Total Express International (HK) Ltd v. Zhang Junhua

CACV 461/2021

[2023] HKCA 11

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 461 OF 2021

(ON APPEAL FROM HCMP NO 513 OF 2016)

________________________

________________________

_____________________

Before:  Hon Cheung, Au and Chow JJA in Court

Date of Hearing:  2 December 2022

Date of Judgment:  2 December 2022

Date of Reasons for Judgment:  6 January 2023

________________________

REASONS FOR JUDGMENT

________________________

Hon Chow JA (giving the Reasons for Judgment of the Court):

INTRODUCTION

1.There are before the Court (i) the Defendant’s appeal (“the Appeal”) by a notice of appeal dated 4 October 2021 (“the Notice of Appeal”) against the judgment of Ng J dated 15 September 2021 ordering the Defendant to pay the principal amount of an alleged loan of HK$1.35 million together with interest thereon to the Plaintiff, and (ii) the Defendant’s application (“the New Evidence Application”) by a summons dated 17 October 2022 for leave to admit new evidence in support of the Appeal.

2.At the hearing on 2 December 2022, we allowed the New Evidence Application, and at the conclusion of the hearing, we allowed the Appeal, with reasons to be given later.  These are our reasons for allowing the New Evidence Application and the Appeal.

BACKGROUND FACTS

(i)      The parties

3.The Plaintiff is a licensed money lender under the Money Lenders Ordinance, Cap 163 (“the MLO”).

4.The Defendant is the registered owner of a property known as Flat A, 25/F, Homing Terrace (浩明雅苑), No 151, Kowloon City Road, Kowloon, Hong Kong (“the Property”).

5.The Property was subject to a First Legal Charge dated 17 July 2015 (“OCBC Charge”) with OCBC Wing Hang Credit Limited (“OCBC”) to secure a loan of HK$3.4 million from OCBC to the Defendant.  The interest rate charged by OCBC was 2% pa below the bank’s fluctuating Prime Lending Rate which was 5.25% at the time.

(ii)     The Loan

6.On 1 December 2015, the Defendant attended the Plaintiff’s office and signed, inter alia, the following documents for an alleged loan of HK$1.35 million (“the Loan”):

(1)  an application form in Chinese;

(2)  a loan agreement in Chinese (“the Loan Agreement”);

(3)  a form of summary of provisions of the MLO in Chinese and English; and

(4)  a memorandum (“the Memorandum”) in Chinese setting out the principal commercial terms of the Loan, including the amount of the Loan (HK$1.35 million), the interest rate (3% per calendar month), the interest payment dates (12 monthly instalments commencing on 1 January 2016), and the term of the Loan (12 months).

7.Afterwards, the Defendant went to the office of the Plaintiff’s solicitors, Messrs Pauline Wong & Co (“Pauline Wong”), and executed, inter alia, a second legal charge dated 1 December 2015 (“the Second Legal Charge”) over the Property in favour of the Plaintiff as security for the Loan.

8.After signing the above, Pauline Wong gave the Defendant a cheque in the sum of HK$1.35 million (“the Cheque”) drawn on its account with Bank of China (Hong Kong) Limited (“BOC”).  The Cheque was made payable to the Defendant.  The Defendant acknowledged receipt of it by signing on a receipt in Chinese.

9.The Defendant deposited the Cheque into her own bank account with BOC (“D’s Account”) on 1 December 2015.  The Defendant withdrew HK$1 million in cash from D’s Account on the same day.  She further withdrew HK$350,000 in cash from D’s Account on 2 December 2015.

(iii)    Default and proceedings

10.It is not in dispute that the Defendant did not make any payment of monthly interest instalment to the Plaintiff.

11.On 4 March 2016, the Plaintiff commenced the present action against the Defendant for delivery of vacant possession of the Property, and recovery of the principal amount of the Loan together with contractual interest thereon.

(iv)    The Defence

12.Two grounds of defence were raised by the Defendant, namely:

(1)  “collusion” between the Plaintiff and an intermediary known as Ngai Fung International Enterprise Limited (藝鋒國際企業有限公司) (“Ngai Fung”), in contravention of s 27(3) of the MLO; and

(2)  excessive interest rate (at 4,433% pa[1]), in contravention s 24 of the MLO.

13.The Defendant’s case was set out by the Judge at §§19-34 of the Judge’s written judgment dated 15 September 2021 (“the Judgment”).  The following brief summary of the Defendant’s case is extracted from the Judgment:

(1)  The Defendant was a widow with a daughter living in rented property whilst the Property was rented out.  The Defendant relied on the savings of her late husband and rental income from the Property to cover their living expenses. In 2015, the Defendant borrowed HK$3.4 million from OCBC which was secured by the OCBC Charge.

(2)  The rental income from the Property was only HK$15,800 per month while the monthly mortgage payment to OCBC was about HK$15,000.  The Defendant was eager to find a way to reduce the monthly payment.

(3)  On 6 November 2015, the Defendant received a call from a man (“Male A”) who claimed to work in a bank.  In the course of the telephone conversion, the Defendant told Male A that the Property was subject to the OCBC Charge with interest at around 3.1% pa and monthly payment of HK$15,000.  Male A told the Defendant that he could arrange for her a mortgage loan at a lower interest rate of around 1% to 2% pa.

(4)  A meeting was arranged between the Defendant and Male A at Ngai Fung’s office at China Hong Kong City, Canton Road, Kowloon, on 20 November 2015.  However, instead of Male A, the Defendant was received by a Mr Wong (“Mr Wong”), who gave her a business card of Ngai Fung.  Mr Wong represented to the Defendant that Ngai Fung had a cooperative relationship with China Construction Bank (“CCB”), and could arrange for her a mortgage loan of HK$3.4 million with interest at 1% pa for a term of 30 years.  The monthly instalment would be around HK$10,940.  However, according to Mr Wong, in order to secure the CCB loan, the Defendant had to place a sum of money with a law firm recommended by Ngai Fung in order to show CCB that the Defendant was in a healthy financial condition.  Mr Wong assured the Defendant that even if the application was unsuccessful, she would not suffer any loss.  Mr Wong further assured the Defendant that the CCB loan would be arranged before 1 January 2016.

(5)  The Defendant agreed to proceed with the loan arrangement as proposed by Mr Wong.

(6)  On 30 November 2015, Mr Wong called the Defendant and said he had found a law firm to arrange the security deposit required to apply for the CCB loan[2].  However, Mr Wong did not mention the name of the law firm or the amount of the security deposit.  Subsequently on the same day, a male person (“Wong’s colleague”) called the Defendant.  He introduced himself as a colleague of Mr Wong and instructed her to send him a copy of her PRC ID card by WhatsApp to his phone number 6448 7111[3], which the Defendant did.  On the same day, the Defendant also received a call from another colleague of Mr Wong called “中保” (“Chong Po”), who asked her to meet him in Mongkok on 1 December 2015 at 2 pm to take her to the law firm mentioned by Mr Wong.

(7)  On 1 December 2015, the Defendant met Chong Po as arranged and was taken by him to an office in Mongkok.  There, she was received by a male staff of the Plaintiff whose name she could not remember (“P’s staff”)[4].  P’s staff asked her to fill in a form with her personal particulars.  She was later presented with the Loan Agreement and other related documents and was asked to sign them.  This was the first time the Defendant realized she was borrowing HK$1.35 million from the Plaintiff with a monthly instalment of HK$40,500.

(8)  The Defendant was very surprised because she had been told by Mr Wong the day before that she would be taken to another law firm rather than to a finance company.  She told P’s staff that her purpose was to obtain a low interest mortgage loan from CCB and understood that she had to place a security deposit with a designated law firm.  P’s staff did not respond and simply asked the Defendant whether she wanted to borrow or not.  In her 2^nd supplemental statement, the Defendant added that P’s staff also said if she wanted to apply for a low interest mortgage loan, she should follow the instructions of Ngai Fung.

(9)  The Defendant felt uncomfortable and called Mr Wong.  Mr Wong told the Defendant that it would not cause her any problem by signing the Loan Agreement and related documents.  Mr Wong also told the Defendant that Ngai Fung had already explained to the Plaintiff that the HK$1.35 million was a security deposit to be placed in a law firm pending the process of the CCB loan and the Plaintiff was lending her on that basis.  Mr Wong said there was no need for her to repay the Plaintiff since upon CCB’s approval of the loan, Ngai Fung would instruct the law firm to transfer the HK$1.35 million to CCB who would repay the Plaintiff.  If CCB did not approve the loan, Ngai Fung would instruct the law firm to refund the $1.35 million to the Plaintiff.  Believing what she was told, the Defendant signed the Loan Agreement and other documents.

(10)  After the meeting at the Plaintiff’s office, Chong Po took the Defendant to the office of Pauline Wong.  She was received by Mr Cheung Man Yuen (“Mr Cheung”), legal clerk of Pauline Wong.  Mr Cheung presented the Defendant with two English documents for her to sign, namely, a mortgage document and a power of attorney.  After signing the documents, the Defendant was given the Cheque.  Mr Cheung then informed the Defendant that if she could not repay the Loan, the Plaintiff had the right to take possession of the Property.  Since the Defendant had been told by Mr Wong that she did not have to repay the Plaintiff even if the application for the CCB loan was unsuccessful, the Defendant thought there would be no problem.

(11)  Thereafter, Chong Po told the Defendant to cash the Cheque with BOC and give the whole amount to Ngai Fung.  On that day, the Defendant withdrew HK$1 million from D’s account.  On the following day, she withdrew the remaining HK$350,000 from D’s account.  On both occasions, after the Defendant had obtained the cash, she went to Ngai Fung’s office and handed over the same to Mr Wong as instructed.  In return, the Defendant was given two English documents which she thought were receipts but were in fact invoices for HK$1 million and HK$350,000 respectively.  The invoices also described the 2 sums as Ngai Fung’s “Consultant Fee”.

(12)  On 3 December 2015, the Defendant contacted Mr Wong to enquire about the progress of the CCB mortgage.  Mr Wong asked her not to worry and to give him her bank account number.  On the next day, the Defendant received HK$40,500 in D’s account from Mr Wong.

(13)  On 10 December 2015, the Defendant discovered from two staff of New Miles Mortgage Consultant Limited that the sums of HK$1,000,000 and HK$350,000 were described as “Consultant Fee” rather than “Security Deposit” on the two documents she received from Mr Wong and that she had been cheated.  The Defendant then reported the matter to the Mongkok Police Station on 11 December 2015.  She was instructed by the police to contact Mr Wong.  Soon after, Mr Wong stopped all communications with her.

14.The Plaintiff’s answer to the charge of collusion is that it is not in any way related to Ngai Fung, Mr Wong or Chong Po.  Even if the Defendant can prove that she has been deceived by these third parties, that has nothing to do with the Plaintiff.  The Plaintiff also denies charging excessive interest rate as alleged by the Defendant.

THE JUDGMENT

15.The Plaintiff’s action against the Defendant was tried by the Judge in December 2020.  At the trial, the Plaintiff called Mr Cheung and a director (Chan Ka Chun) to give evidence.  The Defendant gave evidence in support of her defence.

16.In the Judgment, the Judge found the Defendant not to be a reliable witness, and considered her subjective belief that the Plaintiff was acting in collusion with Ngai Fung to be “speculative”, and her narrative of the events to be “convoluted and highly improbable”.  The Judge’s reasons for rejecting the Defendant’s evidence are set out at §§57 to 64 of the Judgment.  In summary, the Judge took the view that:

(1)  The Defendant had previous experience in obtaining finance from various banks in 2013 and 2015, and it was rather incredible that the Defendant would have so easily accepted what Male A said on the phone when he cold called her on 6 November 2015.

(2)  It was also incredible that the Defendant would have accepted Mr Wong’s story that in order to secure the CCB loan, she had to place a security deposit with a law firm in order to show CCB that she was in a healthy financial condition.

(3)  By 1 December 2015 after Chong Po had taken her to the Plaintiff’s office, she was presented with inter alia the Loan Agreement and the Memorandum from which she realized she was borrowing HK$1.35 million from the Plaintiff with a 12-month repayment schedule.  She was also told by Mr Wong on the phone that the HK$1.35 million was the security deposit to be placed in a law firm (the identity of which she still did not know).  It would have been perfectly obvious to the Defendant that the Plaintiff would look to her for payment.  It was contrary to common sense for the Defendant to take Mr Wong’s word for it and signed the Loan Agreement believing that she would not incur any liability for doing so.

(4)  After the Defendant had withdrawn HK$1.35 million in cash from BOC, she was not told to deposit it with any designated law firm, as Mr Wong had kept telling her.  Instead, she took it to Ngai Fung’s office and handed over all of it to Mr Wong in return for 2 sheets of paper in English which she did not even understand.  It was not credible that the Defendant would hand over such a large sum of money to a person whom she had only met 10 days ago, and after having been told by Mr Cheung that if she could not repay the Loan, the Plaintiff had the right to take possession of the Property.  The Judge remarked that “[t]he stake of losing her Property is just too big, the advantage of reducing her monthly repayment by HK$4,000 is just too small and the risk of being cheated by a stranger is just too high”[5].

17.In all, the Judge concluded that the Defendant’s testimony on what actually happened was so unbelievable that he must reject it totally.  The Judge also held that, since the Defendant’s case of collusion between the Plaintiff and Mr Wong/Ngai Fung depended largely if not completely on her own testimony, it must be rejected for the same reason.

18.The Judge further rejected the acts of collusion relied upon by the Defendant, including those pleaded at §§18, 21 and 34 the Defendant’s Re-Re-Amended Defence, for the reasons given at §§67-76 of the Judgment.  It is not necessary to set out the detailed reasons of the Judge here, save to mention that they were also based primarily on the Judge’s view of the credibility of the Defendant.

THE APPEAL

19.The Defendant was not satisfied with the Judgment, and lodged an appeal against the Judgment on 4 October 2021.  In the Defendant’s Notice of Appeal, the Defendant raises 3 grounds of appeal against the Judgment:

(1)  She did tell P’s staff that she attended the Plaintiff’s office not to borrow money, but to proceed with a low interest mortgage loan, and P’s staff did tell her to act in accordance with the instructions of the intermediary (ie Ngai Fung).

(2)  She actually did not know the Plaintiff, and the Plaintiff obtained the information concerning the Property and her mobile telephone number from the intermediary.  Further, the Plaintiff’s registered address was in Hunghom, but she signed the Loan Agreement and other documents in a “secret office” at Sincere House (先達廣場) in Mongkok, contrary to s 7(1)(b) of the MLO.

(3)  She signed the Loan Agreement at a time when she was suffering from depressive illness (抑鬱症).

THE NEW EVIDENCE APPLICATION

20.On 19 October 2022, the Defendant made the New Evidence Application.  The proposed new evidence consists of the following:

(1)  the “Reasons for Sentence” by H H Judge Stanley Chan dated 12 November 2021 in DCCC 581/2019 (“the Criminal Case”) in respect of the 2^nd defendant (Lau Ying-fai, “Mr Lau”), the 3^rd defendant (Tang Hoi-yuen, “Mr Tang”), and the 5^th and 6^th defendants;

(2)  the “Reasons for Verdict” by H H Judge Stanley Chan dated 31 December 2021 in respect of the 1^st, 4^th and 7^th defendants in the Criminal Case;

(3)  the “Reasons for Sentence” by H H Judge Stanley Chan dated 31 January 2022 in respect of the 1^st, 4^th and 7^th defendants in the Criminal Case.

21.Mr Lau was a director of Ngai Fung, while Mr Tang was an officer or representative of Ngai Fung.  They were charged with the offence of conspiracy to defraud[6] the customers, including the Defendant, of Ngai Fung in the Criminal Case.  They pleaded guilty to the offence, and were sentenced to terms of imprisonment of 2 years and 33 months respectively for that offence.

22.In the “Reasons for Sentence” dated on 12 November 2021, H H Judge Stanley Chan recorded the admissions made by Mr Lau and Mr Tang, the relevant parts of which read as follows:

“控罪二：第二及第三被告串謀詐騙罪 (藝鋒)

(第二和第三被告承認第1段和第2段)

(1) 藝鋒國際企業有限公司 (藝鋒) 於2015年5月8日在香港成立。公司註冊處的紀錄顯示，在重要時刻，第二被告是藝鋒的董事。

(2) 於2015年11月12日至12月29日期間，第二及第三被告和被稱為Judy Wong、Paggy Yuen，以及其他身分不明的人士共同串謀詐騙藝鋒的客戶 (受害人)，向他們聲稱藝鋒是一間金融中介公司，專門協助客戶向本地銀行獲取低息貸款或貸款額度，但前提是該客戶同意向藝鋒提供一筆可觀的款項作為押金或抵押或資產證明。

(第三被告承認第3段至第7段)

(3) 經過促銷電話推薦，控方第四證人 (張俊華)[7]、控方第五證人 (陳世斌) 和控方第六證人 (孫明卿) 在藝鋒的辦事處各自與第二被告及其他兩名犯案者見面。第二被告和其他犯案者各自向控方第四證人至控方第六證人作出虛假陳述，稱藝鋒會協助他們從本地註冊銀行機構取得低息按揭貸款，條件是控方第四證人至控方第六證人需向藝鋒支付多筆款項，用作「按金」、「保證金」、「資產證明」或「結清客戶過往債項」。

(4) 控方第四證人至控方第六證人各自相信第二被告和其他犯案者。於是各自向第二被告及其他犯案者支付了港幣$1,350,000元、$1,700,000元和$1,100,000元。

(5) 但當這些款項支付後，他們不能聯絡第二被告及其他犯案者，而藝鋒亦停了業。…

(6) 控方第四證人至控方第六證人損失的所有款項達到港幣$4,150,000元。

(7) 第三被告被認出是控方第五證人和控方第六證人的交易中藝鋒公司的負責人或公司代表。第三被告與控方第五證人及控方第六證人達成協議，其中包括藝鋒收取控方第五證人及控方第六證人的付款作為「按金」及「資產證明」的虛假陳述。

(第二被告承認第8段至第14段)

(8) 2015年11月9日，控方第四證人 (張俊華) 接到一個不知名的人的電話，聲稱可以幫她以低利率獲得中國建設銀行的按揭貸款，以取代她現有的華僑永亨銀行的按揭貸款。控方第四證人信以為真，在2015年11月20日到位於廣東道中港城的藝鋒寫字樓作進一步商談。

(9) 當抵達藝鋒後，由第二被告負責招呼控方第四證人。第二被告介紹自己為王先生。經過討論後，控方第四證人接受第二被告的建議，即是她將向一間財務公司借得一筆港幣$1,350,000元的新貸款，交給藝鋒作為「保證金」，但會交給一間律師行，由律師樓作擔保人，用作安排向中國建設銀行申請按揭貸款之用。

(10) 2015年12月1日，控方第四證人在另一名藝鋒的職員帶領下，來到一間位於旺角的全通國際 (香港) 有限公司的財務公司寫字樓，簽署了借貸合約。然後，控方第四證人被帶到一間位於旺角朗豪坊的王婕妤律師事務所，收到一張律師樓開出的港幣$1,350,000元支票，為財務公司的貸款。控方第四證人然後跟從第二被告的指示，將支票存入她自己的銀行戶口。

(11) 2015年12月1日至2日，控方第四證人亦兩次提取了$1,350,000元的現金，並分兩次帶總額港幣$1,350,000元的現金來到藝鋒，交給第二被告。第二被告給予控方第四證人兩張英文發票。

(12) 從那時起，控方第四證人再也聯絡不到第二被告。藝鋒亦停止營運。控方第四證人報案。藝鋒並沒有如所承諾那樣幫控方第四證人向中國建設銀行申請按揭貸款，或將該$1,350,000元交給任何律師樓。中國建設銀行與藝鋒或控方第四證人並沒有任何關係，也沒有他們任何戶口，也不會要求按揭申請人放一筆保證金在律師樓或要求律師作擔保人。控方第四證人也沒有收到該$1,350,000元的任何退款。結果，控方第四證人損失港幣$1,350,000元。

(13) 2017年6月23日，控方第四證人在一項認人手續中認出第二被告為向她收取$1,350,000元現金的王先生。

(14) 第二被告於2016年3月28日被逮捕。於警誡下，第二被告承認他是被一名「阿奇」的人招攬為藝鋒的公司董事，月薪為港幣$4,000元。”

DISCUSSION

(i)      The Application

23.We shall first deal with the New Evidence Application because, as will be seen below, it has a substantial bearing on the outcome of the Appeal.

24.To justify the admission of new evidence in an appeal, generally speaking the three conditions in Ladd v Marshall have to be satisfied, namely:

(1)  the proposed new evidence could not have been obtained at the trial with reasonable diligence (“Condition 1”);

(2)  the proposed new evidence must be such that, if given, would probably have an important influence on the result of the case, though it need not be decisive (“Condition 2”); and

(3)  the proposed new evidence is apparently credible though it need not be incontrovertible (“Condition 3”).

25.In respect of Condition 1, the “Reasons for Sentence”/“Reasons for Verdict” were given by H H Judge Stanley Chan after the Judgment was handed down by the Judge on 15 September 2021.  Ms Carol Wong (for the Plaintiff) does not dispute that Condition 1 is satisfied in the present case.

26.In respect of Condition 2, it is clear that the facts admitted by Mr Lau and Mr Tang substantially corroborated or supported the version of events given by the Defendant at the trial of this action.  On the other hand, the Judge rejected the Defendant’s case mainly because he considered her version of events to be inherently improbable or incredible.  In our view, the facts as admitted by Mr Lau and Mr Tang, had they been placed before the Judge, would probably have an important influence on the Judge’s assessment of the Defendant’s evidence and hence the result of the present case, even though they might not be decisive.

27.In respect of Condition 3, Mr Lau and Mr Tang were represented by their respective counsel and solicitors at the trial.  The admissions made by them were against their own interests.  The admissions should be regarded as apparently credible even though they may not be incontrovertible.

28.Ms Wong objects to the proposed admission of the new evidence, on the ground that Conditions 2 and 3 are not satisfied for the following reasons:

(1)  The facts as admitted by Mr Lau did not mention any relationship between him and the Plaintiff.

(2)  The facts were admitted without going through the process of a trial.

(3)  The name “Lau Ying-fai” has never appeared in the present case.

29.Our views on Ms Wong’s objection to the proposed admission of the new evidence are as follows:

(1)  In respect of (1), as admitted by Mr Lau, the Defendant was taken by a staff of Ngai Fung to the Plaintiff’s office on 1 December 2015 to sign the Loan Agreement, and then to the office of the Plaintiff’s solicitors (Pauline Wong) in Mongkok where she received a cheque for HK$1,350,000 (see §22(10) above).  These facts are consistent with the Defendant’s evidence given at the trial.  In our view, it may reasonably be inferred from these facts that Ngai Fung and the Plaintiff were acting together, or in concert, in relation to the “Loan” advanced to the Defendant.

(2)  In respect of (2), the fact that the admissions by Mr Lau/Mr Tang were not facts found by a court through the trial process goes only to the weight that may be given to proposed new evidence. For the reason mentioned at §27 above, we consider the admission by Mr Lau/Mr Tang to be apparently credible.

(3)  In respect of (3), as admitted by Mr Lau, he was identified by the Defendant as “Mr Wong” of Ngai Fung who received HK$1.35 million from her (see §22(13) above).  It is also clear from the narrative of events given by the Defendants and the admissions by Mr Lau/Mr Tang that “Lau Ying-fai” was “Mr Wong” of Ngai Fung as described by the Defendant.

30.In all, we consider that all three conditions for the admission of the evidence are satisfied, and the proposed new evidence should be admitted for the purpose of the Appeal.

(ii)     The Appeal

31.The test for “collusion” under s 27(3) of the MLO has been set out at §§52 to 54 of the Judgment.  For the purpose of the present appeal, it is not necessary for us to re-visit the relevant principles in relation to “collusion” because, if the Defendant’s version of events is accepted, there must at least be a prima facie case of collusion between the Plaintiff and Ngai Fung.

32.As earlier mentioned, the Judge rejected the Defendant’s case mainly because he considered her version of events to be inherently improbable or incredible.  In our view, the new evidence casts a completely different outlook on the Defendant’s case, and would likely to have a substantial impact on the Judge’s assessment of the Defendant’s evidence had it been available to him at the trial.

33.However, the new evidence is not incontrovertible.  The weight that should properly be given to the new evidence is a matter of assessment in the light of all relevant circumstances in the case, including the evidence of the Plaintiff’s witnesses and the Defendant. It is not possible for this Court to make any definitive findings of fact based on the new evidence.  Further, in fairness to the Plaintiff, it ought to be given a proper opportunity to challenge the new evidence in a trial.  In the circumstances, we consider that the just course to take is to order a new trial of the action before another judge, having regard to the Judge’s adverse findings on the Defendant’s credibility in the Judgment.

CONCLUSION

34.For the above reasons, we allow the New Evidence Application and Appeal and set aside the judgment of Ng J dated 15 September 2021, and order a new trial of the Plaintiff’s action against the Defendant before another judge of the Court of First Instance.

35.As for costs, taking into account the fact that the Defendant has succeeded in the Appeal based on evidence which was not before the Judge, we make no order as to the costs of the New Evidence Application and the Appeal.  The costs of the original trial shall be in the cause of the new trial.

36.As we mentioned to the parties at the hearing, the Appeal is allowed based on Ground 1 of the Notice of Appeal only.  It is not necessary for us to deal with Grounds 2 and 3, and we express no view on the validity of those grounds.  We shall leave it to the Defendant or her legal advisers to decide whether to pursue the defences based on Grounds 2 and 3 (and to make any necessary applications concerning amendment of pleadings or otherwise), and it will be for the trial judge to decide whether to allow the Defendant to rely on such defences at the new trial.

37.This judgment is written in English because the Judgment and the pleadings were all written in English.  If required, the Defendant may make an appointment with the clerk to this Court for an oral interpretation of this judgment to her in the Court’s premises.

Ms Carol L W Wong, instructed by Edward Lau Phoebe Ng Solicitors LLP, for the Plaintiff

The Defendant, acting in person