J Thomson Asset Investment Ltd v. Lee Sing Leung Robin
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HCA 346/2024 [2026] HKCFI 4411 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE ACTION NO 346 OF 2024 ________________________
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____________________ DECISION ____________________ 1.On 12 March 2026, Master Jocelyn Leung refused the Defendant (“Robin”)’s application by summons filed on 28 November 2025 to set aside the summary judgment entered by Master Dick Ho at a hearing on 17 September 2025 at which Robin did not appear (respectively “the Setting Aside Summons” and “the Refusal Decision”). 2.By a Notice of Appeal filed on 1 April 2026 by Robin acting in person, as he all along has been in this action, he appeals against the Refusal Decision and seeks to set aside the summary judgment and be granted unconditional leave to defend. 3.As Robin is conversant in English and wrote his Defence, affidavits and submissions in English, I will render this Decision also in English. The material background and procedural history 4.The following material background are gleaned from the documentary evidence or decisions or judgments by the different courts. They are not disputed. 5.As far as is revealed by documents[1] but not explored in this action, the Plaintiff (“J Thomson”) and Robin have had since at least 2007 a long history of commercial dealings and disputes (either between themselves or each of them with other third parties) in connection with, among others, the acquisition by one Grand T G Gold Holdings Limited (“Grand T G Gold”), a company listed on the GEM Board of the Hong Kong Stock Exchange, of a gold mining concern owned as to 40% by Robin and as to 20% by J Thomson. Such disputes involved a number of High Court actions, namely and at least HCA 1309/2010, HCA 1890/2010, HCA 397/2011 and HCA 1023/2011. 6.It is unnecessary to say any more about these actions save in respect of HCA 1023/2011, which was expressly mentioned in the recitals of the Deed of Settlement dated 27 March 2018 (“the Deed of Settlement”) formally executed by the parties and on which J Thomson present sues in this action. 7.In HCA 1023/2011, J Thomson sued Robin over a Deed of Indemnity dated 29 August 2008 (“the Deed of Indemnity”) whereby Robin agreed to indemnify J Thomson in relation to certain convertible bonds of Grand T G Gold with face value of HK$90 million (“the CBs”) provided by J Thomson as security for a loan obtained by Robin from one Mr Luk, and the CBs were later sold at a value substantially below the face value by Mr Luk to repay the loan. After a contested hearing and on 10 October 2012[2], an interlocutory summary judgment for damages to be assessed was given to J Thomson against Robin. 8.In relation to Robin’s liability in HCA 1023/2011 and arising from the Deed of Indemnity, a Settlement Agreement dated 23April 2015 (“the Settlement Agreement”) and a 出售債权合同dated 28 August 2016 (“the Supplemental Agreement”) were signed by the parties. The effect and purport of these two agreements were expressly agreed and provided in the Deed of Settlement, to which I will later refer. On Robin’s part, in his Defence herein he averred assertively that the cumulative effect and result after the signing of them was that the outstanding debt or liability owed by him to J Thomson arisen from the Deed of Indemnity has thereby been reduced to only HK$10,000,000. 9.On 27 March 2018, the parties executed the Deed of Settlement which was prepared by Messrs C.T. Chan & Co, the solicitors of J Thomson. It is not disputed by Robin that he signed and executed it. 10.I quote below rather extensively the material clauses and the recitals in the Deed of Settlement. The reason why I also quote the recitals in full is that by Clause 1.3 of the Deed of Settlement, it was agreed that the recitals were to be regarded as an integral part of that deed, and shall have the same force and effect as any other clauses therein.
11.It is not disputed that Robin failed to pay to J Thomson HK$42,500,000 on or before 31 December 2019 or at all pursuant to Clause 2.1 of the Deed of Settlement. 12.On 27 February 2024, J Thomson issued the Writ herein claiming against Robin for the payment of HK$42,500,000 (“the Settlement Sum”) under Clause 2.1 of the Deed of Settlement. 13.Relied on by Robin were the fact that the Writ was not served on him shortly after its issuance, and the fact that in the meantime, Robin appeared as one of the witnesses for J Thomson in the 5-day trial of HCA 397/2011 in which J Thomson was the 2nd defendant, and which trial took place on 15-18 and 29 April 2024. By Judgment handed down on 23 October 2024 in that action, it was adjudged that J Thomson succeeded in its counterclaim against Charm Master Enterprises Limited and that J Thomson was the beneficial owner of the subject matter of the action, namely two promissory notes in the total amount of HK$12.5 million. 14.In late January or early February 2025, the Writ herein was served on Robin just within its period of validity of one year. 15.On 17 April 2025, J Thomson took out a summons applying for summary judgment or alternatively interim payment of HK$10,000,000. 16.The summons was scheduled to be heard substantively before Master Dick Ho on 17 September 2025. 17.One day before the hearing, ie on 16 September 2025, the court received a letter dated 15 September 2025 from the brother of Robin which letter was not copied to J Thomson or its solicitors (“the Adjournment Letter”) requesting on behalf of Robin an adjournment of the hearing and enclosing therewith (a) a sick leave certificate issued by Ruttonjee & Tang Shiu Kin Hospital on 25 August 2025 showing that Robin was suffering from “medical condition” and that sick leave was given from 25 August 2025 to 1 September 2025, (b) a sick leave certificate issued by Dr Chow Lok Yee (Specialist in Psychiatry) dated 26 August 2025 certifying that Robin was suffering from depression and was recommended for sick leave from 26 August 2025 to 1 September 2025, and (c) a medical report from the same Dr Chow dated 29 August 2025 giving Robin’s medical history of suffering from recurrent epilepsy since about 2012, but that there was no attack of seizure for more than 10 years, and referring to, among others, a report of brain MRI dated 28 August 2025 and opining that Robin was suffering from adjustment disorder with depressed mood. Importantly, it was not stated in that report that Dr Chow opined that Robin was unfit to conduct the hearing on 17 September 2025. 18.Master Dick Ho refused the request to adjourn the hearing, proceeded with it in Robin’s absence and granted summary judgment to J Thomson over the Settlement Sum with interest at judgment rate and costs of the action summarily assessed at HK$245,000. 19.The judgment was sealed and served on Robin on 17 October 2025. On 4 November 2025, Robin attempted to apply ex-parte to set aside the summary judgment. Ultimately on 28 November 2025, Robin issued the Setting Aside Summons. 20.As said, the Setting Aside Summons was heard substantively by Master Jocelyn Leung on 12 March 2026 who made the Refusal Decision, and Robin now appeals against it. Discussion 21.To begin with, and as is well established, this appeal would be conducted by way of a hearing de novo, that is, as if the Setting Aside Summons were first heard before me. Therefore, it is not necessary for me to deal with the contentions made by Robin as to how Master Dick Ho or Master Jocelyn Leung might have erred. 22.Though not specified in the Setting Aside Summons, it is evident and not disputed that the application by the Setting Aside Summons was made pursuant to O.14 r.11 which provides :
23.The approach and considerations regarding an application under O.14 r.11 were summarized by Ma J (as the former CJ then was) in Chekiang First Bank Ltd. v Ng Chun Hing Benjamin (HCA 3473/2000, unrep. 12 December 2001), thus :
24.I will consider this appeal accordingly, beginning with the following 2 matters first before I look at the merits of the defence. 25.First, I am not satisfied that Robin had a good reason to excuse himself from attending the hearing on 17 September 2025. The 2 sick leave certificates enclosed with the Adjournment Letter only certified sick leave up to 1 September 2025, which was 18 days before the hearing. Dr Chow recorded that there had been no attack of seizure for more than 10 years since about 2012. Dr Chow merely opined that Robin suffered from adjustment disorder with depressed mood. Dr Chow did not opine that Robin could not attend the hearing. Thus and clearly, no sufficient medical reasons have been shown justifying Robin to excuse himself from the hearing. 26.Moreover, Robin’s medical condition had a long history and the 3 enclosed documents were respectively dated 25, 26 and 29 August 2025. There seems to me no reason, and no explanation was given by Robin, why his request for adjournment was only made so belatedly just one day before the hearing, and not earlier and shortly after he received the 3 enclosed documents. 27.Second and for completeness, I do not accept Robin’s complaint in his skeleton submissions that Master Jocelyn Leung applied the wrong legal test when she set it out thus: 「有關法律嘅原則，本席理解係以一個作廢欠缺行動所作出判決咁樣嘅原則去處理，即係法庭要考慮被告嗰方面究竟係有關申請裏面，佢嘅抗辯有冇顯示係有一個真正嘅成功前景」[3]. 「真正嘅成功前景」is “a real prospect of success” in Chinese. Thus, the Master has engaged herself with the correct primary consideration as set out in §§12 and 14 of Chekiang First Bank Ltd. quoted above. 28.I turn next to consider whether the merits of the defence are such that it has a real prospect of success. 29.As mentioned above, J Thomson’s claim is a straightforward one of enforcing the Deed of Settlement, in particular, Clause 2.1 thereof for payment of the Settlement Sum which has been contractually agreed. 30.In his Defence, his affidavit dated 7 May 2025 in opposition to J Thomson’s summary judgment application (“Robin 1st”), his affidavit dated 28 November 2025 in support of his application by the Setting Aside Summons (“Robin 2nd”) and his reply affidavit dated 2 January 2026 (“Robin 3rd”), Robin did not raise any allegation, like undue influence, duress, threat or such, that would in law vitiate his execution of and his signature on the Deed of Settlement, which he accepted was signed by him. Nor did he raise any matter akin to the plea of non est factum. His only complaints were (a) that he was only given a few hours to review the Deed of Settlement before signing (§3 in Robin 1st) and (b) he signed acknowledging he had obtained independent legal advice when he in fact had not (§3 in Robin 1st). These complaints, even if true, plainly do not amount to a defence vitiating the Deed of Settlement. 31.In his Defence Robin raised the following matters by way of defence :
32.In Robin 1st, Robin deposed :
33.In Robin 2nd, Robin said that there are triable issues and bona fide defence in that :
34.Robin 3rd deposed to other matters and said nothing by way of raising or arguing for any defence he might have. 35.It is abundantly clear from the various contentions therein raised by Robin, that (a) the claim amount is now disputed by him (contrary to what had been expressly agreed in the Deed of Settlement), (b) his version as to what the effect and outcome after having signed the Settlement Agreement and the Supplemental Agreement should be (contrary to what had been expressly agreed in the Deed of Settlement), (c) that there are still disputes regarding the quantum of his liability under the Deed of Indemnity and HCA1023/2011 and as to the value of the CBs (contrary to what had been expressly agreed in the Deed of Settlement), and (d) that the Deed of Settlement is not a fair agreement, that Robin is in effect now seeking to re-open and resile from what the parties have expressly, clearly and solemnly agreed in the Deed of Settlement as to
36.It is one of the fundamental principles of contract law that unless there is established any legal basis to vitiate or otherwise rendering that contract unenforceable, the contracting parties are bound by the terms and any one of them are not free to resile from them as against the other contracting party. 37.As Robin did not raise any matters that vitiate the Deed of Settlement, he is bound by the terms of the Deed of Settlement. 38.Regarding Robin’s contention of lack of consideration, the trite rule of law is that to support a promise in a deed executed by the parties, no consideration is required. That trite law has recently been challenged in the specific context of that case but was reiterated as a general rule by the Court of Appeal in Chan Fun Kwong v Choi Chak Man and Others [2026] HKCA 357 at §52, 72 and 75. Robin’s such contention therefore is clearly untenable and bound to fail. 39.Robin also contended that the transactions, court actions and circumstances underlying the Deed of Settlement are complex and should be investigated and are thus triable issues. He cited Investors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 WLR 896 and Chartbrook Ltd v Persimmon Homes Ltd [2009] 1 AC 1101 as support. Both cases however are not apposite or applicable to the present facts. Without the need to go into the detail facts and issues in those 2 cases, it suffices to note that both cases concerned the construction of contractual documents, and discussed for the purpose of interpreting the contract the background knowledge available to the parties, particularly as to whether evidence of the parties’ pre-contract negotiations were admissible. 40.Here, there is no dispute as to the proper interpretation of the relevant clauses in the Deed of Settlement, the meaning of which, in my view, is very clear. Robin is merely disputing that J Thomson’s claim under the Deed of Settlement is “invalid”. As I find above, he is merely raising his present contentions as pretexts to try to resile from the contractual bargain agreed in the Deed of Settlement. I thus reject Robin’s contention that there is a need to investigate the underlying transactions. 41.As to the alleged waiver of HK$10,000,000 by an oral agreement. According to what Robin deposed to so far, the relevant oral communication consisted of Alvin Leung’s and his answer to a question (or same question asked more than once) posed by the then counsel acting for J Thomson. Firstly and even if Robin’s version were true, it is highly questionable that by Alvin Leung’s and Robin’s respective response to counsel’s question alone, without any direct communication between Alvin Leung and Robin, could constituted an oral agreement between Leung and Robin. Secondly, it is highly inherently improbable, in that it lacked commercial sense, that J Thomson would waive an established debt of HK$10,000,000 in exchange for Robin to be a witness (when a subpoena was already issue to compel Robin to be a witness) in support of a yet-to-litigate claim of HK$12,500,000. 42.Thirdly, but in my view dispositively, under Clause 8.2 of the Deed of Settlement, it was provided, among others, that “It is expressly declared that no variations hereof shall be effective unless made in writing signed by the Parties”. Therefore, the parties have agreed in the Deed of Settlement that no verbal agreement could vary its terms. 43.I conclude that Robin’s purported defence of waiver by the alleged oral agreement has no real prospect of success. 44.In sum, all the matters raised by Robin fail to show a defence to J Thomson’s claim that has a real prospect of success. Disposal and costs 45.By reason of the above, I would refuse to set aside the summary judgment and would therefore dismiss Robin’s appeal. 46.Mr Ho, counsel for J Thomson, in his written submissions and at the conclusion of the hearing has asked for costs to be paid by Robin to be taxed on indemnity basis. While I find this appeal lacks merits and I have duly considered Mr Ho’s criticisms of Robin’s litigation conducts, presently I am not persuaded that Robin’s litigation conducts have reached such a threshold making indemnity costs appropriate. 47.At the close of the hearing, I have provisionally conducted the summary assessment with the parties on J Thomson’s Statement of Costs on party and party basis and assessed it at HK$110,000. I would therefore, on nisi basis, order Robin to pay J Thomson’s costs of this appeal summarily assessed at HK$110,000. 48.I thank Mr Ho and Robin for their assistance.
Mr Raymond Ho, instructed by C T Chan & Co, for the Plaintiff The Defendant appeared in person [1] Particularly, the Judgment dated 23 October 2024 in HCA 397/2011 [2024] HKCFI 2847 [2] Reasons for Decision of Registrar K.W. Lung dated 10 October 2012 at [B/5/12-19] [3] Transcript of hearing at [C/2/10M] | ||||||||||||||||||||
Cases cited in this judgment