Wong Wai Sum v. Axa China Region Insurance Company Ltd and Another
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HCA 1766/2020 [2025] HKCFI 872 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE ACTION NO. 1766 OF 2020 ____________
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_____________ J U D G M E N T _____________ A. INTRODUCTION 1.The Plaintiff (“Ms Wong”) claims against the Defendants (“AXA China” and “AXA General”) for fraudulent misrepresentation, breach of implied terms, wrongful termination of contract, and wrongful deduction of amounts from her payroll.[1] 2.The Defendants counterclaim for recovery of various advances made to Ms Wong and her downline agents, and amounts under deeds of guarantee signed by Ms Wong. B. THE FACTUAL BACKGROUND 3.Unless otherwise indicated, the following matters are undisputed or indisputable, and I find them as facts. Matters from the parties’ agreed statement of facts and chronology have also been incorporated. B1. The parties 4.Ms Wong was at all material times an agent, and an agency manager, of the Defendants, holding the position of Senior Director of Agency. By the time of the events in question, Ms Wong had acquired substantial experience in the insurance industry. Ms Wong started working in the insurance industry in about 1992. She worked for a number of insurance companies, including companies associated with the Defendants, over the years. She worked as an insurance agent selling insurance policies, as a training manager (between 1995 and about 2006), as a regional manager for a company affiliated with the Defendants (from about 2006 to 2009) and as a member of an agents’ management team (between 2009 and 2015). 5.The Defendants were at all material times private limited companies carrying on the business of, inter alia, insurance in Hong Kong. B2. The Recruitment Meeting 6.It is Ms Wong’s case that in about May or June 2016, Mr David Tam of the Defendants approached her, seeking to recruit Ms Wong and her team of insurance agents to join the Defendants. Mr David Tam subsequently became Ms Wong’s upline manager at the Defendants. 7.It is Ms Wong’s case that Mr Peter Lai, the then Chief Agency Officer of the Defendant, met Ms Wong and other prospective recruits at the Hong Kong Jockey Club Happy Valley Clubhouse in about May or June 2016 (“the Recruitment Meeting”). Ms Wong alleges that Mr Peter Lai made various false representations to her which induced her to join the Defendants (“the Alleged Representations”). 8.Mr Peter Lai was the Chief Agency Officer of the Defendants from about 2013 to 1st January 2019, although he left the Defendants on or about 18th December 2018 by virtue of his annual leave arrangements. B3. The agreements 9.On 10th June 2016, AXA China issued a letter headed “Experienced Hire Program – Offer Letter” (“the Offer Letter”) to Ms Wong, offering her the position of Senior Director of Agency along with a remuneration package under the Defendants’ Experienced Hire Program. (Other documents as referred to below often abbreviated “Experienced Hire Program” to “EHP”.) The offer was subject to Ms Wong’s fulfilment of a number of conditions precedent, including submission of her income proof with her last principal in support and production reports of her team, and signing of the Agent’s Contract, the Manager’s Contract and the M3 Agreement (all as defined below). Ms Wong signed the letter to acknowledge acceptance of the offer. 10.Ms Wong then entered into a number of agreements with the Defendants. B3.1 The Agent’s Contract and the Manager’s Contract 11.First, there was an Agent’s Contract, made on 25th July 2016 but with an effective date of 30th August 2016 (“the Agent’s Contract”). Second, there was an Agency Manager’s Contract, also made on 25th July 2016 and with an effective date of 30th August 2016 (“the Manager’s Contract”). The material terms of these two contracts were largely similar and were as follows.
12.The Schedule to the Agent’s Contract and the Manager’s Contract was identical.[2] It provided, inter alia, as follows.
13.The Schedule was updated in about March 2017 and circulated to the Defendants’ agents, including Ms Wong. It was updated again in about February 2018 and circulated to the Defendants’ agents, including Ms Wong. B3.2 The M3 Agreement 14.There was then an “EHP Manager’s Financing Agreement M3” (“the M3 Agreement”), made on 6th September 2016 but with an effective date of 1st September 2016. The preamble referred to the Agent’s Contract and stated that Ms Wong wished to obtain finance advance from the Defendants subject to the terms of the M3 Agreement. The M3 Agreement then provided, inter alia, as follows.
15.The M3 Schedule provided, inter alia, as follows.
B3.3 The PB Special Advance Agreement 16.The parties entered into an “EHP Special Advance (PB) Agreement” on 26th August 2016 (“the PB Special Advance Agreement”). The preamble referred to the M3 Agreement and stated that Ms Wong wished to obtain a special advance of $1.08m. The PB Special Advance Agreement then provided, inter alia, as follows.
B3.4 The SPB Special Advance Agreement 17.The parties entered into an “EHP Special Advance (SPB) Agreement” on 26th August 2016 (“the SPB Special Advance Agreement”). The preamble referred to the M3 Agreement and stated that Ms Wong wished to obtain a special advance of $600,000. The SPB Special Advance Agreement then provided, inter alia, as follows.
B3.5 The 2016 MTB Special Advance Agreement 18.The parties entered into an “EHP Special Advance (MTB) Agreement” on 26th August 2016 (“the 2016 MTB Special Advance Agreement”). The preamble referred to the M3 Agreement and stated that Ms Wong wished to obtain a special advance in the amount of the difference between the maximum MTB less the MTB to be advanced in the first six months under the M3 Agreement. The 2016 MTB Special Advance Agreement then provided, inter alia, as follows.
B3.6 The 2017 MTB Special Advance Agreement 19.The parties entered into an “EHP Special Advance (MTB) Agreement” on 29th September 2017 (“the 2017 MTB Special Advance Agreement”). The preamble referred to the M3 Agreement and stated that Ms Wong wished to obtain a special advance in the amount of the difference between the maximum MTB less the MTB to be advanced in the first six months of the second Program Year under the M3 Agreement. The 2017 MTB Special Advance Agreement then provided, inter alia, as follows.
B4. Advances made to Ms Wong 20.The Defendants made the following advances to Ms Wong:
B5. The Deeds of Guarantee 21.After joining the Defendants, Ms Wong had a number of downline agents, including Mr Chan Ka Biu (“Mr Chan”), Mr Sit Chun Wai (“Mr Sit”), Ms Chan Sau Fong (“Ms Chan”), and Mr Choi Yiu Ming (“Mr Choi”). 22.Ms Wong signed deeds of guarantee in respect of each of these downline agents, agreeing with the Defendants to act as guarantor in respect of advances made to these agents, as follows:
23.Under the deeds of guarantee, Ms Wong also agreed to reimburse the Defendants for all expenses on a full indemnity basis incurred in seeking to recover sums under the guarantees (cl.8). B6. The Agency Bulletins 24.On 5th October 2016, the Defendants issued Agency Bulletin No.1006, which took effect on 1st October 2016 (“Agency Bulletin 1006”). It was circulated to the Defendants’ agents, including Ms Wong, in an email from Ms Trace Lai (who was then the Head of Sales Human Resources Team) of the Defendants (“Ms Trace Lai”) of 5th October 2016. The bulletin highlighted that the definition of PVI had been amended:
25.Agency Bulletin 1006 further included a table setting out PVI calculations for various product lines. For “Traditional Life” and “Investment-Linked Life” products, the PVI of the regular premium amount was said to be “100% AFYP”, whereas the PVI of the single premium or top-up premium amount was said to be “10% Collected”. 26.Given Ms Wong’s recent date of joining the Defendants as agent and manager, Ms Jennifer Tam (who was then the Senior Manager, Agency Business Development – Agency Management Division) forwarded Ms Trace Lai’s email of 5th October 2016 once again to Ms Wong on 1st November 2016, to specifically draw her attention to Agency Bulletin 1006. 27.On 29th March 2017, the Defendants issued Agency Bulletin No.1023, which took effect on 1st April 2017 (“Agency Bulletin 1023”). It was circulated to the Defendants’ agents, including Ms Wong, in an email from Ms Trace Lai of 29th March 2017. The definition of PVI had been further amended:
28.On 28th April 2017, the Defendants issued an appendix to Agency Bulletin 1023, informing the Defendants’ agents, including Ms Wong, that they could now check and monitor their PVI movements via their consolidated commission reports. 29.On 18th October 2017, the Defendants issued Agency Bulletin No.1079-1, which took effect on 1st September 2017, regarding internal policy replacement (“Agency Bulletin 1079-1”). It was circulated to the Defendants’ agents, including Ms Wong in an email from Ms Trace Lai of 18th October 2017. 30.On 19th January 2018, the Defendants issued Agency Bulletin No.1100, which took effect on 1st January 2018 (“Agency Bulletin 1100”). It was circulated to the Defendants’ agents, including Ms Wong, in an email from Ms Trace Lai of 19th January 2018. The bulletin highlighted that the definition of PVI had been amended:
B7. The updates to the Schedule 31.The version of the Schedule in force at the time of the Agent’s Contract was the 2016 version. Ms Jennifer Tam’s evidence was that the schedule would generally be updated annually and then circulated to the Defendants agents in around February to March. 32.On 22nd March 2017, Ms Trace Lai sent an email to the Defendants’ agents, including Ms Wong, enclosing the 2017 version of the Schedule. 33.On 2nd February 2018, Ms Trace Lai sent an email to the Defendants’ agents, including Ms Wong, enclosing the 2018 version of the Schedule. B8. Commission Reports and Agent Scorecards 34.The Defendants issued monthly commission reports to Ms Wong, setting out the commission earned by Ms Wong and the downline agents in the three tiers of overrides (whose business from which she was entitled to earn commission) (“the Commission Reports”). Although Ms Wong originally denied that during the thirty months with the Defendants, there were many months in which she failed to meet the MTB validation requirements sufficiently to be awarded any MTB advance at all, on cross-examination, she accepted that this was the case. The Commission Reports show that this was the case for October to December 2016, January to March 2017, May to September 2017, November 2017, February to December 2018, and January to March 2019. They also show that in April 2017 and October 2017, Ms Wong only partially met the MTB validation requirements, so that she received a pro-rata MTB advance. 35.Ms Jennifer Tam’s evidence, which was not challenged, was that in around August 2017, the Defendants launched a system of “Agent Scorecards” to measure the performance of each individual agent. The scorecards were issued on a quarterly basis and set out various measures of an agent’s performance, such as the premiums collected, number of downline agents, persistency, lapse rate (that is, the rate at which policies lapsed), and number of customers’ complaints. 36.Ms Wong accepted in cross-examination that a high lapse rate would affect an insurance company and also the income of the relevant agent. Ms Jennifer Tam’s unchallenged evidence was that if an agent had a high lapse rate, this was usually because the agent did not understand the client’s true needs, or that the client could not afford the premium of the policy sold to him. 37.On 14th May 2018, Ms Jennifer Tam sent an email to Ms Wong informing her that the agent scorecards for the first quarter of 2018 were available to be downloaded from the Defendants internal Ipro system, and attaching her and her downline agents’ scorecards. The lapse rate for Ms Wong shown on this scorecard was 8%. 38.On 16th August 2018, Ms Sissy Tam (who assisted Ms Jennifer Tam) sent an email to Ms Wong informing her that the agent scorecards for the second quarter of 2018 were available to be downloaded, and attaching her and her downline agents’ scorecards. The email further stated that a warning/reminder letter was to be delivered to a number of agents as named in the email and would be distributed to Ms Wong shortly (for onward distribution). The lapse rate shown for Ms Wong shown on this scorecard was 46%. 39.On 12th December 2018, Ms Jennifer Tam sent an email to Ms Wong informing her that the agent cards for the third quarter of 2018 were available to be downloaded, and attaching her and her downline agents’ scorecards. The email further stated that a warning would be issued to the agent named in the email; the warning would be sent to Ms Wong for passing to the agent. The lapse rate shown for Ms Wong on this scorecard was 55%. B9. The reminder and warning letters regarding Ms Wong’s performance 40.On 19th June 2017, Ms Jennifer Tam sent an email to Mr David Tam (Ms Wong’s upline manager), attaching a reminder letter to be issued to Ms Wong regarding her failure to meet MTB validation requirements. Ms Wong says that she did not actually receive a copy of the letter, although she acknowledges that she was told about its contents by Mr David Tam. (As will have been seen, and as the Defendants’ witnesses explained, it was the Defendants’ practice to send reminder or warning letters to an agent’s upline manager for distribution to the agent.) The letter was headed “EXPERIENCED HIRE PROGRAM” and bore the subject header of “Reminder of Performance”. It went on as follows:
41.The letter set out that as at the 9th month of Ms Wong’s package, the cumulative MTB required in terms of NBC or EI, was $324,000, that she had achieved only $130,451 in Approved NBC or EI, which was 40% of the cumulative MTB validation. It went on:
42.The reminder letter was signed by Mr Peter Lai as Chief Agency Officer. 43.On 22nd September 2017, Ms Jennifer Tam sent another email to Mr David Tam indicating that upon reviewing the performance of Ms Wong and another agent, they had been unable to meet their MTB validation targets. The email attached reminders for Mr David Tam’s distribution. Again, Ms Wong says that she did not actually receive a copy of the letter, although she acknowledges that she was told about its contents by Mr David Tam. 44.The letter for Ms Wong was dated 21st September 2017 and was in the same form and had the same contents as the one of 19th June 2017, save that it set out the figures as at the 12th month of Ms Wong’s package. Cumulative MTB required in terms of NBC or EI was said to be $540,000; Ms Wong had achieved $198,077 in Approved NBC or EI, which was 35% of the cumulative MTB validation. 45.On 13th December 2018, Ms Sissy Tam sent an email to Ms Wong with the subject header “Reminder of Performance”. The email stated that Ms Wong had been unable to meet her MTB validation targets; based on the Defendants’ records as at October 2018, Ms Wong’s performance was unsatisfactory. The email reminded Ms Wong that EHP packaged bonuses were paid in good faith by the Defendants as an incentive to recruit and reward experienced producers under the mutual understanding that such producers would perform at a level reasonably comparable with past records. The email concluded that it was expected that Ms Wong’s performance would improve in the coming future. 46.The email attached a reminder letter dated 11th December 2018, again similar to the two earlier reminders. This time, it set out the figures as at the 26th month of Ms Wong’s package. Cumulative MTB required in terms of NBC or EI was said to be $1,590,000; Ms Wong had achieved $587,223 in Approved NBC or EI, which was 36% of the cumulative MTB validation. 47.On 31st December 2018, Ms Jennifer Tam sent an email to Ms Wong with the subject header “Warning for poor performance”. The email stated that based on the Defendant’s records as at November 2018, Ms Wong’s production was unsatisfactory. The letter went on to state an expectation of significant improvement in performance, a requirement of meeting a business plan, and a warning that failure to achieve it would lead to termination of the Agent’s Contract, with clawback of MTB and other bonuses. 48.The email attached a warning letter dated 31st December 2018 (“the First Warning Letter”). Similar to the reminder letters, the letter set out figures, this time as at the 27th month of Ms Wong’s package. Cumulative MTB required in terms of NBC or EI was said to be $1,665,000; Ms Wong had achieved $592,406 in Approved NBC or EI, which was 35% of the cumulative MTB validation. The letter went on to state (emphasis as in the original):
49.The letter had a space for Ms Wong to sign to confirm her agreement to its terms. There was a discussion between Ms Jennifer Tam and Ms Wong about it. Ms Wong refused to sign the letter. Ms Tam says that Ms Wong requested to proceed with immediate termination. Ms Wong says that Ms Tam had asked her whether she wanted immediate termination, to which she had answered no, and that it was for the company to decide whether to proceed to termination. 50.On 4th February 2019, Ms Jennifer Tam sent an email to Ms Wong, with the subject header “Warning Letter – Business Quality (Unit level)”. The email stated that there had been a review of the business produced by Ms Wong in the 13th to 48th months, and that there were concerns about her unit’s business quality. The lapse rate of the business produced within the period was significantly higher than the company benchmark. The Defendants reserved the right to take further action, including termination of the Agent’s Contract. The email attached a formal warning letter of the same date which made essentially the same points (“the Second Warning Letter”). 51.On 13th February 2019, Ms Sissy Tam sent an email to Ms Wong, setting out her EI earned as at 31st January 2019 and the outstanding EI as required by the business plan in the First Warning Letter. 52.On 25th February 2019, Ms Jennifer Tam sent an email to Ms Wong, reminding her about the requirement to achieve a minimum of $150,000 EI during January and February 2019, and warning her that failure to achieve this would lead to termination of the Agent’s Contract and clawback of the MTB and various bonuses. B10. The catch-up payment for Program Year 2 53.In December 2018, Ms Wong received a catch-up payment of $459,940.72. This was in respect of Program Year 2. 54.On 28th February 2019, Ms Wong sent an email to Ms Jennifer Tam, saying that following on from her Whatsapp enquiry of the previous Friday, she still did not have a report from SHR (presumably a reference to the human resources staff), and wanted to verify the payment of the $459,940.72. 55.On 1st March 2019, Ms Jennifer Tam replied to Ms Wong, attaching an EI catch up report. She said “You do not validate the catch up MTB based validation by EI, the bonus is paid based on validation by PVI which has been communicated earlier”, and then she set out the way in which the $459,940.72 had been calculated through Ms Wong’s PVI of $22,670,277. Ms Tam’s unchallenged explanation in her witness statement was that this email explained to Ms Wong that she had been able to validate her MTB catch-up for Program Year 2 based on Ms Wong’s team’s PVI, but not based on her personal EI, and based on such performance data, Ms Wong was entitled to a sum of $459,940.72. B11. Termination of the Agent’s Contract and Manager’s Contract 56.On 8th March 2019, the Defendants issued a letter of termination to Ms Wong, purporting to terminate the Agent’s Contract pursuant to cl.18.2(i) thereof, and to terminate the Manager’s Contract pursuant to cl.20.2(i) thereof, with immediate effect. It reminded Ms Wong that any finance or allowance granted were to be repaid in accordance with the terms of the relevant agreements (“the Termination Letter”). B12. The Defendants’ demand letters; Ms Wong’s payments 57.On 20th March 2019, the Defendants issued a demand letter to Ms Wong, seeking repayment of $3,038,774.54. There is no dispute that arithmetically, this sum was comprised of:
58.On or about 4th April 2019, Ms Wong paid a sum of $40,000 to the Defendants. The Defendants say that this was in partial repayment of her debt to them. Ms Wong’s pleaded case is that it was paid for the purpose of an amicable settlement. 59.On 7th April 2019, Ms Wong sent an email to the Defendants, saying “For my outstanding debt of $3,038,774.54, $40,000 has been credited to AXA HSBC account. (Bank in slip attached). Tai Ping Insurance Company will issue a cheque of $960,000 on my behalf by early May. The remaining amount will be repaid by 36 instalments.” As Ms Wong acknowledged in cross-examination, the wording of her email did not refer to any settlement at all. 60.On 28th May 2019, the Defendants issued a further demand letter to Ms Wong, seeking repayment of $3,909,274.54. The amount had increased because of two additional amounts demanded from Ms Wong. The two additional amounts were as follows; again, the dispute is as to liability rather than the figures themselves.
61.On or about 31st May 2019, the Defendants received a payment of $960,000 from China Taiping Life Insurance (Hong Kong) Company Limited, paid on behalf of Ms Wong. 62.On 28th June 2019, Ms Wong sent an email to the Defendants, saying “attached pls find the bank in record of my repayment of $960,000”. 63.On 5th July 2019, Ms Wong sent an email to the Defendants, saying “After the repayment of $1m, the outstanding debt is $2,909,274.54. I here request to repay by 26 installments.” It will be noted that the figure of the “outstanding debt” was calculated by reference to the amount demanded by the Defendants on 28th May 2019. 64.On 3rd May 2020, the Defendants issued a further demand letter to Ms Wong, seeking repayment of $4,491,274.54. Whilst the payment of $1,000,000 had been taken into account, the total amount demanded had increased because of additional amounts demanded from Ms Wong, as follows. Again, the dispute is as to liability rather than the figures themselves.
65.In these proceedings, the Defendants counterclaim for this amount of $4,491,274.54. C. THE ISSUES 66.Prior to trial, the parties had agreed that the issues for my determination were as follows.
67.In her written opening submissions, Ms Wong had sought to raise a number of unpleaded complaints. In closing submissions, Ms Wong agreed that the issues for my determination were confined to the pleaded issues. D. MS WONG’S CLAIM OF FRAUDULENT MISREPRESENTATION D1. Ms Wong’s case 68.Ms Wong’s case is that at the Recruitment Meeting, Mr Peter Lai made the Alleged Representations on behalf of the Defendants. To recap, the essence of the alleged misrepresentations was that:
69.Ms Wong’s allegation is that these representations were made fraudulently, with Mr Peter Lai knowing them to be false, without believing in their truth, nor being reckless as to whether they were true, in that:
70.Ms Wong says that she relied on the Alleged Representations in entering into the Offer Letter, the Agent’s Contract, the Manager’s Contract, the M3 Agreement, the PB Special Advance Agreement, the SPB Special Advance Agreement, the 2016 MTB Special Advance Agreement and the 2017 MTB Special Advance Agreement. D2. Relevant principles 71.Ms Wong did not take issue with the principles relied on by the Defendants, as follows. 72.The burden of establishing fraudulent misrepresentation lies on the complainant. Whilst the burden is that of the balance of probabilities, it is to be borne in mind that the more serious an allegation is, the more cogent is the evidence required to overcome the unlikelihood of what is alleged and thus to prove it. This is because the inherent probability of an event is a matter to be taken into account when deciding whether it occurred. See In re H and others (minors) [1996] AC 563 at 586G (Lord Nicholls). 73.The elements of a claim of fraud or deceit were set out in Haifa International Finance Co Ltd v Concord Strategic Investments Ltd [2009] 4 HKLRD 29 at [15], citing Winfield & Jolowicz on Tort, 17th ed., at paragraph 11-3:
74.A representation will not be false simply because it is not entirely correct, provided that it is substantially correct, and the difference between what is represented and what is actually correct would not have been likely to induce a reasonable person in the position of the claimant to enter into the contract: China Alarm Holdings Acquisition LLC v Ing Alexander Yim Leung, unreported, HCA 503/2012, 24th March 2016 at [76] (DHCJ Keith, citing Raiffeisen Zentralbank Osterreich AG v Bank of Scotland plc [2011] 1 Lloyd’s Rep 123 at [149]). 75.The claimant must prove that it was the representation which induced him to act upon it. He does not have to prove that the representation was the sole reason why he acted on it, but he has to prove that the representation did something more than merely encourage him to act upon it. The misrepresentation has to have played a real and substantial part in inducing him to act upon it; it has to have been the effective cause of him acting upon it in the sense that but for the representation, he would not have acted upon it. See China Alarm Holdings Acquisition LLC at [134]. 76.For the mental element required to establish a claim in fraud, the Defendants cited the classic statement in Derry v Peek (1889) 14 App Cas 337 at 374 (Lord Herschell):
D3. Whether Mr Peter Lai made the Alleged Representations 77.I agree with the submissions of counsel for the Defendants, Mr Norman Nip SC (leading Ms Kelly Shum), that Ms Wong has failed to prove that Mr Peter Lai made the alleged representations, given:
D3.1 The changes in Ms Wong’s case regarding the Alleged Representations 78.There have been various changes in Ms Wong’s case regarding the Alleged Representations.
79.These changes call into question Ms Wong’s case that the Alleged Representations were made. D3.2 Lack of contemporaneous record regarding the Alleged Representations 80.There is no contemporaneous record of any kind supporting Ms Wong’s claim that the Alleged Representations were made at the Recruitment Meeting. This is significant particularly in light of the following.
D3.3 Ms Wong’s explanation of why she entered into the agreements 81.Ms Wong’s explanation of why she entered into the various agreements with the Defendants despite the fact that they failed to refer to the Alleged Representations is quite telling.
82.Ms Wong was therefore clearly aware that neither the Agent’s Contract nor the Manager’s Contract contained the Alleged Representations, yet she was content to sign them. As for the M3 Agreement, it is plain that cl.13 (or, indeed, the rest of the agreement) does not contain any of the Alleged Representations either. Ms Wong’s claim that she read the three agreements and felt satisfied that they reflected the Alleged Representations did not stand up to cross-examination. This seriously undermines the claim that the Alleged Representations were made at all. D3.4 Lack of complaint that Defendants’ documents inconsistent with Alleged Representations 83.As mentioned above, there was no contemporaneous record supporting Ms Wong’s claim that the Alleged Representations were made at the Recruitment Meeting. 84.Even when the Defendants sent documents to Ms Wong which were clearly inconsistent with the Alleged Representations, Ms Wong did not make any complaint, or raise any query, about the same. First, there are the Agency Bulletins. The Agency Bulletin 1006 of October 2016, Agency Bulletin 1023 of March 2017, and Agency Bulletin 1100 of January 2018 all amended the definition of PVI, and it would have been apparent that PVI was not the same as AFYP. The first two bulletins also show that lapsation was to be included in the calculation of PVI. Ms Wong acknowledged that she received these Agency Bulletins. She would have realised that PVI was not equivalent to AFYP, and that it included lapsation; these matters would have been contrary to the Alleged Representations. However, she did not raise any query or complaint about this with Mr Peter Lai, the person who allegedly made the representations, nor with anyone else of the Defendants. Ms Wong did not have a good explanation as to why this was the case. She claims that she was busy after receiving the Agency Bulletin 1006 of October 2016 as it was shortly after she joined the Defendants. Yet she did not say anything after the Agency Bulletin 1023 of March 2017, and Agency Bulletin 1100 of January 2018 either. 85.In fact, these three Agency Bulletins also showed that whilst for certain types of premium for life insurance products, PVI was to be calculated as “100% AFYP”, for other types of premium for life insurance products, PVI was to be calculated as “10% collected” (premium), rather than AFYP. In other words, even for life insurance products, PVI did not always equal AFYP. Had the Alleged Representations been made, this was surely another matter that would have caused Ms Wong to raise queries or make complaints. 86.Second, there are the warning letters of 31st December 2018 and 4th February 2019. These letters specifically warned Ms Wong about her inadequate performance on the basis of EI rather than PVI, and the Defendants’ right to terminate Ms Wong’s Agent’s Contract. Even then, Ms Wong did not complain to anyone at the Defendants that this was contrary to the further Alleged Representations, or the alleged misrepresentation made by Mr Peter Lai that the Defendants would not terminate agents’ contracts for insufficient business turnover. D3.5 Lack of evidence as to supposed commonly known or recognised definition of AFYP, or method of calculation of commissions and earnings during past employment 87.The points discussed so far go towards the credibility of Ms Wong’s claim. Apart from that, there is a further point about the lack of evidence insofar as Ms Wong claimed that commissions and/or earnings at the Defendants would be calculated on the basis of the term AFYP “as commonly known or recognised in the insurance industry”, or that her commissions and earnings would be calculated as they had been during Ms Wong’s past employment with the Defendants. There is no evidence as to these two matters. On the contrary, the evidence of Mr Peter Lai and Ms Trace Lai was that there is no common practice in the insurance industry as to what AFYP means. 88.Ms Wong’s explanation for the lack of evidence is that she had left the Defendants. There was no suggestion that any attempts had been made to obtain any evidence to substantiate the pleas in paragraph 17 of the SOC that:
89.I would at this point record my concern that counsel then acting for Ms Wong saw fit to plead a case of fraudulent misrepresentation, in the absence of any apparent basis to do so. As noted in the Hong Kong Civil Procedure 2025, vol.1, note 18/6/5, in the case of a plea of fraud, there is a heavier burden on the pleader in that fraud cannot and should not be pleaded unless the pleader has clear instructions to plead fraud and he has before him reasonably credible material which, as it stands, establishes a prima facie case of fraud. D4. Whether Ms Wong relied on the Alleged Representations 90.Since I have found that the Alleged Representations were not made, the question of whether Ms Wong relied on them does not arise. 91.However, I would go on to make this observation: on Ms Wong’s own evidence, she did not in fact rely on the Alleged Representations. As noted above, when asked why, on reading the Offer Letter of 10th June 2016 and signing to indicate acceptance, she did not raise any query as to why the Alleged Representations were not recorded in writing, she said that it was because the letter was merely an offer letter and she had not yet joined the Defendants formally; she would wait for the formal agreements referred to in the Offer Letter and she would sign those after reading them and being satisfied with them. In other words, she relied on her own review of the Agent’s Contract, Manager’s Contract and M3 Agreement before deciding to sign them. 92.Furthermore, Ms Wong went on to say that she signed the Agent’s Contract and Manager’s Contract, she accepted them as setting out the general terms applicable to the Defendant’s agents and managers; it was the M3 Agreement which she expected to contain terms specific to her. This answer further confirms that at least for the Agent’s Contract and Manager’s Contract, she did not rely on the Alleged Representations in entering into them. She was aware that they did not reflect the Alleged Representations and she was content to enter into them, on the basis that she considered that the matters she was concerned with would be dealt with in the M3 Agreement. 93.Still further, Ms Wong’s evidence is that she read through the agreements before signing them. She would therefore have been aware that her obligation was to comply with the rules and regulations of the Defendants in force from time to time (see cl.1.2 of the Agent’s Contract and cl.1.8 of the Manager’s Contract). There were clauses entitling the Defendants to amend the Schedule (pursuant to which Ms Wong was to be remunerated) from time to time without notice and at their absolute discretion (see cll.8.1, 9.1 of the Agent’s Contract and cll.10.1, 11.1 of the Manager’s Contract). The M3 Agreement (see cl.3g)(ii)) of the M3 Schedule) also expressly provided that the calculations for PVI were to be determined by the Defendants at their absolute discretion from time to time. In other words, the Defendants had the discretion to amend the definition of PVI from time to time without the need to consult Ms Wong or to ask for her consent. Given her lengthy experience in management positions, Ms Wong must have known that this was the effect of the clauses. Indeed, Ms Wong frankly acknowledged on the first day of the trial that the agreements provided for the Defendants’ power of amendment (and her complaint was that these amendments caused her downline agents to leave, which in turn affected her business performance, and therefore it was unreasonable for the Defendants to terminate her appointment). That being the case, it cannot be said that Ms Wong relied on any particular definition of PVI put forward by Mr Peter Lai in entering into the various agreements with the Defendants – she would have known that the Defendants could change this definition at any time. 94.I therefore find that Ms Wong did not rely on the Alleged Representations as alleged. D5. Entire Agreement Clauses 95.In any event, even if the Alleged Representations were made by Mr Peter Lai, they would have been overtaken by the Entire Agreement Clauses in the Agent’s Contract and the Manager’s Contract. These provided that the agreement represented the entire understanding and constituted the whole agreement in relation to its subject matter between Ms Wong and the Defendants and superseded any previous agreement or understanding in relation to its subject matter. 96.I agree with Mr Nip that as a matter of law, no legal effect can be given to the Alleged Representations. As explained in Inntrepreneur Pub Co (GL) v East Crown Ltd [2000] 2 Lloyd’s Rep 611 Ch D at [7] (Lightman J):
97.Inntrepreneur Pub Co was applied by the Court of Appeal in Glory Gold Ltd v Star Play Development Ltd [2008] 2 HKLRD 416 at [16] (Cheung JA). E. MS WONG’S CLAIM OF IMPLIED TERMS E1. Ms Wong’s case 98.Ms Wong’s case, as pleaded by counsel on her behalf, is that seven terms should be implied into the Agent’s Contract and/or the Manager’s Contract, “by adopting the common practice amongst the insurance industry” or by reason of necessity to give business efficacy to the agreements, as follows.
E2. Relevant principles 99.Ms Wong did not take issue with the principles relied on by the Defendants, as follows. 100.As held by the Court of Final Appeal in Kensland Realty Ltd v Whale View Investment Ltd & another (2001) 4 HKCFAR 381 at [23] and [59], the following conditions must be satisfied in order for a term to be implied into a contract (citing Lord Simon’s summary in BP Refinery (Westernpoint) Pty Ltd v Shire of Hastings (1977) 180 CLR 266:
101.In Marks and Spencer plc v BNP Paribas Securities Trust Co (Jersey) Ltd and another [2016] AC 742, Lord Neuberger added six comments to Lord Simon’s summary, as follows.
102.An apparently unqualified power or discretion given to a party to a contract should generally be construed as being subject to some implied restrictions regarding the exercise of that power or discretion: Tadjudin Sunny v Bank of America, unreported, CACV 12/2015, 20th May 2016, at [46] (Kwan and Barma JJA, Chow J). At [55]:
103.The burden of showing irrationality is a very high one. It is not sufficient to establish unreasonableness; a plaintiff would have to show that no reasonable defendant would have exercised his discretion in that way, or that the defendant acted irrationally: Sunny Tadjudin at [11], [163]. E3. Alleged Terms 1, 2, 3 104.I agree with Mr Nip that Alleged Terms 1, 2 and 3 cannot form part of the terms of the Agent’s Contract or the Manager’s Contract.
105.In any event, it is difficult to understand the implications of the plea. Having pleaded Alleged Terms 1, 2 and 3, it does not appear that any breach of the terms was alleged. Alleged Terms 4, 5 106.I agree with Mr Nip that Alleged Terms 4 and 5 similarly cannot form part of the terms of the Agent’s Contract or the Manager’s Contract.
Alleged Terms 6, 7 107.I agree with Mr Nip that Alleged Terms 6 and 7 do not form part of the terms of the Agent’s Contract all the Manager’s Contract.
108.In any event, as I set out in the next section, Ms Wong fails to establish that the termination of the Agent’s Contract and the Manager’s Contract were exercised otherwise than in good faith, or for arbitrary, capricious, perverse or irrational reasons. F. MS WONG’S CLAIM OF WRONGFUL TERMINATION 109.The Termination Letter stated that termination of the Agent’s Contract was made pursuant to cl.18.2(i) thereof, and that termination of the Manager’s Contract was made pursuant to cl.20.2(i) thereof. Those provisions entitled the Defendants to terminate the agreements immediately with notice in circumstances where Ms Wong did not meet training, production, persistency or other requirements in respect of her appointment, which requirements might be set by the Defendants from time to time. 110.The Defendants say that Ms Wong did not meet these requirements. In particular, they say that Ms Wong failed to meet her MTB validation requirements and that the lapse rate of her business unit was high. F1. The relevant facts 111.I first recap some of the relevant background and set out my further findings of fact relevant to this issue. F1.1 The MTB validation requirements and Ms Wong’s failure to meet them 112.As earlier noted, the terms of the Agent’s Contract and the Manager’s Contract provided for Ms Wong to comply with the Defendants’ instructions and key performance indicators. 113.The MTB validation requirements were set out in the M3 Schedule, the main points of which have been set out above. Ms Wong was to be entitled to be advanced up to $60,000 per month during the sixty months of the five-year program if she could meet the necessary production validation requirements as set out in the table to cl.3c) of the M3 Schedule. Even if Ms Wong could not meet these requirements, she could still receive a pro rata amount of MTB advance for a month if she could generate at least 60% of the MTB required EI in that month. 114.These requirements had been set based on Ms Wong’s business performance prior to joining the Defendants. It will be recalled that Ms Wong was appointed under the Experienced Hire Program. Under the Offer Letter, Ms Wong had to provide income proof to justify setting the Base Amount of $1.2m for calculating the advances in the M3 Agreement, and in turn, the monthly MTB advances. As Mr Peter Lai explained in cross-examination (as reflected in the Offer Letter), the formula for calculating the MTB advances was based on 300% of Ms Wong’s past income, spread out over 60 months; in the Defendants’ experience, experienced hire candidates would earn more than their previous income. Ms Jennifer Tam’s unchallenged evidence was that agents were expected to achieve 100% of their validation requirements, thereby becoming entitled to all of the bonuses in their financing packages, although even if they did not, they would be able to earn pro-rata percentages of their bonuses if they reached 60% of their validation requirements. 115.The reminder letters of 19th June 2017, 21st September 2017, and 11th December 2018, the contents of which were made known to Ms Wong (whether through Mr David Tam or by reason of Ms Wong having received the letters directly), stated that Ms Wong’s performance was unsatisfactory as her cumulative MTB validation was below 50% of the requirement. In her oral opening, Ms Wong claimed that at a meeting which took place after she received became aware of the first and second reminder letters, Mr Peter Lai had told her that it was not necessary to pay attention to the letters, which were automatically generated by the system, because apart from using EI for validation, Ms Wong could also use a whole year’s PVI. I do not accept this evidence.
116.As regards the third letter of 11th December 2018 and the First Warning Letter of 31st December 2018, Ms Wong claimed in cross-examination that she had raised concerns about these with Ms Jennifer Tam as she was supposed to be able to validate her performance through PVI. I do not accept this evidence.
117.Ms Wong had worked in the insurance industry for many years, with substantial experience in managerial roles. I find it hard to believe that Ms Wong merely considered the reminder letters or the First Warning Letter were merely pieces of paper generated automatically by the Defendants’ system which could just be ignored. I further note that she never sought to put on record at the time any disagreement with the calculations made in the letters, or the Defendants’ dissatisfaction at her failure to achieve 50% of the cumulative MTB validation requirements. 118.I therefore accept that by the three reminder letters, Ms Wong did become aware that the Defendants required her to achieve at least 50% of the cumulative MTB validation requirements in order to be considered as performing satisfactorily, even though the figure of 50% was not stated in the M3 Schedule, and the 60% figure in the M3 Schedule was expressed as a requirement for the entitlement to MTB advances rather than as a measure of satisfactory performance as such. This is because both the Agent’s Contract and the Manager’s Contract required Ms Wong to meet key performance indicators including production and persistency (which would include the 60% figure and other MTB validation requirements in the M3 Schedule, which after all had been set based on Ms Wong’s past business performance – as the reminder letters pointed out, Ms Wong was recruited on the mutual understanding that she would perform at a level reasonably comparable with her past records), and because in any event, it was open to the Defendants to revise the production requirements and issue further instructions from time to time, so that they could have required Ms Wong to achieve at least 50% of the MTB validation requirements through the reminder letters, even if the M3 Schedule made no mention of this. I also accept Ms Jennifer Tam’s unchallenged evidence that the Defendants would generally consider that an agent’s performance was unsatisfactory if he failed to reach 50% of his cumulative EI requirement, and issue reminder letters accordingly. 119.As set out above, Ms Wong failed to meet the MTB validation requirements for most of her thirty months as the Defendants’ agent. The reminder letters and the First Warning Letter recorded that her cumulative MTB validation was 40% as at 19th June 2017; 36% as at 21st September 2017, 36% as at 12th December 2018, and 35% as at 31st December 2018. Ms Wong consistently failed to meet the 50% cumulative MTB validation required by the Defendants. 120.The First Warning Letter of 31st December 2018 stipulated that Ms Wong had to achieve an EI of $150,000 in the two months of January to February 2019. The amount tallied with the requirements in the M3 Schedule for her 28th and 29th month (if Ms Wong was to obtain the full amount of the MTB advances for those months). Ms Wong was reminded of the requirement by emails of 13th and 25th February 2019. She failed to meet the requirement. F1.2 The lapse rate requirements and Ms Wong’s failure to meet them 121.In the quarterly Agent Scorecards issued to Ms Wong, there was a table which set out the lapse rates of Ms Wong and the agents in her team. The notation above the table contained a box in red with the caption “Lapse rate > 30%”, indicating that where any lapse rate in the table exceeded 30%, this would be highlighted in red. I accept Mr Nip’s submission that this was a sufficient indication that a lapse rate exceeding 30% was unacceptable to the Defendants. 122.Ms Wong’s lapse rate for the first quarter of 2018 was just 8%. However, it jumped to 46% for the second quarter of 2018, and 55% in the third quarter of 2018. Ms Wong challenged the calculation of 55% on the grounds that took into account lapsed policies from departed agents of her team; had it been calculated “normally” then the lapse rate would not be so high. However, and as acknowledged by Ms Wong, under the Agent’s Contract and the Manager’s Contract, the Defendants had the right to assign clients to Ms Wong, and Ms Wong had the obligation to serve such clients. 123.The Second Warning Letter of 4th February 2019 warned that the lapse rate of the business produced by the agents of Ms Wong’s business unit from October was significantly higher than the Defendants’ benchmark. Ms Wong submitted that this failed to identify the period for which the lapse rate was poor, and that she did not know how poor the lapse rate was. The letter did in fact refer to the lapse rate “within the past 13th month to 48th month (October 2014 to December 2017”. This was presumably a reference to the scorecards which used the time frame of policies issued within the “Past 13-48 Months”, that is, between one to four years prior to the scorecard date, to calculate the lapse rate. Details of the lapse rate within that period, calculated on a quarterly basis, would have been available from the Agent Scorecards. F2. Ms Wong’s arguments 124.Ms Wong submitted that she did not fail to fulfil the MTB validation requirements, as she was allowed to use PVI to fulfil the requirements; furthermore, when using PVI to assess whether the validation requirements had been met, she was entitled to a whole program year to achieve her catch up. She pointed to the fact that she was able to use PVI through the “catch-up” route (pursuant to cl.3g) of the M3 Schedule) to obtain a catch-up payment for Program Year 2. Termination of her appointment part way through the (next) year was therefore wrong as she could have achieved the catch-up later. 125.The Defendants argued that (and Ms Jennifer Tam’s evidence was that) the primary means of achieving validation was by achieving the MTB Required EI stipulated in cl.3c) of the M3 Schedule, and that the provisions for catch-up were simply to enable an agent to obtain some form of payment even if he was unable to achieve the MTB Required EI. 126.It seems to me that the short answer to Ms Wong’s point is that the Defendants were entitled to require Ms Wong to achieve 50% cumulative MTB validation in order to constitute satisfactory performance, that Ms Wong was informed of this through the reminder letters, and that she failed to do so. Similarly, the Defendants were subsequently entitled to require Ms Wong to achieve the level of EI in the specified business plan in the First Warning Letter, Ms Wong was informed of this through the First Warning Letter, and she failed to do so. This is irrespective of what her entitlements to claim MTB advances under the M3 Agreement may have been, whether by achieving the MTB Required EI, or by way of catch-up calculated using PVI. It was not Ms Wong’s pleaded case that, for example, the Defendants were contractually obliged to defer the assessment of whether Ms Wong performed satisfactorily until the end of each Program Year. Ms Wong’s case seeks to equate the issue of whether she performed satisfactorily with whether she was entitled to various advances under the M3 Agreement. Whilst factually, there is some overlap between the two issues, as a matter of analysis they are distinct: there is nothing in the agreements which directly equates the two, and the pleaded case for Ms Wong does not seek to do so either. 127.I do have some sympathy for Ms Wong’s complaint that it was not entirely clear to her what performance was expected of her. The M3 Agreement (and M3 Schedule) did not say so in so many terms; rather, it addressed the conditions for the payment of MTB advances to Ms Wong, which, as I have said, is a different matter. Mr Peter Lai’s evidence was that reminder letters should have been issued every three months, but only three such letters were before the court, so that the Defendants can only point to these three as evidence that Ms Wong was aware of the requirement to achieve 50% cumulative MTB validation in order to be considered a satisfactory performer. Nevertheless, Ms Wong did receive these letters or was told about their contents at the time. She also received the monthly Commission Reports which would have showed when the lapse rate for her team started falling below the Defendants’ benchmark. 128.Ms Wong then argued that there were various matters which showed that the Defendants did not consider her performance to be unsatisfactory, for example, their willingness to enter into the 2017 MTB Special Advance Agreement, at a time when two reminder letters had already been issued to her, or her lack of demotion. As to the first matter, Mr Peter Lai could not recall the reason for advancing the loan, but he thought that the Defendants were trying to help Ms Wong. It seems to me that neither matter precludes the Defendants from an assessment that Ms Wong’s performance was unsatisfactory. 129.Ms Wong then argued that her poor performance was caused by the Defendants’ implementation of business quality control measures. In December 2017, the Defendants announced that various business quality control measures would be implemented. In particular, if a manager left the Defendants, his direct manager would take over the resulting “orphan” policies of the leaving manager. The direct manager would be entitled to earn commission in relation to the policies, and at the same time, the policies would be counted in the manager’s persistency rate. Ms Wong complained that the departure of her downline agents adversely affected her lapse rate and persistency rate. However, I do not see how Ms Wong can complain about the introduction of the policies.
130.I therefore do not agree that the Defendants wrongfully terminated the Agent’s Contract and the Manager’s Contract. G. MS WONG’S CLAIM THAT AMOUNTS WRONGFULLY WITHHELD 131.Paragraph 35 of the SOC pleaded that various sums were wrongfully deducted from Ms Wong’s payroll for the months of December 2018, January 2019 and March 2019, totaling $834,176.13. 132.The Defendants say that they were entitled to make the deductions pursuant to the express rights of set-off provided for in cll.8.8 and 9.2 of the Agent’s Contract and cll.10.8 and 11.2 of the Manager’s Contract. The deductions fell broadly into three categories:
133.The Defendants tabulated the deductions made and the reasons therefore, with references to the relevant witness statement and documentary evidence in Appendix 3 to their closing submissions. There was no real dispute about these matters. 134.Ms Wong was unable to advance any real basis to complain that the sums had been wrongfully withheld. H. THE DEFENDANTS’ COUNTERCLAIM 135.As earlier set out, the Defendants counterclaim an amount of $4,491,274.54, comprising the following
H1. Advances and MTB catch-up payment 136.Under cl.6 of the M3 Agreement, if the Agent’s Contract was terminated for any reason within 48 months from the month in which the MTB was advanced to Ms Wong, a specified portion of each of the MTBs advanced (which would include any MTB catch-up payments) was to be immediately repayable to the Defendants. 137.Under cl.4 of each of the PB Special Advance Agreement and the SPB Special Advance Agreement, advances made thereunder were to become immediately due and payable if Ms Wong ceased to be the Defendants’ agent. 138.Given my finding that the Agent’s Contract and the Manager’s Contract were not wrongfully terminated, it must follow that Ms Wong is liable to repay items 1 to 4 above. H2. Amounts due under the deeds of guarantee 139.At the trial, Ms Wong confirmed that she no longer took the stance that she thought that the various deeds of guarantee were mere formalities. 140.Ms Wong had also pleaded a defence that her downline agents would not have been terminated had the Defendants not implemented the business quality control measures. I have already earlier addressed the suggestion that the measures were targeted at her and her downline agents. In any event, Ms Wong was unable to adduce any evidence to establish that there was any causal linkage between the implementation of the measures and the termination of the downline agents. 141.Finally, Ms Wong complained that the Defendants had not provided her with the underlying special advance agreements entered into between the Defendants and the downline agents in question.[3] However, as Mr Nip submitted, there is no general duty on the part of a creditor to disclose material facts to a surety, in particular any circumstances which would make the surety’s position more hazardous; the creditor’s duty is simply not to mislead; it is the surety who has the obligation to make all necessary enquiries. (Where there are facts of which the surety is unaware and which he could not, in the circumstances be expected to know, but which materially affect his liability or potential liability, it is then incumbent on the creditor to disclose such facts to the surety. However, this qualification of the general position has no application in the present case.) See Bank of China (Hong Kong) Ltd v Wong King Sing & others [2002] 1 HKLRD 358 at [27] to [28] (Recorder Ma SC, as he then was). 142.There is no defence to the counterclaim under the deeds of guarantee. H3. Interest 143.On the second day of the trial, Mr Nip helpfully provided to the court and to Ms Wong a table setting out the amounts of interest claimed on the sums comprised within the counterclaim, and the basis for such claims, up to the date of the last day of trial. This gave Ms Wong the opportunity to consider the Defendants’ calculations of the interest claimed. In closing submissions, Ms Wong confirmed that she did not take issue with the calculations in the event that she was found liable to pay interest. In essence, the interest accrued up to the last day of the trial amounted to $1,654,434.09. 144.Interest on the outstanding advances and the MTB catch-up payment was agreed to be payable at the rate of 3% over HSBC’s Best Lending Rate: see cl.8 of the M3 Agreement and cl.2.1 of each of the PB Special Advance Agreement and the SPB Special Advance Agreement. 145.The amounts due under the deeds of guarantee were due on demand. The Defendants claimed interest at 1% above prime rate (citing Lo Yuk Sui v Fubon Bank (Hong Kong) Limited [2017] 2 HKLRD 477 at [18]) and adopted HSBC’s Best Lending Rate as the prime rate in their calculations. 146.I see no reason why pre-judgment interest should not be awarded as claimed by the Defendants. I. DISPOSITION 147.I dismiss Ms Wong’s claims. 148.I give judgment to the Defendants on their counterclaim for $4,491,274.54 together with pre-contractual interest in the amount of $1,654,434.09. Interest from judgment will run at judgment rate. 149.I further make a costs order nisi that Ms Wong is to pay to the Defendants the costs of and occasioned by the action (including the counterclaim) on an indemnity basis,[4] with certificate for two counsel, to be taxed if not agreed.
The Plaintiff appeared in person Mr Norman Nip SC leading Ms Kelly Shum, instructed by Kennedys, for the 1st and 2nd Defendants [1] Originally, a claim for breach of collateral contract was also pleaded, but Ms Wong confirmed at trial that this was not being proceeded with. [2] There was some dispute as to whether Ms Wong was provided with the Schedule at the time of signing the agreements, but this is immaterial, as it is not suggested that the document did not form part of the parties’ contract. [3] It should be noted that the various deeds of guarantee did in fact identify the downline agents, the dates of the special advance agreements and the advances made thereunder. [4] Given the contractual provisions in:
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