Lin Ho Pin and Others v. James Ting-yeh Yang

HCA 730/2021

[2025] HKCFI 4875

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 730 OF 2021

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D E C I S I O N

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1.The Defendant is applying for leave to appeal against my Judgment dated 12 March 2025 dismissing the Defendant’s appeal against the decision of Master Ken To dated 10 May 2024 dismissing the Defendant’s summons dated 14 December 2023 to strike out the Statement of Claim, and allowing the 1^st to 4^th Plaintiffs’ summons dated 28 December 2023 for amendment of their Statement of Claim.

2.Leave to appeal is refused.

Background

3.The background and facts of the case were set out in my Judgment dated 12 March 2025 (“Striking out Judgment”) and will not be repeated here. The two judgments should be read in tandem.

Defendant’s Grounds

4.The Defendant’s grounds for applying for leave to appeal are set out in the Draft Notice of Appeal attached to the Defendant’s Written Statement for leave to appeal dated 26 March 2025:

(1)  The learned judge erred in principle in refusing to decide the question of accrual of actionable loss on the basis that it is “not a simple question that ought not be decided as a preliminary point” (§99 of the Striking Out Judgment). In the present case, the Court has had all the necessary information and the benefit of full argument to decide the question and, had he properly done so, would have come to the conclusion that the Misrepresentation claim is plainly and obviously one for striking out.

(2)  Further or in the alternative, the learned Judge erred in principle in failing to have regard to the inconsistency with contemporaneous documents, inherent implausibility and other compelling evidence when assessing the inherent plausibility of the Buy-out Agreement. Had the learned judge carried out the analysis, he would then have found that the Buy-out Agreement is inherently implausible and incredible and that there is no serious issue to be tried.

Legal Principles

5.The provisions for leave to appeal in interlocutory appeal are set out in s.14AA(4) of the High Court Ordinance (Cap. 4):

“Leave to appeal for the purpose of subsection (1) shall not be granted unless the court hearing the application for leave is satisfied that—

(a) the appeal has a reasonable prospect of success; or

(b) there is some other reason in the interests of justice why the appeal should be heard.”

6.The principles relating to striking out the pleading and amendment of pleadings were discussed at §§47 to 50 of the Striking-Out Judgment. In short, pleadings should only be struck without trial unless in plain and obvious cases.

7.In Guangdong Yinggao Shipping Ltd v Secretary for Justice [2024] HKCA 492, Cheung JA stated the following at §14:

“Judicial discretion is involved in determining whether a pleading should be struck out. Generally, an appellate court will not interfere with a judge’s exercise of discretion unless the judge misunderstood the law or the evidence or the exercise of the discretion was plainly wrong, i.e. that it was outside the generous ambit within which reasonable disagreement is possible.”

Discussions

8.Although the Defendant’s Ground (1) is framed as the main ground, and Ground (2) as the further or alternative ground, Ground (2) should be considered first because it touches on the facts, as the existence of disputes of facts may affect the determination of the question of law albeit on different claims.

9.On Ground (2), Miss Lee, for the Defendant, submitted that the contractual claim of the Buy-Out Agreement lacked proof in writing and was implausible and inherently incredible.

10.In the Striking-Out Judgment, I referred to the WhatsApp messages between Ingrid Chang, employee of the Defendant and the 1^st Plaintiff (§§32-45), where the 1^st Plaintiff was pressing Ingrid for payment and Ingrid said the Defendant had instigated the Partial Payment of Redemption Proceeds of the shares in the fund. I said the WhatsApp lent weight to the Plaintiff’s allegation of the Buy-out Agreement (§97). Although there might be inconsistencies between the Buy-Out Agreement and the Partial Redemption, the interplay or inconsistencies needed to be resolved by hearing evidence at trial (§96).

11.As an aside, Miss Lee brought up the matter of corrigendum of the Striking-Out Judgment on the translation of the WhatsApp messages. To give one example, Miss Lee submitted that my translation of the “bounced cheque” should be “running away” as in common parlance in Taiwan, and there was no existence of any bounced cheque in this case.

12.Mr Lin, for the 1^st to 4^th Plaintiffs, submitted that no corrigendum is necessary, as the Court was not rendering the English translation of the WhatsApp in verbatim, but simply as the background. Further, Mr Lin submitted that amendment of the judgment should be by summons under O.20 r.11, Rules of the High Court (Cap. 4A), and supported by affidavit evidence setting out the context of the words. Mr Lin submitted that there was simply no basis to say the translation on the face of the words was wrong.

13.I do not think any corrigendum if necessary, because what I have set out are just background of the 1^st Plaintiff chasing Ingrid for payment. I have made no finding of facts. And either version of translation would have led to the same conclusion of dispute of facts to be resolved.

14.May I say that so often no official or agreed translation is placed before a bilingual judge. If anything turns on the translation, the matter should be dealt with by agreement or argument. There was none in this case when the WhatsApp messages were referred to at the hearing.

15.In view of what I have said in §9 above, Miss Lee did not dwell on the contractual claim, but concentrated on the misrepresentation claim affecting the 1^st to 4^th Plaintiffs’ decision to redeem the shares.

16.Miss Lee submitted that at that stage, no one knew whether there would be any actual loss, because the price of the shares would either go up or down upon resumption of redemption, and if it the price went up, there would have been no loss, hence, no accrual of any loss or damage.

17.That was the argument of leading counsel for the Defendant at the original hearing, whereby Mr Lin submitted that one way to look at it was the loss of chance to redeem before the suspension, and the law was discussed at length in the Striking-Out Judgment.

18.Of course, there was no conclusive view, because it was fact sensitive. In in Nykredit Mortgage Bank Plc v Edward Erdman Group Ltd (No.2) [1998] 1 All ER 305, Lord Nicholls held that the first step was to identify the measure of loss, and the loss might accrue at different stages, and it depended on the facts (see §98 of the Striking-Out Judgment).

19.And as the matter were fact sensitive, the matter should not be dealt with at the striking out, and it was not to shy away from complicated legal questions which otherwise could be resolved summarily.

Costs

20.Costs of this application be paid by the Defendant to the Plaintiffs forthwith, with certificate for two counsel, to be taxed if not agreed.

Mr Kenny Lin and Mr Thomas Nip, instructed by JC LEGAL, for the 1^st to 4^th Plaintiffs

Miss Rosa Lee, instructed by T C Tse & Co, Solicitors, for the Defendant