Favor Easy Management Ltd & Anor v Wu & Anor

Introduction

This is an appeal from an order of Mr Justice Norris dated 14 October 2011. By his order the judge dismissed all claims in the action made by the Second Claimant (“Mr Lee”), declared that the First Defendant (“Ms Wu”) is entitled to the bearer share in the First Claimant (“FEM Seychelles”) and ordered delivery up (to Ms Wu’s solicitors) of that share, the company documents and the company seal within 21 days. The judge also made a declaration that Ms Wu is the legal and beneficial owner of the properties and land at 64 and 66 Avonmore Road, London W14 (respectively “No. 64” and “the Hotel”) and made other ancillary orders.

Mr Lee now appeals against the order by permission of Lord Justice Etherton granted on 11 May 2012.

Overview

Mr Lee’s claim arose out of the acquisition of the Hotel in January 2008, in the name of FEM Seychelles, and of No. 64 in July 2008, in the name of the Second Defendant (“FEM Virgin”). The purchase price for the Hotel was £1.57 million which was provided by Mr Lee. The instructions for the purchase, however, were given to the solicitor acting, Mr David Tang, by Ms Wu. No. 64 was purchased for £1.6 million, again on Ms Wu’s instructions with the aid of mortgage finance, but with the mortgage money being secured on the Hotel rather than on No.64 itself. Prior to that transaction the legal title in the Hotel was transferred by FEM Seychelles to FEM Virgin. Mr Lee’s counsel contended in opening submissions to the judge that that transfer was a “cunning and callous” fraud on the part of Ms Wu, although fraud was not (as such) pleaded as a cause of action.

In the action Mr Lee claimed beneficial ownership of both properties, based upon a resulting or constructive trust arising from his provision of the purchase price for the Hotel. Further, he claimed that, “at all material times” he held the sole bearer share in FEM Seychelles and was, therefore, the owner of that company and with it the Hotel itself. He contended that Ms Wu’s acquisition of No.64, in the name of FEM Virgin, was a breach of trust. His case was that the intention had been that he would acquire No.64, in addition to the Hotel, and that he would provide the purchase money. It was said that he had provided the money for the acquisition of No.64 and that FEM Seychelles or he was, therefore, beneficial owner of No.64 as well as the Hotel.

In her defence Ms Wu alleged that she was and is the beneficial owner of FEM Seychelles and that the Hotel was a gift to her from Mr Lee, who provided the purchase money for that purpose. Similarly, she said that No.64 was acquired in the manner already described, using borrowed money, which was substantially repaid in September/October 2008 with money given to her as a gift by Mr Lee as a reward for introducing him to a younger female companion who met with his approval. That younger companion so introduced was, on Ms Wu’s case, Ms Xueyan Gao (“Ms Gao”). Ms Wu alleged that Mr Lee wrongfully took from her the bearer share in FEM Seychelles at a date in January 2009 and that he thereafter wrongfully withheld it from her.

This dispute about the properties arose in the context of a fundamental clash between Mr Lee and Ms Wu, fought out before the judge, as to the true nature of the relationship between them. Mr Lee’s case was that Ms Wu was an employee of his to whom he intended to entrust the conduct of the Hotel business under a business model called by them “Zhou Wen Xuan” (“ZWX”), so called after a Chinese businessman of that name who had developed the model. Under it the relevant business assets were held under a name which concealed the true owner’s identity and were administered by a “trusted steward”, on the face of it for that steward’s own benefit but in truth for the benefit of the true owner.

It was common ground that Mr Lee was, and still is, a business man of very substantial means. The judge described him as one of the world’s truly “super rich”, a description which does not seem to be contentious. Ms Wu’s case was that she was his “mistress” (for want of a better word) and that he encouraged her to develop her own business interests under the ZWX model, and gave her money and advice with which to do so and to assist members of her family to immigrate into the United Kingdom to help her in such businesses. She said that he gave her money for this purpose and, as part of this, provided as gifts the Hotel and ultimately the moneys to pay off the loan raised to acquire No.64 as a reward for procuring Ms Gao.

This dispute as to the true nature of the relationship between Mr Lee and Ms Wu was clearly of major significance in the claims and counterclaims arising in the action and the judge resolved that dispute in Ms Wu’s favour. That finding is not challenged on the appeal. He went on to find that Ms Wu’s claims as to the intentions of the parties concerning the properties were correct and made his orders accordingly, in the terms summarised above.

The Appeal

In the grounds of appeal, in their final form containing sixteen grounds, Mr Lee contends that the learned judge’s findings as to the intended beneficial ownership of the disputed assets were wrong and should be reversed. These grounds are supplemented in substantial written arguments. I summarise the grounds of appeal, without reciting them in full.

Mr Lee argues that, given the judge’s finding that both parties were “less than straightforward people”, he should have found that contemporary documentary material, principally from the conveyancing solicitors’ files, was “decisive” in Mr Lee’s favour at least on the balance of probabilities, without any need to have recourse to other evidence in the case. It is submitted that in the light of the findings as to the nature and content of the documents the judge was wrong in law in failing to take them into account as a material factor in Mr Lee’s favour. The argument is supplemented by the contention that the judge was wrong to rely on what he described as a “development in the instructions” given by Ms Wu to the solicitors which, it is submitted, was not pleaded, was inconsistent with her evidence and not supported by other findings.

Next, it is contended by Mr Lee that the judge failed to give proper or accurate weight to the content of the transcripts of certain telephone conversations between Mr Lee and Ms Wu in January 2009, which were recorded by Mr Lee, in the aftermath of the rupture in the relationship between the two of them. It is submitted that the judge erred in law in this respect in failing properly to weigh and give effect to admissions against interest made by Ms Wu in the course of these conversations.

It is further argued that the judge failed to give sufficient attention to (a) the absence of any Deed of Gift (similar to those employed in other transactions by Mr Lee) in relation to these disputed properties, (b) the absence of evidence that Ms Wu told anyone of the alleged gifts and (c) her failure to mention at any stage in the recorded telephone conversations the case now made by her in respect of No.64. In paragraph 11 of the grounds, it is contended that the judge did not properly consider “the inherent probabilities” of the case. In paragraph 12, it is said that the judge wrongly failed to apply the law relating to resulting trusts, arising from the acquisition of property in the name of one person with money provided by another. This last mentioned ground did not receive any significant elaboration at the hearing of the appeal.

Finally, it is said that the judge wrongly failed to accept and act upon untested evidence from Ms Gao going to the question of possession/ownership of the bearer share in FEM Seychelles (contrary to the decision in Browne v Dunn (1894) 6 R 67, and later cases).

It is submitted that the judge’s approach to this evidence from Ms Gao and that relating to the transcripts and the “development in instructions” points mentioned above amounted to “serious irregularities” in the trial process undermining the integrity of his findings. Mr Lee also complains that there was a further “serious irregularity” in the judge referring in his judgment to three documents in the chain of solicitors’ attendance notes which, although in the trial bundles, had not been referred to expressly during the trial.

Underlying Facts and Conclusions

To resolve these issues it is necessary to set out in a little more detail the facts underlying the grounds of appeal and the arguments raised on each. I do so under the following heads, although not necessarily in this order: (1) the solicitors’ documents; (2) the telephone transcripts; (3) additional factors – deeds of gift and Ms Wu’s statements (or lack of them) to others; (4) “inherent probabilities”; (5) Ms Gao’s evidence and Browne v Dunn. Having done so, I state my own conclusions on the grounds of appeal arising on each.

The short point emphatically relied upon by Mr Lee is that the contents of the solicitors’ file suggest in a number of places that, while the instructions for the acquisition of the Hotel were being given to them by Ms Wu, the purchaser and true owner was to be her “boss” (i.e. Mr Lee) and that those documents compel a finding to that effect. The contents of the files in the context of the conveyancing transactions can be taken from the judge’s recital of them.

It seems that on 12 October 2007 Ms Wu met Mr Tang, the solicitor, for about 20 minutes. His note of the discussion reads:

“Her boss is thinking of buying a hotel for £1.6 m. The boss wl then grant a lease to her to (sic) nephews for £500K premium.”

There are no details of the property concerned. It seems, however, that a few days later (16 October) the vendor’s agents sought reassurance as to the purchaser’s means to buy the Hotel. Mr Tang recorded a conversation with Ms Wu in these terms:

“She wl not be the buyer but her boss. I need to know the details of her boss. She wants to form a company but I do not know what company the boss requires. Requested the boss to talk to me 2moro to clarify.”

Ms Wu called back and Mr Tang noted:

“Her boss wl not contact me. The boss would at least need to form a company so we can contact the formation company. Whoever acts for the boss must need to be able to obtain instructions.”

The judge then noted (paragraph 17 of the judgment) what he called “a change in the instructions”. Later (in paragraph 94) he was to refer to “the development in the instructions which the documents as a whole record”. In that later paragraph, as it seems to me, he was not simply referring to the specific change as at 17 October 2007, but the development over the period of the transaction as a whole.

Continuing with the narrative, the judge then went on to record the note by Mr Tang of a telephone conversation on 17 October in these terms:

“Boss may lend her the money so that she can be the purchaser. Boss requires security. She can grant a mortgage to her boss on completion.”

Shortly after this Mr Tang received a document dated 18 October which, save for the last line, was in Chinese in the handwriting of Mr Lee, headed in English “Re: 9 Room Hotel” and on the second page “Avonmore”. The judge found this to be written advice or instructions to Ms Wu as to the structure of the transaction with Company A buying the property and leasing it to Company B. It contained the following passages:

“…..buying company A: ask for/want “bearer share” company Liberia, BVI etc….

Prepare leasehold between company A and B: refer to the documents of yesterday….

Establish/buy British company B: change its name to “Mistress Lodge Ltd”….

Company A (anonymous) bought at £1.6 mil…Company A 20 years leasehold selling/sold for £500,000…..Selling/sold to company B; plus annual rental….first 5 years - £50,000/year; second 5 years - £80,000/year; last 10 years - £95,000/year….”

The judge noted that rent was to be a total of £1.6 million over the life of the lease, with an additional £500,000 to be paid by the operator to the freeholder. At the foot of the document, in Ms Wu’s handwriting, was the single line: “The name of Company A will be given to you later”. It was agreed between the parties at trial and accepted by the judge that the reference to the “documents of yesterday” was to a document actually dated 2 October 2007 concerning a restaurant property at Richmond.

On 19 October 2007 Mr Tang noted Ms Wu’s instructions to form a British Virgin Islands company for her, but on 21 October, Mr Tang noted:

“Her B[oss] may hv a BVI company formed in HK already”.

Following a further meeting with Ms Wu on the 22October Mr Tang noted:

“She wl probably instruct a formation company in HK to form a BVI company. For the purpose of this transaction, she is my [client] although she may receive financial assistance from her boss. Since the boss does not want to meet me, I wl not be able to act for the boss.”

On 23 October Mr Tang noted that Ms Wu

“[did] not know whether she wl use a nominee to hold the position for her or not”.

The file then shows that on 25 October 2007, Mr Tang received the certificate of incorporation of FEM Virgin and on 3 November Ms Wu was registered as the holder of one share in the company and became its sole director. On 12 November 2007 FEM Seychelles was incorporated with one bearer share. Ms Wu was the subscriber to the memorandum of incorporation and was its sole director. The share application signed by Ms Wu said this:

“I, being the agent of the bearer, hereby apply for and request you to allot 1 bearer share…..to the bearer at par. I confirm that the bearer agree (sic) to take the said share subject to the Memorandum and Articles….”

Mr Lee obviously places reliance on this document, being signed by Ms Wu “as agent for the bearer”, as indicating that Ms Wu was acting as Mr Lee’s agent. The address for correspondence was given as 2 Ebury Mews, London SW1, Ms Wu’s home address, the flat provided for her use by Mr Lee close to his own London home in Chester Square. Mr Tang was provided with a copy of the certificate of incorporation of FEM Seychelles by Ms Wu on 21 November.

On 14 December 2007 Mr Tang noted:

“The purchase price has been reduced by a further £10K. Her backer wl send the money to me from Switzerland. The backer wl like to hv a look at the contract 1st.”

On 17 December a fax written by Mr Lee recorded the remission of the funds for the purchase to Mr Tang’s client account. The purchaser’s part of the contract was signed by Ms Wu and contracts were exchanged on 20 December, with completion fixed for 8 January 2008. The purchase was duly completed on that date. Ms Wu’s evidence to the judge was that upon completion Mr Lee told her to

“…hold the file [relating to FEM Seychelles] and it belongs to you”.

(Day 8 page 90-91, AB2/33/424)

On 23 February 2008 Ms Wu informed Mr Tang that she wished to acquire No. 64. There was a meeting on 16 April; the attendance note included the following:

“She wants the BVI company to own the present property. She also wants the BVI company to acquire the nxt-door building. She wl offer £1.6 million in due course….I advised her to approach HSBC to obtain rate. Mr Simons will also arrange a mortgage thru NatWest for her. Whoever can offer the best wl get the deal. She wants to borrow £2 million…..”

Contracts were exchanged on 23 May 2008, with completion to be on 18 July. The purchase money was to be provided by HSBC who were to take a mortgage not over No 64 but over the Hotel. Mr Tang’s note of a conversation with Ms Wu on 10 July recorded,

“Tld her the Seychelle company wld hv to transfer the property to the BVI company on or before 18 July 2008”.

On 18 July 2008 that transfer was effected, with Ms Wu signing on behalf of FEM Seychelles and FEM Virgin charged the Hotel to HSBC. In September and October the bulk of the loans were paid off from funds provided by Mr Lee to Ms Wu. In fact he provided sufficient funds to discharge the mortgage entirely, but it seems that, for reasons of her own, Ms Wu left some £300,000 outstanding.

The judge found that the file provided a reliable record of the dealings between the parties concerning the disputed properties, although caution was required as the documents were only summaries in English of lengthy meetings or discussions conducted in Cantonese.

The short point made by Counsel for Mr Lee to the judge and to this court was and is that these documents (as a “reliable record”) speak for themselves and are sufficient on their own to conclude the case in his favour. It is submitted that this court is as well placed as the trial judge to draw the appropriate inferences and conclusions from them. Indeed, the argument can be distilled further into the even shorter submission that the initial two attendance notes of 12 and 16 October, quoted above, resolve the case in Mr Lee’s favour without more.

Mr Trace submitted that the fact that the conversations between Mr Tang and Ms Wu were in Cantonese was nothing to the point; the notes were made by an English solicitor in English and can be taken to be describing accurately in strict legal terms what the parties intended the legal relations to be.

The judge rejected that submission. He said:

“I do not agree. One has to look at the entirety of the evidence. But these documents are a source of essentially reliable material provided they are approached in a considered way.” (Paragraph 40)

At paragraph 94 the judge went on to say,

“The documents are far more nuanced than Mr Trace QC [for Mr Lee] would allow: and they certainly do not make it unnecessary to refer to any other evidence. So far as they go they demonstrate ultimate instructions from Ms Wu that FEM Seychelles (the company incorporated by her) is to be the purchaser, but that she (as its human agent) has a financial backer. They do not compel the conclusion that FEM Seychelles belongs to Mr Lee or that FEM Seychelles is a bare trustee for Mr Lee.”

In the alternative, it is argued for Mr Lee that even if the documents are not decisive in his favour they are not favourable to Ms Wu and the judge failed to take them properly into account in Mr Lee’s favour.

For my part, I agree entirely with the judge’s approach to, and his analysis of, the documents. In my judgment, the documents were snapshots of the instructions received by Mr Tang from time to time and they reveal a changing picture (i.e. an ongoing “development of the instructions”) as to the precise mechanics of the transaction: “the Boss” first as purchaser, a possible loan from him to Ms Wu, then acquisition through a BVI or Liberian company, then a Seychelles company, then Ms Wu as Mr Tang’s client with possible “financial assistance from her Boss”, but with lack of clarity as to whether “she wl use a nominee to hold the position for her or not”, and in the end provision of the completion funds to her by “her backer”. They did not reveal either a full picture or a constant one as to the true intentions of Mr Lee and Ms Wu. The short notes dealt with mechanics; as the judge found, the true intentions of the parties could only be derived from the evidence as a whole.

As Mr Crampin QC for Ms Wu submitted, the solicitors’ documents, and in particular the first two notes, did not reflect the transaction that occurred. He took the court to certain passages in Ms Wu’s oral evidence in which she was cross-examined about the contents of these notes. A selection of her answers illustrates her explanation of these documents and her approach to the instructions being given to Mr. Tang. I pick out merely the following six passages among several to illustrate the point:

(1)

“A. In 2007 Mr Lee and I discussed about the purchase of the hotel for me.

Q. He was going to fund the hotel but retaining the ultimate ownership and control for himself; isn’t that right, Ms Wu?

A. No, Mr Lee, from the beginning, wanted to buy a hotel for me. It’s for me, for retirement, and also I have something to do in the UK, and also to help my niece and nephew to emigrate to this country.

(2)

“A. I do not know about an offshore company purchasing a property in this country. Mr Lee taught me step by step. To date, I still do not have a clear idea of how an offshore company can hold a property here, I have never purchased any property in the UK.

(3)

“A. His staff, there are plenty of his staff, members of staff who can purchase property on his behalf, He also has a team of lawyers. Why would he ask me to look for a solicitor to buy a property? Because it’s a gift from him, so he taught me step by step how to proceed”.

(4)

“Q. What I’m meaning, Ms Wu, is that the best record of what you said on that day, on 12 October 2007, is this note from a solicitor with whom you spoke on that day, who made a note which appears to be contemporaneous.

THE INTERPRETER: Which appeared to be …..?

MR TRACE: Contemporaneous: made at the same sort of time.

A. Yes. Yes, I told my lawyer at that time that my boss bought it for me.”

(5)

“Q. Let me just put the point. I said: let’s look at the words. They do not say that the boss is thinking of buying a hotel for you. They simply say that:

“Her boss is thinking of buying a hotel for £1.6 million”

A. I understand. I went to Mr Tang, the lawyer. Why did I say “boss”? At that time me and my husband had finished our emigration application with the solicitor, so I could not say to the solicitor that my lover bought me this. I was embarrassed to say “my lover”. Chinese people use the word “boss” to refer to the person who pays. As a lover, the lover will refer – as a mistress the lover will refer to her lover as “boss”. After Mr Tang has learned about the fact that I and Mr Lee are lovers, so I always use the word “boss”. I use the word “boss” in front of my lawyer, Mr Tang.”

(6)

“A. I did not ask Mr Lee for a loan. If I borrowed money from him and bought the property, then the property belongs to me. I was embarrassed to say this to Mr Tang, that I am Mr Lee’s mistress, so I put that to him that the boss lend me the money.

Q. Ms Wu, that is still no answer to using the phrase “a loan” rather than “a gift”. Why not say, “My boss is giving me the hotel” Why didn’t you say that?

A. I cannot possibly say that, as it’s embarrassing that I say I am a lover. Mr Tang in particular was the lawyer for the emigration to the UK of my whole family. I did not say to Mr Tang that I was separated from my husband and we were emigrating for the sake of the son. It is not possible for me to say that the boss, who is my lover, bought me the hotel. I can only say he lent me the money to do so.”

Mr Trace submitted that the explanations sought to be given by Ms Wu were themselves contradicted by a further passage in the evidence as follows:

“Q. Her backer [will] send money to me from Switzerland.” That is the word you used, isn’t it your “backer”?

A.

Yes. It’s very simple: at that time Mr Tang already learned that I am Mr Lee’s lover.

Q.That’s because you told him that. Mr Lee didn’t tell him that, did he?

A.Mr Lee had given me 1 million for immigration. So Mr Tang already knew that I am someone’s lover.”

However, the judge accepted that embarrassment was Ms Wu’s explanation for the use of the term “Boss” (lopan in Cantonese) and certainly Mr Tang made no record of the true relationship between Mr Lee and Ms Wu. I do not see that it is necessarily inconsistent for Mr Tang to have known that Ms Wu had a lover or even that the lover was Mr Lee. She said, throughout the passages relied upon by Mr Crampin, that Mr Tang knew that Mr Lee and Ms Wu were lovers: see quotation (5) above and this:

“I refer to “the boss” all the time when I spoke to Mr Tang. After Mr Tang learned about the relationship between me and Mr Lee are lovers, that we have sexual relations, I have used the word “boss” all along.”

In other words, whatever Mr Tang might have known she simply used the term “boss”, rather than “lover” or some other more explicit expression, out of embarrassment. I see no material inconsistency in that.

The judge considered Ms Wu’s explanation and described it as not entirely implausible but “a little thin”. However, in reaching what he described as his “provisional conclusion” in relation to the Hotel (which he later found to be supported by other evidence), the judge said,

“108.

So far as the probabilities go, if it is right that Ms Wu was a companion and sexual partner (and not a PA or middle manager in a UK property empire organised so as not to require management) it is not improbable that a wealthy man like Mr Lee, who had already given well over £1 million to Ms Wu and conferred upon her investor status for the purpose of UK residence, should buy her a modest, rundown hotel for herself and her family to operate under his distant guidance. On the other hand it is improbable that a woman as well placed as Ms Wu should have put at risk her recently acquired status (which on any footing was such a huge improvement over her former condition) by embarking upon a fraud concerning 66 Avonmore Road (for at that stage the availability of 64 Avonmore Road was unknown). Moreover, embarking upon that fraud by deliberately incorporating FEM Virgin in defiance of specific instructions not to do so, then commencing to conduct the transaction utilising FEM Virgin (from whom her solicitor was going to need instructions and payment), only to complete the transaction utilising FEM Seychelles (the intended purchaser) and (on Mr Lee’s case) then handing the bearer share and the company seal of FEM Seychelles to Mr Lee.

109.

So looking at the acquisition of 66 Avonmore Road itself, my provisional view is that Ms Wu’s account is more likely to be correct than Mr Lee’s. Then one has to look what happened afterwards.”

The judge was not bound, in my view, simply to construe the documents on the solicitors’ file, one by one and word for word, in isolation from the realities of the case. The judge was correct to have regard to the whole of the evidence and to put the documents into place as one element of the factual scenario before him. I reject the notion that the judge did not take them properly into account. It is quite clear that he carefully picked out important parts of the documents relied upon by Mr Lee, as examples, and considered what they revealed. As with other parts of the evidence, the judge formed a preliminary view of what was to be derived from them. He then weighed up what he deduced from the documents with the other evidence in the case (on which he had also reached provisional findings) and reached his conclusions in the light of all the evidential elements. In my judgment that was an impeccable approach and I agree with his final conclusion as to what he derived from the documents, as expressed in paragraph 94 of the judgment.

For my part, I do not accept the submission by Mr Trace that, when the judge referred to “the change in the instructions” in considering the attendance note of 17 October and the mention of a loan, he was adopting some new theory of his own outside the pleaded cases or in contradiction to Ms Wu’s own case. He was simply recording a fact that the instructions as to the mechanics and details of what was to happen developed through the course of the transaction. He was merely narrating those developments as the documents themselves record. When, at paragraph 94 of the judgment, the judge spoke of “the development of the instructions” he was not propounding any new theory. He was merely reciting the plain fact that the instructions to Mr Tang had “developed”. The judge was not signalling a view on his part that the underlying true intentions of the parties had changed.

Moreover, I do not accept the submission of Mr Trace that, in some way, the judge was unfair to Mr Lee in considering the documents on the files as a whole, including the few documents not in the core bundles at trial and not referred to by the parties: paragraphs 20, 22 and 94 of the judgment. All the judge did was to set out a full summary of what the file as a whole contained. He was reciting the undeniable facts of what Mr Tang wrote and he was, in my view, entitled to consider all the file documents contained in the trial bundles. All that he derived from the totality was that the instructions about the mechanics or possible mechanics of the transaction changed in various respects throughout the process as options were ventilated and considered. A judge is not confined in his consideration of the evidence at a trial to the tramlines of documents expressly referred to by the parties nor is he prohibited from having recourse to other documents in the trial bundles to see the whole picture.

Ms Wu did not base her case upon what she told Mr Tang. Her case was founded upon what she said was her understanding of what she and Mr Lee intended, namely a gift to her of the Hotel. The fact that her instructions to Mr Tang may have been clouded by her own embarrassment about speaking expressly about her relationship with Mr Lee and that different mechanisms for the acquisition were described from time to time in her instructions does not undermine or contradict her case as to what the parties’ true intentions were. Those intentions the judge determined in accordance with all the evidence, as he was entitled and indeed bound to do.

In December 2008 relations between Mr Lee and Ms Wu broke down. Ms Wu told him she was pregnant and wanted Mr Lee to pay for a new flat for her in the Kowloon area of Hong Kong or to pay her £3 million. Mr Lee refused and hired detectives to monitor her movements and he recorded the telephone conversations between them. It was argued before the judge and is argued here that certain parts of these conversations, either of themselves or in conjunction with the documents on the solicitors’ file, prove Mr Lee’s claims. It is submitted for Mr Lee that the transcripts point in only one direction, i.e. in Mr Lee’s favour. The judge disagreed: on balance he considered that the contents of the transcripts favoured Ms Wu.

At paragraph 44 of the judgment, the judge sets out a number of passages which he considered might relate to the Hotel or No. 64 or the documents relating to those properties. It is not necessary to repeat all those passages, nor the many additional passages to which we were taken in argument. The following are, however, some of the significant examples.

On 14 January 2009 there was the following exchange over the telephone which I set out from the judgment, with the judge’s own narrative remarks:

“Wu: … I’ll make everything clear. I am only asking for a bit more than 10 million. It’s ridiculous if I ask you for many million, but I am only asking for a bit more than 10 million to buy a property. Why do you bother so much? You said you don’t trust me. I gave you what you wanted. What do you want?

Lee: Now you ask me for 14 million and you won’t…

Wu: I won’t do anything. I’ll have a property and the hotel to do business. I won’t care how much money you have. This is me. I only want a property and the hotel because I have to raise my son. You understand? That would be all…

Lee: Hey after you get the 14 million and a property in Kowloon… you’ll ask me again….”

After a short interlude Ms Wu says:-

“I only want my own things back. I want the hotel back. I want a property in Hong Kong. With the hotel I can do some business and raise my own son. And I won’t bother you ……I won’t take a dime from your family in the future. I only want my hotel back. That’s it…”

The debate continues and Mr Lee interjects:-

“When will you get enough? Around your hotel you can buy a whole street….”

Then after a further interval there is the following exchange:-

Wu: Let me tell you. I won’t go to you until I’m really out of money. You can refuse to pay me. Fine. Suit yourself. Don’t give me then. I want my hotel back and the hotel file back. Let’s finish.

Lee: have you taken it? Have you taken it?

Wu: What? What did I take? I didn’t. I told you to go to the UK and see if the file is there before you pay me…” …

Lee: Let me talk to my lawyer first.

Wu: I’d most get back that thing from Zou Wen Xuan for myself. If I have enough money to live, I won’t go and ask for it…….

Lee: £3 million and you get back all of Zhou Wen Xuan’s title deeds and all that stuff. And you will go to the lawyer to sign? ...

Wu: I don’t even want your money. Do whatever you like. I only need to get back Zhou Wen Xuan’s things. I told you. You can refuse to give me money. I’m not blackmailing you. Just to be clear. You can refuse to give me money. I only need to get back Zhou Wen Xuan’s things. I won’t see you again. I said it. I deserve all that…..I’m not blackmailing you. You can think this over. You can do what you want ...

Wu: I get the hotel stuff and leave. I only get back what I deserve and that’s it. I’ll ask you for money to live when I run out of it one day...

Lee: If I’m going to do it, I’ll go to No.2 and get the files first, and use the old option to do it. Are you done?

Wu: You go to No.2, find the files and pay. This is human talking. We have a deal. I won’t take Zhou Wen Xuan because you’re afraid that one day I’ll take Zhou Wen Xuan and leave. My heart will always be with you. I’m not afraid of waiting. You can even give it to me in 20 years time. That’s all. We’re talking as humans right? You can look at it before giving it to me. Will I use the a bit more than 10 million against your many millions?”

In addition to these passages, counsel for Mr Lee rely in particular on certain passages (39 of them) not quoted by the judge in his judgment but relied upon by them in the closing submissions for Mr Lee, including these: “He is the guest of our hotel. He has stayed at our hotel for a long time” (11.1.09). “As long as you…give me the hotel I am happy to sign anything” (14.1.09). Mr Lee: “if I give you ZHOU WEN XUAN, hotel and buildings then I don’t have to see you any more. Do I need to give you money as well” Reply from Ms Wu: “You don’t have to give me money in that case”.

Mr Trace QC for Mr Lee places emphasis particularly on a further passage in the conversation of 14 January 2009 which the judge records and from which he quotes at paragraph 44(h) of the judgment. The judge said this:

“(h)

A further call on 14 January 2009 takes up the settlement discussions on the footing that the parties were breaking up. A number of options were canvassed and their numbering became confused. But what emerged was this. The first option was that Mr Lee would pay £3 million into Miss Wu’s account and the parties would go their separate ways. The second option was that Mr Lee would buy Ms Wu the Kowloon flat for HK $14 million, and when Mr Lee enquired whether he would still have to pay living expenses Ms Wu responded that he would not and that her living expenses would come from “the hotel business”. That would also be a clean break. The third option was that Mr Lee would not give her any money but Ms Wu said:

“I will take the hotel business and run it myself. As long as I can live on it, I won’t bother you or ask you for money at all. If I have no success, I will ask you for money to cover my living expenses.”

So that would not be a clean break. After further discussion Miss Wu says:-

“I don’t want to do this. I just want a property and the hotel instead of fighting against your family when you are around….As long as you buy me a property and give me the hotel I am happy to sign anything. Isn’t that good enough?...I am in need of a property now…And the hotel….I need to buy the property. I have been telling people I will buy that property. I will lose face if I don’t get it. Do you understand?”

Mr Trace’s submission on this passage can be taken from his skeleton argument as follows:

“46.

The point is as follows. In January 2009 Ms Wu presented Mr Lee three options (set out by the Judge in paragraph 44(h), including a choice between:

[A] Mr Lee giving £3 million to Ms Wu, or

[B] Mr Lee giving the Hotel to Ms Wu.[Quote 1/2/28 paragraphs 46 and 47 as marked].

47.

On the Respondents’ case, that choice is nonsense. If, as the Respondents claim, Ms Wu already owned the Hotel, because it (or the monies for its purchase) had been gifted to her by Mr Lee in 2008, the choice she was presenting Mr Lee with was a choice between giving her [A] £3 million, or [B] nothing at all. It is, in the vernacular, a “no brainer” ”

For his part, Mr Crampin relied upon extracts of the conversations in which Mr Lee in “totting up” the total of the bounty bestowed by him upon Ms Wu by way of gifts was clearly including sums provided for the purchase of the Hotel. In addition, he relies upon passages seen by the judge as examples of Mr Lee treating the Hotel as belonging to Ms Wu: paragraph 101 of the judgment – “the house that you bought”, “you are running hotels, owning properties and earning rent in London”, “so I haven’t treated you badly…around £3 million, right?”

Mr Crampin also referred us to a lengthy and heated passage in the penultimate recorded telephone conversation of 27 January 2009 where Ms Wu told Mr Lee that she had learned that he had removed the documents relating to the Hotel from the flat at 2 Ebury Mews: “the box of hotel stuff”. This suggests clearly, Mr Crampin submits, that Ms Wu regarded the Hotel as her property. The passage is in these terms;

“Wu: What do you want?... I sent people to collect things. You said the property has been [inaudible] and you have taken the file. Can you tell me? Now you…you don’t give me the [inaudible]. Fine. But you also take the hotel. This is an agreement between you and me. I could have taken it long ago if I wanted to. Do you have to play dirty?... Aren’t you forcing me into a corner? That means you have left me with no choice, Now that you’ve taken away the one thing I live on, is it fair to me?...You have taken that box from me! Have you ever considered what I wanted to do? …That box of hotel stuff…The box contains the hotel’s…it has been written down that those things belong to the hotel. Now you have taken it away….Now that you have taken the stuff relating to Zhou Wen Xuan you knew I would turn my back on you. Why didn’t I take it? Why did I keep my promise?..If I wanted the stuff relating to Zhou Wen Chang, I could have beaten you to it. Why didn’t I do it? Why are you so mean? How can you take it? I don’t understand…What do you mean someone entered No.2? You entered No.2 and took the file…Don’t tell me that the stuff related to Zhou Wen Xuan flew away by itself. Could you be so mean?”

Again, I consider that the judge’s approach to these conversations cannot be faulted. He said this, at paragraph 99 of the judgment:

“99.

I say at the outset that neither party adopted an entirely consistent position in these conversations. The parties were frequently bickering and point-scoring, and in heated argument were sometimes confused and contradictory. Moreover, they used their own private dictionary and made allusive references to events which they plainly understood as between themselves (but which it is difficult for a Court receiving limited evidence about a two-year relationship to understand.)”

The judge acknowledged the statements, apparently against interest, made by Ms Wu in these conversations: see paragraph 102 of the judgment. However, he went on to say this at paragraph 103:

“103.

I consider that these observations must be considered with care. Properly read they seem to me to indicate that at some time 66 Avonmore Road had been Ms Wu’s but it had somehow ceased to be because Mr Lee now reclaimed it. Hence the complaint that she was “not allowed those now” and the demand that she wanted the hotel “back”. It is difficult from the documents to see how this might be: but a clue was given in oral evidence.

“Wu: When my relationship with Mr Lee was good, we had an agreement, we have promise to one another. This was the promise made when Mr Lee bought the hotel as a gift to me. He said if I caused any harm to his family relationship, and then I will return the property, the hotel to him. So I put the files in No.2 when Mr Lee can always look at it. I put it there so that he can feel comfortable.”

As it was delivered this evidence struck me (and I noted it) as entirely authentic, in the sense that it set out an entirely genuine belief on the part of Ms Wu.”

He concluded that he could not take the remarks by Ms Wu as being admissions that the hotel had never belonged to her.

Mr Trace criticises the judge for placing any reliance upon that passage in Ms Wu’s evidence which the judge characterised as “entirely authentic” and referring to the purchase of the Hotel as a gift to Ms Wu, but with some understanding that it would be returned if she “caused any harm to his family relationship”. Mr Trace argued that this was a case that Ms Wu would have had to plead in order for her to rely upon it. However, it was not Ms Wu’s case that there was any legal obligation to return the Hotel in certain circumstances. Her case was that the acquisition of the Hotel with Mr Lee’s money was an outright gift to her. In my judgment, there was not any obligation on her to plead some understanding, apparently vaguely formulated, that the gift would be returned in certain circumstances. As the judge expressly acknowledged this was not the case of either party: each was contending that he/she was the outright owner of the Hotel.

As counsel for Ms Wu points out, however, there were other significant passages telling against Mr Lee’s case, even in conversations which he knew were being recorded and which Ms Wu did not. These included the following in a conversation of 20 January 2009:

“Lee: Reflecting while eating breakfast, I wanted to ask you how much of my money was spent on you since the very beginning? I’ve forgotten about that…..How much did you spend on [immigration]?

Wu: That amounted to 1 million [pounds]…..

Lee: It’s not the money used to purchase the hotel “Admore London” is it?

Wu: That’s a different amount of money.

Lee: How much did it cost purchasing that hotel? I’ve forgotten that one too?

Wu: You are right.

Lee: So you have spent nearly 3,000,000 of my money.

Wu: You’re right.

Lee: So…I haven’t treated you badly….Around 3 million right? It cost 500,000 to process the immigration of Ah Ming and your nephew. Correct?...So add another £500,000 onto the tally. Then how much for purchasing the adjoining building?

Wu: That cost 1.4 plus million……

Lee: Actually I’ve treated you fairly well then.

Wu: Yeah, but I did not actually get much. The stuff relating to the hotel….Actually you have yet to give it to me. You have given me [indistinct] so far.”

Then there is this:

“Wu: What do want?... I sent people to collect things. You said the property has been [inaudible] and you have taken the file. Can you tell me? Now you…you don’t give me the [inaudible]. Fine. But you also take the hotel. This is an agreement between you and me. I could have taken it long ago if I wanted to. Do you have to play dirty?... Aren’t you forcing me into a corner? That means you have left me with no choice, Now that you’ve taken away the one thing I live on, is it fair to me?...You have taken that box from me! Have you ever considered what I wanted to do? …That box of hotel stuff…The box contains the hotel’s…it has been written down that those things belong to the hotel. Now you have taken it away….Now that you have taken the stuff relating to Zhou Wen Xuan you knew I would turn my back on you. Why didn’t I take it? Why did I keep my promise?..If I wanted the stuff relating to Zhou Wen Chuang, I could have beaten you to it. Why didn’t I do it? Why are you so mean? How can you take it? I don’t understand…What do you mean someone entered No.2? You entered No.2 and took the file…Don’t tell me that the stuff related to Zhou Wen Xuan flew away by itself. Could you be so mean?”

I agree with Mr Crampin QC for Ms Wu that, like the solicitors’ file documents, the passages in the telephone conversations are far from being all one way. Even if during the course of their arguments at the time of the split Ms Wu spoke of Mr Lee “giving” her the hotel, it does not mean to my mind that she was accepting that the Hotel was strictly his property or was not intended at the outset to be a gift to her. The mechanics by which the transaction was structured did not make for clarity and for Mr Lee to acknowledge that the Hotel was truly Ms Wu’s property without further argument or doubt might well be seen as a “gift” in the context of the settlement of their disputes in which he was claiming the Hotel as his. As my Lord, Lord Justice Ward put it during argument, Ms Wu wanted the Hotel “back” with undisputed title; that is, she wanted the Hotel, or its equivalent, in settlement of the uncertainties and the disputes that had arisen.

There is a great danger, in my view, of looking at what was said in these conversations through the eyes of those versed in the ways of English property transactions and to construe individual remarks in splendid isolation without proper regard to the wider context. As the judge put it in paragraph 6 of his judgment, “…one of the challenges in this case is to give English legal content to Chinese cultural arrangements…”

In my view, the judge was fully entitled to weigh up what he took from the telephone conversations with the other evidence in the case. That evidence was, in my judgment, compelling in favour of Ms Wu for the reasons given so clearly by the judge.

For reasons that the judge explains at substantial length, he found that the relationship between Mr Lee and Ms Wu was not as Mr Lee contended. The relationship was one of companionship and was sexual in its nature. This was clearly a significant feature of the case to which the judge quite properly gave weight. Quite apart from money and properties, Mr Lee had lavished upon Ms Wu large sums, which to ordinary people would seem extraordinary, in providing watches, jewels and furs to the value of some £123,000.

The fact that Mr Lee had lied so compendiously about this relationship and this type of expenditure, as the judge quite properly found on the evidence before him, was obviously highly relevant to the issues in the case. These matters put the property acquisitions in context. I reject entirely the submission for Mr Lee that these matters were of no relevance at all and that all one had to do was to construe, in a formalistic legal fashion, the language of the solicitors’ documents and certain individual remarks taken from a series of confused and confusing telephone conversations.

The point is pursued in ground 9 of the grounds of appeal. There it is submitted that the judge “wrongly focussed on a finding that Mr Lee and Mr Wu had been involved in a sexual relationship… when at most that finding was relevant only as part of the background in which the purchase of the Hotel and No.64 took place”. In my judgment, however, the finding was a crucial one. Mr Lee’s case and his evidence in support of it were characterised by an attempt to downplay Ms Wu’s role in his life as having been one of a mere personal assistant among many others. He denied the true nature of the payments made to Ms Wu, even (initially) one made in February 2007 evidenced by a formal Deed of Gift and the gifts of furs, watches and jewellery. In paragraphs 63 to 68 of the judgment, the judge again gives entirely convincing reasons for rejecting Mr Lee’s case on these issues. The nature of the entire case, and ultimately the rival cases about the disputed properties, was coloured by Mr Lee’s untruthful and dishonest account of his relationship with Ms Wu. Its true nature gave the explanation for the acquisition of these properties.

As the judge found and set out at paragraph 147 of his judgment Mr Lee lied to him because he saw it as “necessary for his honour and reputation to demonstrate that he can control people in his realm of management, and Ms Wu resists his control. He certainly does not care about the money (which to him is next to nothing)”.

There are other subsidiary matters to which I now turn.

The first of these relates to the evidence of Ms Gao.

There were several areas of Ms Gao’s role in this matter that were in dispute between the parties. First, it was said by Mr Lee, supported by Ms Gao in evidence, that Ms Wu was recruited as Mr Lee’s personal assistant, following an advertisement placed by Ms Wu advertising for employment. Secondly, Ms Gao supported Mr Lee’s case as to his relationship with Ms Wu. Thirdly, Ms Gao gave evidence about the acquisition of the Hotel. She said that in late 2007 Mr Lee told her that he intended to buy the Hotel and would entrust the running of it to Ms Wu. Fourthly, it was Ms Wu’s evidence that she had procured Ms Gao as a further sexual partner for Mr Lee and had been rewarded for this by being paid the money used substantially to discharge the lending provided by the bank for the purchase of No. 64. Fifthly, Ms Gao said in her first witness statement (paragraph 33, AB 1/19/262) that she had been asked whether she was ever aware of a file of documents being kept at 2 Ebury Mews which contained papers relating to the Hotel or Favor East Management Limited. She went on to say:

“I knew that Mr Lee kept such a file. The first time I saw the file was in early 2008, in the study of 74 Chester Square (Mr Lee’s residence). He showed me the file and explained to me that the file showed his ownership of the hotel. I never saw such a file at 2 Ebury Mews.”

It is not necessary to labour the first four issues. Suffice it to say that the acceptance by the judge of Ms Wu’s account of the nature of the relationship between Ms Wu and Mr Lee and the absence of challenge to the finding on appeal renders much of that material unnecessary to consider, save to say that the judge’s findings on those points would have significantly undermined the credibility of Ms Gao as a witness. The one significantly live issue that remains is the fifth point, the evidence as to the location of a file relating to the Hotel in early 2008.

Ms Wu’s case was that the bearer share and file relating to FEM Seychelles, which the evidence suggests she regarded as equivalent to the title to the Hotel, were at 2 Ebury Mews until removed by Mr Lee, or on his orders, in January 2009. Mr Lee’s case was that the bearer share was “at all material times” kept in the study at his house in Chester Square. It is argued for him that if the document was indeed at Chester Square in early 2008, shortly after completion of the purchase, this is telling in his favour.

The point now made on Mr Lee’s behalf is that, while Mr Crampin in closing submissions to the judge accused Ms Gao of lying about this, he did not cross-examine her about it. Mr Crampin accepted in argument in this court that his cross-examination had indeed been “low key”. Mr Trace submits that, on the authority of Browne v Dunn (supra) and cases leading up to and including Markem Corporation v Zipher Limited [2005] EWCA Civ 267, that the judge was compelled, therefore, to accept the truthfulness of Ms Gao’s account on this subject and pro tanto the support it gave to Mr Lee’s case.

In my judgment, in the light of Ms Wu’s case on this point, Mr Crampin ought indeed to have cross-examined Ms Gao more intently on the issue. However, the judge did not in the end dismiss Ms Gao’s evidence, still less did he find that she was lying about the matter. He simply found that her evidence was lacking in detail. She did not put the incident in context and could not explain why the discussion had arisen in relation to this company among all the other bearer share companies with which Mr Lee was concerned. The judge considered that a fair opportunity had been given to Ms Gao to place her evidence in context, but that she did not avail herself of it: paragraph 112 of the judgment.

On the other hand, the judge was impressed by the evidence of a Mr Fan, called on behalf of Ms Wu, who said that he had seen the bearer share at 2 Ebury Mews in January 2009. On considering other factors, set out clearly by him in paragraphs 113 to 117 of the judgment, the judge said that he preferred the evidence of Ms Wu on the subject. That is not a rejection of Ms Gao’s evidence in the absence of proper cross-examination. It is an acceptance of her evidence as far as it went, but a finding that it did not go far enough to counter the more cogent evidence from other sources about the likely location of the bearer share at relevant times.

In any event, it is accepted by Mr Trace that the matter is of peripheral importance on this appeal, as it is recognised by both parties that the physical location of the bearer share has limited significance in the case. The important issue is the parties’ intentions as to the ownership of FEM Seychelles, wherever it may have been kept.

I am quite satisfied that no unfairness has been caused to Mr Lee in the manner in which the judge treated the evidence on this subject or in his findings upon it.

I can take these points shortly.

For Mr Lee, in ground of appeal 10(1), it is submitted that the judge failed to take properly into account the absence of any Deed of Gift relating to the money provided for the purchase of the Hotel, whereas such deeds were entered into when Mr Lee had made previous undisputed gifts to Ms Wu.

The answer to this point is simple: in the earlier cases the written documents had been required to demonstrate to the Home Office that the gifts to Ms Wu and her relatives were absolute so that the money given was available to the donees unconditionally in their bids to be permitted to enter the UK as investors. Indeed, the one document which we have before us (AB3/38/526) is headed “In the Matter of an Intended Application for an Entry Clearance to the United Kingdom”. We were also told that Mr Tang said in evidence that he had not advised that any such deed was necessary in the case of the Hotel and that he had not thought about it in that context at all. It is not, therefore, surprising, in my view, that there was no deed in respect of the Hotel money.

In ground 10(2), it is submitted that the judge failed to give proper weight to an alleged failure by Ms Wu to tell others that the Hotel was being acquired as a gift for her. It seems to be the case, however, that Ms Wu told Mr Lo, the company formation agent in Hong Kong that she wanted to buy a Hotel. Mr Fan’s evidence was that he understood that Ms Wu owned the Hotel and Mr Tang said in re-examination that he believed that Ms Wu was the owner of the Hotel or, what was tantamount to the same thing, of FEM Seychelles. It is accepted on Ms Wu’s behalf that she did not say to anyone that her ownership derived from a gift from Mr Lee. For my part, however, I am unable to see that anything can be made of that.

Finally under this heading, it is argued in ground 10(3) that Ms Wu did not state in any of the recorded telephone conversations the agreement or understanding in relation to the Hotel or No.64 for which she contends in the action. In my judgment, this point takes the matter no further than the argument about the transcripts themselves upon which I have already stated my conclusions above.

“Inherent Probabilities”

There are three issues arising under this head: (1) the likelihood or otherwise of Ms Wu seeking to acquire a property through the convoluted corporate structure that was adopted; (2) what has been called “the Futility Point”; and (3) the point termed “the Admission Point”.

Under the first of these heads it is said that a lady, such as Ms Wu, whom the judge found had “not a clue” about such matters should have adopted this off-shore bearer company structure through which to acquire this English property. As is submitted on Ms Wu’s behalf, I find nothing improbable at all about this. Mr Lee was the dominant figure, hugely experienced in property matters, and he was (on this hypothesis) giving money to Ms Wu to buy a hotel. It is not in the least unlikely that he would guide Ms Wu in the manner in which such an acquisition should be structured. He himself created the outline of such a scheme in the documents and he gave evidence that he had prepared the document relating to an earlier property in Richmond as part of an “indoctrination in the concept of business”: Day 2 p.200, lines 4-5 and 16-20. His guidance of Ms Wu behind the scenes is at one with his behaviour throughout.

The Futility Point is an argument that if the provision of the money to buy the Hotel had been a gift, it was merely futile to transfer the Hotel a few months later from FEM Seychelles to FEM BVI. Ms Wu herself gave the answer to this in evidence. It is recited by the judge in his judgment at paragraph 144; he accepted that evidence which was in these terms:

“Mr Lee want me to start a nameless company. Mr Lo told me that BVI is a very stable company. Politically, it’s superior to Seychelles. In my memory, Mr Lee mentioned that as well. I have this in my mind and then later on my niece’s and nephew’s immigration plan is not successful and there’s no question regarding taxation. So when the purchase of number 64 is due, so I want to use BVI to buy 64…They said it would be better to use one company to hold two properties, so I chose BVI to hold because BVI is superior to Seychelles. This is a normal way of doing things. If I have a choice, I’d choose one that is better…..I did not make it up. Even now I do not have a very clear concept about the two companies. I only know that BVI is a better country than Seychelles and I only know that it’s more stable.”

I see no grounds to call into question the judge’s acceptance of this.

The Admission Point is one arising out of the phraseology of a short passage in Ms Wu’s pleading. Paragraph 20 of the Defence reads as follows:

“20.

64 Avonmore Road was at all times the Defendant’s own acquisition. It was natural therefore for her to buy the property, following the Claimant’s advice to her, using an offshore company, and in the circumstances using an offshore company under her control, namely the pre-existing company FEM (BVI) Limited.”

It is submitted that the use of the phrases “own acquisition” and “under her control” in respect of No.64 and FEM Virgin respectively that the Hotel and FEM Seychelles were not “the Defendant’s own acquisitions” or “under her control”. It is only necessary to state this point so as to reject it. Ms Wu cannot be criticised for her lawyers’ phraseology, even if the implication sought to be made was justified. The same document clearly sets out Ms Wu’s case as to the Hotel and the Seychelles company. There is nothing contradictory to be found in this paragraph.

For what it is worth, in any event, Ms Wu was acquiring No.64 with the aid of a mortgage; money was not initially being provided by Mr Lee. Further, a BVI company with its only share registered in her name was far more under her control in reality than a nebulous bearer share company.

It is accepted on Mr Lee’s behalf in the grounds of appeal “for the purposes of this appeal, as it was by both parties at trial, that the parties’ intention in respect of No. 64 depends and follows from the conclusion in respect of the Hotel”. I need, therefore, add no more about No. 64.

Conclusion

For these reasons, I would dismiss this appeal.

I agree.

I agree.