Yao Guoliang v. Liu Yang
Read the full judgment text of HCA 2269/2015 on BabelCite. This High Court CFI judgment was delivered on 13 April 2017.
1. This is the hearing of the Plaintiff’s summons dated 4 October 2015 seeking summary judgment against the Defendant for, inter alia, payment of a sum of USD 1,074,825.50.
Cites 3 cases
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HCA 2269/2015 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE ACTION NO 2269 OF 2015 _________________________
_________________________ Coram: Master K. Lo in Chambers Date of Hearing: 8 August 2016 Date of Decision: 13 April 2017 _____________ D E C I S I O N _____________ 1.This is the hearing of the Plaintiff’s summons dated 4 October 2015 seeking summary judgment against the Defendant for, inter alia, payment of a sum of USD 1,074,825.50. 2.Initially, the Plaintiff also asked for:
3.Before the hearing, Plaintiff abandoned their claim for interest under subparagraph (a) and (b) above but instead sought for interests on the said sum of USD1,074,825.50 at interest rate of 1% over prime rate for the period from date of Writ to date of judgment. 4.The Plaintiff’s application is primarily premised upon the Letter of Undertaking (承諾書) dated 30 July 2014. 5.The same reads:-
6.It is not in dispute that Plaintiff is the executive director and a chief executive officer of a Hong Kong listed company and the Defendant is the chairperson and chief investment officer of Atlantis Investment Management Hong Kong Ltd (“Atlantis”) and that according to the Defendant hereof, she has over 20 years of professional experience of working in the financial industry and as a fund manager in asset management. 7.Riverwood Umbrella Fund (the “Umbrella Fund”) was one of the funds managed by Atlantis and Defendant was the director of the Umbrella Fund. Riverwood Fortune Fund (the “Subject Fund”) was a “sub‑fund” of the Riverwood Umbrella Fund. 8.It is also not in dispute that Plaintiff invested a total of USD5million in the Subject Fund on or about 20 July 2011. 9.According to the Plaintiff, Plaintiff invested the USD5million upon reliance on the verbal undertaking of the Defendant to the effect that she personally guaranteed the return of Plaintiff’s capital investment in the funds managed by her (the “Verbal Undertaking”). 10.On 15 April 2013, Plaintiff requested redemption of USD 2,500,000 from his investments in the Subject Fund. As a result of Defendant procured “special redemption” of the Subject Funds, for the Plaintiff and 17,218,817 shares were sold and an amount of USD 2,499,962.50 was transferred from the Umbrella Fund to Plaintiff on 8 May 2013. 11.The existence of the Verbal Undertaking by the Defendant is denied by the Defendant. 12.Nevertheless, parties agree that on 30 July 2014 a dinner took place. The same was attended by Defendant, Mr. Wang and Mr. Che, the purpose of which was to discuss the Plaintiff’s claim against the Defendant for performing her obligations under the Verbal Undertaking. 13.According to the Plaintiff, Defendant at the meeting completed and signed the Letter of Undertaking (承諾書) aforesaid. She filled in, by hand, her Hong Kong Identity card, date of repayment, the date of the Letter of Undertaking and she signed. 14.She admitted she did complete and sign on a piece of paper produced by Mr. Wang during the dinner meeting. She put the Plaintiff to proof that the Letter of Undertaking was the same document she signed that evening. 15.Defendant alleged that she was less than rational that evening as she had consumed a lot of alcohol. 16.She further alleged that the reason why she signed the piece of paper handed to her was that she “took the view that piece of paper was not meant to be for real” and was asked by Mr. Che and Mr. Wang to sign in order to enable them to handle the Plaintiff’s matter and “to stop the Plaintiff from harassing them”. She claimed that she did not read the paper properly and as a gesture of giving face to Mr. Che and Mr. Wang, she completed and signed the same. 17.In this case, Mr. Wang affirmed and said the Letter of Undertaking was the document completed and signed by the Defendant that evening. 18.Mr. Yu, counsel for the Plaintiff submitted that there is no doubt that the Letter of Undertaking produced by the Plaintiff is the same piece of paper completed and signed by the Defendant, that as the same consists only of three lines that it is not possible that a person like the Defendant will fail to understand both the nature and the content of the document. 19.He submitted that the defence of saying she did not receive copy of the document she signed or that she did not read the document properly or that she thought the document was not meant to be “for real” or that the signed the same just going for face to Mr. Che and Mr. Wang but that the same was not meant to be passed to the Plaintiff in due course is an explanation that is not believable. 20.In my view, there is no doubt that the Defendant, being a sophisticated person, understands both the nature and contents of the Letter of Undertaking when she signed. She knew it would be passed in due course to the Plaintiff and acted upon. On her own admission, the purpose of the dinner that evening was to attend to the Plaintiff’s claim against her for the balance of money invested. She obviously knew the reason she was asked to complete and sign the Letter of Undertaking was solely for the attention of the Plaintiff. 21.In fact, Plaintiff herself admitted that her signing of the paper was so that Plaintiff could stop harassing Mr. Che and Mr. Wang. It must therefore within her knowledge that the same would be passed to the Plaintiff. 22.This Court noted also that prior to the issuance of the present action by the Plaintiff, the Plaintiff did refer on several occasions in his SMS messages to the Defendants the Letter of Undertaking, e.g. the SMS messages exchanged between the Plaintiff and the Defendant on 18 May 2015, Plaintiff referred to the agreement made last year and asked the Defendant for an immediate redeeming of the investments of the Subject Fund as the “due date” for such agreement was approaching (去年與您談過的協議要快到期了). 23.Subsequent to this SMS exchange, the Plaintiff did receive sum of USD1,425,174.50 as a result of redemption of investment on 7 July 2015. 24.Defendant did not then ask the Plaintiff to clarify what agreement he was referring to nor did she ask him for copy of the same. Clearly she knows the agreement referred to was the Letter of Undertaking completed and signed by her on 30 July 2014. 25.On 9 July 2015, there were further SMS exchanges between the Plaintiff and the Defendant where the Plaintiff again made reference to the Letter of Undertaking and complained that he only received USD1.4million, an amount different from the sum in the Defendant’s “written agreement” (和你簽字的約定不同). Again, Defendant did not ask Plaintiff to clarify what he meant by “written agreement” nor did she ask for copy of the same. It is abundantly clear that she knew the Plaintiff was referring to the Letter of Undertaking, the contents of which is well within her knowledge. 26.Further, the Defendant did not deny that she had signed the “written agreement”. 27.On 10 July 2015, when Plaintiff chased Defendant for the “difference in payment” (付款差額), Defendant just replied “有想法要聊一下”. There was no outright denial of liability or challenge by her as to why she needed to pay the difference. 28.Plaintiff did further demand Defendant for payment by referring to the “original written agreement signed by Plaintiff” and wished Defendant to keep her promises while he kept his (您簽字的保函原件還在我這里。我說話是算數的，這一年多都沒有催你。希望您也信守誠諾). 29.Defendant did not question what agreement he was referring to and suggested that Plaintiff went over and discuss. In reply, Plaintiff told Defendant to compensate the remainder and could take away the document signed by Defendant: “好的。你可以叫秘書去我公司把你簽字的文本拿回去。不過最好把餘額補齊給我。” Again, no question was asked by the Defendant as to what agreement he was referring to. 30.Plaintiff also demanded Defendant to provide an explanation with reference to the “Verbal Agreement” and a “document signed in black and white last year to repay 250 in July this year” (您以前口頭承諾保本我才投給你的。而且你白紙黑字去年簽給我今年七月底付給我250，你的簽字是不是有效？). 31.On all these occasions, Defendant did not deny that she had signed the agreement referred to by the Plaintiff, pursuant to which she had to pay the Plaintiff the sum of USD2.5million by July 2015 nor did she challenge she did orally undertake to the Plaintiff on the preservation of the invested capital. 32.It was submitted by Mr. Yu, counsel for the Plaintiff that the evidence of the Defendant in relation to the Letter of Undertaking is unbelievable. I agree. Had there not been pre-existing obligation due to the Plaintiff why would she have signed the Letter of Undertaking. 33.I also agree to his submission that the fact that the Defendant alleged she did not have copy of the Letter of Undertaking is not a defence. 34.Mr. Yu said further that the Defendant’s attempt to raise the defence of non est factum must be rejected. Defendant is a person of full age and understanding. Her admission that she filled in the particulars on the document plainly shows she understood the meaning of the three lines of words in the Letter of Undertaking. Non est factum is only available if there has been a radical or fundamental difference between what the Defendant signed and what she thought she was signing: Saunders v Anglia Building Society [1971] AC 1004, 1017B-E per Lord Reid, and p 1022H per Viscount Dillhorne. 35.The Court of Appeal case of Ming Shiu Chung v Ming Shiu Sum (2006) 9 HKCFAR 334 at [84], states that:-
36.This defence is therefore not a good one, even if her allegations are true. 37.In fact, these allegations were disputed by Mr. Wang, witness for the Plaintiff who attended the dinner. He says the Defendant was sober at the time. 38.Furthermore, it has always been the case for the Defendant that she had never given the Verbal Undertaking, in that case, why would she not take the opportunity of explaining to both Mr. Wang and Mr. Che the absurd and unreasonable request of the Plaintiff in making such a claim against her. Instead, she proceeded to sign the piece of paper as requested, further landing herself into trouble and attracting personal liability on herself without reasons? It should also be noted that while the Defendant put the Plaintiff to proof that the paper she signed was the Letter of Undertaking, she did not tell the Court the nature and content of the document she signed. She just said she signed and forgot about it afterwards. 39.If she insisted that she could not remember the same, then she could not really deny the paper she signed was the Letter of Undertaking. She also could not explain why she did not ask for copy of the document on the many occasions when she was referred to this document by the Plaintiff in SMS messages. 40.Now that the Defendant had been provided with copy of the Letter of Undertaking, she did not say the signature on the same was forged or that the handwritings of the completed parts were not hers. 41.I have no doubt that the Letter of Undertaking is the same document completed and signed by the Defendant in the evening of 30 July 2014 and that the Defendant understood the nature and contents of the document when she signed, knowing it would be passed onto the Plaintiff. 42.I agree with Mr. Yu the fact that the Defendant did not have copy of the document she signed is not a valid defence. 43.It is not disputed that the Plaintiff did not pursue the balance of monies invested before July 2015, i.e. the date of repayment stipulated in the Letter of Undertaking. 44.Coming to the Defendant’s submission that the Letter of Undertaking is not supported by consideration as there was previously no verbal undertaking as alleged by the Plaintiff, Mr. Yu argues that the present claim of the Plaintiff stems from the Letter of Undertaking, which is a promissory note made under the Bills of Exchange Ordinance Cap. (19), Laws of Hong Kong and that under section 30 of the Bills of Exchange Ordinance, consideration is deemed to have been given. It is therefore up to the Defendant to show there is a total failure of consideration. 45.It is argued by Mr. Suen, counsel for the Defendant that the Letter of Undertaking did not constitute a promissory note under the Ordinance as it is conditional only upon the Fund Company not returning USD2.5million to the Plaintiff that the Defendant is obliged to pay the Plaintiff. Otherwise the letter of Undertaking therefore did not constitute an unconditional promise to pay the Plaintiff. 46.In addition, Mr. Suen submitted that, as Barnett J put in Chevalier (E&M Contracting) Ltd v Rotegear Development Ltd & Ors [1994] 3 HKC 457 at 463:-
47.Quite plainly, Mr. Suen says, the Letter of Undertaking is not a negotiable instrument and Plaintiff cannot freely transfer it to a third party. 48.I agree with Mr. Suen that the Letter of Undertaking is not a promissory note as the repayment is conditional upon the Fund Company not paying the Plaintiff USD2.5million before 30 July 2015 and it is non-negotiable. 49.Mr. Yu for the Plaintiff also submitted even if the Letter of Undertaking is not a promissory note that in fact it is sufficient if there exist a bona fide claim or dispute in respect of which Plaintiff agreed to forbear to enforce or did actually forbear to sue. Chitty on contracts, 32nd edition, §§4-052 to 4-055. 50.He says that when the Defendant herself completed the Letter of Undertaking and filled in the date of repayment to 30 July 2015, it is plainly a request from Defendant herself to have until 30 July 2015 to make the payment of USD2,500,000 and as the Plaintiff did in fact allow the Defendant the full period of one year to make payment and had not taken any action to enforce payment before 30 July 2015, no doubt Plaintiff did in fact forbear to sue within the requested period. This is in law adequate consideration for the Letter of Undertaking. 51.The Defendant herself in the affirmation says that the day before the dinner on 30 July 2014, the Plaintiff had been demanding from her the balance investment monies in a threatening manner. Defendant knew the purpose of the dinner was to deal this Plaintiff’s claim. 52.It is submitted by Mr. Yu that this forbearance by the Plaintiff at the request of the Defendant clearly constituted valuable consideration for the Letter of Undertaking. 53.He says there is no legal requirement that the intended cause of action relied upon by Plaintiff must be proven or found by the Court to be valid therefore the Defendant cannot seek to avoid the Letter of Undertaking on the ground that Plaintiff’s claim under the Verbal Undertaking was in fact invalid or was liable to be dismissed. See: Master Weaving Ltd v Hanbo Enterprises Ltd (unreported) HCA 676/2012 (21 July 2014) per Au Yeung J at §89-96; Chitty on Contracts §§4-052 to 4-055. 54.The Plaintiff cited paragraph 4-052 of Chitty on Contracts, 32nd edition, where the learned editors said:-
55.Mr. Yu referred this Court to the SMS dated 6 March 2014 from the Plaintiff to the Defendant which states:-
56.It is clear that Plaintiff then demanded return of the balance of the sum of USD5million (i.e. USD2.5million) invested in Subject Fund. 57.Again, SMS from the Plaintiff to the Defendant dated 7 March 2014 reads:-
58.Defendant’s response was “明白”. 59.It is submitted by Mr. Yu that these records show that Plaintiff had a bona fide claim for the return of the full sum invested pursuant to the Verbal Undertaking. 60.In the case here, there is a bona fide claim or dispute by the Plaintiff against the Defendant before 30 July 2014. 61.On the issue of existence of the Verbal Undertaking, Mr. Suen, counsel for the Defendant submitted that as the Plaintiff was the Defendant’s client, the Defendant did not adopt an adversarial tone to refute the allegation of agreement by the Plaintiff in the SMS exchange. 62.He referred this Court to various SMS from the Plaintiff to the Defendant and submitted contents of these SMS suggest there was no Verbal Undertaking. 63.The same includes, inter alia, SMS at 17:26 on 6 March 2014 wrote “盼望，不要讓我虧損，期望有所盈餘。好不好？” (“I hope, don’t let me suffer a loss, I hope there is some profit, OK?”) 64.He submitted that if there had been the Alleged Verbal Undertaking which would protect him from his losses, why did Plaintiff “hope” that he would not suffer a loss? 65.On 7 March 2014, at 00:28 and 00:29, Defendant told Plaintiff that she would check the status of his investment and wrote “讓投資人虧損是我最難受的事！” (“Letting investors suffer a loss is a matter that makes me feel very bad”). 66.On 12 March 2014 at 16:48, 16:48 and 16:54, after checking the status of Plaintiff’s investment, Defendant wrote to Plaintiff (i) “查了一下，你的投資還虧著呢！因為上筆錢你非要拿走的時候市場太差了。今年好多了，但還沒到2011年你進的價位。所以要再等讓我把虧損的部分掙回來。” (“I have checked. Your investment is still suffering from a loss. This is because last time when you insisted on taking the money the market was very bad. Oto s much better this year. But it has not reached the unit price you bought in 2011, so you need to wait to let me gain back the loss part”); (ii) “今年應該機會很大！” (“There should be a greater chance this year!”); and (iii) “四年你都等了！再等幾個月！” (“You have already waited for four years! Please wait for a few more months!”). 67.Mr. Suen submitted the reason for Plaintiff’s loss was that he insisted on redeeming when the market was at its lowest. Defendant could not have guaranteed anything when Plaintiff have insisted on redeeming even when the market was at its lowest. 68.Firstly, these SMS messages appear to be polite and friendly exchanges. 69.Even if the Verbal Undertaking existed, it is understandable that the Plaintiff would not like to have the loss of his investment recovered from the Defendant. He would look for return of his investment plus profit. On the other hand, with or without the Verbal Undertaking, the Defendant would not like to see the Plaintiff made a loss. 70.“最理想是把這單畫上完美的句號” in my view would mean that the Plaintiff would like to have perfect ending to this investment deal. It does not preclude the existence of Verbal Undertaking. 71.Mr. Suen also says the interpretation of Defendant’s response to the second part of Plaintiff’s SMS text message of 10 April 2014 at 20:16 by saying “只是沒回到原位，我要補啊” means it has not yet reached the original price, I need to accumulate more and that the said response did not relate to the Plaintiff’s investment in Subject Fund. 72.Plaintiff says however it meant that the Defendant was saying as the price of fund was still lower than the original price, the Defendant needed to compensate the price difference sum. He says that the Defendant could not be talking about accumulating shares in the Stock Code 267, because the stock price of Stock Code 267 was at all time high since the beginning of year 2014. 73.Mr. Suen says however that this is far from conclusive because:-
74.On reading the SMS exchanges, I agree with the Defendant’s submission that the said SMS referred to the Plaintiff’s investment in the Subject Fund. 75.Whilst the Defendant criticized the Plaintiff for cherry picking SMS exchanges between the parties in its disclosure, the Defendant had not disclosed further relevant SMS exchanges between the parties. No weight should be attached to this criticism. 76.It has also been argued by Mr. Suen that even if there was Verbal Undertaking made by the Defendant, she might not have intended it to be legally binding. 77.The Defendant is an experienced fund manager and had she made such Undertaking not intending the same to be legally binding or that she had made the Verbal Undertaking only on behalf of the Fund Company and did not mean to attract personal liability when giving such Verbal Undertaking, she would be quick to correct the Plaintiff when the Plaintiff referred her to the Verbal Undertaking. 78.Furthermore, she could definitely clarify her position with the Plaintiff and latest with Mr. Wang and/or Mr. Che when they had the dinner on 30 July 2014. Why would she further sign the Letter of Undertaking on 30 July 2014 and in her own name? This line of argument cannot succeed. 79.It was further submitted by Mr. Suen, counsel for the Defendant that there could not have been the Verbal Undertaking as alleged by the Plaintiff as the existence of the same is clearly contradictory to the contemporaneous documents, such as the Application Agreement and the Private Placing Memorandum for the Subject Fund. However, here we are not dealing with an action of the Plaintiff against the Subject Fund or its administrator but rather action of the Plaintiff against the Defendant personally. There is therefore nothing inconsistent if there should in fact be a personal Verbal Undertaking by the Defendant. 80.Whilst this Court appreciates that it is not usual that a fund manager will give personal verbal undertaking for capital preservation and appreciation, it is not impossible. Each case will depend on its own facts. 81.On the affidavit evidence before this Court, I find this verbal undertaking given by the Defendant, for reasons best known to her, which was relied on by the Plaintiff. 82.On the affidavit evidence before the Court, it is clear that at time of forbearance, the Plaintiff truly believed the existence of the Verbal Undertaking and that he has the legal right to claim the Defendant for the balance of the investment monies, having regard to the low price of the fund at the time, that he has a bona fide claim against the Defendant and in consideration of the Letter of Undertaking, he did, as requested by the Defendant, forbear to sue the Defendant in the twelve months. 83.The actual forbearance by the Plaintiff to sue the Defendant in the twelve months, as requested by the Defendant, clearly constituted good consideration for the Letter of Undertaking given by the Defendant. 84.The Defendant raised the issue of her being “misled” into signing the Letter of Undertaking. Nevertheless no particular was given by her as to what the alleged misrepresentation was save that she mentioned that Mr. Wang told her that if she signed the Letter of Undertaking, he could explain it to the Plaintiff (我好交代) as he had been harassed by the Plaintiff, that Mr. Che also complained of being harassed by the Plaintiff and Mr. Che asked the Defendant to give face to him (給我面子). Mr. Che further assured Defendant that he would take care of and handle Plaintiff’s matter and would top up the difference if there was still a shortfall. Defendant said under those circumstances, she signed. Firstly, what was the misrepresentation? 85.Secondly, the Letter of Undertaking is a solemn document which attracts liability up to USD2.5million. Even if the allegation of the Defendant were all true, why would the carry effect of persuading the Defendant signing when she was not already under such obligation to pay this sum? 86.In these circumstances, I do not find there is any arguable case made out on the misrepresentation issue. 87.Mr. Suen, counsel for the Defendant also submitted that as the interest payable on default under the Letter of Undertaking is in breach of section 24 of Moneylenders Ordinance, the Letter of Undertaking is illegal and unenforceable. 88.Firstly, the Plaintiff is not a moneylender as defined in the ordinance. 89.Secondly, the USD2.5million in the Letter of Undertaking is not a “loan” as defined in the ordinance. 90.The definition of “loan” in the ordinance is:-
91.The Letter of Undertaking is merely a promise by the Defendant to compensate the Plaintiff for any loss in the investment in the Subject Fund. 92.The Ordinance has no application on the case here. 93.The default charges (滯納金) payable under the same clearly is penal in nature and not liquidated damages and are therefore unenforceable but they are not illegal. The clauses on default charges can be served from the Letter of Undertaking in enforcement of the Letter of Undertaking. 94.These arguments on “illegality” is academic now that the Plaintiff has elected to abandon claiming interest as per the rate on the Letter of Undertaking but instead, they now claim interest at prime plus one from 30 July 2015 till date of Writ. 95.By reasons of the analysis aforesaid, it is clear to this Court that the Defendant has failed to show an arguable defence or that there is a triable issue to the Plaintiff’s claim. There is also no other reason that there ought to be a trial. 96.Accordingly, the Court now grants summary judgment against the Defendant for the payment of the sum of USD1,074,825.50 and interests thereon at the rate of prime plus one from 30 July 2015 until judgment and thereafter at judgment rate till payment. 97.I see no reason why costs will not follow the event. Accordingly, there be order nisi that costs of this action including, inter alia, costs of this application and costs reserved be to the Plaintiff, together with Certificate for counsel, the same to be summarily assessed. 98.This case does not justify the use of two counsels. 99.Plaintiff shall within 14 days lodge and serve on the Defendant the Statement of Costs. Defendant shall within 14 days thereafter serve and lodge their comments thereto. Half hour hearing be fixed for summary assessment within 42 days from today.
Mr. Benjamin Yu S.C. and Mr Ming Tai Yeung, instructed by Messrs. Tsang, Chan & Woo, Solicitors for the Plaintiff Mr. Jenkin Suen, instructed by Messrs. Deacons, Solicitors for the Defendant | ||||||||||||||
Cases cited in this judgment
Further hearings and rulings under HCA 2269/2015