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Grounds publishedDecided 19 Nov 2020
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General Division of the High Court

Xu Zhigang v Wang Fang [2020] SGHC 254

[2020] SGHC 254Case no. Suit No 196 of 2019

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Grounds of decision

Official text from eLitigation

  1. Background

  2. [1] The plaintiff (“Xu”), a Chinese national and businessman, had an extra-marital affair with the defendant (“Wang”) from 2014 to 2017. In 2019, Xu commenced this suit to claim that two sums totalling US$9.6 million, an apartment and a car, which were with Wang, belonged to him. Wang claimed that he had gifted them to her.

  3. [2] The parties first met on a flight in 2011, where Wang was working as a flight attendant. They met again around September 2013 and thereafter communicated more frequently. Between December 2013 and February 2014, Xu transferred money to Wang, totalling about $4,198,000. Wang used the money to purchase an apartment at The Interlace (“the Apartment”) and a Mercedes Benz (“the Car”), both registered in her name. The Option to Purchase (“OTP”) for the Apartment was signed on 12 December 2013 while the Car was purchased around 14 January 2014. Around end January to early February 2014, Xu and Wang spent time together in China, including visiting Wang’s parents during Chinese New Year (“CNY”). They began a romantic relationship in early to mid February 2014 (“the Relationship”).

  4. [3] In February 2014, Wang discovered that Xu had a relationship with one Wang Cong. She was very upset and wanted to break up with him. Xu informed her that he was no longer with Wang Cong but Wang Cong was still working in Eastport Petrochemical (Singapore) Pte Ltd (“Eastport”), of which he was then the main shareholder. In January 2014, when Wang was working with United Overseas Bank (“UOB”), Xu procured employment for her at Eastport. Wang was employed at Eastport from around April or May 2014 to June 2016 and was paid a monthly salary of $10,000 although she did not do any substantive work.

  5. [4] Around 2 July 2014, US$2.6 million belonging to Xu was transferred to Wang (“1st USD Sum”). In January 2015, Xu was to receive some funds from Eastport. He gave instructions for the funds to be transferred to Hao Huanchun (“Hao”), his chauffeur and assistant in China, who then transferred US$9 million to Wei Jinzhi (“Wei”), Xu’s employee. On Xu’s instructions, Wei then transferred US$7 million to Wang (“2nd USD Sum”) around 4 February 2015. The Relationship ended in November 2017. The 1st and 2nd USD Sums will be collectively referred to as “the USD Sums”.

  6. [5] Wang claimed that the USD Sums, Apartment and Car (“the Properties”) were gifts to her. Conversely, Xu claimed that she held them on trust for him, relying on express trust, presumption of resulting trust, resulting trust and common intention constructive trust.

  7. [6] A valid gift inter vivos is made when there is an intention to gift and delivery of the precise subject matter of the gift (Lee Hiok Tng (in her personal capacity) v Lee Hiok Tng and another (executors and trustees of the estate of Lee Wee Nam, deceased) and others [2001] 1 SLR(R) 771 at [35]). The court will objectively assess the donor’s subjective intentions at the time of the property transfer (Tan Yok Koon v Tan Choo Suan and another and other appeals [2017] 1 SLR 654 (“Tan Yok Koon”) at [83]).

  8. [7] An express trust arises when there is certainty of intention, subject matter and object of the trust. In relation to certainty of intention, it is the substance and not the form of the alleged settlor’s words and conduct that is important, and his intention to create a trust may be inferred from his words or conduct and from the surrounding circumstances (see The State-Owned Company Yugoimport SDPR (also known as Jugoimport-SDPR) v Westacre Investments Inc and other appeals [2016] 5 SLR 372 at [55]–[56]). A presumption of resulting trust arises when one party has paid (wholly or partly) for the purchase of a property vested in the other party. A resulting trust may arise independently of a presumption of resulting trust if it can be shown that the transfer was not intended to benefit the recipient. The intention of the recipient is irrelevant to whether a resulting trust has arisen (see Chan Yuen Lan v See Fong Mun [2014] 3 SLR 1048 at [36], [43] and [44]). For a common intention constructive trust, there must be a common intention between the parties as to how the beneficial interest of the property is to be held and this intention may be express or inferred (Su Emmanuel v Emmanuel Priya Ethel Anne and another [2016] 3 SLR 1222 at [83]).

  9. [8] The analysis of whether any of the Properties were intended to be gifts to Wang or held on trust for Xu would essentially depend on whether there is sufficient evidence to show that the transferor (Xu) had intended to benefit the recipient (Wang) on a particular property.

  10. Parties’ arguments regarding the Apartment and Car

  11. Xu’s version

  12. [9] Xu claimed that a presumption of resulting trust arose as he paid for the Apartment and Car. Alternatively, a resulting trust arose, and/or there was a common intention constructive trust, as parties had a common understanding that Xu would be the beneficial owner of the Apartment and Car, and that he had no intention to give them to Wang.

  13. [10] Xu had purchased the Apartment for Wang to stay to improve her living conditions as he regarded her as a close friend and sibling. He also wanted his own place to stay whenever he was in Singapore. Wang and he viewed properties in November 2013, and he decided to purchase the Apartment on the same day that he viewed a similar unit at The Interlace. He bought the Apartment based on his preferences. Xu asked Wang to register the Apartment in her name out of convenience, as she lived in Singapore and he wanted her to help him handle the administrative matters concerning its purchase, renovation and fitting. Contrary to Wang’s claim, Xu did not inform Wang that the Apartment was her birthday gift. At the time he decided to purchase the Apartment in November 2013, the Relationship had not commenced and he did not know when Wang’s birthday was.

  14. [11] Sometime in December 2013, Xu told Wang that he wanted to buy a car and he would let her drive it; he did not tell her that he was buying it for her. He decided to purchase a car as he needed to meet customers in Singapore and Eastport did not have a company car. Wang and he went to view cars around end December 2013 to early January 2014. He asked Wang to handle the administrative matters and register the Car in her name, for the same reasons pertaining to the Apartment. The decision to purchase the Car was also made before the Relationship started.

  15. Wang’s version

  16. [12] Wang claimed that the Apartment and Car were unconditional gifts to her, or alternatively, that Xu had represented to her that they were gifts and he is now estopped from resiling from the said representation.

  17. [13] In early December 2013, Xu asked Wang when her birthday was. When she told him that it was on 10 December, Xu said that he would visit her on that day. He also asked her to arrange to view properties together and said that he would buy her a property for her birthday. Xu arrived in Singapore on 10 December 2013 and they viewed properties on 11 and 12 December. After viewing The Interlace, Wang stated that she liked it whereupon Xu said that he would buy the Apartment for her as a birthday gift.

  18. Findings on the Apartment and Car

  19. [15] I find, on balance, that Xu had intended to give the Apartment to Wang as a birthday present and that Xu had also bought the Car for her.

  20. When the viewing of apartments took place and choice of apartment

  21. [16] The circumstances surrounding the purchase of the Apartment support Wang’s case that it was her birthday gift and that Xu had informed her as such.

  22. [17] I accept that when Wang told Xu that her birthday was on 10 December, he said he would buy her a property and asked her to arrange to view properties. Wang had booked his flights and arranged with a property agent to view properties, and the parties viewed The Interlace and another property. Xu was in Singapore from 10 to 13 December 2013 which coincided with Wang’s birthday and the OTP for the Apartment was signed shortly after her birthday.

  23. [18] I disbelieve that Xu had already decided to purchase the Apartment in November 2013 before he knew about Wang’s birthday. The phone messages showed that Wang first spoke to the property agent (“Liu”) on 9 December 2013, a day before Xu came to Singapore, to arrange to view The Interlace and another development with Xu. The records show that they viewed these two properties on 11 December, and it is undisputed that Xu viewed The Interlace with Wang on that date. Although Xu denied that he was present when Wang signed the OTP whilst Wang claimed that he was there, this was immaterial to the present issue. More likely than not, Xu was with Wang when she signed the OTP, as he had come to Singapore to spend time with her and they had looked for an apartment together. Xu admitted that he came for a birthday meal with Wang and gave her a jade bangle of about RMB 500,000 as a birthday gift.

  24. [19] I also find that Xu had bought the Apartment for Wang because she liked it and not because of his preference. Until just before the viewing of properties, Xu did not inform Wang or Liu of any requirements of the property that he wanted to buy. He claimed that it was only after viewing a property at Orchard Road (ie, the Urban Resort), that he told Liu that he wanted a property with a patio and Liu then made some last minute calls to view The Interlace, and that all these happened in November 2013. However, the decision to view The Interlace could not have been made at the last minute or in November 2013. The chat records showed that Wang had liaised with Liu in advance on 9 and 10 December 2013 to view both The Interlace and the Urban Resort on 11 December 2013.

  25. Reasons for purchasing and registering the Apartment in Wang’s name

  26. [20] Xu claimed that he could not have intended to give Wang the Apartment, as they were only friends then. But it could equally be said that as they were only friends and barely knew each other, it was hard to comprehend why he allowed the Apartment to be registered in her name if he did not intend to give it to her. I disbelieve that it was registered in Wang’s name so that she could help him with the administrative matters. Xu could have appointed an agent for this purpose or asked Luan Wenbo (“Luan”), the general manager of Eastport, to do so as Luan was his “trusted business associate” whom he has known for at least 14 years.

  27. [21] Additionally, the Apartment was registered in Wang’s name without any (formal or informal) documentation to show that Xu was the beneficial owner. Xu stated that it would have been “awkward” to prepare such documentation as his relationship with Wang was becoming closer and they treated each other as siblings, and in any event, the Relationship had started shortly after the Apartment and Car were purchased. His explanation was not convincing. When the Apartment was purchased, Xu and Wang were merely friends and Xu (an experienced businessman) knew that there was a risk that Wang may dispute his ownership subsequently. Further, that he and Wang were in the Relationship shortly after the Apartment was purchased did not explain why he did not obtain such documentation at the time of its purchase when they were just friends.

  28. [22] Next, Xu stated that he wanted to improve Wang’s living conditions, and that he wanted his own place to stay in Singapore as his business at Eastport was growing and he would come here frequently. Even if these reasons were true, he could have purchased the Apartment in his name. Indeed, Xu claimed that a property that he financed but registered in Wang Cong’s name (“RV Property”) belonged to him. If so, he could have stayed there or informed Wang Cong to move out, especially when he claimed that their relationship had ended in May or June 2013.

  29. [23] There is also no evidence of a common intention between the parties that the Apartment would be beneficially owned by Xu. In his affidavit of evidence-in-chief (“AEIC”), Xu gave the impression that he had told Wang that she could register the Apartment in her name and that “she would hold [the Apartment] on [his] behalf”. In court, however, he admitted that he did not tell Wang that the Apartment was to be his or that she was to hold it on his behalf, unlike his claim that he had told Wang Cong that the RV Property was not a gift to her.

  30. [24] Hence, the circumstances support on balance Wang’s claim that the Apartment was a birthday gift from Xu to her. Although Xu had given Wang a jade bangle for her birthday, this did not prevent him from giving her the Apartment. Xu had given Wang many other things (including the jade bangle) even before the Relationship began and it was clear that he was at that time interested in her beyond just as a friend or sibling (see [34]–[35] below).

  31. Reasons for purchasing the Car and registering it in Wang’s name

  32. [25] I also find Xu’s reasons for registering the Car in Wang’s name to be unconvincing. Despite claiming that he needed a car to meet customers and for business, Xu never drove the Car for his business purposes and Eastport had even purchased a car in May 2014, a few months after the Car was purchased, and which he used. As with the Apartment, Xu could have appointed a representative, including an Eastport staff, to handle the administrative matters particularly when the Car was meant also for his Eastport business.

  33. [26] I accept Wang’s evidence that after she signed the OTP for the Apartment on 12 December 2013, Xu said that he would buy a car for her, and they went to the car showroom near The Interlace on the same day to look for the model but it was not available. When Wang saw the Car at the showroom in early January 2014 and Xu told her to buy it, she signed the sales agreement on 14 January 2014. There was no evidence to support Xu’s claim that he decided in November 2013 to purchase the Apartment and in December 2013 to buy the Car. His evidence that he decided to purchase a car after signing the OTP was more in line with Wang’s claim that they visited the car showroom on the same day. Apart from his trip to Singapore from 10 to 13 December 2013, there was no evidence that he had viewed cars with Wang on a separate occasion.

  34. Matters occurring after purchase of the Apartment and Car

  35. [27] Next, the matters that occurred after the purchase of the Apartment and Car also support Wang’s case that Xu had bought them as gifts for her.

  36. [28] In Tan Yok Koon ([6] supra) at [107], the Court of Appeal referred to the rule in Shephard v Cartwright [1955] AC 431 (“Shephard”) that subsequent conduct in the actor’s favour is inadmissible as evidence to rebut the presumption of advancement, except for conduct that is so closely connected in time to the transfer as to be part of the same transaction. However, conduct against an actor’s favour (eg, demonstrating that the transferor intended to gift the asset) falls outside the scope of the general rule. The concern is that a party could advance his own case by making unilateral statements. However, the Court of Appeal also went on to state (at [110]) that the rule in Shephard should be relaxed, to treat the parties’ subsequent conduct as admissible even in their own favour and to leave the court free to assess its probative weight.

  37. Expressions of gift by Xu

  38. [29] Xu admitted that during various quarrels, he had told Wang that the Apartment and Car belonged to her. He told Wang in chat messages on 23 February 2015 that “your savings are the foundation of your security” and “For the time being, these are all the things that I can think of to give to you a sense of security”. He stated in court that his reference to “your savings” and “all the things” included the Apartment and Car. I disbelieve Xu that he told Wang the Apartment and Car were hers only because they were in a romantic relationship and he did not wish to claim ownership over the properties as it would be inappropriate and would “only deepen [the] conflict” when they were quarrelling. If so, he could have kept silent instead of saying that the Apartment and Car were Wang’s. In fact, in a quarrel with Wang in 2016 or 2017, he again told her that the Apartment and Car were hers. Xu’s conduct and the statements made by him were against his favour and should be accorded material weight.

  39. [30] Xu’s evidence in court also showed that he had intended the Apartment and Car as gifts to Wang. When queried as to why he had followed Wang to visit her parents during CNY in 2014, this was his reply:

  40. His reply that he need not spend so much time to pursue Wang when he had already paid so much for the Apartment and Car, showed that he regarded them as gifts to her and that he wanted to impress her with his extravagant gifts.

  41. Wang’s journal entries

  42. [31] Next, Wang’s journal entries support that the Apartment and Car were gifts to her. On 23 December 2013, she recorded, “I have got a house and a car” and “A man buys a house and a car for you unconditionally within 3 months. This kind of thing only happens if the two get married on the spur of the moment. But his man … is now acting like a loved one.” On 4 January 2014, she recorded, “I have received a lot of wealth … I’m afraid to tell other people that I have a house and a car, and my car is a sports car”. Similar references were made in the journal entries on: (a) 4 March 2014, where Wang stated that “He bought a house and a car for me”; (b) 23 March 2014 where she recorded “I have a home and a car”; and (c) 19 June 2014 where she recorded “This is my house … and my car”. In a journal entry dated 5 July 2014, Wang also recorded “the house … that [Xu] gave me”.

  43. [32] I accord weight to the journal entries although I recognise that they were self-serving. The first few entries were contemporaneous with the purchase of the Apartment and Car, and the entries made after Wang found out about Wang Cong and claimed to have discovered (in March or April 2014) that Xu was still married were consistent with the earlier entries that stated the Apartment and Car as hers. The journal entries were also consistent with the evidence at the time of the purchase of, and Xu’s expression of intent with regard to, these properties (at [29]–[30] above). There was no suggestion that the journal entries were manufactured.

  44. Evidence of Wang’s father

  45. [33] Wang’s father (“Mr Wang”) attested that around late 2013, Wang informed him that Xu had told her to look for a property for herself and would give her the money for the purchase, that Xu and she viewed apartments together and Xu then bought her an apartment, and that on the same day or the next day Xu told her that he would buy her a car. Mr Wang had saved in his phone a photograph of a plan of The Interlace development (timestamped 13 December 2013) and of a Mercedes Benz (timestamped 5 January 2014). Wang had sent the photograph of The Interlace to Mr Wang contemporaneous to the purchase of the Apartment and of the car around the time that she claimed to have viewed the Car and obtained Xu’s permission to buy it. Wang also produced a receipt for the down-payment for the Car made on 4 January 2014. These photographs saved in Mr Wang’s phone supported the existence of the conversation with Wang at the material time.

  46. Romantic interest

  47. [34] Next, Xu’s conduct showed that he was interested in Wang as more than just a close friend or sibling, even before the Relationship began. After a brief meeting on a flight in 2011, they reconnected in September 2013 when he essentially tried to assist her with career opportunities at UOB. Thereafter, they had many close interactions and together they visited Wang’s parents during CNY in 2014 and visited various places in China (ie, Shenzen and Xiamen) at the same time. Even prior to the Relationship, Xu had given Wang many substantial gifts and benefits. These included: (a) $1,000 and a handphone in 2013; (b) a jade bangle worth at least RMB500,000 on her birthday in December 2013; and (c) a UOB ATM card around October to December 2013 linked to his bank account where his salary from Eastport of $20,000 per month was deposited into. He told her that she could use the ATM card, and she relied on it for her living expenses. When they visited Wang’s parents during CNY in 2014, he paid for her flights to Shenzhen and Xiamen and the hotel room. Around October or November 2013, Xu secured employment for her at Eastport where she was employed until June 2016 and was paid $10,000 a month without doing any substantive work.

  48. [35] Xu would not have gone to such extent of lavishing Wang with gifts and benefits even before the Relationship began if he had no romantic interest in her. I find that he had likewise purchased the Apartment and Car for her and with the intent of pursuing her.

  49. Parties’ subsequent conduct

  50. [36] It is not disputed that Wang had discharged the property tax and maintenance fees for the Apartment, and the road tax and insurance premium for the Car, since 2014. Her conduct was consistent with her belief that the said properties belonged to her. On the other hand, Xu did not care about such expenses and assumed that Wang would take care of them using the resources he had given her including his credit card, ATM card and her Eastport salary. In that regard, Wang’s salary at Eastport was hers and there is no evidence that Xu’s credit card was used to pay for the expenses.

  51. [37] Additionally, the chat messages of 25 January 2015 showed that Xu and Wang regarded Wang as the owner of the Apartment. Wang stated that “the other room” was “originally meant for [Xu] to stay in” and “[t]hat room was kept for [Xu]. Because [Wang had] asked [him] before.” Wang occupied the master bedroom of the Apartment. Xu’s reply to Wang was merely that he had “never thought of this question”. Xu also stated in court that Wang had previously asked him whether she should keep a room at the Apartment for him. If Xu was the owner and could stay at the Apartment whenever he wished, it was unnecessary for Wang to ask that question.

  52. [38] Likewise, by Xu’s own case, he drove the Car only once, because he was scolded by Wang for his poor driving skills, became angry and decided to never drive it again. He then bought another car and registered it with Eastport. If he were the owner of the Car, there was no reason why he would stop driving it merely because Wang had commented on his driving skills and resorted to purchase another car just so that he could use it in Singapore.

  53. Conclusion on the Apartment and Car

  54. [39] In conclusion, I find that the evidence supported Wang’s claim that the Apartment and Car had been purchased for and intended as gifts to her.

  55. Parties’ arguments on the 1st USD Sum

  56. Xu’s version

  57. [40] Xu claimed that Wang held the 1st USD Sum on express trust for him, or alternatively, that a resulting trust arose.

  58. [41] Xu’s Chinese companies ran into financial difficulties in May or June 2014 and he wanted to insulate Eastport from any risks that might arise. He was concerned about the risk of Eastport’s business reputation being negatively affected if he were to remain as its legal shareholder and director, whilst being the legal representative of his Chinese companies, and wanted to dissociate Eastport’s business reputation from himself. Xu also wanted to dissociate Eastport from one Zhang Min (“Zhang”), as she was also a shareholder of one of his Chinese companies while concurrently a shareholder of Eastport. At that time, Xu and Zhang held 70% and 15% respectively of Eastport’s shares.

  59. [42] Xu came up with a plan for Hao to purchase all of his and Zhang’s shares in Eastport (“the Shares”) and hold them as a nominee with the beneficial ownership remaining unchanged (“Share Transfer”). The Share Transfer would be accompanied by consideration to create the impression that the Shares had been sold to Hao and Hao would be the beneficial owner. Xu would provide the funds to purchase the Shares. He planned to transfer the funds to Wang first and for her to transfer the same to Hao (“Share Transfer Plan”), as it would be odd if Hao received the funds directly from Xu for the Share Purchase only to transfer it back to Xu later. Xu considered Wang as the intermediary for the funds as he trusted her and thought that she could assist with this in Singapore.

  60. [43] The Share Transfer Plan and its details were shared with Wang, Luan and Hao in Beijing on 29 June 2014 (“Beijing Meeting”). Xu left Luan to execute the Share Transfer Plan (including verifying the amount needed for the Share Transfer and arranging the funds transfer and Share Transfer) as Xu was busy dealing with his business in China. Xu told Hao and Wang to take instructions from Luan. He left his personal UOB chequebook in Eastport, with pre-signed blank cheques, so that Luan and Stella Ho (“Stella”), Eastport’s finance executive, could make advance payments from his UOB account. Xu was unaware of the amount used for the Share Transfer until Wang updated him around 2 to 7 July 2014 that she had received US$2.6 million (ie, the 1st USD Sum). Wang also informed Xu that Luan had briefed her on the transfer of the 1st USD Sum, ie, that she was to pass it to Luan in cash, who would then pass the same to Hao. Xu told her to follow Luan’s instructions.

  61. [44] Around 7 July 2014, Wang informed Xu that she had withdrawn cash to pass to Luan but he wanted a cheque instead. Xu told her to re-deposit the cash and wait for Luan’s further instructions on the transfer of the 1st USD Sum to Hao. Xu trusted that Luan would follow up on the matter, but Luan did not. Around 10 July 2014, Hao told Xu that he had not received the 1st USD Sum from Wang. In August or September 2014, Wang also informed Xu that the 1st USD Sum was still in her UOB account and that there was no follow up from Luan. Xu told Wang to hold on to the money for temporary safekeeping. At that time, it was no longer crucial for the 1st USD Sum to be transferred to Hao as the ripple-on effects from the Chinese companies’ financial difficulties had already affected Eastport and Eastport would soon be inactive.

  62. Wang’s version

  63. [45] Wang claimed that the 1st USD Sum was a gift to her. Alternatively, Xu had represented to her that it was for her and he was estopped from resiling from the representation.

  64. [46] Around February 2014, Wang found out about Xu’s relationship with Wang Cong, and subsequently discovered that he had given Wang Cong a job in Eastport and bought her the RV Property. In March or April 2014, Wang found out that Xu had lied about his marital status when he admitted that he was still married. Due to these, Wang wanted to end the Relationship. During a quarrel in early April 2014 over Xu’s marital status, Xu told Wang that he would be receiving money from Eastport and would give it to her, to show his sincerity and gratitude for staying with him and to provide her a sense of security. Wang thus decided to remain in the Relationship. In June 2014, Xu informed Wang again that he would receive money from Eastport and would give this to her.

  65. [47] Although Wang was in Beijing, she did not attend the Beijing Meeting. In Beijing, Xu said that he wanted to give Wang all his share rights in Eastport, but Wang did not want them whereupon Xu said that he would just give her money as promised. Xu said that he would hand to Wang his UOB cheque book, with pre-signed blank cheques, and he would let her know the amount that he would be giving her. After returning to Singapore, Xu told Wang to write out a pre-signed cheque for US$2.6 million in her favour. She banked the cheque into her UOB account around 2 July 2014 and informed Xu. However, after a day or two, Xu suggested to her that, as a matter of prudence, she should withdraw the money and re-deposit it into a new account. Around 7 July 2014, Wang withdrew $2.6 million cash from her UOB account which she re-deposited into that account around 16 July 2014.

  66. Findings on the 1st USD Sum

  67. [48] On balance, I find that the three certainties required for an express trust are established. Xu had transferred the 1st USD Sum to Wang while intending to retain its beneficial interest and its transfer was merely for the purposes of her transferring the legal title of that sum onwards to Hao.

  68. Whether Xu had lied to Wang about his marital status

  69. [49] Wang claimed that around December 2013, Xu told her that he was a divorcee with a son, but it was only around March or April 2014 that he admitted to her that he was still married; Xu then assured her that he would divorce his wife, and that as a show of sincerity he would give her the 1st USD Sum. Xu claimed that he had told Wang about his wife and son in 2013 when he got in touch with her after their first meeting in 2011; and he also told Wang’s father (during CNY in 2014) that he was a married man.

  70. [50] There was insufficient evidence to show that Xu had lied to Wang about his marital status and, in any case, that he had for this reason promised to give her all his monies from Eastport (or the 1st USD Sum). Whilst Wang had kept a rather comprehensive and frequent journal of her friendship and the Relationship with Xu, where she recorded, eg, her hopes, aspirations and anger, the records did not show that she had been angry with him at the material time when she allegedly found out about his marital status, or mentioned that he had lied about his marital status. This was a notable omission in light of Wang’s claim that she was angry, very upset and felt cheated by Xu’s alleged admission that he was married and even purportedly informed Xu that she wanted to end the Relationship. Instead, she recorded on 23 March 2014 that she was attracted to Xu’s “masculinity and generosity” and that Xu’s “generosity kept [her] drifting heart settled down for the time being”. In court, Wang conceded that the journal entries made no direct reference to Xu’s marital status or her unhappiness with it.

  71. [51] Wang’s reliance on Mr Wang’s testimony did not assist her as their evidence were inconsistent. Mr Wang testified that the first time he learnt that Xu was married was in end 2014 to early 2015, when his wife told him that Xu had promised Wang to divorce his wife. Wang however said that it was in March 2014 (after she heard from Wang Cong that Xu was still married) that she informed her parents of this.

  72. Beijing Meeting

  73. [52] I accept that Xu had informed Wang of the Share Transfer Plan at the Beijing Meeting and disbelieve Wang’s claim that Xu had told her that he would give her the monies from Eastport. The urgency of the Beijing Meeting, given the unfolding financial difficulties that his business in China was facing, supports Xu’s account. Wang herself stated that Xu had told her that his business in China was in trouble and asked her to accompany Luan to Beijing to meet him whereby Luan and he would discuss business matters, and immediately “the next day” Luan and she flew to Beijing. Luan and she were in Beijing for only two to three days. It is curious that Xu wanted Wang to meet him in Beijing so urgently and that she stayed there for only a short time, if the purpose of her trip (as she claimed) was merely to accompany Xu who was feeling down. I accept Xu’s evidence that Wang had gone to Beijing with Luan as Xu wanted to brief them on the crisis he was facing. I find that Xu wanted to share with Wang the Share Transfer Plan of which he needed her help with, that the meeting was arranged on short notice as Xu’s entities in China were facing financial difficulties and he wanted to dissociate himself from Eastport, and that he wanted to effect the Share Transfer Plan as soon as possible.

  74. [53] Hao corroborated Xu that they, Luan and Wang were at the Beijing Meeting, on what transpired there and on the purpose of the Share Transfer. Pertinently, Hao stated that Wang was present when Xu informed them of the Share Transfer Plan and that Xu would arrange for the funds to be transferred to Wang, to transfer to Hao, who would then return them to Xu eventually.

  75. [54] On the other hand, Wang’s version of how the 1st USD Sum came to be a gift to her was suspect. She attested that when she was in Beijing on that occasion, Xu had promised to give her shares and she recorded this in her journal on 21 June 2014. However, this journal entry could not have pertained to the Beijing trip which only occurred around 29 June 2014. In court, she stated that “the location is different but the content [of her journal entry of 21 June 2014] is the same”, and later admitted, after some prevarication, that her journal entries did not mention the Beijing trip and claimed that Xu told her about the share transfer a week before that trip. I find this an unconvincing attempt to explain away her inconsistencies. In any event, I disbelieve Wang that Xu had promised her the 1st USD Sum in June 2014. By then, he was in the midst of the credit crisis affecting his interests in China and it was unlikely that he would have wanted to give Wang some US$2.6 million at that time.

  76. Matters occurring after the Beijing Meeting

  77. [55] The contemporaneity of certain subsequent important events supports that the 1st USD Sum was meant for the Share Transfer Plan. Xu and Zhang’s shares in Eastport (of 2,100,001 and 450,000 respectively) were transferred to Hao on 30 June 2014, a day after the Beijing Meeting. Xu’s UOB bank statement showed a sum of US$2,599,971.92 credited into his account on 1 July 2014 (which cohered with Eastport’s records that showed advance dividends of US$2.6 million paid to Xu on 30 June 2014), and a sum of US$2.6 million withdrawn from his account on 2 July 2014 (and banked into Wang’s UOB account). All these occurred within a few days and supports that the Share Transfer Plan was discussed at the Beijing Meeting and the 1st USD Sum was intended for the Share Transfer. The quantum of the 1st USD Sum also supports that it was intended for the Share Transfer Plan. Eastport’s Register of Members reflected that the amount (purportedly) paid by Hao to Xu and Zhang for the Shares totalled US$2,550,000 which approximates to the 1st USD Sum.

  78. [56] It is not disputed that Wang was told to withdraw the 1st USD Sum from her account. On 7 July 2014, she withdrew $2.6 million although she intended to withdraw US$2.6 million. Wang’s claim that Xu had suggested that she withdraw and re-deposit the 1st USD Sum into a new account out of an abundance of caution for her sake is unconvincing. It is unclear why it would be more prudent to withdraw the 1st USD Sum only to re-deposit it into a new account, given that any withdrawal and attempt to re-deposit such a substantial sum in cash would have invited queries and compliance issues with any bank and draw attention to herself. Wang claimed that possibly Xu had asked her to withdraw only $2.6 million which, if true, would be at odds with her claim that Xu had told her to move the 1st USD Sum to another account to play it safe, as some of that Sum would remain in her UOB account. Instead, I accept Xu’s explanation that Wang was told to withdraw the 1st USD Sum for the purpose of passing the cash to Luan to pass to Hao for the Share Transfer Plan. The withdrawal coincided with Hao’s visit to Singapore from 6 to 10 July 2014 shortly after the Beijing Meeting.

  79. Hao’s evidence

  80. [57] As stated earlier, Hao corroborated Xu on what transpired in Beijing and at the Beijing Meeting. He was to hold the shares on Xu’s behalf. Hao then came to Singapore to assist with the Share Transfer and, whilst here, Luan informed him that the consideration would be US$2.6 million and that Luan would arrange the transfer of the 1st USD Sum from Wang to Hao. However, Hao did not receive any funds from Wang even when he returned to Beijing on 10 July 2014 and had informed Xu of the same.

  81. [58] I am cognisant that Hao is Xu’s employee. Nevertheless, I find him to be a credible witness, and I accept his evidence pertaining to the Beijing Trip and the Share Transfer Plan. I did not see any reason for Hao to lie. He did not have a vested interest in the Shares or money that was intended to be transferred to him as he was merely acting under instructions to hold both for Xu.

  82. [59] Mr Lee SC submitted that Hao’s testimony was inconsistent, as Hao fluctuated on when he first knew that funds would be transferred to him for the Share Transfer Plan and whether it was Xu or Luan who had first told him this. However, the apparent inconsistency was due to imprecise questioning. Hao had stated that it was Xu who had first told him in Beijing that money would be passed to him for the Share Transfer Plan (although the specific amount was not mentioned), but it was when Hao was in Singapore that Luan first told him the amount was US$2.6 million and also first told him that he was to receive the funds whilst he was in Singapore. As for Mr Lee SC’s submission that Hao had prevaricated on whether the 1st USD Sum would be transferred to his account or to him in cash, I find no contradiction as the transfer to Hao’s account could be by cash.

  83. Luan’s absence

  84. [60] Mr Lee SC submitted that all of Xu’s evidence relating to Luan’s involvement in the 1st USD Sum was hearsay as Luan did not testify. I disagree. Xu had testified on what he himself had said and done (eg, what transpired in Beijing in June 2014) and what he had heard directly from Wang such as her conversation with Luan. Hao had also testified on what transpired at the Beijing Meeting and his trip to Singapore.

  85. Wang’s journal entries and messages with Xu

  86. [61] The documentary evidence did not show that the 1st USD Sum (or 2nd USD Sum, which I will discuss later) was a gift to Wang. Wang admitted that the USD Sums were not expressly referred to in any chat or journal. Although she referred to various entries made between 2015 to 2017, they only referred to her receiving money or being wealthy and any mention of Xu providing for her financially could equally be a reference to other money and benefits that he had given to her.

  87. [62] Pertinently, the 1st USD Sum was not mentioned in Wang’s journal entry on 5 July 2014, recorded just three days after that sum was transferred to her. One would have expected Wang to have expressed some joy at receiving so much money as a gift. In contrast, the “house” was mentioned twice, even though she received the Apartment some seven months prior (in December 2013). It is also inexplicable that Wang had described herself as suffering and being disappointed with Xu. These were strange reactions from someone who had just allegedly received a US$2.6 million gift.

  88. [63] On 27 September 2014, Wang mentioned Xu had satisfied her financially, and on 23 December 2014 Wang stated that Xu had given her money. These entries, recorded three and six months respectively after the 1st USD Sum was handed to Wang, are equivocal and could have referred to other moneys and benefits that he had given to her. Then, on 18 May 2016 Wang stated that she was fortunate in wealth, and on 24 July 2016 she recorded what was purportedly Xu’s words to her that “I have given you all of my money.” Again, these statements were neutral and did not mention the USD Sums.

  89. [64] Wang then referred to journal entries in 2017, where she recorded: (a) on 15 January that Xu had given her “so much money that [she would not] be able to finish spending all of it in [her] lifetime”; (b) on 13 March that she was grateful for what she possessed, namely “a place to live, money and car”; (c) on 9 May that Xu gave her “so much money”; (d) on 8 August about how Xu expressed his love for her by giving her money; and (e) on 29 November, after the Relationship had ended, that “Luckily, I have money and a house.” However, these entries do not mention the USD Sums.

  90. [65] Finally, I refer to a text conversation on 5 September 2016, more than a year after the 2nd USD Sum was transferred to Wang, that she claimed showed that the USD Sums were gifts to her.

  91. [66] I agree with Xu that he wanted to appease and placate Wang when they were quarrelling and she was making unreasonable demands, but that did not mean that he had given or would give her the USD Sums. It was not logical that he would give her everything, including his children and companies. In any case, the conversation did not reflect Xu’s intention at the time of the transfers of the USD Sums, which transfers took place more than a year before.

  92. [67] As to the lack of records mentioning the 1st USD Sum and the fact that it was a gift, Wang claimed that Xu had told her to be discreet about the gift and not to mention it to anyone or in their text chats. When it was pointed out to her that no one would read her private diary, she then claimed that she was concerned about hackers. I disbelieve Wang that Xu had told her to keep the 1st USD Sum discreet or that she was concerned about hackers. She did not proffer any good reason for having to keep this discreet. Wang’s explanation that she was concerned about hackers only came out in cross-examination, which I find to be an afterthought. If Xu had wanted to keep the gift discreet, it was strange that he told her to withdraw the money to re-deposit into a new account, as a flow of such a huge amount of funds would have attracted undue attention and compliance issues with the banks (which eventually occurred).

  93. Evidence of Wang’s father

  94. [68] Wang also relied on Mr Wang’s evidence. Mr Wang claimed that Xu had: (a) told him in 2015 that Wang had enough money for her lifetime; (b) told him in 2016 that Xu had already given Wang all his money, had given her US$10 million and had no money left; (c) on an occasion raised his index finger and said he had given Wang “this much” which Mr Wang took to mean US$10 million; and (d) on another occasion told Mr Wang that he had given all that he had to Wang. Whilst Xu admitted to telling Mr Wang that Wang was rich and that he would look after her, he denied that he had ever told Mr Wang that he had given Wang enough money to last her a lifetime or that he had given Wang US$10 million or ever referenced the sums.

  95. [69] I find that Mr Wang’s evidence did not support Wang’s claim on the USD Sums. I give little weight to his evidence as Xu was not cross-examined on or asked to verify the truth of that evidence on the 1st (or 2nd) USD Sum. I am not satisfied that even if Xu had told Mr Wang that he had given Wang US$10 million, that this referred to the USD Sums. This is to be contrasted with Mr Wang’s evidence on the Apartment and Car which was corroborated by pictures sent by Wang to him around the time of their respective purchases.

  96. Miscellaneous issues pertaining to Xu’s case

  97. [70] Finally, I deal with some issues pertaining to Xu’s case on the 1st USD Sum, raised by Mr Lee SC.

  98. Xu’s pleadings

  99. [71] Mr Lee SC submitted that Xu changed key aspects of his pleaded case at the last minute. Xu first pleaded that Luan had briefed Wang to transfer the funds to Hao for a business transaction, but then pleaded that Xu had instructed Wang on the transfer of the funds for the Share Transfer. I did not find this to affect my decision. The Share Transfer was an elaboration of the “business transaction” pleaded originally – Xu explained that it was just not described in detail initially. If Mr Lee SC was suggesting that the Beijing Meeting did not take place because it was only mentioned in the amended statement of claim (“amended SOC”), the evidence showed otherwise. Wang had also stated that she and Luan had gone to Beijing on that occasion for Luan to discuss business matters with Xu at the time when Xu’s business in China was in trouble.

  100. [72] Next, it was submitted that Xu’s pleadings were unclear as to whether the instructions were to transfer the 1st USD Sum to Hao directly or to Luan first to pass to Hao. Again, this is immaterial. It was consistent that Hao was to eventually receive the 1st USD Sum. Hao had testified that the Share Transfer Plan included consideration that would emanate from Xu. Xu stated that he left the details of the Share Transfer Plan to Luan as he was in China and Luan was in Singapore and he was unaware that Luan had told Wang to withdraw the money to pass to Luan first.

  101. [73] Further, Xu first pleaded that he had instructed Wang to return the 1st USD Sum to him but she refused, but later pleaded that he had told her to hold the 1st USD Sum for temporary safekeeping. Mr Lee SC submitted that this change in Xu’s pleadings showed that his instructions to Wang to hold the money temporarily was an afterthought. I disagree. Xu’s pleaded case in the amended SOC (that he first told Wang to temporarily hold the 1st USD Sum and subsequently asked her to return the sum on numerous occasions but she refused) was an elaboration of his original claim (that Wang had refused to return the money despite his request).

  102. [74] Next, Xu pleaded that after Wang withdrew $2.6 million, it was Luan who instructed her to re-deposit it; but later pleaded that he told Wang to do so. This did not affect my findings. Xu was not asked to explain his change of pleadings. In any case, it could well be that he was initially mistaken or could not recall who had informed Wang to re-deposit the money. His amended SOC is consistent with his AEIC.

  103. Share Transfer Plan

  104. [75] I turn to examine certain aspects of the Share Transfer Plan. Mr Lee SC submitted that the Shares could have been transferred to Hao without payment since it was only a legal transfer. Further, Xu’s explanation that the Share Transfer Plan could only be completed with consideration being given and that it was common for share transfers in China to be accompanied by consideration was unbelievable. However, I accept Xu’s explanation that he wanted to transfer the Shares with consideration to create the impression that he had sold his shares to Hao when in effect Xu would retain the beneficial ownership. At the material time, Xu wanted to dissociate himself from Eastport as he was facing financial problems with his business in China and he did not want his Eastport business in Singapore to be affected.

  105. [76] Next, it was submitted that Xu could have arranged to transfer the funds directly to Hao or to Luan (instead of Wang) to transfer to Hao. I did not find this problematic. Xu wanted to conceal the true source of the consideration to lend legitimacy to the Share Transfer Plan. As Xu explained, it would look odd if Hao had received the funds directly from him only to transfer it back to him. Xu did not want to use Luan as the intermediary as Luan was Eastport’s general manager and too closely connected to the transaction.

  106. [77] Whilst there may be flaws in the Share Transfer Plan including the potential ease in which a third party (eg, Xu’s creditor in China) might have easily seen through it and it was unlikely that someone like Hao could afford to buy the Shares, I had nevertheless found there to be sufficient evidence to show that the Share Transfer Plan was intended to be effected (see [52]–[57] above).

  107. [78] Next, Mr Lee SC submitted that the Share Transfer Plan was unbelievable because if Xu subsequently felt that it did not have to be completed, he could simply have asked Wang to return the 1st USD Sum. Xu’s claim that the Share Transfer Plan was not completed as Eastport was soon to be inactive was not convincing as Eastport remained a live company. I did not find it unusual that Xu had asked Wang to safekeep the 1st USD Sum or that he did not ask for its return immediately or until much later. Xu had explained that when his business in China was in distress, he was very stressed and not in a mood to deal with the 1st USD Sum. It was also not unusual that he placed assets with others because he reposed his trust in them; for instance, his legal shareholding in Eastport remains with Hao. Additionally, whilst in the Relationship, he trusted Wang to safekeep the money and did not wish to rock the boat, especially given Wang’s unhappiness that he was still married. Further, Xu had explained that from late 2014 until 2016, proceedings had been commenced in China against his business and him. Hence, it was unsurprising that he did not wish to reclaim the 1st USD Sum from Wang then, to prevent creditors from reaching into his assets.

  108. [79] Next, Xu had in 2016/2017 asked for the return of only half of the USD Sums, which Mr Lee SC submitted was inconsistent with Xu’s claim that all of the USD Sums belonged to him. Xu had also admitted that he had on an occasion asked Wang to lend him RMB500,000, from the RMB 1 million that he had given to her in December 2016. Xu did not have to borrow money from Wang when he could have asked for the return of the USD Sums. Xu explained that he wanted to borrow RMB 500,000 as he needed RMB in China and not US dollars to do his business. But this did not mean that he had given the USD Sums to Wang. Xu’s actions of requesting the return of half the USD Sums or borrowing RMB from Wang must be seen in the light that he had attempted to obtain part of the USD Sums back from Wang but to avail and he did not wish to sour the Relationship with her then (see further [92] below). Pertinently, when asked why he could not have asked Wang for part of the USD Sums (in relation to another issue), Xu revealed that he did not wish to do a conversion from US dollars to RMB as it would “attract checks from the authority”.

  109. [80] Finally, Mr Lee SC argued that Xu’s delay in bringing his claim showed that they were gifts; it was only in November 2018 that Xu’s lawyers issued a demand letter to Wang to claim the return of the Properties. However, I accept Xu’s reasons for the delay in claiming the USD Sums. At the material time and after the Relationship ended, Xu had been subject to travel restrictions by the Chinese authorities which were only lifted in late 2018. In any event, shortly after the Relationship ended, he had in around December 2017 instructed Wang Qiaolian (“Qiaolian”), his lawyer in China, to seek advice from Singapore lawyers on how to recover the Properties. Qiaolian attested that she consulted lawyers in Singapore in early 2018 on this issue, and around 5 November 2018 (shortly after the travel restrictions were lifted against Xu) she arranged a meeting between the Singapore lawyers and Xu to seek further advice on the matter. Prior to sending the demand letter, Xu had also tried to engage with Wang for the return of his moneys.

  110. [81] Hence, I accept that Xu had sought to recover the USD Sums as soon as he could. As parties were and had been in the Relationship for almost four years, it is logical that Xu did not initially wish to take the hard approach to demand the sums back and wanted to talk things over with Wang instead. His conduct did not show that he had intended the USD Sums as gifts to her at the time of transfer or thereafter.

  111. Abandoned claims

  112. [82] Mr Lee SC argued that Xu had a habit of asking for the return of properties even though they were gifts and this included a car he gave to Wang’s father, RMB 1 million that he gave to Wang and a property in China (“Zhangzhou Property”) held jointly by Wang and her mother and of which RMB 3 million (ie, 75% of the purchase price) was paid by Xu. Even if Xu had asked for the return of certain properties, it did not mean that everything held in Wang’s name were gifts to her. Whether any particular item was gifted is a question to be determined based on the facts specific to it. For clarity, I do not make any findings on whether the RMB 3 million or 75% of the Zhangzhou Property was intended as a gift to Wang as Xu has abandoned this claim.

  113. Conclusion on 1st USD Sum

  114. [83] In conclusion, I prefer Xu’s version to Wang’s and find that the 1st USD Sum was handed to Wang with the express intent that it would be used for the Share Transfer Plan, with Xu intending to retain its beneficial interest. I find that there was no intent to benefit Wang with this sum, and even when the 1st USD Sum was not applied towards the Share Transfer Plan.

  115. Parties’ arguments on the 2nd USD sum

  116. Xu’s version

  117. [84] Xu claimed that Wang held the 2nd USD Sum on an express trust or a resulting trust. He had told her that the 2nd USD Sum was for temporary safekeeping and that it was for him to restart his business. From August or September 2014, Xu’s Chinese companies underwent audits, and actions were commenced against them and Xu. Around end 2014, Xu knew that he would receive from Eastport dividends accruing from his previous shareholding (“Dividends”) and his share of profits accruing from Eastport’s futures trading (“Profit Share”) (collectively the “EP Funds”). He hence explored options to insulate the EP Funds from risks that may arise from the financial difficulties that his Chinese companies were facing and to readily access the funds to start a business outside of China as and when he was ready to do so.

  118. [85] In late December 2014 to January 2015, Wei assisted Xu to incorporate a company in Hong Kong (“HK”), namely Yong Cheng Investment Ltd (“Yong Cheng”), as a preparatory step to starting a new business outside China with the incoming EP Funds. In early January 2015, Xu together with Qiaolian and Wang Wenzhong (“Wenzhong”), another Chinese lawyer, discussed three broad options for the EP Funds (“the Three Options”) as follows:

  119. (a) Change the shareholders of Eastport to Hao and Xu and keep the EP Funds in Eastport, which Eastport would invest in a new company that would be the main operating company to start Xu’s new business.

  120. (b) Transfer the EP Funds to a new company in Singapore or HK, which could be the main operating company for Xu to start his new business.

  121. (c) Transfer the EP Funds to Xu’s trusted associates or friends (including Wang) to hold as his personal nominee(s) (“Option 3”).

  122. [86] Xu updated Wang of the developments and told her that there were risks that potential creditors of his Chinese companies would still be able to pursue the EP Funds. Wang was particularly interested in Option 3 and was willing to help him hold on to the EP Funds.

  123. [88] That evening, Xu told Wang that he preferred the SG-HK Plan and of his intention to make her the nominee director in the new Singapore company. Wang became agitated as she was fixated on Option 3 and was worried about the personal liabilities of being a director. Xu replied that she could seek legal advice on this and told her that she may be exposed to the risk of potential Chinese creditors pursuing her for the funds even if they were stored with her.

  124. [89] On 19 January 2015, Eastport approved Xu’s Profit Share of US$8,345,063. Around the same time, the Dividends were determined to be US$2,805,000. Xu instructed the EP Funds to be paid to Hao as his nominee, and the pay-outs were made to Hao several days later. He also told Hao that the funds were to be used for his business and that he would need Hao to make onwards transfers to other nominees soon. Prior to this, Xu did not know the amount he would obtain for the Profit Share and Dividends. On 21 January 2015, Wang asked Xu how the incoming EP Funds could be transferred to the HK company, and suggested using underground banks or going through her mother. Xu told her these options were not viable.

  125. [90] Around 27 January 2015, Xu instructed Wei to go to Singapore to open a personal bank account to receive the EP Funds, as Xu intended for Hao to transfer the funds to her for onward transfers, and alternatively for Wei to incorporate a Singapore company to hold on to the funds. Xu also told Wei that Wang and Hao would be assisting with the relevant transfers. On 28 January 2015, when Wei was in Singapore, Xu instructed her to open a personal bank account with UOB, and to consult a corporate secretarial firm on the requirements to incorporate a Singapore company and on the responsibilities and liabilities of its resident director(s). The latter was to assuage Wang’s concerns. Xu shared with Wang the information obtained from Wei, but Wang remained concerned about acting as a company director. Xu suggested she seek legal advice and for Wenzhong to go to Singapore to accompany her to meet lawyers. Wenzhong arrived in Singapore around 2 February 2015. That night, Wang reiterated her preference for Option 3.

  126. [91] On 3 February, Wang updated Xu on her and Wenzhong’s visit to the Singapore lawyers and said that she was not agreeable to act as Xu’s nominee director. Xu then instructed Hao to transfer US$9 million to Wei first (being the remainder of the EP Funds after some US$2 million had been utilised to pay for expenses). The transfer was done on 3 February. That night, after further consideration, Xu asked Wei to transfer US$7 million (ie, the 2nd USD Sum) to Wang for temporary safekeeping and US$2 million from Wei’s Singapore UOB account to her HK Industrial and Commercial Bank of China (Asia) (“ICBC”) account for Xu’s futures trading (“Final Decision”). Xu conveyed the Final Decision to Wang and Wei. Wei then made both transfers on 4 February, and the transfer of the 2nd USD Sum to Wang was completed by UOB bank on 5 February 2015.

  127. [92] Consistent with his intention that the USD Sums were only entrusted to Wang for temporary safekeeping, Xu had on at least three occasions during the Relationship asked her to return some of them to carry out his business. These were in 2016/2017 when they were holidaying in China but Wang refused, they ended up quarrelling and she threatened to leave him. Each time, Xu did not pursue the matter further as he did not wish to sour the Relationship. Sometime in November 2017 (when the Relationship had ended around 10 November 2017) Xu requested Wang to return half of the USD Sums but she refused.

  128. Wang’s version

  129. [93] Wang claimed that the 2nd USD Sum was an unconditional gift, and alternatively, that Xu had represented to her that it was a gift to her and was estopped from resiling from the representation.

  130. [94] Around August 2014, she discovered text messages in Xu’s mobile phone from other women, which worsened her insecurities about him. Further, he had not taken steps to divorce his wife, which led to many quarrels. Around December 2014 to early 2015, Xu told Wang that he would be receiving money from Eastport and he would give it to her as an assurance that he would divorce his wife, to provide her with a sense of security, and as a show of his sincerity and gratitude for staying with him. Xu said he would be giving her around “1000” which she understood as US$10 million. Of this amount and at Xu’s request, Wang agreed to Xu using about “200” (which she understood as US$2 million) for his business.

  131. [95] Wang was worried if there would be risks in giving her the money, as Xu’s business in China was facing problems. Xu assured her that there would be no risks but subsequently told her otherwise. On 13 January 2015, Xu told her there would be three steps to transfer the funds to her: (a) change the shareholders of Eastport to Hao and himself; (b) create a new investment company at a location to be determined; and (c) transfer the money to her. By 18 January 2015, Wang was quite agitated as Xu then claimed that there were risks of transferring the money to her. He did not want to subject Wang to risks by depositing the money into her account directly. Wang then made enquiries with a lawyer at Drew & Napier LLC (“D&N lawyer”) and also with her lawyer friend pertaining to the transfer.

  132. [96] Between 21 to 23 January 2015, Wang told Xu to avoid any risks and to first transfer the money elsewhere (such as to her mother) before routing it to her. Xu then informed Wang that the money would be transferred to Hao. Between 23 and 28 January 2015, Xu informed Wang that Eastport would be distributing dividends to him and he would transfer “200 plus” to HK and give her about “700” as previously agreed. Wang understood these figures to mean US$2 million and US$7 million respectively. Xu also said that the final plan was to transfer the sums to Hao’s account, then to Wei’s account, and then to Wang’s account, all on the same day. Xu told Wang that he had arranged for Wei, Hao and Wenzhong to go to Singapore to oversee the transfers and for Wenzhong to advise Wang on any risks of the transfer to her.

  133. [97] On 2 February 2015, Wang suggested the transfer of the US$7 million from Hao to her directly, but if this was not possible, the transfer could be made to Wei and then to her. The transfers of the 2nd USD Sum from Hao to Wei and then to her were all effected on 3 February 2015, the same day after Wenzhong had informed her that there would be no risk in her receiving the funds.

  134. [98] Subsequently on three occasions, around November 2016, CNY in 2017 and November 2017, Xu asked Wang to lend him a part of the USD Sums. Wang refused and Xu did not thereafter assert any right to the USD Sums.

  135. Findings on the 2nd USD Sum

  136. [99] I find on balance that there was an express trust of the 2nd USD Sum as it was transferred to Wang only for safekeeping, with Xu intending to retain the beneficial interest. I accept Xu’s explanation that he essentially wanted to keep the EP Funds out of reach of potential creditors in China at the time when his business there was facing financial difficulties, and to enable him to restart his business outside China when he was ready to do so.

  137. Witnesses in support of Xu’s claim

  138. [100] Various witnesses corroborated Xu’s account as to the circumstances leading up to, and his intention for, the transfer of the 2nd USD Sum.

  139. [101] Hao attested that around 23 January 2015, Xu told him that the EP Funds would be transferred to his account in Singapore and he was to transfer the same to Xu’s nominees which had not been determined then. Xu also told him that the EP Funds would be used for Xu’s future business and to go to Singapore to await instructions on the fund transfer. Hao was in Singapore from 26 January to 4 February 2014 and Wei and Wenzhong came to Singapore around the same time. Hao transferred US$9 million to Wei on 3 February 2014. Hao also attested that, just before he returned to China on 4 February 2015, Wei told him that she had transferred part of the EP Funds (the 2nd USD Sum) to Wang for safekeeping and the remainder US$2 million to HK for Xu’s business.

  140. [102] Wei attested that in around April 2014, a financial fraud scandal occurred in China, resulting in a credit crisis which affected Xu’s business. At Xu’s request to incorporate a company in HK to do business outside China, Yong Cheng (a shell company) was subsequently bought and transferred to her as nominee for Xu. She attended the Jinan Meeting where Xu mentioned that he was due to receive the EP Funds (although the specific amount was yet to be determined) which he intended to use to start his business outside China. Due to the financial difficulties surrounding Xu’s Chinese business, several Chinese lawyers had attended the Jinan Meeting to advise Xu on the options to transfer or hold the EP Funds, so that he could access them if and when necessary. The SG-HK Plan was discussed and Xu raised the possibility of trusted friends acting as his nominee director and shareholder in a new Singapore company.

  141. [103] Wei further attested that on 27 January 2015, Xu told her to go to Singapore to receive the EP Funds from Hao and transfer them onward on his instructions. She was to open a personal bank account in Singapore to receive the EP Funds and to incorporate a company in Singapore if necessary. On 28 January 2015, Wei opened a UOB account and visited a corporate secretarial firm to find out the requirements to incorporate a Singapore company and on the responsibilities/ liabilities of its resident director(s). On 3 February 2015, Xu told her that he had informed Hao to transfer US$9 million to her first, but that he was still considering how the sum would be further transferred or held. Later that night, he told her of the Final Decision, and she effected the transfers on 4 February 2015 (see [91] above). Xu told Wei to transfer US$7 million to Wang to “put the money with her” for temporary safekeeping and the remaining US$2 million into Wei’s account in HK for Xu to use for his futures trading. At all material times, she understood that the 2nd USD Sum transferred to Wang belonged to Xu, and that Hao, Wang and she were Xu’s nominees and assisting him with the relevant transfers.

  142. [104] Qiaolian attested that her law firm was engaged to advise Xu on how the EP Funds should be held or transferred, to ensure that they would be readily accessible for his business outside of China. She corroborated Xu’s evidence of the Jinan Meeting; and the discussion on the options for the EP Funds, the SG-HK Plan and the possibility of Xu’s trusted friends or associates acting as his nominee director or shareholder if a Singapore company were incorporated.

  143. [105] The testimonies of Hao, Wei and Qiaolian were materially consistent with Xu’s on the events leading up to the transfer of the EP Funds and that the transfer of the 2nd USD Sum to Wang was for temporary safekeeping and to enable Xu to use the funds later on. I find them to be reliable witnesses, although Hao and Wei are Xu’s employees. Wei had also made contemporaneous records which supported her testimony, which I will deal with below. Wei’s and Qiaolian’s evidence support that Xu was concerned about the option he should use to either transfer or hold the EP Funds for his future business use, as opposed to Wang’s case that Xu was concerned with how to gift the monies to her safely.

  144. Contextual evidence

  145. [106] I find that various other circumstances supported Xu’s version over Wang’s, in relation to the intended purpose of the EP Funds.

  146. Meetings with lawyers

  147. [107] The parties had made multiple attempts to consult lawyers. On 2 December 2014, Wang told Xu to “speak with [Wenzhong] before deciding”. Then, in early January 2015, Xu consulted Wenzhong and Qiaolian. On 12 January 2015, Xu informed Wang that Wenzhong was “trying to come up with a solution”, and on 16 January 2016, Xu told Wang that he would be meeting Wenzhong and a HK lawyer. On 18 January 2015, Xu informed Wang that she could also consult lawyers. Again, on 2 February 2015, Wang said that “Regarding this question, I will also ask the attorney tomorrow”. Finally, Wenzhong had accompanied Wang to meet with Singapore lawyers on 3 February 2015.

  148. [108] Xu claimed that the consultations were to discuss how to transfer or hold the EP Funds, including the transfer of funds to HK, the requirements of incorporating a Singapore company, the responsibilities and liabilities of its resident director and the viability of the SG-HK Plan. I accept Xu’s version and find that the consultation with lawyers was to enable Xu to consider how to hold or transfer the EP Funds for his use later on and to place it out of his creditors’ reach, and to check on Wang being a nominee director of his new Singapore company. If the purpose of the consultations was to assess the risk of transferring the EP Funds/2nd USD Sum to Wang as a gift safely and without risk as she claimed, there would have been no need for multiple meetings with multiple lawyers in various jurisdictions. The messages and chats also did not refer to a plan to ensure the safe transfer of the EP Funds/2nd USD Sum to Wang.

  149. [109] Next, Wang claimed that a D&N lawyer had given her preliminary advice that she could receive funds from overseas so long as she was not involved in the overseas dealings that were being investigated and would not be implicated, and that generally, once given, the money could not be claimed back by third parties. Wang claimed that she also confirmed this with a lawyer friend (see [95] above). If these were true, it is inexplicable that she was (according to her) still worried about the risks of receiving the 2nd USD Sum that she even required Wenzhong to fly to Singapore to speak to her and accompany her to consult Singapore lawyers on this. I disbelieve that Wang had sought the advice of a D&N lawyer regarding the matter as she claimed. It was unlikely that the lawyer, whom Wang did not even meet and whose name she claimed she could not recall, would have given her preliminary legal advice over the telephone.

  150. [110] I also disbelieve Wang that Wenzhong’s trip to Singapore was to advise her on the risks of receiving the 2nd USD Sum safely, when they could have communicated via telephone or teleconferencing. Wang’s explanation that she would have a “clearer understanding of the issues” if she spoke to him “face-to-face” is unconvincing, given that she had been communicating with Xu on many important matters via skype and over the phone, and even claimed to have sought advice from a D&N lawyer over the phone. I accept Xu’s explanation that Wenzhong accompanied Wang to visit Singapore lawyers to check on the responsibilities and liabilities of being a director of a Singapore company.

  151. Preparatory steps made by Xu and circuitous route of transfer

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