COURT OF FIRST INSTANCEWord文档下载推荐.docx

1、 -BETWEEN HUI CHI MING （previously known as X） Plaintiff and KOON WING YEE （官永義） 1stDefendant NG CHI KEUNG （吳志強） 2nd CHAN KWAI NAM （陳桂南） 3rd WONG CHIN YICK （黃展億） 4thDefendant -Before : Hon Poon J in ChambersDates of Hearing : 8 and 9 September 2009Date of Decision : 25 September 2009 - D e c i s i o

2、 nA. Applications The plaintiff seeks the continuation of the Mareva injunction granted by TongJ on 25June 2009 and continued by RecorderFok,SC on 3July 2009 until trial or further order and further disclosure in aid of the Mareva injunction. The defendants apply to discharge the Mareva injunction o

3、n the grounds of no good arguable case, no real risk of dissipation of assets, delay and material non-disclosure. They also oppose the application for further discovery, citing the privilege against self-incrimination as the reason. The background circumstances giving rise to these applications may

4、be summarized as follows.B. Background circumstances The plaintiff is the chairman and executive director of Sino Union Petroleum & Chemical International Limited, a public listed company in Hong Kong （“the Company”）. A majority shareholder of the Company, he holds more than 344million shares, which

5、 represents approximately 57.22% of the Companys total issued capital. The 1stdefendant is a businessman, who used to be the chairman of several listed companies. The 2nddefendant is a licensed stockbroker and a major shareholder of Cheer Union Securities Ltd, a securities brokerage firm. Sometime i

6、n early2007, the plaintiff met the 1stdefendant through the 2nddefendants introduction. How close was the relationship between the plaintiff and the 1stdefendant since then is in dispute. Iwill return to it when I consider the question of material nondisclosure. It is the plaintiffs case that after

7、they were introduced to each other, the 1stdefendant on occasions told the plaintiff that he had incurred substantial loss trading in the Companys shares and asked the plaintiff to help him out without, however, indicating how. Then in early March2009, the 1stdefendant turned up uninvited at the pla

8、intiffs office and demanded the plaintiff to give him 100million shares in the Company. The plaintiff refused. The 1stdefendant persisted but was unsuccessful. He then left in fit of pique. In his first affirmation, the plaintiff went on to say: “The March Incidents9. One afternoon in early March 20

9、09, D1 came to my Office uninvited and demanded that I give him 100 million shares in my Company （the Shares） to tie him over these difficult times. I rejected this demand outright, telling him that I could not help him and that his difficulties were none of my business. D1 insisted on my help and e

10、ven declared that he would repay me double in the future. I reiterated my stance and apologized. D1 then left in fit of pique.10. Shortly thereafter being an afternoon in or around mid-to-late March 2009, I returned to my Office after lunch and noticed two unknown men waiting in the reception area.

11、I asked them whom they were looking for, to which one of them replied that they were looking for Mr. X. I thereupon invited them to the conference room. Once inside, one of the men told me that they represented D1 and that they were there to collect the Shares. The other man left the conference room

12、 and returned shortly with another 7 to 8 men, each of whom carried a backpack. One man identified himself as Dai Huen Gou Dee （who I later learnt is the 4thDefendant herein Wong Chin Yick （D4） who spat out in a very loud voice my name in Cantonese. I told D4 that I did not know him and had no monet

13、ary dealings with D1. I also told them to leave, failing which I would call the police.11. D4 became furious and warned me in an aggressive manner that if I ever reported the matter to the police, he would burn down my Office. At the same time, the group of men forcefully threw down their backpacks

14、on the floor making a loud clatter, thus revealing in no uncertain terms the presence of metal implements inside the backpacks.12. Apparently on overhearing the commotion, Mr Ching Man Kee （Ching）, a director of my Company, burst into the conference room to find out what was going on. The group of m

15、en then made the same demand of Ching. Once more I asked the men to leave immediately or else I would call the police. D4 told me I had three days to make the necessary arrangements or otherwise they would not treat me with courtesy and left. I was terrified for my own personal safety. I genuinely b

16、elieved that imminent bodily harm would be inflicted on me or someone close to me unless I yielded to their demand.13. D1 returned to my Office the next day accompanied by D2 and told me that D4 had also invested in my Companys shares and suffered loss such that D4 would also benefit from the Shares

17、 which I was asked to hand over. D1 also said that should I refuse to hand over the Shares, I would suffer enormous consequences and that D4s gang would do something harmful to me”. I was given to understand that D4 was associated with a well know triad society in Hong Kong. I asked D1 whether he co

18、uld show me records of his losses. D1 refused and told me to cooperate with him.14. D1 told me he would withhold disposal of the Shares for three months but stressed that I must arrange for the transfer of the Shares immediately or else a life will be taken away. It was made patently clear to me tha

19、t unless I gave D1 and D4 the Shares, I would suffer grievous bodily harm or be killed. Further, I had no doubt in my mind that these were not empty threats and that the Defendants were fully capable of carrying them out if I did not yield to their demands, particularly having regard to D4s involvem

20、ent.15. Under extreme duress and coercion, I had no alternative but to yield to their demand for the Shares. D1 told me the Shares would be held in the name of the 3rdDefendant, Chan Kwai Nam （D3）, and that D2 and D3 would attend at my Office the next day to complete the formalities.Purported Share

21、Purchase Agreement16. In the evening of the same day, I contacted Zhou Aiguo （Zhou） whom I have known for upwards of 10 years and knew that he held a substantial amount of shares in my Company. I told him I needed shares in my Company on an urgent basis and offered to buy 100 million shares from Zho

22、u at the price of HK$1.35 per share. I further told Zhou that he would have to transfer the Shares directly to D1 or his nominee as the transfer had to be effected the next day but I would pay him the purchase price by instalments. Zhou accepted my offer straightaway and agreed to attend at my Offic

23、e the next day to transfer the Shares to D1 or his nominee.17. On or about 26th March 2009, a Share Purchase Agreement was executed at my Office by Zhou as Transferor, D3 as Transferee and D2 as Guarantor to effect the purported transfer of the Shares from Zhou to D3 （see pages 12 to 13 of X-1）. The

24、 Share Purchase Agreement was prepared by D2. The consideration for the transfer of the Shares is stated as HK$135 million, which was paid by me as detailed below. The Shares Purchase Agreement also provided for a lockup period of three months during which D3 could not dispose of the Shares and D2 i

25、s said to have given an irrevocable personal guarantee in respect of D3s obligation. Bought and Sold Notes were also signed on the same day （see page 14 of X-1）.The April Incidents18. I am informed by Zhou and verily believe that D2 contacted Zhou in the afternoon of 2nd April 2009 requesting a meet

26、ing as some signatures were missing. Zhou agreed and arranged to meet D2 inside a coffee shop at Union Plaza in Shenzhen, PRC. As soon as Zhou arrived at the coffee shop, he was immediately surrounded by D2 and a group of 5 to 6 men, all of whom behaved in a threatening manner. D2 made plain to Zhou

27、 that he would not be allowed to leave the coffee shop unless he signed a document purporting to acknowledge receipt from D3 of an amount in RMB equivalent to HK$135 million as payment for the Shares.19. Zhou, fearing for his life and personal safety, immediately telephoned me and asked me what to d

28、o. Zhou told me over the telephone that he was surrounded by a large group of hostile men and sounded terrified. I was extremely worried as there was no doubt in my mind that the Defendants would stop at nothing to get what they wanted. I therefore urged him to sign the Receipt （see page 15 of X-1）

29、and leave the coffee shop immediately, despite the fact that no consideration for the Shares was ever paid by D3, D1, D2 or D4. In any event, I considered whether or not Zhou signed the Receipt made little or no practical difference since the transfer of the Shares had been effected. Zhou later told

30、 me that he believed he had no alternative but to sign the Receipt and would have done the same even if he had not been able to reach me at the time.20. At around 1 pm on 3rd April 2009, I met D1 and D2 at the Macau Jockey Club in the Shun Tak Centre. I was accompanied by Ching. During this evening,

31、 D1 said to me now that the matter has been settled we should each go our separate ways. He also mentioned that he would later give us HK$1.5 million for yum cha i.e. as a token of appreciation. I did not give much thought to this at the time. Subsequently, I learnt that D2 did in fact leave HK$1.5 million at my Office but I told Ching to take it as I did not want D1s money.21. I later discovered that D1 and D3 had apparently disposed all of the Shares on 3rdApril 2009 for approximately HK$77 million （see pages 16 to 19 at X-1）.Demand for Further Shares22. While I was in Indon