Monday, February 17, 2014 12:34:22 PM
GE vs LU JINXIANG
Wow.. Here are the particulars of the case..
Interesting read.. Not sure where it all goes from here..
Looks like LU is screwed. 3 months jail and still owes the money.
A-Power has 192 million in assets. Owes GE 323 MIllion
LU transferred 100% of Liaoning Hi Tech Shares into a company he owns with John Lin. In violation of Arbitration Rule.
Click Case # at Top of Page for the report or just read it below
http://www.infoxenter.com.hk/index.php?option=com_content&view=article&id=20016&catid=37:current-cases&Itemid=76
HCMP 1792/2013
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
MISCELLANEOUS PROCEEDINGS NO 1792 OF 2013
______________________
IN THE MATTER of an application by GE TRANSPORTANTION (SHENYANG) CO LTD against LU JINXIANG FOR AN ORDER OF COMMITTAL
______________________
BETWEEN
GE TRANSPORTATION (SHENYANG) CO LTD
Plaintiff
and
LU JINXIANG
Defendant
______________________
Before: Deputy High Court Judge Marlene Ng in Court
Date of Hearing: 22 January 2014
Date of Judgment: 22 January 2014
______________________
J U D G M E N T
______________________
Introduction
1. This is the plaintiff’s application to commit the defendant for contempt of court on account of a breach of an order made by Au J on 24 April 2012 (hereinafter called “the High Court enforcement order”) whereby the plaintiff herein as the plaintiff in HCCT 16/2012 was granted leave to enforce an interim arbitral order and award made on 16 April 2012 (hereinafter called “interim arbitral order”) pursuant to section 61(1) of the Arbitration Ordinance, Cap 609 (hereinafter called “the ordinance”). At the hearing of the application today, the defendant did not appear to contest the application.
2. The defendant was at all material times and remains the chairman, the chief executive officer and the legal representative of a BVI company known as A-Power Energy Generation Systems Limited (hereinafter called “A-Power”), the legal representative of the representative office of A-Power in Beijing, PRC, and the sole director of a Hong Kong company known as Head Dragon Holdings Limited (hereinafter called “Head Dragon”), a director and chairman of Liaoning Hi-Tech Energy Group Company Limited (hereinafter called “Liaoning Gaoke”), a company incorporated in the PRC on 15 December 2011 in Shenyang City, Liaoning Province, PRC.
3. At all material times until 3 May 2012, Head Dragon was the sole shareholder of Liaoning Gaoke and the defendant was the legal representative of Liaoning Gaoke. On 3 March 2009, GE Commerce Shanghai Company Limited (hereinafter called “GE Shanghai”) a wholly foreign-owned PRC limited liability company and affiliate of the plaintiff, as seller, entered into a purchase agreement with Shenyang Lucky Wind Power Equipments Company Limited (hereinafter called “Lucky Wind”), a company that was and is wholly owned by A-Power as buyer (hereinafter called “the purchase agreement”).
4. Pursuant to the purchase agreement, GE Shanghai agreed to manufacture and sell and Lucky Wind agreed to buy a specified minimum number of gearboxes for wind turbines in the amounts and for the prices set out in the purchase agreement.
5. On 3 March 2009, the defendant, on behalf of A-Power as guarantor, executed a guarantee in favour of GE Shanghai (hereinafter called “the guarantee”). Pursuant to clause 1 of the guarantee, A-Power agreed to guarantee, as principal debtor and not just surety, the payment and performance of all obligations, liabilities and indemnities of Lucky Wind under the purchase agreement. Pursuant to clause 16 of the guarantee, A-Power consented to GE Shanghai assigning its rights under the guarantee without the prior written consent of A-Power. Pursuant to clause 18 of the guarantee, a dispute arising out of, relating to or connected with the guarantee will be resolved by arbitration in Hong Kong at the Hong Kong International Arbitration Centre (hereinafter called “HKIAC”).
6. On 15 December 2009, pursuant to the purchase agreement, GE Shanghai issued to Lucky Wind a notice of assignment notifying Lucky Wind of the assignment of GE Shanghai’s rights and obligations under the purchase agreement to the plaintiff with effect from the same date. On 20 May 2010, pursuant to the guarantee, GE Shanghai issued to A-Power a notice of assignment notifying A-Power of the assignment of GE Shanghai’s rights under the guarantee to the plaintiff with effect from 27 May 2010.
Interim arbitral order
7. On 17 June 2011, pursuant to the guarantee, the plaintiff served on A-Power a notice of arbitration and statement of claim pursuant to arbitral proceedings in Hong Kong at the HKIAC (hereinafter called “the arbitration”).
8. On 30 April 2012, the plaintiff applied to the arbitral tribunal in the arbitration (hereinafter called “the tribunal”) for urgent interim relief. Such application was made on notice to A-Power and the defendant for relief in the form of an interim arbitral award and order preventing the dissipation of A-Power’s assets up to the value of USD 323 million being the sum claimed in the arbitration excluding costs and expenses, and requiring A-Power to disclose all of its assets of an individual value of USD 5,000 or more.
9. On 16 April 2012, at a hearing by conference call before the tribunal with A-Power being represented by their legal representatives, Messrs Ng & Chum, the tribunal granted the interim arbitral order. Under the interim arbitral order it was ordered, inter alia, that:
“(2) The defendant, [A-Power], shall not remove, encumber, dissipate or otherwise dispose of or deal with or diminish in value any of the assets wherever they are located, whether in its own name or not, and whether solely or jointly owned, or directly or indirectly controlled up to an equivalent value of USD 323 million. This prohibition includes, with limitation, the following assets:
(a) the shares in [Head Dragon];
(b) the shares in Easy Flow Ltd; and
(c) funds contained in its bank account……held with Morgan Stanley Smith Barney in New York.
(3) This prohibition requires [A-Power], inter alia, to exercise its control over [Head Dragon] and Easy Flow Ltd and any other entities or person owned or controlled by [A-Power] to ensure that they and/or their subsidiaries do not remove, encumber, dissipate or otherwise dispose of or deal with or diminish in value any of their assets wherever they are located.
(4) If the total unencumbered value of [A-Power’s] assets exceeds USD 323 million, [A-Power] may dispose of or deal with them so long as the total unencumbered value of its assets remain above USD 323 million.
(5) [A-Power] shall inform the plaintiff in writing at once of (i) all its shareholdings; and (ii) all other assets of an individual value of USD 5,000 or more as of the date of this Order and Award, whether in its own name or not and whether solely or jointly owned, giving the value, location and detail of all such assets, such information to initially be given in schedule form within 24 hours of notice of this Order and Award, and to be confirmed by way of affidavit or signed witness statement and provided to [the plaintiff’s] counsel within five business days of notice of this Order and Award.
(6) This Order does not prohibit [A-Power] from spending a reasonable sum towards its ordinary and proper business expenses and on legal expenses and representation.
(7) Where [A-Power] is ordered not to do something, it must not do it itself or by its directors, officers, employees or agents in any way.
(8) [The plaintiff] shall be permitted to apply to any court of competent jurisdiction for a court order giving effect to the terms of this Order and Award and to provide copies of this Order and Award to any third party for the purpose of giving effect to this Order and Award......” (my emphasis)
10. At all material times, both Head Dragon and a Hong Kong company, Easy Flow Limited, were, and are, wholly owned subsidiaries of A-Power with registered offices in Hong Kong.
High Court enforcement order
11. On 18 April 2012, the plaintiff applied ex parte in HCCT 16/2012 under Order 73 rule 10(1)(c) of the Rules of High Court for leave under section 61(1) of the ordinance to enforce the interim arbitral order. On 24 April 2012, Au J granted the High Court enforcement order which provided, inter alia, that:
“1. Leave be granted to [the plaintiff] to enforce the [interim arbitral order] and award made on 16 April 2012 by the arbitral tribunal in the Hong Kong International Arbitration Centre, Arbitration No HKIAC/A11074 in the [terms of the interim arbitral order].
2. [A-Power] may, within 7 days after service of this order upon it, apply to set aside this order.
3. The [interim arbitral order] shall not be enforced as an order of this Court until after the expiration of the 7-day period referred to in paragraph 2 above or, if [A-Power] applies within the said 7 days to set aside the order until after the application is finally disposed of.”
12. On 24 April 2012, copies of the High Court enforcement order endorsed with a penal notice were sealed by the court. A-Power did not, at any time, apply to this court to set aside the High Court enforcement order pursuant to paragraph 2 of thereof.
Liaoning Gaoke share transfer
13. On 3 May 2012, shortly after the interim arbitral order and the High Court enforcement order were granted, Head Dragon and a Hong Kong company known as Asia New Energy Group Limited (hereinafter called “ANE”) entered into an agreement pursuant to which Head Dragon agreed to transfer its entire 100% shareholdings in Liaoning Gaoke to ANE for a consideration of RMB 54 million payable by ANE in a lump sum to an account designated by Head Dragon before 15 May 2012 (hereinafter called “the Liaoning Gaoke share transfer agreement”). The Liaoning Gaoke share transfer agreement was executed by the defendant on behalf of Head Dragon and by Mr Zhang Yuqiang (hereinafter called “Mr Zhang”) on behalf of ANE.
14. ANE is a Hong Kong company with the same registered office as Easy Flow Limited. Up to 9 January 2009, the defendant was a director of ANE and a holder of 90% of its shares. 10% of the shares in ANE were held by Mr John Shen Lin, a former director and chief operating officer of A-Power. On 9 January 2009, the defendant and Mr Lin transferred their shareholdings in ANE to a Samoan company called Marston International Limited, and a company incorporated in Anguilla called East Rise Limited was appointed as corporate director of ANE. On 13 January 2010, a Samoan company, New Rise Limited, was appointed as corporate director of ANE in its place.
15. The Liaoning Gaoke share transfer agreement provided, inter alia, that within 15 working days after such agreement took effect, Head Dragon shall help ANE go through registration formalities relating to the transfer of the subject shares of Liaoning Gaoke (article 1), and ANE shall pay Head Dragon RMB 54 million in a lump sum to the account designated by Head Dragon before 15 May 2012 (article 2). It was further provided that such agreement shall take effect upon affixing of signatures and seals by both parties thereto (article 8).
16. Further, on 3 May 2012, the defendant, Mr Zhang and/or ANE, executed various documents to give effect to the Liaoning Gaoke share transfer agreement including, inter alia, the following:
(a) a shareholders’ resolution of Liaoning Gaoke, signed by the defendant and Mr Zhang and affixed with the chop of ANE, recording the key terms of the Liaoning Gaoke share transfer agreement; and
(b) a shareholders’ resolution of Liaoning Gaoke, signed by the defendant and affixed with the chop of Liaoning Gaoke, resolving to remove the defendant as chairman and legal representative.
Committal proceedings
17. On 16 July 2013, Au J granted leave to the plaintiff to apply for an order for committal against the defendant for contempt of court, leave to serve out of jurisdiction and an order for substituted service of the statement dated 29 April 2013 pursuant to Order 52 rule 2 of the Rules of High Court, the summons filed on 8 July 2013 (for service out of jurisdiction), the 1st, 2nd and 3rd affirmations of Soh Yan Lee, Andy (hereinafter called “Andy Soh”) as well as the originating summons to be filed pursuant to the leave so granted to commence committal proceedings, and the affidavit to be filed in support of the same, by sending these documents:
(a) by hand to Unit 3201A, 32/F, Citicorp Centre, 18 Whitfield Road, Hong Kong, being the registered office of Head Dragon of which the defendant was and is its sole director (hereinafter called “the Head Dragon address”);
(b) by courier to 3-1, No 215, Qingnian Street, Shenhe District, Shenyang, Liaoning Province, PRC, being the defendant’s address stated in a board resolution dated 18 January 2012 of Liaoning Hi-Tech Energy Group Real Estate Development Co Ltd, a wholly-owned subsidiary of Liaoning Gaoke, filed with the State Administration for Industry and Commerce in Shenyang (hereinafter called “the first PRC address”);
(c) by courier to No 64 Huang Hai Road, Yu Hong District, Shenyang, Liaoning, 110141, PRC, being the defendant’s residential address stated on the annual return dated 24 December 2012 of Venture Link Holdings Limited, a subsidiary of ANE (hereinafter called “the second PRC address”); and
(d) by courier to Room 1908, Block C, Zong Tong Da Sha, 69 Han Ping Bei Da Jie, Han Ping District, Shenyang, Liaoning, PRC, being the defendant’s address stated on Head Dragon’s latest annual return signed by the defendant and dated 2 July 2013 (hereinafter called “the third PRC address”).
18. According to the affidavit of service of Lam Kwan-ngok, Ello (hereinafter called “Ello Lam”) filed on 15 August 2013, the plaintiff served the order of Au J dated 16 July 2013, the statement dated 29 April 2013, the summons filed on 8 July 2013 (for service out of jurisdiction), the 1st, 2nd and 3rd affirmations of Andy Soh, together with exhibits, filed in HCCT 16/2012, the originating summons and the affirmation of Andy Soh filed on 23 July 2013 in the present proceedings, on the defendant by leaving the same at the Head Dragon address on 23 July 2013 with acknowledgement of receipt, and by courier to the first PRC address delivered on 30 July 2013.
19. According to the second affidavit of service of Ello Lam filed on 6 January 2014, both the notice of appointment to hear originating summons dated 19 September 2013 and a notice of hearing dated 7 October 2013 were served on the defendant by leaving the same at the Head Dragon address on 8 October 2013 with acknowledgement of receipt, and by courier to the first PRC address delivered on 10 October 2013.
20. According to the third affidavit of Ello Lam filed on 21 January 2014, the written skeleton submissions of the plaintiff’s counsel, together with her list of authorities and the authorities referred therein, and the bundle for the hearing before me today, were served on the defendant by leaving the same at the Head Dragon address on 17 January 2014 with acknowledgement of receipt and by courier to the first PRC address, and as at 21 January 2014, they were still in the course of being delivered to the first PRC address.
21. Service at the second and the third PRC addresses was without success as acceptance of delivery at the second PRC address was repeatedly refused, and the courier was later informed that the defendant had moved, and at the third PRC address, which was apparently incorrect and incomplete.
Legal principles
22. The interim arbitral award and the High Court enforcement order are in the nature of Mareva-type orders. In RACP Pharmaceutical Holdings Limited v Li Xiaobo, HCA 490/2007 (unreported, 14 April 2008), which concerned an application to set aside leave granted ex parte for issue of a notice of motion for committal for alleged breach of a Mareva order, DHCJ Gill said at paragraph 2 of his judgment that “[the] first principle is that court orders are made to be obeyed. They are not guidelines, to be ignored or paid lip service to at the behest of the parties affected. They are the building blocks by which the administration of justice is made workable. Litigants who wilfully breach orders at the expense of their opponents to their advantage do so at the risk of losing the liberty for being in a contempt of court”.
23. The proper approach in committal for civil contempt by reason of breach of a court order is a three-stage test, namely, it is necessary to:
(a) construe the relevant court order to ascertain its meaning and operation;
(b) then determine whether the defendant has in fact complied with the order as so construed; and
(c) finally consider whether any failure to comply was accompanied by a state to mind necessary to establish punishable contempt.
(See Kao Lee & Yip v Donald Koo Hoi Yan (2009) 12 HKCFAR 830, 846, followed by Fok JA, as he then was, in Effiscient Limited v Edward Eugene Lehman [2013] 3 HKC 300, 305 to 306.)
24. The burden is on the plaintiff to prove that the defendant’s contempt was beyond reasonable doubt.
25. A director or other officer of a body corporate can be liable for contempt committed by a body corporate in two ways:
(a) under Order 45 rule 1(iii) of the Rules of High Court; and
(b) as a person who aids and abets the contempt.
(See Hong Kong Civil Procedure 2014, Volume 1, paragraph 52/1/17 at page 964.)
26. In the application for contempt under Order 45 rule 5 of the Rules of High Court, no moral blame, knowledge or wilfulness on the part of the director or other officer is necessary. It is, however, necessary to show that:
(a) the director or other officer was fully aware of the terms of the order with which the company must comply;
(b) he had knowledge at a time when he could use his position as a director or other officer to secure compliance; and
(c) he was aware that if he did not so use his position, steps could be taken against him personally to enforce compliance.
(See Hong Kong Civil Procedure 2014, Volume 1, paragraph 45/5/4 at pages 964 to 975 and Excel Noble Development Limited & Ors v Wah Nam Group Limited & Ors [2001] 4 HKC 148 at pages 155 to 157.)
27. Order 45 rule 7(3) and rule 7(4) of the Rules of the High Court require a director or other officer concerned to be served with a copy of the order personally with an appropriate penal notice before he can be committed for disobedience to an order against his company, but the court may dispense with personal service pursuant to Order 45 rule 7(7) of the Rules of the High Court if the court is satisfied that the relevant director or officer has been notified of its terms. (See Effiscient Limited v Edward Eugene Lehman at page 310 and AXA China Region ServiceInsurance Company Limited v Li Yu Ping Ellen [2002] 3 HKC 339 at pages 355 to 356.)
28. In an application for committal against a director or other officer for his personal aiding and abetting the company in its breach of the order, it has been held that personal service is not required because a director or other officer cannot be liable as an aider and abettor unless he has notice of the order. There must also be evidence of personal misconduct on the part of the director or other officer. (See Hong Kong Civil Procedure 2014, Volume 1, paragraph 52/1/17 at page 964 and paragraph 45/5/4 at page 874.)
The relevant orders
29. In my view, the meaning and operation of the interim arbitral award and the High Court enforcement order is clear. In short, they prevent A-Power and its subsidiaries, including Head Dragon, from dealing with their assets located anywhere in the world up to the value of USD 323 million. In particular, such prohibition requires A-Power to exercise control over Head Dragon and Easy Flow Limited, and any other entities or persons owned or controlled by A-Power, to ensure that they would not deal with or diminish in value any of their assets wherever they are located.
Issues
30. The critical issue in this application is whether the defendant knew or had knowledge of the existence of the interim arbitral order and the High Court enforcement order. If it did, the next question is whether he breached the prohibition imposed by the orders.
Knowledge
31. On 17 April 2012, the plaintiff, through its Hong Kong solicitors, served the interim arbitral order on the defendant, A-Power, Head Dragon and Easy Flow Limited:
(a) by email to, amongst others, A-Power’s legal representatives in the arbitration, Messrs Ng & Shum, Liao Ning Hao Xing Law Office, and an email address used in correspondence with the tribunal in the arbitration by the defendant and A-Power;
(b) by fax and courier to A-Power’s legal representatives in the arbitration;
(c) by hand to the registered offices in Hong Kong of Head Dragon, of which the defendant was at the material time and remains the sole director, and Easy Flow Limited.
32. In a statement made on 17 April 2012, A-Power set out a list of its assets purportedly in compliance with the requirement under paragraph 5 of the interim arbitral order, and confirmed that A-Power would comply with the interim arbitral order.
33. On 23 April 2012, the defendant gave a statement relating to A-Power’s statement, inter alia, as follows:
“I, Mr Lu Jinxiang, am the legal representative of [A-Power]. According to HKIAC/A11074 interim adjudication order, [A-Power] submitted a capital list to Hong Kong International Arbitration Centre and General Electric Drivetrain (Shenyang) Company, Limited on April 17, 2012.
I hereby solemnly declare and certify that all the above is authentic and correct.”
34. In giving evidence on the third day of the substantive hearing in the arbitration on 31 May 2012, the defendant further confirmed that he was aware of the effect of the interim arbitral order being to prevent a transfer or pledge by Head Dragon of the shares in Liaoning Gaoke. When the defendant was asked whether he was “aware that under the tribunal’s order and award of 16 April, [Head Dragon] is not permitted to transfer any of the shares in [Liaoning Gaoke] or to pledge them”, he responded, “This I do know.” In short, the defendant confirmed that he understood and was aware that the effect of the interim arbitral order was to prevent a transfer or pledge by Head Dragon of the shares in Liaoning Gaoke.
35. On 25 April 2012, the plaintiff, through its Hong Kong solicitors, Messrs Gall, wrote to Messrs Ng & Shum enclosing a copy of the High Court enforcement order, and sought confirmation from them as to whether they had instructions to service of the High Court enforcement order on behalf of A-Power. Eventually, Messrs Ng & Shum confirmed that they had no such instructions.
36. On the same day, on 25 April 2012, Messrs Gall, acting for the plaintiff, served the High Court enforcement order under cover of a letter which, inter alia, drew attention to the consequences of breaching or assisting in the breach of the High Court enforcement order on the following parties, amongst others:
(a) the defendant, by registered post to:
(i) the third PRC address; and
(ii) care of A-Power at No. 44 Jinxiang North Street, Tiexi District, Shenyang, Liaoning, 110021, PRC; and
(b) Head Dragon, of which the defendant was and remains the sole director, by hand, at its registered office.
37. By reason of the above matters, I am satisfied that it has been proved beyond reasonable doubt that as at 3 May 2012, when the defendant executed the Liaoning Gaoke share transfer agreement that:
(a) A-Power knew of the terms of both the interim arbitral order and the High Court enforcement order;
(b) the defendant knew of the terms of the interim arbitral order; and
(c) notwithstanding that the third PRC address was apparently incorrect and incomplete, the defendant as chairman, chief executive officer and legal representative of A-Power, and the sole director of Head Dragon, knew of the terms of the High Court enforcement order sent by registered post care of A-Power’s address in Liaoning, PRC, and by hand to Head Dragon’s registered office address.
38. In the circumstances, and bearing in mind a director’s or other officer’s responsibility in respect of a Mareva-type order against a company, in the exercise of my discretion, I dispense with personal service of the interim arbitral order and the High Court enforcement order.
39. I note that the High Court enforcement order has been endorsed with a penal notice directed to the defendant, and it has been sent by registered post to A-Power’s address in Liaoning, PRC, and to Head Dragon’s registered office address by hand. Given that the defendant was and is the sole director of Head Dragon and chairman, chief executive officer and legal representative of A-Power, he would be expected to have knowledge of major legal proceedings of A-Power, particularly that related to restriction on the disposal of assets involving a Mareva-type order. The delivery of the High Court enforcement order as aforesaid, the service of the interim arbitral order as aforesaid, the defendant’s acknowledgement and understanding as expressed in his evidence in the arbitration proceedings, are sufficient to permit this court to dispense with personal service.
40. I agree with Ms Lam, counsel for the plaintiff, that the irresistible inference to be drawn from the foregoing, and I am therefore satisfied beyond reasonable doubt that:
(a) the defendant was aware of the effect of the interim arbitral order and the High Court enforcement order; and
(b) he was so aware when in his capacity as sole director of Head Dragon and/or as the chairman, chief executive officer and legal representative of A-Power, he could have used his position to secure compliance with the interim arbitral order and the High Court enforcement order; and
(c) he was aware that if he did not so use his position, disobedience of the interim arbitral order and the High Court enforcement order would expose him to committal for contempt of court or steps taken against him personally to enforce compliance.
41. The following documents have been served on the defendant in the same manner as provided for by the order of Au J dated 16 July 2013:
(a) the letter by the plaintiff’s solicitors to the court making an appointment to fix the date of the hearing of the originating summons;
(b) copy letter dated 19 September 2013 by the plaintiff’s solicitors to the defendant informing him that a hearing date for the originating summons has been fixed in his absence;
(c) the notice of appointment to hear originating summons filed on 19 September 2013;
(d) the notice of hearing issued by the High Court on 7 October 2013; and
(e) the plaintiff’s counsel’s skeleton submissions and list of authorities and the authorities referred therein, and the hearing bundle for the originating summons.
42. I see no reason why retrospective leave should not be granted, and I so grant such leave, for service of the above documents out of jurisdiction and for the above documents to be served in the same manner as set out in paragraph 3 of the order of Au J dated 16 July 2013.
Breach
43. Pursuant to A-Power’s statement (see paragraph 32 above), A-Power held assets in the aggregate amount of US$194,504,020.91 as at 17 April 2012. Of this sum, US$129,040,184.21 comprised accounts receivables from A-Power’s subsidiaries, and only US$2,621,384.33 were shareholdings in companies not related to A-Power’s group of companies. Out of A-Power’s non-group related assets of US$2,624,384.33:
(a) the long-term investment of US$150,000 in Mr Sombat Chotyiriyakul, a nominee shareholder for Liaoning Gaoke, which, in fact, is a non-interest bearing loan provided to him in consideration of his 51% share capital in a Thai subsidiary company of Liaoning Gaoke or, in other words, it is, in effect, a payment by A-Power for 51% share capital in the Thai subsidiary company;
(b) US$2,463,836.80 in intangible assets in “W2E Technology” representing a technology licence from Fuhrländer AG in respect of a 2.5 megawatt wind energy turbine developed by a German company.
44. It has been suggested that these two sums should be taken out of the real assets of A-Power, but irrespective of whether these two sums should be so excluded or not, the unencumbered value of A-Power’s assets is below the threshold of USD 323 million. In such circumstances, Head Dragon’s entry into and the execution by the defendant on behalf of Head Dragon of the Liaoning Gaoke share transfer agreement are plainly in breach of the interim arbitral order and the High Court enforcement order.
45. By reason of the above matters, I am satisfied that it has been proved beyond reasonable doubt that the defendant:
(a) understood that the terms of the interim arbitral order and the High Court enforcement order effectively prohibited Head Dragon from encumbering, dissipating or disposing of or otherwise dealing with or diminishing in value its 100% shareholding in Liaoning Gaoke;
(b) knew the consequences of disobedience of the interim arbitral order and the High Court enforcement order;
(c) nevertheless, in his capacity as the sole director of Head Dragon and/or as chairman, chief executive officer and legal representative of A-Power, wilfully caused and/or procured and/or aided and abetted and/or authorised Head Dragon to transfer 100% of the shares in Liaoning Gaoke held by Head Dragon to ANE in breach of the interim arbitral order and the High Court enforcement order; and
(d) as chairman, chief executive officer and legal representative of A-Power, failed to take any or all reasonable steps to ensure Head Dragon would not do any act so as to encumber, dissipate, dispose of or otherwise deal with or diminish in value its 100% shareholding in Liaoning Gaoke.
Time
46. Upon engaging a forensic investigator, the plaintiff first found out about the transfer of the shares of Liaoning Gaoke on 11 October 2012. The plaintiff was first advised by its external advisers that such transfer of shares might constitute a breach of the High Court enforcement order on or about 16 October 2012. The plaintiff first had sight of the Liaoning Gaoke share transfer agreement on or about 6 November 2012 after commissioning an agent to conduct a search of the records with the relevant PRC authority.
47. Since then, the plaintiff took steps in Hong Kong, BVI and Samoa, with a view to enforce the final arbitration award which the tribunal issued on 8 August 2012, and which, pursuant to the order of Au J dated 19 October 2012, the plaintiff is at liberty to enforce in the same manner as a judgment or order to the same effect. In mid-March 2013, the plaintiff gave instructions to their present solicitors to seek leave to commence committal proceedings against the defendant and such application was filed on 29 April 2013.
48. Having considered the chronology of events, I am also satisfied beyond reasonable doubt that there has been no material delay on the part of the plaintiff in taking out the committal proceedings.
49. In the premises, I am satisfied that it has been proved beyond reasonable doubt that the defendant has breached the interim arbitral order and the High Court enforcement order and is guilty of contempt.
Penalty
50. The plaintiff has asked the defendant to be committed to prison for his contempt.
51. Contempt of civil court orders is a serious matter. As observed by Chu J, as she then was, in Questnet Limited v Wilfred Royce Lang HCA 1475/2006 (unreported, 23 June 2008) at paragraph 4, the primary consideration in sentencing contempt is the signal importance of demonstrating to litigants that orders of the court are to be obeyed.
52. As to the broad principles on the matter of penalty for contempt, I can do no better than to respectfully adopt those set out by Au J in his judgment in AO Smith Holdings (Barbados) SRL v Zhang Dacheng HCMP 1132/2011 (unreported, 1 June 2012) at paragraphs 58 to 61, as follows:
“58. Further, the purpose of a Mareva injunction is to protect the integrity of the Court’s processes and flagrant breaches of it should be met with an immediate term of imprisonment. In this respect, the English Court of Appeal in Pospichal v Phillips has emphasised the importance in ensuring that the public and the litigating parties are made to be aware of the seriousness of obeying court orders and in particular Mareva injunctions:
‘...the plaintiff is not the only interested party. The public is an interested party, because it is and it should be known that it is of the highest importance that orders as serious as Mareva injunctions made by the court are there to be obeyed and not flouted...’
59. Further, in JSC BTA Bank v Solochenko [2012] 1 WLR 350 after reviewing a line of first instance authorities, Jackson LJ said at paragraphs 51 and 55 that normally a custodial sentence measured in months should be imposed for a deliberate breach of disclosure provision of a freezing order:
‘51. ...any deliberate and substantial breach of the restraint provisions or the disclosure provisions of a freezing order is a serious matter. Such a breach normally attracts an immediate custodial sentence which is measured in months rather than weeks and may well exceed a year.’
‘55. ...
(i) Freezing orders are made for good reason and in order to prevent the dissipation or spiriting away of assets. Any substantial breach of such an order is a serious matter, which merits condign punishment.
(ii) Condign punishment for such contempt normally means a prison sentence. However, there may be circumstances in which a substantial fine is sufficient: for example, if the contempt has been purged and the relevant assets recovered.
(iii) ...’
60. In my view, Jackson LJ’s above observations on sentence for contempt apply equally if not with greater force in relation to breaches of a freezing or injunction order itself.
61. Hong Kong authorities have also shown that a normal penalty for breaches of injunction orders is imprisonment measured in months: Banco Popolare di Vicenza Soc Coop v Alutech (Far East) Company Limited(the contemnor was sentenced to 6 months’ imprisonment for breach of a Mareva injunction) and Questnet Limited, supra (where the contemnor was sentenced to 3 months for breaching a Mareva injunction).”
53. Whilst I accept that the starting and primary penalty for contempt of court in breaching an order in the nature of an injunction (as in the case of the interim arbitral order and the High Court enforcement order) is imprisonment, I need to consider whether there are any mitigating factors.
54. Here the defendant has not appeared in these proceedings to offer any mitigating factor. In my view, the breach is flagrant and the consequences for the plaintiff can be damaging for it deprives the plaintiff of the opportunity to recover and satisfy any award made in the arbitration from a substantial asset of A-Power held through its wholly-owned subsidiary, Head Dragon.
55. There is failure to purge the contempt ever since the initial breach in May 2012. I therefore do not find any mitigating factor in this case that justifies imposing a non-custodial sentence or, to put it in another way, I find a prison sentence appropriate for the defendant’s contempt in breaching the interim arbitral order and the High Court enforcement order.
56. Taking into account all the circumstances of the case and the above considerations, I find the appropriate sentence to be a term of 3 months.
57. In conclusion, I am satisfied beyond reasonable doubt that the defendant is guilty of contempt of court as chairman, chief executive officer and legal representative of A-Power in dealing with the shares of Liaoning Gaoke held by Head Dragon, a wholly-owned subsidiary of A-Power, in breach of the interim arbitral order and the High Court enforcement order, and he did so with knowledge of the restriction imposed by the said orders.
58. I further order that he be committed to prison for 3 months.
(Discussion re draft order and costs relating to originating summons)
59. In view of my ruling, there is no reason not to grant costs in favour of the plaintiff. In view of my findings as to the nature of the circumstances of the breach, I also consider that indemnity costs would be appropriate. I therefore grant an order in terms of paragraph (f) of the originating summons.
(Marlene Ng)
Deputy High Court Judge
Ms Catrina Lam, instructed by Dechert, for the plaintiff
The defendant was not represented and did not appear
Wow.. Here are the particulars of the case..
Interesting read.. Not sure where it all goes from here..
Looks like LU is screwed. 3 months jail and still owes the money.
A-Power has 192 million in assets. Owes GE 323 MIllion
LU transferred 100% of Liaoning Hi Tech Shares into a company he owns with John Lin. In violation of Arbitration Rule.
Click Case # at Top of Page for the report or just read it below
http://www.infoxenter.com.hk/index.php?option=com_content&view=article&id=20016&catid=37:current-cases&Itemid=76
HCMP 1792/2013
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
MISCELLANEOUS PROCEEDINGS NO 1792 OF 2013
______________________
IN THE MATTER of an application by GE TRANSPORTANTION (SHENYANG) CO LTD against LU JINXIANG FOR AN ORDER OF COMMITTAL
______________________
BETWEEN
GE TRANSPORTATION (SHENYANG) CO LTD
Plaintiff
and
LU JINXIANG
Defendant
______________________
Before: Deputy High Court Judge Marlene Ng in Court
Date of Hearing: 22 January 2014
Date of Judgment: 22 January 2014
______________________
J U D G M E N T
______________________
Introduction
1. This is the plaintiff’s application to commit the defendant for contempt of court on account of a breach of an order made by Au J on 24 April 2012 (hereinafter called “the High Court enforcement order”) whereby the plaintiff herein as the plaintiff in HCCT 16/2012 was granted leave to enforce an interim arbitral order and award made on 16 April 2012 (hereinafter called “interim arbitral order”) pursuant to section 61(1) of the Arbitration Ordinance, Cap 609 (hereinafter called “the ordinance”). At the hearing of the application today, the defendant did not appear to contest the application.
2. The defendant was at all material times and remains the chairman, the chief executive officer and the legal representative of a BVI company known as A-Power Energy Generation Systems Limited (hereinafter called “A-Power”), the legal representative of the representative office of A-Power in Beijing, PRC, and the sole director of a Hong Kong company known as Head Dragon Holdings Limited (hereinafter called “Head Dragon”), a director and chairman of Liaoning Hi-Tech Energy Group Company Limited (hereinafter called “Liaoning Gaoke”), a company incorporated in the PRC on 15 December 2011 in Shenyang City, Liaoning Province, PRC.
3. At all material times until 3 May 2012, Head Dragon was the sole shareholder of Liaoning Gaoke and the defendant was the legal representative of Liaoning Gaoke. On 3 March 2009, GE Commerce Shanghai Company Limited (hereinafter called “GE Shanghai”) a wholly foreign-owned PRC limited liability company and affiliate of the plaintiff, as seller, entered into a purchase agreement with Shenyang Lucky Wind Power Equipments Company Limited (hereinafter called “Lucky Wind”), a company that was and is wholly owned by A-Power as buyer (hereinafter called “the purchase agreement”).
4. Pursuant to the purchase agreement, GE Shanghai agreed to manufacture and sell and Lucky Wind agreed to buy a specified minimum number of gearboxes for wind turbines in the amounts and for the prices set out in the purchase agreement.
5. On 3 March 2009, the defendant, on behalf of A-Power as guarantor, executed a guarantee in favour of GE Shanghai (hereinafter called “the guarantee”). Pursuant to clause 1 of the guarantee, A-Power agreed to guarantee, as principal debtor and not just surety, the payment and performance of all obligations, liabilities and indemnities of Lucky Wind under the purchase agreement. Pursuant to clause 16 of the guarantee, A-Power consented to GE Shanghai assigning its rights under the guarantee without the prior written consent of A-Power. Pursuant to clause 18 of the guarantee, a dispute arising out of, relating to or connected with the guarantee will be resolved by arbitration in Hong Kong at the Hong Kong International Arbitration Centre (hereinafter called “HKIAC”).
6. On 15 December 2009, pursuant to the purchase agreement, GE Shanghai issued to Lucky Wind a notice of assignment notifying Lucky Wind of the assignment of GE Shanghai’s rights and obligations under the purchase agreement to the plaintiff with effect from the same date. On 20 May 2010, pursuant to the guarantee, GE Shanghai issued to A-Power a notice of assignment notifying A-Power of the assignment of GE Shanghai’s rights under the guarantee to the plaintiff with effect from 27 May 2010.
Interim arbitral order
7. On 17 June 2011, pursuant to the guarantee, the plaintiff served on A-Power a notice of arbitration and statement of claim pursuant to arbitral proceedings in Hong Kong at the HKIAC (hereinafter called “the arbitration”).
8. On 30 April 2012, the plaintiff applied to the arbitral tribunal in the arbitration (hereinafter called “the tribunal”) for urgent interim relief. Such application was made on notice to A-Power and the defendant for relief in the form of an interim arbitral award and order preventing the dissipation of A-Power’s assets up to the value of USD 323 million being the sum claimed in the arbitration excluding costs and expenses, and requiring A-Power to disclose all of its assets of an individual value of USD 5,000 or more.
9. On 16 April 2012, at a hearing by conference call before the tribunal with A-Power being represented by their legal representatives, Messrs Ng & Chum, the tribunal granted the interim arbitral order. Under the interim arbitral order it was ordered, inter alia, that:
“(2) The defendant, [A-Power], shall not remove, encumber, dissipate or otherwise dispose of or deal with or diminish in value any of the assets wherever they are located, whether in its own name or not, and whether solely or jointly owned, or directly or indirectly controlled up to an equivalent value of USD 323 million. This prohibition includes, with limitation, the following assets:
(a) the shares in [Head Dragon];
(b) the shares in Easy Flow Ltd; and
(c) funds contained in its bank account……held with Morgan Stanley Smith Barney in New York.
(3) This prohibition requires [A-Power], inter alia, to exercise its control over [Head Dragon] and Easy Flow Ltd and any other entities or person owned or controlled by [A-Power] to ensure that they and/or their subsidiaries do not remove, encumber, dissipate or otherwise dispose of or deal with or diminish in value any of their assets wherever they are located.
(4) If the total unencumbered value of [A-Power’s] assets exceeds USD 323 million, [A-Power] may dispose of or deal with them so long as the total unencumbered value of its assets remain above USD 323 million.
(5) [A-Power] shall inform the plaintiff in writing at once of (i) all its shareholdings; and (ii) all other assets of an individual value of USD 5,000 or more as of the date of this Order and Award, whether in its own name or not and whether solely or jointly owned, giving the value, location and detail of all such assets, such information to initially be given in schedule form within 24 hours of notice of this Order and Award, and to be confirmed by way of affidavit or signed witness statement and provided to [the plaintiff’s] counsel within five business days of notice of this Order and Award.
(6) This Order does not prohibit [A-Power] from spending a reasonable sum towards its ordinary and proper business expenses and on legal expenses and representation.
(7) Where [A-Power] is ordered not to do something, it must not do it itself or by its directors, officers, employees or agents in any way.
(8) [The plaintiff] shall be permitted to apply to any court of competent jurisdiction for a court order giving effect to the terms of this Order and Award and to provide copies of this Order and Award to any third party for the purpose of giving effect to this Order and Award......” (my emphasis)
10. At all material times, both Head Dragon and a Hong Kong company, Easy Flow Limited, were, and are, wholly owned subsidiaries of A-Power with registered offices in Hong Kong.
High Court enforcement order
11. On 18 April 2012, the plaintiff applied ex parte in HCCT 16/2012 under Order 73 rule 10(1)(c) of the Rules of High Court for leave under section 61(1) of the ordinance to enforce the interim arbitral order. On 24 April 2012, Au J granted the High Court enforcement order which provided, inter alia, that:
“1. Leave be granted to [the plaintiff] to enforce the [interim arbitral order] and award made on 16 April 2012 by the arbitral tribunal in the Hong Kong International Arbitration Centre, Arbitration No HKIAC/A11074 in the [terms of the interim arbitral order].
2. [A-Power] may, within 7 days after service of this order upon it, apply to set aside this order.
3. The [interim arbitral order] shall not be enforced as an order of this Court until after the expiration of the 7-day period referred to in paragraph 2 above or, if [A-Power] applies within the said 7 days to set aside the order until after the application is finally disposed of.”
12. On 24 April 2012, copies of the High Court enforcement order endorsed with a penal notice were sealed by the court. A-Power did not, at any time, apply to this court to set aside the High Court enforcement order pursuant to paragraph 2 of thereof.
Liaoning Gaoke share transfer
13. On 3 May 2012, shortly after the interim arbitral order and the High Court enforcement order were granted, Head Dragon and a Hong Kong company known as Asia New Energy Group Limited (hereinafter called “ANE”) entered into an agreement pursuant to which Head Dragon agreed to transfer its entire 100% shareholdings in Liaoning Gaoke to ANE for a consideration of RMB 54 million payable by ANE in a lump sum to an account designated by Head Dragon before 15 May 2012 (hereinafter called “the Liaoning Gaoke share transfer agreement”). The Liaoning Gaoke share transfer agreement was executed by the defendant on behalf of Head Dragon and by Mr Zhang Yuqiang (hereinafter called “Mr Zhang”) on behalf of ANE.
14. ANE is a Hong Kong company with the same registered office as Easy Flow Limited. Up to 9 January 2009, the defendant was a director of ANE and a holder of 90% of its shares. 10% of the shares in ANE were held by Mr John Shen Lin, a former director and chief operating officer of A-Power. On 9 January 2009, the defendant and Mr Lin transferred their shareholdings in ANE to a Samoan company called Marston International Limited, and a company incorporated in Anguilla called East Rise Limited was appointed as corporate director of ANE. On 13 January 2010, a Samoan company, New Rise Limited, was appointed as corporate director of ANE in its place.
15. The Liaoning Gaoke share transfer agreement provided, inter alia, that within 15 working days after such agreement took effect, Head Dragon shall help ANE go through registration formalities relating to the transfer of the subject shares of Liaoning Gaoke (article 1), and ANE shall pay Head Dragon RMB 54 million in a lump sum to the account designated by Head Dragon before 15 May 2012 (article 2). It was further provided that such agreement shall take effect upon affixing of signatures and seals by both parties thereto (article 8).
16. Further, on 3 May 2012, the defendant, Mr Zhang and/or ANE, executed various documents to give effect to the Liaoning Gaoke share transfer agreement including, inter alia, the following:
(a) a shareholders’ resolution of Liaoning Gaoke, signed by the defendant and Mr Zhang and affixed with the chop of ANE, recording the key terms of the Liaoning Gaoke share transfer agreement; and
(b) a shareholders’ resolution of Liaoning Gaoke, signed by the defendant and affixed with the chop of Liaoning Gaoke, resolving to remove the defendant as chairman and legal representative.
Committal proceedings
17. On 16 July 2013, Au J granted leave to the plaintiff to apply for an order for committal against the defendant for contempt of court, leave to serve out of jurisdiction and an order for substituted service of the statement dated 29 April 2013 pursuant to Order 52 rule 2 of the Rules of High Court, the summons filed on 8 July 2013 (for service out of jurisdiction), the 1st, 2nd and 3rd affirmations of Soh Yan Lee, Andy (hereinafter called “Andy Soh”) as well as the originating summons to be filed pursuant to the leave so granted to commence committal proceedings, and the affidavit to be filed in support of the same, by sending these documents:
(a) by hand to Unit 3201A, 32/F, Citicorp Centre, 18 Whitfield Road, Hong Kong, being the registered office of Head Dragon of which the defendant was and is its sole director (hereinafter called “the Head Dragon address”);
(b) by courier to 3-1, No 215, Qingnian Street, Shenhe District, Shenyang, Liaoning Province, PRC, being the defendant’s address stated in a board resolution dated 18 January 2012 of Liaoning Hi-Tech Energy Group Real Estate Development Co Ltd, a wholly-owned subsidiary of Liaoning Gaoke, filed with the State Administration for Industry and Commerce in Shenyang (hereinafter called “the first PRC address”);
(c) by courier to No 64 Huang Hai Road, Yu Hong District, Shenyang, Liaoning, 110141, PRC, being the defendant’s residential address stated on the annual return dated 24 December 2012 of Venture Link Holdings Limited, a subsidiary of ANE (hereinafter called “the second PRC address”); and
(d) by courier to Room 1908, Block C, Zong Tong Da Sha, 69 Han Ping Bei Da Jie, Han Ping District, Shenyang, Liaoning, PRC, being the defendant’s address stated on Head Dragon’s latest annual return signed by the defendant and dated 2 July 2013 (hereinafter called “the third PRC address”).
18. According to the affidavit of service of Lam Kwan-ngok, Ello (hereinafter called “Ello Lam”) filed on 15 August 2013, the plaintiff served the order of Au J dated 16 July 2013, the statement dated 29 April 2013, the summons filed on 8 July 2013 (for service out of jurisdiction), the 1st, 2nd and 3rd affirmations of Andy Soh, together with exhibits, filed in HCCT 16/2012, the originating summons and the affirmation of Andy Soh filed on 23 July 2013 in the present proceedings, on the defendant by leaving the same at the Head Dragon address on 23 July 2013 with acknowledgement of receipt, and by courier to the first PRC address delivered on 30 July 2013.
19. According to the second affidavit of service of Ello Lam filed on 6 January 2014, both the notice of appointment to hear originating summons dated 19 September 2013 and a notice of hearing dated 7 October 2013 were served on the defendant by leaving the same at the Head Dragon address on 8 October 2013 with acknowledgement of receipt, and by courier to the first PRC address delivered on 10 October 2013.
20. According to the third affidavit of Ello Lam filed on 21 January 2014, the written skeleton submissions of the plaintiff’s counsel, together with her list of authorities and the authorities referred therein, and the bundle for the hearing before me today, were served on the defendant by leaving the same at the Head Dragon address on 17 January 2014 with acknowledgement of receipt and by courier to the first PRC address, and as at 21 January 2014, they were still in the course of being delivered to the first PRC address.
21. Service at the second and the third PRC addresses was without success as acceptance of delivery at the second PRC address was repeatedly refused, and the courier was later informed that the defendant had moved, and at the third PRC address, which was apparently incorrect and incomplete.
Legal principles
22. The interim arbitral award and the High Court enforcement order are in the nature of Mareva-type orders. In RACP Pharmaceutical Holdings Limited v Li Xiaobo, HCA 490/2007 (unreported, 14 April 2008), which concerned an application to set aside leave granted ex parte for issue of a notice of motion for committal for alleged breach of a Mareva order, DHCJ Gill said at paragraph 2 of his judgment that “[the] first principle is that court orders are made to be obeyed. They are not guidelines, to be ignored or paid lip service to at the behest of the parties affected. They are the building blocks by which the administration of justice is made workable. Litigants who wilfully breach orders at the expense of their opponents to their advantage do so at the risk of losing the liberty for being in a contempt of court”.
23. The proper approach in committal for civil contempt by reason of breach of a court order is a three-stage test, namely, it is necessary to:
(a) construe the relevant court order to ascertain its meaning and operation;
(b) then determine whether the defendant has in fact complied with the order as so construed; and
(c) finally consider whether any failure to comply was accompanied by a state to mind necessary to establish punishable contempt.
(See Kao Lee & Yip v Donald Koo Hoi Yan (2009) 12 HKCFAR 830, 846, followed by Fok JA, as he then was, in Effiscient Limited v Edward Eugene Lehman [2013] 3 HKC 300, 305 to 306.)
24. The burden is on the plaintiff to prove that the defendant’s contempt was beyond reasonable doubt.
25. A director or other officer of a body corporate can be liable for contempt committed by a body corporate in two ways:
(a) under Order 45 rule 1(iii) of the Rules of High Court; and
(b) as a person who aids and abets the contempt.
(See Hong Kong Civil Procedure 2014, Volume 1, paragraph 52/1/17 at page 964.)
26. In the application for contempt under Order 45 rule 5 of the Rules of High Court, no moral blame, knowledge or wilfulness on the part of the director or other officer is necessary. It is, however, necessary to show that:
(a) the director or other officer was fully aware of the terms of the order with which the company must comply;
(b) he had knowledge at a time when he could use his position as a director or other officer to secure compliance; and
(c) he was aware that if he did not so use his position, steps could be taken against him personally to enforce compliance.
(See Hong Kong Civil Procedure 2014, Volume 1, paragraph 45/5/4 at pages 964 to 975 and Excel Noble Development Limited & Ors v Wah Nam Group Limited & Ors [2001] 4 HKC 148 at pages 155 to 157.)
27. Order 45 rule 7(3) and rule 7(4) of the Rules of the High Court require a director or other officer concerned to be served with a copy of the order personally with an appropriate penal notice before he can be committed for disobedience to an order against his company, but the court may dispense with personal service pursuant to Order 45 rule 7(7) of the Rules of the High Court if the court is satisfied that the relevant director or officer has been notified of its terms. (See Effiscient Limited v Edward Eugene Lehman at page 310 and AXA China Region ServiceInsurance Company Limited v Li Yu Ping Ellen [2002] 3 HKC 339 at pages 355 to 356.)
28. In an application for committal against a director or other officer for his personal aiding and abetting the company in its breach of the order, it has been held that personal service is not required because a director or other officer cannot be liable as an aider and abettor unless he has notice of the order. There must also be evidence of personal misconduct on the part of the director or other officer. (See Hong Kong Civil Procedure 2014, Volume 1, paragraph 52/1/17 at page 964 and paragraph 45/5/4 at page 874.)
The relevant orders
29. In my view, the meaning and operation of the interim arbitral award and the High Court enforcement order is clear. In short, they prevent A-Power and its subsidiaries, including Head Dragon, from dealing with their assets located anywhere in the world up to the value of USD 323 million. In particular, such prohibition requires A-Power to exercise control over Head Dragon and Easy Flow Limited, and any other entities or persons owned or controlled by A-Power, to ensure that they would not deal with or diminish in value any of their assets wherever they are located.
Issues
30. The critical issue in this application is whether the defendant knew or had knowledge of the existence of the interim arbitral order and the High Court enforcement order. If it did, the next question is whether he breached the prohibition imposed by the orders.
Knowledge
31. On 17 April 2012, the plaintiff, through its Hong Kong solicitors, served the interim arbitral order on the defendant, A-Power, Head Dragon and Easy Flow Limited:
(a) by email to, amongst others, A-Power’s legal representatives in the arbitration, Messrs Ng & Shum, Liao Ning Hao Xing Law Office, and an email address used in correspondence with the tribunal in the arbitration by the defendant and A-Power;
(b) by fax and courier to A-Power’s legal representatives in the arbitration;
(c) by hand to the registered offices in Hong Kong of Head Dragon, of which the defendant was at the material time and remains the sole director, and Easy Flow Limited.
32. In a statement made on 17 April 2012, A-Power set out a list of its assets purportedly in compliance with the requirement under paragraph 5 of the interim arbitral order, and confirmed that A-Power would comply with the interim arbitral order.
33. On 23 April 2012, the defendant gave a statement relating to A-Power’s statement, inter alia, as follows:
“I, Mr Lu Jinxiang, am the legal representative of [A-Power]. According to HKIAC/A11074 interim adjudication order, [A-Power] submitted a capital list to Hong Kong International Arbitration Centre and General Electric Drivetrain (Shenyang) Company, Limited on April 17, 2012.
I hereby solemnly declare and certify that all the above is authentic and correct.”
34. In giving evidence on the third day of the substantive hearing in the arbitration on 31 May 2012, the defendant further confirmed that he was aware of the effect of the interim arbitral order being to prevent a transfer or pledge by Head Dragon of the shares in Liaoning Gaoke. When the defendant was asked whether he was “aware that under the tribunal’s order and award of 16 April, [Head Dragon] is not permitted to transfer any of the shares in [Liaoning Gaoke] or to pledge them”, he responded, “This I do know.” In short, the defendant confirmed that he understood and was aware that the effect of the interim arbitral order was to prevent a transfer or pledge by Head Dragon of the shares in Liaoning Gaoke.
35. On 25 April 2012, the plaintiff, through its Hong Kong solicitors, Messrs Gall, wrote to Messrs Ng & Shum enclosing a copy of the High Court enforcement order, and sought confirmation from them as to whether they had instructions to service of the High Court enforcement order on behalf of A-Power. Eventually, Messrs Ng & Shum confirmed that they had no such instructions.
36. On the same day, on 25 April 2012, Messrs Gall, acting for the plaintiff, served the High Court enforcement order under cover of a letter which, inter alia, drew attention to the consequences of breaching or assisting in the breach of the High Court enforcement order on the following parties, amongst others:
(a) the defendant, by registered post to:
(i) the third PRC address; and
(ii) care of A-Power at No. 44 Jinxiang North Street, Tiexi District, Shenyang, Liaoning, 110021, PRC; and
(b) Head Dragon, of which the defendant was and remains the sole director, by hand, at its registered office.
37. By reason of the above matters, I am satisfied that it has been proved beyond reasonable doubt that as at 3 May 2012, when the defendant executed the Liaoning Gaoke share transfer agreement that:
(a) A-Power knew of the terms of both the interim arbitral order and the High Court enforcement order;
(b) the defendant knew of the terms of the interim arbitral order; and
(c) notwithstanding that the third PRC address was apparently incorrect and incomplete, the defendant as chairman, chief executive officer and legal representative of A-Power, and the sole director of Head Dragon, knew of the terms of the High Court enforcement order sent by registered post care of A-Power’s address in Liaoning, PRC, and by hand to Head Dragon’s registered office address.
38. In the circumstances, and bearing in mind a director’s or other officer’s responsibility in respect of a Mareva-type order against a company, in the exercise of my discretion, I dispense with personal service of the interim arbitral order and the High Court enforcement order.
39. I note that the High Court enforcement order has been endorsed with a penal notice directed to the defendant, and it has been sent by registered post to A-Power’s address in Liaoning, PRC, and to Head Dragon’s registered office address by hand. Given that the defendant was and is the sole director of Head Dragon and chairman, chief executive officer and legal representative of A-Power, he would be expected to have knowledge of major legal proceedings of A-Power, particularly that related to restriction on the disposal of assets involving a Mareva-type order. The delivery of the High Court enforcement order as aforesaid, the service of the interim arbitral order as aforesaid, the defendant’s acknowledgement and understanding as expressed in his evidence in the arbitration proceedings, are sufficient to permit this court to dispense with personal service.
40. I agree with Ms Lam, counsel for the plaintiff, that the irresistible inference to be drawn from the foregoing, and I am therefore satisfied beyond reasonable doubt that:
(a) the defendant was aware of the effect of the interim arbitral order and the High Court enforcement order; and
(b) he was so aware when in his capacity as sole director of Head Dragon and/or as the chairman, chief executive officer and legal representative of A-Power, he could have used his position to secure compliance with the interim arbitral order and the High Court enforcement order; and
(c) he was aware that if he did not so use his position, disobedience of the interim arbitral order and the High Court enforcement order would expose him to committal for contempt of court or steps taken against him personally to enforce compliance.
41. The following documents have been served on the defendant in the same manner as provided for by the order of Au J dated 16 July 2013:
(a) the letter by the plaintiff’s solicitors to the court making an appointment to fix the date of the hearing of the originating summons;
(b) copy letter dated 19 September 2013 by the plaintiff’s solicitors to the defendant informing him that a hearing date for the originating summons has been fixed in his absence;
(c) the notice of appointment to hear originating summons filed on 19 September 2013;
(d) the notice of hearing issued by the High Court on 7 October 2013; and
(e) the plaintiff’s counsel’s skeleton submissions and list of authorities and the authorities referred therein, and the hearing bundle for the originating summons.
42. I see no reason why retrospective leave should not be granted, and I so grant such leave, for service of the above documents out of jurisdiction and for the above documents to be served in the same manner as set out in paragraph 3 of the order of Au J dated 16 July 2013.
Breach
43. Pursuant to A-Power’s statement (see paragraph 32 above), A-Power held assets in the aggregate amount of US$194,504,020.91 as at 17 April 2012. Of this sum, US$129,040,184.21 comprised accounts receivables from A-Power’s subsidiaries, and only US$2,621,384.33 were shareholdings in companies not related to A-Power’s group of companies. Out of A-Power’s non-group related assets of US$2,624,384.33:
(a) the long-term investment of US$150,000 in Mr Sombat Chotyiriyakul, a nominee shareholder for Liaoning Gaoke, which, in fact, is a non-interest bearing loan provided to him in consideration of his 51% share capital in a Thai subsidiary company of Liaoning Gaoke or, in other words, it is, in effect, a payment by A-Power for 51% share capital in the Thai subsidiary company;
(b) US$2,463,836.80 in intangible assets in “W2E Technology” representing a technology licence from Fuhrländer AG in respect of a 2.5 megawatt wind energy turbine developed by a German company.
44. It has been suggested that these two sums should be taken out of the real assets of A-Power, but irrespective of whether these two sums should be so excluded or not, the unencumbered value of A-Power’s assets is below the threshold of USD 323 million. In such circumstances, Head Dragon’s entry into and the execution by the defendant on behalf of Head Dragon of the Liaoning Gaoke share transfer agreement are plainly in breach of the interim arbitral order and the High Court enforcement order.
45. By reason of the above matters, I am satisfied that it has been proved beyond reasonable doubt that the defendant:
(a) understood that the terms of the interim arbitral order and the High Court enforcement order effectively prohibited Head Dragon from encumbering, dissipating or disposing of or otherwise dealing with or diminishing in value its 100% shareholding in Liaoning Gaoke;
(b) knew the consequences of disobedience of the interim arbitral order and the High Court enforcement order;
(c) nevertheless, in his capacity as the sole director of Head Dragon and/or as chairman, chief executive officer and legal representative of A-Power, wilfully caused and/or procured and/or aided and abetted and/or authorised Head Dragon to transfer 100% of the shares in Liaoning Gaoke held by Head Dragon to ANE in breach of the interim arbitral order and the High Court enforcement order; and
(d) as chairman, chief executive officer and legal representative of A-Power, failed to take any or all reasonable steps to ensure Head Dragon would not do any act so as to encumber, dissipate, dispose of or otherwise deal with or diminish in value its 100% shareholding in Liaoning Gaoke.
Time
46. Upon engaging a forensic investigator, the plaintiff first found out about the transfer of the shares of Liaoning Gaoke on 11 October 2012. The plaintiff was first advised by its external advisers that such transfer of shares might constitute a breach of the High Court enforcement order on or about 16 October 2012. The plaintiff first had sight of the Liaoning Gaoke share transfer agreement on or about 6 November 2012 after commissioning an agent to conduct a search of the records with the relevant PRC authority.
47. Since then, the plaintiff took steps in Hong Kong, BVI and Samoa, with a view to enforce the final arbitration award which the tribunal issued on 8 August 2012, and which, pursuant to the order of Au J dated 19 October 2012, the plaintiff is at liberty to enforce in the same manner as a judgment or order to the same effect. In mid-March 2013, the plaintiff gave instructions to their present solicitors to seek leave to commence committal proceedings against the defendant and such application was filed on 29 April 2013.
48. Having considered the chronology of events, I am also satisfied beyond reasonable doubt that there has been no material delay on the part of the plaintiff in taking out the committal proceedings.
49. In the premises, I am satisfied that it has been proved beyond reasonable doubt that the defendant has breached the interim arbitral order and the High Court enforcement order and is guilty of contempt.
Penalty
50. The plaintiff has asked the defendant to be committed to prison for his contempt.
51. Contempt of civil court orders is a serious matter. As observed by Chu J, as she then was, in Questnet Limited v Wilfred Royce Lang HCA 1475/2006 (unreported, 23 June 2008) at paragraph 4, the primary consideration in sentencing contempt is the signal importance of demonstrating to litigants that orders of the court are to be obeyed.
52. As to the broad principles on the matter of penalty for contempt, I can do no better than to respectfully adopt those set out by Au J in his judgment in AO Smith Holdings (Barbados) SRL v Zhang Dacheng HCMP 1132/2011 (unreported, 1 June 2012) at paragraphs 58 to 61, as follows:
“58. Further, the purpose of a Mareva injunction is to protect the integrity of the Court’s processes and flagrant breaches of it should be met with an immediate term of imprisonment. In this respect, the English Court of Appeal in Pospichal v Phillips has emphasised the importance in ensuring that the public and the litigating parties are made to be aware of the seriousness of obeying court orders and in particular Mareva injunctions:
‘...the plaintiff is not the only interested party. The public is an interested party, because it is and it should be known that it is of the highest importance that orders as serious as Mareva injunctions made by the court are there to be obeyed and not flouted...’
59. Further, in JSC BTA Bank v Solochenko [2012] 1 WLR 350 after reviewing a line of first instance authorities, Jackson LJ said at paragraphs 51 and 55 that normally a custodial sentence measured in months should be imposed for a deliberate breach of disclosure provision of a freezing order:
‘51. ...any deliberate and substantial breach of the restraint provisions or the disclosure provisions of a freezing order is a serious matter. Such a breach normally attracts an immediate custodial sentence which is measured in months rather than weeks and may well exceed a year.’
‘55. ...
(i) Freezing orders are made for good reason and in order to prevent the dissipation or spiriting away of assets. Any substantial breach of such an order is a serious matter, which merits condign punishment.
(ii) Condign punishment for such contempt normally means a prison sentence. However, there may be circumstances in which a substantial fine is sufficient: for example, if the contempt has been purged and the relevant assets recovered.
(iii) ...’
60. In my view, Jackson LJ’s above observations on sentence for contempt apply equally if not with greater force in relation to breaches of a freezing or injunction order itself.
61. Hong Kong authorities have also shown that a normal penalty for breaches of injunction orders is imprisonment measured in months: Banco Popolare di Vicenza Soc Coop v Alutech (Far East) Company Limited(the contemnor was sentenced to 6 months’ imprisonment for breach of a Mareva injunction) and Questnet Limited, supra (where the contemnor was sentenced to 3 months for breaching a Mareva injunction).”
53. Whilst I accept that the starting and primary penalty for contempt of court in breaching an order in the nature of an injunction (as in the case of the interim arbitral order and the High Court enforcement order) is imprisonment, I need to consider whether there are any mitigating factors.
54. Here the defendant has not appeared in these proceedings to offer any mitigating factor. In my view, the breach is flagrant and the consequences for the plaintiff can be damaging for it deprives the plaintiff of the opportunity to recover and satisfy any award made in the arbitration from a substantial asset of A-Power held through its wholly-owned subsidiary, Head Dragon.
55. There is failure to purge the contempt ever since the initial breach in May 2012. I therefore do not find any mitigating factor in this case that justifies imposing a non-custodial sentence or, to put it in another way, I find a prison sentence appropriate for the defendant’s contempt in breaching the interim arbitral order and the High Court enforcement order.
56. Taking into account all the circumstances of the case and the above considerations, I find the appropriate sentence to be a term of 3 months.
57. In conclusion, I am satisfied beyond reasonable doubt that the defendant is guilty of contempt of court as chairman, chief executive officer and legal representative of A-Power in dealing with the shares of Liaoning Gaoke held by Head Dragon, a wholly-owned subsidiary of A-Power, in breach of the interim arbitral order and the High Court enforcement order, and he did so with knowledge of the restriction imposed by the said orders.
58. I further order that he be committed to prison for 3 months.
(Discussion re draft order and costs relating to originating summons)
59. In view of my ruling, there is no reason not to grant costs in favour of the plaintiff. In view of my findings as to the nature of the circumstances of the breach, I also consider that indemnity costs would be appropriate. I therefore grant an order in terms of paragraph (f) of the originating summons.
(Marlene Ng)
Deputy High Court Judge
Ms Catrina Lam, instructed by Dechert, for the plaintiff
The defendant was not represented and did not appear
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