Chan Chun Choi v. Kwong Wang Pok

HCA 2172/2012 & HCA 2266/2012
[2021] HKCFI 700

HCA 2172/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 2172 OF 2012

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AND

HCA 2266/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 2266 OF 2012

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(Heard Together)

Before: Hon Lisa Wong J in Court

Date of Hearing:  5, 6, 7, 8, 11 and 26 June 2018

Date of Judgment:  18 March 2021

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JUDGMENT

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ISSUES BEFORE THE COURT

1.The core issues arising for determination in these 2 actions can be summarised as follows:

“Fees Issues”

(1)  whether Mr Chan Chun Choi (陳進財)[1] (“Mr Chan”) orally agreed between 26 September 2011 and 7 March 2012 to pay Mr Kwong Wang Pok (鄺宏博)[2] (“Mr Kwong”) a referral fee (中介費) (which Mr Kwong has quantified at HK$7,475,000[3]) (“Referral Fee”) for the introduction of a financier willing to advance to Mr Chan the fund then required by him (in the region of HK$110.7 million);

(2)  whether Mr Chan orally agreed on 31 January 2012 to pay Mr Kwong a “success fee” of HK$1 million (“Success Fee”) for the successful introduction of such a financier and the obtainment of the facility on terms and conditions more advantageous than those generally available in the financial market at the time;

(3)  even if Mr Chan did so agree, whether such agreements were invalid and unenforceable because:

(a)  Mr Kwong was not at the material time(s) a licensed representative accredited to a licensed corporation under ss 120 or 121 of the Securities and Futures Ordinance (Cap 571) (“SFO”);

(b)  Mr Kwong did not have a licence to carry out the regulated activities specified in Part I of Schedule 5 to the SFO, in particular, Type 6 regulated activities (giving advice on corporate finance matters) as his business activities;

“Assault Issues”

(4)   whether Mr Kwong committed the tort of assault against Mr Chan by despatching debt collectors to Room 1609, 16/F, New East Ocean Centre, 9 Science Museum Road, Tsim Sha Tsui East, Kowloon, Hong Kong (“Office”), the office of Mr Chan and Victory Group Limited (“Company”), on 12 and 13 July 2012 to threaten Mr Chan to pay him the said fees;

(5)  whether Mr Kwong assaulted Mr Chan again by sending debt collectors who left the following note with Mr Chan Kingsley Chiu Yin (“Mr Chan Jr”), Mr Chan’s son and the vice-chairman and an executive director of the Company, at the Office on 9 October 2012 to threaten Mr Chan to pay him the said fees:

“鄭重聲明

致:

有關閣下之欠款一事,經本公司多次催收,仍未有回覆,若不立即繳付有關欠款,本公司即時採取行動而不再作任何通知!

火速致電96514014與張先生接洽。勿誤!!

「如不回覆後果自負」” (original emphasis)

“Defamation Issues”

(6)  whether Mr Kwong published or caused to be published a poster bearing Mr Chan’s photograph and the following words:

“華X利 16X9室

小心! ! !

騙子! ! !”

(“First Poster”) by posting the same at the lobby of 16/F, New East Ocean Centre on which the Office was situated (“Office Lobby”) and by distributing the same to a substantial number of unidentifiable people on 19 July 2012;

(7)  whether Mr Kwong published or caused to be published a poster bearing Mr Chan’s photograph and the following words:

“小心! ! ! 華X利

陳主席 大老千 大騙子! ! !”

(“Second Poster”) by posting the same at the Office Lobby and by distributing the same to a substantial number of unidentifiable people on 28 July 2012;

(8)  whether Mr Kwong published or caused to be published a poster bearing Mr Chan’s photograph and the following words:

“華X利

香港上市公司1X39

陳主席 大騙子

大老千

無誠信! ! !”

(“Third Poster”) by posting the same at the lobby of Mr Chan’s residence at Flat B, 9/F, Homestead, 260-262 Prince Edward Road, Kowloon (“Residence Lobby”) and by distributing the same to a substantial number of unidentifiable people on 30 July 2012;

(9)  whether Mr Kwong sent by post to Ms Lo So Wa Lucy, Mr Ip Ka Keung Patrick, Dr Lam King Hang, Mr Cheung Man Fu, Ms Leung Wai Kei, the board of directors and senior management of the Company and distributed to a substantial number of unidentifiable people as well as the staff of the Company on around 7 August 2012 a letter (“Letter”) written in the name of “陳文” and including the following words:

(a)  the 1^st paragraph:

“華X利老千集團，你們集團因為復牌前收購的汽車項目裡面的財務大部份都不實，2年內的業績多數是偽造,更重要稅款8佰萬左右都要向人借，如果項目真的有盈利2年2仟多萬，那可解要借。希望老仟集團的帳目做到滴水不漏。”

(b)  the 2^nd paragraph:

“還有上市後老仟集團利用在大陸開設虛擬公司，掉走上市公司1仟萬元作為還其他欠債。”

(c)     under the 3^rd paragraph:

“更可怕陳XX主席利用股東、高級管理人員及親人的無知，利用他們和他們的親友和朋友開設股票帳戶，更有人代其他人的名用電話做買賣等等，可在市場上內部炒作令股價急速上升。…”

(d)     under the 4^th paragraph:

“以上老仟集團的行動很定做成刑事責任, … 我們相信是陳主席自己做出來的, …”

FEES ISSUES

Relevant background

2.The shares of the Company, incorporated in Bermuda, are listed on the Main Board of the Stock Exchange of Hong Kong Limited (“Stock Exchange”) with stock code 1139.

3.Mr Chan is the Company’s chairman and managing director and was prior to the Open Offer (defined in [7] below) the direct and indirect[4] holder of 27.4% of the shares in the Company.

4.The trading of the Company’s shares on the Stock Exchange was suspended on 27 September 2006. 

5.In December 2008, the Company was placed into the third stage (de-listing) of the delisting procedures in accordance with Practice Note 17[5] of the Listing Rules.  At such stage, the Company had a final period of 6 months to submit a viable resumption proposal and to remedy the matters that gave rise to the Stock Exchange’s proposal to cancel the listing of the Company.  The Company had repeatedly applied for, and been granted, extensions of time for the completion of these steps.

6.Between 2009 and mid 2012, with a view to gaining the Stock Exchange’s approval for the resumption of trading of its shares, the Company proposed to, inter alia, undertake a reorganisation of its capital (“Capital Reorganisation”) entailing the following:

(1)  the increase in the authorised share capital of the Company from HK$50,000,000 divided into 500,000,000 shares of HK$0.10 each to HK$125,055,864 divided into 1,250,558,640 shares of HK$0.10 each;

(2)  the consolidation of every 20 issued and unissued shares of HK$0.10 each in the share capital of the Company into 1 consolidated share of HK$2.00 each;

(3)  the reduction of the par value of each issued consolidated share from HK$2.00 to HK$0.001 each by cancelling the paid up capital to the extent of HK$1.999 per issued consolidated share; and

(4)  the sub-division of each authorised but unissued consolidated share into 2,000 adjusted shares with a par value of HK$0.001 each.

7.The Capital Reorganisation was to be followed by an open offer for the issuance of 851,406,380 offer shares of the Company at the subscription price of HK$0.13 per offer share on the basis of 110 offer shares for every 1 adjusted share (“Open Offer”).

8.On 1 December 2011, Mr Chan and the Corporate Shareholders gave irrevocable undertakings (“Undertakings”), inter alia, to accept and pay for their entitlement to the subscription of 233,297,570 offer shares under the Open Offer in respect of the 2,120,887 adjusted shares held by them.  On the same date, Mr Chan also entered into an agreement[6] with the Company (“Underwriting Agreement”) to underwrite up to 618,108,810 offer shares (excluding the entitlements of the Corporate Shareholders) not taken up in the Open Offer.

9.To discharge his and the Corporate Shareholders’ obligations under the Undertakings and the Underwriting Agreement, Mr Chan required and had to look for loan financing to the tune of about HK$110.7 million, in case no shareholder of the Company took up any of the shares underwritten by Mr Chan.

10.On 12 April 2012, Tanrich Securities Company Limited (“Tanrich Securities”) as lender, Tanrich Capital Limited (“Tanrich Capital”) as arranger and Mr Chan and the Corporate Shareholders as borrowers signed a facility letter (“Facility Letter”) under which Tanrich Securities offered, subject to contract, to Mr Chan and the Corporate Shareholders a term loan up to HK$110.7 million for 12 months with interest at 20% per annum to finance the performance of their obligations under the Undertakings and Underwriting Agreement.

11.Pursuant to the Facility Letter, on 10 May 2012, Tanrich Securities and a related party Mr Yip Man Fan (“Mr Yip”) as lenders and Mr Chan and the Corporate Shareholders as borrowers executed 2 formal loan agreements (“Loan Agreements”) whereby the latter were granted loans of HK$85,860,000 and HK$30,330,000 respectively to finance the discharge of their obligations under the Underwriting Agreement and the Undertakings. 

12.In case after the completion of the Open Offer, the adjusted shares held by the public shareholders were less than 25% of the shares in the Company in breach of the public float requirements of the Listing Rules, on the same date, Mr Chan also entered into a placing agreement (“Placing Agreement”), appointing Convoy Investment Services Limited and Tanrich Capital (“Placing Agents” collectively) as placing agents to place down up to 209,167,440 adjusted shares in the Company on the assumption that no shareholder of the Company took up any of the shares underwritten by Mr Chan to placees procured by the Placing Agents in order to comply with the public float requirements of the Listing Rules.      

13.In May 2012, the Capital Reorganisation was completed.  In May/June 2012, for the purpose of the Open Offer, Mr Chan and the Corporate Shareholders respectively drew down HK$78,424,472.35[7] and HK$30,328,684.10[8] (HK$108,753,156.45 in aggregate) under the Loan Agreements.

14.On 11 June 2012, trading of the Company’s shares on the Stock Exchange was resumed.

15.Against the aforesaid background, Mr Kwong is a financial consultant licensed by the Securities and Futures Commission (“SFC”) to carry out Type 6 regulated activities since 6 January 2004.  During the periods from 7 February 2011 to 15 March 2012 and from 13 July 2012 to 28 April 2014, Mr Kwong was a licensed representative accredited to Redford Corporate Finance Limited and Amasse Capital Limited (“Amasse”) respectively.  The latter a company was incorporated in Hong Kong on 15 March 2012.  Mr Kwong was appointed as a director of Amasse on 22 March 2012.  Amasse is licensed by the SFC to carry out Type 6 regulated activities since 13 July 2012.

16.It is common ground that one Ms Cheung Ngai Yi Charlotte (張艾儀) (“Ms Cheung”), a licensed representative of China Merchants Securities (HK) Company Limited, with which Mr Chan had held a securities trading account for some years, introduced Mr Kwong to Mr Chan.

17.There is, however, an argument as to when exactly that introduction occurred.  According to Mr Chan, he did not first meet Mr Kwong until 10 January 2012 whereas Mr Kwong recalls that he became acquainted with Mr Chan much earlier on 26 September 2011.  I can dispose of this disagreement very shortly as nothing of real significance turns on the date on which Ms Cheung introduced Mr Chan and Mr Kwong.  I am inclined to find that Mr Chan and Mr Kwong met on, or closer to, the earlier date.  In paragraph 3 of his statement dated 15 October 2012 to the police, Mr Chan himself informed the police that Ms Cheung introduced Mr Kwong to him in July/August 2011.  One would have expected Mr Chan to have a better recollection of the event back in 2012.  Second, the police had faxed a draft of the statement to Mr Chan on 14 September 2012.  Mr Chan thus had had an opportunity to review and, if necessary, correct the document.  Moreover, the telephone records produced by Mr Kwong in respect of his mobile telephone number from 17 October 2011 to 15 February 2012 show communication between Mr Kwong and Mr Chan by mobile telephone on as early as 2 November 2011.

18.There is no dispute either that, whether directly or indirectly, Mr Kwong then introduced, or was instrumental in introducing, Mr Andy Chan (陳偉傑) (“Mr A Chan”), managing director of Tanrich Capital, to Mr Chan on about 7 March 2012.  In this regard, Mr Chan stated in paragraph 6 of his first witness statement dated 19 August 2015[9], in unqualified terms, that Mr Kwong introduced Mr A Chan to him on about 7 March 2012.  Mr Chan dealt with his acquaintance with Mr A Chan again in paragraph 53 of his supplemental witness statement dated 16 August 2016[10].  There, Mr Chan became uncertain about his recollection of when and how he became acquainted with Mr A Chan.  What he said in the later witness statement is that he faintly remembered that on about 7 March 2012, Mr Kwong introduced to him a friend who knew Mr A Chan.  That person should be Mr Michael Lam (林庭樂) (“Mr Lam”) who was mentioned in Mr Kwong’s statement but Mr Chan could not be sure.  And that person then introduced Mr A Chan to Mr Chan.

Parties’ respective case on the Fees Issues

19.It is Mr Kwong’s case that:

(1)  After Ms Cheung’s introduction on 26 September 2011, Mr Chan asked Mr Kwong (whom Mr Chan understood to have connections for fundraising) to help him prevent a complete loss of the market value of the Company shares held directly and indirectly by him by having the Company’s shares resumed trading on the Stock Exchange as soon as possible.

(2)  Thereafter, the 2 gentlemen met frequently to discuss the matters of the Capital Reorganisation and the Open Offer.  Mr Chan initially told Mr Kwong that he had HK$60 million which he could use to subscribe for the offer shares and that he needed to raise HK$40 million to underwrite all offer shares.  However, Mr Chan subsequently admitted to Mr Kwong that he did not actually have HK$60 million and that he would have to borrow the entire amount required to underwrite all offer shares.    

(3)  After listening to Mr Chan’s account of his then personal financial circumstance, Mr Kwong pointed out to Mr Chan that the resumption of trading of the Company’s shares would be exceedingly difficult.  One of the problems would be to raise such a substantial amount of fund in the midst of the then global adverse financial climate.  Even if a financier could be found, terms would be harsh.  Interest charged by investors in mainland China could be as high as over 40% per annum.

(4)  Mr Chan expressed understanding but persisted in his appeal to Mr Kwong for assistance.

(5)  Mr Kwong advised Mr Chan that he would charge the Referral fee for his services or proposals and that the Referral Fee would be equivalent to 6.5% of the amount of the advance(s) eventually made available to Mr Chan, which was the market rate.  Mr Chan agreed, in the presence of Ms Cheung, to pay Mr Kwong such reward upon the completion of the fundraising process. 

(6)  When Mr Kwong indicated that he would next prepare a referral service agreement (中介服務協議) for Mr Chan to sign, Mr Chan said that he carried on business on the basis of trust; that he would of course pay for services provided to him by others; that he was a reputable man being the chairman of the Company and a former member of the Chinese People’s Political Consultative Conference of the Guangdong Province; and that he had been a client of Ms Cheung for many years.  Mr Kwong believed Mr Chan and agreed to find a financier for Mr Chan in return of the Referral Fee on the strength of Mr Chan’s oral agreement.

(7)  After Mr Chan’s oral agreement, Mr Kwong approached various potential lenders to discuss with them the situation of the Company and the terms on which they might be prepared to make an advance to Mr Chan, but to no avail.

(8)  On 31 January 2012, Mr Chan invited Mr Kwong and Ms Cheung to meet at the Lobby Lounge of Hotel Nikko, Tsim Sha Tsui East, Kowloon for an update on the progress of Mr Kwong’s fundraising efforts, which was then lacking.  In the presence of Ms Cheung, Mr Chan orally offered Mr Kwong the Success Fee if Mr Kwong succeeded in introducing to him a lender to enable the resumption of trading of the shares of the Company before the end of the third stage of the delisting procedure and in obtaining more advantages terms and conditions than those generally offered in the market at the time such as a lower interest rate.

(9)  After such further oral agreement by Mr Chan, Mr Kwong put aside all other works and concentrated his time and efforts on finding a lender for Mr Chan.

(10)  Through the introduction of his friend, Mr Lam, Mr Kwong became acquainted with Mr A Chan.  Tanrich Capital (of which Mr A Chan was the managing director) represented Tanrich Securities.  Mr Kwong discussed with Mr A Chan the terms and conditions on which Tanrich Securities would be prepared to lend to Mr Chan.  At first, Tanrich Securities asked for monthly interest of 1.5%-3% (i.e. 30%-36% per annum).  After rounds of bargaining, an agreement was struck on interest at 20% per annum, and to be charged not from the date of the execution of the loan agreement, but from the date of drawdown.  The setting up fee to be levied by Tanrich Capital as arranger was reduced from 7.5% to 5%.  Tanrich Securities also agreed not to appoint its own representative(s) to the board of directors of the Company. 

(11)  Mr Chan was pleased upon hearing these favourable terms and asked to be introduced to the representative(s) of the lender.  Mr Kwong introduced Mr A Chan to Mr Chan on about 7 March 2012.

(12)  On 12 April 2012, Mr Kwong attended the signing of the Facility Letter.  The deal nearly went off when Mr Chan produced a cheque for HK$1 million post-dated 21 April 2012 in settlement of the earnest money required by Tanrich Securities.  It was through Mr Kwong’s efforts that Tanrich Securities was persuaded to accept the post-dated cheque.

(13)  Thereafter, Tanrich Capital instructed Patrick Mak &Tse (“PMT”), to draft the Loan Agreements.  During the process, Mr Chan, Tanrich Capital and PMT would copy the drafts to Mr Kwong for his reference and record (although I do not notice any input by Mr Kwong).

(14)  On 10 May 2012, Mr Kwong and Ms Cheung were invited to attend the signing of the Loan Agreements and the Placing Agreement in the conference room of Tanrich Capital.  Before he signed any of the documents, Mr Chan would request Mr Kwong to go through the same first.

20.Mr Kwong claims HK$8,475,000, being the sum of the Referral Fee and the Success Fee (“Fees” collectively) or such other appropriate sum that the court may think fit with interest and costs in HCA 2266/2012.

21.As for Mr Chan:

(1)  He denies having made any oral agreements with Mr Kwong for the payment of either of the Fees.

(2)  He stresses that for the purpose of procuring the resumption of trading of its shares, the Company had engaged solicitors (Robertsons), accountants (Lo and Kwong CPA Company Limited), independent financial advisors (Guangdong Securities Limited, Ample Capital Limited and Bridge Partners Capital Limited).  Mr Kwong was never a member of such professional team. 

(3)  Since knowing Mr Chan, Mr Kwong had repeated requested (a) to use the Office as his work place to hold meetings with Mr Kwong’s own clients from mainland China and (b) to hold himself out as Mr Chan’s assistant for Mr Kwong’s own business purposes[11].  Mr Chan acceded to such requests on an “ex gratia basis”.

(4)  Upon learning of the Capital Reorganisation, on 7 March 2012, Mr Kwong, “on an ex gratia basis”, introduced Mr A Chan to Mr Chan.  Mr Chan is adamant that he never sought any assistance from, or agreed to pay, Mr Kwong or Ms Cheung for such introduction.

(5)  However, Mr Kwong and Ms Cheung made various unilateral and groundless attempts to extort money from Mr Chan, all of which was refused by Mr Chan.

(6)  One such attempt was made in about April 2012 to demand Mr Chan and the Company to sign 2 “consultancy mandates” under which Mr Chan and the Company were to pay a “2.5% referral fee” to Amasse for the introduction of a licensed placing agent for the shares of the Company.  Mr Chan refused to sign either document.

(7)  Then, between 26 June and 12 November 2012, Mr Chan received from Mr Kwong and his solicitors, Ha & Ho (“HH”), letters demanding the payment by Mr Chan of, initially the Success Fee and later also the Referral Fee.

(8)  Mr Chan maintains that the debt collectors who trespassed into the Office on 12 and 13 July and 9 October 2012 were sent by Mr Kwong to extort the Fees.

(9)  Mr Chan alleges that the First, Second and Third Posters and the Letter were published or caused to be published by Mr Kwong to put pressure on Mr Chan to pay the Fees.

22.Mr Chan claims in HCA 2172/2012 and counterclaims in HCA 2266/2012 for, inter alia, a declaration that he is not in any way howsoever indebted to Mr Kwong.

The evidence

23.The 2 main protagonists, Mr Chan and Mr Kwong, gave oral evidence in support of their respective case.  To corroborate his case on the making of the alleged oral agreements by Mr Chan for the payment of the Fees, Mr Kwong also called Ms Cheung (who was allegedly present both times when Mr Chan promised to reward Mr Kwong) as his witness[12].

24.In assessing the witnesses’ evidence, in addition to observing their demeanours in the witness stand, I have tested their testimonies by asking whether they are inherently plausible/implausible and whether they are, in a material way, contradicted by other evidence that is undisputed or indisputable, if any.  See R v Ng Wing Ming [1995] 1 HKCLR 64, per Litton JA at 65, 67; Four Seas Fish Balls Co Ltd v Yeung Hung Sin, HCA 4159/2003, unreported, per Chung J at [20]; Profit Boat Development Ltd v Craft Projects (HK) Co Ltd, HCCT 122/2000, unreported, per Recorder R Yuen SC at [16]; and Lee Fu Wing v Yan Po Ting Paul [2009] 5 HKLRD 513, per Deputy High Court Judge Au (as he then was) at [53].

Referral Fee

25.Mr Chan and Mr Kwong clashed on many matters.  I have no wish to be distracted by differences that are no more than peripheral to the issues that really required determination.

26.Focusing on the existence or otherwise of Mr Chan’s alleged oral agreement for the payment of Referral Fee, I prefer Mr Chan’s case to that of Mr Kwong for the following reasons.

27.The Referral Fee (HK$7,475,000) is, on any view, a very substantial sum.  To make the point, Mr Chan produced the quotations and feenotes/invoices/bills of the Company’s said solicitors, accountants and independent financial advisors for their respective works in respect of, and contributions to, the resumption of trading of the Company’s shares on the Stock Exchange.  For ease of reference, Mr Chan also compiled a table summarising the said solicitors, accountants and independent financial advisors’ fees and charges which added up to only HK$4,790,000. 

28.Nevertheless, there is no mention whatsoever of the much more hefty lump sum Referral Fee in any of the contemporaneous papers placed before the court (Trial Bundles (2) to (7); pages 370 to 1870) until HH’s letter of demand dated 12 November 2012, just 9 days before Mr Chan issued the writ of summons in HCA 2172/2012.

29.I have in [19(6)] above set out how Mr Kwong and Ms Cheung explained (in surprisingly similar terms in their respective written witness statements) the absence of a written agreement for the payment of the Referral Fee.  To rebuke their suggestion, Mr Chan produced the written terms and conditions of each of the Company’s said professional advisors, including scope of work and the charging of fees and disbursements, countersigned by him on behalf of the Company, thereby signifying the Company’s acceptance of such terms and conditions.  In light of such indisputable circumstance, I cannot help but entertain reservation about Mr Kwong and Ms Cheung’s account of the reason why the alleged agreement for the payment of the Referral Fee was not contained in or evidenced by any written contract.

30.Even if Mr Chan were really unwilling to sign a bilateral agreement, I see nothing that would prevent Mr Kwong (who is supposed to be a savvy commercial man) from protecting his interest by putting Mr Chan’s alleged promise to pay the Referral Fee on record by say a letter, email, WhatsApp or SMS message etc from Mr Kwong to Mr Chan.

31.Further, there was peculiarly no demand for, or even reference to, the Referral Fee in HH’s first letter before action dated 12 July 2012, which dealt only with the Success Fee.  The first and only mention of the Referral Fee could not be found until HH’s second letter before action dated 12 November 2012.  The later letter tried to subtly explain the glaring exclusion of the Referral Fee in the earlier letter by saying that HH had received clearer instructions from their client Mr Kwong (「根據我所客戶的進一步清晰指示」).  I find such excuse unbelievable.  HH’s letter dated 12 July 2012 was said to have been copied to Mr Kwong (「抄送我所客戶」).  One would have expected Mr Kwong to read the copy letter and discover the “oversight” shortly after the letter was posted to Mr Chan.  One would have further expected Mr Kwong to immediately give instructions to HH to remedy the omission.  Yet, HH’s second letter before action was not sent until exactly 4 months later.  There was no justification or satisfactory justification to the court for the delay in the demand for the Referral Fee.

32.In any event, HH’s said excuse does not sit well with Mr Kwong’s own letter dated 26 June 2012 to Mr Chan, which preceded both of HH’s said letters.  Mr Kwong’s said letter is worthy of quotation in full: 

「致陳主席:

有關: 催收介紹股票抵押成功費(以下簡稱“成功費”)

恭喜陳主席及有關公司(以下簡稱“甲方”)持有的華多利集團有限公司(香港聯合交易所有限公司主板上市,股份編號: 1139) 於6月11日成功復牌!值得可喜可賀!

現根據我們雙方包括甲方及鄺宏博先生(以下簡稱“乙方”)本年初於香港日航酒店加啡店內的口頭承諾,甲方願意支付乙方港幣壹佰萬元作為介紹股票抵押的成功費用及乙方亦同意向甲方提供顧問服務(以下簡稱“顧問服務”)。茲根據甲方已獲得由乙方介紹的敦沛金融集團取得超過港幣一億元之股票貸款，主要作為華多利集團有限公司因復牌時甲方於包銷時所需的融資，甲方並願意把甲方於復牌前持有及復牌時獲香港聯合交易所聯(以下簡稱“聯交所”)批准因清洗轄免而增加的之股份作為質押品，敦沛金融集團亦已向甲方貸出超過一億元貸款，詳情可參閱有關的法定文件及聯交所的資料及相關網站。

再者，乙方向陳主席提供的顧問服務，並沒有收取分毫費用。

無償工作包括:-

(i) 多次出席貸款機構予陳主席之個人或單位有關貸款事宜的會議；及

(ii) 多次出席與介紹貸款機構無關的會議,機構包括中央結算，過戶處，專業人仕及其家人等，而出席地點更包括香港以外地區；及

(iii) 協助陳主席的私人及有關人仕的事務；及

(iv) 時間及交通費用的支出等…

於提供介紹服務時，甲方洽談的個人或單位已確知其有關公司及個人與乙方介紹的貸款集團達成貸款協定後，華多利集團有限公司成功復牌後，甲方都必須支付介紹費用予乙方。

與此同時， 甲方確認知悉並允許以下事項：

(i) 乙方將有權同時向貸款予甲方之個人或單位收取費用；及

(ii)乙方出任為甲方之介紹人，將不會對貸款協議專案中的條款、安排、上市規則及收購合併條例發佈任何意見。乙方歡迎陳主席聘請合適的財務及法律顧問為其發表相關意見。

(iii) 若乙方出任甲方的顧問，將不會對商談項目的可能性建議、條款、安排、上市規則及或收購合併條例等發表任何意見，乙方歡迎甲方聘請合適的財務及或法律顧問為其發表相關意見。

甲方同意把乙方或乙方的代表就有關股票貸款所提供的任何資料及建議保密。甲方亦承諾倘事先未取得我們的書面同意，乙方不會，亦不會容許任何第三者以任何形式向外界披露、公佈或引述此等資料、建議或乙方及乙方代表的名稱。

本文件的所有條款均應適用於香港特別行政區，並由香港特別行政區的法例監管並按其詮釋。任何因本委任書或根據本委任書進行的工作或執行的任務而直接產生或因此而間接產生的任何爭議均須服從香港特別行政區法院的全權裁決。乙方衷心希望甲方於收到此文件的五天之內向有關人仕支付費用，乙方仍保留權利向任何適當之司法管轄區域的法院起訴以追討甲方拖欠乙方的專業服務費用。」

33.It can be seen that like HH’s letter of 12 July 2012, Mr Kwong’s letter of 26 June 2012 only referred to and demanded for the Success Fee.  It made no mention of the Referral Fee at all.  While HH could (implicitly) blame it on Mr Kwong’s initial unclear instructions for leaving out the Referral Fee in their letter of 12 July 2012, the same excuse is not available to Mr Kwong.  Mr Kwong did not elucidate or satisfactorily elucidate why he ignored the Referral Fee in his own letter to Mr Chan. 

34.It is also noteworthy that Mr Kwong’s quantification of the Referral Fee at HK$7,475,000 in HH’s letter of 12 November 2012 was premised upon an advance of HK$115 million by Tanrich Capital, which is incorrect.  First, the lender under the Facility Letter was Tanrich Securities while the lenders under the Loan Agreements were Tanrich Securities and Mr Yip.  Second, the limit of the facility to be made available under the Facility Letter was HK$110.7 million; the aggregate limits of the loans to be advanced under the Loan Agreements was HK$116,190,000 and the total amount actually drawn down by Mr Chan and the Corporate Shareholders added up to HK$108,753,156.45.  It is not apparent where the figure of HK$115 million used by Mr Kwong came from.

35.For the reasons given in [27] to [34] above, I find that Mr Chan made no oral agreement to Mr Kwong to pay him the Referral Fee.   

36.I note a suggestion in Mr Kwong’s closing submission that Mr Chan had accepted the Referral Fee by conduct as a result of Mr Kwong’s alleged repeated mention of such fee without demur from Mr Chan.  First, this is not Mr Kwong’s pleaded case for the payment of the Referral Fee, which was based on Mr Chan’s express acceptance.  Second, I am not persuaded that Mr Kwong had advised Mr Chan that he would charge the Referral Fee for his service whether repeatedly or at all and Mr Chan just stood by while Mr Kwong did his work.  Again, I refer to Mr Kwong and HH’s said demand letters.

Success fee

37.The Success Fee was supposed to be offered on top of the Referral Fee to provide an extra incentive for Mr Kwong to find a financier to enable Mr Chan and the Corporate Shareholders to perform their obligations under the Undertakings and the Underwriting Agreement.  My finding that Mr Chan did not agree to pay even the Referral Fee naturally damages the credibility of Mr Kwong’s case on the Success Fee.

38.Moreover, it is Mr Kwong’s case that the Success Fee was also supposed to reward him for the obtainment of more favourable loan terms for Mr Chan.  This is contradicted by sub-paragragh (ii) of the third last paragraph of Mr Kwong’s letter of 26 June 2012 to Mr Chan, which requested for payment of the Success Fee.  I have cited the letter in full in [32] above.  It can be seen that the sub-paragraph that I have just identified reads: 「乙方 (i.e. Mr Kwong) 出任為甲方 (i.e. Mr Chan and the Corporate Shareholders) 之介紹人，將不會對貸款協議專案中的條款、安排、上市規則及收購合併條例發佈任何意見。乙方歡迎陳主席聘請合適的財務及法律顧問為其發表相關意見。」 (emphasis added)

39.On the balance of probabilities, I am not convinced that Mr Chan agreed to pay Mr Kwong the Success Fee.

40.In making my aforesaid rulings on the Fees, I have not overlooked the facts that Mr Kwong was copied in in the email chains regarding the drafting of the Facility Letter, the Loan Agreements and the Placing Agreements; that Mr Kwong attended the signing of the said 4 documents; that Mr Kwong was able to produce various papers generated by and/or connected with the process of resumption of trading of the Company’s shares on the Stock Exchange that were not in the public domain; and that Mr Kwong also adduced various handwritten and typewritten papers (some with Mr Chan’s handwriting) which Mr Kwong claims to have prepared about the Open Offer, the facility required by Mr Chan and the Corporate Shareholders; the fundraising progress; and the loan conditions etc. for presentation to, and discussion with, Mr Chan. These could, in my view, be explained by the third and fourth paragraphs of Mr Kwong’s letter dated 26 June 2012.  Again, see [32] above.  In Mr Kwong’s own words, apart from introducing the financier, he had volunteered to perform various consultancy works for Mr Chan without any reward or without expecting any reward.

41.My findings on the absence of the alleged oral agreements for the payment of the Fees makes it unnecessary for me to consider the question set out in [1(3)] above.

42.Lastly, as stated in [20] above, in HCA 2266/2012, Mr Kwong claims in the alternative for any other sum that the court thinks fit. I assume that Mr Kwong is thereby seeking an award on a quantum meruit basis, should his claim for the Fees based on express agreements by Mr Chan fail.  Insofar as it may be material to the present context, a quantum meruit claim may be available, for example, where one person had expressly or impliedly requested another to carry out a service without specifying remuneration, but where it is implied that a payment will be made of as much as the service is worth.  The difficulties are that the case and evidence presented by Mr Kwong is wholly inconsistent with such alternative claim.  Further, practically no attention was given to this alternative.  Other than Mr Kwong’s bare assertions and very general description, it is not clear to me what Mr Kwong had precisely done for Mr Chan, e.g. the time that Mr Kwong had spent; the expenses that he had incurred; the opportunity costs to Mr Kwong for spending time and efforts to serve Mr Chan’s course; what Mr Kwong’s time and efforts was worth etc.

43.Mr Kwong’s claim for the Fees in HCA 2266/2012 should be dismissed.

ASSAULT ISSUES

44.According to paragraphs 14, 15, 30 and 31 of Mr Chan’s first witness statement, on about 12 to 13 July 2012, 2 strange men who claimed to represent a Mr Kwong to chase for a debt entered the Office without his consent and asked to see him.  It occurred to Mr Chan that they were talking about the Success Fee previously demanded by Mr Kwong.  Mr Chan did not argue with them.  He just asked them to leave.  Before their departure, the men threatened Mr Chan that if he refused to pay the debt allegedly owed by him, they would use force and cause physical injury to Mr Chan.  As those men were more strongly built than Mr Chan and spoke in a menacing manner, Mr Chan became afraid they would really hurt him.  Such fear lingered even long after they had left.

45.The 2 men who previously trespassed into the Office re-appeared on about 9 October 2012 and again entered the Office without Mr Chan’s consent.  This time, they handed the note quoted in [1(5)] above to Mr Chan Jr who later passed the same to Mr Chan.  Mr Chan became worried when those 2 men or other persons sent by Mr Kwong would harm him.  Such concern put Mr Chan on edge.  He lost appetite and could not sleep well.  He was constantly in a state of fright.

46.Mr Chan clarified, and elaborated on, these visits in paragraphs 80, 81 and 92 of his supplemental witness.  On 12 July 2012, at about 11:30 am, 2 strange men (“A” and “B”) arrived at the Office.  A asked to see Mr Chan, claiming that「姓鄺嘅搵陳生」.  The then account staff of the Company, Ms Ada Tang (“Ms Tang”), relayed the message to Mr Chan.  After ascertaining the purpose of the men’s visit, Mr Chan deduced that it was Mr Kwong’s blackmailing tactic.  He therefore instructed Ms Tang to tell the men that he was in a meeting and that he did not know anyone surnamed Kwong.  Ms Tang so told A.  The men then left.

47.Then, on 13 July 2012, at about 3 pm, the same thing happened again.  This time, 2 strange men (A from the previous day and “C”) came to the Office, demanding to see Mr Chan.  Ms Tang told them that Mr Chan was not in the Office.  A said that enough face had been given at the shareholders’ meeting on 11 July 2012.  If Mr Chan did not return call (62146895), further steps would be taken.  This was taken to imply that someone had originally intended to sabotage the Company’s shareholders’ meeting.  Ms Tang asked them why.  A replied that「同陳生做咗嘢唔俾錢」.

48.On 9 October 2012, two of the strange men who had come before attended the Office again.  They claimed to be chasing for a debt for a Mr Kwong.  Mr Chan was not at the Office at the time.  It was Mr Chan Jr who dealt with the 2 men.  He took them into the conference room.  As Mr Chan was not present, they left the note mentioned in [1(5)] above.  They stayed for about 5 minutes and then left.

49.Mr Chan further added in paragraphs 84 and 89 of his supplemental witness statement that on 26 July 2012, at about 6 pm, he received a call from an unknown number.  The caller claimed to have been sent by a person surnamed Kwong to collect the balance payment (「收尾數」) and left the contact number 62146895.  On 31 July 2012, at about 7:34 pm, Mr Chan received another call from an unknown number.  The caller again held himself out to be acting for a person surnamed Kwong and left the contact number 62146895. However, Mr Chan did not plead either of these telephone calls.

50.HCA Mr Chan claims in HCA 2172/2012 and counterclaims in HCA 2266/2012 damages, including aggravated and exemplary damages, for the tort of assault.  It is his case that the said “debt collectors” on 12 and 13 July and 9 October 2012 were sent by Mr Kwong to extort from him payment of the Fees.  Mr Chan also prays for a permanent injunction restraining Mr Kwong from howsoever assaulting him by any means.

51.Mr Kwong denies such charge.

52.It has not escaped my attention that Mr Chan did not mention the incidents on 12 and 13 July and 9 October 2012 in his said police statement after he made a complaint to the police.  Nor did he call Ms Tang to give evidence.  However, he did adduce, by way of hearsay, the written notes of the events on 12 and 13 July 2012 kept by Ms Tang.  Ms Tang’s said notes recorded the claims by the 3 “visitors” that they were acting for a person surnamed Kwong.  Further, Mr Chan Jr had caused his conversations with the 2 “visitors” on 9 October 2012 at the reception of the Office, the entrance to the conference room and inside the conference room to be recorded.  Mr Chan has disclosed both the audio-recording and a transcript of such recording.  This time, the men mentioned the full name of Mr Kwong in Chinese.  In light of such evidence, I find, on the balance of probabilities that the “debt collectors” who visited the Office on 12 and 13 July and 9 October 2012 were sent by Mr Kwong.

53.The question arising is whether Mr Kwong thereby committed the tort of assault against Mr Chan.

54.An assault is an act which causes another person to apprehend the infliction of immediate, unlawful, force on his person: Collins v Wilcock [1984] 1 WLR 1172 at 1178.  Therefore, a mere gesture, no matter how menacing, is not actionable if it appears at the time that there is no intention to put the menace into immediate effect.  For example, in Tubervell v Savage (1669) 1 Mod Rep 3, the defendant put his hand to his sword and said: “If it were not assize time I would not take such language from you.”  It was held to be no assault.  Similarly, mere threatening words do not constitute an assault (Mead’s Case (1823) 1 Lew CC 184).  I take the view that the 3 incidents at the Office relied upon by Mr Chan fall within the “mere threatening words” category.  It is obvious from Mr Chan and Mr Chan Jr’s descriptions of the occasions that the “debt collectors” exhibited no intention to inflict immediate harm on Mr Chan.  To the contrary, the message the “debt collectors” invariably left was that something unpleasant might happen to Mr Chan if and after he refused to settle the debt he owed to their principal.

55.Mr Chan’s claim in HCA 2172/2012 and counterclaim in HCA 2226/2012 in respect of assault fail.

DEFAMATION ISSUES

56.According to paragraphs 82, 86, 88 and 90 of Mr Chan’s supplemental witness statement:

(1)  On 19 July 2012, at about 3 pm, the Company’s interior decoration contractor, Mr Yip Chi Yung (葉志容)[13], found at the Office Lobby and inside the goods lift of New East Ocean Centre the First Poster.  Mr Yip immediately informed Mr Chan of his discovery by telephone.  He also tore down the First Poster and passed it to Ms Tang at about 5 pm on 30 July 2012.

(2)  On 28 August 2012, the watchman of the building where Mr Chan lives found the Second Poster on the ground floor of the building[14].  The management office then informed Mr Chan.

(3)  On 30 July 2012, at 6:30 pm, the Third Poster appeared at the Office Lobby[15]. Further, the building watchman found a pile of such poster near the stone column at the main building entrance and passed them to Ms Tang.

(4)  On 7 August 2012, the Company’s company secretary Ms Leung received at home the Letter, which was addressed to Ms Lo So Wa Lucy, Mr Ip Ka Keung Patrick, Dr Lam King Hang, Mr Cheung Man Fu, Ms Leung Wai Kei, the board of directors and senior management of the Company.

57.It is Mr Chan’s case that the publication of the First to Third Posters and the Letter had gravely injured his business/reputation and had exposed him to public hatred, contempt and ridicule and that the First to Third Posters and the Letter were calculated to disparage Mr Chan in the business of the Company.

58.Mr Chan claims in HCA 2172/2012 and counterclaims in HCA 2266/2012 damages, including aggravated and exemplary damages, for libel.  Mr Chan invites the court to find Mr Kwong responsible for the publication of the First to Third Posters and the Letter and that the First to Third Posters and the Letter were published intentionally with a view to obtaining profits.  Mr Chan also prays for a permanent injunction restraining Mr Kwong from howsoever defaming him by any means.

59.Mr Kwong denies that he had anything to do with the First to Third Posters and the Letter.

60.As far as I can see, the bases upon which Mr Chan attributes the publication of the First to Third Posters and the Letter to Mr Kwong is that he was at the material times only in dispute with Mr Kwong and that such publication was very close in time to the incidents involving the “debt collectors” which could be traced back to Mr Kwong.

61.The burden of proving the identity of the publisher is on Mr Chan and the standard of proof is on the balance of probabilities.

62.I am not satisfied that Mr Chan has discharged the burden on him on the balance of probabilities.  Quite apart from the insufficiency of the matters stated in [60] above, it was established in Mr Chan’s cross-examination that the photograph on the 3 posters was reproduced from Mr Chan’s Hong Kong Identity Card.  Mr Chan confirmed that he had never given his HKID card to Mr Kwong.

63.Mr Chan’s claim in HCA 2172/2012 and counterclaim in HCA 2266/2012 for libel also fail.

DISPOSITION

64.In the premises, I allow Mr Chan’s claim in HCA 2172/2012 to the extent that it is declared that Mr Chan is not indebted to Mr Kwong.   The claim and counterclaim in HCA 2266/2012 are dismissed.

65.I also make an order nisi that Mr Kwong should pay the costs of the Fees Issues in both HCA 2172 and 2266/2012 and that Mr Chan should bear the costs of the Assault Issues and the Defamation Issues in both actions, to be taxed on a party and party basis. if not agreed.  I believe an equitable apportionment should be 75% (for the Fees Issues) and 25% (for the Assault Issues and the Defamation Issues).

Mr Man Hon Chiu, instructed by Peter Cheung & Co, for the plaintiff in HCA 2172/2012 and the defendant in HCA 2266/2012

Mr Peter K T Chung, instructed by Ha and Ho, for the defendant in HCA 2172/2012 and the plaintiff in HCA 2266/2012