash by or at the direction of Koh, who was at all times the registered shareholder of 40% of the shares, and the Petitioner does not claim that it was he who paid in or arranged the payment in of the monthly sum (although the money came from businesses which he claims were solely owned by him). 

96. Therefore, unless I am satisfied that the real nature of those payments is in fact not loans from Koh, but is, as the Petitioner claims, part of the monthly rental payment, the burden of so persuading me is on the Petitioner, again the Petitioner’s case must fail in relation to the portion of the shareholders’ advance made up of the monthly cash payments, because there would be no improper manipulation of the accounts, and, as in the case of the initial contribution, there can be no unfairly prejudicial conduct in any way for the Respondents to accept the Waiver by Koh of a debt representing payments made by her to the Company and to whom the debt was properly credited in the audited accounts, in the light of the Settlement Deed shown to them, and in putting the waived sum into the general revenue of the Company instead of paying the same over to the Petitioner (see §§90 and 91 above).  This is irrespective of the ultimate source of such payments and the Respondents’ knowledge thereof because even if the Petitioner was the ultimate source to their knowledge what was the arrangement (if any) between the Petitioner and Koh should not be a concern of the Respondents’, and as I said above, there could not have been any suggestion of breach of trust or other improper conduct of Koh in waiving the shareholders’ advance in her name because of the Settlement Deed.

97. For the Petitioner to succeed on this point, not only must he establish to my satisfaction the matters stated at §62(1)‑(4) above (which he has not), but at §62(5) above as well.

98. On the Petitioner’s case, the monthly cash payments were made pursuant to an arrangement proposed by Chow under which the monthly rental payment from Hoi Wai was split up into two parts: one part “officially” as rent and the other part put in as cash and not recorded as rent.  The Petitioner’s evidence is that he heard this proposal from Chow at a family gathering (§§28 and 62(5) above) and everybody present (including the Petitioner himself) did not challenge Chow or said anything in particular to his suggestion, and the only reasonable inference is that the suggestion was implemented.  If that is so, then it was clearly a scheme conducted with the consent and acquiescence of the Petitioner, and the active co‑operation of his authorised representative, Koh, who did split up the monthly payments into two, by paying the rent by a cheque issued by Hoi Wai, and the amounts (which were credited as shareholders’ advance) by way of cash deposits into the Company’s bank account.  That is, I have to find that the arrangement regarding the sum paid in every month by cash ostensibly as a loan and recorded in the accounts as such is a sham (in the meaning as stated by Diplock LJ in Snook v London and West Riding Investments Ltd [1967] 2 QB 786 at 802C‑E).  If that was really what happened, then what Chow proposed, and Koh and the Respondents implemented, was a scheme involving false accounting, tax evasion and the defrauding of the Revenue, and the only evidence is a recollection by the Petitioner which does not even feature in the Petition but appeared for the first time in his 7^th affirmation filed on 11 May 2011, 4½ years after the Petition was issued.  Although it was said that the recollection was prompted by the disclosure of the audited accounts pursuant to an order of Barma J dated 4 December 2009, it still took the Petitioner another 1½ years to make this rather important point. 

99. I reject the Petitioner’s evidence that there was such a scheme or arrangement and that the monthly cash payments were made pursuant thereto:

(1)  This is a very serious allegation, in particular as against Chow, a senior certified public accountant, and the evidence must be particularly compelling for the allegation to be accepted as being proven on a balance of probabilities (Re H & Others (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 503 at 586 per Lord Nicholls of Birkenhead; Nina Kung v Wong Sin Shin (2005) 8 HKCFAR 387 at §§181 to 184 per Ribeiro PJ, at §467 per Litton NPJ, at §568 per Sir Noel Power NPJ, and at §§625‑626 per Lord Scott of Foscote NPJ).  I do not think the evidence given by the Petitioner is of sufficient cogency for this purpose.

(2)  There are no contemporaneous documents in support of the Petitioner’s case.

(3)  The Petitioner cannot even say as a fact whether the alleged scheme has been implemented, but can only invite the Court to make an inference that it was.

(4)  In terms of inherent credibility, I find that it is not credible that for someone like Chow and the Respondents, who were by all accounts fairly affluent, to suggest and/or implement a scheme like that.  Using the figures for the initial three-year period, the total amount “converted” from rent into loans would be $480,000 per year.  That would be a tax saving of $72,000 a year (at a profits tax rate of 15%), with $21,600 for each of the Respondents and $28,800 for Koh/the Petitioner.  It is not credible, in my judgment, for Chow, Koh and the Respondents to take the risks involved for the benefit of such a sum which is relatively low.

(5)  For reasons stated in section D1 above, I do not accept the Petitioner’s case that Hoi Wai was solely owned by him, and I find Wan to be one of the owners of Hoi Wai.  In the premises, in the light of the fact which I found above that the monthly rent for the Property was only $45,000 just before the purchase, as Koh says in her evidence, the rent could not be increased to $120,000 immediately after the purchase.  Whatever was the real reason for the payment of two sums every month to the Company, it is not suggested by any party that that, or the cash payment, had anything to do with Wan, and so for her how much was paid by Hoi Wai as rental was a matter of real substance.

(6)  The Petitioner argues that the existence of two tenancy agreements for the period from 7 July 2002 to 6 July 2005 (see §17(2) above) supports his case that there was such a scheme. However, if there was really such a scheme, I do not see why Chow, Koh and the Respondents would want to have two tenancy agreements and thus leaving a paper trail as evidence of this illegal scheme, and to put the two agreements in the same file.  Rather, given that Wan was a co‑owner of Hoi Wai, the explanation given by Koh and the 1^st Respondent[15] that it was because of Wan’s complaint after she had signed the tenancy agreement for the monthly rent of $138,000, that a second agreement for the monthly rent of $100,000 was signed, is credible and I so find accordingly. 

(7)  The Petitioner argues that the adjustment of both the rent and the monthly cash payment during SARS (from $100,000 + $38,000 to $75,000 + $25,000) was odd, because all that the parties needed to do was to keep the rent at $100,000 and waive the cash payment.  But, as Koh says and which I accept, Wan was a co‑owner of Hoi Wai (as I have found), the reduction had to be reflected in the rental and not just in the cash payments. 

(8)  The Petitioner points to the fact that the monthly cash payments ceased from April 2004, when the Petitioner became a shareholder.  It is suggested that that was because the Respondents did not want the Petitioner to know about the splitting of rental income and so the cash payments stopped, referring to what is supposed to be the peculiar manner in which the rent (at $100,000 per month) for April and May 2004 to be partially paid at $75,000 each on 15 May 2004.  However, on the Petitioner’s own case, if there was such a tax evasion scheme, it was not concealed from him but that Chow explained everything to him.  Therefore, I do not see why, if the scheme did exist and was implemented, the Respondents would see the need to take steps to conceal the scheme from the Petitioner. 

(9)  The Petitioner suggests that the case put forward by Koh, Chow and the Respondents to explain why there were monthly cash payments (§64(2) above) should be rejected:

(a)  First, he argues that it does not make sense for the parties, as Koh, Chow and the Respondents insist, to fix the monthly cash payments at the beginning of each three-year lease term knowing that the interest rate, and therefore the monthly mortgage instalment required, might rise resulting in a shortfall.  Indeed, he argues, the parties knew that the initial payment was $122,652.63[16] and so there would be a shortfall right away (as the initial payment in was $40,000 only on top of the $80,000 rent). 

(b)  The explanation put forward by Chow and the 1^st Respondent for this arrangement (ie to fix the sum at the beginning of three‑year term rather than to calculate every month the exact shortfall by reference to the actual mortgage payment for that particular month less the rent paid in, and then to ask Koh to pay in the exact shortfall) is that it would be too troublesome and a lot of administrative work for the 1^st Respondent, so much so that she would not even be able to go on a holiday.  I find this to be totally unconvincing, as the adoption of the arrangement, which would only require a phone call to Koh after the 1^st Respondent had read the bank statement for a particular month, actually caused the Company to have to resort to the rental deposit to pay for the part of the instalment not covered by the rent and cash payment, and later it even had to arrange overdraft facilities for this purpose.

(c)  However, the Petitioner’s own case that he agreed the rent for each three-year term with Chow in an amount sufficient to cover the mortgage payment suffers from the same problem in that on his own case the parties also fixed a sum for the whole of the lease term which was supposed and intended to be sufficient to pay the mortgage instalments. While I accept that the parties could hardly agree a lease with a fluctuating rent over the years, what happened was that, on the Petitioner’s own case, knowing that the amount might rise, the parties agreed an initial rent of only $120,000 (supposedly based on an oral indication by the Bank which the Petitioner admits he did not know if it would be sufficient) which was insufficient to pay even the first instalment.  In his testimony, for the first time, he alleges that it was Chow who said that any instalment payment not covered by the rent could be paid for out of the rental deposit, which I found to be incredible: there was simply no reason as far as I can see for Chow to propose something like that.  Given the fact that the common objective of all concerned was that the rent must be able to cover the mortgage instalment, I do not find convincing the Petitioner’s explanation that the rent could not be immediately adjusted to a higher amount to cover at least the first payment (and the following instalments until the interest rate moved) because a lease agreement had already been signed, as the lease was, on his own case, between parties with the common objective. 

(d)  Second, the Petitioner points to the fact that the monthly cash payment continued to be paid after July 2003, when the mortgage loan had been completely repaid. Neither Koh nor the 1^st Respondent was able to explain this. There is a suggestion in submissions that that was because the Company still had an overdraft balance with the Bank as at July 2003 so the cash payment was still needed to pay that off.  Another suggestion is that Koh needed to continue to make the payments to catch up because she was always late. However, neither suggestion is supported by any evidence from the witnesses and are explanations proffered by counsel only.  In any event, according to the bank statements the cash payment for July 2003, the last month of the mortgage payment, was paid by Koh on 4 November 2003, yet eight more such payments were made.  As for the overdraft, it was paid off on 16 March 2004 yet four more cash payments were received after that.  Thus, the continued payments (or at least the last four) cannot be explained as being late or catch up payments.

(e)  I agree that this fact cast a substantial doubt on the Respondents’ case and Koh’s evidence that there was an agreement between them as stated at §64(2) above, but if there was in place the scheme as alleged by the Petitioner, once the mortgage loan was paid up, the basis to disguise part of the rent in the form of a monthly loan to the Company on top of the amount credited as “rent” to hide the payment’s true nature as part of the total real rent must be gone, as the Company would have no further apparent need to borrow, and in my judgment it is equally doubtful that Koh, Chow and the Respondents would have continued with the scheme in this way.  In the premises, I do not think that this point assist the Petitioner in establishing the existence of the scheme.

100. In any event, even if the scheme was proposed and implemented as the Petitioner alleges, that was done with the consent and acquiescence of the Petitioner and with the active co‑operation of Koh, who on the Petitioner’s case was his fully authorised representative in the management and operation of the Company including accounting matters thereof and who was also, as the Petitioner accepts, the person in charge of all accounting and financial matters of Hoi Wai. On this basis, it would seem to me that it is not open to the Petitioner to complain of any “manipulation” of the accounts or the dealing of the sums involved as unfair prejudicial conduct against the shareholding interests represented by the 40% shares in Koh’s name (Hawkes v Cuddy (No 2) [2008] BCC 390 at §238 per Lewison J; on appeal Re Neath Rugby Ltd (No 2); Hawkes v Cuddy (No 2) [2009] 2 BCLC 427 at §71 per Stanley Burnton LJ) but since this point has not been fully argued I would not reject the Petitioner’s case on this ground.

101. Since the Petitioner has failed to discharge the burden of showing that the real nature of the monthly cash payments were not shareholders’ loans as recorded in the audited reports, 40% of which was credited to Koh, his complaint as to the acceptance of the Waiver by the Respondents and the payment of the waived sum into the general revenue of the Company instead of paying it to him as constituting unfair prejudice conduct must fail.  The analysis above as to the Waiver concerning the initial contribution applies equally to the Waiver concerning the monthly cash payments (see §§90 and 91 above).

102. It is not necessary for me to decide whether I should accept the evidence of Koh, Chow and the Respondents as to the existence of the agreement between them as stated at §64(2) above.  However, I acknowledge the force the submissions of the Petitioner made at §99(9) above which as I said cast substantial doubt on the existence of the alleged agreement, although that does not mean that the Petitioner’s case of the tax evasion scheme is thereby proven with the required cogency, and I do consider the very idea of the alleged agreement, in that Koh was in effect making a gift payment to the Respondents every month on top of paying the market rent for the lease of the Property, has an air of commercial unreality to it. 

D3.   Request for inspection of the Company’s documents

103. The Petitioner relies on his right to inspect the Company’s books and records as a director and claims that the Respondents had improperly refused his request.

104. In Ng Yee Wah v Lam Chun Wah [2012] 4 HKLRD 40, a decision of Kwan J dated 28 June 2005, her Ladyship summarised the principle regarding inspection of documents as follows (authorities cited omitted):

“(1) The right of a company director to inspect the company’s documents is well established at common law …

(2) The right of inspection flows from the director’s duties to the company and a director does not have to explain why the inspection is sought or demonstrate any particular ground or ‘need to know’ as a basis … Thus, the inaction on the part of the director after grounds for suspicion concerning the company’s affairs have arisen is irrelevant; likewise, the intention of the director to discover misfeasance with the view to seeking relief, or that the desire to find evidence is motivated by vindictiveness …

(3) It is only where it can be proved that the director intends to abuse the confidence in relation to the company’s affairs and to injure the company in a material way that the director’s right of inspection can be interfered with, and such interference can only be effected in circumstances where a restriction on a director’s right can be imposed because of misuse of confidential information leading to damage …

(4) In view of the proposition in (3), the exercise of a director’s right of inspection is, ‘generally speaking, not a matter of discretion with the Court’ ...

(5) The onus of establishing that the right of inspection will be exercised for improper purpose lies on the person who asserts it and ‘clear proof’ is required to satisfy the court ‘affirmatively’ that the grant of the right of inspection would be detrimental to the interests of the company …

(6) The scope of inspection can potentially be very wide, covering any ‘documents belonging to the company’ … ‘corporate material’ … ‘corporate records and accounts’ or ‘corporate information’ … ‘accounting and other records of the company’ …

(7) It is perfectly proper for a director to engage an accountant to conduct the inspection in exercise of his right. A director may certainly exercise his right through his agent … A director is also entitled to take copies of the documents during inspection …

(8)  Whilst there may be some dispute in the authorities if the statutory provision (our statutory provision is s. 121(3) of the Companies Ordinance) adds a statutory right of inspection to an existing common law right, it is abundantly clear that the statutory provision is consistent with and does not detract from the common law right ....”

105. Subsequently, in Re Tanyuen Investments Ltd (HCCW 375/2008, 28 October 2009) at §20, Kwan JA said:

“The right of a director to inspect documents belonging to the company under section 121 and at common law is not in dispute. This right of inspection is essential to the performance of the duties of a director and the court would not interfere with this right unless it could be clearly established that the director intended to abuse the confidence in relation to the company’s affairs and to injure the company in a material way (Re Boldwin Construction Company Limited & Another [2001] 3 HKLRD 430), or that the director intended to use the right to inspect not for the purposes for which the right was conferred but for some other improper purpose (Oxford Legal Group Limited v. Sibbasbridge Services plc and another [2008] 2 BCLC 381; Nicholas Timothy Cornforth Hill v. Alvarez & Marsal Asia Limited [2009] 4 HKLRD 727, paras. 23 and 30).”

106. In my judgment, the Petitioner has made out a case of unfair prejudice by reason of the failure of the Respondents to provide documents of the Company to the Petitioner for his inspection, for the following reasons:

(1)  The Petitioner had a right, under the common law and section 121, to inspect the documents of the Company in the proper discharge of his duties as a director. 

(2)  The Respondents’ attitude at the time was that it was for the Petitioner to justify why he needed those documents, and because the Petitioner had failed to do so he ought not be provided with the documents requested.  This is wrong as shown by the authorities. Rather, it was for the Respondents to justify clearly that the Petitioner intended to abuse the confidence in relation to the Company’s affairs or to injure the Company in a material way or that he intended to use the right to inspect not for the purposes for which the right was conferred but for some other improper purpose.

(3)  The Respondents’ evidence is that they were concerned that the Petitioner would make use of the documents to sue the Company. However, they are unable to give any firm basis for this view of theirs which in the circumstances amount to no more than a mere suspicion that the Petitioner would use the documents for the said purpose. The refusal of the Respondents to in effect open up the books and records of the Company so as to avoid assisting the Petitioner to satisfy himself as to whether any misfeasance had been committed, and so as to shield themselves if possible from unwanted litigation by the Petitioner, is in my judgment an improper denial of the Petitioner’s right as a director.

(4)  It is common ground that the Petitioner had not been involved in the management of the Company before he became a director on 29 April 2004.  On the Petitioner’s case, it was because he left it to Koh.  On the Respondents’ case, it was because the Company had nothing to do with him before.  Thus, it seems to me in either case that it was perfectly legitimate for the Petitioner to ask to inspect the documents of the Company.  It is to be noted that as evidenced by the letter dated 10 September 2004, the Petitioner had already asked Chow (who of course was not a director of the Company) for the documents before that date, a request he repeated to the Respondents by the letter of that date, at a time before the dispute about the shareholders’ advance had arisen.  That request was not entertained[17] and I fail to see any justification for that stance taken by the Respondents. At the time, it is difficult to see how any suspicion of misuse could have legitimately existed but even if it did this was not a valid reason to refuse inspection.

(5)  The request for documents was repeated after the dispute about the shareholders’ advance surfaced on 30 December 2004.  On the Petitioner’s case, he said there should not be any loan.  On the Respondents’ case, he would not have known what the loan (to be repaid to or waived by Koh) was about.  I see nothing improper for the Petitioner, as a director, and on either side’s case, to continue his pursuit for inspection even if, as the Respondents appear to be suggesting, he was doing it in an attempt to get evidence of misfeasance.  Clearly a primary purpose of the Petitioner in seeking the documents, after the dispute about the shareholders’ advance, was to investigate the loan: see for example the exchanges at the meeting on 12 October 2005 (§57(1) above), but, as Kwan J said in Ng Yee Wah (§104 above),

“… the intention of the director to discover misfeasance with the view to seeking relief, or that the desire to find evidence is motivated by vindictiveness …”

   is irrelevant.  It cannot be said that there was an improper motive of the Petitioner simply because in seeking inspection as a director he was also seeking to protect his own position vis-à-vis the Company: Re Alvarez & Marsal Asia Ltd [2009] 4 HKLRD 727 at §§21‑23 per Rogers VP.

(6)  It has been said that for relief to be granted under section 168A, the prejudice must be suffered as a member (Re J E Cade & Son Ltd [1992] BCLC 213), although this requirement should not be too narrowly or technically construed: see O’Neill v Phillips [1999] 1 WLR 1092 at 1105G‑H per Lord Hoffmann. Thus, it has been held that it is sufficient where a person has suffered prejudice in some capacity connected with his shareholding (Re Tobian Properties Ltd; Maidment v Attwood [2013] 2 BCLC 567 at §12 per Arden LJ, citing Gamlestaden Fastigheter AB v Baltic Partners Ltd [2008] 1 BCLC 468 (a Privy Council appeal from Jersey)).  In this case, while the right of inspection of the Petitioner stems from his position as a director and not as a shareholder, the effect of the improper denial of inspection by him would certainly prejudice him in connection with his shareholding, when a purpose of the inspection was for the Petitioner to see if and how his interest as a shareholder had or might have been prejudiced by some improper conduct of the Respondents. In my judgment, for the Respondents to deny the Petitioner access to the documents improperly and in breach of his legal right is a conduct which was unfair prejudicial to the Petitioner in connection with his shareholding.

107. The Petitioner’s complaint of unfair prejudice based on this ground is made out.

D4.   Rental waiver

108. As for the rental waiver, I note again that the Petitioner is not suggesting that, by agreeing to waive three months’ rent by Hoi Wai, there was any agreement or understanding or any expectation that any favour would be returned to them by Koh or Hoi Wai.  The Petitioner does not suggest that by agreeing to waive the rent the Respondents stood to gain anything personally.  Rather, the Respondents, as shareholders, also stood to be adversely affected by the waiver in the same way that the Petitioner would be (although this in itself would not prevent a conduct to be unfairly prejudicial if it otherwise is).

109. The complaint of the Petitioner is that the Respondents agreed to confer a benefit or favour on Hoi Wai without any legitimate reason, and with no gain or benefit to the Company.  However, in the absence of any suggestion or complaint of bad faith or other improper motive by the Respondents, let alone proof thereof, in effect the complaint is that the Respondents made a bad management decision.

110. It is difficult in such circumstances to see how the said complaint can amount to unfairly prejudicial conduct. Simply because a bad or poor management decision had been made, that does not mean that there is unfair prejudicial conduct.  As Warner J said in Re Elgindata Ltd [1991] BCLC 959 at 993a‑994f:

“Before I come to those I must say a word about the law. There is little authority on the extent to which negligent or incompetent management of a company's business may constitute conduct which is unfairly prejudicial to the interests of members for the purposes of s 459. Mr Chivers referred me to Re Five Minute Car Wash Service Ltd [1966] 1 All ER 242, [1966] 1 WLR 745, where Buckley J held that allegations that the chairman and managing director of a company had been unwise, inefficient and careless in the performance of his duties could not without more amount to allegations of oppressive conduct for the purposes of s 210 of the Companies Act 1948. Mr Chivers rightly conceded, however, that that authority afforded little guidance in a case under s 459, because the concept of oppressive conduct in s 210 was narrower than the concept of unfairly prejudicial conduct in s 459. Mr Nurse referred me to a paragraph in Gore-Browne on Companies (44th edn, 1986) vol 2, p 28.021 which reads as follows:

‘Another aspect of the enforcement of directors’ duties by means of a petition under section 459 which remains unclear is the directors’ duty of care. It would seem that the Jenkins Committee intended that the reformed statutory remedy might be used in this regard, although the courts decided otherwise in the case of the old section 210.’

Then there is a reference to Re Five Minute Car Wash Service Ltd:

‘Where serious mismanagement causes real economic harm to the company's business (and therefore to the value of the members interests) the general conceptual developments examined earlier should enable the courts to hold that unfair prejudice has been established. The terminology in section 459(1) (referring to ‘any actual or proposed act or omission of the company including an act or omission on its behalf’ where this ‘is or would be so prejudicial’) should be of assistance here. Once again, however, a petition in the case of a public listed company may present greater difficulty.’

Lastly I was referred, on this point also, to the judgment of Peter Gibson J in Re Sam Weller & Sons Ltd at the end of which (see [1990] BCLC 80 at 89, [1990] Ch 682 at 694) he said that he had no doubt that the court would ordinarily be very reluctant to accept that managerial decisions could amount to unfairly prejudicial conduct. The point for which that judgment is mainly authority is, of course, that conduct may be unfairly prejudicial to the interests of minority shareholders even if those responsible for that conduct may, as members of the company, have suffered the same or even greater prejudice. That point is relevant here.

I do not doubt that in an appropriate case it is open to the court to find that serious mismanagement of a company’s business constitutes conduct that is unfairly prejudicial to the interests of minority shareholders. But I share Peter Gibson J’s view that the court will normally be very reluctant to accept that managerial decisions can amount to unfairly prejudicial conduct.

Two considerations seem to me to be relevant. First, there will be cases where there is disagreement between petitioners and respondents as to whether a particular managerial decision was, as a matter of commercial judgment, the right one to make, or as to whether a particular proposal relating to the conduct of the company's business is commercially sound. I heard much evidence, including the expert evidence of Dr Rhodes, directed to issues of that kind arising from decisions made by Mr Purslow, or from decisions that it was said he should have made but did not make. In my view, it is not for the court to resolve such disagreements on a petition under s 459. Not only is a judge ill-qualified to do so, but there can be no unfairness to the petitioners in those in control of the company’s affairs taking a different view from theirs on such matters.

Secondly, as was persuasively argued by Mr Chivers, a shareholder acquires shares in a company knowing that their value will depend in some measure on the competence of the management.  He takes the risk that that management may prove not to be of the highest quality.  Short of a breach by a director of his duty of skill and care (and no such breach on the part of either Mr Purslow or Mrs Purslow was alleged) there is prima facie no unfairness to a shareholder in the quality of the management turning out to be poor.  It occurred to me during the argument that one example of a case where the court might none the less find that there was unfair prejudice to minority shareholders would be one where the majority shareholders, for reasons of their own, persisted in retaining in charge of the management of the company’s business a member of their family who was demonstrably incompetent.  That of course would be a very different case from this.  Mr Rowland deliberately invested in a company controlled and managed by Mr Purslow, whom he had known for five years or so.  Indeed, he did so, despite Mr Purslow’s reluctance to have him as a shareholder in his company.  Mr Nurse submitted that Mr Rowland had a right to expect a reasonable standard of general management from Mr Purslow.  In my view, he had no such right.  He took the risk that Mr Purslow's management of the company might not be up to the standard that he, Mr Rowland, had hoped and expected.”

111. As to the reasons given by the Respondents of why they agreed to waive the rent (§§57(1) and 64(6) above), the Petitioner criticises the main reason given, namely as an incentive for Hoi Wai to vacate on 7 October 2005 so that vacant possession could be delivered by the Company to the purchaser of the Property, suggesting that no such incentive was required because the lease was ending three months before anyway.  However, I note that this reason is not a recent fabrication of the Respondents but was one of the reasons given by the 2^nd Respondent at the meeting of 12 October 2005 when first challenged by the Petitioner (§57(1) above).  The other reason given at the time, that is, to recognise the long term relationship with Hoi Wai, is consistent with the additional reason elaborated in the testimony of the 1^st Respondent.  I accept the Respondents’ evidence as to what were their respective reasons at the time (as stated at §§57(1) and 64(6) above) for agreeing to the waiver, and I do not think that the credibility of their evidence in this regard is affected by the fact that the Respondents have different recollections as to whether they agreed to the rent waiver at a board meeting or not (as that is the kind of detail which it is not surprising for different witnesses to have different recollections eight years later), or that Koh herself might have given different reasons for the waiver (ie her financial difficulties) as that would be confusing the motives or reasons of different individuals which may well be different.

112. In the premises, with the acceptance of the reasons given by the Respondents, in the absence of any suggestion or complaint or proof of bad faith or other improper motive by the Respondents, I do not think that it is for the Court to go into the commercial wisdom or necessity of those reasons.

113. The Petitioner argues that any “misapplication” of the funds of a company by those in control for their own benefit or the benefit of their family or friends is unfair prejudice conduct, citing Re Elgindata Ltd at 1004g per Warner J and Re Tai Lap Investment Co Ltd [1999] 1 HKLRD 384.  With respect, that begs the question of whether the waiver here was a misapplication, and that depends on why the payment was made.  As stated, I accept the reasons given by the Respondents as to why they agreed to the rent waiver and even if the Company derived no direct or immediate benefit in the light of those reasons, where different persons might debate as to the commercial wisdom thereof, that does not mean the waiver was a misapplication or was otherwise unfairly prejudicial conduct.

114. I reject the Petitioner’s case on this ground.

E.  CONCLUSION AND DISPOSAL

115. The Petitioner has succeeded in establishing unfair prejudice, but only in respect of the denial of inspection of documents by him as a director in 2004 and 2005. 

116. In particular, the Petitioner has failed to establish a case for challenge the Waiver and the acceptance thereof.  Thus, the amount waived by Koh must, as from the date of the acceptance of the Waiver, form part of the general assets of the Company, and not as a sum owing to the Petitioner, for the purpose of any valuation of the Company for the purpose of a buy‑out of the Petitioner’s shares, or in the winding up of the Company.

117. As to what relief I should grant, it is trite that I have a wide discretion under section 168A(2)(a) to grant any relief with a view to bring to an end the matter complained of.  Further, the order made must be proportionate to the unfair prejudice found: see Joffe et al, Minority Shareholders: Law, Practice, and Procedure (4^th ed, 2011) at §7.231.

118. Since the Petitioner has succeeded on only one of the grounds he relies upon, which has taken up a relatively small part of the proceedings in terms of preparation, evidence and submissions, and the matter complained of, ie the denial of inspection, had long ceased, following the Petitioner’s removal as a director on 4 November 2005, I would invite the parties to make further submissions on the following issues:

(1)  What orders I should make as relief to the Petitioner under section 168A, if any, or whether I should simply order that the Company be wound up under section 177(1)(f).

(2)  Costs.

119. I direct the Petitioner and the Respondents to file and exchange written submissions on the said two issues within 21 days of the date of this judgment.  If so desired, each of the Petitioner and the Respondents can file a reply within seven days thereafter.

120. Lastly, I thank counsel for their assistance.