CHEN BING CHUEN ALBERT (陳炳泉) v. CHINA STEM CELLS (SOUTH) COMPANY LIMITED (INCORPORATED IN THE BRITISH VIRGIN ISLANDS)

FAMV Nos. 138 to 141 of 2025 and

FAMV Nos. 143 to 146 of 2025

[2026] HKCFA 8

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NOS. 138 AND 146 OF 2025 (CIVIL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACV NOS. 88 AND 93 OF 2024)

___________________________

___________________________

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NOS. 139 AND 144 OF 2025 (CIVIL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACV NOS. 86 AND 91 OF 2024)

___________________________

___________________________

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NOS. 140 AND 145 OF 2025 (CIVIL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACV NOS. 87 AND 92 OF 2024)

___________________________

___________________________

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NOS. 141 AND 143 OF 2025 (CIVIL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACV NOS. 85 AND 90 OF 2024)

___________________________

_________________________________

REASONS FOR DETERMINATION

_________________________________

The Appeal Committee:

1.  This is the Determination of the Appeal Committee.  At the hearing, we dismissed this leave application and now provide our reasons.  We are generally in agreement with the judgments of Linda Chan J[1] and Chow JA writing for the Court of Appeal.[2]

2.  This Determination is of an unusual length. This is because the background involves complex corporate structures and disputed transactions which have to be grasped in assessing the merits of the present leave application – which is ultimately of a narrow compass.

A.     The GCBC Group

3.  The abbreviations and descriptions in Appendix A are adopted in this Determination.  The dispute concerns the right to take control of GCBC and certain of its subsidiaries, litigated as preliminary issues. 

4.  For present purposes, the Group may be viewed as having four tiers.  In the 1^st tier is GCBC, a Cayman company listed on the New York Stock Exchange.  It indirectly wholly owns CSC Holdings, another Cayman company, at the 2^nd tier.  CSC Holdings wholly owns South BVI, East HK and North HK which in turn hold FFL and South HK, these five companies constituting the 3rd tier.  Apart from South BVI, the 3^rd tier companies are Hong Kong companies, collectively referred to as “the HK Subsidiaries”.  The 4^th tier, held directly or indirectly by relevant 3^rd tier companies, consists of five Mainland corporations, namely, Jiachenhong, Lukou, Nuoya, Baoman and Qilu (“the Mainland Subsidiaries”).

5.  The Judge noted that:

“The Group engages in cord blood banking services with most of its operations and assets located in the Mainland. The business of the Group appears to be very profitable in that its revenue and net income for the year ended 31 March 2022 was RMB 1,243 million and RMB 501 million respectively.”[3]

B.     The 2016 sale

6.  On one side of the underlying dispute is Kam, who founded and was majority shareholder, chairman and executive director of GMHL a Hong Kong company which was listed on the Stock Exchange of Hong Kong between 2001 and 2020.  GMHL wholly owned GMSC, a BVI company which held 78,874,106 GCBC shares.

7.  Two individuals associated with Kam are of present importance and gave evidence at the trial.  The first is Tina, with whom Kam had two children.  She was a qualified accountant and a director of GMHL until May 2019; as well as executive director, CEO and chairman of the board of GCBC, remaining in place after the 2016 SPA referred to below. 

8.  The second is Albert who was corporate finance Vice-President of GMHL, then a director and CFO of GCBC.  Like Tina, he remained in place at GCBC after the 2016 SPA.

9.  Also involved on the Kam side of the dispute was PIML, a Hong Kong company and a corporate secretarial services provider, appointed by Tina and Albert as company secretary of the HK Subsidiaries.  Its sole shareholder was Lo.  Chen managed and oversaw the work of its staff.  Lo and Chen gave evidence at the trial.  PIML is not a party to this leave application, having dropped out after the Court of Appeal dismissed its appeal.

10.  On the other side of the dispute is Yuan who, through his company Sanpower, wholly owned YP AMC which was the executive general partner of Ying Peng Partnership, a Mainland limited partnership operating a private equity fund.

11.  Pursuant to a sale and purchase agreement dated 30 September 2016 (“the 2016 SPA”), GMHL and GMSC agreed to sell the 78,874,106 GCBC shares to Ying Peng Partnership for RMB 5,764 million with Yuan and Sanpower acting as guarantors.  As noted by the Courts below, the 2016 SPA was completed on 31 January 2018 and Ying Peng Partnership used Blue Ocean BVI to hold the GCBC shares purchased.[4] The Court of Appeal pointed out that:

“Notwithstanding the completion of the 2016 SPA, 5 directors of GCBC, including Tina (the chairperson) and Albert (the chief financial officer), previously nominated by Kam remained on the board of GCBC, while Blue Ocean BVI appointed one non-executive director, [Xu], to the board of GCBC. Two independent non-executive directors were later appointed...”[5]

C.     Cellenkos and appointment of provisional liquidators (“PLs”)

12.  The dispute was triggered when, on 29 April 2022, GCBC announced that it had entered into transactions (i) to acquire 100% of Cellenkos by issuing 112,613,633 GCBC shares at the ratio of 8 GCBC shares in return for each Cellenkos share; and (ii) to issue 12.4 million GCBC shares and to pay US$664 million in cash to a subsidiary of GMHL for licence rights to market a Cellenkos product in Asia.

13.  This was alarming to the Yuan camp because Blue Ocean BVI stood to lose its majority shareholding in GCBC; US$664 million represented 63% of the Group’s cash; and Cellenkos was related to GMHL which had a 30.5% stake in Cellenkos, with a further 6.5% stake held by a common director of both GMHL and Cellenkos.

14.  On 12 May 2022, Blue Ocean BVI obtained an interlocutory injunction from the Cayman court against GCBC proceeding with the Cellenkos transaction.  Then at a hearing in July 2022, GCBC under the control of Tina and Albert, argued for the injunction to be set aside on the balance of convenience, relying on Albert’s affirmation which stated that the US$664 million had been paid and exhibited a bank statement purportedly issued by China Guangfa Bank as evidence of payment.  However, on 9 August 2022, Blue Ocean BVI obtained evidence that the bank statement was a forgery and, on 22 August 2022, it applied for the appointment of PLs over GCBC.  The Cayman court made the appointment on 22 September 2022, Kawaley J commenting that it was hard to avoid concluding that the bank statement was indeed forged.[6]

15.  On 24 September 2022, the PLs removed Tina and Albert as directors of CSC Holdings and South BVI, and between 28 September 2022 and 14 November 2022, they took steps to remove them from being chairman and CFO of GCBC and from being directors of the HK Subsidiaries.  PIML was replaced as company secretary.

D.     Hong Kong proceedings

16.  In taking the aforesaid actions, the PLs discovered that some 30 filings had been made in the Hong Kong Companies Registry since 27 September 2022 concerning transactions which, as Chow JA commented, “would have the effect of vesting the ownership and control of the HK Subsidiaries ... away from GCBC”.[7] As the Judge had noted, the profitability of the Group rested on its operations and assets located mostly on the Mainland, that is, represented by its HK and Mainland subsidiaries.[8]

17.  The PLs commenced Hong Kong actions naming the 2^nd and 3^rd tier GCBC companies, CSC Holdings, South BVI and East HK as the plaintiffs, seeking to set aside the purported transactions in order to re-establish control over the HK and Mainland Subsidiaries.

18.  The PLs’ challenges were to the validity of documents (referred to as “the Impugned Documents”) comprising instruments of transfer, bought and sold notes and board resolutions[9] purporting to effect transfers engineered by Tina and Albert of all the shares of the HK Subsidiaries to CISIL for US$1 (“the 1^st transfers”); and onward transfers of those shares by CISIL to Muramatsu, again for US$1 (“the 2^nd transfers”).  They also sought to challenge the allotment of new shares in the HK Subsidiaries to Notake and her appointment as director of those companies, as well as the appointment of PIML as company secretary. 

19.  The PLs’ case was summarised by the Court of Appeal as follows:

“It is the PLs’ case that since their appointment on 22 September 2022, they have become the only persons with proper authority to take control and manage all the direct and indirect subsidiaries of GCBC, including the HK Subsidiaries. They contend, inter alia, that:

(1) The Impugned Documents were created no earlier than 29 September 2022, but backdated to 12 or 13 September 2022.

(2) The Impugned Documents were invalid, void, unlawful, or liable to be set aside for a variety of reasons, including want of authority and breach of fiduciary duties on the part of those who purported to execute the Impugned Documents as directors of the Plaintiffs/HK Subsidiaries.”[10]

20.  This was disputed by Tina and Albert.  Their case[11] was that the Impugned Documents were executed to enforce what was referred to as the “2019 Security Arrangement”, said to have been entered into in November 2019 between Yuan (and his companies) on the one hand and Kam (and his companies) on the other to secure the amount of RMB 2,300 million for the GCBC shares said to be then outstanding and due to GMHL from the Ying Peng Partnership under the 2016 SPA, guaranteed by Yuan and Sanpower. 

21.  It was their case that pursuant to Kam’s decision to enforce the 2019 Security Arrangement, the Impugned Documents were signed by Tina in late August 2022 and by Albert in the week of 5 September 2022, the documents being dated 12 and 13 September 2022 (and thus executed before the PLs were appointed on 22 September 2022).  PIML supported their allegation that the Impugned Documents had been signed before 12 September 2022 and subsequently handed over to PIML.

E.     Trial of preliminary issues

22.  In the face of the situation created by the Impugned Documents, the question was who had proper authority to assume control of the HK and Mainland Subsidiaries.  This “depended entirely on whether the Impugned Documents were backdated and therefore void, and whether they were made by the directors in breach of fiduciary duties and therefore voidable.”[12]  These were matters considered suitable for trial as preliminary issues.  The parties accordingly agreed to a list of seven preliminary issues which were ordered to be tried, set out in Appendix B to this Determination.

23.  They raise the questions whether the 1^st and 2^nd transfer documents, the allotments and appointments were backdated (Issues 1, 4 and 6); and if not, whether they had been created by Tina and Albert in breach of fiduciary duty (Issues 2, 5 and 7); and whether the transferees CISIL and Muramatsu knew of the backdating or breach of fiduciary duty (Issue 3).

24.  After hearing testimony from Chow for the PLs, Lo and Chen for PIML and Tina and Albert, the Judge accepted Chow’s evidence and found the defence witnesses to be untruthful and unreliable.[13]  Her Ladyship determined the preliminary issues as summarised by the Court of Appeal[14] and set out in Appendix B.

25.  She found (i) that all the Impugned Documents were backdated, having been created on or after 29 September 2022 (thus after appointment of the PLs displacing Tina and Albert as directors) and accordingly that those documents were void for want of authority; (ii) that even if the documents had been created on 12 or 13 September 2022 as alleged by Tina and Albert, this was done in breach of their fiduciary duties to GCBC, rendering the Impugned Documents voidable. 

F.     In the Court of Appeal

26.  The Court of Appeal identified as overlapping grounds of appeal raised by Tina and Albert, criticisms that the Judge had (i) dealt with issues outside the scope of the Preliminary Issues; (ii) erred in reversing the burden of proof; and (iii) erred in various ways in making findings of fact.[15]

27.  As to (i), the complaint was in particular that the Judge had strayed beyond the preliminary issues by dealing with the validity or veracity of the 2019 Security Arrangement which was not one of the preliminary issues ordered to be tried.  This was rejected.  The Court of Appeal noted that the Judge

“... saw no reason why the court could not make any findings on the validity or veracity of the 2019 Security Agreement insofar as they were relevant to (i) the credibility of Albert and Tina’s evidence and the issue as to when they actually signed the 1^st Transfer Documents and the 1^st Appointment Resolutions, and (ii) the question of whether Tina and Albert acted in breach of fiduciary duties.”[16]

28.  Chow JA added:

“The Preliminary Issues were issues which the parties had agreed were to be determined at the trial. If, in the course of determining the Preliminary Issues, some other issues arose and the resolution of those other issues would have a bearing or impact on the answers to the Preliminary Issues, it seems to us that, as a matter of principle, the court ought to have regard to those issues and make such findings on them as may be necessary in order to reach the correct answers to the Preliminary Issues. To hold otherwise would mean that the Judge might be required to reach a conclusion contrary to the true state of the evidence.”[17]

29.  As to (ii), while the Judge had made some inaccurate comments about the defendants having an “evidential burden of proof” in relation to their assertions,[18] in substance, she had not erred.  Chow JA pointed out that:

“The Judge never held that Tina, Albert and PIML bore the persuasive burden to prove that the Impugned Documents were signed and delivered to PIML on or before 13 September 2022. ...”

“... the Judge found that the Impugned Documents were backdated not because she considered that Tina, Albert and PIML had failed to discharge any burden of proof. Instead, she found positively, on the evidence before her, that the Impugned Documents were backdated as alleged by the Plaintiffs. Albert and Tina’s complaint about reversal of burden of proof is a red-herring.”[19]

30.  As to (iii) regarding Tina, the complaints included the submission by leading counsel then representing her[20] that the Judge had overlooked the lack of motive on Tina’s part to backdate the Impugned Documents and that there was plainly no motive for her to do so.[21]  The Court of Appeal noted this “argument that the Judge failed to consider the issue of motive when assessing Tina’s credibility” and the PLs’ objection to it as a point not made in any form below.[22] It held that such evidence was not necessary but in fact was clearly available.[23]  There was in any event an ample basis for holding that Tina was not a credible witness and that the documents were backdated.[24]

31.  As to (iii) regarding Albert, the Judge was entitled to find he was not a truthful witness and there was ample objective evidence to support the backdating finding.[25]

32.  The appeal was accordingly dismissed with costs.

G.     This leave application

33.  Tina and Albert have each proposed five Questions said to be of the requisite importance to justify the grant of leave.  Those Questions are set out in Appendix C and involve much overlapping.  Additionally, Tina and Albert each seek leave on the “or otherwise” ground. 

34.  The central issue sought to be raised, variously expressed, concerns the proper scope of the trial of the preliminary issues. The Judge is said to have wrongly made findings which strayed beyond the scope of the preliminary issues agreed upon and ordered by the Court (“the scope complaint”).  In particular, it is contended that the Judge wrongly made findings as to the validity or veracity of the 2019 Security Arrangement even though it was accepted by her Ladyship and by all the parties that the validity or veracity of the 2019 Security Arrangement was not one of the preliminary issues to be tried.  It is argued that this resulted in an unfair trial.  The scope complaint is central to Tina QQ 1, 3 and 4 and Albert QQ 1, 2, 3 and 4. 

35.  That complaint is wholly unfounded.  It should be borne in mind that it was Tina and Albert (and not the PLs) who asserted the existence and validity of the 2019 Security Arrangement as their explanation for the creation of the Impugned Documents and in support of their contention that the documents had not been backdated or procured in breach of fiduciary duty.  Plainly, the Judge had to assess the credibility of that case.

36.  Turning to the substance of the complaint, counsel instructed for Tina[26] and Albert[27] sought to argue that in making her findings that the Impugned Documents had been backdated or alternatively procured in breach of fiduciary duty, the Judge had necessarily made improper determinations against the veracity or validity of the 2019 Security Arrangement since that was not one of the preliminary issues, resulting in an unfair trial.

37.  That argument is untenable.  The backdating and fiduciary duty questions plainly could be, and were, answered by the Judge without having to rule on the veracity or validity of the 2019 Security Arrangement.  Her Ladyship well appreciated this.  Focussing first on the backdating issue she stated:

“While I agree that the veracity or validity of the 2019 Guarantee and the 2019 Security Arrangement do not fall within the preliminary issues, I do not see why the Court cannot make any findings on the credibility of Albert’s and Tina’s evidence insofar as it relates to their case and the issue as to when they actually signed the 1^st Transfers Documents and the 1^st Appointment Resolutions.”[28]

38.  The Judge found that the evidence of Tina and Albert was untrue and that the Impugned Documents had indeed been backdated, reaching that conclusion on the basis of objective evidence and the inherent probabilities.  Referring to Tina, the Judge found that it was:

“... inconceivable that as the person ‘responsible for the strategic direction, development and overall management of GCBC’, Tina would not have raised the matter at the board of GCBC and sought its approval before she executed the 1^st Transfers Documents and the 1^st Appointment Resolutions. This is particularly so when (a) the 2019 Security Arrangement had never been considered or approved by GCBC’s board or disclosed to the shareholders; and (b) the effect of the 1^st Transfers Documents was to transfer all the HK Subsidiaries (hence all the interests in the Mainland Subsidiaries) away from the Group.”[29]

39.  She added:

“At the minimum, one would expect Tina to insist on GCBC issuing a public announcement on the giving away of all the HK Subsidiaries as GCBC had just in the same month (on 16 August 2022) filed its Annual Report for the year ended 31 March 2022 (‘2022 Annual Report’) informing the shareholders and the public that the Group still owned all the direct and indirect subsidiaries in the Group without any qualification, let alone any reference to the 2019 Security Arrangement or the 2019 Guarantee.”[30]

40.  Tina provided no credible explanation for her failure to raise with the board or the shareholders the giving away of the basic assets of GCBC for US$1.[31] Another damning finding that has not been challenged was that:

“... Tina’s evidence that she signed the Jiachenhong Resolutions before her resignation as director of North HK on 13 September 2022 [was] false. The indisputable fact is that Guangzhou Co only came into existence on 1 November 2022, and she could only have signed the Jiachenhong Resolutions after 1 November 2022.”[32]

41.  The Judge was plainly entitled to conclude that those findings:

“... affect[s] the general credibility of her evidence, including her assertion that after execution of the 1^st Transfers Documents and 1^st Appointment Resolutions in late August 2022, she ceased to have any involvement in the HK Subsidiaries.”[33]

42.  Linda Chan J similarly rejected Albert’s credibility, building on a detailed critique advanced by counsel then instructed for the PLs.[34] On the backdating issue, her Ladyship set out in detail objective facts indicating that the Impugned Documents were only created on or after 29 September 2022; noted the absence of contemporaneous documents capable of displacing the PLs’ prima facie case; observed that the transferees had not put in an appearance to dispute the PLs’ case and pointed to the existence of internal inconsistencies and inherent improbabilities in the evidence of Tina and Albert.[35]

43.  Those findings relate to the central issue of backdating are unimpeachable.  They were arrived at without having to decide whether the 2019 Security Arrangement existed or was valid as between the parties.  Whatever the truth was about that Arrangement, the backdating of the Impugned Documents meant that they were created without authority and must be set aside, disposing of the case.  The Judge did not stray outside the proper scope of the preliminary issues. 

44.  Mr William Wong SC had no answer to the backdating finding and the consequence that the Impugned Documents were created without authority.  That did not stop him (or Mr Anson Wong SC) from seeking to criticise the Judge’s alternative findings on breach of fiduciary duty. 

45.  This was pointless since, as the Judge pointed out:

“The [fiduciary duty] issue only arises if, contrary to my findings, the 1^st Transfers Documents were created and signed by Tina and Albert on 12 or 13 September 2022 when they remained directors of the HK Subsidiaries.”[36]

46.  Nevertheless, once again, on a proper analysis, the Judge could and did find, that even if not backdated, the Impugned Documents were created by Tina and Albert in breach of their fiduciary duties owed to GCBC, a finding made without having to determine the veracity or validity of the 2019 Security Arrangement.

47.  The validity or otherwise of the Arrangement was an issue that would only concern the parties to that alleged transaction, that is, the purchasers and the sellers under the 2016 SPA, namely, the Kam camp and the Yuen camp respectively.  But whether the acts of creating the Impugned Documents constituted a breach of fiduciary duty was a matter arising as between Tina and Albert as directors on the one hand, and GCBC, the company to which they owed fiduciary duties, on the other. 

48.  These are obviously entirely separate and different inquiries.  Even if, as between the Kam and Yuen camps, the 2019 Security Arrangement was genuine and valid, it did not prevent the conduct of Tina and Albert, in giving away GCBC’s valuable assets for a US$1 without informing or seeking the consent of the Board or the shareholders, from constituting a breach of their fiduciary duty to GCBC.

49.  The Judge, for the detailed reasons given,[37] was fully entitled to conclude that it was impossible to find that the transfers purportedly effected by the Impugned Documents were in the interests of GCBC and that:

“... even if (which has not been established) the 2019 Guarantee had been approved by the boards of directors of CSC Holdings, South BVI, the HK Subsidiaries and the Mainland Subsidiaries, such approval was made by the directors in breach of fiduciary duties and, therefore, voidable as against the subsidiaries concerned.”[38]

50.  So even on the alternative case, the transactions have to be set aside and the PLs are entitled to assert control over the Group and the subsidiaries.

51.  We will not prolong this Determination by dealing with minor arguments concerning alleged misapplication of the burden of proof and the treatment of motive.  Suffice it to say that we endorse the reasons given by the Court of Appeal for rejecting the same.[39]  The “or otherwise” grounds add nothing of substance to the proposed questions.

52.  The proposed questions based on the “scope complaint” are case-specific and do not raise legal issues of great general or public importance.  But fundamentally, as indicated above, none of the applicants’ points are reasonably arguable.  For these reasons, we dismissed the application with costs.

APPENDIX A - Abbreviations

APPENDIX B - Preliminary issues and Judge’s Determination

Agreed List of preliminary issues

Whether the 1^st and 2^nd Transfers Documents were created on a date or dates on or after 29 September 2022 and were backdated and, therefore, invalid for want of authority (Issue 1);

If the 1^st and 2^nd Transfers Documents were created on 12 and 13 September 2022, were the 1^st Transfers procured by Tina and/or Albert (as the case may be) as directors of the relevant Plaintiffs in breach of fiduciary duties (Issue 2);

If the above issues are answered in the affirmative in respect of the HK Subsidiaries (Issue 3):

(a)     What knowledge, if any, did CISIL have with respect to (i) the backdating and want of authority in Issue 1 above, or (ii) the breach of fiduciary duties in Issue 2 above (Issue 3(a)); and

(b)     What knowledge, if any, did MS have with respect to (i)  the backdating and want of authority in Issue 1, or (ii)  the breach of fiduciary duties in Issue 2 (as the case may be) (Issue 3(b));

Whether the Allotments took place on a date on or after 29 September 2022 and were backdated to 13 September 2022 (Issue 4);

If the Allotments did take place on 13 September 2022, were the Allotments procured by Tina, Albert, Notake and/or MS (as the case may be) for the improper purpose of diluting the Plaintiffs’ shareholdings in the HK Subsidiaries (Issue 5);

Whether the 1^st and 2^nd Appointment Resolutions were created on a date or dates on or after 29 September 2022 and were backdated (Issue 6); and

If the 1^st and 2^nd Appointment Resolutions were made on 13 September 2022, were they procured by Tina, Albert, Notake and/or MS (as the case may be) for the proper purpose of the relevant HK Subsidiaries (Issue 7).[40]

Judge’s Determination

Issue 1: The 1^st and 2^nd Transfers Documents were created on or after 29 September 2022 and were backdated to 12 or 13 September 2022 and, therefore, were void for want of authority (§§87-112 and 143(1) of the Judgment).

Issue 2: Even if (contrary to the Judge’s view) the 1^st and 2^nd Transfers Documents were created before 13 September 2022, the 1^st Transfers were procured by Tina and Albert in breach of fiduciary duties and, therefore, were voidable (§§113-129 and 143(2) of the Judgment).

Issue 3: CISIL and MS knew that (a) the 1^st and 2^nd Transfers Documents were backdated and void for want of authority, and (b) the 1^st Transfers were made by Tina and Albert in breach of fiduciary duties and were voidable (§§130-135 and 143(3) of the Judgment).

Issue 4: The Allotments Resolutions were created on or after 29 September 2022 and were backdated to 13 September 2022 and, therefore, were void for want of authority (§§87-112 and 143(4) of the Judgment).

Issue 5: Even if (contrary to the Judge’s view) the Allotments Resolutions were created on 13 September 2022, the Allotments were procured by MS for the improper purpose of diluting the Plaintiffs’ shareholdings in the HK Subsidiaries and, therefore, were voidable (§§136-138 and 143(5) of the Judgment).

Issue 6: The 1^st and 2^nd Appointment Resolutions were created on or after 29 September 2022 and were backdated to 13 September 2022 and, therefore, were void for want of authority (§§87-112 and 143(6) of the Judgment).

Issue 7: Even if (contrary to the Judge’s view) the 1^st and 2^nd Appointment Resolutions were made on 13 September 2022, they were procured by Tina, Albert and MS for improper purpose and, therefore, were voidable (§§139-142 and 143(7) of the Judgment).[41]

APPENDIX C – Proposed Questions for leave to appeal

Tina’s Questions

Question 1:  “In a trial of preliminary issues, to what extent can the Court proceed to make determinative findings without considering all other documentary and contextual evidence, if such evidence: - (a) would only arise from matters that fall outside the scope of preliminary issues; or (b) are only ancillary to the preliminary issues?”

Question 2:  “In the absence of any pleaded case or proof of motive, whether the Court is still entitled to make adverse findings against that witness in respect of their motive?”

Question 3:  “Whether in a trial of a preliminary issue, it is appropriate for the trial Judge to make findings of fact outside the ambit of the preliminary issue as defined by the court order, without the benefit of full evidentiary review?”

Question 4:  “Whether, in a trial of a preliminary issue, it is appropriate for the trial judge to make findings affecting a witnesses’ credibility based on undetermined issues involving non-parties or individuals not before the court who are not bound by the result of the preliminary issue?”

Question 5:  “Whether, in a trial of a preliminary issue, it is appropriate for the trial judge to assume the proof of a fact the burden of which lies with the Plaintiff simply by disbelieving the Defendant without more?”

Albert’s Questions

Question 1:  “In a trial of preliminary issues, whether the court has jurisdiction and/or is entitled to make any findings on matters outside the scope of the preliminary issues as defined by court order, in particular on disputes concerning the veracity or validity of agreements outside such preliminary issues?” (see Sharn Panesar Ltd v. Pistachios in the Park Ltd [2020] EWHC 194 (QB), at §§2, 59, 62 to 63; .c.f. CA Judgment §§52 and 53)

Question 2:  “In a case where (i) disputes concerning the validity and existence of an agreement are outside the scope of preliminary issues and (ii) the parties agree that such disputes are not to be resolved as preliminary issues, should the court proceed on the assumed basis that the agreement is valid and in existence for the purposes of determining the preliminary issues?” (c.f. CA Judgment §67)

Question 3:  “If a court cannot isolate material issues outside the scope of preliminary issues from those within it, (i) whether the court should direct that all issues be resolved at the substantive trial, and (ii) whether such direction can only be made as a matter of last resort?” (see Steele v. Steele [2001] C.P. Rep. 106, pp.14-15; c.f. CA Judgment §67)

Question 4:  “Where parties have unequivocally proceeded on common ground that certain disputes are not to be resolved as preliminary issues, (i) is a party estopped or precluded from seeking the court to determine such disputes at the trial of preliminary issues, and (ii) is the court entitled to make findings on such disputes for the purposes of determining the preliminary issues, contrary to the parties' common ground?” (c.f. CA Judgment §66)

Question 5:  “Where a Judge rejects a defendant's submission that the plaintiff bears the burden of proving a material allegation (e.g., the backdating of documents), does this constitute a reversal of the persuasive burden of proof on that allegation (as opposed to merely affecting the evidential burden)?” (c.f. CA Judgment §§69 to 72, 74 to 76)