A

HCA 1163/2013

- 2 -

B
C

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1163 of 2013

__________________
E
F
G
H

BETWEEN

HOH HAN KEYET

Plaintiff
AND

ARTIMAX INVESTMENT LIMITED

1st Defendant

G
H

()
I
J

HOH KIANG NGAN

2nd Defendant

SHARIKAT YING MUI SDN BHD

(By Original Action)

3rd Defendant

__________________

K
L
M

SHARIKAT YING MUI SDN BHD

Plaintiff

AND

Q
R
S

M
N

HOH HAN KEYET

1st Defendant

ARTIMAX INVESTMENT LIMITED

2nd Defendant

O
P

J
K

AND BETWEEN

()

HOH KIANG PO

3rd Defendant

DAISY SUI KENG HON (NEE YEE) 4th

(AS
PERSONAL
OF
THE
ESTATE
LATE ROBERT KIANG CHAN HOH)

Defendant
OF
THE

(By Counterclaim)

Q
R
S

__________________
T

- 3 -

A
B
C

Before: Deputy High Court Judge Eugene Fung, SC in Court

Date of Hearing: 4-5 & 10 May 2016

B
C

Date of Judgment: 30 June 2016

D

JUDGMENT

A.

INTRODUCTION

1
H
I

These proceedings arise out of a dispute over the beneficial

ownership of one share in a private Hong Kong company, Artimax

Investment Limited (Artimax), the 1st defendant by Original Action

H
I

and the 2nd defendant by Counterclaim.

J

B.

THE RELEVANT FACTUAL BACKGROUND

B1.

The Hoh Family

The late Hoh Ying Chye (Hoh Senior) and his wife,

Madam Yow Yow Mui (Madam Yow), had seven children:

N

(1)
O
P
Q
R

on 24 December 2007;

(2)

Linda Hoh Yuet Ngo (Linda), who passed away in 1959;

(3)

Maureen Yuet Ming Oborn (nee Hoh) (Maureen);

(4)

Derek Hoh Kiang Howe (Derek);

(5)

George Hoh Kiang Po (George), the 3rd defendant by

Counterclaim;

S
T

Robert Hoh Kiang Chan (Robert), who passed away

(6)

Frank Hoh Kiang Ngan (Frank), the 2nd defendant by

Counterclaim;

Q
R
S
T

- 4 -

(7)

Richard Hoh Kiang Seong (Richard).

Hoh Senior passed away on 21 April 1988.

D
E

Robert was married to Daisy Sui Keng Hoh (Daisy).

Their son is Han Keyet Hoh (Han), the plaintiff by Original Action and
F

the 1st defendant by Counterclaim.

B2.
H
I

Sharikat Ying Mui Sendirian Berhad (SYM) and its Principal

Activities

SYM is a private limited company incorporated in Malaysia

H
I

on 26 September 1968. The original subscribers of SYMs shares were

J
K

Hoh Senior and Madam Yow, each holding one share. SYM is the 3rd
defendant by Original Action and the plaintiff by Counterclaim in these

J
K

proceedings.
L
M

SYM is currently controlled exclusively by the six children

and the various grandchildren of Hoh Senior.

N
O

According to the Directors Report in the Annual

Report/Financial Statements of SYM from 1998 to 2013, the principal

P
Q
R
S

activities of SYM were investment holding, the letting of properties,

pawnshop business, trading of gold and jewellery, and general trading.
8

At the material times, SYM also owned shares in the

following pawnshop companies incorporated and operating in Malaysia

P
Q
R
S

(collectively the Pawnshops):

T

- 5 -

(1)

1998);

(2)

(3)

Choong Thye Pawnshop Sdn Bhd (incorporated on

28 January 2004); and

(4)
G

B3.
9

B
C
D
E
F

Choong Yee Pawnshop Sdn Bhd (incorporated on 11 June

1997).

I
J

Cheong Fatt Pawnshop Sdn Bhd (incorporated on 9 May

1998);

Choong Teck Pawnshop Sdn Bhd (incorporated on 8 May

Opesco Investment Limited (Opesco) and Artimax Investment

Limited
Opesco was incorporated in Hong Kong as a limited

G
H
I
J

company on 26 January 1988. At all material times, the only registered

K
L

shareholders of Opesco were Derek and George, and the only directors
were Derek, George and Robert. Opesco was wound up by the Hong

K
L

Kong court on 16 March 2005.

M
N

10

It is common ground that Opesco had been used on various

occasions by SYM and certain Hoh family members as a corporate

O
P
Q
R

vehicle to make loans to the Pawnshops. The use of Opesco to make

loans to the Pawnshops was due to tax reasons.
11

Artimax was incorporated in Hong Kong as a limited

company on 22 October 1999. At the time of incorporation, the only

O
P
Q
R

registered shareholders and directors were Robert, George and Frank.

S
T

Upon Roberts death on 24 December 2007, George and Frank became

the only directors of Artimax.

S
T

- 6 -

A
B

B4.

Roberts Death in 2007 and the Subsequent Attempted Transfer

Roberts Share to Han

12
D
E

As mentioned earlier, Robert passed away on 24 December

2007. By his will dated November 1964, Daisy was appointed to be the
sole executrix of Roberts estate (the Estate), and was bequeathed and

D
E

devised all of Roberts property absolutely.

F
G

13

On 12 October 2012, probate in respect of the Estate was

granted to Daisy in Hong Kong (Probate). Roberts one share in

H
I
J
K

Artimax (Robert Share) was included in the Schedule of Assets and

Liabilities attached to the Probate.
14

As the sole executrix and beneficiary of the Estate, Daisy

elected to register Han as the holder of Roberts Share. By an instrument

H
I
J
K

of transfer dated 13 December 2012, Daisy transferred Roberts Share to

L

Han as a gift (the Transfer).

15
N

By a letter dated 17 December 2012, Daisy requested

Artimaxs Board of Directors to effect the Transfer.

N
O

16
P

On 20 December 2012, George, in his capacity as a director

of Artimax, issued a Notice of Board of Directors Meeting to convene a

meeting on 28 December 2012 to (1) approve the Transfer from Daisy to

P
Q

Han, and (2) Hans name be entered in Artimaxs register of members as

R

the holder of Roberts Share.

17
T

On 28 December 2012, Franks solicitors wrote to George

stating that Frank would not attend the meeting as he needed to see

- 7 -

A
B
C
D
E
F
G

evidence of Daisys right to administer the Estate in Hong Kong and the
instrument of transfer before considering the proposed transfer.
18

The board meeting of Artimax did not take place on

28 December 2012 as Frank was absent and no quorum was formed.

19

On 3 January 2013, Chartac Secretaries Limited (the

Company Secretary of Artimax) provided Franks solicitors with (1) the

B
C
D
E
F
G

Probate, (2) the Request for Registration of Share Transfer dated

H
I
J
K

17 December 2012 signed by Daisy seeking the Transfer and (3) an

instrument of transfer dated 13 December 2012 signed by Daisy and Han.
20

On 3 January 2013, George issued another Notice of Board

of Directors Meeting to convene a board meeting of Artimax on

H
I
J
K

11 January 2013 to consider and vote on the two proposed resolutions set
L

out in the Notice of 20 December 2012.

21
N
O

On 10 January 2013, Franks solicitors wrote to George and

Daisy stating that (1) the 3 shares in Artimax have always been held on
trust for SYM, (2) SYM would direct the shareholders of Artimax to

N
O

transfer their shares to SYM within 28 days and (3) the proposed transfer
P
Q
R
S

of Roberts Share to Han would be inappropriate since it was held on trust

for SYM.
22

P
Q

Accordingly, the proposed board meeting of Artimax did not

take place on 11 January 2013 as Frank did not attend the meeting and no

R
S

quorum was formed.

T

- 8 -

B5.

23

These Proceedings
On 28 June 2013, Han issued the Writ in these proceedings

for (1) a declaration that he is the legal and beneficial owner of Roberts

B
C
D

Share, and (2) an order that his name be entered in Artimaxs register of
E

members as the holder of Roberts Share.

24
G
H

By counterclaim, SYM seeks (1) a declaration that Roberts

Share and the one share in Artimax registered in Georges name are held
on trust for SYM and (2) consequential orders for the issuance of new

G
H

share certificates in SYMs name and rectification of Artimax register of

I

members.

C.

THE ISSUE FOR DETERMINATION

25
L
M
N
O

Both parties accept that there is only one core issue for my

determination in these proceedings, namely, whether the shares in

Artimax were held by the registered shareholders on trust for SYM.
26

In particular, Mr Douglas Lam SC (leading Mr Justin Ho)

accepts on behalf of Frank and SYM that if there was no trust in relation

L
M
N
O

to the shares in Artimax, his clients would accept the validity of the
P
Q
R
S

transfer of Roberts Share to Han and that Han would be entitled to have
his name entered in Artimaxs register of members.
27

Frank and SYMs case is that the shares in Artimax were

held by the three registered shareholders on (1) an express trust, or

P
Q
R
S

(2) alternatively a common intention constructive trust, for SYM (the

T

Alleged Trust).

- 9 -

A
B
C

28

As it is Frank and SYM who assert the existence of the

Alleged Trust, the burden must fall on them to prove that such a trust

B
C

existed.
D
E
F
G

D.

EXPRESS TRUST

D1.

The Relevant Principles

29

E
F

There are two ways of completely constituting an inter vivos

(or a lifetime) trust: (1) either by the settlor declaring that he himself will
H
I

hold certain of his property as trustee upon certain trusts, or (2) by the
settlor transferring the property intending to be the subject matter of the

H
I

trust to persons as trustees upon certain trusts declared by him. See

J

Milroy v Lord (1862) 4 De GF & J 264 at 274 (Turner LJ).

30
L
M

Further, an express trust will not be validly created unless

the three certainties are present.

A trust would only come into

existence if there was certainty of words, certainty of subject matter and

L
M

certainty of objects: Knight v Knight (1840) 3 Beav 148 at 173

N

(Lord Langdale MR).

D2.
P
Q
R

31

Frank and SYMs Case of Express Trust

Although the phrase express or implied trust was used in

their pleading, Frank and SYM clarified in their written Opening

Submissions that the phrase is intended to mean an express trust which

P
Q
R

arises from the intention of the relevant persons to create a trust declared
S
T

either (1) directly (ie by way of express declaration) or (2) indirectly

(ie to be inferred by expressions of wish or desire which on their true

S
T

construction amount to declarations of trust).

U

- 10 -

A
B
C

32

As far as their case of express trust is concerned, Frank and

SYM submitted in their written Opening Submissions that:

(1)

the settlors of the express trust were Robert, Frank and

B
C
D

George;
E

(2)

there was an express lifetime declaration of trust (ie a

self-declaration) by Robert, Frank and George as trustees of

E
F

their respective share in Artimax; and

G

(3)

the correct approach is to consider whether Robert, Frank

and George had the requisite intention to declare trusts in

G
H

favour of SYM at the time of (or just prior to) the

I
J
K
L
M
N

incorporation of Artimax.
33

Further, in their written Opening Submissions, Frank and

SYM relied on the following matters pleaded in their Defence and

Amended Counterclaim (D&AC) to support their case of express trust:
At all material times since its incorporation, Artimax has been
used by SYM, and continues to be used by SYM, as an offshore
vehicle to advance funds by way of loan to the Pawnshops.
[39.2 of D&AC]

I
J
K
L
M
N

Artimax has undertaken the role of providing finance to the

Pawnshops that had previously been undertaken by Opesco.
[39.4 of D&AC]

The existence of the Trust was:

Q
R
S
T

40.1 anticipated and discussed at a meeting held on

19 September 1999 shortly prior to the incorporation of
Artimax on 22 October 1999, which was held at Georges
house and attended by George, Robert and Frank
40.2 confirmed at a meeting attended by Robert, George and
Frank and their sister Maureen, which was held at Georges
house on 9 January 2000, wherein Robert, George and Frank
agreed that they each hold their shares in Artimax on trust for
SYM

Q
R
S
T

- 11 -

40.3 confirmed at a further meeting attended by Robert,

George, Frank and Maureen which was held at Georges house
on 9 July 2000, wherein Robert, George and Frank agreed
(again) that they each hold their shares in Artimax on trust for
SYM [40 of D&AC]

C
D
E

C
D

34

Nonetheless, Frank and SYM have not pleaded when the

Alleged Trust was created.

F

When requests for further and better

particulars were sought on the Alleged Trust, they were objected to by

Frank and SYM on the purported basis that the requests were for

F
G

evidence and not particulars.

H
I

35

At the end of his oral closing address, the court asked

Mr Lam when the Alleged Trust was said to be created. Mr Lam, for the
J
K

first time, advanced two alternative cases as to when the Alleged Trust
came into existence:
(1)

on 9 July 2000 at the family meeting at Georges house, or

J
K
L

alternatively
M

(2)

on 27 January 2000 (in the case of Robert and George) and

28 January 2000 (in the case of Frank) when each of them

M
N

was allotted one share in Artimax.

O
P
Q

D3.

D3a. My approach in assessing credibility and finding facts

Q

36
R

The Evidence and Findings of Fact

In making my findings of fact in this case, I adopt the

following general principles as to fact finding and assessment of

credibility I set out in Hui Cheung Fai v Daiwa Development Ltd

R
S

(unreported, HCA 1734/2009, 8 April 2014) at 77-80:

T

A
B
C
D
E
F
G
H
I
J
K
L
M
N
O
P
Q
R
S

- 12 A

77. Generally speaking, contemporaneous written documents

and documents which came into existence before the problems
in question emerged are of the greatest importance in assessing
credibility: Onassis v Vergottis [1968] 2 Lloyds Rep 403 at 431
(Lord Pearce)

B
C
D

78. In deciding whether to accept a witnesss account,

importance should also be attached to the inherent likelihood or
unlikelihood of an event having happened, or the apparent logic
of events: eg Lam Rogerio Sou Fung v Tan Soon Gin George
(unreported, HCA 2576/2005, 5th May 2011) 39 (Chu J).
79. In determining a witnesss credibility, I have also
attached importance to the consistency of the witnesss
evidence with undisputed or indisputable evidence, and the
internal consistency of the witness evidence. The latter type of
consistency is often tested by a comparison between the
witness oral testimony and his or her witness statement.
80. I have cautioned myself against the dangers of too readily
drawing conclusions about truthfulness and reliability solely or
mainly from the appearance of witnesses: Ting Kwok Keung v
Tam Dick Yuen (2002) 5 HKCFAR 336 at 36-37
(Bokhary PJ).
81. The practical approach to assessing credibility of
witnesses in a case such as the present may have best been
summarised by the words of Robert Goff LJ, as he then was, in
The Ocean Frost [1985] 1 Lloyds Rep 1 at 57:
Speaking from my experience, I have found it essential
in cases of fraud, when considering the credibility of
witnesses, always to test their veracity by reference to
the objective facts proved independently of their
testimony, in particular by reference to the documents in
the case, and also to pay particular regard to their
motives and to the overall probabilities. It is frequently
very difficult to tell whether a witness is telling the truth
or not; and where there is a conflict of evidence such as
there was in the present case, 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.
82. Whilst these words were spoken in the context of a fraud
case, I believe they are applicable to any case where a witness
credibility features prominently in the courts determination

E
F
G
H
I
J
K
L
M
N
O
P
Q
R
S

- 13 -

D3b. The evidential cogency of the Meeting Minutes

37

As mentioned earlier, contemporaneous documents are

generally of the greatest importance in assessing credibility. However,

where some evidence indicates that part of a contemporaneous document

E
F
G
H

might not be completely accurate, the court may need to accordingly

adjust the evidential weight to be put on the document in question.
38

On

19 September

1999,

family

meeting

E
F

(the

September 1999 Meeting) was held amongst George, Frank and Robert

G
H

at Georges house in Kuala Lumpur in Malaysia (Georges Residence).

I
J

39

A document headed Notes of Meeting on 19 September

1999 (the September 1999 Meeting Minutes) was prepared after the
K
L
M

September 1999 Meeting. There is a dispute between George and Frank

as to who prepared the document:
(1)

Georges evidence was that the September 1999 Meeting

Minutes (as well as the minutes of all the other family
meetings) were prepared by Robert and that it was Roberts

K
L
M
N

practice to prepare minutes of meetings after the event.

O

(2)

Franks evidence was that only the minutes of meeting

which contain a footer were prepared by Robert and that the

minutes which do not contain a footer were prepared by

George. Because the September 1999 Meeting Minutes do

not contain a footer, Frank believed that they were prepared

Q
R

by George and not Robert.

S
T

(3)

It seems to me that Franks evidence of the authorship of the

September 1999 Meeting Minutes is based on a hypothesis

S
T

and not on personal knowledge. I have not been shown

U

- 14 -

sufficient material to come to a view that Franks hypothesis

is correct.

(4)

Further, George was cross-examined on the authorship of the

minutes and I accept his evidence that he did not prepare the
September 1999 Meeting Minutes (or any other meeting

D
E

minutes relied upon by the parties in these proceedings).

F

(5)

who prepared all the family meeting minutes.

G
H
I
J

On a balance of probabilities, I find that Robert was the one

40

The following relevant matters were recorded in the

September 1999 Meeting Minutes:

1.

OPESCO:

ASSETS:
K
L
M
N
O
P
Q
R
S
T
U
V

F
G
H
I
J

All the assets are in cash comprising +/RM 13 million.

All the assets are
invested in SYM by way of loans which
on lent to the pawnshops.

OPESCO SHARES: There are only two shares in Opesco.

One share each held by George and
Howe.
DIRECTORS:

There are three directors of the company.

DECISION:

A new offshore company to be

incorporated to take over all the assets of
Opesco. (New Opesco) K.K. San and
Liew are looking into the affairs of
Opesco and SYM to advise how this is to
be implemented, especially, as to the
accounting implications.
The new company will issue 5 shares
to be held by [Robert], [Maureen],
[Derek],
[George],
[Frank]
and
[Richard] one share each.
These
shares are to be held in trust by every
one of them in trust for SYM.
This decision should be implemented as
soon as possible. The next AGM will

K
L
M
N
O
P
Q
R
S
T
U
V

- 15 -

also decide who the directors of the

current Opesco should be.

C
D
E
F
G
H
I
J
K

B
C

41

There was no direct evidence as to when the September 1999

Meeting Minutes were prepared by Robert.

Nonetheless, the parties

accepted that the minutes were available at the next meeting in

January 2000. I therefore treat the September 1999 Meeting Minutes (as
well as the other relevant subsequent minutes) to be a fairly
contemporaneous document.
42

There is evidence to suggest that the September 1999

Meeting Minutes do not accurately reflect what happened at the

September 1999 Meeting.
(1)

There are two obvious typographical mistakes in these

minutes. The first is that the phrase invested in SYM in the
sentence All the assets are invested in SYM by way of loans

D
E
F
G
H
I
J
K
L

which on lent to the pawnshops should read invested by

M

SYM.

The other mistake is that the number of shares in

the phrase new company will issue 5 shares should be six

because six individuals were identified. Both George and

Frank accepted that these were mistakes. However, the two

M
N
O

typographical errors on their own do not cause me to doubt

P
Q

the accuracy of the minutes contents.

(2)

In addition to the two typographical errors, Frank gave

P
Q

evidence to contend that the reference in the minutes to

R
S

Maureen as an intended shareholder of the new company

was an error. In his witness statement, he stated that he

R
S

did not believe Maureen was ever intended to be a

T

shareholder of Artimax.

- 16 -

(3)

In his closing submissions, Mr Lam sought to downplay

Franks evidence referred to in the previous sub-paragraph

B
C

by describing the error to be minor in nature. I cannot

D

agree with this description. It seems to me that the effect of

Franks evidence is that the 1999 Meeting Minutes have

recorded an event which did not happen. No explanation

was proffered as to why the minutes would record a

D
E
F

discussion when none was, according to Frank, supposed to

G

have taken place.

43
I

I am therefore not prepared to proceed on the basis that the

September 1999 Meeting Minutes fully record what happened at the time.

44
K
L
M
N

The next family meeting took place at Georges Residence

on 9 January 2000 (the January 2000 Meeting).

Robert, George,

Frank and Maureen were recorded to be present at this meeting.

45

A document headed Minutes of Meeting on 9 January

2000 and marked Restricted (the January 2000 Meeting Minutes)

K
L
M
N

was prepared after the January 2000 Meeting. The following relevant
O
P
Q

matters were recorded in the January 2000 Meeting Minutes:

1.

R
S
T

OPESCO:

NEW COMPANY:

LOAN TO ARTIMAX:

New company already incorporated

in Hongkong Artimax Investments
Ltd.
There will be three
shareholders [Robert], [George] and
[Frank] who hold their shares in
trust for SYM. They will also be the
three directors of the company
Presently Artimax is financed by
loans from SYM. Also annual
dividends by SYM are paid out of

Q
R
S
T

- 17 -

B
C
D
E

DECISION:

F
G
H

the accounts of Artimax (Opesco).

In Artimaxs (Opesco) books this is
treated as a repayment of part of the
loan to SYM. Therefore, the loan
by SYM to Artimax (Opesco) will
be reduced. However, in practice,
SYM makes new loans to Artimax
through its earning in the
pawnshops

The dividends paid by SYM and the

new loans/investments by SYM to
Artimax should be made on
irregular dates so as not to create a
pattern

The money from the unredeemed

pledges (gold money) due to YYM
or SYM should also be booked
directly into Artimaxs account

I
J
K

Binky will be entitled to a share

of any dividends paid out of the
funds of Artimax (Opesco)

These
decisions
should
be
implemented as soon as possible

M
N

46

In the January 2000 Meeting Minutes, the operations of

Artimax were described as follows: (1) Artimax was financed by loans

C
D
E

G
H
I
J
K
L
M
N

from SYM, (2) the annual dividends made by SYM would be paid out of
O
P
Q
R

Artimaxs accounts, (3) such dividends would be treated in Artimaxs

books as Artimaxs repayments of loans.
47

In his first witness statement, Frank disagreed with the

description of Artimaxs operations in the 2000 January Meeting Minutes.

O
P
Q
R

He said:
S
T

I do not understand why the minutes refer to Artimax being

financed by loans from SYM or payment of dividends by
SYM. To my understanding, and from a review of SYMs
books and records, Artimax has not received loans from SYM;

- 18 -

rather, Artimax places funds on behalf of SYMs shareholders,

third parties and SYM in the Pawnshops.

C
D
E
F

48

In his cross-examination, Frank stated that the advances

from SYM to Artimax were in fact deposits and not loans. If that were
so, there would not have been any repayment of loans by Artimax to
SYM in any form, and the references to repayment and reduction of loans
in the January 2000 Meeting Minutes would therefore not be accurate.

G
H
I
J
K
L
M
N
O
P
Q
R
S

D
E
F
G

49

Accordingly, on Franks case, there would be doubts about

the precision of the language used in the January 2000 Meeting Minutes.
It seems to me that one cannot take the document entirely at face value to
determine whether it fully records what happened at the time.
50

After the January 2000 Meeting, the next family meeting

took place at Georges Residence on 9 July 2000 (the July 2000

Meeting). Robert, George, Frank and Maureen were recorded to be
present at this meeting.
51

A document headed Minutes of Meeting on 9 July 2000

and marked Restricted (the July 2000 Meeting Minutes) was

prepared after the July 2000 Meeting. The following relevant matters
were recorded in the July 2000 Meeting Minutes:
1. ARTIMAX

H
I
J
K
L
M

New company already incorporated in

Hongkong Artimax Investments Ltd. has
been registered.
There will be three
shareholders [Robert], [George] and [Frank]
who hold their shares in trust for SYM.
They will also be the three directors of the
company

T
U

N
O
P
Q
R
S
T

Artimax will have one income. This is the

interest earned from its deposits with the

U
V

- 19 -

B
C
D
E
F

DECISION:

G
H

pawnshops.
These earnings should be
booked into Artimax books as income and
reinvested into the pawnshop by way of
deposits

The income earned by SYM, that is, profits

from rentals, interest from deposits and
dividends as a shareholder of the pawnshops
should be lent to Artimax in accordance with
current practice

The dividends paid by SYM should be paid

out of SYMs accounts in the usual company
practice and should be made on irregular
dates so as not to create a pattern

E
F
G

The money from the unredeemed pledges

(gold money) due to SYM should also be
booked directly into Artimaxs account.
This is to be done twice yearly

From now, in June/July 50% of the money

from half years takings will be remitted
off-shore. The balance of 50% should be
divided as per current practice. To date
approx: A$103,000 was sent to Australia.
This will be re-banked in Singapore in due
course

In December/January the total proceeds of

unredeemed pledges will be divided as
current practice

Binky will be entitled to a share of any

dividends paid out of the funds of Artimax.

I
J
K
L
M

P
Q
R
S

Decision:

Frank is to open an account in the name of a

new company in a bank in Singapore. The
objective is that the account will attract no
tax, not subject to any foreign exchange
controls and any funds can be easily paid
into and out of the account.
The
shareholders of this company will be
[Frank]; [George]; [Maureen] and [Robert].
These share will not be held in trust. To be
implemented as soon as possible

K
L

N
O
P
Q
R
S

- 20 -

A
B
C

52

There are the following matters which suggest that the

July 2000 Meeting Minutes do not appear to fully record what happened

B
C

at the time:
D

(1)
E

First, Robert, George and Frank had already become

directors and shareholders of Artimax by the time when the
July 2000 Meeting took place. Yet, the minutes refer to their

position as director and shareholder in the future tense

suggesting that they had not yet become a director and

E
F
G

shareholder of Artimax.
H

(2)

Indeed, the exact references to Robert, George and Frank

becoming a director and shareholder of Artimax in the

H
I

July 2000 Meeting Minutes can be also found in the

J

January 2000 Meeting Minutes.

This suggests that the

author of the July 2000 Meeting Minutes simply took such

J
K

references from the previous meeting minutes. In Georges

cross-examination, he suggested that this was a copy and

paste kind of thing.

(3)
N

account. If that were the case, the phrase in the July 2000
Meeting Minutes (dividends paid by SYM should be paid

P
Q
R

53

Further, Frank in his cross-examination stated it was always

the case that SYM would pay dividends using Artimaxs

N
O

out of SYMs accounts) would not be accurate.

For the above reasons, I am unable to take the three sets of

minutes (namely the September 1999 Meeting Minutes, the January 2000

Meeting Minutes and the July 2000 Meeting Minutes) as having fully and
S
T

accurately recorded what happened at the particular meeting. In order for

me to determine whether there was any discussion at the three meetings

S
T

amongst Robert, George and Frank in relation to the holding of Artimax

U

- 21 -

A
B
C

shares on trust for SYM, I need to examine the other available evidence
in addition to the three sets of minutes.

B
C

D3c. The evidence from George and Frank

54

Georges evidence from his first witness statement in

relation to the September 1999 Meeting was as follows:

(1)

There was no particular proposed agenda for the meeting.

(2)

At this meeting, there were discussions about the tax benefits

in providing loans to the Pawnshops from Malaysia through

an offshore company.

(3)
J

George had become distant with Derek.

As Derek and

was a concern of a deadlock, Robert, Frank and George

decided at this meeting to start a new company that might be
used to act as an alternative nominee vehicle to Opesco for

H
I

George were the only two shareholders of Opesco and there

J
K
L

those who wished to deposit or lend funds to the Pawnshops

M

to earn income.
(4)

The above was not unchallenged in cross-examination and I find them as

facts.

Q
R
S
T

the use of the new company in the lending arrangements.

O
P

At the time of the meeting, there was no definitive plan as to

P
Q

55

Franks evidence on what happened at the three meetings

was simple. In his first witness statement, Frank stated that he did not
have a clear memory of the relevant events leading to the incorporation of
Artimax and that, to the best of his recollection, it was George or Robert
who came up with the idea to incorporate or acquire another offshore

R
S
T

- 22 -

A
B
C

entity to replace Opesco.

Indeed, in his cross-examination, Frank

acknowledged that he had no independent recollection of what happened

B
C

at the various meetings and that the meeting minutes were all he could go
D

by.

56
F
G

Significantly, Frank in his cross-examination gave positive

evidence that there was no discussion about the shares in Artimax being
held on trust for SYM at the January 2000 Meeting or the July 2000

F
G

Meeting.
H
I
J
K
L
M
N

Q. And my question is: do you have any recollection as to

the discussion of trusts in this particular meeting [namely the
January 2000 Meeting]?
A. My Lord, these minutes reflect the fact that the company
has already been incorporated. Theres no further discussion.
Discussions were done prior to this. These minutes only
confirm that the company, Artimax, had been incorporated in
Hong Kong and its re-emphasised that its held in trust for
SYM. Thats all. Theres no discussion. Its telling
members you know, its just like my job in Australia.
I bought a property; I report I bought a property. Theres no
discussion. The discussion was the prior meeting, Frank, you
are to invest in properties in Australia; thats a discussion. The
next following meeting I report, I said, I have done this. This
is exactly what these minutes tell us. I hope I answered the
question correctly.

I
J
K
L
M
N
O

P
Q

Q. Was there any discussions about say, for example, the use
of trust deed in that particularA.

Not at this meeting, because its already done

P
Q

HIS LORDSHIP: So let me see if I understand your

evidence. Youre saying that all the discussions about trusts
took place before this meeting on 9 January 2000?

A. Some of the yes, some of the discussions, yeah, when

the company was to be operated as it will, you know, its going

- 23 -

B
C
D
E

HIS LORDSHIP:
Yes, and what we see recorded in this
document, these minutes, on 9 January you say it simply
confirms what was discussed previously?
Is that your
evidence?

A.

F
G

to be held in trust. Because its part of SYM. Its not my

company. I am in Australia. Really, I mean if its for three of
our own benefit why are he why arent you here? Ive got
my own business in Australia, my Lord.

57

Yes, its already done, you know?

E
F

In the written closing submissions of Frank and SYM, it was

acknowledged that Frank gave evidence that there were no discussions

G
H

regarding the trust arrangement in the Artimax shares during the

I
J

January 2000 Meeting and the July 2000 Meeting. However, Mr Lam
submitted that because Frank later said in his oral testimony that the

I
J

minutes reflected what was discussed, the evidential weight to be given to

K
L
M
N
O
P
Q
R

the meeting minutes should not be altered.

I do not accept this

submission.
(1)

K
L

In my view, Franks subsequent evidence was consistent

with his earlier evidence as quoted in the previous
paragraph:
HIS LORDSHIP: Yes. My understanding correct me if
I am wrong is that this [i.e. the September 1999 Meeting]
was the first meeting that this issue of trusts was discussed and
then in the meetings afterwards, in the following, in January,
you said it wasA. It was done.
HIS LORDSHIP: It was done-

M
N
O
P
Q
R

A. Yeah.
S
T

HIS LORDSHIP::- so that there was no longer any discussion.

That is what you said this morning.
A. Yeah, yeah.

S
T

- 24 -

HIS LORDSHIP:
That is my understanding, so I just
wanted to see whether my understanding is correct.

A. Correct, my Lord, because my understanding is also

because I read the minutes and the minutes reflect what was
discussed, and if it says a new company has already
incorporated in Hong Kong, I take it that thats it, because
2000, you know? Its 16 years and Im 70 (?) years old.

D
E

(2)

In the above exchanges, Frank was confirming to the Court

B
C
D
E
F

that there was no discussion about trust over the Artimax

G

shares at the meetings in 2000. He was reaffirming his

earlier evidence as summarised in the previous paragraph.

(3)
I

issue of trust. This is because such a reference would be

directly inconsistent with his earlier evidence and his
confirmation of the courts understanding that no issue of

When Frank stated that the minutes reflected what was

discussed, I did not understand him to be referring to the

I
J
K

trust was discussed at the meetings in 2000.

L

(4)

In any event, there was no re-examination of Frank.

58

Georges evidence was that:

(1)
O

the shares of the new company (which later became

Artimax) were not intended to be held on trust for SYM, and
that there was no discussion at any of the three meetings on

O
P

whether the shares of the new company (or Artimax) should

Q
R

(2)

be held on trust by the shareholders for SYM;

he believed that Robert made a mistake in the minutes

because they discussed in the meeting that monies would be

S
T

deposited to the Pawnshops through Antimax by the lenders

and that Robert might have confused that with whether the
Artimax shares should be held on trust for SYM;

S
T

- 25 -

(3)

C
D
E

59

he raised the mistake with Robert on a few occasions but

Robert did not amend the minutes.

On the whole, I accept Georges evidence that there was no

discussion at the September 1999 Meeting, the January 2000 Meeting or

the July 2000 Meeting that the shares of the new company (or Artimax)
F
G
H
I
J
K

would be held on trust by the shareholders for SYM.

(1)

In his written closing submissions, Mr Lam gave some

examples and submitted that Georges evidence was
inherently improbable.
(a) First, it was said that the court should be cautious not to
place too much reliance on Georges evidence of what
happened over 16 years ago which is contradicted by
the three meeting minutes. With all things being equal,

F
G
H
I
J
K

I accept as a matter of general principle that

L
M

contemporaneous documents are more reliable than a

witnesss recollection of something which happened a

L
M

long time ago. However, for the reasons given above,

N
O
P

I am unable to take the three meeting minutes on their

face value. Further, George was the only witness in
these proceedings who was in a position to give
evidence about what happened (and what did not

N
O
P

happen) at the three meetings. His evidence is that what

Q
R

was recorded in the three meeting minutes did not

happen. In these circumstances, I cannot simply prefer

Q
R

what the minutes record to Georges evidence.

S
T

(b) Second, Mr Lam submitted that Robert was a senior

partner of a well-known law firm in Malaysia and that it

S
T

is inherently unlikely that he would make repeated

U

- 26 -

A
B
C

mistakes in the meeting minutes. No one is infallible.

In any event, for the reasons given above, the meeting

B
C

minutes do not appear to fully record what happened at

D
E

the time.

I am unable to say that it is inherently

unlikely for Robert, as experienced as he was as a

lawyer, to make mistakes in the three meeting minutes.

D
E
F

(c) Third, as far as Georges complaints to Robert regarding

G
H

the mistake in the meeting minutes were concerned,

Mr Lam submitted that such complaints did not happen

G
H

because they were not subsequently recorded in writing.

I
J

I do not accept this submission.

(i) In cross-examination, George said that the meetings

I
J

were informal family meetings and it was not the

K
L
M
N

case that everything had to be minuted. He said:

you know, this is a family meeting. Its not
formal, everything must be minuted. Its just for us
to recall certain things. Its not a company meeting,
its a family meeting. Its a very informal family
meeting. And we dont come and say, Look, it must
be amended here, it must be amended there. We
make sure that, you know, it must be corrected at
some time.

O
P

K
L
M
N
O

I accept his evidence.

(i) Mr Lam sought to rely on the minutes of the

Q
R
S

meeting held on 27 December 1998 recording,

amongst other things, that the minutes of the
previous meeting were read and amended to reflect
certain matter.

It appears that the practice of

Q
R
S

reading and amending the minutes of the previous

T

meeting was no longer in place at the time when

- 27 -

September 1999

Meeting,

the

January 2000

Meeting and the July 2000 Meeting took place.

B
C

Therefore, I am not satisfied that Robert, George

D

and Franks practice of conducting such meetings

suggests that there should have been some record of

Georges complaints appearing in the meeting

minutes.

(2)

E
F

In my view, George was an honest witness.

He gave

evidence in a straight-forward and spontaneous manner.

Having seen and heard him giving evidence in the witness

G
H

box, I accept his evidence that there was no discussion at the

I

September 1999 Meeting, the January 2000 Meeting or the

July 2000 Meeting that the shares of the new company (or

I
J

Artimax) would be held on trust by the shareholders for

K
L
M
N

P
Q
R
S
T
U
V

D3d. Other evidence

60

The Annual Reports/Financial Statements of SYM have been

put into evidence in these proceedings. These include 15 sets of Annual

Reports/Financial Statements from 1999 to 2013.

SYM.

Each document

comprise (1) an annual Directors Report signed by Robert (from 1999 to

2006), George (from 1999 to 2010), Han (from 2007 to 2010), Richard
(from 2011 to 2013), Cordeilia Maria Hoh Yook Chui (Dereks daughter)
(from 2011 to 2013) and (2) an annual Report from a firm of independent
auditors.
61

O
P
Q
R

There is no dispute that SYMs Annual Reports/Financial

Statements never mentioned Artimax as a subsidiary or associated

company of SYM, or that SYM has any beneficial interest in Artimax.

S
T
U
V

- 28 -

A
B
C

62

In my view, SYMs Annual Reports/Financial Statements are

cogent evidence to suggest that the shares in Artimax are not subject to

B
C

any trust for SYM.

D

(1)
E

SYMs Annual Reports were approved by Robert at the

material times before his death in 2007. If he considered
that he was holding his one share in Artimax on trust for

SYM, I believe he would have told SYMs auditors about

this and such an interest would have been mentioned in the

E
F
G

Annual Reports.
H

(2)

Mr Lam submitted that the gold money (consisting of

surplus funds arising from the sale of proceeds of the

H
I

unredeemed pledges with the Pawnshops) was also not

J

recorded

in

SYMs

Annual

Reports

Annual

Reports/Financial Statements, and therefore suggested that

J
K

such documents do not present a complete picture of the

finances and affairs of SYM. I am unable to accept this

submission. In Georges cross-examination, he said that the

gold money was family money.

It has not been

satisfactorily demonstrated that SYM has any legal or

L
M
N

beneficial interest in the gold money. Accordingly, I am

O

unable to find that SYMs Annual Reports/Financial

Statements do not present a complete picture of SYMs

P
Q
R

financial affairs.
(3)

Mr Lam further suggested that Artimax was not referred to

in SYMs Annual Reports/Financial Statements because

O
P
Q
R

Artimax had no assets or liabilities of its own and was of

S

insignificant value.

I am also unable to accept this

suggestion. No evidence has been proffered to indicate that

T

this was SYMs directors thinking at the material time.

- 29 -

A
B
C

63

Further, there was another family meeting at Georges

Residence on 9 April 2004 (the April 2004 Meeting). Robert, George,

B
C

Frank, Maureen, Han and Lynn Hoh (Franks daughter) were recorded to
D
E

be present at this meeting. A document headed Minutes of Meeting on

9 April 2004 (the April 2004 Meeting Minutes) was prepared after

D
E

the April 2004 Meeting. Under the heading of Artimax in the minutes,
F

the following, amongst other things, was recorded:

It was discussed that Artimax (SYM) account should

eventually be wound up. Artimax by then will have nothing to
do with SYM. It will be used exclusively by [George], [Frank]
and [Maureen] for their respective deposits with the
pawnshops.

H
I
J

64

George gave evidence that such discussions took place at the

F
G
H
I
J

April 2004 Meeting and his evidence was not challenged in

K

cross-examination.

65
M
N

On its face, the discussion as recorded in the April 2004

Meeting Minutes suggests that the author (namely Robert) and those who
were present at the April 2004 Meeting did not consider Artimax to be

M
N

subject to any trust for SYM. Mr Lam suggested that the author was only
O
P

concerned with the function or operation, as opposed to ownership, of

Artimax in these minutes. However, it seems to me that if the Artimax

O
P

shares were held on trust for SYM, Robert would not have written in the
Q
R

April 2004 Meeting Minutes that Artimax would have nothing to do

with SYM when the Artimax account was wound up.

Q
R

- 30 -

D3e. My findings

66

I find that there was no discussion at the September 1999

Meeting, the January 2000 Meeting or the July 2000 Meeting that the

shares of the new company (or Artimax) would be held on trust by the
E

shareholders for SYM.

D4.

Two Alternative Cases on Express Trust

67
H
I

As mentioned in Section D2 above, Mr Lam on behalf of

Frank and SYM advanced two alternative cases as to when the alleged
express trust came into existence:
(1) on 9 July 2000 at the family meeting at Georges Residence,

or alternatively

(2) on 27 January 2000 (in the case of Robert and George) and
28 January 2000 (in the case of Frank) when each of them

was allotted one share in Artimax.

H
I
J
K
L
M

68
N

It is right to point out that neither of these cases is pleaded

by SYM, or suggested to Han or George in their cross-examination.

N
O

D4a. Express trust allegedly created on 9 July 2000

P

69
Q
R

As a result of my findings in Section D3 above that there

was no discussion at the July 2000 Meeting that the shares of Artimax
would be held on trust by the shareholders for SYM, it follows that Frank

Q
R

and SYMs primary case of express trust (that it was created at the
S

July 2000 Meeting) must be rejected.

- 31 -

A
B
C

70

In any event, this primary case is directly contradicted by

Franks evidence that there was no discussion of trust in relation to the

B
C

Artimax shares at the July 2000 Meeting (see Section D3c above).
D
E
F

D4b. Express trust allegedly created on 27 and 28 January 2000

71

As far as Frank and SYMs alternative case of express case

E
F

is concerned, Mr Lam submitted that (1) there was some discussion

G
H

and/or agreement amongst Robert, George and Frank at the

September 1999 Meeting and the January 2000 Meeting and (2) upon

G
H

being allotted the share in Artimax at the end of January 2000, each of
I

Robert, George and Frank immediately held the same on trust for SYM.

72
K
L

Again, in view of my findings that there was no discussion at

the September 1999 Meeting and the January 2000 Meeting that the
shares of Artimax would be held on trust by the shareholders for SYM,

K
L

Frank and SYMs alternative case of express trust must likewise be

M

rejected.

73
O
P
Q
R

In any event, it seems to me that Frank and SYMs

alternative case of express trust would fail as a matter of law.

(1) It is impossible for a settlor to create a presently existing
trust of future property. Future property means property
which a person does not presently own, but which he hopes
or expects will come into his ownership sometimes in the
future.

S
T

O
P
Q
R

It is immaterial whether the settlor makes a

purported voluntary assignment of future property to trustees

on declared trusts, or whether he purports to declare that he

S
T

himself is holding future property on certain trusts. If the

U

- 32 -

future property subsequently materialises into existing

property, the intended beneficiaries have no enforceable

B
C

th

claim to it. See Halsburys Laws of England (5 ed, 2013)

D

vol 98, 69.

(2) Accordingly, even if Robert, George and Frank purported to

D
E

declare that they would hold one share in Artimax for SYM
F

at the September 1999 Meeting or at the January 2000

Meeting (which according to my findings did not happen),

they would be seeking to create a trust of future property

(because each of them had not yet become a shareholder of

F
G
H

Artimax) and such a trust would fail as a matter of law.

I
J
K

D4c. Conclusion on Frank and SYMs case on express trust

74

For the above reasons, I find that the shares in Artimax are

J
K

not held by its registered shareholders on an express trust for SYM.

L
M
N

E.

COMMON INTENTION CONSTRUCTIVE TRUST

75

Where a property is vested only in one persons name (A),

M
N

the other party (B), in order to establish a beneficial interest, may be able
O
P

to establish a what is commonly known as a common intention

constructive trust by showing that it would be inequitable or

O
P

unconscionable for A to claim the entirety of the beneficial ownership.

Q
R

This requires two matters to be proved:

(1)

beneficial interest; and

(2)
T

that there was a common intention that both should have a

Q
R
S

that B has acted to his/her detriment on the basis of that

common intention.

- 33 -

A
B
C

See Grant v Edwards [1986] Ch 638 at 654D-E (Sir Nicolas

Browne-Wilkinson VC); Luo Xing Juan Angela v Estate of Hui Shui See

B
C

Willy (2009) 12 HKCFAR 1 at 38 (Ribeiro PJ).

D
E

76

The party alleging the common intention constructive trust

must first prove that there was, at any time prior to acquisition or
F
G

exceptionally at some later date, an agreement, arrangement or

understanding reached between the parties that the property is to be

F
G

shared beneficially: see Lloyds Bank Plc v Rosset [1991] 1 AC 107 at

H

132E-F (Lord Bridge).

77
J
K

In Frank and SYMs closing submissions, it was conceded

that a common intention constructive trust would not arise if the court
finds that there was no discussion concerning a trust arrangement

J
K

amongst Robert, George and Frank at the family meetings in 1999 and
L
M

2000.

In view of my findings that there was no discussion at the

September 1999 Meeting, the January 2000 Meeting or the July 2000

L
M

Meeting that the shares of the new company (or Artimax) would be held
N
O

on trust by the shareholders for SYM, it follows that Frank and SYMs
case of common intention constructive trust would fail.

F.

78

R
S
T
U
V

CONCLUSION
In the light of my conclusions above, I give judgment in

favour of Han and dismiss SYMs counterclaim.

79
(1)

N
O
P
Q
R

I also make the following orders:

A declaration that Han is the legal and beneficial owner of

Roberts Share.

U
V

- 34 -

A
B

(2)

An order that the Transfer be approved and Hans name be

entered in the register of members of Artimax as the holder

B
C

of Roberts Share.
D

(3)

An order nisi that the costs of Han, George and Daisy in

these proceedings (including any reserved costs) be paid by

D
E

SYM, to be taxed if not agreed.

F
G

(4)

The above costs order nisi shall be made absolute 14 days

from the date of this judgment.

F
G

K
L
M
N
O
P

(Eugene Fung SC)

Deputy High Court Judge
Mr Jeffrey Tam, instructed by Ribeiro Hui, for the plaintiff
(by original action) and the 1st, 3rd and 4th defendants
(by counterclaim)
Mr Douglas Lam, SC and Mr Justin Ho, instructed by Lipman Karas,
for the 2nd and 3rd defendants (by original action) and
the plaintiff (by counterclaim)
The 1st defendant (by original action) and the 2nd defendant
(by counterclaim) appeared in person, being absent

K
L
M
N
O
P