![]() |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | |
England and Wales High Court (Chancery Division) Decisions |
||
You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> China Metal Recycling (Holdings) Ltd v Wai & Ors [2020] EWHC 318 (Ch) (05 February 2020) URL: http://www.bailii.org/ew/cases/EWHC/Ch/2020/318.html Cite as: [2020] EWHC 318 (Ch) |
[New search] [Printable PDF version] [Help]
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
BUSINESS LIST (ChD)
Fetter Lane London, EC4A 1NL |
||
B e f o r e :
Between:
____________________
(1) CHINA METAL RECYCLING (HOLDINGS) LIMITED (in compulsory liquidation) (2) CHINA STEEL (MACAO COMMERCIAL OFFSHORE) LIMITED (in compulsory liquidation) |
Claimants/Applicants |
|
- and – |
||
(1) CHUN CHI WAI (2) WELLRUN LIMITED (3) LAI WUN YIN |
Defendants/Respondents |
|
(4) CHUN HEI MAN (also known as Judy Chun) 5) CHUN SIN WA (also known as Kristy Chun) (6) CHUN KA MAN (also known as Carmen Chun) |
Defendants |
____________________
The Defendants/Respondents were not present nor represented.
____________________
Crown Copyright ©
MR JUSTICE ZACAROLI:
(1) The claim concerns ownership of land here and money in English bank accounts.
(2) The fourth, fifth and sixth defendants were in England when they received the money.
(3) Significantly, the transfers were deliberately made to England to be put as far away from Hong Kong as possible. If, as Mr Lloyd submits, the intention was merely to benefit the daughters, that could have been done by transferring money to their Hong Kong bank accounts.
(4) One of the daughters is domiciled here.
(5) Although of less relevance, English law applies both to the proprietary claim and the s.423 claim.
(1) The Hong Kong proceedings have been ongoing since 2013, and the underlying fraud has been litigated there. However, this claim is conceptually distinct from the underlying proceedings. The Hong Kong proceedings relate to a fraud, which itself relates to propping up the share price of the company. It is true that some parts of the particulars of claim overlap with the Hong Kong proceedings, in particular the extent to which the first defendant was in the habit of using nominees, and using his other family members as nominees. But, in reality, the claimants will be seeking to rely upon findings made in the judgment in those proceedings as a starting point in this claim. It is difficult to see how they could be relitigated irrespective of the outcome in the Hong Kong proceedings. Certainly, they could not be relitigated against the first defendant and I see little prospect of them being relitigated as against the other defendants.
(2) The daughters faced contempt proceedings in Hong Kong, and that involved an investigation of some, at least, of the same subject matter. However, those proceedings were dismissed, not because of a determination as to the beneficial ownership of the flat and the moneys. The fact that there have been proceedings in the past does not weigh heavily in the balance in favour of Hong Kong so far as the appropriate forum for these proceedings is concerned.
(3) The discharge application has already been heard in Hong Kong. As I said, the Deputy Judge seemed to envisage the Masri proceedings that would follow would be in Hong Kong. However, the question of where enforcement against the English assets should take place was not an issue raised before the Deputy Judge in that hearing, and certainly was not determined by him. Again, I do not think that weighs particularly heavily.
(4) A possible factor pointing towards Hong Kong is that at least some of the evidence in the existing Hong Kong proceedings will be relevant in the claim here. The primary intention, however, is that by the time that these proceedings are reactivated, that evidence will have been condensed into a judgment of the Hong Kong Court. To the extent that it might be thought that there would be savings in Hong Kong because the same judge would determine both claims, there can be no guarantee of that given that this claim would not, as I understand it, be joined into the main proceedings in Hong Kong. The claimants would seek to stay this claim (if brought in Hong Kong) pending resolution of the first proceedings in the same way as they intend to seek a stay of this claim if pursued here. There can be no guarantee that the same judge would determine the first and the second claim even if both were heard in Hong Kong.
(5) The daughters have legal representation in Hong Kong. I do not find that particularly relevant; they also have lawyers in this jurisdiction.
(6) The potential witnesses include, certainly, the third defendant and two of the three daughters who are in Hong Kong. Indeed, the third defendant is in prison in Hong Kong, and likely to remain there until long after any trial that takes place. This, I think is the most powerful factor that points towards Hong Kong and I will come back to it in a moment.
(7) The sixth defendant (the third daughter) may undertake to be sued in Hong Kong. That would remove the potential argument that is sometimes deployed, that England is the appropriate forum because otherwise there would be inconsistent judgments. In the circumstances of this case, I do not place much reliance on that point anyway, so I think the seventh factor is not of great relevance here.
Transcribed by Opus 2 International Limited Official Court Reporters and Audio Transcribers 5 New Street Square, London, EC4A 3BF Tel: 020 7831 5627 Fax: 020 7831 7737 [email protected] |