Mak Hin Kwan v. Wiki Capital Finance Ltd and Another

HCA 1657/2016 and HCA 2617/2018 (Consolidated)

[2025] HKCFI 2140

HCA 1657/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1657 OF 2016

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AND

HCA 2617/2018

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 2617 OF 2018

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(Consolidated pursuant to the Order of Mr Registrar S. Kwang
dated 6 December 2019)

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D E C I S I O N

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1.The 9-day trial has long been scheduled to commence today, with the Pre-trial Review, of course, having already taken place on 17 February 2025. On 2 May 2025, each of the 1^st and 2^nd Defendants filed a Summons for leave to amend their respective defences by adding various particulars in support of the defence of illegality. Both amendments include an allegation that the Agreement would constitute fraudulent misrepresentation to the Government and both amendments refer to the Small House Policy.

(1)  In the 1^st Defendant’s proposed amendment, it is pleaded that the Agreement amounted to the unlawful trading of ding rights and/or a deception to the District Lands Office as regards to the eligibility for an application under the Small House Policy.

(2)  In the 2^nd Defendant’s proposed amendment, it is pleaded that the Agreement would involve a conspiracy to defraud the Government or making a false declaration because the Agreement would involve an agreement between the Plaintiff and the 2^nd Defendant for the latter to submit documents to the District Lands Office including a false declaration.

2.No affirmation evidence has been filed to explain the inordinate delay. There is also no explanation given by counsel for the Defendants as to the lack of such affirmation evidence. There seems to be a suggestion that the inordinate delay is due to change of legal team or counsel. However, it is trite that such change is not a good reason, and in any event, the current counsel were engaged in April 2025, which Mr Esmond Wong, counsel for the 2^nd Defendant, very fairly informed me. On this alone it is sufficient for me to dismiss both Summonses.

3.In any event, prejudice would be highly significant:-

(1)  The amendment would involve how the Small House Policy worked at the material time. There is no evidence of what the Small House Policy was at the material times. The 1^st Defendant refers me to Kwok Cheuk Kin and Another v Director of Lands and Others [2021] 1 HKLRD 737 at §§4-8, where the Court set out the facts about the Small House Policy as evidenced in that case. I do not accept that I can simply rely on the fact-findings of another case as some background facts against which I would find illegality. The same applies to the case relied upon by the 1^st Defendant, namely, HKSAR v 李欽培David and Others, DCCC 25/2015, 27 November 2015.

(2)  Even if I would rely on the facts of those cases, the alleged deception would involve signing false declarations and/or knowledge of the falsity on both parties in such “trading of ding rights”, a term used by the 1^st Defendant. However, no such declarations were placed before me. While I do not shy away from the general knowledge of the usual modus operandi of developing ding houses involving such declarations, it is not right for me to find illegality on such basis on such state of evidence. In particular, for the Defendants’ such defence of illegality to succeed, they would have to aver that the Plaintiff himself had the knowledge of the illegality. There is, however, no such plea of knowledge, and no doubt, if the Defendants would like to add such a plea, I would have rejected it as highly prejudicial.

(3)  These late proposed amendments are effectively just raising this illegality point without proper pleadings. However, it is only where the Court is satisfied that the relevant facts and circumstances bearing on the question of illegally are fully known to it that the Court would be entitled to decide on the question of illegality even if illegality is not pleaded: see Igal Dafni v CMA CGM SA [2013] 2 HKLRD 73 at §31 per Recorder Horace Wong SC. With such state of evidence, I am not so satisfied.

(4)  I also note that in §5 of the 2^nd Defendant’s Witness Statement that he did not know what documents he had signed and said that the documents “were not relevant to the present case”.

(5)  Further and in any event, with such serious allegation of illegality, the Plaintiff would be entitled to consider the matter and if necessary collate relevant evidence. This would derail the trial.

4.Therefore, whether on the lack of explanation for delay alone and/or on the significant prejudice, I dismiss the Summonses filed by 1^st and 2^nd Defendants respectively, with costs to the Plaintiff to be summarily assessed, with certificate for two counsel. The taxation basis should be indemnity basis because (1) the Summonses are not supported by any evidence to explain the inordinate delay; and (2) the Summonses are themselves completely unmeritorious: see Li Xiao Yun v China Gas Holdings, CACV 38/2013, 11 March 2013 at §18 per Lam JA.

Mr William Wong SC and Mr Brian Fan, instructed by Tung, Ng, Tse & Lam, for the Plaintiff

Mr Jason Wong and Ms Virginia Leung, instructed by Chan & Tsu, for the 1^st Defendant

Mr Esmond Wong and Mr Cyrus Lau, instructed by Eddie Lee & Company for the 2^nd Defendant