- 29 A B A 125. Mr Hughes relied on MCA Records Inc v Charly Records Ltd B [2002] FSR (26) 401 where it was held, inter alia, that a director would not C D E F be treated as liable with the company as a joint tortfeasor if he did no more than carry out his constitutional role in the governance of the company. 126. Although in the defence and counterclaim it is denied (at paras 61 and 62) that D5 and D6 have ever commited the acts complained C D E F of “other than doing the work to fulfil his constitution duties as a director”, G H there is no evidence in support of this. This is a bald assertion in the pleading without evidence in support. As I have said, D5 is the sole G H director and shareholder of D2. D6 is the sole director and shareholder of I J D1. There is no evidence or suggestion that D5 and D6 were the nominees of anyone else. It seems to me that on the evidence before the court it is I J arguable that D5 was in control of D2 and D6 was in control of D1, K K respectively. L L 127. M MCA Records is distinguishable on its facts and provides M no assistance to D5 and D6 in my view. N N 128. O P In Kabushiki Kaisha Yakult Honsha & others v Yakudo Group Holdings Ltd & another [2004] 2 HKLRD 587 Lam J (as he then was) at paras 117 to 128 examined the law on the question of directors’ personal liability as a tortfeasor for the tort committed by his company. Q R S O P Having set out the law, he concluded that he proposed to examine: “… the personal liability of the second defendant by asking whether he was so involved in the acts complained of that he became a joint fortfeasor together with the first defendant.” Q R S T T U U V V