Gemma Fang (Formerly Known As Fang Yu Wen) v. Wong Kean Li (Formerly Known As 黃兆璿 and Formerly Known As 黃建理)

HCA 1755/2017

[2026] HKCFI 5913

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1755 OF 2017

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BETWEEN

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DECISION

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1.The Plaintiff (“P”) and the Defendant (“D”) were married but divorced. In this action, P seeks to enforce a home-made written agreement signed in 2010 and claims from D HK$27,000,000.

2.Save the very initial stage, both parties have been acting in person in this action for a long while. On 14 July 2026, just 13 days before the trial was due to commence, D became legally represented.

3.Upon application by D’s summons dated 16 July 2026 and at the hearing on 20 July 2026, under the further circumstances narrated below, I allowed the late amendment of the Defence by adding a short new paragraph 89A pleading a limitation defence to P’s claim by virtue of section 4 of the Limitation Ordinance, Cap. 347 but attached thereto certain stringent conditions and gave a number of directions (respectively “the Amendment” and “the Amendment Order”).

4.On 27 July 2026, the 3-day trial was originally scheduled to commence and P appeared in person and D appeared by counsel. However, per the direction of the earlier Judge who heard the PTR, any “non-agreed document” was to be inserted in the trial bundles together with a remark made in the index stating the reasons for non-agreement. It turned out that a large number of documents contained in the trial bundles were “non-agreed” and their inclusion hotly contested, many of them were documents filed in their divorce proceedings, which in fact were inadmissible in this action being in contravention of their implied undertaking to the Family Court and of Rule 121 of the Matrimonial Causes Rules, and regrettably, a number of them contained rather prejudicial materials which, to complicate matters, were quoted or referenced in D’s pleadings and the parties’ witness statements, and the trial bundle indexes were loaded with P’s submissions in the form of numerous long footnotes to documents. In the circumstance, this Court refrained from formally commencing the trial but dealt with issues arising from the above, which took one and half days, during which time, this Court also dealt with a number of summonses produced by P.

5.On 28 July 2026, P orally applied for the recusal of this Court from hearing the trial. Having heard submissions, I acceded to the application with oral reasons given, made a number of directions, among others, expunging certain parts of the pleadings, witness statements, the whole of the trial bundles indexes and a number of documents and also adjourned the trial to be heard by another Judge on a date to be fixed.

6.On the same day, P also issued a summons seeking leave to appeal against the Amendment Order, which I then orally gave directions for its disposal on papers. By 11 August 2026, D’s written submissions have been lodged. The papers and submissions however were only placed before me on 15 October 2026[1].

7.This is my decision on P’s application for leave to appeal against the Amendment Order.

8.The background to the action and this application can be briefly stated, as follows.

9.Around one year after P and D were married, they purchased a property on Caine Road (“the Property”) in their joint names. On 17 June 2010, they signed an agreement to sell the Property at HK$27,000,000. On 20 July 2010, they signed a 2-page home-made “Loan Agreement” in English (“the Loan Agreement”). In it, they acknowledged that they in law would each own half of the sale proceeds and “In consideration of the Lender [P] providing the Initial Loan [HK$13,500,000, being half share of the proceeds] to the Borrower [D], [D] shall agree” among others:

a. Transfer D’s half share of proceeds to P, and the same “shall be managed by [D] on a similar loan basis (… “Total Loan”)”;

b. D “shall manage the sale proceeds diligently and prudently for the benefit of the Family”;

c. Whenever demanded by P, D had to provide financially for P to meet her living expenses and requirements of the Family as P might require;

d. No amount spent by D under sub-paragraphs (b) and (c) above shall be allowed to be deducted from the Total Loan; and

e. P has the right to demand repayment of the Total Loan in part or in full at any time.

10.Relationship then worsened and they had divorced. P pleaded that she made a demand dated 6 June 2017 for repayment of the whole sum of HK$27,000,000 and D failed to pay. P then commenced this action to claim the whole amount plus interest.

11.D filed a very long Defence in person which resembles more a witness statement than a pleading. In gist, he said that he had always been the sole breadwinner of the family, that he actually paid the entire purchase price of the Property. He alleged that P had been living a very exorbitant lifestyle and much difference arose between them. He alleged that the Loan Agreement was signed under duress, harassment, “lack of peace”, suicide threats, violence and threat of violence, and that it was signed with no consideration and no intention to create legal relations.

12.On 14 July 2026, D’s solicitors filed a Notice to Act. On 15 July 2026, D filed a summons to apply for the time to lodge and serve his Opening Submissions be extended from 16 July to 20 July 2026. On 16 July 2026, D issued another summons seeking the Amendment (“the Amendment Summons”). Both D’s summonses were scheduled to be heard before me on 10:30 am on 20 July 2026.

13.On 17 July 2026, the Amendment Summons and D’s submissions thereon were served on P.

14.On 19 July 2026, P sent to this Court and D her letter and her signed draft affirmation both dated 19 July 2026 setting out rather fully her contentions in opposition to the Amendment Summons. In short, she complained of lateness and that she had prepared for the trial on the basis of the existing pleadings. P also specifically responded to the merits of the limitation defence in that (a) on true construction of the Loan Agreement, repayment only became due upon demand, namely, demand made by her solicitors on 6 June 2017, and (b) there was a signed and written acknowledgment in the form of D’s 2 long emails both dated 17 October 2016 in one of which D said, among others, “I suggest you go ahead and take legal action against me”.

15.P did not appear at the hearing on 20 July 2026 to contest the Amendment Summons. Having enquired from Ms Lai, counsel appearing for D, who had no objection, I treated P’s said draft affirmation as her submissions in opposition.

16.Having considered Ms Lai’s submissions and P’s contentions in opposition, I made the orders described in paragraph 17 below, taking particularly into account:

a. Save a most brief period, D all along has not been legally represented;

b. D’s application was very late and his explanation for lateness (that until advised by his legal team recently, he did not know he has a limitation defence) was only given by counsel and not deposed to in an affirmation;

c. D’s limitation defence is arguable in that the cause of action seeking repayment of a loan repayable on demand arguably accrued in law at the time the loan was made;

d. D confirmed that he would not be adducing new evidence in support of the limitation defence, while the emails relied on by P in her draft affirmation have already been adduced as part of the trial documents;

e. P was able to response to the merits of this defence as mentioned in paragraph 14 above, and to do so in such short time. By what she said, no new factual matter or documents was brought up, but there would be contention as to when the cause of action accrued and whether what was said by D in his 17 October 2016 emails amounted to a written acknowledgment;

f. The primary aim in exercising the powers of the Court is to secure the just resolution of disputes in accordance with the substantive rights of the parties; and allowing the introduction of that defence fulfilled the primary aim; and

g. The directions I would give and the stringent conditions I would impose in favour of P but against D would achieve fairness.

17.Upon D indicating acceptance of the conditions as part of the leave to amend, the principal terms of the order I made on 20 July 2026 were:

a. Time for D to lodge his Opening Submissions be extended to 21 July 2026, but D must there also address his limitation defence, and D to pay P costs on D’s time summons on indemnity basis assessed together with the costs of D’s Amendment Summons;

b. Time for service of the Amendment Summons be abridged;

c. Leave to amend by adding the new paragraph 89A with the directions below and conditions set out in the next sub-paragraph:

i. Leave to P to file and serve her Re-Amended Reply consequential on D’s said amendment on or before 4 pm on 24 July 2026;

ii. Leave to P to file and serve a supplemental witness statement on or before 4 pm on 24 July 2026 to contest the limitation defence (including to introduce new documents, if any, and to substantiate any new averments in her Re-Amended Reply); and

iii. D may, if so advised, prepare a draft supplemental witness statement in reply to P’s said supplemental witness statement;

d. The conditions are :

i. There will be no consequential leave for D to file any Rejoinder to plead any positive case against any new averments P may introduce in her Re-Amended Reply;

ii. D may apply at trial for leave to file a supplemental witness statement in reply to that of P’s, but this Court would readily disallow such leave;

iii. After trial, if the newly introduced limitation defence leads to dismissal or otherwise disallowance of P’s claim herein, the Court would deprive D very substantial part of his costs of this action, the precise extent and term of the costs order will be decided after trial; and

iv. Despite P being absent today, D to pay P her costs on indemnity basis summarily assessed at HK$20,000 payable before the first date of trial.

18.The proposed grounds of appeal are set out in the Schedule to the summons. They consist of 5 grounds, in summary:

(1) Authorities like Law Kwok Fai Paul v Wellmei (HK) Plastics & Electronics Industrial Ltd (CACV 45/2014, unrep., 12 November 2014), EAA Securities Ltd v Fattydad Alice Pui Yan (CACV 205/2013, unrep., 11 November 2014) and Ketteman v Hansel Properties Ltd [1987] AC 189 were not cited before this Court;

(2) D did not discharge the burden of explaining the delay;

(3) D did not discharge the burden of showing that the resulting unfairness could be remedied;

(4) The unfairness was evidential in that P could not have directed her investigation for evidence earlier; and

(5) The amendment caused P to undertake much more work and prejudiced her preparation for trial.

19.P also said by way of Ground 6 that in the interest of justice, the appeal ought to be heard.

20.P acknowledged in her submissions that the decision to grant the Amendment Order was an exercise of discretion and the threshold for a successful appeal against it is high.

21.The mere fact that certain authorities have not been cited is not a valid ground for appeal when this Court had applied the correct principles.

22.Failure to give an acceptable explanation for lateness would not necessarily be fatal to a late application. Upon such failure, a court can dismiss a late application for amendment, but a court is not necessarily bound to do so, if it thinks other relevant matters may affect his exercise of discretion otherwise.

23.Much of P’s complaint of unfairness has now been overtaken by events, in that now the adjourned trial has been fixed to be heard commencing on 10 January 2028. Therefore, there would be more than adequate time for P to prepare for trial.

24.The gravamen of P’s complaint of unfairness is that the lateness of the introduction of the limitation defence has deprived her of a proper opportunity

“(a) to seek and preserve records capable of supporting the telephone call of 27 October 2014, and the further occasions in December 2014 and January 2015, whether by way of telecommunications or other records, at a time when such records were considerably more likely to be obtainable than they are now;

(b) to obtain documentary records of the bank transfer of 25 November 2016;

(c) to obtain from her former solicitors, Messrs. Ho & Ip, the file relating to the letter of demand of 6 June 2017 and the circumstances in which P first sought advice” (§17 of P’s Submissions).

25.However, I take the view that such allegations of unfairness have little substance. I do not accept them. In fact, it can be seen from the contents of the trial bundles that given the parties long history of bitter disputes over money matters, P (and D also) has been eagerly preserving and has dug up every piece of communication that arguably has anything mentioned that would support her own version of events/case. Both parties have been producing Google Talk conversations, WeChat conversations, emails, pictures etc, that dated back to 2010. For the purpose of meeting the limitation defence, the relevant evidence pursuant to s.23(3) of the Limitation Ordinance is any written and signed acknowledgment by D of the debt (the subject matter of the claim) or part payment of said debt. It therefore seems to me most highly probable that, had any written acknowledgment of the present loan/debt ever existed, P would have already produced it, even without and before the addition of the limitation defence.

26.Therefore and moreover, I do not think the records of telephone calls mentioned in P’s Submissions, or any further evidence and material relating to P’s solicitors’ demand made in June 2017 would be pertinent.

27.Furthermore, it is far from clear what “the bank transfer of 25 November 2016” related to. Importantly, it is P’s case that none of the HK$27,000,000 has ever been repaid by D, so there could be no part payment to speak of.

28.In all, I do not accept that the amendment would cause “the unfairness” as now claimed. I also do not see how in the interest of justice, the appeal ought to be heard.

29.In the premises, I refuse leave to appeal, and order on nisi basis to become absolute in 14 days unless any party applies for variation, that P do pay D’s costs of this application with certificate for counsel to be summarily assessed. After the expiry of the 14-day period and in the absence of any application to vary, P do lodge a List of Objections to D’s Statement of Costs dated 11 August 2026 and I will summarily assess D’s costs on paper.

The Plaintiff acted in person

Ms Joyce H Y Lee, instructed by Raymond Luk & Co, for the Defendant