Tang Qiong v. Zhang Tingtnig

HCA 452/2018

[2020] HKCFI 1388

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 452 OF 2018

________________________

________________________

_________________________________

DECISION

_________________________________

INTRODUCTION

1.By her summons filed on 9 December 2019, the Defendant applies to stay the present action on the ground of forum non conveniens. 

PLAINTIFF’S CLAIM

2.According to the Plaintiff, she has at all material times been a permanent resident of Hong Kong.  The Defendant is a participant in the Capital Investment Entrant Scheme in Hong Kong since 2013.  The Defendant was introduced to the Plaintiff by a mutual friend named Zheng Qing Yuan in Fujian. 

3.The Plaintiff claims that in early May 2014, the Defendant orally requested the Plaintiff to advance a sum of RMB2,000,000.00 and in the latter half of that month, the Defendant requested RMB2,000,000.00 more from the Plaintiff.  The two sums, in the total amount of RMB4,000,000, shall be referred to as the “Loan Amount” here. According to the Plaintiff, eventually they orally agreed to the following terms (the “Loan Agreement”): -

(1)  RMB3,930,000.00 of the Loan Amount would be transferred to the Plaintiff’s bank account(s) to the Defendant’s daughter (Zhang Lingya)’s bank account maintained with the Qingyan branch of Fujian Jinjiang Rural Commercial Bank (“Zhang Lingya’s Account”). 

(2)  The remaining balance of RMB70,000.00 would be deducted from the interests accumulated from the first month of repayment. 

(3)  The Defendant was to pay to the Plaintiff’s a monthly interest at a rate of 3%, that is, RMB120,000 per month. 

(4)  After the expiry of 6 months, the Plaintiff can demand the Defendant to begin repayment of the principal amount of the Loan Amount. 

4.On 14 and 27 May 2014, the Plaintiff transferred RMB1,930,000.00 and RMB2,000,000 respectively to Zhang Lingya’s Account, evidenced by the transmission slips exhibited to the Plaintiff’s affirmation in opposition to the Defendant’s summons.  Further, while the interest for the first month should be RMB120,000, only RMB50,000 was paid, because RMB70,000 was deducted as the remaining balance of the Loan Amount.

5.On 15 July 2014, the Defendant signed an acknowledgement of receipt of the loan which contained the Defendant’s finger prints.  This acknowledgment of receipt is also exhibited to the Plaintiff’s affirmation in opposition. 

6.According to the Plaintiff, the Defendant did make monthly deposits to the Plaintiff from May 2014 until December 2014.  Around December 2014, the Plaintiff met the Defendant at the Plaintiff’s office in Fujian, and orally requested the Defendant to begin repayment of the principal amount of the Loan Amount. However, from January 2015 onwards, the Defendant defaulted in repayment. Despite the Plaintiff’s repeated demands, the Defendant has still failed to repay.

7.Thus, the Plaintiff issued and served the Writ of Summons herein on or around 26 February 2018 on the Defendant in Hong Kong.  In other words, the present action is brought in Hong Kong as of right and the Court’s jurisdiction should not be disturbed lightly: see Hong Kong Civil Procedure 2020 Vol 1 at paragraph 11/1/10A.

DEFENDANT’S CASE

8.The Defendant’s defence, as appears from the evidence, is a bare denial.  The Defendant has not explained the transmission slips evidencing the transfers of RMB3,930,000 from the Plaintiff to Zhang Lingya’s Account and the acknowledgement receipt dated 15 July 2014 with the Defendant’s fingerprint thereon.  At the hearing, the Defendant’s Counsel accepted that there were indeed such transfers of money, but she denied the existence of the Loan Agreement.  While I am not to examine the merits of the defence, it is trite that I have to know the nature of the defence so as to determine the issues as between the parties and with reference to the issues, whether the Hong Kong forum or the foreign forum is more appropriate. 

FORUM NON CONVENIENS

9.The Defendant’s submissions are in essence that because according to the Plaintiff, the Plaintiff and the Defendant and the witnesses (notably Zheng Qing Yuan and Zhang Lingya) who may have the knowledge of the existence or non-existence of the Loan Agreement are resident in Fujian, the Loan Amount was in RMB, the Loan Amount was transferred in Fujian, and the demands for repayments were made in Fujian, Fujian Quanzhou Intermediate People’s Court or any Fujian People’s Court is clearly and distinctly more appropriate than Hong Kong. 

10.First, I note that the Defendant’s Summons for the present application does not state which alternative forum to be the more appropriate forum.  This per se may be a ground for dismissing the application: see for example Wong Chi Hung v 郭國基, DCPI 1897/2012, 2 May 2013 at paragraph 5.  That said, in her reply affirmation (unsworn due to the quarantine measures to contain COVID-19) exhibited to a reply affirmation sworn by the Defendant’s solicitor filed on 16 March 2020, the Defendant identified Fujian Quanzhou Intermediate People’s Court or any other appropriate People’s Court in Fujian as the alternative forum.  As the Plaintiff only raises that it is doubtful whether the defect in the summons could be remedied by stating the alternative forum in the reply affirmation but does not press for striking out the summons in limine, I am prepared to proceed to consider the application itself.

11.As mentioned above, the Defendant’s main contention is that all the subject matters and the witnesses are in Fujian.  There is, however, no suggestion for any inconvenience to adduce the documentary evidence (like the transmissions slips and the acknowledgment receipt) in Hong Kong.  The Defendant alleges inconvenience in relation to the witnesses all of whom are resident in Fujian.  This, in my view, is unreal.  I only need to refer to Hong Kong Civil Procedure 2020 Vol 1 paragraph 11/1/11, citing all those cases where the Court has consistently held in essence that in general, that the witnesses are in mainland China itself cannot be a good reason in support of an application to stay on forum non conveniens.  Even if the COVID-19 measures currently in place would continue to prevent the relevant witnesses from coming to Hong Kong to attend the trial, taking evidence by video-conferencing facilities is not uncommon now and there is no suggestion before me that taking evidence this way would cause any inconvenience. 

CONCLUSION

12.In the circumstances, I am not satisfied that Fujian Quanzhou Intermediate People’s Court or any Fujian People’s Court is clearly and distinctly more appropriate than Hong Kong.  I thus dismiss the Defendant’s Summons. 

[submissions on costs]

13.Having heard counsel’s submissions, I order that costs of this application be to the Plaintiff with certificate for counsel, to be summarily assessed. 

Ms Angel H Y Wong, instructed by Zhang Lawyers, for the plaintiff

Ms Rachel Chiu, instructed by Patrick Mak & Tse, for the defendant