RE HAN, CATHERINE (韓熙庭, formerly known as 韓文虹)

HCB 1612/2019

[2019] HKCFI 2274

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

BANKRUPTCY PROCEEDINGS NO 1612 OF 2019

____________

____________

____________

JUDGMENT

____________

THE PETITION

1.  Zhongtai Financing (Hong Kong) Limited (“the Petitioner”) presented a bankruptcy petition against Han Catherine (“the Debtor”) on 19 March 2019 (“the Petition”).  In the Petition, it is stated, inter alia, that:

“ 2. The Debtor is justly and truly indebted to us for the aggregate sum of US$51,633,560.13 as of 8 June 2018 (‘Debt’), being the outstanding debt due and owing by the Debtor pursuant to:

(1) A Loan Agreement dated 30 June 2017 between Shu Zhi Hong Kong Trading Co., Limited as borrower (‘Borrower’)and the Petitioner as lender; and

(2) A Guarantee dated 30 June 2017 (‘Guarantee’) signed by the Debtor as guarantor.

…

4. Pursuant to the Guarantee, the Debtor provided a guarantee to the Petitioner for the debt and liabilities of the Borrower under the Loan Agreement, including repayment for principal of the Loan,accrued interests and accrued damages.

…

6. The Borrower fails to repay the principal of the Loan in an amount of US$40,000,000.00 (‘Outstanding Principal’) or any part thereof and all interests and damages accrued from 31 December 2017 onwards. Up to 8 June 2018, the accrued interests is in the sum of US$1,836,529.70 (‘Outstanding Interests’)and the accrued damages is in the sum of US$9,797,030.43(‘Outstanding Damages’). Further, a daily interest of US$10,958.90 on the Outstanding Principal will be accrued each day and further damages will be accrued at a daily rate of 0.15% on any outstanding sums under the Loan Agreement (including the Outstanding Principal and any outstanding interests) until the date of full repayment.

7. Under the Guarantee, the Debtor as guarantor has the liability to repay the full outstanding amount under the Loan Agreement, including the Outstanding Principal, Outstanding interests and Outstanding Damages.

…

9.  On 10 August 2018, three statutory demands (‘Statutory Demands’) for the Outstanding Principal, Outstanding Interests and Outstanding Damages calculated as of 8 June 2018 respectively were served upon the Debtor by advertising three notices of the same respectively once in the Sing Tao Daily, a Chinese newspaper widely circulating in Hong Kong in respect of the above-mentioned Debt. To the best of our knowledge and belief, the Statutory Demands (or any of them) have neither been complied with nor set aside in accordance with the Rules, and no application to set them(or any of them) aside is outstanding.”

2.  There is no dispute about the Outstanding Principal, Outstanding Interests and Outstanding Damages.  Mr Yuen SC, who appeared for the Debtor, very fairly, did not dispute that the Debtor signed the Guarantee.  He submitted, nevertheless, there are substantial disputes as to the validity of the Guarantee on two principal grounds:

  (1)  The Debtor signed the Guarantee under the undue influence of her husband, of which the Petitioner had notice;

  (2)  The Guarantee was executed in the wrong form, namely, a corporate form.  Hence, the Guarantee provides for liability of a company, instead of the personal liability of the Debtor.

APPLICABLE LEGAL PRINCIPLES

3.  It is well established that the burden is on a debtor to demonstrate to the Court with sufficiently precise factual evidence that there is a bona fide dispute of the petitioning debt on substantial grounds.  It is not enough for a debtor to simply raise some factual disputes and submit that such factual disputes have to be resolved in a trial.

4.  In Re Leung Cherng Jiunn (debtor) [2016] 1 HKLRD 850, Kwan JA (as she then was) at §27 said:

“ 27. I would endeavour to state my understanding of the law in this way:

(1) For the purpose of establishing a bona fide dispute on substantial grounds, I could discern no meaningful difference between a bankruptcy petition and a winding-up petition, notwithstanding the material differences in procedure between the two as noted by the Judge at [20] and r.70 of the Bankruptcy Rules which has no equivalent in winding-up. See Re Malcolm Westley Casselle at [24].

(2) The wording of O.14, r.3 is different from the test of bona fide dispute on substantial grounds. The test of bona fide dispute involves different considerations in respect of the evidence. The difference may not be significant, but there is still a difference. See ICS Computer at 183F and Re Yuen Mun Wa at [11].

(3) The distinction between the two tests lies in establishing a bona fide defence (for resisting a petition) and a fair probability of establishing a bona fide defence (for obtaining leave to defend a civil action, whether unconditionally or with condition). So in that sense, the threshold test for resisting a petition would require a higher standard. See ICS Computer at 183G–J and Re Grandfield Pacific Hotel Ltd at [11].

(4) Notwithstanding this difference, it is fair to say that the threshold tests in both situations are broadly similar, as noted in the two recent English authorities. If a petition is dismissed on the basis there is a bona fide dispute on substantial grounds, it would be most unlikely that summary judgment could be obtained. Most probably, the defendant would be given leave to defend, whether unconditionally, or with conditions imposed if his defence is regarded as shadowy. Conversely, where a defendant has obtained leave to defend,unconditionally or with conditions, it would be most unlikely that a petition would be granted. See Markham v Karsten at [45]. The statements of Rogers J in ICS Computer at 183E–F did not suggest otherwise.

(5) This is not to say it should be easier for a creditor to succeed in a petition than in seeking summary judgment in a civil action, notwithstanding the higher threshold test for resisting a petition in the sense as explained above. It is well established that petitions are not meant to be used for the purpose of debt collection and the winding-up or bankruptcy jurisdiction of the court would be exercised only in very clear cases. Where oral evidence is required to decide a real and substantial dispute of fact, the court will dismiss the petition. And if there is an abuse of process in invoking the jurisdiction of the court in an improper manner, the petitioning creditor may be ordered to pay indemnity costs.” (emphasis added)

5.  I am of the view that the key is for the Court to assess whether there are real and substantial disputes of fact which render the summary procedure of a bankruptcy and/or winding up proceedings unsuitable for the determination of such real and substantial disputes of fact. In such scenario, the validity of petitioning debt would need to be fully investigated in a trial.  However,peripheral and/or disputes of fact which do not go to the foundation of the petitioning debt are normally distractions and are irrelevant in determining whether there are bona fide disputes to the petitioning debt on substantial grounds.

UNDUE INFLUENCE

6.  The Debtor had a successful career as a famous artiste.

7.  From the age of 19, the Debtor took up jobs as a model.  In 2007, at the age of 24, she went to the United States of America to attend a UCLA extension course for two years.  In 2009, upon completion of the said English course, she returned to the Mainland, China to commence her career as a film artiste.

8.  In January 2012, she attended the 69^th Golden Globe Awards ceremony in the USA in her capacity as an actress in The Flowers of War,which was nominated for “Best Foreign Language Film”. 

9.  In the same year, she married Mr Wang Yonghong (“Mr Wang”) who was a high-profile and successful businessman before the collapse of his business empire.  He was on Forbes’ “China Rich List 2015”.

10.  There is no dispute that the Debtor, after marriage, depended on her husband financially.  Mr Maurellet SC for the Petitioner referred to two specific incidents:

  (1)  In May 2017, Mr Wang participated in the auction of a double-dragon celadon-glazed amphora organised by Christie’s. He won the bid for the Debtor by offering HK$140 million with buyer’s premium.  

  (2)  Mr Wang purchased a property at Sassoon Road and the Debtor was appointed as a director of the company owning the property on 21 December 2016.    

11.  In May 2017, Mr Wang approached the Petitioner for a loan of US$40 million for his company, Shu Zhi Hong Kong Trading Co, Limited (the “Borrower”).  The purpose of the loan was to finance the purchase of Aman Hotel.

12.  The Petitioner, after its due diligence exercise, decided to lend the sum to the Borrower with one of the conditions that the Debtor, being Mr Wang’s wife, had to be one of the guarantors.  This condition is clearly stated in the execution notice dated 29 June 2017.

13.  On 30 June 2017, the Debtor personally executed the Guarantee.  The Loan Agreement and the Guarantee were signed and executed in Mr Wang’s office in Beijing in the presence of Mr Wang, the Debtor, Mr Ye Huanjiang (a notary), Mr Sun Zihao and some other staff members of the Petitioner.   

14.  It is of great importance that there is a transcript of the interview (“the Transcript”) between the Debtor and the notary (“公證詢問筆錄”) which was signed and verified by the Debtor to be true and accurate.  In the Transcript, the Debtor confirmed that she acted voluntarily and fully understood that she would be liable if the Borrower defaulted.

15.  The Petitioner remitted US$40 million to the Borrower on 30 June 2017.  However, the Borrower has failed to repay the principal of the loan and the interests and damages accruing from 31 December 2017 onwards.

Legal principles in relation to undue influence

16.  Legal principles in relation to undue influence are clearly set out in Mr Justice Godfrey Lam’s judgment in Bank of China (Hong Kong) Ltd v Wong Kam Ho [2014] 1 HKLRD 41.  In §§25 – 31 and §34, the learned Judge said:

“ 25. Undue influence is a doctrine of equity that enables the court to strike down a transaction where the intention to enter into it had been procured unconscionably. This may arise where the claimant had been overborne or coerced by another person,or where a person in whom the claimant had reposed trust and confidence abused that relationship in procuring the claimant’s consent. The forms that undue influence can take are infinitely varied and cannot be exhaustively set out, but they all result in the conclusion that the consent and intention of the claimant is so vitiated that it ‘ought not fairly to be treated as the expression of a person’s free will’: Etridge, supra, [7] per Lord Nicholls.

26. Whether or not a transaction was brought about by the exercise of undue influence is a question of fact. The burden of proving this fact lies with the person who asserts it, that is to say,generally, the person who claims to have been unduly influenced. As with other matters of fact, this question can be determined by the court by reference to direct evidence, such as the oral evidence of the person complaining of undue influence that she signed the document in question as a result of being subject to ‘excessive pressure, emotional blackmail or bullying’, or by inference from other, indirect evidence.

27. What facts can and should be found by inference is a question that depends on the circumstances of each case. The question is ‘whether the evidence justifies the inference that, on a balance of probabilities, the impugned transaction was procured by undue influence, that is to say, by an abuse by the allegedly dominant party of the trust and confidence reposed in him by the allegedly subservient party’: Li Sau Ying v Bank of China (Hong Kong) Ltd (2004) 7 HKCFAR 579, per Lord Scott NPJ [34].

28. In a case where a man is said to have unduly influenced his wife, the fact that the wife has reposed trust and confidence in the husband in relation to the management of her financial affairs, coupled with the fact that the transaction is one that calls for explanation, are normally sufficient basis, absent evidence to the contrary, to infer that the transaction was brought about by the husband’s undue influence over the wife. In Etridge, supra, Lord Nicholls said [14]:

Proof that the complainant placed trust and confidence in the other party in relation to the management of the complainant’s financial affairs, coupled with a transaction which calls for explanation, will normally be sufficient,failing satisfactory evidence to the contrary, to discharge the burden of proof. On proof of these two matters the stage is set for the court to infer that, in the absence of a satisfactory explanation, the transaction can only have been procured by undue influence. In other words, proof of these two facts is prima facie evidence that the defendant abused the influence he acquired in the parties’ relationship. He preferred his own interests. He did not behave fairly to the other. So the evidential burden then shifts to him. It is for him to produce evidence to counter the inference which otherwise should be drawn.

29. The concept of a transaction that calls for explanation has been put in different ways, such as a transaction that is ‘not readily explicable by the relationship of the parties’ (Etridge, supra, [21],per Lord Nicholls), a transaction that is ‘not to be reasonably accounted for on the ground of friendship, relationship, charity, or other ordinary motives on which ordinary men act’ (Allcard v Skinner(1887) LR 36 Ch D 145, 185, per Lindley LJ; Etridge, supra, [22], [29], per Lord Nicholls), and a transaction that ‘constituted an advantage taken of the person subjected to the influence which,failing proof to the contrary, was explicable only on the basis that undue influence had been exercised to procure it’ (National Westminster Bank plc v Morgan [1985] AC 686, 704, per Lord Scarman; Etridge, supra, [25], [29], per Lord Nicholls). As will be seen, it is a concept quite separate and different from the question whether the third party is put on inquiry, which arises at the second stage of the analysis.

30. Many of the cases that have come before the courts in both the United Kingdom and Hong Kong concern guarantees or securities provided by wives for the husbands’ business debts. On this type of cases, Lord Nicholls said in Etridge, supra, [27],[30] and [31]:

[27] The problem has arisen in the context of wives guaranteeing payment of their husband’s business debts.

…

[30] I do not think that, in the ordinary course, a guarantee of the character I have mentioned is to be regarded as a transaction which, failing proof to the contrary, is explicable only on the basis that it has been procured by the exercise of undue influence by the husband. Wives frequently enter into such transactions. There are good and sufficient reasons why they are willing to do, despite the risks involved for them and their families. They may be enthusiastic. They may not. They may be less optimistic than their husbands about the prospects of the husbands’ businesses. They may be anxious, perhaps exceedingly so. But this is a far cry from saying that such transactions as a class are to be regarded as prima facie evidence of the exercise of undue influence by husbands.

[31] I have emphasised the phrase ‘in the ordinary course’. There will be cases where a wife’s signature of a guarantee or a charge of her share in the matrimonial home does call for explanation. Nothing I have said above is directed at such a case.

31. Similarly, in Etridge, supra, at [159] and [162], Lord Scott said:

[159] … In cases where experience, probably bitter, had led a wife to doubt the wisdom of her husband’s financial or business decisions, I still would not regard her willingness to support those decisions with her own assets as an indication that he had exerted undue influence over her to persuade her to do so. Rather I would regard her support as a natural and admirable consequence of the relationship of a mutually loyal married couple. The proposition that if a wife, who generally reposes trust and confidence in her husband, agrees to become surety to support his debts or his business enterprises a presumption of undue influence arises is one that I am unable to accept. To regard the husband in such a case as a presumed ‘wrongdoer’ does not seem to me consistent with the relationship of trust and confidence that is a part of every healthy marriage.

…

[162] In the surety wife cases it should, in my opinion, be recognised that undue influence, though a possible explanation for the wife’s agreement to become surety,is a relatively unlikely one. O’Brien itself was a misrepresentation case. Undue influence had been alleged but the undoubted pressure which the husband had brought to bear to persuade his reluctant wife to sign was not regarded by the judge or the Court of Appeal as constituting undue influence. The wife’s will had not been overborne by her husband. Nor was O’Brien a case in which, in my opinion, there would have been at any stage in the case a presumption of undue influence.

…

34.  It seems to me that even if one accepts this evidence at face value, it does not demonstrate any undue influence exercised by Yeung.  It is said that Lee completely trusted Yeung,and that she signed the document because Yeung told her to do so,without knowing what it was that she signed.  I accept there was a relationship of trust and confidence.  But such trust is not unusual between husband and wife.  It is as much in Hong Kong as in the United Kingdom ‘a part of every healthy marriage’ (per Lord Scott in Etridge, supra, [159]).  In my opinion, the transaction is not one that calls for explanation in the sense described in [29] above. The business of Wing Fat was the business of Yeung (jointly with Wong), who was the breadwinner of the family.  What Yeung earned from that business would be the income of the family.  Lee has a real interest in seeing that business prosper, and therefore in providing her guarantee and security over the Property required for the borrowing necessary for the business.  The Property, which they jointly held, was acquired with funds earned from the husband’s previous business and had been charged before more than once for bank financing to support [the] husband’s business.  In the transaction in question, Yeung, the husband, also gave a guarantee for Wing Fat’s debts in favour of the bank.  The fortunes of the husband and wife were tied together.”    

  ( emphasis added)

17.  I am of the view that the above legal principles apply aptly to the facts of the present case.  The Debtor executed the Guarantee voluntarily and was not under any undue influence from her husband, Mr Wang, albeit that naturally she reposed trust and confidence in him.  There is nothing in the transaction which calls for explanation.

18.  First, the evidence shows that the Debtor made an informed decision to sign and execute the Guarantee without any impropriety from her husband.  I agree that the Petitioner had taken reasonable steps to ensure that the Debtor understood the content of the Guarantee, the extent of her liabilities, before she willingly signed the Guarantee:

  (1)  Before the Debtor signed the Guarantee, Mr Sun of the Petitioner explained to her the content of the Loan Agreement and the Guarantee.  Mr Sun explained to her that, if the Borrower defaulted, she would be personally liable.  She knew that the loan was in the sum of US$40 million and for a period of six months.

  (2)  The Guarantee is a simple document in Chinese. The Debtor was given ample time to read it before she executed the same. Indeed, she had read the document for quite a long time before she signed it.

  (3)  The Debtor signed and submitted to the notary the application form for notarization at the time of signing of the Guarantee on 30 June 2017 in her husband, Mr Wang’s office.

  (4)  The notary confirmed that the content and effect of the Guarantee was explained to the Debtor before she signed the same voluntarily.

  (5)  The Petitioner’s case is corroborated by the notarial certificate and the Transcript which show that:

  (a)  the Debtor understood that she would be liable if the Borrower defaulted in its repayment obligations; and

  (b)  the Debtor acted voluntarily.

  (6)  Significantly, the Transcript recorded, inter alia, that:

  (a)  The Debtor confirmed that she understood that the legal meaning and effect of the Guarantee, i.e., if the Borrower defaults, the creditor can demand the guarantor to pay directly.

  (b)  The Debtor voluntarily executed the Guarantee because “according to the risk management need of the creditor,a guarantee from me is required, I become a guarantor voluntarily”.

19.  I agree with Mr Maurellet SC that the notarial certificate and the Transcript are reliable contemporaneous documents and they prove that the Debtor assumed the liability of a guarantor voluntarily.  There is no room for the operation of any undue influence by her husband, Mr Wang.

20.  Indeed, other than the fact that the Debtor reposed trust and confidence in her husband, the Debtor has not alleged or produced any evidence to show that she was bullied or pressurised to sign the Guarantee such that her signature on the Guarantee did not signify her informed consent or expression of free will.  That really should be the end of this defence.

21.  Secondly, Mr Maurellet SC stressed and I agree that the Debtor clearly understood the content and effect of the Guarantee:

  (1)  She had a successful career as an artiste.  For example, in January 2012, she attended the 69^th Golden Globe Awards ceremony in the USA in her capacity as an actress in The Flowers of War,which was nominated for “Best Foreign Language Film”.

  (2)  The Guarantee was a short and simple document in simplified Chinese.  She had read the Guarantee carefully before signing the same.

  (3)  The content and effect of the Guarantee had been explained to her.

22.  Thirdly, the Debtor did have a practical interest in executing the Guarantee to support the business of her husband.  There is no dispute that the Debtor benefitted from the success of her husband, and the fortunes of the Debtor and her husband were and are inextricably intertwined:

  (1)  The purpose of the loan was to finance the purchase of Aman Hotel.  The Debtor would inevitably benefit from the success of her husband’s businesses.

  (2)  In May 2017, her husband participated in the auction of a double-dragon celadon-glazed amphora organised by Christie’s.

  (3)  The Debtor had an account with Christie’s, which she used “for bidding handbags and jewelries in auctions (typically with prices below HK$1 million.”  There is no suggestion that her purchases were not financed by her husband.

  (4)  Mr Wang also financed the purchase of a property at Sassoon Road for the benefit of, inter alia, the Debtor.

23.  I agree that the execution of the Guarantee did not call for any explanation.

24.  Mr Yuen SC for the Debtor submitted that the present case is not the typical case where the wife agreed to mortgage a jointly owned property to support her husband’s business.  The facts of the present case are more complex in that the Debtor was asked to stand as guarantor just one day before the Guarantee were to be signed and she was assuming a personal liability for the debts of the Borrower.  Despite the very able and eloquent submissions of Mr Yuen SC, I am of the view that the suggested differences are immaterial.  The key is that the Debtor had clear knowledge and full understanding of the content and effect of the Guarantee and she, for perfectly explicable and may be admirable reasons, voluntarily executed the Guarantee.  There was no emotional blackmail, bullying or excessive pressure exerted by her husband.

THE FORM OF THE GUARANTEE

25.  Having decided that, as a matter of substance, the Debtor voluntarily signed the Guarantee with an informed consent, strictly speaking,it is not necessary for this Court to deal with the issue of whether the form of the Guarantee signed by the Debtor was the correct form or not as the correct approach should be for the Court to take into account all relevant evidence, including the notarial certificate and the Transcript, and then decided, as a matter of fact, what the Debtor had agreed to.

26.  In any event, this Court will deal with the Debtor’s argument that there were three versions of guarantees produced by the Petitioner.  The first version was not signed by her but by her husband.  Mr Maurellet SC indicated to this Court that that was a mistake and no reliance is placed on that version of the guarantee.

27.  The second version is the Guarantee that the Petitioner relies upon in the present Petition.  The Debtor argued that this version is a corporate rather than a personal form because it provides that:  

「為了確保甲方適當履行《借款合同》項下義務，當甲方發生借款合同違約行為時，本公司自願向乙方提供無限連帶責任彌償和擔保……」 (emphasis added)

28.  It is common ground that an incorrect form, i.e., the corporate form, was mistakenly included and subsequently signed by the Debtor and notarised.  The simple issue is whether by personally signing on a corporate form, the Debtor’s liability is thereby absolved.

29.  The parties have no dispute that the Guarantee is governed by Hong Kong laws.  This is because the Loan Agreement is governed by Hong Kong laws, and in the premises, the Guarantee which is inextricably related to the Loan Agreement is also governed by Hong Kong laws.  The learned authors of The Modern Contract of Guarantee (3^rd ed) at §14-069 stated:

“ In the absence of an express choice of law, the courts are likely to infer that the proper or applicable law of the guarantee is that of the principal contract, on the ground that the same law should govern the principal and the secondary obligations.”

30.  Applying Hong Kong laws to the construction of the Guarantee, I have no doubt that the Debtor assumed personally liability by signing the Guarantee, albeit in corporate form.  There can be no doubt that the Debtor was the intended guarantor, and that she was not acting as agent on behalf of any company.  Indeed, none has been suggested. The Debtor’s reliance on the case of Lee Fu Wing v Yan Po Ting Paul [2009] 5 HKLRD 513 at §107 per DHCJ Thomas Au (as he then was), with respect, is misplaced.  The Debtor was not contracting for a disclosed but unnamed principal.  At all material times, she acted in her personal capacity.  She signed the Guarantee with full knowledge that she agreed to assume personal liability. This is made abundantly clear from the notarial certificate and the Transcript.

31.  In any event, the Petitioner has also disclosed yet another version of the Guarantee which the Debtor signed in the correct form albeit that this version was not notarised.  The validity of the Guarantee, as a matter of Hong Kong laws, does not depend on whether the same is notarised or not.

32.  In paragraph 8 of the Debtor’s 3^rd Affirmation, she deposed that:

“ As I stated in paragraph 20 of my 2^nd Affirmation (which was made before the Petitioner’s solicitors informed us that the original of the Purported Non-notarised Guarantee was no longer available),the signature on the Purported Non-notarised Guarantee does not look like my usual signature.” (emphasis added)

33.  Mr Maurellet SC for the Petitioner submitted that the Debtor has chosen her words advisedly.  She did not on oath positively state that the signature was not hers.  It is the Debtor’s duty to adduce sufficiently precise factual evidence to demonstrate to the Court that she has a bona fide dispute to the petitioning debts on substantial grounds.  The Debtor cannot discharge such duty by merely making an allegation that “the signature on the Purported Non-notarised Guarantee does not look like my usual signature” and requiring the matter to be resolved in a trial.

34.  I am of the view that the documentary evidence (including the notarial certificate and the Transcript) clearly demonstrate that the Debtor signed the Guarantee with full knowledge and agreed that she would assume personally liability if the Borrower defaulted its repayment obligations.  The Borrower has defaulted and the Debtor has to discharge her personal liability qua guarantor.  The facts of the present case are very simple and the answer is clear.

DISPOSITION

35.  For all the reasons stated above, I make the following orders:

  (1)  A bankruptcy order be made against the Debtor;

  (2)  A costs order nisi that the Debtor is to pay the costs of and incidental to the Petition to the Petitioner, on a party to party basis, with a certificate for two counsel, to be taxed if not agreed. The costs order nisi will be made absolute unless the parties take out applications to vary the same within 14 days from the date hereof.

36.  As for the Summons dated 22 August 2019, since this Court has relied on the 3^rd Affirmation of the Debtor, formal leave will be given to the Debtor to file her 3^rd Affirmation with costs to the Petitioner to be taxed if not agreed.  Service of the same is dispensed with.

37.  Finally, it remains for me to thank Mr Maurellet SC and Mr Ng for the Petitioner and Mr Yuen SC and Mr Ko for the Debtor for the able and helpful assistance they rendered to this Court.