Lee Cheuk Shun v. Tradition (Asia) Ltd
Read the full judgment text of HCA 2808/2006 on BabelCite. This High Court CFI judgment was delivered on 23 December 2008.
1. The plaintiff claims damages against the defendant for negligent misrepresentation, breach of employment contract and breach of collateral contract.
Cited by 1 case
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HCA 2808/2006 & HCA 43/2007 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE ACTION NO. 2808 OF 2006 --------------------- BETWEEN
--------------------- AND ACTION NO. 43 OF 2007 --------------------- BETWEEN
--------------------- (Consolidated pursuant to the Order of Master Hui dated 12 February 2007) Before: Hon Suffiad J in Court Dates of Hearing: 2 to 5, 8, 10 September 2008 Date of Judgment: 23 December 2008 ----------------------- J U D G M E N T --------------------- 1.The plaintiff claims damages against the defendant for negligent misrepresentation, breach of employment contract and breach of collateral contract. 2.The main claim of the plaintiff is that the defendant, by misrepresentation, induced the plaintiff to leave his employment with Wing Hang Bank and to take up employment with the defendant from October 2005 thereby causing loss and damage to the plaintiff. 3.The alternative claim of the plaintiff is that such representation made by the defendant has been incorporated into the employment agreement between the plaintiff and the defendant and the defendant was in breach thereof. 4.A further alternative case relied on by the plaintiff is that the defendant was in breach of implied conditions in the employment agreement in that :
5.A yet further alternative case relied on by the plaintiff is breach of collateral agreement by the defendant in that, the defendant failed to honour its agreement with the plaintiff to, within a reasonable time of the plaintiff joining the defendant, to cause or procure Tradition Forex Limited to be capitalized with a substantial capital, being a minimum paid up capital of HK$50 million and/or a minimum loan capital of US$30 million to carry on a foreign exchange business. Background 6.The defendant is a company incorporated in Hong Kong and carries on the business of money brokering within the meaning of the Banking Ordinance. It is also a member of the Tradition Financial Services Group which is engaged in inter-dealer brokering of Over-the-Counter physical and derivative products. 7.Compagnie Financiere Tradition (“CFT”) is the intermediate parent company of the defendant. CFT was and is listed on the Swiss Exchange SWX and also the Frankfurt Stock Exchange. 8.CFT had business interests in Japan. One such business was by the name of Gaitame which was a joint venture. Gaitame’s business was doing well and in 2004 there were plans to list Gaitame on the Osaka Stock Exchange. 9.Tradition Forex Limited (“TFL”) was incorporated on 23 June 2005 and subsequently acquired by the defendant as an associated company. Steps were then taken by the defendant to change the name of TFL to Tradition Financial Markets (Hong Kong) Ltd (“TFMHKL”) which was done on 14 October 2005. 10.As for the plaintiff, he has a long and successful history of working in the financial industry in Hong Kong starting off as an equities and bullion trader with Sun Hung Kai Securities Ltd. He has also worked in a number of banks, including the Wing Hang Bank and Liu Chong Hing Bank. 11.In 1984 and 1985 he was appointed as a director of the Futures Exchange. From 1995 to 2001, the plaintiff was appointed by the Secretary for Financial Services to be a member of the Arbitration Panel under the Leveraged Foreign Exchange Trading Ordinance. 12.The plaintiff had worked in Schroders Asia Ltd for many years as its treasurer and was also one of its directors, managing assets running into billions of Hong Kong dollars there. 13.In 2004, the plaintiff, then aged 54 years old and married with a family, was the Assistant General Manager of the Financial Markets Division of Wing Hang Bank Ltd (“the Bank”) and was one of the Bank’s Executive Officer. He was in charge of funds in excess of US$10,000 million. 14.While with the Bank, the plaintiff was paid a salary of HK$100,000 per month, but received a bonus of about HK$2.5 million a year. He was also entitled to 5% of the net profit of his division. On 21 May 2004, the Board of the Bank granted to the plaintiff share options in the Bank. 15.In the course of his work with the Bank, the plaintiff came to know Dick Chan, an Associate Director of the defendant, and in time a close friendship developed between the two of them. An indication of their close friendship can be seen by the fact that they would meet socially almost daily either for lunch or for drinks after work, excepting weekends. 16.In March 2005, the plaintiff gave notice of resignation to the Bank and effectively left his employment with the Bank in September 2005. 17.In October 2005, the plaintiff started employment with the defendant. 18.In June 2006, the plaintiff terminated his employment with the defendant with immediate effect by a solicitor’s letter. Pleaded case of the plaintiff re representation made by the defendant 19.Dealing first with the main case of the plaintiff, it was the plaintiff’s pleaded case that the following representations were made to him by the defendant through Dick Chan and which representations induced the plaintiff to resign from the Bank and to join the defendant :
20.It is also the plaintiff’s pleaded case that the above representations made to the plaintiff were false and untrue in fact. The particulars of falsity pleaded are as follows :
21.On that basis, it is the plaintiff’s pleaded case that the representations were made by the defendant negligently and in breach of its duty of care owed to the plaintiff. 22.As for the alternative cases of the plaintiff based on breach of implied term and collateral contract, this will be dealt with later in this judgment. The plaintiff’s evidence 23.The plaintiff alone gave evidence himself. He did not call any other witness. 24.After coming to know Dick Chan, the plaintiff learned that apart from being an Associate Director of the defendant Dick Chan was also involved with the management of the defendant and there were times when Dick Chan acted as the representative of Francis Lai, the Managing Director of the defendant, when dealing with outsiders. 25.The plaintiff was not well acquainted with Francis Lai but had met him once in March 2004 at a race meeting in Sha Tin Racecourse, having been introduced by Dick Chan. 26.In mid-2004, Dick Chan spoke to the plaintiff about the plaintiff joining the defendant. During such conversation, he learned from Dick Chan that CFT was intending to list its Japanese investment vehicle on the Tokyo Stock Exchange in mid-2004 or 2005 to raise some US$80 million by selling 10% of its shares. Dick Chan told him that CFT had decided to retain US$30 million in Asia which would be used by the defendant to set up a new leveraged foreign exchange business in Hong Kong. He was further reassured by Dick Chan that the defendant, including Francis Lai, had the will and the means to ensure that the defendant would have the necessary capital to support its business regardless of the listing plan in Japan. 27.In June 2004, Dick Chan further told the plaintiff that the defendant wanted the plaintiff to become the managing director of the company which would run the new business as the defendant thought his experience in financial markets would be useful in obtaining a foreign exchange license from the SFC in Hong Kong. 28.Thereafter the plaintiff has discussed this matter with Dick Chan on a number of occasions including the possible remuneration package which the defendant could offer to him. 29.On several occasions in October and November 2004, the plaintiff had given Dick Chan details of his income with the Bank as well as copies of his tax return in support. 30.The plaintiff had asked for a monthly salary of $200,000 but was told by Dick Chan that seemed unlikely since that was about the amount Francis Lai was earning. At the same time, Dick Chan assured him that he would receive a joining bonus commensurate with the annual bonuses the plaintiff had been receiving from the Bank. 31.In the early stages, the negotiations took place only with Dick Chan, acting on behalf of the defendant since the plaintiff was told by Dick Chan that Francis Lai had asked Dick Chan to liaise between the plaintiff and the defendant in these negotiations. Dick Chan also told the plaintiff that Francis Lai would not involve himself with such negotiations until it reached a mature stage. 32.In January 2005, the plaintiff met with Francis Lai together with Dick Chan at Luk Yu Tea House. On this occasion, Francis Lai endorsed what Dick Chan had told the plaintiff about the listing plan and the plaintiff’s prospective employment with the defendant and all that Dick Chan had told the plaintiff previously. Francis further assured the plaintiff that although the listing plan was still in progress, US$30 million would come either from the listing plan or that the defendant would ensure the money was available anyway. The plaintiff also told Francis his current earnings at the Bank and asked for a sign-on bonus. Dick and Francis both said they would try their best to arrange this once the new business had been set up. 33.The plaintiff also gave evidence that neither Dick nor Francis had ever told him that the defendant planned to acquire an ongoing business to carry on Forex trading as opposed to setting up a new business from scratch, although Dick did mention to the plaintiff about discussions between the defendant on the one hand, with Peace Town and also with TG Holborn (HK) Ltd on the other hand which were problematic. 34.As a result of such negotiations with the defendant, in January 2005 the plaintiff informed the Chairman of the Bank of his intention to leave the Bank but did not say at that time who he was going to work for. The Chairman of the Bank asked the plaintiff to reconsider his decision to leave, but no concrete offer was made to him by the Bank at that stage. 35.In early March 2005, the plaintiff was informed by Dick of the defendant’s offer to him of a basic salary of HK$125,000 per month plus a joining bonus, an annual bonus of 10% of the net profit before tax, as well as 7% of the paid up capital of the new company so that he would become a shareholder of the new venture. Dick also told him that the joining bonus could not be a term in the written contract because TFL had not been set up yet and had no capital but he would persuade Francis to grant this bonus. Dick further said the written offer will be forthcoming. 36.After receiving this offer through Dick, and being told that it would be put in writing, the plaintiff gave formal notice of termination to the Bank by an email dated 11 March 2005. The Bank then made various offer to the plaintiff to remain with the Bank. The last offer from the Bank made to the plaintiff was in May 2005. That offer came from the Bank’s Executive Director and Deputy Chief Executive, Frank Wang, who offered to put the Treasury Department under the plaintiff’s supervision in addition to his current division. The plaintiff gave thought to that offer from the Bank but rejected it in early June. 37.Since the Bank had to find a replacement for the plaintiff, the plaintiff stayed with the Bank until August 2005. 38.In about July 2005, the plaintiff was also approached by a head-hunter regarding a position with the China Construction Bank. He had some preliminary meetings with the General Manager and Assistant General Manager but did not continue to explore any further because of assurances by Dick that he would have better prospect with the defendant. 39.In July 2005, the plaintiff pressed Dick for the written offer from the defendant. Again he was reassured by Dick that the defendant will have the money to set up the new business even though the listing plan had not gone through, but was still in progress. Finally the defendant’s written offer in the form of a letter dated 4 August 2005 reached the plaintiff. That written offer by the defendant was signed and accepted by the plaintiff on 15 September 2005 (“the Employment Agreement”) and the signed copy returned to the defendant. 40.After starting with the defendant on 1 October 2005, the plaintiff realized that the situation was different from what had been told to him by Dick and Francis. He did not have an office himself and was not permitted to work at the defendant’s office premises at Entertainment Building. Dick explained to him that new office space had been acquired at New World Tower but it was not ready for use yet. Therefore the plaintiff attended the defendant’s office only when asked to do so. At times he was not asked to attend for up to two to three weeks at a time. 41.In the first couple of months, steps were taken to set up the new business which was to be run by TFMHKL and PricewaterhouseCoopers (“PwC”) were retained to prepare projection of profits of TFMHKL. Dick, Terence and the plaintiff also assisted. The three of them also prepared documentation for the purpose of applying for a license for TFMHKL which included a Business Plan Overview. 42.By the end of 2005, the plaintiff together with Dick and others and also advisers from PwC met with the SFC to discuss the setting up of the new foreign exchange business. The SFC indicated their provisional willingness to grant the licence if capital of between HK$50 million to HK$70 million was injected into TFMHKL. 43.At the end of 2005 or early 2006, the plaintiff was told by Dick that the listing plan in Japan had fallen through. He also learned from Terence that the defendant had tried to get alternative funding from CFT but was rejected since CFT had never endorsed the plan to set up the new business. 44.Other than the work to set up TFMHKL, the plaintiff was not given any senior management duties. Instead it was Dick who liaised between the defendant or Francis and other third parties in relation to the defendant’s business. The plaintiff voiced his complaints to Dick who asked him to be patient. 45.In January 2006, the plaintiff introduced one Tommy Tsap, a former colleague of his at Sun Hung Kai Securities, to Francis and Dick so that the defendant could explore other business opportunities in addition to setting up TFMHKL. At that time Tommy was a consultant advising the Sincere Group and International Financial Network Holdings Limited (“IFNHL”). 46.After Chinese New Year 2006, the defendant was contemplating to enter into a joint venture with IFNHL, but CFT would not give its authorization or grant the capital to do so. 47.In mid-April 2006, the plaintiff heard that negotiations had started between the defendant and the Sincere Group. Dick, Francis and others from CFT were involved in the negotiations. The chairman of CFT had also come from Switzerland to speak to the Sincere Group. It was proposed that CFT would buy 48% of the shares in the Sincere Group and the defendant had suggested the plaintiff to be the Chief Executive Officer of Sincere Finance Holdings Limited (“SFHL”). 48.The plaintiff however was not actively involved in the negotiations with the Sincere Group but was simply asked to sit in at some meetings. He was asked to sit at one end of the long table while negotiations took place at the other end. He therefore heard nothing at these meetings. He did visit the CFT group office in Tokyo between 22 and 25 April 2006 together with Dick and representatives from the Sincere Group, but was excluded from the discussions about the proposed acquisition which took place amongst the others including Tse Shiu Hoi, the controlling shareholder of the Sincere Group. During the trip Dick told the others that the plaintiff knew nothing about business operations. This caused the plaintiff to feel disrespect towards him. 49.Although it was proposed that the plaintiff was to be the CEO of SFHL, no details of that employment was given to him. The plaintiff had complained about this lack of information to Dick many times during their social meetings, as well as complaining to Francis between February and May 2006. On two occasions he complained to both Dick and Francis during lunch, once in February and a second time between February and April 2006. 50.Around April 2006, as a result of a complaint the plaintiff made to Francis that he had not been given any authority to represent the defendant and that he had nothing to do, Francis, in order to pacify him, put him on the board of the Steering Committee set up by the defendant for the proposed acquisition of the Sincere Group. But even so he had no substantive role to play in that committee. 51.By this time, the plaintiff realized that the defendant would never get TFL up and running and had shifted focus to the Sincere Group instead since CFT was not prepared to invest in a new business. 52.On his part, the plaintiff did not want to be the CEO of SFHL, that position being completely different from the contemplated managing director of TFMHKL as promised him. Furthermore, he was told by Dick and Francis some time between April and May 2006 that he would be required to commit to the Sincere Group for three years despite his having signed only a two-year contract with the defendant. This was due to a continuance of management at the Sincere Group required by the SFC as a condition of obtaining a listing on the Hong Kong Stock Exchange by way of an IPO. 53.Although the defendant had wanted the plaintiff to be the CEO of SFHL so that it would be easier for the Sincere Group to get the appropriate licence from the SFC, that idea was not welcomed by staff of Sincere Group. 54.After the Japan trip, Tse, at a meeting with the plaintiff, told the plaintiff that he had received complaints from his colleagues about the plaintiff’s proposed appointment. This led the plaintiff to feel that even if he was appointed, he would not have any actual authority in the Sincere Group and would be no more than a puppet, being in reality subordinate to Tse, who would maintain his control over the Sincere Group. 55.He was also told by Terence that the SFC had received a lot of complaints about the Sincere Group from its customers. The plaintiff further noted that the Sincere Group was effectively run by Tse although he was not allowed to do so under SFC rules. For these reasons he did not want to join the Sincere Group. 56.In late April, the plaintiff met Dick and Francis at the defendant’s office and told them that he did not want to join the Sincere Group. He also indicated to them his intention to leave the defendant. Both Dick and Francis told the plaintiff that he needed to stay to facilitate the approval by the SFC of the application for the proposed acquisition by the defendant into the Sincere Group. 57.Fearing that he would be forced to join the Sincere Group by the defendant and that the plan for setting up TFMHKL would never get off the ground, the plaintiff consulted a solicitor and a letter written by the solicitor to the defendant dated 6 June 2006 terminating his employment contract with the defendant. 58.The plaintiff acknowledged that he was paid his salary by the defendant up to the end of May 2006. The defendant’s evidence 59.Although the defendant had filed and served four witness statements in this matter, the defendant saw fit to only call two of the witnesses originally intended to be called. The reason given for not calling the other two witnesses was that it was on counsel’s advice. 60.Adrian Bell and Dick Chan were the two witnesses called by the defendant. The other two intended witnesses who were not called by the defendant were Francis Lai and Terence Tsap. 61.The evidence of Adrian Bell can be summarized as follows. 62.Adrian Bell is the Asia-Pacific Regional Director of Tradition Service Holding S.A. (“TSH”), which is a wholly-owned subsidiary of CFT. In turn the defendant is a wholly-owned subsidiary of TSH. 63.He had joined Meitan in April 1997 and was appointed the Asia-Pacific Regional Director in September 2003. One of the businesses he was responsible for overseeing was the defendant. 64.The defendant’s core business is dealing in money market products, interest rate and currency derivatives. In around August or September 2004, Francis Lai, the managing director of the defendant had proposed to him and the chairman of CFT, Patrick Combes a plan to expand the defendant’s retail business of financial products. He thought the idea was good but also told Francis that the capital needed for it could not be too high. Discussions by phone with Combes followed. 65.By September or October 2004, Combes had no objection to the defendant’s plan to expand its business and it was contemplated that such expansion would be carried out by acquiring other companies and utilizing the proceeds from the proposed floatation of Gaitame, a company which Meitan has an interest in on the Osaka Stock Exchange. 66.By December 2004, the defendant started to approach Peace Town International Holdings Ltd (“Peace Town”) as an acquisition target. He and Combes started to negotiate with officers of Peace Town. 67.He came to know the plaintiff during Combes’ visit to Hong Kong towards the end of 2004 at a lunch meeting arranged by Dick Chan for the plaintiff to meet Combes. He and Francis were also present. The conversation during lunch evolved around the defendant’s plans to expand and also the job opening and job nature in very general terms. Nothing specific was discussed. He saw the plaintiff as a suitable candidate and asked Dick to explore the prospect of the plaintiff taking up the position. At the time there was another candidate for that position with the defendant. 68.The acquisition of Peace Town by the defendant was held off in around August 2005 when the defendant was advised by PwC that there were a number of problems with the business of Peace Town. As a result the defendant began to look for other potential targets. 69.In January 2006, the plaintiff introduced the Sincere Group to the defendant as a possible acquisition target. The defendant took up this proposal and the plaintiff arranged for the defendant to meet with the Sincere Group. In or around February 2006, he together with Combes, Francis, Dick, the plaintiff and Terence met with the management team of the Sincere Group including Tse and others. 70.He would occasionally attend negotiation meetings with the Sincere Group. The plaintiff and Tommy were listed in the Project Shopping Organization Book dated 6 March 2006 as TFMHKL’s contacts for the acquisition. The sale and purchase agreement in respect of the acquisition was signed in Beijing in April or May 2006. He together with others (but not the plaintiff) went to Beijing to sign the agreement. The long-stop date of the deal was 30 June 2006. 71.It had always been proposed that he and the plaintiff would be the defendant’s representatives of the entity after the acquisition, and that the plaintiff was the proposed Managing Director, Chief Executive Officer and head of the Management Committee and Risk Management Committee. 72.Dick Chan’s evidence can be summarized as follows. 73.He is an Associate Director of the defendant and came to meet the plaintiff in August 2002 as the Bank was an important client of the defendant. Thereafter he and the plaintiff became close friends. His work and his role with the defendant was effectively that of a broker in the money and capital market products and he was responsible for the trading account maintained by the Bank. 74.Since about 2004, the plaintiff frequently complained to him about the plaintiff’s work at the Bank giving him the impression that the plaintiff was not happy working at the Bank. 75.In March or April 2004, because the defendant was exploring the possibility of expanding and knowing that the plaintiff was very experienced in the financial market, he had arranged a dinner with the plaintiff and Francis Lai, to introduce them. 76.By August or September, the plan to expand the defendant’s retail business of financial products into Greater China and Taiwan had been proposed to CFT. Shortly afterwards, he was told by Francis that Adrian Bell believed that plan to be a good idea. 77.By September or October 2004, that plan for expansion was approved by CFT in principle. Both CFT and the defendant contemplated that if the floatation of Gaitame on the Osaka Stock Exchange were successful, CFT was prepared to re-invest part of the proceeds from the floatation in Asia, and the expansion would be one of the venues of such re-investment. The expansion would take the form of acquiring an existing business concern as opposed to starting a new business from scratch, as that would involve less capital injection. 78.He was asked to help locate and identify possible acquisition targets. By the end of 2004, the defendant began to approach Peace Town as a target acquisition. During their “almost daily” meetings in the latter half of 2004, he had kept the plaintiff informed of the details of the planned expansion including that Peace Town was being targeted as an acquisition by the defendant as well as the intended flotation of Gaitame and the intended use of the proceeds for re-investment in Asia. During those conversation the plaintiff suggested the expansion to take the form of a “financial supermarket” participating in all sorts of financial retail products. The plaintiff further estimated that the capital required would be around HK$200 million. 79.There was also discussion between them as to how that capital could be raised. Such large funds coming from CFT was ruled out. Ultimately the view was taken that it was desirable to obtain such funds from the Gaitame flotation on the basis that CFT’s interest in Gaitame was valued at approximately US$800 million. Therefore even 10% of CFT’s interest in Gaitame would be US$80 million. 80.Both of them believed that CFT was prepared to fund such a financial supermarket but that would have to depend on the success of the Gaitame flotation. He had never told the plaintiff that CFT would in any event fund such a financial supermarket as he had no such authority and was not in a position to do so. That ought to have been known to the plaintiff. 81.In December 2004, when Combes came to Hong Kong for negotiations with Peace Town, a lunch meeting was arranged at the Mandarin Oriental for Francis to introduce the plaintiff to Combes as a potential candidate to be managing director of the eventual business vehicle. He (Dick) did not attend the lunch but was told by the plaintiff later that discussions at the lunch was only on general matters and there was even no discussion on the issue of remuneration. Adrian Bell who did attend that lunch saw the plaintiff as a suitable candidate and had asked him to explore the prospects of the plaintiff taking up the job. At that time there was another candidate for that post, one Gordon Poon. 82.Around 25 January 2005, he had lunch with the plaintiff and Francis at a Japanese restaurant in Central. On that occasion the topic of a “sign-on bonus” was discussed casually as that was a common practice at the time, but no specific offer or representation made to the plaintiff that he would receive such a sign-on bonus at that meeting if he were to join the defendant. No other terms including the amount of remuneration was discussed with the plaintiff either. 83.In February 2005, the plaintiff told him that the plaintiff had handed in his resignation letter to the Bank, but was being persuaded by the Bank to change his mind. He then told the plaintiff it was unwise to resign before securing another job offer, but the plaintiff said he was unhappy at the Bank and had made up his mind to leave anyway. He then informed Francis of the plaintiff’s resignation from the Bank. 84.In about April 2005, the negotiations for the acquisition of Peace Town was put on hold due to internal irregularities discovered by the SFC relating to two of the Responsible Officers of Peace Town. However, the further proposal by the defendant to acquire securities companies of a smaller size were not accepted by CFT. 85.All along, he had kept the plaintiff informed of the progress of the defendant’s plans for expansion and the difficulties encountered. 86.Between April and June 2005, he mentioned to the plaintiff during discussion that if the plaintiff joined the defendant, the plaintiff would be responsible for seeking out new acquisition target for such expansion. He had never told the plaintiff that the defendant had decided to set up a new and substantial leveraged foreign exchange business in Hong Kong. 87.The plaintiff was also told by him that in the early stages, the plaintiff might not be required to report to the office every day and might not be given substantive management duties. The plaintiff raised no objection to these matters. He had also advised the plaintiff to seriously consider the Bank’s offer of keeping the plaintiff on but the plaintiff said he would not go back on what he had decided. 88.In June 2005, the defendant resumed negotiations for the acquisition of Peace Town and the plaintiff was informed of that by him. The plaintiff even introduced Terence Tso, a former colleague of the plaintiff at Schroders, to join the defendant first and to assist in the proposed acquisition of Peace Town. At the same time the defendant instructed its secretarial company to incorporate a company with the name Tradition Forex Limited (“TFL”) for possible future use. TFL was incorporated on 23 June 2005 but did not carry out any business operations. 89.In July 2005, the defendant resumed negotiations to acquire Peace Town and appointed PwC as advisor to conduct due diligence exercise on Peace Town. On 4 July 2005, Terence joined the defendant and actively participated in the due diligence exercise and in preparing the Acquisition Proposal. 90.In around July 2005, the plaintiff informed him that the Bank had secured a replacement to take up the plaintiff’s post with the Bank and that he would leave around mid-August 2005. The plaintiff also pushed for a written offer of employment from the defendant. He then tried to finalise with the plaintiff the terms which the plaintiff expected from the defendant. It was during these discussions with the plaintiff that the plaintiff revealed to him for the first time that the plaintiff’s monthly salary with the Bank was HK$125,000, but was not told about the plaintiff’s bonus arrangements with the Bank. He then coveyed the plaintiff’s expectation to Francis. 91.On about 4 August, the offer letter was issued to the plaintiff by the defendant. That offer letter was signed by the plaintiff on 15 September accepting the defendant’s terms stated thereon. 92.As a result of advice given to the defendant by PwC on or about 8 August 2005, the proposed acquisition of Peace Town was abandoned by the defendant. The plaintiff was made aware of this development. The plaintiff was also made aware that CFT as well as the defendant still believed that Gaitame could be successfully floated by the end of 2005. 93.Around 23 September 2005, the defendant gave instructions for the name of TFL to be changed to TFMHKL and on 14 October 2005, the plaintiff was appointed as one of the directors of TFMHKL with his consent. From time to time the plaintiff would attend at the defendant’s office after 1 October 2005, though not daily. 94.After Peace Town was abandoned as a acquisition by the defendant, it tried to set up TFMHKL from scratch as a retail financial services company and the plaintiff participated in compiling a Business Plan dated 8 November 2005 and also a Business Plan Overview dated 10 November 2005. 95.In November or December 2005, he and the plaintiff attended meeting with the SFC to look into the requirement which TFMHKL had to satisfy to obtain the relevant license from SFC without any track record. There were also meetings with PwC personnel for the license application. 96.Under both the Business Plan and the Business Plan Overview, the plaintiff was proposed to hold various positions in TMFHKL. However, both plans were rejected by CFT because it preferred acquiring existing business entities with substantial business in the Greater China Region. The plaintiff was made fully aware of this. 97.He denies ever representing to the plaintiff that CFT had decided that the defendant could use US$30 million to set up a new and substantial leveraged foreign exchange business in Hong Kong and had never represented to the plaintiff that the plaintiff was to act as the regional guardian for developing the retail exchange business via TFL. At all times the defendant had continued to look for potential targets for acquisition. 98.By January 2006, the proposed Gaitame flotation had encountered unforeseen difficulties as one of the major shareholders of Gaitame was involved in a fraud scandal. That had caused delay to the flotation and the plaintiff was fully aware of that situation since they had met and discussed the difficulties encountered in the floatation and at the same time exploring other possible acquisition targets. In this respect, the plaintiff had called up one David Cho, a former colleague of the plaintiff, who suggested the plaintiff to contact one Tommy Tsap of the Sincere Group, Tsap being also another former colleague of the plaintiff. After the plaintiff had contacted Tsap, Tsap came over to the Cova Café to join him and the plaintiff in their discussion and proposed two potential targets, one the International Financial Network Holdings Ltd (“IFNH”) and the other the Sincere Group. Tsap also agreed to make arrangements for meeting personnel from these two proposed targets. 99.In about February 2006, the defendant commenced negotiations with the Sincere Group for possible acquisition. For that purpose a lunch meeting was held at the Marriott Hotel attended by Combes, Adrian Bell, Francis, the plaintiff, Terence and himself together with the management team of the Sincere Group led by Tse. 100.Between February and May 2006, the plaintiff was actively involved in the negotiation between the defendant and the Sincere Group, being a member of the Steering Committee set up by the defendant for such acquisition. The plaintiff attended all the meetings with Anglo-Chinese Corporation Finance Limited (“ACCFL”), the sponsor of the Sincere Group, and was introduced to ACCFL as being the representative of the defendant. The plaintiff made decisions on business models, credit control, compliance and deal structure on the matter as well as being involved in selecting members of the management committee. 101.The plaintiff also attended some meetings with White & Case, solicitors acting for the defendant in the acquisition, to discuss the Share Purchase Agreement (“the SPA”). 102.The plaintiff was listed as one of the two contacts of TFMHKL for the proposed acquisition in the Project Shopping Organisation Handbook dated 6 March 2006. 103.In or about April or early May 2006, the SPA was signed by both parties in Beijing and the long-stop date of the deal was 30 June 2006. All along the plaintiff knew that he (the plaintiff) and Adrian Bell would be the defendant’s representative of the new operation entity after the acquisition. The plaintiff was also fully aware that he would be the Managing Director, Chief Executive Officer and the head of both the Management Committee and Risk Management Committee of the new company, Sincere Financial Service Ltd (“SFSL”). The plaintiff had never raised any objection to these roles of his in SFSL. 104.The plaintiff also knew from conversation with him and Francis that if the new company were to be listed, one of the requirements of the SFC coming from the Rules governing listing was that the plaintiff would be required to remain in the management of SFSL for three years. 105.During the Tokyo trip on which the plaintiff went along with representatives from the Sincere Group between 22 and 25 April 2006, the plaintiff had been kept informed of the Gaitame flotation which was still actively pursued at the time. 106.In May 2006, the plaintiff received a call from Tse that Tse would like to meet the plaintiff alone. When the meeting was over and both of them came out from the meeting, Tse announced that the day-to-day running of the business would be entrusted to the plaintiff after the acquisition and that the plaintiff would be the person in charge. 107.After his meeting with Tse, the plaintiff told him that Tse wished to satisfy himself that the plaintiff had the ability to head the new entity. 108.On 6 June 2006, he was in Macau with the plaintiff when he received a phone call from the financial controller of the defendant telling him that the plaintiff had instructed a lawyer to make various claims against the defendant and Francis. He told the financial controller that the plaintiff was with him at the time and he would find out from the plaintiff what the matter was. 109.When he then asked the plaintiff about it, the plaintiff replied that it was his personal business and told him not to bother with it. The plaintiff’s leaving the defendant came as a shock to him as the plaintiff had made no mention of it to him before the solicitor’s letter reached the defendant. He last saw the plaintiff at work on 26 May 2006. 110.The plaintiff’s sudden departure had caused embarrassment and inconvenience to both the Sincere Group and CFT and the acquisition was delayed as a result. Assessment of the witnesses and the evidence 111.There can be little doubt that the plaintiff is very experienced in the financial field and has held a number of important positions in the various institutions that he has worked with over the year in the financial sector. 112.However, as a witness, his perception and his understanding of a number of matters of significance when giving evidence left much to be desired and he did not come through as an impressive witness in that respect. In some aspects of his evidence, even his truthfulness comes into question. 113.In assessing the evidence of the plaintiff, I take into account the following matters. 114.Firstly, it emerged from the cross examination of the plaintiff that there appeared to be four different versions of the “representations” alleged by the plaintiff to have been made to him. These four versions are to be found firstly, in a letter from the former solicitors for the plaintiff, Messrs Lo Chan and Leung; secondly, in a letter from Deacons, the present solicitors for the plaintiff; thirdly, in the plaintiff’s statement in the Labour Tribunal and fourthly, in his pleadings and witness statement in the present proceedings. 115.In so far as they allege the “representations” made to the plaintiff, the four versions are not consistent in such allegation and seemingly are quite irreconcilable. 116.The second matter I take into consideration is the concession made by the plaintiff in his evidence-in-chief that while in his witness statement it was stated by him that the Japanese floatation fell through in mid-2005 that date was incorrect and that in fact it was at the end of 2005 or early 2006 that the Japanese floatation fell through. It was to this extent that his witness statement was amended before the plaintiff adopted it as his evidence-in-chief. 117.Once that concession was made by the plaintiff, it effectively meant that misrepresentation (a) to (c) as pleaded by the plaintiff flies out the window since it can no longer be suggested by the plaintiff that the Japanese flotation has been abandoned prior to the execution of the Employment Agreement and that the defendant had failed to inform him of such abandonment. The significance of that is that even if such representations (a) to (c) had been made to the plaintiff, there was no falsity about them up to the time the plaintiff signed the Employment Agreement and therefore no misrepresentation at the material time. 118.What is therefore left in the plaintiff’s case on misrepresentation is the last representation (d), namely, that the defendant will ensure that the Group will have US$30 million for use by the defendant irrespective of the success or otherwise of the Gaitame flotation. 119.In so far as this last representation goes, the allegation comes only from the mouth of the plaintiff alone, in the sense that it was not supported by any documentary evidence at all. The credibility of the plaintiff is therefore crucial to the plaintiff’s case. 120.On the other hand, there are documents produced by the defendant which contradict important aspects of the plaintiff’s evidence. 121.The plaintiff’s evidence that the defendant represented that it would raise a capital of US$30 million for leveraged forex business is contradicted by the Business Plan which the plaintiff took part in preparing. The Business Plan only refers to the use of HK$30 million as the working capital of the leveraged forex business. There is no mention of US$30 million in the Business Plan. Moreover, the plaintiff’s evidence that TFL or TFMHKL would only start its business from scratch is contradicted by the Business Plan which specifically made mention that “TFMHKL will always seek for potential acquisition of profitable business targets”. 122.The plaintiff’s evidence that he was not involved in the negotiations with Sincere and only knew of it in mid-April 2006 is also highly suspect for the following reasons. First, it was the plaintiff who had introduced Sincere as a potential acquisition target to the defendant as early as January 2006. Secondly, the bills issued by White & Cross showed the plaintiff to have taken part in at least two meetings in March and April 2006. When confronted with the Agenda and Minutes of a meeting of the Management Committee of Sincere dated 16 April 2006 which showed the plaintiff to have attended that meeting, the plaintiff accepted that he did attend meetings but said he appeared only as a “logo” and was even asked by Dick Chan to shut up at such meetings. Thirdly, the “Project Shopping Organization Book” dated the 6 March 2006 bore the plaintiff’s name and clearly contradicts the plaintiff’s evidence that he only learnt about the Sincere negotiations in April 2006. 123.The plaintiff’s evidence that he was given “no work to do at all for 10 months” has to be viewed in light of his admission that he participated in the preparation of the November Business Plan, discussed and instructed PwC in the preparation of the draft Business Plan Overview for SFC licence application; attended a meeting with the SFC; looked for alternative acquisition targets for the defendant IFNHL and Sincere; and participated in meetings in negotiations with Sincere. 124.The plaintiff also alleged that in April 2006, after a trip to Japan, he complained to Francis Lai and it was only as a result of such complaint, Francis Lai, to pacify him, made him a member of the Steering Committee. This evidence of the plaintiff is contradicted by the Briefing Note of the Proposed Acquisition of Shareholding in Sincere Group dated 16 February 2006. When confronted with this document in cross-examination, the plaintiff attempted to sidestep that by challenging the accuracy of that document. However, up until that time during the cross examination of the plaintiff, no steps had been taken by the plaintiff or his solicitors to challenge the authenticity of the documents produced by the defendant in this litigation. 125.It was also the plaintiff’s evidence that he was entitled to 7% Management Shares in a company which should have a capital of at least US$10 million and therefore valued that entitlement of his to be at US$700,000 (which would be well over HK$5 million). However, in Deacon’s letter dated his calculated entitlement in this same respect was only for HK$3.5 million. No explanation has been given for such discrepancy. 126.As for the two witnesses called by the defendant, I found them to be straightforward witnesses giving truthful evidence as best they could but with some understandable memory lapse due to the long passage of time in relation to some less important facts. The evidence given by them were supported by the documents produced. 127.At the end of the day, neither of the two witnesses called by the defendant were even dented in cross-examination. Entire Agreement Clause 128.The defence further seek to rely upon Clause 14.1 of the Employment Agreement which states as follows :
129.It was submitted by the defendant that the wordings of Clause 14.1 are clear and unequivocal such that the first part of Clause 14.1 effectively prevents the plaintiff from running its case based on “Incorporation of Representations as terms of contract”; “implied term” and “Collateral contract”. 130.It was also submitted by the defendant that the second part of Clause 14.1, if found to be reasonable in the circumstances of the employment agreement, effectively excludes the defendant’s liability for misrepresentation (even if made). The defendant argues that the second part of Clause 14.1 is reasonable for the following reasons :
131.On the other hand, counsel for the plaintiff, relying on the decision of the Court of Appeal in Glory Gold Limited v. Star Play Development Limited [2008] 2 HKLRD 216, submitted that entire agreement clauses do not exclude misrepresentation, not being the same as non-reliance clauses. Counsel for the plaintiff submitted that is so for the present Clause 14.1 which does not have the effect of excluding a claim for pre-contract misrepresentation. 132.It is further submitted by counsel for the plaintiff that if, on its proper construction, the effect of Clause 14.1 was to exclude the plaintiff from claiming negligent misrepresentation against the defendant, then such a clause should be struck down for being unreasonable under section 4 of the Misrepresentation Ordinance. 133.The reason put forward by the plaintiff for saying that Clause 14.1 is unreasonable (if its effect was to exclude claims for misrepresentation) are as follows :
Decision and findings on the issue of representation 134.On the issue of representation, the one factual issue remaining which is in dispute between the parties relate to whether or not representation had been made by the defendant through Dick Chan to the plaintiff that the defendant will be able to raise US$30 million no matter what. 135.I accept the evidence of Dick Chan that there were of course discussions between him and the plaintiff as to the setting up of a financial supermarket and what sort of capital would be required for it to be set up. Such discussion between them, especially during their social get together, must be a far cry from the defendant making such representations to the plaintiff. Dick Chan did not have the authority to make any such representation on behalf of the defendant and that must have been clear to the plaintiff. Being hopeful of setting up “financial supermarkets” over a drink after work is one thing. It is quite another to think that such discussions with Dick Chan can amount to representations coming from the defendant. 136.Their discussion as to what could be raised from the Japanese floatation is again no more than wishful estimates. In this respect, Dick Chan was in no position to speak for CFT and that must also have been clear to the plaintiff. If there had been such representation from the defendant, as alleged by the plaintiff, that the defendant will be able to raise US$30 million no matter what, it would hardly have been necessary for them to discuss what could be raised by way of funds from the Japanese floatation. 137.I therefore reject the plaintiff’s evidence relating to what he alleges as having been represented to him by Dick Chan on behalf of the defendant. 138.In doing so, I also take into consideration that the plaintiff has alleged on different occasions seemingly four different and inconsistent sets of what had been represented to him by the defendant. 139.On the facts of this case as found by me, I therefore reject the plaintiff’s case of representation. 140.Having rejected the plaintiff’s factual case on representation, should it become necessary, I find that on a proper interpretation of Clause 14.1 of the Employment Agreement, being an Entire Agreement Clause, that clause only goes as far as to define where the contractual terms agreed between the plaintiff and the defendant are to be found, namely contained in the Employment Agreement. 141.To the extent therefore, that the plaintiff’s case on misrepresentation is put on the footing that such representation made to the plaintiff has been incorporated as part of the contract between the parties, that case of the plaintiff must fail given Clause 14.1. 142.However, in so far as it is not necessary for such pre-contract representation to be made a term of the contract before the plaintiff can rely on such representation to found a case of misrepresentation, that position would not be affected by Clause 14.1, except that on the findings made above, I have found that no such representation alleged was made to the plaintiff in this case. Implied terms and collateral agreement 143.In so far as the plaintiff’s alternative case of breach of implied terms and or breach of collateral agreement goes, he faces an insurmountable obstacle in the form of Clause 14.1 of the Employment Agreement. 144.The effect of Clause 14.1 is such that the plaintiff is precluded from relying on any other terms whether implied or otherwise not contained in the Employment Agreement as being a contractual term agreed between the parties. 145.The implied terms and the collateral agreement alleged by the plaintiff are not terms contained in the Employment Agreement and the plaintiff’s alternative case falls to the ground on that alone. 146.Furthermore, on the alternative case of the plaintiff, even if such implied terms can implied into the agreement between the parties despite the existence of Clause 14.1, breach of those implied terms cannot be substantiated on the facts of this case. 147.There is no dispute by the plaintiff that he was involved with the preparation of the Business Plan as well as instructing PwC to prepare the Draft Business Plan Overview and attending at least one meeting with the SFC. The plaintiff assisted in locating acquisition targets and attending meetings with sponsor and lawyers in respect of the Sincere acquisition. 148.Those admissions by the plaintiff coupled with the evidence of Dick Chan which I accept, that the plaintiff was given work of a managerial level and did participate in business of TFL during the 10 months that the plaintiff was with the defendant effectively puts an end to the plaintiff’s alternative case that he was given no work to do when he was with the defendant. 149.As for the other allegations made by the plaintiff in relation to his case of breach of implied terms, Clause 1 of the Employment Agreement gives the defendant the right to notify the plaintiff of his duties from time to time and stipulates that the plaintiff was not employed solely to handle the affairs of TFL but is required to work in relation to the affairs of the Group or another associated company of the Group. 150.Moreover, in so far as the plaintiff complains that the defendant could not require him to act as the Chief Executive Officer or the Managing Director of SFHL, Clause 1.1 of the Employment Agreement clearly stipulated that the plaintiff can be required to work for another associated company “in place of” and “instead of” TFL. When confronted with this in cross examination, the plaintiff conceded that the SFHL which the defendant was expecting to acquire would be an “associated company” as defined in the Employment Agreement. 151.In those circumstances, the allegation by the plaintiff of breach of implied terms wholly fails. 152.Given the existence of Clause 14.1, the entire agreement clause, the plaintiff’s claim for breach of collateral agreement also fails. Decision on plaintiff’s claim 153.For the reasons given above, the plaintiff’s claim is dismissed in its entirety. Defendant’s counterclaim 154.I turn now to deal with the defendant’s counterclaim. 155.The defendant counterclaims for damages against the plaintiff for wrongful termination of his contract of employment with the defendant. 156.There is no dispute that the contract of employment of the plaintiff by the defendant was for a fixed term of two years under the Employment Agreement commencing from 1 October 2005. 157.It is also not disputed that the plaintiff terminated that employment with the defendant on or about 6 June 2006 by merely getting his solicitors to write a letter to the defendant to the effect that he was terminating his employment with the defendant. 158.I have now found as a fact that there was no misrepresentation on the part of the defendant to induce the plaintiff to leave his employment with the Bank, nor was the defendant in breach of the Employment Agreement between it and the plaintiff. 159.It must therefore follows that the plaintiff had wrongfully terminated the Employment Agreement. 160.No evidence was adduced by the defendant of any consequential loss suffered by it as a result of such wrongful termination by the plaintiff. 161.The damages claimed by the defendant for the plaintiff’s wrongful termination was put on two alternative basis :
162.As for the first basis on which damages for wrongful termination is claimed, I am not persuaded that such a basis of calculation to ascertain damages for wrongful termination is sustainable. 163.The argument put forward by the plaintiff is that since the plaintiff failed to complete the remainder of the fixed term of the employment, the remainder of the term should be the “agreed period” of notice between the parties in the absence of any other agreement as to notice of termination contained in the Employment Agreement. 164.To accede to that argument of the plaintiff would be effectively to hold the plaintiff to specific performance of the remainder of the fixed term of the employment rather than a determination of damages for breach or for wrongful termination. That cannot be right. 165.As for the alternative basis for calculating damages for wrongful termination, section 8A(1) of the Employment Ordinance provides as follows :
The relevant part of section 6 provides as follows :
166.Section 6(2)(a) and (b) can have no application to the present case because the contract of employment in the present case is not one which can be deemed under section 5 of the same Ordinance to be a contract for one month renewable from month to month. 167.The effect of section 6(2)(c), on its wording, is such that it applies to a contract of employment where there is an “agreed period” of notice of termination. The minimum length of seven days notice in that sub-section qualifies the “agreed period” of notice of termination. 168.In the present case there is no agreed period of notice of termination in the Employment Agreement. 169.In my view therefore, section 6(2)(c) can have no application to the present case. 170.For the reasons given above, I am not persuaded by the argument put forward by the defendant as to either of the two alternative basis for the calculation of damages for the plaintiff’s wrongful termination of his employment with the defendant. 171.In the absence of any evidence as to consequential loss due to the plaintiff’s wrongful termination, I find myself relegated to only awarding nominal damages to the defendant on their counterclaim. 172.Accordingly, there will be nominal damages of $100 to the defendant on its counterclaim. Costs (order nisi) 173.There will be a costs order nisi that the plaintiff pays to the defendant the defendant’s costs of defending the action, to be taxed on the High Court scale if not agreed. 174.As for the costs of the counterclaim, the defendant having succeeded on the counterclaim but only for nominal damages, there will be no order as to costs of the defendant’s counterclaim.
Mr Jose Maurellet, instructed by Messrs Deacons, for the Plaintiff in HCA2808/2006 and the Defendant in HCA43/2007 Mr Jason Pow, SC, instructed by Messrs Simmons & Simmons, for the Defendant in HCA2808/2006 and the Plaintiff in HCA43/2007 |
Other judgments that cite this case
Further hearings and rulings under HCA 2808/2006