Chan Ming Wing v. Cheung Man Kun

HCA 1504/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1504 OF 2015

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D E C I S I O N

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1.This is an appeal from a decision of Master Kwang, dated 10 August 2016, granting the plaintiff summary judgment in the sum of $4.8 million plus interest. 

2.The plaintiff’s claim is one of a loan to the defendant in the sum of $4.8 million.  The same is supported by a cheque drawn by the plaintiff in favour of the defendant in that amount, and dated 19 February 2014.  Receipt of the same is not denied by the defendant.  Apart from the cheque, there is no other contemporaneous documents evidencing the fact and terms of the alleged loan. 

3.In his evidence, the defendant has denied that the sum advanced was a loan.  He says that he has known the plaintiff for several years, and that the sum advanced was applied in repayment by the plaintiff to himself in the sum of $550,000, and payment to a Mr Lam on the plaintiff’s behalf in the sum of $4.25 million.

4.It is not denied that the day after the cheque was given to the defendant, Mr Lam was paid $4.25 million by the defendant.  Mr Lam, however, has denied that the same was a repayment by the plaintiff, and says instead it was a payment by the defendant in relation to a securities transaction. 

5.Additionally, the defendant says he himself has lent the plaintiff $2.9 million, by making payments on the plaintiff’s behalf to the plaintiff’s creditors.  The defendant has produced some banking documents which he says supports such payments, and a written acknowledgement from a Mr Chow, which on its face confirms receipt of $2 million, which Mr Chow had previously lent to the plaintiff.  The defendant says he intends to bring a counterclaim in respect of this $2.9 million.

6.On the other hand, the plaintiff relies upon Mr Lam’s sworn denial of the defendant’s contention that the defendant paid moneys to Mr Lam on the plaintiff’s behalf.  Furthermore, the plaintiff relies upon text messages sent by the plaintiff to the defendant demanding repayment of “the money I lent you”, and the alleged fact that the plaintiff is wealthy, and therefore did not need to look to the defendant for loans.  The plaintiff says that the defendant’s case is moonshine, and discloses no triable defence. 

7.With respect, I disagree.  The aforesaid summary of the evidence demonstrates that manifestly, this is not an appropriate case for summary judgment.  There is an abundance of disputed material facts which raise in my view triable issues.  However, I agree with Mr Cheung, counsel for the plaintiff, that some aspects of the defence advanced by the defendant appear less than satisfactory.  In the rubric commonly employed in such cases, the defendant’s defence at this stage is, in my view, a shadowy one. 

8.I set aside the Master’s orders below, the defendant is granted leave to defend, upon condition that he pays the balance of the principal sum claimed, being $1.9 million, into court, within the next 21 days. 

(Counsel submits amendment)

9.I accept that amendment, and I record that the same is now reflected in my decision.  I had said in my decision that Mr Chow was a creditor, I am now corrected in that matter.  Mr Chow does not appear to have been a creditor of the plaintiff.

10.Now, as to costs, I think the appropriate order that should be made is that the costs in this court and in the Master’s court below would be costs in the cause with certificate for counsel.  I am not sure you need a certificate here, but you probably need a certificate for the hearing below.

Mr Lawrence Cheung, instructed by Yu Hung & Co, for the plaintiff

Mr Roland Lau, instructed by Kong & Tang, for the defendant