Keen Lloyd Holdings Ltd v. Chan Ka Man
Read the full judgment text of HCA 2067/2020 on BabelCite. This High Court CFI judgment was delivered on 5 December 2025.
1. In this action, the Plaintiff Keen Lloyd Holdings Limited (“ P ”) sues the Defendant Chan Ka Man (“ Chan ”) to enforce a settlement agreement said to have been reached orally between P’s director Mr Chin Kam Chiu (“ Chin ”) and Chan in a meeting held around early September 2019 (“ the Settlement Agreement ”), which was reached to settle P’s claims in HCA 641/2014 (“ HCA 641 ”) against Chan and her daughter Churk Sin Ki (“ Ki ”).
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HCA 2067/2020 [2025] HKCFI 5929 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE ACTION NO 2067 OF 2020 ______________ BETWEEN
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______________ JUDGMENT ______________ 1.In this action, the Plaintiff Keen Lloyd Holdings Limited (“P”) sues the Defendant Chan Ka Man (“Chan”) to enforce a settlement agreement said to have been reached orally between P’s director Mr Chin Kam Chiu (“Chin”) and Chan in a meeting held around early September 2019 (“the Settlement Agreement”), which was reached to settle P’s claims in HCA 641/2014 (“HCA 641”) against Chan and her daughter Churk Sin Ki (“Ki”). 2.The principal issues are whether the Settlement Agreement in fact had been reached, and whether the Settlement Agreement was supported by consideration (“the Consideration Issue”) in view of, among others, the fact that P’s claims against Chan and Ki in HCA 641 were struck out on 18 January 2017 on the ground that P has failed to pay into court HK$350,000 as security for the costs of Chan and Ki pursuant to an Order made on 7 November 2016. Ms Wong, counsel for Chan, raised 3 more issues that were not specifically pleaded. I will allude to them after setting out the factual background. BACKGROUND FACTUAL MATTERS 3.The factual background matters are rather protracted, some are disputed and some not, or not seriously disputed. I will specify in the narrative below which of them are disputed, and which are not. I will also narrate the factual matters relating to HCA 641 in more detail as Chan raised the question, in relation to the Consideration Issue, as to whether P had a “reasonable claim” against Chan and Ki in HCA 641 and she also contested that it would clearly be an abuse of process if P attempted to revive HCA 641 or commence new proceedings on the same subject matters after the claims were struck out. 4.Of some relevance by way of backdrop as context to evaluate the witnesses’ communications and their conducts and explanations to some of their conducts is the rather misty relationship dynamics between Chin, Chan and Chan’s husband Churk Yat Ming (“Churk”), which would take the narrative back to 1979. 5.In 1979, Chin was introduced to Chan by a friend who tried to pair them up romantically. However, later Chin introduced Chan to his friend Churk. Chan later married Churk, and they have 2 daughters and a son - Ki is their eldest daughter, and I will call the other daughter “the 2nd Daughter” and their son “the Son”. 6.It is common ground that Chin and Chan in all these years up to the present disputes had remained good friends and in a cordial relationship. As for Chin and Churk, Chan said they were like “brothers”, which Chin did not accept. Chin said he trusted Chan and not Churk, and also said in evidence that he telephoned Chan more than he telephoned Churk, which was not disputed by Chan. In oral evidence, both Chin and Chan, and more on the part of Chan, portraited Churk as not a good or responsible husband to Chan. Chin in his witness statement said Churk had an affair with one Madam Tai in Mainland (“Tai”) and they had given birth to a daughter, but this apparently was not accepted by Chan. Chin’s evidence, and not seriously disputed by Chan, was that in around 2005 Chan with tears blamed Chin for having paired her up with an unworthy man as Churk, which according to Chin, made him felt guilty and wanted to make it up to Chan. Chan said in oral evidence that Chin had a secret crush on her, which Chin denied. On the other hand, Chin said that he never dated Chan, but rather, Chan said to him in around 2005 that she in fact initially had a liking towards Chin. 7.The upshot was, according to Chin, that Chin was willing to, and did, provide substantial financial assistance to Churk and the daughters when such were requested by Chan, and not when requested by Churk. Such instances of assistance were said by Chin to include the following :
8.At trial, Chan initially disputed the provision of assistance by Chin mentioned in the preceding paragraph, but later did not dispute them seriously and instead said in cross-examination that she did not request such assistance from Chin, and that it was because Chin and Churk “有協商，有另外交易” (but without giving any details) that Chin agreed to provide such assistance. 9.Since the beginning of January 2012, the banks had refused to comply with the banking instructions given by P, its subsidiaries and Chin in respect of their respective bank accounts due to on-going investigations by the Custom and Excise Department over suspected illegal smuggling and money laundering activities. 10.The following is a broad summary of the factual allegations made by P as the plaintiff in HCA 641[1] against Churk (as 1st defendant), Zhenwei Limited (“Zhenwei”)(as the 2nd defendant), Chan (as the 3rd defendant), and Ki (as the 4th defendant):
11.On 9 April 2014, P commenced HCA 641 initially against Churk and Zhenwei. On 11 April 2014, P obtained a Mareva injunction against Churk (“the 641 Mareva Injunction”). 12.I also note at this juncture that since very early on Churk had made a number of express admissions, including (a) the Chinese AOD, (b) his apologies to Chin and admissions that he has taken the money to speculate on stocks hoping to improve the livelihood of his family given in the whatsapp messages he exchanged with Chin between 1 April 2014 and late April 2014[4], and (c) in his Defence filed in HCA 641 on 3 November 2014. 13.Pursuant to the Order of G. Lam J (as he then was) given on 16 May 2014 and by their solicitors’ letter of 26 May 2014, Bank of China confirmed that the Forged Bank Statements were forgeries[5] and produced to P a complete set of 23 bank statements of the Zhenwei BOC Account covering the period from February 2012 to December 2013[6]. 14.By re-amendment made on 15 August 2014, P joined Chan and Ki as 3rd and 4th defendants in HCA 641 and sued them for :
15.None of what P alleged in HCA 641 is accepted by Chan for the present purpose. Chan’s stance in this action in gist is that (a) she particularly denies she was present in the January 2012 Meeting at all, and therefore denies she had given the Oral Guarantee, (b) she does not seriously dispute the Trust Agreement or that Zhenwei had received and held P’s money in the Zhenwei BOC Account or that there had been unauthorized withdrawals of P’s money therefrom, but strenuously denies any involvement therewith or any contemporaneous knowledge of the same, and (c) she initially disputed, but later in the course of trial did not dispute that since the end of January 2012, Chin continued to fund Ki’s and the 2nd Daughter’s educations overseas despite Chin, P and P’s subsidiaries could not operate their bank accounts, but the tenor of her evidence was that she was not even involved with such funding by Chin to the 2 daughters, and had no knowledge as to how much, how or when the 2 daughters were paid such funds from Chin. 16.The fact that the Forged Bank Statements sent to P were forgeries are indisputable as Bank of China had confirmed that they were. 17.On any view, this is evidently a serious case of forgery and uttering forged documents, as shown by :
18.It is undisputed, as shown by the names of recipients disclosed by Bank of China[7] and the fact that the genuine bank statement[8] shows the transaction but the corresponding Forged Bank Statement[9] does not, that on 21 February 2012 HK$100,000 was transferred into Chan’s bank account without P’s authority. 19.It is also undisputed that four of the Forged Bank Statements covering September to December 2013 were sent on 27 January 2014 to P electronically as attachments to an email sent from the email address of the email account belonging to Ki[10]. 20.Regarding the forgery and Ki’s possible involvement, Chan essentially said that she was not involved nor had or has knowledge of what happened but at this trial she attempted to offer many explanations to exculpate Ki. While Chin’s[11] and Fu’s[12] evidence given in their witness statements, not accepted by Chan, is that when Chin questioned Churk during the March 2014 Meeting, Churk told him that the Son and Ki altered the genuine bank statements and that since Ki worked in a bank, she was familiar with bank statements, Chin further said that he telephoned and talked to Ki on 31 March 2014 and on the next day and Ki said that Churk and Chan asked her to alter the bank statements and Churk asked her to send them to P by email. 21.Another related factual dispute is that Chin said in his witness statement[13] that by mid July 2013 Churk had not met with Ms 林雅茵 (a manager of P)(“Lam”) for several months to verify the transactions and monthly balances in the Zhenwei BOC Account (as he should have), Chin then telephoned Chan to chase up and he together with Fu met Chan in 名爵酒樓in Wanchai North several days later, at which meeting Chan handed to Chin 3 of the Forged Bank Statements covering the months of February to May 2013[14]. Chan completely denies that the incident ever occurred and also denies generally her involvement or knowledge of the arrangement that P’s fund had been deposited into the Zhenwei BOC Account. 22.As have been mentioned as one of the allegations in HCA 641, on 1 April 2014 when Zhenwei failed to repay the Balance and Chin was unable to contact Churk, Chin reported the matter, including the forgery, to the police. Chin gave 3 police statements, one on 1 April 2014[15], another on 30 July 2014[16] and the last one on 5 August 2014[17]. Fu gave his police statement on 9 October 2014[18]. 23.Going back to HCA 641,
24.According to Chin, and not disputed by Chan, since 2012 P was embroiled in various litigations with the Commissioner of Customs and Excise; while Chin (together with others) was investigated and then prosecuted in 2015 under case no DCCC 919/2015 for a number of offences, principally dealing with property known or believed to represent proceeds of indictable offence, and from 1 September 2015 to mid December 2016 he was denied bail and was remanded in custody. He was then heavily preoccupied in preparing for the defence of the criminal proceedings and then attending the 97-day criminal trial. 25.On 26 June 2019, the verdict in DCCC 919/2015 was delivered whereby Chin was acquitted of all charges. 26.According to Chan, since July 2019, some “third parties” (actual words used by Chan: “第三方人士”[19], which Chan did not name) contacted Churk and her many times to demand payment of the Balance to P, they suggested to them to sell the property held by Churk and Chan as joint tenants and known as Flat J, 2nd Floor, Block 10, Fullview Garden, No 18 Siu Sai Wan Road (“the Property”) and to use the proceeds for repayment. They harassed them by, among others, pouring red paint on the premises of the cleaning company owned and operated by Chan and making harassing phone calls to Churk, herself and Ki. Chin denies any knowledge or involvement with such alleged activities of these “third parties”. 27.It is common ground that around noon time one day in early September 2019, Chin and his 2 friends met with Chan, Churk and their 2 companions in the Chinese restaurant China Hall (御苑) in Kwai Fong (“the September 2019 Meeting”), where and when, according to P, the Settlement Agreement was orally reached, but according to Chan, such was not even talked about. The parties’ respective factual versions on what in fact happened in the September 2019 Meeting were diagonally conflicting. That would be the principal factual issue to be resolved. 28.There were some disputes over certain actions following up with that meeting, which I will in due course also deal with. It is common ground that in respect of HCA 641 certain negotiations took place leading to the exchange, or negotiations took place by the exchange, of a number of without prejudice solicitors’ letters between Messrs Ho Tse Wai & Partners (“HTW”) and Messrs Ivan Tang & Co (“IT&Co”) from December 2019 to May 2020 (“the 641 WP Letters”). The parties dispute hotly over the purport and probative value of these letters concerning the disputed issues at hand. 29.According to Chan, in November 2019 and late April 2020, the “third parties” continued to harass her, Churk and Ki. 30.I would mention at this juncture that in oral evidence, Chan repeated said that the “third parties” who harassed her as mentioned in §26 above, who attended the September 2019 Meeting (as will allude to below), and who were mentioned in the preceding paragraph were members of triad societies (黑社會) and that they were acting at the behest of Chin. 31.On 15 July 2020, Churk took out a summons in HCA 641 to discharge or vary the 641 Mareva Injunction on the ground of delay in prosecuting the HCA 641. It was heard on 14 August 2020 before Q Au-Yeung J. By her Ladyship’s decision dated 26 August 2020, the learned judge varied the 641 Mareva Injunction by giving leave to Churk to sell his 50% interest in the Property and to sell certain stocks held in his name and ordered the proceeds of the sales (net certain expenses) be paid to P in satisfaction of the Summary Judgment Sum. 32.The net proceeds of the sale of the stocks (after deducting certain expenses and costs) in the sum of HK$3,077,290.19 were paid to P in November 2020. However, Churk has not taken any step to sell the Property pursuant to the said Order of Q Au-Yeung J. 33.On 11 December 2020, P commenced the present action against Chan to enforce the Settlement Agreement. OTHER ISSUES RAISED BY CHAN AT TRIAL; CHAN’S PLEADED CASE REGARDING THE SETTLEMENT AGREEMENT 34.In her opening submission, Ms Wong raised, apart from the principal issues I set out in paragraph 2 above, the issue of “whether the [Settlement Agreement] was intended to be legally binding”. In her closing submissions, she further raised two additional issues of “whether the [Settlement Agreement] was of sufficient certainty” to make it enforceable and whether there was “a meeting of the minds between the parties”. 35.Chan’s pleaded case regarding the Settlement Agreement is as follows. 36.In §3 of her Amended Defence pleading to §2 of the Amended Statement of Claim in which the Settlement Agreement was first mentioned, Chan denied the Settlement Agreement and put P to proof, and further specifically averred:
37.Then, in §9 of her Amended Defence, Chan specifically pleaded to §9 of the Amended Statement of Claim in which the September 2019 Meeting and the formation of the Settlement Agreement were pleaded. Chan there barely denied that any agreement (including the Settlement Agreement) was reached between Chin and Chan and put P to proof. She then repeated §3 of her Amended Defence, and averred that Churk and her were further harassed “due to the Plaintiff’s failed attempt to reach an agreement with Chin (sic, should be Churk) and/or the Defendant”. I note that Chan did not deny the occurrence of the September 2019 Meeting there, or pleaded any averment regarding what happened in that meeting. 38.Thus, the 3 newly raised issues were not specifically pleaded in Chan’s Amended Defence. I would therefore only consider them in the context of Chan putting P to proof generally and would be particularly wary of any specific contentions or of any reliance on any specific matters to argue these 3 “issues” which were only raised in submissions. HAS THE SETTLEMENT AGREEMENT IN FACT BEEN REACHED? Approach in assessing credibility and reliability of evidence and fact finding 39.The basic principles and approach are trite and not disputed. They have been helpfully summarized by DHCJ Eugene Fung SC (as he then was) in Hui Cheung Fai & Another v Daiwa Development Ltd & Others (HCA 1734/2009, unrep, 8 April 2014):
40.Moreover, it is also well established that if a witness has told lies on a central issue, that may have a significant adverse impact on the credibility of his or her evidence as a whole (Progetto Jewellery Co Ltd v Lau Chiu Ying [2020] HKCFI 209 at §§28-31; PC Enterprises (HK) Ltd and Another v Chan Wai Ching [2021] HKDC 966 at §41). Parties’ respective factual versions regarding the September 2019 Meeting; the terms of the Settlement Agreement according to P 41.P’s pleaded case on the Settlement Agreement is that during the September 2019 Meeting, Chin on behalf of P and Chan
42.Chin said the same in his witness statement. In oral evidence, Chin further said that (a) in early September 2019, he had called Chan asking when she would repay the Balance and he had said that if Chan did not repay, he would revive HCA 641 or raise a new claim (“the Revivial Threat”); and then later, Chan called him, said that she had discussed the matter with Churk and arranged for the September 2019 Meeting, (b) 2 friends of his visited from Mainland and as no other convenient time could be arranged for the September 2019 Meeting, the 2 friends came along but they sat at another table and did not join any discussion between him and Chan, and (c) in the September 2019 Meeting when he saw Churk, he asked Churk to sit elsewhere as the police had told him that he should not have any communications with Churk pending the criminal investigation; but before Churk left the table, Churk said that he promised to pay the balance outstanding (ie., whatever amount that would still be owed to P after the sale of the Property and payment of the proceeds), interest and costs. 43.I would also add that in P’s Statement of Claim and Reply[21], it was pleaded that one Mr Chan of IT&Co (now solicitors acting for Chan)(“Mr Chan”) was named by Chan to Chin in the September 2019 Meeting as the person to contact for follow up and that shortly after the September 2019 Meeting, Chin met with Mr Chan who confirmed that Chan was willing to sell the Property. 44.Regarding Chan’s case, I have already in §§36 and 37 above alluded to what Chan’s pleaded case is in disputing the Settlement Agreement. Chan’s version on what happened in the restaurant during the September 2019 Meeting is somewhat unusual. I will quote what she said in her witness statement:
45.In short, Chan’s version in her witness statement is that there was no actual meeting with Chin at all on that occasion. Chan said in oral evidence, not disputed by Chin, that one of the 2 “relative and friend” that attended the September 2019 Meeting with Chan and Churk was Mr 黎輝 (“Lai”), the son-in-law of Chan’s sister, who was acquainted with Chin, and the other person attended was a friend of Lai. 46.While nothing was said there by Chan responding to P’s allegation that shortly after the September 2019 Meeting, Chin met with Mr Chan who confirmed that Chan was willing to sell the Property, it follows logically from her account that there should not have been any such meeting between Chin and Mr Chan discussing the sale of the Property. The witnesses and their general credibility 47.P called Lam, Fu and Chin as its witnesses. Chan was the only witness for her case. 48.Lam worked for P as its office manager from 1996 to June 2015 and since left the employment of P. Her evidence covered matters relating to HCA 641. The more significant aspects of her evidence for present purposes were that she reported to Chin in early June 2013 that Churk has been avoiding the monthly verification of the Zhenwei BOC Account and that later Chin handed 3 monthly bank statements of the Zhenwei BOC Account covering the months of February to May 2013[22] to her saying that he received them from Chan, and Lam noted it down at the bottom margin of the 3 statements with the words “由卓太交秦生”. These 3 bank statements were some of the Forged Bank Statements. These, if accepted, would corroborate Chin’s version and shatter Chan’s version that she had no knowledge and was completely uninvolved with matters relating to the payment of P’s funds into the Zhenwei BOC Account. Lam was only briefly challenged on these in cross-examination and Lam maintained her such evidence. Having seen and heard carefully Lam giving evidence, I am positively impressed by her as a witness and find her generally a credible and reliable witness. 49.Ms Wong in closing submissions submitted that the claim in HCA 641 was a “non-issue” and criticized P for “turning this trial to a trial within a trial on the HCA 641 claim”. I however recalled that in opening submissions she challenged broadly including on the merits that P had no “reasonable claim” at the time of the Settlement Agreement. In any event, it seemed to me very clear at trial and to all parties that the fact that Lam’s such particular evidence, if accepted, could and would have significant bearing on the Court’s assessment of credibility of Chan’s evidence and stance. 50.Since 2009, Fu has been an employee of P and he at all material times worked as Chin’s personal assistant. He left P’s employment in 2015 or 2016. Again, his evidence related to the HCA 641 matters. Three matters he said in his short witness statement bear some significance. First, he stated very positively that Chan was present in the January 2012 Meeting and there made the Oral Guarantee in clear terms, thus, directly contradicting Chan’s evidence and stance. Second, in the March 2014 Meeting (in which he was present) he also heard Churk said that Ki and the Son helped him altered the bank statements and that Ki was working in a bank and “對呢啲嘢好熟”. Third, he overheard the telephone conversation between Chin and Ki later that day on 31 March 2014 that Chin told Ki that Churk said to him that the bank statements were “made” by Ki and the Son. Fu was cross-examined on these matters in some details and remained unshaken. I also note that Fu stated the first and second matters (but not the third) equally clearly in the police statement he gave on 9 October 2014. When giving evidence, Fu was calm, composed and direct. I am favourably impressed by him as a witness and find him generally a credible and reliable witness. 51.Chin is relatively uneducated but nevertheless a self-made successful merchant. He evidently was very familiar with court proceedings having acted in person and sat as a witness in a number of proceedings, both civil and criminal. My impression is that he is smart and thoughtful, if not evidently intuitive, rather direct and even blunt. 52.Contrary to what Ms Wong contended, I do not find Chin an evasive witness as he almost invariably answered factual questions instantaneously and directly. I accept that Chin has a tendency to be argumentative, and that was shown when he answered a number of Ms Wong’s questions over the 641 WP Letters. I would comment on this in due course in their proper setting when I discuss the 641 WP Letters. Apart from the answers on the 641 WP Letters, Chin was argumentative in cross-examination in a number of other instances, but I noted that he was so not when he was first asked a factual question, rather, he sometimes retorted and argued when his earlier answer was sharply challenged by Ms Wong based on her reasoning or deductions. 53.Ms Wong acknowledged that Chin’s witness statement was lengthy and contained many details, including those on dates (as far as he can remember), places, persons attending and referred to many contemporaneous documents which were annexed to his witness statement (including many whatsapp contemporaneous messages); but Ms Wong criticized that many events and matters spoken of were irrelevant. There was no complaint from Chan that Chin gave these accounts otherwise than consistently in his said 3 police statements, in the pleadings and witness statement in HCA 641. Chin was cross-examined extensively and remained unshaken. 54.Amidst these details given by Chin and after the extensive cross-examination, essentially now 4 matters are or can be put forth by Ms Wong to challenge his credibility. They are :
55.As said, I will deal with matters relating to the 641 WP Letters below, and would discuss the rest here. 56.On the second matter, I think there is some force in Ms Wong’s point essentially that if the Revival Threat was spoken at the time as Chin now said, Chin ought to have been aware of the significance of such communication, and as his style and character would have it, Chin ought to have mentioned it in his rather detailed witness statement. I would accept on balance of probabilities that this particular aspect was an afterthought on Chin’s part to embellish P’s case. However, save this particular aspect, I would accept Chin’s evidence that he had called Chan to demand repayment (but without speaking the Revival Threat) and would accept his explanation that he did not mention this conversation as it seemed to him an insignificant detail. In my judgment, considering all the matters in the round, this one instance of embellishment is not at all sufficient or significant enough to dissuade me from my overall assessment of Chin’s general credibility. 57.On the third matter, apart from challenging such evidence as not having been mentioned in Chin’s witness statement, Ms Wong also confronted Chin in cross-examination that his such evidence was contradictory to what was pleaded in §3(4)(b) of P’s Reply, that “… During the Meeting, Mr. Chin did not speak with Churk, who sat at a separate table, as Mr Chin and Mr Churk could not have any communications pending a criminal investigation”. Chin’s answer was that it was pleaded that he did not speak with Churk, but not Churk did not speak with him. Ms Wong submitted that such was a “fallacious argument” and showed that Chin was an unreliable and incredible witness. With respect to Ms Wong, I accept Chin’s answer as accurate and logical and not a “fallacious argument”. I also accept Chin’s explanation as to why Churk’s such words were not mentioned in his witness statement, which was that what Churk promised was not the subject matter of this action. In fact, that is consistent with the gist of P’s case that after the agreed sale of the Property and payment of the sale proceeds to P, only Chan’s and Ki’s liability would be completely discharged, and there was no promise that Churk’s liability would be completely discharged. 58.On the fourth matter, I think Ms Wong’s criticisms over Chin’s answers over what he meant or understood as the reason why he could not speak with Churk when the criminal investigation against Churk was still pending are but nitpicks, that I will not place weight on in assessing Chin’s credibility. 59.One matter I would particularly take note in considering Chin’s general credibility, which is this. Chin were upfront in the Statement of Claim and Reply[23] in that it was pleaded there (essentially divulging at the first opportunity) that Churk and Chin’s 2 friends (whom now Chan accused as triad society members) were also present in the crucial September 2019 Meeting, and that Mr Chan was named by Chan to Chin in the September 2019 Meeting as the person to contact for follow up and Chin did met with Mr Chan who confirmed that Chan was willing to sell the Property; and P/Chin readily accepted and not at all dispute Chan’s version that Lai and his friend were also present in the restaurant during the September 2019 Meeting. The significance of these is that P/Chin readily expose the crucial events of P’s case to easy challenge by D calling Churk, Lai, Lai’s friend, and Mr Chan as witnesses, to rebut P’s present allegations. Yet, as I will say more, none of these people were called as witnesses, with no, or with no good, explanations proffered by Chan. 60.In all, I do not accept Ms Wong’s submission that Chin was not a credible or reliable witness. On the contrary, I find his evidence generally consistent, cogent, logical and credible. 61.Chan received education up to Primary 5, been a housewife for a long time, and since 1989, she owned and operated a small laundry shop. 62.Ms Leung, counsel for P, submitted that it was demonstrated by examining several aspects of Chan’s evidence that the same was devoid of credibility. In her closing submissions, she referred to many parts of Chan’s evidence and quoted them to substantiate. Ms Wong submitted that in evaluating the inherent probability of events and matters, “it is essential to consider [the witnesses’] background, personal characteristics and level of sophistication”. Indeed and is trite, the Court, no less this Court, would consider and weigh all the pertinent matters, not only limited to those mentioned by Ms Wong, to evaluate the evidence, their credibility, as well as the inherent probability of matters spoken to by witnesses. 63.Ms Wong attempted to draw a sharp contrast between Chin, being an experienced and successful entrepreneur, and Chan, whom she described as an unsophisticated, uneducated, ignorant, and muddled layperson that had difficulties and struggled to understand but simple and straightforward sentences. 64.Having carefully observed and heard Chan giving evidence, I am unable to accept Ms Wong’s description of Chan as a witness. I do not think Chan was as simplistically minded, uninterested, ignorant, uninvolved or unable to be involved with Churk’s affairs and business and with Ki’s affairs as she appeared or as she said. Nor do I think she was a victim of circumstances, of the entire fault of Churk or of the false accusations of Chin, as she attempted to portrait or suggest to be in the witness box. In my judgment, she is more thoughtful and calculating a person than she appeared. I think the frustration and the apparent inability to comprehend a question she many times showed when pressed in cross-examination were often times but one of the means she employed to try to evade answering the question directly and forthrightly when she was cornered. That said, I would reiterate that in understanding and evaluating the matters discussed in the next paragraph, I have already borne very much in mind the pertinent matters relating to her background. 65.I consider that the following matters or aspects of Chan’s evidence are telling in informing this Court that Chan is not a credible witness :
66.I thus find that Chan was an incredible, unreliable and untruthful witness who was willing to say anything though untrue or inaccurate to further her own cause. Unless corroborated by reliable or objective evidence, I would reject Chan’s evidence and prefer Chin’s whenever they conflict. Adverse inference drawn against Chan’s version of the September 2019 Meeting for failure to call Churk, Mr Chan, Lai and Lai’s friend as witnesses 67.In her opening submissions, Ms Leung already indicated that P would be asking the Court to draw such an adverse inference. 68.Ms Wong in her opening submissions contended that there was no property in a witness and P should and could have also called Churk and thus no such adverse inference should be drawn against Chan. With respect to Ms Wong, such contention need only to be stated to be rejected. Churk is Chan’s husband, he was sued with Chan as co-defendants by P in HCA 641 for, among others, having together made and being liable under the Oral Guarantee, for perpetrating the unauthorized withdrawals, for fraudulent concealment and conspiracy to injure by unlawful means. If P subpoena Churk to be P’s witness, P would be bound by Churk’s evidence unless leave is obtained to turn him into a hostile witness. To even suggest that P should call Churk as its witness is wholly unrealistic and wholly without merits. 69.As should become very apparent by now, Chan’s factual case regarding the September 2019 Meeting consists of an event that occurred in plain sight of Churk, Lai and Lai’s friend - that save the initial 2-sentence exchange of greetings between Chan and Chin, there were no verbal exchanges whatsoever between Chin and Chan, and then Chin left while Chan, Churk, Lai and Lai’s friend together spoke with the “third parties”. The potential witnesses would not even be required to remember any conversation. The evidence that Churk, Lai and Lai’s friend need to give to completely rebut P’s version could indeed be very simple and straight forward. 70.In my judgment, this is a clear instance that had Chan’s version about the crucial September 2019 Meeting been true, it should be a no-brainer for Chan to call Churk, Lai and Lai’s friend as witnesses to corroborate her version. 71.Such considerations apply with greater force to the situation of Mr Chan. According to P and Chin, Mr Chan at the time was an employee of IT&Co and Chin and Mr Chan met in the office of IT&Co. Evidently, there would be the additional complication for P to try to call Mr Chan, an employee of Chan’s solicitors, as P’s witness. On the other hand, if Chan’s version were true, there should be little problem for Chan in asking one of the employees of her solicitors to testify. Additionally, Mr Chan’s evidence could arguably be of greater probative value as, unlike Lai and Churk who are related to Chan, Mr Chan would be an independent witness. His evidence would also be very straightforward – that there was no such meeting or conversation with Chin ever having taken place as Chin alleged. Or if there was no such Mr Chan in the employ of IT&Co at the material time, someone from IT&Co could also give simple but direct evidence on it. 72.In my view, this is a clear case that unless good reason can be given by Chan why they were not called as witnesses, this Court is entitled to draw the inference that the reason for not calling them was that Chan was afraid that their evidence would not substantiate her version. 73.In cross-examination, the reasons given by Chan for not calling them were :
74.The reason given for not calling Churk is clearly untenable. In the whatsapp messages Churk exchanged with Chin (which was forwarded to Chan), Churk had expressed that he was sorry for having done this to Chin, that he would take up the responsibility and he would not want to hurt his family. While the tenor of Chan’s evidence at trial was that she blamed Churk for his fault and felt herself a victim of Churk’s misdeeds and of Chin’s false accusations and that she expressed a great desire that she should be able to keep her half share in the Property. Such being the setting, in my view it is completely incredible and inherently improbable that she would just let Churk have his wish of not testifying, instead of subpoenaing him, about which in all probability Chan would have been advised by IT&Co. 75.In closing submissions, Ms Wong shifted her contention and argued that Churk would be mindful that he would have to give incriminating evidence if he was called to be a witness. First, that is a contention made without any evidentiary basis as Chan never said in evidence that Churk was so mindful about having to give incriminating evidence, but only that he did not want to face it. Second, Churk would have been protected by the privilege against self-incrimination and could have refused to answer questions relating to the alleged forgery. And as I outlined above, the evidence these potential witnesses, including Churk, could give to completely rebut P’s case concerns what actually occurred in the September 2019 Meeting, which is totally unrelated to the forgery. With respect, the argument is as unsupported by evidence as is untenable and unmeritorious. 76.Equally incredible was the reason given as to why Lai and Lai’s friend were not called. Lai was a close relative of Chan. He and his friend were not afraid of ramifications when they accompanied Chan and Churk to attend the September 2019 Meeting, fully prepared to deal with Chin face to face. According to Chan’s version, during the September 2019 Meeting Chin just left the restaurant without saying or doing much, if anything. In the circumstances, I am unable to accept as credible that Lai and his friend are now afraid, years later, to testify for Chan in a court of law in relation to a lawsuit commenced by P. 77.I reject these as mere excuses given by Chan to justify not calling Churk, Lai and his friend. There is simply no reason why Mr Chan was not called by Chan. 78.For these reasons, I will draw an adverse inference against Chan’s version on what happened in the September 2019 Meeting. 79.For completeness, I will deal with 2 more matters. 80.First, I record that I will not draw an adverse inference against Chan for not calling Ki as a witness, as Ms Leung submitted I should. Ki’s evidence would primarily be concerned with the financing of her education, the alleged forgery and the communications with Chin from 30 March 2014 to perhaps at most late April 2014 (when the message quoted in §65(f) was forwarded to her by Chin). Such evidence would not be nearly as material as the said evidence of the other said potential witnesses. Moreover, the concern for self-discrimination clearly would be much more apposite in her situation. 81.Second, in closing submissions Ms Wong argued that Chin “should be equally blamed” for not having called as witnesses his 2 friends attending the restaurant during the September 2019 Meeting. For two reasons I do not agree. First, according to Chin’s case, the 2 friends merely came along, sat at another table from the start, was not even introduced to Churk or Chan. Their evidence would only be that they saw Chin and Chan sit together and talk. With the passage of time, one wonders whether their brief encounter on that occasion would enable them now to even recognize the woman talking to Chin then was Chan. Thus, their evidence would be far from material and the Court would not have expected P to call them to a point of drawing adverse inference for not calling them. Second, unlike Ms Leung who has given prior and fair warning in her opening submissions to Chan about P’s intention to ask the Court to draw such an adverse inference such that Chan could prepare herself to give explanations in oral evidence and Chan was asked in cross-examination to give explanations, no such intimation was given in Chan’s opening submissions, not even during oral opening, nor in cross-examination was Chin confronted and given an opportunity to explain. The 641 WP Letters 82.The parties spent much time at trial disputing the wording, the purport and the other’s reliance on them. Ms Wong cross-examined Chin rather extensively on them and relied heavily on his answers to challenge Chin’s general credibility. As explained below, I think the respective use and reliance that both parties sought to place on the 641 WP Letters were misplaced and the disputes over these letters are red-herrings. 83.The 641 WP Letters consist of altogether 7 letters, 2 of which were in fact open letters while the rest without prejudice as to the disputes in HCA 641. They are, in chronological order :
84.In opening submissions, Ms Leung emphasized the utterance in IT&Co’s letter of 14 May 2020 that the respective clients had reached a full and final settlement and that the sale of the Property and then use of the proceeds to satisfy P’s claim were agreed to, and submitted that such “greatly diminish the likelihood that nothing was discussed or agreed between the Plaintiff and the Defendant”. Ms Wong, on behalf of Chan took great exception to these and contended that IT&Co was then merely acting for Churk and not Chan, that the sale of the Property was agreed to by Churk only. Both counsel then explored with, and pressed questions to, respectively Chin and Chan with various suggestions including, on the part of Ms Leung, that it was impractical that Churk as only one of the joint owners agreed to sell the Property (without Chan’s agreement) and that behind this something had to have been discussed with Chan, that there could not have been any surplus if only half of the proceeds of the sale of the Property (instead of the entire proceeds) was used to pay off HK$7,500,000; and on the part of Ms Wong, that despite HTW was diligent and wrote all these letters, HTW did not mention at the first opportunity (say in HTW’s letter of 31 December 2019) about the Settlement Agreement, but sought clarification (from Churk) what assets he was minded to dispose of, that there were clear references in IT&Co’s letter of 20 April 2020 and 14 May 2020 here and there about Churk paying P only half of the sale proceeds of the sale of the Property, and P/HTW ought to have immediately clarify with IT&Co, and the terms of settlement set out by IT&Co were different from those of the Settlement Agreement. I note that Ms Wong in making these contentions and comments, at the same time maintained strenuously that IT&Co at the time only acted for Churk and not for Chan in connection with HCA 641. 85.I give a broad overview of the arguments and cross-examination questions on the 641 WP Letters above to make the point that in my view both counsel were over-reaching with rather far-fetched suggestions and arguments on the 641 WP Letters that were far removed from a fair reading of those letters. 86.Rather, relating to the 641 WP Letters :
Further discussions and my findings 87.By reason of the above-said, I draw the adverse inference against Chan for not calling Churk, Lai, Lai’s friend and Mr Chan as witnesses, I reject Chan’s evidence relating to and on the September 2019 Meeting, and find against Chan’s version. 88.Ms Wong placed great emphasis on the fact that Chin has not reduced the Settlement Agreement in writing for Chan to sign to confirm, nor has he recorded it in any contemporaneous communication or documents, like whatsapp messages, and P did not seek to enforce the Settlement Agreement until the commencement of this action on 11 December 2020. She essentially submitted that such alone, regardless of whether I accept Chan’s version, was sufficient for me to find on balance of probabilities that the oral Settlement Agreement was not proved. 89.Chin’s explanations given in evidence essentially are (a) all along, his previous monetary dealings with Churk and Chan were not reduced into writing, (b) he trusted Chan, and Chan has told him in the September 2019 Meeting that Mr Chan of IT&Co would be handling the matter, he visited Mr Chan shortly after, Mr Chan confirmed that Chan would sell the Property and would sent a letter to HTW once written authorization from Chan was obtained, (c) when he was informed by HTW that IT&Co mentioned a settlement agreement and its terms, he immediate instructed HTW to write their letter of 21 May 2020 disputing that and setting out, among others, the Settlement Agreement. 90.It is not disputed by Chan that save the Chinese AOD, the loans previously made by Chin to Chan and/or Churk and Chin’s promise and/or arrangement to finance the 2 daughters’ education overseas for years were not reduced in writing, whether contemporaneously or otherwise. Churk in his Defence filed in HCA 641 expressly averred that the Trust Agreement was made orally (though he disputed some of the terms) and not evidenced by any document. The evidence concerning the Chinese AOD, I find, is that Chin became very apprehensive that Churk has misappropriated the Balance and could not repay it, and as he said, even became very angry, and not trusting Churk as much he would Chan, he urgently asked Lam to prepare the Chinese AOD for Churk to sign in anticipation of the March 2014 Meeting. I thus view the Chinese AOD as an exception. I accept Chin’s first explanation. 91.On the second, having carefully observed and heard Chin and Chan gave evidence during those several days of trial and done my best along the way to understand their relationship dynamics and assess their respective credibility, I believe Chin and accept his evidence when he said in cross-examination that at the time of the September 2019 Meeting he still trusted Chan to an extent. I also note the evidence of Chin, which I accept, that in their telephone call prior to the September 2019 Meeting, there was no discussion on the terms of settlement; and therefore, there was no opportunity for Chin to prepare anything in writing in advance before the September 2019 Meeting for Chan to sign. I accept Chin’s evidence that he was informed by Chan in the September 2019 Meeting that he was asked to contact Mr Chan of IT&Co who presumably would be making the detail arrangements and Chin shortly after met with Mr Chan and everything seemed to be progressing. Thus, I do not find his not reducing the Settlement Agreement into writing then was anything out of ordinary, nor do I view his not doing so under such circumstances was indicative that no such agreement in fact had been reached. 92.I also accept the third matter Chin gave by way of explanation, which indeed I have already noted above that he lost little time to instruct HTW to write their letter of 21 May 2020 to unequivocally set out, among others, the Settlement Agreement to respond to IT&Co’s letter of 14 May 2020. I also fail to see how commencing this action in December 2020, as opposed to any time sooner between May 2020 and then, in the time frame of things in this action, has such significance as Chan is now ascribing to it, such as to indicate that the Settlement Agreement in fact has not been reached. 93.In the circumstances, I will not place much weight on the matters mentioned in §88 above. 94.Accepting Chin’s evidence and finding for his version, I specifically find the following : (a) since around July 2019 after Chin was acquitted in DCCC 919/2015, he contacted Chan by phone to demand repayment of the Balance, that Chan reverted to Chin, told Chin that she had discussed with Churk and they arranged the September 2019 Meeting, (b) in that meeting, Churk was asked by Chin to sit apart, but before doing so, Churk said that he would be responsible for the outstanding amount of the Balance, interest and costs after the proceeds of sale were used to repay P, to which Chin did not respond, (c) Chan then agreed to sell the Property and to use the entire proceeds to repay P, while whatever remaining amount owing to P after such payment would be paid by Churk, in consideration Chan’s and Ki’s liabilities on the matters complained against them in HCA 641 would be completely discharged, that Chin on behalf of P and Chan have reached the Settlement Agreement to that effect, Chan then informed Chin to contact Mr Chan of IT&Co to follow up on the sale of the Property, (c) shortly after Chin met with Mr Chan at IT&Co’s office and Mr Chan orally confirmed that Chan was willing to sell the Property and that after having obtained Chan’s written authority, IT&Co would issue a letter to HTW. 95.I would now deal with 2 remaining issues, which were not pleaded by Chan nor addressed to in her witness statement, which Ms Wong now sought to make into significant matters of contention. As I said earlier, it is only right and fair that I deal with them as part of Chan’s putting P to proof, and no more. 96.First, I would unhesitatingly reject Chan’s contention that there was no intention to create legal relations by the Settlement Agreement in that it was “only a domestic agreement”. Chin and Chan were friends, so I am unable to understand what was exactly meant by “domestic” and P has been suing Chan and Ki in HCA 641. Moreover, on either Chan’s version (even though I reject it) or Chin’s version, the September 2019 Meeting was convened and was intended to be a serious discussion and/or negotiation specifically on how Chan would repay P the Balance and the Settlement Agreement was reached therein. On such facts, this contention is a complete non-starter. 97.Another such issue raised was that the Settlement Agreement was “lacking in some essential terms and is uncertain, vague and/or ambiguous”. 98.It is said that there were no provisions on when to sell the Property, the mode of sale, the identity of the estate agent and lawyer to be appointed and on the reserve price. The fact, as I find, was that Chan informed Chin in the September 2019 Meeting that Mr Chan of IT&Co was to be contacted for follow up arrangements and Chin accepted that. It is therefore clear that the parties understood and implicitly agreed that the other detail arrangements were to be agreed on and finalized. In my view, this is evidently a case that the Court would not find an agreement not reached, or reached but unenforceable, simply because such details were left to be further agreed. Rather, the Court would imply that the parties were to agree on such matters reasonably, and I do so hold in this case. 99.For completeness, I will also briefly address the contention raised by Chan here and there that Chan only owned half interest in the Property but the term of the Settlement Agreement orally agreed was that Chan agreed to the sale of the entire Property and agreed to the payment of the entire proceeds of the sale to P. The trite law is that the language of an agreement is to be properly construed objectively by reference to the factual matrix. The factual matrix to the Settlement Agreement was that (a) Churk was already adjudged in July 2016 to be liable to pay P the Summary Judgment Sum, over which Churk has not made any payment and his assets (including his half interest in the Property) were liable to be enforced on by P, (b) Chan has indicated to Chin that she had discussed with Churk, and in the September 2019 Meeting Churk was sitting nearby Chin and Chan and Chan could have easily conferred with Churk there and then if she had any doubt on Churk’s intention or position, (c) Chan owned the other half share in the Property the sale of which in practice would require her agreement (as the other co-owner) or commencement of another set of proceeding to force a sale against her wish, and (d) both Chan and Chin were not lawyers and would not have been familiar with the intricacies, niceties and precise language relating to a settlement agreement reached with only one of the co-owners concerning the sale of a co-owned property to settle liabilities jointly owed by the 2 co-owners and a third person, but discharging the liabilities of only one co-owner and the third party but not those of the other co-owner. In my judgment, construing the Settlement Agreement against such factual matrix, the terms of the agreement were that Chan, on her part as the other co-owner, agreed to the sale of the Property and to pay her half share of the proceeds to P in consideration of P’s complete discharge of her and Ki’s liabilities. THE CONSIDERATION ISSUE 100.In her opening submissions, Chan stated that the contention was that P’s consideration given for the Settlement Agreement was a forbearance to sue on an invalid claim – as P’s claim against Chan and Ki were struck out for having defaulted to pay security for costs - which was not good consideration. In closing, the contention was refined to that any new claim brought by P against Chan and Ki on the same facts and subject matters as in HCA 641 would be struck out as an abuse of process, such that, or that, Chin did not in good faith believe he has a chance of success in P bringing such new claim, or that Chin knew such new claim would be baseless. 101.The general principles concerning forbearance to sue as consideration are not disputed by parties though each relies on different authorities. 102.Ms Leung cited and relied on the following passages from Foskett on Compromise (9th ed) §§3-08, 3-09 and 3-11 ;
103.Ms Leung also referred to the judgment of K Yeung J in Tse Yong Lai v Chan Ting Lai [2023] HKCFI 1416 in which he cited with approval at §21(j) a passage in Chitty on Contracts, 34th ed., vol 1 at §6-050 :
104.Ms Wong cited and relied on the statement of law in CFL Finance v Laser Trust and Another [2021] Costs LR 231 at §37 :
105.On P’s ability to bring a new claim against Chan and Ki on the same facts and subject matters when its claims against them in HCA 641 were struck out for default of paying the security for costs, Ms Wong and Ms Leung disputed on the applicable principles. 106.Ms Leung cited Hu Hung Chiu v Pacific Electric Wire & Cable Co Ltd [2018] 5 HKLRD 767 and Global Bridge Assets Ltd v Sun Hung Kai Financial Ltd [2015] 5 HKLRD 453 as examples that the Court has an inherent jurisdiction to stay the second action sued on the same subject matter until the costs of the first action had been paid. Ms Leung essentially submitted that upon payment of the costs of the 641 Action, P would have no other hurdle to overcome in bringing a new claim. While the Court in the above 2 actions did hold that it has such a jurisdiction to stay the second action (indeed, in Global Bridge Assets Ltd DHCJ Le Pichon (as the retired learned JA then sat as) held that the Court has jurisdiction to strike out the second action if such costs were not paid), the related first or earlier proceedings, the underlying facts, and the procedural history in these 2 actions were rather usual and together rather complex. The 2 cases are clearly distinguishable. 107.I do not accept that the only hurdle P would face if it were to commence a new action would only be the payment of the costs of HCA 641. Payment of such costs would be but one of the matters P may have to comply with. That does not displace the principles as to striking out the second action for abuse of process as submitted by Ms Wong, as set out in the next paragraph. 108.I accept as correct Ms Wong’s submission that the principles for striking out as an abuse of process a second action brought on the same facts and subject matters as the first action which was struck out for failure to comply with a peremptory order are as set out in §9 of the English Court of Appeal case of Harbour Castle Limited v David Wilson Homes Limited [2019] EWCA Civ 505:
109.I will apply these principles to the facts. 110.I have mentioned that at trial Chan broadly challenged that P did not have a reasonable claim against Chan and Ki in HCA 641, even on the merits. By reason of all the matters I said earlier, I think it is evidently clear without need for further labouring on it that P has a fair chance of success in at least some of the causes of action pleaded against Chan and Ki in HCA 641. 111.I think it is very evident from reading the whatsapp messages Chin sent to Churk, Chan and Ki in the period between 1 April 2014 to late April 2014, no less the message he sent to Chan on 25 April 2014 confronting her with the Oral Guarantee, that he felt indignant (if not very angry as he said) that after all the help he had provided to them, Churk, Chan and Ki broke the trust, misappropriated P’s funds for over 2 years but covered them up fraudulently by presenting to him persistently the Forged Bank Statements. It is equally evident from hearing his live evidence that he remained indignant and still harboured a strong sense of injustice that Churk and Chan could so blatantly steal P’s money and covered it up fraudulently and still resisting to fully repay P to date. 112.On the evidence before me, I find it very evident that Chin has been believing bona fide and all along that P has an undeniable claim against Churk, a very good claim against Chan at least on the Oral Guarantee and a fair claim against Ki. Indeed, I would even say that Chin has been harbouring a strong conviction to ventilate P’s claim against Churk and Chan. 113.While I accept that in cross-examination Chin initially was rather hesitant and equivocal about his intentions relating to pursuing the criminal complaint of forgery against Ki, but when pressed he did towards the latter part of his cross-examination express to the effect that he had had good relationship with and still cared about Ki and did not want to harm her (which evidence I believe and accept). That said, I am not at all persuaded by the various intertwine and argumentative matters raised by Ms Wong in her closing submissions under the sections “The Scope of Forbearance to Sue : The Matters which it Covers” and “The Scope of Forbearance to Sue : The Parties which it Covers”, relying on such hesitancy and equivocalness over pursuing the criminal complaint against Ki, and enlarging it to also encompass the civil claims, and submitted that P did not believe in good faith it had a fair chance of success or did not intend to pursue the civil claims. I firmly reject such submissions. 114.It seems to me, applying the principles, the remaining pertinent issues are (a) whether, as Ms Wong submitted, that if P were to bring a new claim, such new claim would invariably be struck out as an abuse of process, (b) if indeed such intended new claim would invariably be struck out as an abuse of process, whether P on its part knew about it at the time of the Settlement Agreement, and (c) regardless of the answers to (a) and (b), did P believe bona fide that at the time of the Settlement Agreement that it still has a reasonable claim against Chan and Ki after the claims against them in HCA 641 was so struck out in January 2017. 115.Whether such new claim would be struck out as an abuse of process depends on whether P can show, and the burden is on P to show at the time of an application to strike out, that it did not deliberately fail to comply with the Order for payment of security for costs. 116.Chin directly and simply explained in evidence that P’s and its subsidiaries’ bank accounts had been frozen since January 2012, and by November 2016 to January 2017 (the period in which P was required to pay the security under the original Order and then a subsequent Unless Order), the bank accounts had been frozen for almost 5 years and P thus could not pay the security. 117.Ms Wong strenuously disputed that and submitted that P would be bound to fail in resisting such a striking out application. She contended that (a) P in fact instructed HTW and commenced HCA 641 in 2014 and had taken many steps, including having applied for and obtained a disclosure order and the 641 Mareva Injunction and filed 3 witness statements; thus Chin’s claim that P had no funds was false, and (b) P should have urgently or hastily enforced against Churk the payment of the Summary Judgment Sum (judgment obtained on 25 July 2016) by timely seeking the required court orders to sell Churk’s stocks (which IT&Co divulged for the first time Churk had in their WP letter to HTW dated 20 April 2020), which should be in time (within 28 days after 7 November 2016) to pay the security with the cash so obtained from such sale. 118.On the first contention, as the undisputed fact remains that all the bank accounts of P and its subsidiaries were in fact so frozen since January 2012 (which was almost 5 years prior to the time P was required to pay the security) and the restraint order was discharged only on 18 October 2019, and having found Chin generally credible, I accept Chin’s evidence that P did not have the financial resources to fund HCA 641, which was funded by a third party who by late 2016 refused to put up further money to fund the litigation by paying the security. 119.On the second contention, I understand Ms Wong’s argument effectively was saying that such failure on P’s part to foresee, and to get prepared in advance of, Chan’s and Ki’s success in obtaining the order to pay the security for costs and thereby failed to urgently enforce the payment of the Summary Judgment Sum against Churk in time to obtain the money from Churk (which money P otherwise could have successfully obtained but for such failures) to pay the security made P’s failure to pay the security deliberate. I have set out the time frame above and would only need say that such argument and its premises are very much debatable. 120.For present purpose, I am not required to, and indeed should not, come to any firm view as to whether P could successfully resist a striking out application for abuse of process by Chan and/or Ki if P were to commence a new claim. Suffice for me to conclude on present materials, and I do so conclude, and do so by considering the matters in the round, that P at least would have a fair chance of success in persuading the Court then that it did not deliberately fail to comply with the order to pay security for costs and therefore is not abusing the process in commencing a new claim. 121.As I do not find for the contention that the striking out would surely succeed, there is no question about P/Chin knowing it at the time of the Settlement Agreement. 122.Based on the above-said in this section and the fact, as I find, that Chin called Chan in early September 2019 demanding settlement of the Balance and Chin’s own evidence that at that time (and up to now still) he believed that P has a good claim against Chan and Ki, I find at the time of the Settlement Agreement, P did believe bona fide, that P still had a claim with fair chance of success against Chan and Ki and I also find that in fact P then had such a claim. 123.I thus find that the Settlement Agreement was supported by good consideration. 124.For completeness, I will briefly mention 2 matters. First, it is trite law that consideration need only to be sufficient and not adequate. Therefore, in my view, P’s bona fide belief that it has (and as a matter of fact it has) a claim with fair chance of success against Chan alone was already sufficient consideration to support the Settlement Agreement regardless of whether that was so in respect of P’s claim against Ki. Second, the principles on forbearance to sue as consideration do not require the actual threat to sue to have to be expressly communicated, therefore the fact, as I find, that Chin had not communicated to Chan the Revival Threat is neither here nor there. DISPOSAL AND RELIEF 125.In the premises, I find for P’s claim and give judgment to P. 126.In P’s Amended Statement of Claim, P does not seek specific performance, but seeks the relief by way of damages, being the payment by Chan of the sale proceeds or a sum equivalent to the sale proceeds or equivalent to the market value of the Property. On my holding of the true construction of the Settlement Agreement above, Chan only promised to pay to P her half share of the proceeds of sale of the Property. 127.Neither P nor Chan has adduced any valuation report compiled specifically for this action nor did they say anything in their witness statements or their closing submissions on the question of quantum. The only material before me is the valuation report of K.T. Liu Surveyors Limited dated 3 August 2020 commissioned by P, which pre-dated the commencement of this action. There, the market value of the Property, with the alienation restriction (which I understand is the case), was opined at HK$4,150,000. 128.Based on such only evidence, I will give judgment ordering Chan to pay P half of HK$ HK$4,150,000, that is HK$2,075,000, with interest thereon at HSBC prime lending rate from the date of writ to this judgment and thereafter at judgment rate until full payment. As I have not heard counsel on relief, I will direct that the Judgment herein be not sealed until 14 days after hand-down, within which time the parties may comment on the relief. 129.As this action was commenced when the monetary jurisdiction of the District Court has already been increased to HK$3,000,000 and the judgment sum I give is below that, I will order on nisi basis that Chan do pay P’s costs of this action, including all costs reserved, at District Court Scale, to be taxed if not agreed, which order will become absolute within 14 days unless any party applies to vary within that time. 130.Lastly, I thank counsel for their assistance.
Ms Lydia Leung and Mr Chan Chi Pan instructed by Messrs Ho Tse Wai & Partners, for the Plaintiff Ms Sally Wong instructed by Messrs Ivan Tang & Co., for the Defendant [1] Per the Re-Amended Statement of Claim re-amended on 15 August 2014 at [C1/56/363-378] [2] [C1/29/171-191] [3] [C1/29/170] [4] [C1/32/201-209] [5] Letter of BOC’s solicitors Messrs Keith Lam Lau & Chan dated 26 May 2014 [C1/36/238-239] at §3 [6] [C1/36/245-267] [7] [C2/66/546] [8] [C2/66/573] [9] [C1/29/171] [10] [C1/18/140-145] [11] §§26 - 29 [12] §9 at [B/8/79] [13] §19 at [B/9/89] [14] [C1/27/165-167] [15] [C1/35/225-228] [16] [C1/35/229-231] [17] [C1/35/232-237] [18] [C1/20/147-151] [19] The actual words used in her witness statement at [B/10/98-105] [20] §9 of the Amended Statement of Claim [21] The Statements of Truth were signed by Chin [22] [C1/27/165-167] [23] The Statements of Truth were signed by Chin [24] [C2/57/381-382] [25] [C1/30/194-198] [26] [C1/32/201-204] [27] [C1/33/210-214] [28] [C1/34/218-222] [29] At [C1/213-214] [30] [C1/33/217] and the same message copied to Ki at [C1/34/224] [31] [C1/49/308-309] [32] [C2/650-651] [33] [C2/652] [34] [C2/653] [35] [C2/654-656] [36] With enclosures [C2/639-645] [37] With enclosures [C2/646-649] [38] [C2/667] | |||||||||||||||||||
Cases cited in this judgment