Koo Ming Kown v. The Baptist Convention of Hong Kong and Others

CACV 481/2024, [2026] HKCA 1098

On Appeal From [2024] HKCFI 2869

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 481 OF 2024

(ON APPEAL FROM HCA NO. 1481 OF 2014)

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BETWEEN

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J U D G M E N T

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Hon Anthony Chan JA (giving the Judgment of the Court):

1.This is the Plaintiff’s Notion of Motion filed on 15 April 2026 (“NM”)  seeking leave to appeal to the Court of Final Appeal (“CFA”)  from the judgment of this Court dated 20 March 2026 ([2026] HKCA 372)  (“CA Judgment”).

2.Three questions, said to be of great general or public importance (“GGPI”), are advanced in the NM for the consideration of the CFA :

(1)  In the context of the governance of charitable fundraising, whether the articles of association, board minutes, and the published declarations of a charitable institution or fundraising campaign are capable of constituting material or fraudulent representations of existing fact? (“Question (1)”);

(2)  Whether, in an action for deceit arising from charitable fundraising, the law recognises an inference or presumption that a fraudulent or material misrepresentation induced the making of a donation once materiality is established, and if so, the scope of that inference and the circumstances in which it may be displaced? (“Question (2)”);

(3)  For the purposes of section 26(1)  of the Limitation Ordinance, Cap 347, what constitutes the “discovery of fraud”, and whether such discovery requires knowledge of the falsity of the representation, as opposed to knowledge of the surrounding or related facts of such representation (“Question (3)”).

3.In the NM, the Questions are followed by paras 2 to 4, which seek to expand or explain the same as follows (the nomenclature used in the CA Judgment is adopted)  :

“2. As to Question 1, it is at least reasonably arguable that the findings of the Judge and the CA on the construction of the Three Documents were wrong because :

(1)  The CA and Judge treated the Three Documents as incapable of constituting representations of existing fact and not merely a statement of position or commitment to make a declaration [CA Judgment, [60]] and;

(2)  The CA and Judge erred in relying on the perceived legal uncertainty as to the cross-border joint ownership of the Name and Insignia between the Hong Kong Schools, Macau Schools, and Guangzhou Schools [Judgment, [129(d)] and [129(k)] and CA Judgment, [38]].

3. As to Question 2, the Plaintiff contends that the CA erred in law in upholding the Judge’s rejection of the presumption of inducement after the existence of the relevant representation had been put in issue in the context of fundraising for the Campaign. The Judge’s heavy reliance on ‘what if’ counterfactuals, that the Plaintiff would have donated anyway out of his ‘love for his alma mater’ [Judgment, [177(f)]] and the CA’s findings [CA Judgment, [68]] did not displace the presumption of inducement.

4.  As to Question 3, the CA erred in law in its application of section 26(1)(a)  of the Limitation Ordinance.  The relevant fraud for limitation purposes was the falsity of the Ownership Representation, and that mere knowledge of the existence of the Academy or Education Centres did not amount to a discovery of the fraud;”

4.The Plaintiff also relies on the “or otherwise” limb under section 22(1)(b)  of the Hong Kong Court of Final Appeal Ordinance, Cap 484.  It is said that unless leave to appeal is granted, a serious miscarriage of justice would not be redressed for the following reasons :

(1)  There was a possible collusion between the 1^st Defendant, the Three Fake Pui Ching Companies and the Education Centres.  In the course of the Campaign, the 1^st Defendant had deliberately concealed that they had misused the Name to set up the Three Fake Pui Ching Companies and the Education Centres from the Plaintiff and alumni of the Hong Kong Schools and Macau School.  The 1^st Defendant’s conduct goes to the falsity of Representation (a)  (in that the use of the Name and Insignia was beyond the Campaign’s authorized framework as written in the Three Documents).

(2)  Absent clarification by the CFA, the approach adopted by this Court and the Judge below risks precluding deceit claims in charitable fundraising contexts by imposing unduly stringent requirements as to inducement and discovery, thereby giving rise to a serious miscarriage of justice of a systemic character rather than a dispute confined to the facts of the present case.

5.We regret to say that this application is wholly without merits.

6.To begin with, the scope of the appeal before this Court was quite narrow.  It was confined to whether (i)  Representation (a)  was made out by the Three Documents; (ii)  the Plaintiff was induced by or relied on Representation (a); and (iii)  the Plaintiff’s claim on Representation (a)  was time-barred (see CA Judgment, [14]-[16]).

7.Based on the construction of the Three Documents, this Court found that Representation (a)  was not made out.  Even if it could be made out, given the lack of challenge to the adverse findings made by the Judge on all other elements of the Plaintiff’s claim of fraud, the claim could not succeed (CA Judgment, [61]).

8.Having failed to make out Representation (a), the other two issues (inducement and reliance and limitation period)  became academic.  However, they were dealt with succinctly and rejected (CA Judgment, [65]-[70]). 

9.On their face, none of the three Questions advanced by the Plaintiff seek to engage the findings by this Court.  Nor does any of them involve an issue of GGPI.  Further, for the same reason stated in the preceding paragraph, unless leave is given on Question (1), the remaining Questions are academic. 

10.As drafted, Question (1)  is wholly academic. Further, there was never any issue that any one of the Three Documents was capable of giving rise to a representation of fact.  It was a matter of construction whether any part of them in fact constituted Representation (a). There is no proper attempt by the Plaintiff to demonstrate why this Court had erred on the construction exercise.  Furthermore, issues of construction of documents are facts-specific, and leave to appeal to the CFA on such issues would not usually be granted: see Lo Yuk Sui v Fubon Bank (Hong Kong)  Ltd (2020)  23 HKCFAR 138, [13], [16]-[17].

11.In respect of para 2 of the NM, which seeks to expand Question (1)  to challenge the construction of the Three Documents by the Judge and this Court, para 2(1)  is plainly wrong.  Paragraph 2(2)  is a bare assertion with no reason given on how the Judge and this Court had erred (see CA Judgment, [38] and [53]).

12.As regards Question (2), there was no issue at the appeal before this Court over the legal principles adumbrated in Zurich Insurance Co plc v Hayward [2017] AC 142.  The challenge by the Plaintiff was whether the “presumption” was rebutted by the Defendants in the absence of evidence from them (CA Judgment, [66]-[68]).  Plainly, the “scope of that inference and the circumstances in which it may be displaced” are facts-sensitive and not matters of GGPI.

13.Paragraph 3 of the NM is wrong in suggesting that the Judge had rejected the presumption of inducement and this Court had upheld the rejection (see Judgment, [173]-[176] and CA Judgment, [68]).  On the contrary, the Plaintiff’s case on inducement was considered and rejected by the Judge based on the evidence (Judgment, [177(a)  to (j)].  Any attempt by the Plaintiff to re-open this issue is doomed to fail in light of the concurrent factual findings by the Judge and this Court.

14.In relation to Question (3), discovery of fraud is a facts-sensitive issue, and not one involving GGPI. 

15.Paragraph 4 of the NM completely ignores the pleaded case of the Plaintiff, and has no merits (see CA Judgment, [69]-[70]).

16.In respect of the “or otherwise” limb, the usual practice of this Court is to leave the matter to the consideration of the Appeal Committee. 

17.However, it should be pointed out, firstly, that the allegation of “possible collusion” is entirely new.  It was not part of the Plaintiff’s pleaded case and was never argued before this Court.  Secondly, paras 34 to 50 of the Plaintiff’s skeleton submissions are little more than repetition of his case which was rejected by the Judge.  As submitted by the 4^th Defendant, they seek to resuscitate issues which were not considered in the appeal before this Court. 

18.For these reasons, the NM is dismissed with costs to the 1^st to 4^th Defendants.  The Defendants ask for costs on indemnity basis.  The request is well-justified by the total lack of merits of this application.  The Judge’s observations about the Plaintiff’s attitude in pursuing his cause (see Judgment, [103(a)-(b)], [217]-[218])  is borne out by this application, which is pursued regardless of merits. 

19.We order that the costs of the 1^st to 4^th Defendants are to be paid by the Plaintiff on indemnity basis. No issue was raised by the Plaintiff on the 4^th Defendant’s statement of costs.  Such costs are summarily assessed at HK$191,272. 

20.As regards the statement of costs of the 1^st to 3^rd Defendants, the Plaintiff says that the total costs of HK$397,160 are unreasonably incurred and/or of an unreasonable amount, citing Kennedy v Cheng & Anr (No 2) [2012] 6 HKC 440, [21] and [22].  The costs incurred by the 1^st to 3^rd Defendants are twice as much as those of the 4^th Defendant, as well as those of the Plaintiff at HK$191,630 (no counsel was instructed). 

21.In light of the lack of merits in this application, we believe that the costs of instructing two counsel are unreasonably incurred.  Further, the fees of Mr Yip are of an unreasonable amount.  We would only allow HK$90,000 for the same.  With the deductions, the costs of the 1^st to 3^rd Defendants are summarily assessed at HK$237,160.

Messrs Wilkinson & Grist, for the Plaintiff

Mr Richard Yip and Mr Jonathan Ip, instructed by Or & Partners for the 1^st to 3^rd Defendants

Mr Keith Chan, instructed by Karas So LLP, for the 4^th Defendant