CHAN PUI SZE AND MAK HAU YIN (THE JOINT AND SEVERAL TRUSTEES OF THE PROPERTY OF THE BANKRUPT) v. WANG JUE

HCMP 1655/2017

[2024] HKCFI 2491

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 1655 OF 2017

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J U D G M E N T

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A.  INTRODUCTION

1.  The Plaintiffs (“the Trustees”) are the trustees in bankruptcy of Qin Jun (“Mr Qin”).  They claim that the transactions pursuant to the Interspousal Transfer Grant Deed of 7th August 2013 (“the 1st Interspousal Transfer Grant Deed”) and the Interspousal Transfer Grant Deed of 8th August 2013 (“the 2nd Interspousal Transfer Grant Deed”) were transactions at an undervalue under s.49 Bankruptcy Ordinance (Cap.6) (“the BO”), and should be declared void.  By these two Interspousal Transfer Grant Deeds, Mr Qin transferred his interests in two properties situated in the USA (“the US Properties”) to the Defendant, his wife (“Ms Wang”).  I will refer to the impugned transactions as “the Transfers”.

2.  Ms Wang says that all along, she was the beneficial owner of the US Properties pursuant to a common intention with Mr Qin, so that the Transfers simply gave effect to this intention; alternatively, the Transfers were made for good consideration.

3.  Ms Wang further claims that Mr Qin was in fact solvent at the time of the Transfers.

4.  Finally, Ms Wang objects to the relief sought by the Trustees on a number of grounds, including the claim that there is insufficient connection between her and Hong Kong.

B.  THE FACTUAL BACKGROUND

5.  Unless otherwise indicated, the following facts are undisputed or indisputable, and I find them as facts.  Matters from the parties’ agreed statement of facts and chronology have also been incorporated.

B1.  The parties

6.  Mr Qin was formerly the Chairman, Chief Executive Officer and an executive director of Up Energy Development Group Limited (“Up Energy”), a company previously listed on the Main Board of the Stock of Exchange of Hong Kong Limited.  Up Energy has since been wound up and delisted.

7.  Mr Qin was adjudged bankrupt by an order dated 27th July 2016 in HCB 3231/2016, on a petition presented by Win Wind Resources Limited (“Win Wind”).  The petition debt was the principal amount of $45m under a loan agreement dated 29th September 2014 between Win Wind as creditor, and Mr Qin as debtor.

8.  Ms Wang is the Defendant in these proceedings.  She is the wife of Mr Qin.  It is Ms Wang’s case that she and Mr Qin officially separated in August 2013.

9.  Mr Wang Mingquan is Ms Wang’s father (“Father”).

10.  The Trustees were appointed as the joint and several trustees of the property of Mr Qin pursuant to a resolution passed at a general meeting of Mr Qin’s creditors on 26th August 2016.

B2.  The J&J Trust

11.  Pursuant to a deed of settlement dated 22nd February 2010, Father, as settlor, established a discretionary trust known as the J&J Trust. Father, Mr Qin, Ms Wang, and the issue of Mr Qin and Ms Wang were listed as the beneficiaries of the J&J Trust.

12.  The only amounts distributable from the Trust Fund (as defined in the trust deed) during the life of Father were amounts distributable to Father or to such other beneficiaries as Father might direct in writing (cl.3(d)).  Once any part of the Trust Fund had been applied for the benefit of any person, it would be the sole, separate and exclusive property of the person in question (cl.27).

13.  Father had the power to terminate the trust at any time and to vest or revest in himself title to all or any part of the capital or income of the Trust Fund.

B3.  The US Properties

14.  By a Grant Deed dated 22nd January 2010 and notarised on 25th January 2010, Mr Qin and Ms Wang became owners, as joint tenants, of the property located at 2430 Ross Road, Palo Alto, California (“the Ross Road Property”).  It is Ms Wang’s case that Mr Wang in fact never had any interest in the Ross Road Property at all.

15.  On 25th January 2010, Ms Wang remitted funds in the sum of US$1,540,110.23 to First American Title Company, USA, to acquire the Ross Road Property.^[1]  Ms Wang’s bank statements show that the funds had been remitted by Father to Ms Wang a few days earlier.  It was suggested in cross-examination of Ms Wang that Father may have obtained the funds from Up Energy Holding Limited (“UE Holding”), but Ms Wang did not know the source of her father’s funds, and the Trustees had no positive evidence on the point.  I accept that the funds originated from Ms Wang and that she was given them by her father.

16.  By a Grant Deed dated 29th March 2010 and notarised on 1st April 2010, Mr Qin became the sole owner of the property located at 3680 Paradise Drive, Tiburon, California (with Assessor Parcel Number (“APN”) 039-231-15 (“Parcel One”)) (“the Paradise Drive Property”). It is Ms Wang’s case that Mr Qin in fact never had any interest in the Paradise Drive Property at all.

17.  According to the closing statement issued by the title / escrow company Old Republic Title Company (“ORTC”), Ms Wang paid an initial deposit of US$500,000 for the acquisition of the Paradise Drive Property; the amount was subsequently refunded.  On 31st March 2010, Father remitted US$7,835,000 to Old Republic Title Company for the acquisition of the Paradise Drive Property.  These funds in turn came from Up Energy, which at the time was ultimately owned by the J&J Trust.  Given the terms of the J&J Trust, once the funds had been distributed to Father, they would have been his sole property.  Whilst the Trustees’ stance (in their witness statement) was that, given that Mr Qin and Ms Wang were beneficiaries of the J&J Trust, so that it could be inferred that Father had intended to benefit both of them, it seems to me that given the terms of the J&J Trust, all that can be inferred is that the funds, once distributed to Father, belonged solely to him, and then to Ms Wang when they were transferred to her; at trial, the Trustees did not seriously seek to argue otherwise.  I therefore accept that the funds for the acquisition of the Paradise Drive Property were provided by Ms Wang.

18.  Ms Wang executed a Quitclaim Deed dated 25th March 2010 and notarised on 31st March 2010, to “remise(s), release(s) and forever quitclaim(s)” to Mr Qin the Paradise Drive Property as “his sole and separate property” (“the Quitclaim Deed”).

19.  Following a lot line adjustment in or around 2011, Mr Qin acquired from Sanitary District No.5 of Marin County a parcel of land adjacent to the Paradise Drive Property and identified as APN 039-231-10 (“Parcel Two”).  In or around 2012, this parcel of land and the Paradise Drive Property were given a combined APN of 039-231-19.

B4.  Mr Qin’s financial position

20.  Mr Qin had a substantial indirect interest in at least 35% of the issued shares of Up Energy through Up Energy Group Limited (“UE Group”).  UE Group was the controlling shareholder of Up Energy.

21.  On 18th January 2011, Up Energy issued three tranches of convertible notes.

22.  On 29th March 2011:

22.1  UE Group entered into a Convertible Notes Purchase Agreement with Credit Suisse AG (“Credit Suisse”) for the sale of two tranches of the convertible notes (“the Convertible Notes”) at a consideration of $195m;

22.2  Credit Suisse, UE Group and Mr Qin entered into a Deed of Undertaking (“the Deed of Undertaking”) pursuant to which: (a) Credit Suisse was granted an option to require UE Group to purchase some or all of the Convertible Notes on 2nd April 2013 at a consideration of $234m, and (b) Mr Qin guaranteed to Credit Suisse the punctual performance of UE Group’s obligations thereunder; and

22.3  Mr Qin entered into a written personal guarantee with Credit Suisse in substantially the same terms as the Deed of Undertaking.

23.  On 19th December 2012, Mr Qin provided an irrevocable guarantee for the performance of the obligations of Up Energy and its subsidiaries in relation to agreements with Cinda Financial Leasing Company Limited (“Cinda”) under which Cinda provided funds amounting to $296m and $59m to Up Energy’s subsidiaries Up Energy (Fukang) Coking Ltd and Up Energy (Fukang) Coal Wishing Ltd respectively.

24.  On 2nd April 2013, Credit Suisse exercised its option under the Deed of Undertaking, requiring Up Energy Group to repurchase all of the Convertible Notes.

25.  On 20th May 2013, Credit Suisse issued demands to Mr Qin to perform his guarantee obligations.

26.  On 30th May 2013, Credit Suisse commenced proceedings against UE Group and Mr Qin in the English Commercial Court for the sum of $234m.  Ms Wang has disputed the inclusion of this date in the narrative, as the Statement of Claim pleads 14th August 2013 as the date of commencement of proceedings.  However, the Settlement Deed between Credit Suisse, Mr Qin and UE Group dated 20th April 2015 recites the date of 30th May 2013 as the date of commencement of the English proceedings; it is the Particulars of Claim in those proceedings which were dated 14th August 2013.  Ms Wang objected that she was not party to the Settlement Deed, but she has not produced evidence (for example, from Mr Qin who was a party to it) to suggest that the date of commencement was not 30th May 2013.

27.  On 28th June 2013, Up Energy announced its annual results for the year ended 31st March 2013, showing a trading loss of $60.376m.

28.  On or around 9th July 2013, Baosteel Resources International Company Limited (“Baosteel”) presented a bankruptcy petition against Mr Qin (“the Baosteel Bankruptcy Petition”) and a winding-up petition against UE Group.  According to an announcement of Up Energy dated 17th July 2013, the basis of the Baosteel Bankruptcy Petition was that Mr Qin refused to pay the sum of $3.875m pursuant to the terms of a contract dated 23rd March 2011 in respect of certain convertible notes of Up Energy then held by Baosteel with an aggregate principal sum of $155m.

29.  As at 30th September 2013, Mr Qin (via Up Energy Capital Limited (“UE Capital”)) beneficially owned 14,046,000 shares and 166,828,439 derivative interests in Up Energy.

30.  On 5th November 2013, Baosteel proposed to have the Baosteel Bankruptcy Petition dismissed with no order as to costs.  At trial, Ms Chan Pui Sze (“Ms Chan”), who gave evidence for the Trustees, accepted that this was the case, but pointed out that Baosteel did so because there was a binding arbitration clause precluding the court’s jurisdiction.  A letter from Baosteel’s solicitors of 5th November 2023 proposed the dismissal on the express basis of maintaining that no genuine dispute of the debt owed had been raised.

31.  On 21st November 2013, Credit Suisse’s application for summary judgment was dismissed by the English Commercial Court.  The Trustees’ case is that the substantive action then continued and the parties were given permission to amend their pleadings.  As referred to above, the action was eventually compromised in the Settlement Deed of 20th April 2015, pursuant to which (amongst other things) Mr Qin’s liability as guarantor under the Deed of Undertaking was discharged.

32.  Between 1st April 2013 and 31st March 2014, Mr Qin’s annual salary as the CEO and executive director of Up Energy was $6.005m.  Between 1st April 2014 and 31st March 2015, Mr Qin’s annual salary was $6.305m.

33.  On 6th May 2016, Win Wind presented a bankruptcy petition against Mr Qin in HCB 3231/2016 (“the Win Wind Petition”).

34.  On 27th July 2016, a bankruptcy order was made against Mr Qin.

B6.  The Transfers (of the US Properties)

35.  By the 1st Interspousal Grant Deed dated 7th August 2013 and notarised on 26th August 2013, Mr Qin transferred his interest in the Ross Road Property to Ms Wang.  There is a dispute between the parties as to whether any consideration was given for the transfer.

36.  By the 2nd Interspousal Grant deed dated 8th August 2013 and notarised on 27th August 2013, Mr Qin transferred his interest in the Paradise Drive Property (identified as APN-039-231-19, that is, the combined Parcel One and Parcel Two) to Ms Wang.  There is a dispute between the parties as to whether any consideration was given for the transfer.

37.  It is Ms Wang’s case that consideration was given for the Transfers as on 2nd August 2013, she and Mr Qin entered into a marital settlement agreement (“the Marital Settlement Agreement”) to delineate their respective rights as to their children, financial support, property and other matters upon their official separation.  The Trustees say that there was no genuine separation and that the Marital Settlement Agreement was a sham.

38.  The Marital Settlement Agreement provided, in part, as follows.

38.1  Clause 5 was headed “Property”.  Under cl.5.01(A), no property was identified as the property belonging solely to Mr Qin.  Under cl.5.01(B), the US Properties (amongst others) were identified as Ms Wang’s “separate properties”.

38.2  Clause 10.01 provided for a release of claims by each of the parties against the other.

38.3  Clause 10.09 provided that upon the demand of a party, the other would execute, acknowledge or deliver any instrument, furnish any information, or perform any other acts reasonably necessary to carry out the provisions of the agreement.

C.  TRANSACTIONS AT AN UNDERVALUE – THE STATUTORY PROVISIONS

39.  The relevant provisions of the BO in the present case are as follows.

“49. Transactions at an undervalue

(1) Subject to this section and sections 51 and 51A, where a debtor is adjudged bankrupt and he has at a relevant time (defined in section 51) entered into a transaction with any person at an undervalue, the trustee may apply to the court for an order under this section.

(2) The court shall, on such an application, make such order as it thinks fit for restoring the position to what it would have been if that debtor had not entered into that transaction.

(3) For the purposes of this section and sections 51 and 51A, a debtor enters into a transaction with a person at an undervalue if —

(a) he makes a gift to that person or he otherwise enters into a transaction with that person on terms that provide for him to receive no consideration;

…

51. Relevant time under sections 49 and 50

(1) Subject to subsections (2) and (3), the time at which a debtor enters into a transaction at an undervalue or gives an unfair preference is a relevant time if the transaction is entered into or the unfair preference given —

(a) in the case of a transaction at an undervalue, at a time in the period of 5 years ending with the day of the presentation of the bankruptcy petition on which the debtor is adjudged bankrupt;

…

(2) Where a debtor enters into a transaction at an undervalue or gives an unfair preference at a time mentioned in subsection (1)(a), (b) or (c) (not being, in the case of a transaction at an undervalue, a time less than 2 years before the end of the period mentioned in subsection (1)(a)), that time is not a relevant time for the purposes of sections 49 and 50 unless the debtor —

(a) is insolvent at that time; or

(b) becomes insolvent in consequence of the transaction or preference,

but the requirements of this subsection are presumed to be satisfied, unless the contrary is shown, in relation to any transaction at an undervalue which is entered into by a debtor with a person who is an associate of his (otherwise than by reason only of being his employee).

(3) For the purposes of subsection (2), a debtor is insolvent if —

(a) he is unable to pay his debts as they fall due; or

(b) the value of his assets is less than the amount of his liabilities, taking into account his contingent and prospective liabilities.

51A. Orders under sections 49 and 50

(1) Without prejudice to the generality of section 49(2) or 50(2), an order under either of those sections with respect to a transaction or unfair preference entered into or given by a debtor who is subsequently adjudged bankrupt may (subject as follows) —

(a) require any property transferred as part of the transaction, or in connection with the giving of the unfair preference, to be vested in the trustee as part of the estate;

…

51B. Meaning of associate

(1) For the purposes of sections 49 to 51A, any question whether a person is an associate of another person shall be determined in accordance with this section.

(2) A person is an associate of a debtor if that person is the debtor’s spouse, or is a relative, or the spouse of a relative of the debtor or his spouse.

…

(7) For the purposes of this section, a person is a relative of a debtor if he is that debtor’s brother, sister, uncle, aunt, nephew, niece, lineal ancestor or lineal descendant …

and references in this section to a spouse shall include a former spouse.”

40.  In the present case, the Transactions took place within five years prior to the presentation of the Win Wind Petition, and were entered into between Mr Qin and his wife, so that there is a presumption, by virtue of s.51(2), that Mr Qin was insolvent at the time.

D.  THE ISSUES

41.  The parties framed the issues as follows.

41.1  Issue 1: Whether Ms Wang was all along the sole beneficial owner of the US Properties.

41.2  Issue 2: If the answer to Issue 1 is “no”, whether the Transfers were made at an undervalue – that is, whether they were made for no consideration (as the Trustees allege), or whether they were made in consideration of (a) the Marital Settlement Agreement or (b) Ms Wang’s forbearance from petitioning for divorce and/or bringing contentious proceedings against Mr Qin.

41.3  Issue 3: If the answer to Issue 2 is “yes”, whether Mr Qin was insolvent at the time of the Transfers or became insolvent in consequence of the same.

41.4  Issue 4: If the answer to Issue 3 is “yes”, what, if any, relief ought to be granted under s.51A BO.

E.  PRINCIPLES APPLICABLE TO THE MAKING OF FACTUAL FINDINGS

42.  I first set out the principles to which I have had regard in assessing the evidence.

E1.  The legal principles relating to assessment of credibility

43.  Ms Wang’s case depends very much on the credibility of her evidence.  In assessing such evidence, I have had regard to the principles summarised in Hui Cheung Fai v Daiwa Development Ltd, unreported, HCA 1734/2009, 8 April 2014 at [77] to [83], per Deputy High Court Judge Eugene Fung SC.  In particular:

43.1  contemporaneous written documents and documents which came into existence before the problems in question emerged are of the greatest importance in assessing credibility;

43.2  in deciding whether to accept a witness’ account, importance should also be attached to the inherent likelihood or unlikelihood of an event having happened, or the apparent logic of events;

43.3  regard should be had to the consistency of the witness’ evidence with undisputed or indisputable evidence, and the internal consistency of the witness’ evidence;

43.4  care should be taken in drawing conclusions about truthfulness and reliability solely or mainly from the appearance of a witness or from the assessment of a witness’ character;

43.5  witnesses’ credibility should be tested by reference to the objective facts proved independently of their testimony, and regard should be had to their motives and to the overall probabilities.

44.  I have also had regard to the summary of relevant principles made by HH Judge Simon Barker QC in Northampton Borough Council v Cardoza and others [2019] BCC 582:

“36. As to the considerations applicable to evaluating evidence, a useful starting point is Goff J’s (as he then was) observation as to resolving conflicts of evidence in Armagas Ltd v Mundogas SA (The Ocean Frost) [1985] 1 LL Rep 1 at p.57:

‘… Where there is a conflict of evidence … reference to the objective facts and documents, to the witnesses’ motives, and to the overall probabilities, can be of very great assistance to a judge in ascertaining the truth’.

37. Factors relevant to the evaluation of a witness’s evidence were identified by Lewison J (as he then was) in Painter v Hutchinson [2007] EWHC 758 (Ch) at [3] when addressing the unsatisfactory nature of the defendant’s approach to giving evidence. These included: evasive and argumentative answers, tangential speeches avoiding the question, blaming legal advisers for pleading, disclosure and evidence shortcomings, self-contradiction, internal inconsistency, shifting case, new evidence, and selective disclosure. This was not intended to be an exhaustive list, but it is important and very helpful.

38. A useful recent reminder or guidance on the approach to the evidence of factual witnesses, and expanding on the guidance given by Goff J in The Ocean Frost, was given by Leggatt J (as he then was) in Gestmin SGPS SA v Credit Suisse (UK) Limited [2013] EWHC 3560 (Comm). After noting that human memory is fallible and that the process of litigation and preparing for trial tends to interfere further with the reliability of human memory, particularly where a lawyer has had a hand in drafting a witness’s evidence and the witness’s memory has been refreshed by reading documents, Leggatt J concluded that the best approach for a judge to adopt at the trial of a commercial case is to base factual findings on documentary evidence and known or probable facts and the inferences to be drawn therefrom. Witness evidence, written and oral, is not without purpose; but, its principal uses are to subject the documentary record to scrutiny and to evaluate the witness’s motivations, personality and working practices.

39. In similar vein, in the recent case of Freemont (Denbigh) Ltd v Knight Frank LLP [2014] EWHC 3347 (Ch) reference was made to an article written by Bingham J (as he then was) entitled “The Judge as Juror: The Judicial Determination of Factual Issues” published in [1985] 38 Current Legal Problems 1-27. Bingham J considered the approach to deciding upon the reliability of a witness’s evidence and regarded the following to be helpful indicators of where the truth lies: the consistency of the witness’s evidence with what is agreed, or clearly shown by other evidence, to have occurred; the internal consistency of a witness’s evidence; and, the consistency of a witness’s evidence with what (s)he has said or deposed on other occasions. Bingham J considered that the credit of a witness in matters not germane to the litigation was of less assistance, and that the demeanour of a witness was on the whole not a reliable pointer to a witness’s honesty.”

45.  I have also borne in mind the reminder of K Yeung J in Siao Miu Hua v Wu Ching Kuen [2024] HKCFI 232 at [84] that:

“It is essential to have regard to the entirety of a witness’ evidence. A witness can make mistakes, but the mistakes do not necessarily affect other parts of his evidence. Likewise, a witness may lie. However, lies themselves do not mean necessarily that the entirety of that witness’ evidence is to be rejected. A witness may lie in a stupid attempt to bolster his case, but the actual case nevertheless remains good irrespective of the lie”.

E2.  The legal principles relating to the drawing of adverse inferences

46.  Preparation for the trial proceeded on the basis that Ms Wang would call Mr Qin to give evidence.  However, the day before the start of the trial, Ms Wang’s solicitors notified the Trustees’ solicitors that Mr Qin would not, after all, attend.  The letter said that two days earlier, Mr Qin had “decided not to give evidence”.  No reason was given for this.

47.  It is the Trustees’ stance that various adverse inferences ought to be drawn from Mr Qin’s failure to attend trial.  In considering whether I should do so, I have had regard to the following principles.

48.  Where a party against whom a prima facie case is established fails, without explanation, to call a witness who might reasonably be expected to give direct evidence on the matters in question, the court may draw adverse inferences against him.  See Pacific Electric Wire & Cable Co Ltd v Texan Management Ltd, unreported, CACV 90-91, 93-96/2012, 17 September 2013 at [106] to [107] (Kwan VP):

“106. The relevant principles are as set out by Brooke LJ in Wisniewski v Central Manchester Health Authority [1998] PIQR 324 at 340:

“(1) In certain circumstances a court may be entitled to draw adverse inferences from the absence or silence of a witness who might be expected to have material evidence to give on an issue in an action.

(2) If a court is willing to draw such inferences, they may go to strengthen the evidence adduced on that issue by the other party or to weaken the evidence, if any, adduced by the party who might reasonably have been expected to call the witness.

(3) There must, however, have been some evidence, however weak, adduced by the former on the matter in question before the court is entitled to draw the desired inference: in other words, there must be a case to answer on that issue.

(4) If the reason for the witness’s absence or silence satisfies the court, then no such adverse inference may be drawn.  If, on the other hand, there is some credible explanation given, even if it is not wholly satisfactory, the potentially detrimental effect of his/her absence or silence may be reduced or nullified.”

107. And as Lord Sumption has stated in Prest v Petrodel Resources Ltd [2013] UKSC 34 at §44:

“There must be a reasonable basis for some hypothesis in the evidence or the inherent probabilities, before a court can draw useful inferences from a party’s failure to rebut it. For my part I would adopt, with a modification which I shall come to, the more balanced view expressed by Lord Lowry with the support of the rest of the committee in R v IRC, ex parte TC Coombs & Co [1991] 2 AC 283, 300:

‘In our legal system generally, the silence of one party in face of the other party’s evidence may convert that evidence into proof in relation to matters which are, or are likely to be, within the knowledge of the silent party and about which that party could be expected to give evidence. Thus, depending on the circumstances, a prima facie case may become a strong or even an overwhelming case. But, if the silent party’s failure to give evidence (or to give the necessary evidence) can be credibly explained, even if not entirely justified, the effect of his silence in favour of the other party may be either reduced or nullified.

Cf Wisniewski v Central Manchester Health Authority [1998] PIQR 324, 340.’ ” ”

49.  It is for the party asking the court to draw an adverse inference to establish:

49.1  that the counter-party might have called a particular person as a witness and that person had material evidence to give on that issue;

49.2  identify the particular inference which the court is invited to draw; and

49.3  explain why such an inference is justified on the basis of other evidence that is before the court.

See Ahuja Investments Ltd v Victorygame Ltd [2021] EWHC 2382 (Ch) at [25] (HH Judge Hodge QC).

50.  Ultimately, however, the drawing of adverse inferences should not be approached in an overly technical manner, as it comes down to a matter of ordinary rationality.  See Efobi v Royal Mail Group Ltd [2021] UKSC 33, [2021] 1 WLR 3863 at [41] (Lord Leggatt, with whom Lord Hodge, Lord Briggs, Lady Arden and Lord Hamblen agreed):

“The question whether an adverse inference may be drawn from the absence of a witness is sometimes treated as a matter governed by legal criteria, for which the decision of the Court of Appeal in Wisniewski v Central Manchester Health Authority [1998] PIQR P324 is often cited as authority. Without intending to disparage the sensible statements made in that case, I think there is a risk of making overly legal and technical what really is or ought to be just a matter of ordinary rationality. So far as possible, tribunals should be free to draw, or to decline to draw, inferences from the facts of the case before them using their common sense without the need to consult law books when doing so. Whether any positive significance should be attached to the fact that a person has not given evidence depends entirely on the context and particular circumstances. Relevant considerations will naturally include such matters as whether the witness was available to give evidence, what relevant evidence it is reasonable to expect that the witness would have been able to give, what other relevant evidence there was bearing on the point(s) on which the witness could potentially have given relevant evidence, and the significance of those points in the context of the case as a whole. All these matters are inter-related and how these and any other relevant considerations should be assessed cannot be encapsulated in a set of legal rules.”

F.   WHETHER MS WANG WAS ALL ALONG THE SOLE BENEFICIAL OWNER OF THE US PROPERTIES

51.  It is Ms Wang’s case that all along, she was the true owner of the US Properties, despite the Ross Road Property being in joint names and the Paradise Drive Property being in Mr Qin’s name.  She relies primarily on the doctrine of common intention constructive trust; alternatively, the doctrine of resulting trust.^[2]

F1.  The legal principles relating to common intention constructive trust

52.  The parties were in agreement, subject to one point, that the applicable principles are those summarised in Leung Hang Lin and Li Kwai Fuk v. Lam Mei Yung [2019] HKCFI 2819 at [7] and [8] (DHCJ A Stock SC):

“7. The principles applicable to common intention constructive trusts are set out in various Hong Kong authorities, notably: Luo Xing Juan v Estate of Hui Shui See (2009) 12 HKCFAR 1 per Ribeiro PJ at §§35-38; Liu Wai Keung v Liu Wai Man [2013] 5 HKLRD 9; Mo Ying v Brillex Development Ltd [2015] 2 HKLRD 985; Primecredit Ltd v Yeung Chun Pang Barry [2017] 4 HKLRD 327.

8. In summary:

(1) The starting point is that equity follows the law. There is a presumption that the beneficial interest follows the legal interest. Where the property is registered in a defendant’s name, the plaintiff bears the burden of showing, on the balance of probabilities, that the defendant held the property on trust for him or her such that the beneficial ownership differs to the legal ownership. See: Liu Wai Keung §44; Mo Ying §5.16; Primecredit §17.

(2) The burden may be discharged by showing that: (i) there was a common intention held by the plaintiff and the property owner at the time of the purchase (or exceptionally, thereafter) that the beneficial ownership was to be different to the legal ownership; (ii) the plaintiff altered his or her position in detrimental reliance upon the common intention; and (iii) it is unconscionable for the property owner to assert ownership in reliance on the legal title. The constructive trust is constituted by the plaintiff’s detrimental reliance on the common intention and the unconscionability of the legal owner departing therefrom. See: Luo Xing Juan §38; Liu Wai Keung §46.

(3) The approach to ascertaining common intention is objective. One looks to the intention of each party which was reasonably understood by the other party to be manifested by the first party’s words and conduct. See: Liu Wai Keung §47; Mo Ying §5.16.

(4) The doctrine is sometimes described as having two limbs. First, where at any time prior to the acquisition (or exceptionally, at a later date), there is an agreement, arrangement or understanding reached between the parties as to how the property is to be held beneficially, based on evidence of express discussions. Second, where there is no evidence to support such a finding but the court relies on the parties’ conduct as a basis from which to infer a common intention. There is some authority that under the second limb, direct contributions to the purchase price by a party who is not a legal owner will readily justify the inference. See: Mo Ying §5.8; Primecredit §§2.3 and 2.4.

(5)     However, the modern approach is to assess the parties’ common intention by a holistic approach having regard to the context and the particular facts.  The court is not constrained to consider only pure direct monetary contributions to the purchase price.  In a Chinese setting, especially for the older generations, where explicit discussions on property rights within the family are not that common, the court has to pay more regard to circumstantial matters.  See: Mo Ying §§5.14 and 5.15; Primecredit §1.6.”

53.  Counsel for Ms Wang, Mr Jason Yu (appearing with Mr Charlie Liu), initially submitted the fact that Ms Wang had paid for (Parcel One of) the Paradise Drive Property, which was conveyed into Mr Qin’s sole name, was a factor that essentially trumped all else.  In closing submissions, Mr Yu clarified that he was not suggesting that the court could not look at other factors, but only that more weight should be placed on the fact of a monetary contribution, in both “sole name” and “joint name” cases; a claimant’s interest could be “readily inferred” from his or her financial contribution, citing Stack v Dowden [2007] 2 AC 432 at [61], [69] and [87], Primecredit v Yeung Chun Pang Barry [2017] 4 HKLRD 327 at [2.3], [2.4] and Siao Miao Hua at [128].

53.1  In Stack, the fact that Ms Dowden contributed far more to the acquisition of the property than Mr Stack did was an important factor taken into account by the Court of Appeal in its conclusion that Ms Dowden had successfully rebutted the presumption of joint ownership and made out a case for a 65% share of the beneficial interest in the property, which conclusion the House of Lords did not consider should be disturbed.  There were, however, other factors which were taken into account in reaching this conclusion, such as the fact that the parties had, unusually, kept their financial resources strictly separate.  As Baroness Hale observed at [69], “context is everything”, and “Each case will turn on its own facts.”

53.2  In Primecredit Ltd at [2.3] and [2.4], whilst Cheung JA referred to financial contributions to the purchase price of a property as being (an example of) a matter from which the contributor’s interest could be readily inferred, he also agreed with the judgment of Lam VP, who at [1.6] observed that since Stack, the approach of the Hong Kong courts was to assess the common intention of the parties by a holistic approach having regard to the context of the case, and that in the domestic context, the court was not constrained by monetary contributions, citing Stack at [69].

53.3  In Siao Miao Hua, K Yeung J noted at [59] that proof of common intention might involve a consideration of “all facts holistically and in the round”.  Whilst on the facts of the case, Madam Siao’s contribution to the purchase price was a significant factor, the contemporaneous conduct of the parties also pointed to her beneficial ownership, and the totality of the evidence militated against her having made any gift (see [128]).

54.  Ultimately, therefore, it is necessary to consider carefully the facts of the case before me, rather than to start with some sort of presumption that financial contributions must always carry more weight. Moreover, in the present case, Ms Wang’s payment was for Parcel One of the Paradise Drive Property.^[3]

55.  There is no dispute that it is for Ms Wang to prove the common intention constructive trust for which she contends.

F2.  Ms Wang’s case for a common intention constructive trust

56.  Ms Wang’s case is that the US Properties were acquired using funds provided by Father given to Ms Wang alone, and that Ms Wang and Mr Qin at all times had a shared understanding that Ms Wang was the sole beneficial owner of the US Properties.  Ms Wang says that:

56.1  she provided all of the funds for the purchase of the US Properties, and this should carry overwhelming weight in assessing the parties’ common intention as to the beneficial ownership of the properties;

56.2  Father’s intention was that the US Properties should belong to Ms Wang only, and this was something which Mr Qin was aware of and agreed to.  In this regard, Ms Wang relied in particular on two letters, said to have been written by Father, dated 2nd December 2009 and 8th February 2010 (“the 02.12.2009 Letter” and “the 08.02.2010 Letter”; collectively “the Two Letters”), in which Father stated that the ownership of the US Properties had to belong to Ms Wang only (the Trustees disputed the authenticity of the Two Letters); and

56.3  she and Mr Qin honoured Father’s intention by confirming in the Marital Settlement Agreement that the US Properties were Ms Wang’s, and by the Transfers of August 2013.

F2.1  Whether express agreement as to beneficial ownership

57.  I first consider whether there was any express agreement between Ms Wang and Mr Qin.  It was submitted for Ms Wang that “If the Court accepts [Ms Wang’s] evidence as credible, then there was an agreement or understanding between [Ms Wang] and Mr Qin as to their beneficial ownership.”^[4]  However, the evidence to support this submission was not identified.  There was in fact no evidence of any express discussions between Ms Wang and Mr Qin.

57.1  At the highest, all that Ms Wang said in her witness statement^[5] was that she had always understood Father’s intention to be to gift her the US Properties, that this understanding was derived from their communications including the Two Letters, and that Mr Qin was “well aware of the arrangement from the very outset”, that he “knew about my communications with my father and my father’s intentions…and he agreed to it”. However, no particulars were given as to any discussion between Ms Wang and Mr Qin, or how Mr Qin became “aware” of the arrangement and how he “agreed to it”. Furthermore, Ms Wang went on to say that she had asked Father to make an affirmation to clarify his intentions, but not that she had asked Mr Qin to give any evidence about his awareness of, or agreement to, such intentions.

57.2  There was no mention of any such discussions between Ms Wang and Mr Qin in Ms Wang’s^[6] testimony at trial either.

57.3  Insofar as it is said that there was some kind of indirect agreement between Ms Wang and Father, and between Father and Mr Qin, by virtue of Mr Qin’s acceptance of Father’s (alleged) intention, there is no satisfactory evidence that Mr Qin was aware of, let alone in agreement with, Father’s intention.  Ms Wang said she “trusted” that Mr Qin would honour Father’s intentions,^[7] which is not evidence that Mr Qin had any awareness of, or expressed any agreement to, Father’s intentions. She did also go on to say that Mr Qin was “well aware of the arrangement from the very outset” and that he knew about Father’s intentions “all along and he agreed to it”.^[8]  However, no particulars were given as to when or how Mr Qin could have become aware of such intentions, and how he expressed his agreement to them.  When it was put to Ms Wang in cross-examination that there was no evidence that Mr Qin read the 02.12.2009 Letter, she evaded the question by answering that nobody had let her say who had or had not read the letter.^[9]  Only when she was further asked how Father would be sure that Mr Qin would read the letter did she say that Father had asked her in a telephone conversation that it had to be conveyed to Mr Qin – although she stopped short of saying that she had shown the letter to Mr Qin or that she had any knowledge that Mr Qin had read the letter.^[10]

57.4  Mr Qin was not called to give evidence at trial.  He was obviously a witness who could have given direct evidence of what, if any, discussions he had with Ms Wang as to the ownership of the US Properties.  He had all along been scheduled to attend trial to give evidence on Ms Wang’s behalf, but apparently decided not to give evidence at the last minute. Ms Wang gave no explanation as to why Mr Qin chose not to attend trial.^[11]  Mr Yu submitted that since Ms Wang had separated from Mr Qin, she could not compel him to give evidence, and that she could not know why he decided not to attend trial.  However, Ms Wang’s case is that she had separated from Mr Qin back in August 2013, and yet Mr Qin nevertheless made a witness statement in September 2021 and therefore had presumably been willing to attend trial despite the separation.  Ms Wang did not explain what, if anything, had changed since that time, or what efforts, if any, had been made to either persuade Mr Qin to attend trial or to ascertain the reasons for his refusal to do so.  If, as Ms Wang claims, Mr Qin had all along agreed that the US Properties were wholly owned by Ms Wang, it is difficult to see why he would not have been willing to come to court to say so.  Insofar as there was a suggestion by counsel that Mr Qin’s non-attendance might have something to do with Ms Wang’s petition for divorce,^[12] this was not Ms Wang’s evidence; nor were any particulars given about the petition for divorce which might indicate when or why Mr Qin apparently changed his mind at the eleventh hour before the trial.  In the circumstances, I infer from Ms Wang’s failure to call Mr Qin as a witness at trial that he had no evidence to give of any express agreement with Ms Wang as regards the beneficial interest of the US Properties.

57.5  I find that there was no express agreement between Ms Wang and Mr Qin, either directly between them or indirectly through Father, as to the ownership of the US Properties.

F2.2  Whether common intention can be inferred from conduct

58.  I next turn to consider whether Ms Wang’s and Mr Qin’s conduct supports an inference that they intended that the US Properties should be beneficially owned solely by Ms Wang.

F2.2.1 The Two Letters

59.  I first deal with the Two Letters said to have been written by Father and sent to Ms Wang shortly before the purchases of the US Properties.  As mentioned above, Ms Wang’s case is that Father’s intention was that the US Properties should belong to Ms Wang only, and this was something which Mr Qin was aware of and agreed to.

60.  As Mr Yu accepted at trial, Father’s intentions are of limited relevance in ascertaining the common intention of Ms Wang and Mr Qin. Mr Yu submitted that originally, it had been considered that Father’s intention was relevant to show that (1) the funds for the purchase of the US Properties had come from Ms Wang and (2) Ms Wang and Mr Qin followed Father’s intentions.  As to (1), I have already found that the funds came from Ms Wang,^[13] so Father’s intentions do not need to be further considered on this point.  As to (2), what Father’s intentions were cannot shed light on the separate issue of whether Ms Wang and Mr Qin subsequently followed those intentions, and Mr Yu accepted that this was the case.  Even if Ms Wang and Father shared a common intention as to the ownership of the US Properties, this does not bind Mr Qin if he was not party to the “common” intention.  If authority be needed on this point, see Luo Xing Juan v Estate of Hui Shui See (2009) 12 HKCFAR 1 at [38] to [39] (Ribeiro PJ).

61.  I have already referred above to the lack of satisfactory evidence that Mr Qin was aware of, let alone in agreement with, Father’s intention as to the ownership of the US Properties, whether through awareness of, and agreement with, the Two Letters, or otherwise.  This means that the Two Letters do not take Ms Wang’s case regarding the alleged common intention further.

62.  Nevertheless, I will go on to address the evidence relating to the Two Letters at this stage, as they chronologically predate the purchase of the US Properties, and as they form part of the background when considering the explanations given by Ms Wang as to why the US Properties were not, in fact, acquired by her in her sole name. Ms Wang’s evidence as to the Two Letters is also relevant to her credibility.

63.  Ms Wang’s evidence is that the Two Letters were an important part of the communications from Father which clearly conveyed his intention that the US Properties were to be owned by Ms Wang alone.  “That is very clear to me from our communications, including the 2 letters.”^[14]  In respect of the 02.12.2009 Letter, “[Father] specified that the beneficial ownership of the property is to vest in me only … I understood from the letter and my discussions with my father that he intended to gift the funds, and hence the purchased property, to me.”.^[15]  In respect of the 08.02.2020 Letter, “[Father]…also specified that the beneficial ownership of the new property would (like for the Ross Road Property) vest in me.”^[16] In cross-examination, Ms Wang said that Father “particularly told me in the phone conversation that this [02.12.2009 Letter] has to be conveyed to Qin”, and that Father had told her that it would be “more official” to write a letter than to call Mr Qin about the matter.

64.  Yet the Two Letters were not referred to in either the 1st Affirmation of Wang Jue of 25th January 2018 (“Wang’s 1st Affirmation”) or the 2nd Affirmation of Wang Jue of 26th June 2018 (“Wang’s 2nd Affirmation”), which were filed in support of Ms Wang’s application that the Hong Kong courts had no jurisdiction over the subject matter of the Trustees’ claim or that the courts of the USA were the more appropriate forum for determining the dispute (“the Stay Application”).  I do not find the explanations for this convincing.

65.  Ms Wang says that she did not mention the Two Letters in her affirmations as the focus of the affirmations was the Stay Application, and she could not have been expected to put forward her case in full at the time. In any event, the case being run at the time was one of resulting trust, rather than common intention constructive trust.  Furthermore, she says, Wang’s 1st Affirmation was filed in haste as the Trustees filed a notice of appointment to hear the Originating Summons on 16th January 2018 indicating that they would be seeking final judgment at the hearing of 8th February 2018, so that Ms Wang had less than ten days to prepare her affirmation; and Wang’s 2nd Affirmation was filed in reply only, dealing with the Stay Application.  The Two Letters were eventually disclosed on 20th November 2020 – or, more accurately, copies of the Two Letters were disclosed, said by Ms Wang at trial to have been photocopies made and retained by Father.  Ms Wang never disclosed the originals.  Her evidence was that she could not locate them.  She said that Father kept copies as he did things in a strict manner, kept copies of everything, and made notes about things that he did.

66.  However:

66.1  whilst Ms Wang says that Wang’s 2nd Affirmation was only a reply affirmation to deal with the Stay Application, in fact Ng J at the hearing of 8th February 2018 had adjourned the application for judgment for substantive argument, giving directions for the filing of affidavit evidence, and Wang’s 2nd Affirmation had been filed pursuant to such directions;

66.2  both affirmations expressly stated that if the Stay Application were unsuccessful, then Ms Wang would rely on the matters in the affirmations to oppose the Trustee’s claim, and proceeded to deal with detailed evidence as to the circumstances in which the US Properties were acquired, including exhibiting Ms Wang’s bank statements showing payment for the Ross Road Property, the Marital Settlement Agreement, Father’s bank statements showing remission of funds to Ms Wang for (Parcel One of) the Paradise Drive Property, and documents from ORTC.  Yet no reference to the Two Letters (even if not then located by Ms Wang for production) was made, despite their being an important part of Ms Wang’s case,

66.3  whilst Father apparently provided his bank statements for Wang’s 2nd Affirmation, he did not provide the photocopies of the Two Letters at the same time, despite his supposed meticulous approach to record keeping;

66.4  Wang’s 2nd Affirmation also noted the Trustee’s allegations that there were no formal arrangements such as declarations of trust, to which Ms Wang responded that she and Mr Qin dealt with the matters informally, and that it was unreasonable to expect that there would be declarations or formal documentation between them.  Production of Father’s copies of the Two Letters would have gone some way towards answering the Trustee’s complaints about lack of documentation, but only his bank statements were provided;

66.5  it is not the case that only resulting trust was being run as a defence.  Wang’s 1st Affirmation also claimed that Ms Wang and Mr Qin had a common understanding that the US Properties were “strictly” hers.  It is difficult to understand why no reference was made to the communications with Father, including the Two Letters, from which the common understanding is said to have stemmed.  When cross-examined about this, Ms Wang says that she did tell her lawyers about the Two Letters, but for some reason they did not see fit to mention them in the affirmations (when shown the relevant paragraphs in Wang’s 1st Affirmation, Ms Wang initially said that she told her lawyers about the Two Letters but the lawyers did not write the point down; then she said that in fact she did not tell the lawyers about the Two Letters for Wang’s 1st Affirmation).

67.  Ms Wang was also cross-examined as to how the 02.12.2009 Letter could have been written on 2nd December 2009 when, according to Ms Wang’s witness statement (as confirmed in her oral testimony) her family was given notice to quit their then-rented residence only on or around 23rd December 2009,^[17] and it was in such circumstances that Ms Wang and Mr Qin began searching for a new home, and that Father became aware of this.  Ms Wang claimed that it was because in fact there had been people viewing their rented home in about September and October 2009, and she had told Father about this, who had responded that she should not rent anymore and that she should buy a property, and he later wrote a letter to repeat this to let Mr Qin know that the property was bought for Ms Wang and her children.  Mr Yu submitted that the illogical sequence of events in the witness statement was the result of poor drafting, since after all the drafter did have the 02.12.2009 Letter to hand and should have been able to detect the illogicality; it was therefore not a case of being caught out in a lie by a subsequent discovery of the letter.

68.  There could be various explanations for the illogicality, including poor drafting, or the drafter writing down the chronologically illogical account which Ms Wang gave (and which she confirmed in cross-examination before being shown her witness statement and the illogicality put to her).  I accept that it does not necessarily follow from the illogicality that the 02.12.2009 Letter must have been created ex post facto.  However, this does not mean that I must then accept Ms Wang’s explanation that Father wrote the 02.12.2009 Letter because there had been viewers of Ms Wang’s rented residence as early as September and October 2009, that Ms Wang had told Father about this, that he had told her to buy a property, and that he then wrote a letter to let Mr Qin know about that the property was for Ms Wang and her children.  I do not find this explanation credible.

68.1  This explanation was not mentioned in Ms Wang’s witness statement.

68.2  The chronologically illogical sequence of events was confirmed by Ms Wang in cross-examination.^[18]  The explanation about viewers in September and October 2009 was given only when the illogicality was pointed out.

68.3  Ms Wang says that she had already discussed the matter with Father, and Father had already told her that she should buy a property, before he wrote the 02.12.2009 Letter.  However, the letter reads as if the suggestion of buying a property was being made for the first time (in the letter).

69.  No credible explanation has been given as to why Father should have written the Two Letters, when he had already discussed the matter with Ms Wang on the phone.  Ms Wang’s explanation was that she considered that Father wanted to let Mr Qin know that the property was bought for Ms Wang and her children, and that a letter would be “more official” than a phone call.  She also said that Father kept a photocopy because he did everything in a “strict” manner.  However, if the purpose was to more formally document the position and ensure Mr Qin’s acceptance, it is difficult to understand why Mr Qin was not asked to reciprocate and signify his acceptance in writing.

70.  I therefore do not find that Ms Wang has proved the authenticity of the Two Letters.

F2.2.2   The Ross Road Property

71.  I turn to the Ross Road Property.  Ms Wang provided the funds for it.  Nevertheless, the property was conveyed to Mr Qin and Ms Wang as “husband and wife as joint tenants”.  The reason given by Ms Wang for this was that “we were told by the real estate agent that the joint tenancy arrangement would bring practical benefits for estate planning and asset transfer purposes”.^[19]

72.  No particulars were given of the supposed practical benefits. In cross-examination, Ms Wang said that:

72.1  she did not ask for details of the tax savings which would be achieved with this arrangement;

72.2  she believed the advice nevertheless;

72.3  she found out in February or March 2010 (shortly after the purchase in January 2010) that there was no actual tax benefit since Ms Wang did not work in the USA and had no income there, and Mr Qin only had Hong Kong income and paid tax in Hong Kong.

73.  I find the explanation as to why the Ross Road Property was conveyed into Ms Wang’s and Mr Qin’s joint names to be incredible.

73.1  Ms Wang supposedly accepted the tax advice of an estate agent (not said to be a tax professional) without asking for any information about what savings would be achieved (let alone whether such savings would be worthwhile).

73.2  On its face the advice did not make sense anyway, since Ms Wang would have known that neither she nor Mr Qin earned income in the USA.

73.3  Even now, no particulars as to what that advice could possibly have been – even if mistakenly given – have been provided.

73.4  Ms Wang’s acceptance of the estate agent’s advice, without asking for particulars of the tax savings to be achieved, is all the more remarkable when this meant that she would have directly contradicted the supposed intention and instruction of Father that the property should belong to Ms Wang only, an instruction which Father had allegedly thought was important enough to be conveyed “officially” via a written letter, which letter he had “particularly” told her had to be conveyed to Mr Qin.  What was the tax saving that would have justified going against Father’s intention and instruction? The impression sought to be given by Ms Wang in her statement and in her testimony was that she and Mr Qin respected and followed Father’s intentions and instructions.  Yet on her own case, she was willing to accept the say-so of an estate agent, on tax matters, without verification, to ignore such intentions and instructions.  Nor did she seek Father’s approval first, or at least inform him about it.  It was also not Ms Wang’s case that she was acting behind Father’s back.

73.5  Despite finding out that the advice was wrong so soon after the purchase and so soon after Father’s intention had been conveyed in the 02.12.2009 Letter, the property was not conveyed back into Ms Wang’s name, so as to follow Father’s intentions and instructions, now that there was no longer any reason not to do so.

74.  Furthermore, Ms Wang could have, but did not, provided evidence from the estate agent to corroborate her claim as to the tax advice given.  In this regard, it is notable that Ms Wang had, in the application challenging the jurisdiction of the Hong Kong courts in these proceedings, made Wang’s 2nd Affirmation saying that the estate agent who had advised her about estate planning was a relevant witness located in the USA and would have kept pertinent files and records in the USA.^[20]  Yet the estate agent was not called as a witness; not even an affidavit or letter from the estate agent was produced to confirm that this was the advice she had given. When asked why this was the case, Ms Wang said that nobody (presumably a reference to her lawyers) had asked her to ask the estate agent to do this. This is not credible given that the estate agent had been identified as a relevant witness in these proceedings.

75.  Therefore, I do not accept that Ms Wang was given the advice claimed. 

76.  Ms Wang also said that “as Qin was more conversant in English, there was practical benefit in having his name appear on the legal title to the properties so that he could also deal with the applications for the required permits [for renovation of the US Properties]”; and that Mr Qin “indicated that he could transfer the legal title in the properties back to me to reflect my full beneficial ownership, after all the tedious matters involving the purchase and renovation were taken care of”.^[21]  However, it was not suggested that there was anything tedious involving the purchase of the Ross Road Property that required Mr Qin’s name to be on the legal title.  Similarly, it was not suggested that the renovation of the Ross Road Property required Mr Qin’s name to be on the title.  Indeed, the property was fit for the family to move into shortly after the purchase in January 2010, and the family continued to live there until at least 2014, which was when Ms Wang said that she moved to Singapore.  Yet there was no transfer of title to the Ross Road Property until the 1st Interspousal Transfer Grant Deed of 7th August 2013.

77.  I reject as incredible the reason put forward by Ms Wang as to why the Ross Road Property was conveyed to her and Mr Qin as joint tenants.

78.  The 02.12.2009 Letter does not take Ms Wang’s case further. Even if Ms Wang had succeeded in proving its authenticity, she and Mr Qin clearly did not follow the letter in purchasing the Ross Road Property in joint names.  Indeed, Ms Wang acknowledged in cross-examination that she and Mr Qin did not obey Father’s instruction.

79.  This also puts into context the relevance of the provenance of the funds for the purchase of the Ross Road Property.  Whilst Ms Wang places great emphasis on the fact that she contributed the funds for the purchase of the property, it must be remembered that factually, she relies on the funding as having been part and parcel of Father’s intention and instruction, as allegedly expressed in the 02.12.2009 Letter and said to have been followed by the couple.  However, as analysed above, I do not agree that Ms Wang has established that the couple followed Father’s intention and instruction.  Consequently, I do not agree that Ms Wang’s provision of funds for the purchase of the Ross Road Property is a particularly weighty factor in considering the parties’ conduct.

F2.2.3 The Paradise Drive Property

80.  I now turn to the Paradise Drive Property.  Again, Ms Wang provided the funds for it (Parcel One). Nevertheless, the property was conveyed to Mr Qin alone “as his sole and separate property”.  The reason given by Ms Wang for this was that “since Qin was the one that dealt with the property agents at the time of purchasing the Paradise Drive Property, he also proceeded to sign the grant deeds for the property and had it placed under his name.  I asked Qin to deal with the agents and seller for the Paradise Drive Property as my father asked him to assist, and since he was more conversant and spoke better English.  I was also preoccupied at the time in taking care of my children”.^[22]  “Furthermore, … the properties required extensive renovation (in particular, the Paradise Drive Property required demolishing and reconstruction).  Permits are required for these refurbishment and construction tasks, and as Qin was more conversant in English, there was practical benefit in having his name appear on the legal title to the properties so that he could also deal with the applications for the required permits.”^[23]

81.  I find the explanation as to why the Paradise Drive Property was conveyed into Mr Qin’s sole name to be incredible.

81.1  It is difficult to see why the mere fact that Ms Wang was less conversant with English should mean that she should not be registered as an owner of the property.  In this regard, I note that she apparently had no difficulty or reservation in signing the Quitclaim Deed in which she declared that she acquired no interest to the Paradise Drive Property, a document which was in English.  In contrast, the 2nd Grant Deed, pursuant to which the previous owners of the Paradise Drive Property assigned the property to Mr Qin, would not even have required her signature (it did not require Mr Qin’s signature either).  Equally, Ms Wang had no difficulty or reservation in signing the Marital Settlement Agreement, a ten-page legal document.

81.2  In her oral testimony, Ms Wang also claimed that her estate agent told her that in the early stages, because the transaction was “complicated”, the property would be conveyed into Mr Qin’s sole name.  When asked as to what those “complications” might have been, Ms Wang said that there was a second piece of land bought and consolidated with the first piece.  This reason was never suggested in Ms Wang’s witness statement. The consolidation took place in about 2012.  There is no evidence to indicate that at the time of the purchase in February 2010, any additional acquisition was being contemplated.  In any event, it is difficult to see why the acquisition of two pieces of land should be complicated.  No evidence has been produced to show why, for example, consolidation was complicated and that it was preferable for Ms Wang not to be an owner.  Furthermore, no steps were taken after the consolidation to convey the consolidated land into Ms Wang’s name.

81.3  The estate agent who supposedly provided the advice about the “complications” has not been asked to provide any affidavit or letter to corroborate this claim.

81.4  As for renovation or construction permits, no evidence has been produced to show why the application process was so complicated so as to justify omitting Ms Wang as an owner of the property.

81.5  The reason given in Ms Wang’s witness statement (that Mr Qin was the one dealing with property agents and therefore he signed the grant deeds) does not make sense.  The mere fact that Mr Qin was dealing with the agents surely ought not to have overridden the supposedly important instructions and intentions of Father, if the couple had truly intended that Ms Wang was to be the sole owner of the property.

82.  All of this is before even one even comes to consider the Quitclaim Deed, which Ms Wang executed to “remise(s), release(s) and forever quitclaim(s)” to Mr Qin the Paradise Drive Property as “his sole and separate property”.  This was a contemporaneous document, executed on 25th March 2010, a few days before the Grant Deed of 29th March 2010 pursuant to which Mr Qin became the sole owner of the Paradise Drive Property.  This document records an actual expressed intention of the parties (or at least of Ms Wang), and is not merely conduct from which one needs to draw indirect inferences as to the parties’ intention.

83.  As counsel for the Trustees, Mr Roger Phang (appearing with Mr Jeff Chan) has pointed out, it is telling that Ms Wang has repeatedly failed to explain this document, which on the face of it at least is directly contradictory to her case, since the commencement of these proceedings. The Quitclaim Deed was exhibited and relied upon by the Trustees at the time of commencement of proceedings in the First Affirmation of Chan Pui Sze of 25th July 2017.  However, no positive case as to the Quitclaim Deed was advanced in:

83.1  the 1st Affirmation of Wang Jue of 25th January 2018;

83.2  the 2nd Affirmation of Wang Jue of 26th June 2018 (even though the Trustees had in the meantime referred to it again in the Second Affirmation of Chan Pui Sze of 20th March 2018);

83.3  the Defence of 7th May 2020 (save that there was an admission of the Trustees’ plea in paragraph 10 of the Statement of Claim that Ms Wang had made the acknowledgement in the Quitclaim Deed that she remised, released and forever quitclaimed to Mr Qin the Paradise Drive Property as his sole and separate property, said to be subject to Ms Wang’s case regarding the beneficial interests of the US Properties);

83.4  the Witness Statement of Wang Jue dated 16th September 2021;

83.5  the opening submissions filed on behalf of Ms Wang prior to trial (despite the Trustees’ reliance on the Quitclaim Deed in their opening submissions and the fact that the lack of explanation from Ms Wang had been pointed out in the Witness Statement of Chan Pui Sze of 20th September 2021).

84.  In cross-examination, Ms Wang finally gave an explanation for signing the Quitclaim Deed.  Ms Wang’s evidence was that she now understood the document but that nobody had explained it to her at the time; her estate agent had told her that at the early stages, because the transaction was complicated, it would be under the sole name of Mr Qin; she had to sign the document; it would not affect the fact that the property was the common property of Mr Qin and Ms Wang as husband and wife.  This latter point is of course inconsistent with Ms Wang’s own case that the property was owned solely by her.  When this was pointed out, Ms Wang claimed that Mr Qin signed the document (presumably the acquisition documents) for her at the early stages of the transaction, and referred again to the consolidation of a second piece of land with the first, which I have addressed above.  The answer provided no explanation as to why Ms Wang would have talked about the property as being jointly owned.  In closing, Mr Yu submitted that Ms Wang was only testifying as to what the estate agent had told her, and the estate agent would not have known of the arrangements between Ms Wang and Mr Qin.  However, this is speculative, and still did not explain why Ms Wang sought to explain away the Quitclaim Deed as a document which would not affect the joint ownership of the Paradise Drive Property.

85.  When cross-examination regarding the Quitclaim Deed resumed on the following day, Ms Wang changed her evidence and said that in fact Mr Qin did explain the document to her in Chinese.  Her explanation as to why she had not previously dealt with the signing of the Quitclaim Deed in her affirmations and witness statement was because the document had already become void and unnecessary.  No elaboration as to why the document was “void” or “unnecessary” was given.

86.  I do not find the explanations given by Ms Wang as to her signing of the Quitclaim Deed to be credible.  She never gave them in her affirmations or witness statement, nor were they pleaded.  In any event, they are self-inconsistent, and do not explain why the Quitclaim Deed would have been signed if the Paradise Drive Property was to be her sole property.  No corroborating evidence has been provided, whether from the estate agent or otherwise, to show why it was necessary to sign this document to cater for the consolidation of a second piece of land, which at that stage had not yet been acquired.

87.  In closing, Mr Yu submitted that Ms Wang’s understanding was that if the Paradise Drive Property was to be put in Mr Qin’s sole name, then she had to sign the Quitclaim Deed, and the document did not deal with beneficial interests.  What Ms Wang had said in re-examination was that Mr Qin had told her that if the property was to be registered in only one name then she had to sign the document.  However, it is a stretch to suggest that Ms Wang’s oral evidence could be understood as meaning that she was aware of the possibility that the legal interest in the property could be dealt with distinctly from the beneficial interest and that she signed the Quitclaim Deed on the understanding that whilst Mr Qin was to be the legal owner of the Paradise Drive Property, the document would not deal with the beneficial interest in the property, which she would wholly own.

88.  As with the Ross Road Property, the 08.02.2010 Letter does not take Ms Wang’s case further.  Even if Ms Wang had succeeded in proving its authenticity, she and Mr Qin clearly did not follow it in purchasing the Paradise Drive Property.

89.  And as with the Ross Road Property, I do not agree that Ms Wang’s provision of funds for the purchase of the Paradise Drive Property is a particularly weighty factor in considering the parties’ conduct, given that on Ms Wang’s case, the provision of the funds was part and parcel of Father’s intention and instruction, which Ms Wang failed to establish was followed by the couple.

F2.2.4 The Marital Settlement Agreement

90.  Mr Yu submitted that the execution of the Marital Settlement Agreement reflected Ms Wang’s and Mr Qin’s respect for Father’s wishes and their common intention that the US Properties had along belonged to Ms Wang.^[24]

91.  I consider that very little weight can be put on this document in evidencing the parties’ intention in the acquisition of the US Properties, given my findings above as regards Father’s alleged wishes, and given that the Marital Settlement Agreement was, even on Ms Wang’s own case, executed in August 2013, years after Father had given his “official” instruction and the properties had been acquired, and less than a month after Baosteel had presented its bankruptcy petition against Mr Qin.

F2.2.5 No common intention constructive trust

92.  I therefore find that there was no common intention constructive trust as alleged by Ms Wang.  The registration of the Ross Road Property in joint names, and the Paradise Drive Property in Mr Qin’s name, reflected the parties’ intentions at the time.

F3.  Resulting trust

93.  Mr Yu submitted in the alternative that the presumption of resulting trust should apply such that Mr Qin held his joint tenancy interest in the Ross Road Property, and his sole interest in the Paradise Drive Property, on trust for Ms Wang, since the funds for acquiring the properties were provided by her.

94.  Mr Phang submitted that it was not open to Mr Wang to advance a case of resulting trust, none having been pleaded.  I agree.  Whilst Mr Yu argued that the Defence (at paragraphs 6 and 8) had set out the material facts that (1) Father had provided the funds and (2) Father had intended a gift to Ms Wang, the context of those paragraphs shows that what was being pleaded was that Father had made a gift of the US Properties to Ms Wang, relying on the presumption of advancement if necessary.  The Defence then went on to raise a case of a common intention in paragraph 12.  Mr Yu also argued that at the hearing before M Ng J of 12th September 2018, reference had been made to a case of resulting trust,^[25] but it is trite that the scope of pleadings cannot be enlarged by way of counsel’s submission at a prior interlocutory hearing.

95.  In any event, the argument would have failed on the merits. Given my finding in relation to the claim of common intention constructive trust, there is no room for the operation of the presumption of resulting trust.  See Poon Loi Tak v Poon Loi Cheung Desmond [2024] HKCA 796 at [31] (Chow JA); Re Yeung Wing Sing [2021] HKCFI 2018 at [105] to [106].

G.  WHETHER THE TRANSFERS WERE MADE AT AN UNDERVALUE

96.  The next issue which arises for consideration is whether the Transfers were made at an undervalue within the meaning of s.49(3) BO. In this regard, the Trustees have put their case on the basis that the Transfers were made for no consideration (s.49(3)(a) BO).  Ms Wang says that consideration was provided, by her entering into the Marital Settlement Agreement on 2nd August 2013, which entailed forbearing to petition for divorce or suing for ancillary relief, and regulating the parties’ post-separation affairs.

97.  The Trustees say that the Marital Settlement Agreement was a sham.  Their pleaded case also challenged the authenticity, existence and genuineness of the document.  At trial, the Trustees submitted that in the alternative, Ms Wang did not actually forbear from petitioning for divorce. Ms Wang’s position is that no such alternative case is open to the Trustees.

G1.  The relevant authorities regarding sham transactions

98.  In Snook v London and West Riding Investments Ltd [1967] 2 QB 786, Diplock LJ explained the legal concept behind the use of the word “sham” as follows.

“I apprehend that, if it has any meaning in law, it means acts done or documents executed by the parties to the "sham" which are intended by them to give to third parties or to the court the appearance of creating between the parties legal rights and obligations different from the actual legal rights and obligations (if any) which the parties intend to create. But one thing, I think, is clear in legal principle, morality and the authorities … that for acts or documents to be a “sham,” with whatever legal consequences follow from this, all the parties thereto must have a common intention that the acts or documents are not to create the legal rights and obligations which they give the appearance of creating. No unexpressed intentions of a “shammer” affect the rights of a party whom he deceived.”

99.  In Stone v Hitch [2001] STC 214, Arden LJ analysed the doctrine of sham transactions at [63] to [69]:

“63. The particular type of sham transaction with which we are concerned is that described by Diplock LJ in Snook v. London & West Riding Investments Ltd, above. It is of the essence of this type of sham transaction that the parties to a transaction intend to create one set of rights and obligations but do acts or enter into documents which they intend should give third parties, in this case the Revenue, or the court, the appearance of creating different rights and obligations. The passage from Diplock LJ’s judgment set out above has been applied in many subsequent decisions and treated as encapsulating the legal concept of this type of sham. Mr Price referred us to Sharment Pty Ltd v. Official Trustee in Bankruptcy (1988) 82 ALR 530 in which the Federal Court of Australia drew on Diplock LJ’s formulation of sham in Snook’s case.

64. An inquiry as to whether an act or document is a sham requires careful analysis of the facts and the following points emerge from the authorities.

65. First, in the case of a document, the court is not restricted to examining the four corners of the document. It may examine external evidence. This will include the parties' explanations and circumstantial evidence, such as evidence of the subsequent conduct of the parties.

66. Second, as the passage from Snook makes clear, the test of intention is subjective. The parties must have intended to create different rights and obligations from those appearing from (say) the relevant document, and in addition they must have intended to give a false impression of those rights and obligations to third parties.

67. Third, the fact that the act or document is uncommercial, or even artificial, does not mean that it is a sham. A distinction is to be drawn between the situation where parties make an agreement which is unfavourable to one of them, or artificial, and a situation where they intend some other arrangement to bind them. In the former situation, they intend the agreement to take effect according to its tenor. In the latter situation, the agreement is not to bind their relationship.

68. Fourth, the fact that parties subsequently depart from an agreement does not necessarily mean that they never intended the agreement to be effective and binding. The proper conclusion to draw may be that they agreed to vary their agreement and that they have become bound by the agreement as varied: see for example Garnac Grain Co. Inc v H.M.F. Faure and Fairclough Ltd. [1966] 1 QB 650, 683−4 per Diplock LJ, which was cited by Mr Price.

69. Fifth, the intention must be a common intention: see Snook's case, above.  This is relevant to issue 3 below.”

100.  The court does not lightly find a transaction to be a sham. In A v A [2007] 2 FLR 467, Munby J said at [53] to [54]:

“53. An allegation of sham is a serious matter. As Neuberger J said in National Westminster Bank plc v Jones [2000] BPIR 1092 at para [59]:

“there is a very strong presumption indeed that parties intend to be bound by the provisions of agreements into which they enter, and, even more, intend the agreements they enter into to take effect.”

Moreover, and because as Neuberger J pointed out (see paras [40], [46] and [59]) “a degree of dishonesty is involved in a sham”, it follows (see para [59]) that:

“there is a strong and natural presumption against holding a provision or a document a sham.”

54. Moreover, it has to be borne in mind that a finding of sham may have serious implications, not least for trustees. As the Royal Court of Jersey said in CI Law Trustees Limited & Another v Minwalla & Others [2005] JRC 99 at para [17]:

“It is a serious matter to find that a professional trustee in Jersey has been party to a sham.  It is a finding moreover which might well have adverse consequences under the statutory regime which regulates the activities of professional trustees in Jersey and which, incidentally, is absent in England and Wales.”

…”

101.  In considering whether a transaction is a sham, the court is not restricted to considering activities which took place before or at the time of the transaction: it is perfectly proper to consider how the parties subsequently acted.  The subsequent conduct is irrelevant to the issue of construction, but is admissible as evidence on the question of whether a document is a genuine document giving effect to the parties’ true intentions. See AG  Securities v Vaughan; Antoniades v Villiers [1990] 1 AC 417 at 475E-F, 476G (Lord Jauncey).

102.  The mere fact that the parties enter into an agreement with the intention that it should be effective does not preclude it from being a sham. See National Westminster Bank plc v Jones [2001] 1 BCLC 98 at [44] to [46] (Neuberger J):

“44 Mr Jourdan contends that the Bank’s argument is self evidently wrong, because the reason it puts forward for saying that the agreements are artificial is the very reason why the defendants must have intended them to be genuine: only if the agreements were genuine do they achieve (albeit artificially) the result which the defendants intended. If the whole basis for entering into the agreements was that they must be effective, then, argues Mr Jourdan, they can scarcely be characterised as shams.

45 That is an attractive argument, but I do not accept it. If it were right, then no arrangement could ever be held to be a sham. For instance, in AG Securities, the provision which was held to be sham by the House of Lords was included by the landlord in order to evade the rent restriction legislation; on Mr Jourdan's argument, as the very reason for including that clause was that it should be implementable for the artificial purpose of avoiding the rent restriction legislation, it must have been genuine. In my judgment, the whole point of a sham provision or agreement is that the parties intend to give the impression that they are agreeing that which is stated in the provision or agreement, while in fact they have no intention of honouring with their respective obligations, or enjoying their respective rights, under the provision or agreement.

46 Thus, in the present case, provided the Bank or the court accepts that the agreements are genuine, then (subject to any other point) the defendants have achieved their aim: it is not of the essence that the agreements are genuine, merely that they are accepted as genuine…”

103.  Neuberger J went on to emphasise that the court would not readily find that a document is a sham:

“[46] … Of course, having made that point, one should not lose sight of the fact that there is obviously a strong presumption, even in the case of an artificial transaction, that the parties to what appear to be perfectly proper agreements on their face, intend them to be effective, and that they intend to honour and enjoy their respective obligations and rights. That that is so is supported by the fact that an allegation of sham carries with it a degree of dishonesty, and the court should be slow (but not naively or unrealistically slow) to find dishonesty.

…

59 In one sense, lawyers find it difficult to grapple with the concept of sham, presumably on the basis that, subject to questions of mistake (which can give rise to rectification or rescission), there is a very strong presumption indeed that parties intend to be bound by the provisions of agreements into which they enter, and, even more, intend the agreements they enter into to take effect. … A sham provision or agreement is simply a provision or agreement which the parties do not really intend to be effective, but have merely entered into for the purpose of leading the court or a third party to believe that it is to be effective. Because a finding of sham carries with it a finding of dishonesty, because innocent third parties may often rely upon the genuineness of a provision or an agreement, and because the court places great weight on the existence and provisions of a formally signed document, there is a strong and natural presumption against holding a provision or a document a sham. …

…

68 … Both principle and the authorities indicate that the court is slow to find that an agreement is a sham, and that, before the court can reach such a conclusion, it must be satisfied that the purported agreement is no more than a piece of paper which the parties have signed with no intention of its having any effect, save that of deceiving a third party and/or the court into believing that the purported agreement is genuine …”

G2.  Whether the Marital Settlement Agreement was a sham

104.  I first deal with Mr Yu’s argument that the Marital Settlement Agreement could not have been a sham because the parties did, in fact, intend that Mr Qin should confer sole ownership of the US Properties on Ms Wang; cl.5.01 recorded this; and Mr Qin did precisely this.^[26]

105.  However, the pretence complained of lies in the fact that cl.5.01 declared the US Properties to all along have been Ms Wang’s and that this was a matter to be “confirmed”, whereas (on the Trustees’ case) Ms Wang had only a half-share of the Ross Road property, and no interest at all in the Paradise Drive Property.  The former would have implied that the Interspousal Transfer Grant Deeds merely transferred the bare legal title held by Mr Qin to Ms Wang, whereas the latter would have meant that the Interspousal Transfer Grant Deeds transferred Mr Qin’s beneficial interest in the US Properties to Ms Wang.  I therefore do not consider that the fact that the parties intended to confer sole ownership of the US Properties on Ms Wang means that there was no pretence.

106.  Nevertheless, given the way in which the evidence developed, I have difficulty with the Trustees’ claim that the Marital Settlement Agreement was a sham.  The allegation of sham involves an element of dishonesty.  In the present case, the pretence would have lain in the representation to the world that the US Properties had always belonged to Ms Wang.  Whilst it was put to Ms Wang that the purpose of the Marital Settlement Agreement was to create a false appearance that consideration had been given for the transfers (which she denied), it was also then put to her that her understanding in signing the Marital Settlement Agreement was that Mr Qin was not giving the US Properties to her, but merely confirming that they had always belonged to her, to which she agreed. Furthermore, she agreed that she did not have information as to the state of Mr Qin’s spending, assets and liabilities as at August 2013.  It was not suggested that she knew that Mr Qin was unable to pay his debts or that his liabilities exceeded his assets, or that the purpose of the transfer of the US Properties was to avoid Mr Qin’s creditors.  The effect of all of this evidence is that in August 2013, ^[27] Ms Wang’s state of mind was that she thought that really owned the US Properties and that Mr Qin was simply confirming this in executing the Interspousal Transfer Grant Deeds.  If so, that does not amount to an intention of leading the outside world to believe the face of the Marital Settlement Agreement whilst secretly knowing and intending that the transaction with Mr Qin with regard to the US Properties would be a different one.  Moreover, she did not really know about Mr Qin’s financial status, so she would not have been in a position to know or intend that the transfer of the US Properties was to put assets beyond the reach of Mr Qin’s creditors.

107.  In seeking to establish that the Marital Settlement Agreement was a sham, the thrust of the cross-examination was that various terms of the agreement had not been performed.  For example:

107.1   whilst cl.4.01 of the Marital Settlement Agreement required Mr Qin to pay Ms Wang spousal support of US$25,000 per month, Mr Qin had earlier stated to the Trustees that no monthly maintenance was being paid to Ms Wang or their children.  It was only in cross-examination that Ms Wang claimed for the first time that Mr Qin had been making other payments in lieu, such as payments of rent for Ms Wang’s apartment in Singapore, or travelling expenses; and

107.2   whilst cl.6.04 of the Marital Settlement Agreement required Ms Wang to be responsible for the property tax on the US Properties, there was evidence to show that it was Mr Qin who paid the property tax for the Paradise Drive Property in April 2017, after he had been adjudged bankrupt.  Again, it was only in cross-examination that Ms Wang sought to explain this, saying that Mr Qin paid because he owed her spousal support.

108.  In the same vein, it was said that there was no clean break in the financial and personal affairs of Mr Qin and Ms Wang after the Marital Settlement Agreement.  For example:

108.1   on a few occasions between 2014 and 2016, Mr Qin paid for Ms Wang’s flights and expenses with his credit card, and they might have both been in Singapore together in September 2014;

108.2   Mr Qin paid the monthly rent for Ms Wang’s apartment in Singapore between June 2014 and July 2016;

108.3   there were bank transfers between Mr Qin and Ms Wang between November 2015 and August 2017;

108.4   Mr Qin and Ms Wang jointly owned a property in West Vancouver (which under the Marital Settlement Agreement was identified as joint property); and

108.5   Ms Wang paid the legal fees for Mr Qin’s application to annul the bankruptcy order against him.

109.  However, I agree with Mr Yu that the fact that parties to an agreement depart from it does not necessarily mean that they never intended the agreement to be effective and binding (cf. Hitch at [68]).  The fact that a contractual right is not exercised does not of itself mean that it ceases to exist: Camelot v Khoo [2019] HLR 26 at [33] (Butcher J).  In the present case, I bear in mind that in 2013, when the Marital Settlement Agreement is said (by Ms Wang at any rate) to have been signed, Mr Qin and Ms Wang had been married for over twenty years and had four children, with the youngest two being six years old at the time, so that some interaction between the parties is not necessarily inconsistent with a separation.  Whilst the Trustees’ diligent review of the documentation revealed found a number of transfers between Mr Qin and Ms Wang or payments made by one for the other, they were not of such a scale so as to suggest that they were probably living or cooperating together behind the façade of a separation agreement.  That they did not follow provisions to the letter regarding their respective financial obligations does not amount to sufficiently cogent evidence of a dishonest intention such that it could be said that the Marital Settlement Agreement was nothing more than a sham.

110.  The Trustees also relied on the fact that Mr Qin transferred his shareholding in at least three companies to Ms Wang in July 2016, after the presentation of the Win Wind Petition, which was not a transfer required under the Marital Settlement Agreement.  Ms Wang’s evidence was that Mr Qin’s secretary called her asking her to sign some documents as Mr Qin was going to gift her three companies, and she had no reason to reject the gift.  Although the transfer of the companies was not required under the Marital Settlement Agreement, it does not follow^[28] that the Marital Settlement Agreement, made three years earlier, was a sham.

111.  The Trustees also relied on the fact that Mr Qin remained as a beneficiary of the J&J Trust until at least 18th August 2016, when Father wrote to the trustee expressing his wish to remove Mr Qin as beneficiary. Ms Wang’s evidence was that this was Father’s business decision (rather than hers), so as to enable Mr Qin to have indirect control of Up Energy. That way, Up Energy could show a united front as regards ownership and leadership.  This evidence was not challenged; indeed, it was the basis for putting to Ms Wang that the need to show a united front meant that it was not a real option for her to petition for divorce from Mr Qin.  This evidence does not suggest that the Marital Settlement Agreement was a sham.

112.  I also do not accept the Trustees have established that the Marital Settlement Agreement was not, in fact, signed in August 2013.  The Trustees have pointed to the suspicious circumstance that the date of the agreement was 2nd August 2013, which was just shortly after the presentation of the Baosteel Bankruptcy Petition against Mr Qin on 9th July 2013, and to fact that the drafter of the Marital Settlement Agreement was not called to give evidence. Ms Wang’s evidence was that in the latter half of March 2013, her daughter discovered that Mr Qin was having an affair, and that although Mr Qin tried to save the marriage, Ms Wang discovered in June 2013 that Mr Qin was continuing his extra-marital affairs; Ms Wang therefore enlisted her friend to help draft the Marital Settlement Agreement for her to present to Mr Qin to sign, under threat of court proceedings; the agreement was then signed in August 2013. There was no real challenge to the timeline given by Ms Wang, and it was not suggested that the agreement was not in fact executed in August 2013. Whilst it is true that there was no independent witness to the signing of the document, at the same time, I note that the Interspousal Transfer Grant Deeds of 7th and 8th August 2013 indicate that they were exempted from “documentary transfer tax” as they transferred property between spouses pursuant to a judgment, order or written agreement between spouse in contemplation of a judgment or order, which supports Ms Wang’s case that the deeds were executed pursuant to the Marital Settlement Agreement of 2nd August 2013.  And whilst it might be questioned why Ms Wang asked her friend to draw up a lengthy agreement in English, which she could not understand, it is plausible that it was prepared with a view to possibly being attached to a court judgment, as referred to in cl.10.11 of the Marital Settlement Agreement.

113.  The Trustees pointed out that Ms Wang and Mr Qin have not in fact divorced each other, despite their purported separation.  It was only in Ms Wang’s re-examination that she claimed that she had petitioned for divorce after the Covid-19 pandemic.  At the same time, the Trustees stopped short of suggesting that Ms Wang and Mr Qin continued to live together or are not truly separated.

114.  On the state of this evidence, I do not consider that on a balance of probabilities, the Trustees have established that the Marital Settlement Agreement was a sham.  I accept that the transfers of the US Properties were made pursuant to the Marital Settlement Agreement.

115.  Mr Phang submitted in the alternative that even if the Marital Settlement Agreement was not a sham, it is sufficient for the Trustees to establish that Ms Wang did not genuinely forbear from suing Mr Qin for divorce.  I do not agree.  Given the mutual promises under the Marital Settlement Agreement, including a mutual release of claims to each other’s properties (see cl.10.01), I accept that Ms Wang has established that consideration was given for the transfers.

G3.    Conclusion regarding consideration

116.  I therefore find that the Transfers were not made at an undervalue.

H.  WHETHER MR QIN INSOLVENT AT THE TIME OF THE TRANSFERS OR BECAME INSOLVENT IN CONSEUQENCE OF THE SAME

117.  Given my views about issue 2 above, strictly speaking this issue does not arise for consideration.  However, given that the parties have adduced evidence on the issue, I will set out my findings on this issue in case the matter goes further.

118.  Since Ms Wang is the spouse of Mr Qin, she is an associate of Mr Qin as provided for in s.51B(2) BO.  Accordingly, had the Transfers been at an undervalue, the requirements of s.51(2) would have been presumed to be satisfied unless the contrary is shown.  In other words, the burden is on Ms Wang to rebut the presumption that Mr Qin was insolvent at the time of the Transfers.  This is not disputed.

119.  Under s.51(3), a debtor is insolvent if he is unable to pay his debts as they fall due (that is, he is cash-flow insolvent), or if the value of his assets is less than the amount of his liabilities, taking into account contingent and prospective liabilities (that is, he is balance-sheet insolvent).

H1.  Relevant principles

120.  There is no dispute about the principles to be applied.

121.  The presumption of insolvency is a provisional conclusion that must be displaced by contrary evidence.  The situation is “not the same as a trial at which the court starts with, so to speak, a blank sheet of paper”. Even if the court is not in a position to make a finding of solvency, the presumption prevails.  See Bucci v Carman (Liquidator of Casa Estates (UK) Ltd) [2014] BCC 269 at [43] (Lewison LJ).

122.  At [27], Leggatt LJ summarised the principles as analysed by the Supreme Court in BNY Corporate Trustee Services Ltd v Eurosail-UK 2007-3BL plc and others [2013] 1 WLR 1408:

“(i) The tests of insolvency in s.123(1)(e) and 123(2)^[29] were not intended to make a significant change in the law as it existed before the Insolvency Act 1986: [37].

(ii) The cash-flow test looks to the future as well as to the present: [25]. The future in question is the reasonably near future; and what is the reasonably near future will depend on all the circumstances, especially the nature of the company’s business: [37]. The test is flexible and fact-sensitive: [34].

(iii) The cash-flow test and the balance-sheet test stand side by side: [35]. The balance sheet test, especially when applied to contingent and prospective liabilities is not a mechanical test: [30]. The express reference to assets and liabilities is a practical recognition that once the court has to move beyond the reasonably near future any attempt to apply a cash-flow test will become completely speculative and a comparison of present assets with present and future liabilities (discounted for contingencies and deferment) becomes the only sensible test: [37].

(iv) But it is very far from an exact test: [37]. Whether the balance sheet test is satisfied depends on the available evidence as to the circumstances of the particular case: [38]. It requires the court to make a judgment whether it has been established that, looking at the company’s assets and making proper allowance for its prospective and contingent liabilities, it cannot reasonably be expected to meet those liabilities. If so, it will be deemed insolvent even though it is currently able to pay its debts as they fall due: [42]”.

123.  The requirement to take into account contingent and prospective liabilities does not mean that they should simply be added up and then compared against assets.  Prospective liabilities requires a consideration of whether, and if so when, they are likely to become present liabilities: Eurosail at [30] (Lord Walker).

124.  When applying the cash-flow test, it is not enough merely to ask whether the debtor is for the time being paying its debts as they fall due.  A realistic examination may reveal that the debtor is on any commercial view insolvent, even though he may continue to pay his debts for the time being.  See Bucci at [29].

H2.  Whether presumption of insolvency displaced

125.  The Trustees’ case is that Mr Qin was both cash-flow and balance-sheet insolvent.  They point to the fact that although Mr Qin was originally scheduled to attend trial to give evidence about his financial position, he decided not to do so at the eleventh hour, and Ms Wang’s evidence was that she did not have information regarding his spending, assets and liabilities as at August 2013.  Furthermore, she could not explain why Mr Qin decided not to give evidence; she was unable to say whether it was because he knew that the evidence would show that he was insolvent at the time of the Transfers.

H2.1  Mr Qin’s liabilities

126.  The Trustees say that Mr Qin had total liabilities of at least $1,336,548,925.65 on or around the date of the Interspousal Grant Deeds, as follows.

Nature of liabilities	Amount ($)	Date
HSBC Canada – line of credit	3,750,700.42	2nd August 2013
Personal guarantee provided to Credit Suisse	234,000,000.00	20th May 2013
Personal guarantee provided to Cinda	355,000,000.00	19th December 2012
Baosteel Bankruptcy Petition	3,875,000.00	9th July 2013
Loan facility to Up Energy Mining Limited (“UEML”)	480,000,000.00	28th June 2013
Loan facility to UE Group	259,923,225.23	21st March 2013
Total:	1,336,548,925.65

H2.1.1  HSBC Canada – line of credit

127.  Ms Wang accepted that Mr Qin’s liability under this head was $3,750,700.42.

H2.1.2  Personal guarantee provided to Credit Suisse

128.  As earlier described, Mr Qin had provided a personal guarantee to Credit Suisse in respect of the liabilities of UE Group arising from the issue of the Convertible Notes. On 20th May 2013, Credit Suisse issued demands to Mr Qin to perform his guarantee obligations, and on 30th May 2013, Credit Suisse commenced proceedings against UE Group and Mr Qin in the English Commercial Court for $234m. in 2015, a settlement was reached in 2015.

129.  Mr Yu submitted that Mr Qin’s liability in full should be discounted in full as he had a defence to Credit Suisse’s claim.  Credit Suisse claimed to have exercised a put option to transfer the Convertible Notes to UE Group at a consideration guaranteed by Mr Qin; Mr Qin argued that the put option was void for common mistake.  In Credit Suisse’s application for summary judgment, Hamblen J held^[30] that UE Group had a real prospect of success in its defence of common mistake.

130.  However, as Mr Phang points out, the judgment was made in the context of an application for summary judgment and the issues of construction of the Convertible Notes required the “full factual matrix” to first be established; there has not been any substantive determination of the merits of the defence; Credit Suisse’s claim was never struck out; the terms of the Settlement Deed of 20th April 2015 provided that upon execution, the “Option Consideration” of $234m would no longer be payable by UE Group and Mr Qin, which suggests that the sum was due and payable prior to the settlement; if Mr Qin had a defence, then he would hardly have entered into a settlement agreement which required him to assume a further personal undertaking to pay the full redemption value of the Convertible Notes of $150m in the event that Up Energy failed to do so.

131.  Insofar as it may be necessary, I draw an adverse inference against Mr Qin that he would not have had evidence to rebut the Trustee’s claim that he was liable to Credit Suisse for $234m as at 20th May 2013.

H2.1.3  Personal guarantee provided to Cinda

132.  As earlier described, Mr Qin had on 19th December 2012 also provided a personal guarantee to Cinda in relation to agreements pursuant to which Cinda provided funds of $296m and $59m to two of Up Energy’s subsidiaries.  The guarantee was noted in Up Energy’s Annual Report 2013.

133.  Mr Yu submitted that the liability should be discounted in full as:

133.1  the underlying agreements with Cinda had not been disclosed;

133.2  there was no evidence as to when the liabilities were to fall due;

133.3  there was no evidence as to whether the principal debtors made timely repayments;

133.4  Up Energy’s Annual Report 2013 noted that the agreements were secured by deposits totaling $53m from the two Up Energy subsidiaries and that Cinda was in possession of $122m worth of equipment and machinery purchased under the agreements;

133.5  there was no evidence that the principal debtors had defaulted;

133.6  Cinda had not submitted a proof of debt in Mr Qin’s bankruptcy.

134.  I agree with Mr Phang that the lack of production of the underlying agreements is beside the point, as there is nothing to suggest that Mr Qin did not give the guarantee.  I further agree that if Ms Wang’s case was that the principal debtors had made timely repayments and that Mr Qin’s liability had not fallen due, then this was a matter for her to prove, but no positive case was pleaded by Ms Wang in response to the Trustees’ reliance on the guarantee to Cinda, and no evidence was adduced.

135.  As to the absence of a proof of debt, Ms Chan’s evidence was that the Trustees had not invited creditors officially to submit a proof of debt, as normally they did so only if they considered that there was a very high prospect of a distribution to the creditors.

136.  As regards the security in the form of deposits of $53m and equipment and machinery worth $122m, as Mr Phang pointed out, this would at best have reduced Mr Qin’s liability to $180m, but on the other hand, this calculation would not have taken into account any interest or penalty which might have been payable by the Up Energy subsidiaries or Mr Qin.

137.  Given that the burden lies on Ms Wang to displace the presumption of insolvency, that she has failed to adduce positive evidence to establish the extent of Mr Qin’s liability, and the absence of Mr Qin at trial to explain his financial position, I am not in a position to make a proper assessment of what discount, if any, should be given to the prima facie liability of $355m.

H2.1.4  Baosteel Bankruptcy Petition

138.  As earlier described, on or around 9th July 2013, the Baosteel Bankruptcy Petition was presented against Mr Qin for $3,875,000.  The petition was dismissed with no order as to costs on 5th November 2013, because there was a binding arbitration clause precluding the court’s jurisdiction.

139.  Mr Yu submitted that the debt was disputed, there was no evidence that the liability remained unpaid and that Baosteel did not submit any proof of debt in Mr Qin’s bankruptcy.

140.  The petition was dismissed because of the arbitration clause, and on the express basis of Baosteel’s position that there was no genuine dispute as to the debt.  As Mr Phang pointed out, no evidence as to the alleged basis for disputing the debt has been adduced.

H2.1.5  Loan facility to UEML

141.  On 28th June 2013, a $480m term loan facility agreement was entered into between UEML as borrower, Up Energy as guarantor and China Minsheng Banking Corp Ltd, Hong Kong Branch (“CMBC”) as lender.  On the same day, Mr Qin, Ms Wang and Father jointly and severally guaranteed to CMBC the obligations owed by UEML the facility agreement.

142.  On 27th June 2013, UEML had submitted a utilisation request for $480m under the facility agreement for drawdown on 28th June 2023. As one of the personal guarantors, Mr Qin has been indebted to CMBC for this amount since 28th June 2013.

143.  CMBC submitted a proof of debt showing that the outstanding amount due by UEML and the guarantors as at 27th July 2016 was $204,533,693.81.

144.  Mr Yu submitted that the liability was contingent and should be fully discounted.  Under the facility agreement, UEML was to repay the loan in ten equal instalments of $48m, the first falling due three months after the utilisation date of 28th June 2013.  It could be seen from Up Energy’s Interim Report 2014 that the total amount outstanding as at 30th September 2014 had been reduced to $315,050,000, suggesting that at least $164,950,000 had been paid by that time.  It was also argued that UEML’s default had occurred closer to the time of Mr Qin’s bankruptcy in July 2016 rather than at the time of the loan drawdown in June 2013, based on an inference from the amount of default interest being claimed in Mr Qin’s bankruptcy.

145.  Mr Phang pointed out that even on Mr Yu’s calculations, the amount of principal due by 27th June 2014 ($192m) exceeded the amount which had been repaid by the later date of 30th September 2014 ($165m). It was also not clear whether any part of the outstanding amount constituted interest and when that had accrued.

146.  As Mr Yu submitted, whether it could reasonably be expected in August 2013 that CMBC would make a demand on Mr Qin as guarantor depended on UEML’s (then) ability to pay.^[31]  However, it is difficult to assess what the position as at August 2013 was.  Some payments were made by UEML between drawdown on 28th June 2013 and 30th September 2014, but it is not known when the payments were made and in what amounts.  It is not the case the UEML made all payments on time during that period since there was an outstanding balance by the time of 30th September 2014.

147.  It seems to me that this is another instance where I am not in in a position to make a proper assessment of what discount, if any, should be given to the prima facie liability of $480m, given that the burden lies on Ms Wang to displace the presumption of insolvency, that she has failed to adduce positive evidence to establish the extent of Mr Qin’s liability, and that she did not call Mr Qin at trial to explain his financial position.

H2.1.6  Loan facility to UE Group

148.  On 20th March 2013, a $395m secured term loan facility agreement was entered into between UE Group as borrower, UE Holding as guarantor, and CMBC as lender.  On 21st March 2023, Mr Qin, Ms Wang and Father jointly and severally guaranteed to CMBC the obligations owed by UE Group under the facility agreement.

149.  On 21st March 2013, UE Group submitted a utilisation request to CMBC for $120,616,392 under the facility agreement for drawdown that day.

150.  On 27th March 2013, UE Group submitted a further utilisation request to CMBC for $139,306,833.23 under the facility agreement for drawdown that day.

151.  As one of the personal guarantors, Mr Qin has been indebted to CMBC for the total amount of $259,923,225.23 since 27th March 2013.

152.  CMBC submitted a proof of debt showing that the outstanding amount due by UE Group and the guarantors as at 27th July 2016 was $248,553,687.20.

153.  Mr Yu submitted that the liability was contingent and should be fully discounted.  He says that UE Group was required to repay the loan no earlier than 21st March 2014, a year after the first utilisation date of 21st March 2013.  However, as Mr Phang pointed out, this did not address the interest due under the facility.  UE Group was to pay accrued interest on the last day of each interest period, which was on a monthly basis starting from the utilisation date of 21st March 2013.  There is no evidence that interest was ever paid.

154.  Mr Yu further submitted that UE Group held 1,045,541,999 shares in Up Energy valued at about $490m based on the average closing price of $0.47 of the shares from 1st to August 2013, which was nearly double the amount owed to CMBC.  However, as Mr Phang pointed out, the daily trading volume of the shares during that period was some two to three million shares.  It is questionable as to how many shares could have been disposed of without affecting the trading price.

155.  Again, I do not consider that there is any proper basis to arrive at any discount for the liability of $259,923,225.23.

H2.2  Mr Qin’s assets

156.  Mr Yu submitted that Mr Qin had sufficient assets to pay his liabilities.  Those assets were:

156.1  Mr Qin’s interest in Up Energy through his ownership of UE Capital;

156.2  Mr Qin’s 50% interest in 1449 Sandhurst Place, West Vancouver;

156.3  Mr Qin’s indirect interest in a parcel of land in Xinjiang; and

156.4  Mr Qin’s monthly salary from Up Energy.

H2.2.1  Interest in Up Energy

157.  As at 22nd July 2013, Mr Qin via UE Capital beneficially owned 14,046,000 shares and 166,828,439 “derivative interests” in Up Energy.  Mr Yu submitted that the former were worth $6,601,620 according to the average closing price in early August 2013.  For the latter, Mr Yu submitted that these represented convertible notes issued by Up Energy in the principal sum of $275,000,000; they could have been converted into 166,828,439 shares in Up Energy and would have been worth $78,409,366.33 based on the average closing price in early August 2013.

158.  I agree with Mr Phang that these figures overstate the value of the interests.  The valuation of the shares based on the closing price does not take into account the level of trading volume prevailing at the time.

159.  Moreover, the value of UE Capital’s assets in Up Energy cannot be considered without also taking into account the liabilities which UE Capital had at the time.  Ms Chan’s evidence was that the Trustees had asked Mr Qin to provide the financial statements of UE Capital but none were provided.  Mr Yu did not deny that the difficulties which the Trustees had encountered in seeking to obtain information about UE Capital from Mr Qin were set out in Re Qin Jun [2021] HKCFI 114 at [143] to [159],^[32] which included Mr Qin’s refusal to sign an authorisation letter to enable to the Trustees to obtain the bank statements and transaction details of UE Capital’s account (see [158]).

160.  Furthermore, the Trustees could only locate half of the convertible notes said to be held by UE Capital (see Master Lai’s judgment at [159]), so it is not clear that UE Capital had the assets claimed.

161.  Ms Wang’s evidence was that she did not know whether UE Capital had any liabilities in August 2013 or whether Mr Qin’s shares in UE Capital were unencumbered as at August 2013.  Mr Qin transferred his shareholding in UE Capital to her on 13th July 2016 for a nominal consideration.  Ms Wang said that she did not know whether there was any money in the company.

H2.2.2  Mr Qin’s interest in 1449 Sandhurst Place

162.  Ms Wang did not adduce any evidence as to the value of this property as at August 2013.  According to Master Lai’s judgment, the property had been valued at C$4.7m in July 2017, but C$2.45m in April 2019, and was eventually sold in July 2019 for C$2.758m.

163.  There is therefore no reliable evidence as to what the value of Mr Qin’s interest in the property would have been as at August 2013.

H2.2.3  Mr Qin’s indirect interest in a parcel of land in Xinjiang

164.  Mr Qin had an indirect interest in 90% of a company, Silk Road Outlets Ltd, which owned a parcel of land in Xinjiang.

165.  Ms Chan’s evidence was that the Trustees took control of the company, but were unable to realise any value from the land.  A private investigator engaged by the Trustees found that the land had been confiscated by the government authorities; according to the court officer, the cost of the land was approximately RMB100m.

166.  There is no evidence as to when the confiscation actually took place, no evidence as to the value at which company might have been able to realise the land in August 2013, and no evidence as to whether the company had any liaiblities at the time.

H2.2.4  Mr Qin’s salary from Up Energy

167.  Mr Qin received a monthly salary of $500,000 from Up Energy.

168.  Ms Wang testified that she did not know what expenses Mr Qin had in around August 2013, or how much of Mr Qin’s salary represented actual disposable income.

H2.3  Presumption of insolvency not displaced

169.  In light of the matters above I agree with Mr Phang that such assets as Mr Qin may have had would not have been sufficient to meet his liabilities in August 2013.  Had I found that the Transfers had taken place at an undervalue, I would have gone on to hold that Ms Wang has not discharged the burden of rebutting the presumption that Mr Qin was insolvent at the time of the Transfers.

I.   RELIEF UNDER S.51(4) BO

170.  In light of my findings above, it is not necessary for me to consider the issue of the relief to be granted.

J.   DISPOSITION

171.  I dismiss the Trustees’ claim.

172.  I further make an order nisi that the Trustees pay the costs of and occasioned by the action to Ms Wang, to be taxed if not agreed, with certificate for two counsel.