HONG KONG and NEW YORK, June 1, 2020 /PRNewswire/ --

Key Announcements

• Co-Founder Carson Wen, his wife and another jointly and severally liable for breach of contract
• Court of Appeal unanimously upholds lower court judgment tied to 22% of the Bank of Asia Project
• Lower court's findings of fact were "eminently reasonable and entirely consistent with the evidence"
• Mr Holm a "thoroughly believable" and "impressive witness"
• Evidence from Mr Wen and his wife "inconsistent", "selective" and "not plausible"

Summary

The Eastern Caribbean Court of Appeal (the "CoA") has upheld a prior decision by the BVI Commercial Court regarding the existence and breach of an oral contract in relation to the Bank of Asia Project (the "Project"). At first instance, the Honourable Mr Justice K. Neville Adderley ("Adderley J") concluded that long-time Hong Kong politician and corporate lawyer, Mr Carson Wen Ka-Shuen ("Mr Wen"), his wife, Madame Julia Yuet Shan Fung ("Ms Fung") and another (collectively, the "Defendants" or "Appellants") breached an oral contract with the Project's co-founder and FH Investment Limited ("FHI") Chairman, American financial services senior banker, Chad Holm ("Mr Holm").

In its dismissal of the appeal, the CoA held that the terms of the contract were clearly identified, understood and agreed, and that Adderley J's conclusions are "unimpeachable".

In response to the CoA's judgment, FHI Chairman Holm commented, "I am grateful to both courts for their thorough and well-reasoned analyses, and the resulting unambiguous conclusions. All any litigant can ask for is a fair shake, and that we have received. Owners of BVI companies should take great comfort in the jurisdiction and its legal system. For us, this represents clear vindication in a matter Mr Wen publicly mocked as 'frivolous'. The wrong has been brought to light, the liable identified and unequivocal justice delivered."

Costs in both courts were awarded to Mr Holm. Damages associated with the 22% stake's value shall be assessed at a later date, and payable to Mr Holm by the Defendants.

Bank of Asia Project

The Project, described by the CoA as a "dynamic, complex, multi-layered, financial investment project", is a first-of-its-kind, highly innovative global financial services undertaking, delivering technology-centric products and services to offshore companies, high-net-worth individuals and others. The Project encompasses a digital offshore bank in the BVI (the "BVI Bank"), the first newly licenced BVI bank in nearly 25 years, and a substantial and growing array of complementary businesses organised in Hong Kong and other parts of Asia. Project operations currently reside under a top-level umbrella company, BOA International Financial Group.

Chairman Holm added, "I am immensely proud of the groundwork we laid for the success of the Project. Its value proposition to customers and shareholders has been without doubt from the outset. It is even more pronounced in the fragile world we live today. As a founder, I have a special interest in seeing its potential realised. I look forward to the prospect of engaging with major stakeholders to further that objective."

Key outside stakeholders include Hong Kong-listed V1 Group Limited (HKSE stock code: 0082.HK) (https://www.v1group.com/) and its Chairman, Dr Lijun Zhang, who serves as Honorary Chairman of the BVI Bank;  Mr Chenguang He, Chairman of Hong Kong-listed Sentong Robot Education (HKSE stock code: 8206.HK) and China Communication Group Co, and Chairman of BOA Financial Group (www.boafg.com/); Ms Elizabeth Quat, Hong Kong legislative council ('LegCo') member and board member of Eurasia Continental FinTech, a Project company; and Mrs Lorna Smith, former first lady of BVI and a board member of the BVI Bank.

Background to the Proceedings

As detailed in Adderley J's judgment, Mr Holm alleged it was agreed he would partner with Mr Wen in exchange for a fully vested, 22% Project stake. Despite the 22% stake being fully vested and due, the Defendants failed to issue it to Mr Holm, instead keeping it for themselves. The relationship devolved, with the contract repudiated by Mr Wen. Mr Holm and FHI filed a claim against the Defendants in BVI for, among other things, breach of contract related to the 22% entitlement.

First Instance Judgment

In December 2018, Adderley J delivered judgment in favor of Mr Holm, who he described as "a thoroughly believable and knowledgeable witness", "an impressive witness", and whose evidence was "entirely consistent with his pleadings, witness statements, and e-mail trail." Having observed the witnesses over a 6-day trial and being privy to more than 17,000 pages of evidence, Adderley J's conclusion regarding the fully-vested 22% stake due to Mr Holm was unambiguous - "Quite frankly, I had very little difficultly in finding Mr Wen and Ms Fung liable for breach of the BVI Contract on a balance of probability."

JUDGMENT: https://www.eccourts.org/chad-holm-et-al-v-sancus-financial-holdings-limited-et-al/

Court of Appeal Judgment

In April 2020, Lady Justice of Appeal Hon. Mde. Rose-Marie Belle Antoine delivered a judgment that categorically dismissed every material aspect of the Defendants' appeal. Lady Justice of Appeal Hon. Mde. Louise Esther Blenman and Lord Justice of Appeal Hon. Mr. Paul Webster concurred with the decision. The CoA affirmed that Adderley J examined all the relevant contemporaneous documentation, the Appellants provided no new evidence of compelling contemporaneous documentation that supported their case and which the learned judge ignored, and that the legal requirement that a judge must give weight to contemporaneous documents to support the claim of an oral contract was easily met.

The CoA determined that it was "eminently reasonable and entirely consistent with the evidence" for the trial judge to infer that an oral contract had been made and that the "appellants' continued insistence that these shares were being held in Sancus for transferral to FHL was not plausible".  The CoA found that Adderley J formed the impression that Mr. Holm was a credible and even "impressive" witness not only because of his demeanour, but also "because of the inconsistencies in the testimonies of Mr. Wen and Ms. Fung". The CoA also emphasised that the trial judge made "clear and definite statements about the probability and weight of the evidence from [Mr Holm]".  Having found this evidence to be compelling, "it logically subjugated the contrary testimony and selective documentation submitted by the appellant[s]."

In closing, the CoA found - "the conclusion of the learned judge that an oral contract had been made and was breached by the Appellants is unimpeachable."

JUDGMENT: https://www.eccourts.org/sancus-financial-holdings-limited-et-al-v-chad-holm-et-al/

Legal Advisors

Mr Hefin Rees QC of 3VB Chambers and Walkers Hong Kong and BVI acted for FHI and Mr Holm. Mr Paul Chaisty QC and Appleby acted for the Defendants.

Further Inquiries

Media or other inquiries can be directed to info@fhi-bvi.com.