2.6 Ms Wei again
36 I do not accept Ms Wei as a witness of truth. Her evidence was incredible and unbelievable in key respects, specifically her controlling role in relation to the sale of the companies with an AFSL and the lack of involvement with her cousin, Mr Wang, in that regard. While I agree with the submissions for Mr Wang that some of the cross-examination of Ms Wei went nowhere or involved potential confusion (eg, about Vivid Quark Technology (Pty) Ltd as registered in the Seychelles and another separate Australian company with the same name), I am convinced that the essence of her evidence, about the lack of any dealings between her and Mr Wang and Mr Wang's lack of any role in acquiring and selling TM Index and TMK Index, is untruthful.
37 The evidence is that Ms Wei was the sole director of Vivid Quark Technology (Pty) Ltd, a company incorporated in the Seychelles on 3 March 2014 and referred to as Vivid Quark Seychelles or VQ Seychelles. The sole shareholder of VQ Seychelles was Mr Wang.
38 Vivid Quark Technology Pty Ltd is an Australian company incorporated on 25 February 2014 and de-registered on 13 April 2015 of which Mr Wang was the sole director.
39 Further, the evidence is that on or around 11 June 2014, VQ Seychelles purchased all of the shares in the entity then known as Taemas Funds Limited from National Civil Recovery Pty Ltd. The price of the shares was $75,000. By 24 June 2014, the directors appointed by National Civil Recovery Pty Ltd had resigned, and Mr Chen and Mr Wang had been appointed as directors. A third director, Shouxin Li was also appointed. Mr Chen is the Mr Chen for whom Ms Wei worked while employed by Forpro. As noted, Ms Wei said that Mr Wang and Mr Chen knew each other.
40 As the applicants submitted, these appointments of directors could only have been made by VQ Seychelles as the new owner of Taemas Funds.
41 Ms Wei's evidence was vague and unconvincing in this regard. While Ms Wei gave evidence through an interpreter and allowance must be made in that regard, even with such allowance being made, her evidence stretched the bounds of credulity:
(1) she agreed that when she said "she" had a client wanting to purchase a company with an AFSL she meant VQ Seychelles had such a client;
(2) in July 2014 she was the sole director of VQ Seychelles;
(3) she could not recall authorising VQ Seychelles to pay $75,000 in or around June 2014;
(4) she did not recall ever authorising Mr Chen to be a director of Taemas Funds in June 2014;
(5) she was not sure if she knew a person called Shouxin Li;
(6) on 4 July 2014, Mr Wang and Ms Wei emailed each other concerning an "Australian licence lease contract" for Taemas Funds;
(7) after having this email pointed out to her, Ms Wei said she could not recall saying she had only became aware of Taemas Funds in October 2014; and
(8) she agreed that Mr Wang and Mr Chen knew each other and were in business together, but did not know that VQ Seychelles had purchased Taemas Funds.
42 There were other parts of Ms Wei's evidence that defied belief.
43 Ms Wei said she did no due diligence on Fish Capital before authorising VQ Seychelles to purchase its shares. She said she asked John of Wang & Associates to do everything in that regard and did not think about the cash flow projections, tax liabilities, or assets and liabilities of Fish Capital at all.
44 Ms Wei said she asked John for details of a company to buy (TM Index, then Taemas Funds) at a time when VQ Seychelles already owned TM Index and Mr Wang and Mr Chen were directors. This is in circumstances where: (a) Mr Chen ran a business out of China buying and selling companies with AFSLs, (b) it should be inferred that Mr Wang was involved in that business (Mr Wang is identified as a corporate representative of Forpro with Mr Chen on a Forpro document), (c) Ms Wei worked for Mr Chen (and accordingly, Mr Wang) in that business, (d) Mr Batten gave evidence of the close control Mr Wang had over his companies, and (e) Mr Wang, not Ms Wei, asked Mr Batten to find a director for TMK Index and Mr Batten did so.
45 Ms Wei earned about US$1000 per month when working for Forpro. Her evidence was that she offered to sell Taemas Funds to Johnson for US$250,000. Ms Wei was the sole signatory to the VQ Seychelles bank account. That account received US$199,971 on 15 May 2015. A few days later, US$180,000 was withdrawn from that account. Ms Wei could not recall what she did with that withdrawn money. This is unbelievable. I accept that there were large amounts of money moving in and out of the VQ Seychelles bank account. I agree that it was seven years ago. But the idea that a person who did all this because they wanted to earn some extra money and was so successful at doing so compared to her ordinary salary that they would not have had a close eye on and detailed recall about these transfers is unbelievable.
46 Ms Wei said that had never seen or spoken to Mr Batten. She communicated with him only via email and QQ, a Chinese messaging application. She communicated with him in English. She said she asked for his help in finding a director. She could not recall if this was via email or not. She could not recall the words used.
47 I do not accept Ms Wei's evidence that she acted as the controlling mind of VQ Seychelles. I am satisfied that Mr Wang must have acted as the controlling mind of VQ Seychelles and that Ms Wei acted in accordance with Mr Wang's directions. In response to the contentions for Mr Wang about the evidence of Mr Batten, and addressing the matters in the same order, I consider that:
(1) Mr Wang asked Mr Batten to locate directors for companies that held an AFSL;
(2) I do not accept that this request was for Mr Wang's clients. It was for Mr Wang himself as the controlling mind of companies including VQ Seychelles. This is consistent with the evidence that Mr Wang and Mr Chen of Forpro were in business together and Ms Wei worked for Forpro. Consistent with her assistant role for Mr Chen, Ms Wei was Mr Wang's assistant and acted under his control and direction; and
(3) TMK Index was a company in respect of which Mr Wang asked Mr Batten to find a director and, in accordance with that request, Mr Batten found Mr Forrester. In this regard:
(a) it is true that Mr Batten's affidavit does not rise this high, but his oral evidence did and this is consistent with the fact that Mr Forrester did become a director of TMK Index;
(b) Ms Wei's evidence that she asked Mr Batten to find a director for TMK Index was denied by Mr Batten. Mr Batten's evidence is credible whereas Ms Wei's evidence was not;
(c) it does not beggar belief that Mr Batten would recall arranging a paid directorship for a very ill friend. TMK Index may be "a run-of-the-mill company", but arranging a directorship for Mr Forrester in his straitened circumstances was a good reason for this event to remain clear in Mr Batten's mind. It is not that Mr Batten would recall the precise words used. It is that he was clear without doubt that it was Mr Wang who made the request on which Mr Batten acted. Mr Batten was also clear that it was unbelievable that anyone other than Mr Wang would make this request given his experience that Mr Wang exercised close control over his companies and was the only one who gave these kinds of directions; and
(d) Mr Batten's lack of written contemporaneous evidence is immaterial. So too is his error about Ms Wei's role. What is believable is that he had nothing material to do with Ms Wei and thought Ms Wei was involved only in payments.
48 I do not accept that Ms Wei was not directly confronted with the proposition that she was not telling the truth about the essence of her evidence in respect of her lack of dealings with and lack of role of Mr Wang. It was not necessary to put to Ms Wei outright that she was a liar. For example, what was put included that:
• MR MACK: And your evidence before that you never heard of Taemas Fund Limited until October 2014 - that was not truthful evidence, was it, Ms Wei?
THE INTERPRETER: What I said before - I don't think I did. I can't remember.
…
• MR MACK: Ms Wei, Mr Jay Wang would direct you to do tasks in relation to Vivid Quark and you would obey those directions. That's the truth, isn't it?
THE INTERPRETER: No. I looked for clients myself.
MR MACK: If Mr Wang asked you to do something, you would obey that request; is that correct?
THE INTERPRETER: What are you referring to?
MR MACK: If Mr Jay Wang asked you to do something in relation to the affairs of Vivid Quark Seychelles, you would do what he asked you to do; is that correct?
THE INTERPRETER: So - okay. So in - in 2014 when I was in Guangzhou, I was speaking with Guofei Chen. So - sorry - just one - one bit I have to ask her to repeat. Okay. So - okay. So because your question was - so your question was asking me whether Mr Wang asked me to do certain things.
MR MACK: Yes.
THE INTERPRETER: My answer is Guofei Chen asked me to do things. He was my boss.
MR MACK: Did Mr Chen know Mr Wang?
THE INTERPRETER: Yes.
MR MACK: And Mr Chen and Mr Wang were in business together; is that correct?
THE INTERPRETER: Yes.
MR MACK: And it was - Mr Jay Wang was actually the manager of the Vivid Quark company; is that correct?
THE INTERPRETER: No. Wasn't I the director?
MR MACK: Ms Wei, is your evidence still that you were the director of the Vivid Quark Seychelles company but did not know that they had purchased Taemas Fund Limited. Is that still your evidence to this court?
THE INTERPRETER: Yes.
…
• MR MACK: And you never spoke to John at Wang & Associates and requested that he change the name from Taemas Funds to TM Index. That never happened, did it Ms Wei?
THE INTERPRETER: That never happened?
MR MACK: That never happened.
THE INTERPRETER: Okay, so I talked to John or Stella, but exactly who, which one, I'm not sure, but I remember I tell John to - and ask him to change the name.
…
• MR MACK: Ms Wei, you can't recall because you never, in fact, had a conversation with Mr Batten at all about a TMK directorship, did you?
THE INTERPRETER: I remember when I was communicating with him, most time it was on QQ, sometimes email, but I really can't recall exactly when and how.
…
• MR MACK: And you never, in truth, wrote anything to John in relation to a name change from Fish Capital Securities to TMK Index, did you?
THE INTERPRETER: I did tell him. So I did tell him about it, through QQ.
MR MACK: That's not true, is it, Ms Wei? You're lying because Mr Wang has told you to lie.
MR MACAULEY: I think there's two questions there
MR MACK: That's not true, is it, Ms Wei?
THE INTERPRETER: What do you mean by that?
MR MACK: And you've made up this communication with John because Mr Wang requested you to make up this conversation with John.
THE INTERPRETER: So it is the truth that I communicate with the solicitor John.
MR MACK: Ms Wei, did Mr Wang tell you to communicate with John?
THE INTERPRETER: No.
…
• MR MACK: Sorry, one important question, and it was my final question I didn't put. The email in front of you which you sent to Johnson - Mr Wei directed you to send that to Mr Johnson, didn't he? Sorry, Mr Wang - Mr Wang directed you to send that email to Johnson.
THE INTERPRETER: Okay, so no. My client, Johnson, asked for the information, so once the name has been changed, I sent it to him.
49 Contrary to the submissions for Mr Wang, it does not matter that parts of Ms Wei's evidence (as evidenced by contemporaneous documents) must be true. The relevant point is that I am satisfied that everything Ms Wei did she did under the control and direction of Mr Wang. This conclusion is not speculative. It is a conclusion which must be reached on the whole of the evidence. Accordingly, and for example, Ms Wei may well have communicated with "Johnson" but I infer that it was Mr Wang who was the controlling and directing mind of Ms Wei's dealings with TM Index and TMK Index. Ms Wei also may well have communicated with Wang & Associates but, again, I infer that it was Mr Wang who was controlling what occurred.
50 Accordingly, I am satisfied that, as submitted for the applicant, Ms Wei was Mr Wang's assistant and acted under his direction while working as his assistant at VQ Seychelles. That role extended to selling TM Index and TMK Index. This role is consistent with her previous role at Forpro (where she fulfilled the same function under Mr Chen). I do not need to rely on any inference of the kind identified in Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 to reach this conclusion. I accept that Mr Wang could have given evidence but chose not to. I accept that, as a result, I can be more confident in the inference I have drawn that Mr Wang was the controlling and directing mind of VQ Seychelles and that Ms Wei acted in accordance with Mr Wang's directions. However, as noted, I would draw that inference in any event from the objective circumstances together with the unbelievable evidence of Ms Wei.