Bank of China (Hong Kong) Ltd v. Tsang Sheung Bun

CACV 7/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 7 OF 2013

(ON APPEAL FROM HCMP NO. 5256 OF 2003)

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BETWEEN

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REASONS FOR JUDGMENT

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Hon Yuen JA:

1.I agree with Kwan JA’s Reasons for Judgment.

Hon Kwan JA:

2.This is an appeal against the judgment of Deputy Judge Sakrhani given on 16 November 2012 after a five-day trial in October 2012.  The plaintiff, the Bank of China (Hong Kong) Ltd, which became the successor of all the undertakings of Sin Hua Bank Ltd (“the bank”), claimed against the defendant Tsang Sheung Bun for vacant possession of his property at Ormsby Street, Tai Hang, Hong Kong (“the Property”) and for monies due pursuant to a legal charge dated 14 November 1997 made between the defendant as the mortgagor, Universal Taxi Ltd (“Universal Taxi”) as the borrower and the bank as the lender. The legal charge contained a joint and several covenant of the mortgagor and the borrower to repay all monies due to the bank whether past present or future.

3.The judge gave judgment to the plaintiff for delivery up of vacant possession of the Property and for the amount due of $71,174,892.74 with interest.  The defendant’s counterclaim for a declaration that the legal charge is null and void and of no legal effect and for an order that the transactions contained therein be set aside was dismissed.  Costs were awarded to the plaintiff on full indemnity basis, as there is provision in the legal charge that the mortgagor and the borrower shall pay or reimburse the lender legal costs on full indemnity basis incurred by the lender in the enforcement of the legal charge[1].

4.At the trial, the defendant raised four grounds of defence: non est factum, misrepresentation, undue influence and unconscionable bargain.  The judge made findings of fact against the defendant that he must have known he was signing the legal charge with himself as the mortgagor, Universal Taxi as the borrower and the bank as the lender and he was obliged to repay on demand by the bank all sums of money due by Universal Taxi to the bank, whether past, present or future; that he would have known part of the facilities Universal Taxi would obtain from the bank, namely, overdraft facilities of $1,160,040, would be used to finance his purchase of the Property and he was providing the Property as security for the banking facilities granted or to be granted to Universal Taxi; that he knew he had a liability to repay in the event of default by Universal Taxi of the facilities granted to it by the bank; and that he knew full well he had to pay interest in respect of the overdraft obtained by Universal Taxi.[2]  As the factual bases required to support the above grounds of defence were not established in view of the factual findings, the judge rejected all four grounds of defence.

5.The defendant sought to challenge the factual findings of the judge on appeal.

6.We dismissed his appeal at the conclusion of the hearing with costs to the plaintiff on a party and party basis as sought by the plaintiff and ordered the defendant’s own costs be taxed in accordance with the Legal Aid Regulations.  I now provide the reasons for our judgment.

The background

7.The background matters leading to the defendant’s purchase of the Property and the execution of the legal charge were set out in detail in the judgment[3].  For present purpose, a summary would suffice.

8.The defendant used to be a taxi driver and was friends with another taxi driver Lam Tin Loi (“Lam”) and his wife Madam Fung Man Yin (“Fung”).  In the 1980s, he purchased taxis on instalment payment terms on the advice of Lam, who managed the taxis for him by letting them out and receiving rentals.  Lam and Fung set up a taxi business which was later incorporated in the name of Universal Taxi.  In 1986, the defendant had two taxis which were fully paid off.  These taxis were transferred to the name of Fung so they could be managed conveniently by Universal Taxi.  The defendant left Hong Kong to get married in the Mainland in 1987 but returned to Hong Kong from time to time to collect the taxi rentals paid to him.  The rentals were deposited into an account he opened with Universal Finance Ltd, a company controlled by Fung.  He bought a minibus in 1994 and it was also registered in Fung’s name and managed by Universal Taxi.

9.In 1997, the defendant brought his family to settle in Hong Kong and looked for a suitable property to purchase as residence, with Lam to assist him.  They viewed the Property on 1 October 1997.  The next day, he learned from Lam the Property was owned by Fung and she was willing to lower the asking price from $2,880,000 to $2,600,000.  He agreed with Lam orally to purchase the Property.

10.It is the defendant’s case he agreed with Lam that his deposits with Universal Finance Ltd amounting to $1,505,000 would be used as part of the purchase price and the balance of about $1,100,000 would be paid by approximately 40 monthly payments of $29,000 out of the $39,000 he was to receive from Universal Taxi as monthly rental.  The defendant left it to Lam to handle all the arrangements.  He claimed he was asked by Lam to go to a solicitors firm Messrs Chow Griffiths & Chan (“CGC”) to sign documents in relation to the purchase of the Property from Fung and nothing else.  He denied knowledge of signing the legal charge.  He said he was never requested by Lam to sign any mortgage or charge and he had never agreed to provide the Property as security for the banking facilities of Universal Taxi.  He claimed that with the financial arrangements he had agreed with Lam, there was no need to obtain a mortgage on the Property.

11.Universal Taxi was a customer of the bank at all times.  It was regarded by the bank as a sizeable business, with the company and its associates holding more than 100 urban taxi licences and more than 10 minibuses operating in fixed routes.  The bank had granted facilities to Universal Taxi of $58,300,000, secured by properties valued at the total market value of $74,947,000 in August 1997.

12.On 5 November 1997, the bank approved further facilities to Universal Taxi increasing the limit to $66,279,000.  The judge found that the revised facilities were adequately secured by deposit instruments with the bank, guarantees by Fung and Lam, and mortgages on eight properties, which included the Property.  The Property was valued by the bank at $2,100,000.

The witnesses and the findings of fact

13.At the trial, the plaintiff called three witnesses.  They were Wong Chi Keung (the Assets Recovery Manager of the Risk Management Department of the plaintiff), Ms Leung Kwai Han (a conveyancing clerk of CGC; “Leung”) and Ms Jeanna Hau Nang Man (a partner of CGC; “Hau”).  CGC acted for the defendant in the sale and purchase of the Property and for the bank as well as for the defendant as the mortgagor and Universal Taxi as the borrower in the legal charge of the Property to the bank[4].  Leung was the conveyancing clerk who assisted the handling solicitor of CGC, Fong Ping Wah, in handling the transactions and her signature appeared on the assignment and the legal charge as the person who interpreted these documents to the defendant.  Hau attested the defendant’s execution of the assignment and the legal charge as the handling solicitor was engaged at the time.

14.The defendant was the only witness from his side.

15.There was dispute between Leung, Hau and the defendant as to what happened when he executed the assignment and the legal charge at the offices of CGC.  The defendant denied there was any explanation of any of the documents.  He gave evidence he spent only 15 minutes at the solicitors offices and that he signed the documents in the reception area, not in the conference room.  He only saw Leung on that occasion and Hau never attended to him or attested his signature on any document.

16.The judge found Leung and Hau gave honest and truthful evidence.  Although they could not remember the actual events due to the long lapse of time, both said they carried out “their normal practice” when dealing with clients and when attesting the various documents referred to.  The judge had “no hesitation in accepting their evidence”, “there was no reason for any departure from the normal practice”[5].

17.The judge found the defendant an untruthful, unreliable and evasive witness[6].  He gave a number of instances where the defendant’s evidence was unsatisfactory, contradictory, or not borne out by contemporaneous documents:

(1)     The defendant denied he signed the provisional agreement for sale and purchase to purchase the Property at $2,280,000, which was lower than what he said was the agreed price of $2,600,000, before he went to CGC to sign documents on 14 November 1997.  His evidence was contradicted by the stamping of the provisional agreement for sale and purchase on 6 November 1997[7].

(2)     In the defendant’s two affirmations in 2004, he mentioned that he had entrusted Lam to arrange “the property mortgage” and he intended to go to the law firm to sign “the sale and purchase agreement and the mortgage contract”.  In his affirmation in 2006, he sought to retract the above, saying that the references to the mortgage were “typo-error”.  He accepted in cross-examination he had read the 2004 affirmations and confirmed their contents to be correct when he affirmed but said he could not be sure he did not misread any of the characters in the affirmations prepared for him by Lam’s brother.  The judge rejected this as absurd and a feeble attempt of the defendant to distance himself from his earlier affirmations[8].

(3)     In the contemporaneous income and expenditure account prepared by Lam for the defendant, it was clearly stated that there was a “property mortgage 1,160,000”, again showing that the defendant must have known about the mortgage.  The judge found the defendant evasive when he was cross-examined on this[9].

(4)     In another contemporaneous income and expenditure account given by Lam to the defendant, it was stated that interest had been paid for the “樓宇 [Property] OD 1,160,000”.  The defendant was unable to explain why he had to pay interest in the sums set out in that document[10].

(5)     The defendant said in cross-examination for the first time he had mortgaged the Property to Universal Taxi.  This was never mentioned in any of his affirmations or witness statement.  The judge found he made this up when giving evidence[11].

(6)     In his witness statement, the defendant said Lam told him on 13 November 1997 to go to CGC the next day to sign an assignment of the Property and when he went to the law firm accompanied by Lam and Fung, they told him the purpose of going there was solely for transferring the Property to his name “and there were no other matters”.  In cross-examination, the defendant contradicted himself by saying that Lam had only asked him to go to CGC to sign documents for the transfer of the Property and that was the only thing Lam said[12].

18.Where the defendant’s evidence was at variance with the evidence of Leung and Hau, the judge had no hesitation in preferring the evidence of Leung and Hau to the evidence of the defendant[13].

19.The judge found on the evidence that Leung explained each of the documents to be executed as part of her usual practice and that her explanations were given in the presence of the defendant, Lam and Fung.  The documents were: the legal charge[14], the assignment[15], a direct debit authorisation in respect of the account of Universal Taxi[16], a fire insurance application form which was signed by the defendant to insure the Property for $1,160,040 in English and Chinese[17], a deed of guarantee executed by Lam and Fung for $45,000,000[18], an undertaking for repayment of overdraft to Universal Taxi[19], an application for banking facilities by Universal Taxi, being an overdraft of $1,160,040[20], the directors and shareholders resolution of Universal Taxi both dated 13 November 1997 approving the execution of the legal charge notwithstanding that any payment out of the facilities might be used by the company to pay the balance of the purchase price of the Property for the chargor[21].  The judge also found Leung had explained in the defendant’s presence the letter dated 11 November 1997 from the bank to Universal Taxi which set out the detailed facilities that the bank was prepared to grant to Universal Taxi[22].

20.The judge believed and accepted Hau’s evidence of what she would have told the defendant in accordance with her usual practice when she attested his execution of the assignment and the legal charge[23].

This appeal

21.Ms Lisa Jane Cruden, who was not the trial counsel of the defendant, sought to challenge on appeal the above primary findings of fact of the judge.  Leave was given to file a supplementary notice of appeal out of time.  That document ran into 16 pages and contained 27 paragraphs in the grounds of appeal.  The grounds could and should have been set out succinctly in the supplementary notice, as was in fact done in one single paragraph of no more than a page and a half in §28 of her skeleton submission.

22.In short, it was contended that the judge had erred in applying the legal and evidential burden of proof; that there was a departure from the normal practice in respect of the defendant’s transaction so the judge was wrong to accept the evidence of Leung and Hau as in accordance with normal practice; that the documents signed by Fung and Lam for Universal Taxi were signed on a different occasion, not on the same occasion when the defendant executed the assignment and the legal charge.  As the factual findings were in error and the defendant’s evidence should have been accepted, the judge was wrong in rejecting the grounds of defence of non est factum, misrepresentation, undue influence and unconscionable bargain.

23.Finally, although it was not raised in the court below, it was contended that the judge should have found there was a collateral agreement or a composite agreement that the maximum liability of the defendant to the bank was $1,160,040, so the legal charge should be set aside.

Challenging the findings of fact

24.It is not necessary to repeat what has often been cited being what Bokhary PJ said about appeals against findings of primary fact in Ting Kwok Keung v Tam Dick Yuen (2002) 5 HKCFAR 336 at §§34, 35, 41 and 42 and the authorities he quoted from, including Benmax v Austin Motor Co Ltd [1995] AC 370 at 375 and Piglowska v Piglowski [1999] 1 WLR 1360 at 1372D to F.  The court of appeal should only reverse a finding of primary fact if it is satisfied that the finding is plainly wrong.  If not so satisfied, it should defer to the trial judge’s conclusion even if in some doubt as to its correctness.

25.Mr Bernard Man, who appeared for the plaintiff here and below, referred us to the recent judgment of the UK Supreme Court in McGraddie v McGraddie [2013] 1 WLR 2477, in which the Supreme Court allowed an appeal from the Inner House of the Court of Session that had reversed findings of fact made by the trial judge. In the judgment of Lord Reed JSC (with whom all the other members of the court agreed), he quoted with approval at §§3 and 4 statements from a case of the US Supreme Court and a case of the Canadian Supreme Court.  As these instructive statements do not appear to have been mentioned in our courts before, I will set out the quotations in full:

“The rationale for deference to the original finder of fact is not limited to the superiority of the trial judge’s position to make determinations of credibility. The trial judge’s major role is the determination of fact, and with experience in fulfilling that role comes expertise. Duplication of the trial judge’s efforts in the court of appeals would very likely contribute only negligibly to the accuracy of fact determination at a huge cost in diversion of judicial resources. In addition, the parties to a case on appeal have already been forced to concentrate their energies and resources on persuading the trial judge that their account of the facts is the correct one; requiring them to persuade three more judges at the appellate level is requiring too much. As the court has stated in a different context, the trial on the merits should be ‘the “main event” … rather than a “tryout on the road”… For these reasons, review of factual findings under the clearly erroneous standard – with its deference to the trier of fact – is the rule, not the exception.” (Anderson v City of Bessemer (1985) 470 US 564 at 574 to 575)

“The trial judge has sat through the entire case and his ultimate judgment reflects this total familiarity with the evidence. The insight gained by the trial judge who has lived with the case for several days, weeks or even months may be far deeper than that of the Court of Appeal whose view of the case is much more limited and narrow, often being shaped and distorted by the various orders or rulings being challenged.” (Housen v Nikolaisen [2002] 2 SCR 235 at §14)

26.These observations apply with equal force to the situation here.  Those advising the defendant should have heeded the prescient comments above.

27.I fail to see any basis for Miss Cruden’s assertion that the judge erred in applying the legal and evidential burden of proof.

28.She contended that the judge was wrong to find that the evidence of Leung and Hau of their normal practice was sufficient to establish what in fact occurred, on the premise that there was no reason to depart from the normal practice.  She submitted there was in fact a departure from normal practice in the defendant’s transaction, in that the completion letter issued by CGC dated 14 November 1997 was not in accordance with the standard letter of undertaking as recommended by the Law Society.  Instead, CGC informed the vendor’s solicitors that the balance of the purchase money had been settled by both parties directly and the vendor’s solicitors were asked to confirm with their client.

29.This argument is misconceived. Evidence of the normal or usual practice given by Leung and Hau, as accepted by the judge, was the usual practice adopted by Leung and Hau in a transaction of this kind, as is clear from the judgment at §§49, 68, 69,74, 75 and 76.  The recommended practice of the Law Society is irrelevant here.

30.Miss Cruden argued that the judge was wrong to hold that all the documents signed by Lam and Fung were signed in the defendant’s presence, contrary to his evidence.  She pointed to the fact that the other documents signed by Lam and Fung were either undated or were dated 13 November 1997, and that the bill and receipts of CGC were dated 1, 12 and 13 November 1997.  She reasoned that the judge should have inferred that Lam and Fung would have attended at CGC and executed those other documents on some other occasions in the absence of the defendant.

31.The short answer to this is that the judge is entitled to reject the defendant’s evidence and place no weight on the dates or the absence of a date on various other documents.  The judge is also entitled not to draw the inference as suggested by counsel.  He is not obliged to find that the defendant had signed the documents on 14 November 1997, taking the view it matters not whether they were signed on 13 or 14 November, it being common ground that the defendant, Lam and Fung signed the legal charge on the same occasion at the offices of CGC[24].  I note also from Mr Man’s submission it was never put to Leung or Hau in cross-examination that Lam and Fung had attended CGC on a separate occasion to execute documents for Universal Taxi.

32.As Mr Man has rightly submitted, unless the defendant could persuade this court to reverse the judge’s findings of fact that the defendant knew and agreed to what he was signing, that he was not subject to any undue influence, and that there were tenable reasons why the legal charge was made, the lines of defence relied on by the defendant simply would not get off the ground.  With this, I turn to the arguments of Miss Cruden in respect of the four lines of defence.

Non est factum

33.The judge rejected this defence as he found on the evidence that the defendant was not under any inability to understand the legal charge.  The document was explained to him before he signed it and on the evidence of Leung and Hau, which the judge accepted, the defendant must have known that he was also signing the legal charge not just the assignment[25].

34.Miss Cruden argued that the judge should have found in the absence of evidence adduced by the plaintiff as to the actual events (not just the usual practice of CGC personnel) to rebut the defendant’s evidence of the actual events, non est factum was established.  There is no merit in this contention.

Misrepresentation

35.The judge rejected the defendant’s evidence that Lam and Fung had made fraudulent misrepresentation to the defendant that the document he was to sign was an assignment not a legal charge.  There was no suggestion that anyone in CGC was party to the misrepresentation or fraud alleged against Lam and Fung.  The judge found the defendant knew that he was signing the legal charge which was explained to him[26].

36.There is no basis to disturb the judge’s findings of fact.

Undue influence

37.The judge referred to the judgment of Lord Scott in Li Sau Ying v Bank of China (Hong Kong) Ltd (2004) 7 HKCFAR 579 at §§29 and 30, and noted that the real issue was “whether the evidence justifies a conclusion that the impugned transaction was procured by undue influence”.  He then made the following findings of fact on undue influence:

“109. As to the issue whether the legal charge is voidable on the ground of undue influence, in considering the evidence I am not satisfied that Fung or Lam unduly influenced the defendant into executing the legal charge. The defendant’s case is that he did not know that he was signing the legal charge and that he thought that he was signing an assignment of the property to him. I have already found against him on this.

110. In any event, it was the defendant’s evidence that had he known that he was being asked to sign the legal charge he would not have signed it.

111. He also said that he did not know when signing the assignment that the lower purchase price of HK$2,280,000 was stated as the purchase price instead of HK$2,600,000. If he had known that he would have asked questions about that.

112. I am satisfied that the defendant was not a person who would have been unduly influenced to sign the legal charge. He was quite capable of refusing to sign the legal charge if he did not want to sign it. I so find.

113. On my findings the defendant knew what he was signing and by signing the legal charge he agreed to it.”

38.On that basis, the judge held the defendant failed to satisfy the court that Fung or Lam had unduly influenced him into executing the legal charge.  Hence the other issues (whether Fung or Lam had unduly influenced the defendant as the bank’s agent; whether the bank was put on inquiry as to undue influence in that it knew of any relationship which indicated the risk of abuse, and if so whether from the eyes of the bank the nature of the transaction was apparently disadvantageous to the surety; and if the bank had constructive notice, whether it had taken reasonable steps to dispel constructive notice) simply do not arise[27].

39.What Miss Cruden sought to raise in this appeal relate to the other issues which the judge has ruled do not arise.  She submitted that Lam and/or Fung acted as the bank’s agents in procuring the defendant to execute the legal charge.  She argued that undue influence should be inferred as the transaction was manifestly disadvantageous to the defendant in that the legal charge contained a covenant to pay all the liabilities of Universal Taxi to the bank.  She contended that the bank had failed to take reasonable steps to ensure that the defendant entered into the transaction freely and voluntarily, such as by explaining to him the amount and extent of his liability in a private meeting in the absence of Lam and Fung, by urging him to take independent legal advice or insisting that he should be separately advised. She relied on Credit Lyonnais v Burch [1997] 1 All ER 144.

40.Where the evidence does not justify the inference that on a balance of probabilities the impugned transaction was procured by undue influence, it cannot be said that the bank would have constructive notice of any alleged impropriety in relation to the transaction or that it should have been put on inquiry such that it could not rely on the apparent consent of the defendant to the transaction.  There being no question of constructive notice, it is unnecessary to consider if the bank had taken reasonable steps to dispel constructive notice (Bank of China (HK) Ltd v Personal Representatives of Fu Kit Keung [2009] 5 HKLRD 713 at §§65, 66).

41.The mere fact that a debtor is required by his bank to obtain security for facilities and the debtor then approaches the surety does not mean that the debtor is acting as the agent of the bank (Bank of China (Hong Kong) Ltd v Wong King Sing & Ors [2002] 1 HKLRD 358 at §63).  There is no evidential basis to support the contention that Lam or Fung was acting as the bank’s agent in procuring the defendant to enter into the legal charge.

42.I reject also the contention that undue influence should be inferred as the transaction was manifestly disadvantageous to the defendant.  Since the bank was not actually or constructively aware of any relationship between the defendant, Lam and Fung that indicated any risk of abuse, the mere fact that the transaction might have been, or even was, manifestly disadvantageous to the defendant was not sufficient to give rise to a presumption that it had been obtained by undue influence and to put the bank on inquiry (Bank of China (Hong Kong) Ltd v Leung Ngai Hang & Anr, CACV 250/2005, 12 January 2006, §17, citing Credit Lyonnais v Burch at 154j).

43.The defence of undue influence must fail on the evidence.

Unconscionable bargain

44.The judge referred to Chitty on Contracts (31^st ed) §§7-133 and 7-134 for the scope of the doctrine of unconscionable bargain[28].  He noted that for relief to be granted, it must be established that the impugned transaction was overreaching and oppressive such that its terms, together with the conduct of the stronger party, “shook the conscience of the court”.

45.He made the following findings at §122:

“I would observe that at the time of the purchase of the property the defendant’s only assets were the taxis and the minibus which were not in his name but had been transferred to Fung for her to hold on his behalf. He was able to partly pay for the purchase of the property from his deposits with Universal Finance Ltd and the monthly sum that he was receiving from Universal Taxi for the management of his vehicles. However, as his vehicles were not registered in his name, it would have been difficult for him to obtain a mortgage to finance the purchase of the property. It does not seem to me that when the legal charge was executed there was any reason to believe that the financial situation of Universal Taxi and that of Lam and Fung would become precarious.”

46.On the above basis, the judge went on to hold that although the obligation to repay the past, present and future liabilities of Universal Taxi was harsh on the defendant, the legal charge did not shake the conscience of the court.  Accordingly, he held that the bargain was not oppressive to the defendant in overall terms, that the defendant was not suffering from a sufficient weakness, and that the bank did not act unconscionably and behave in a morally reprehensible manner which affected its conscience[29].

47.There is no basis to disagree with the judge. Besides, as Mr Man has pointed out, there is not even a plea that the bank had knowingly taken advantage of any relevant weakness of the defendant.  I reject Miss Cruden’s contention the judge was wrong in finding the fact that the defendant was not independently advised by another firm of solicitors did not render the legal charge an unconscionable bargain.

Collateral agreement to limit maximum liability

48.Miss Cruden submitted there was evidence to establish a collateral agreement by which the maximum liability of the defendant was limited to $1,160,040 and relied on Bank of China (Hong Kong) Ltd v Fung Chin Kan & Anr (2002) 5 HKCFAR 515 to contend as there was a collateral agreement to that effect, alternatively a single composite agreement to that effect, the legal charge and the judgment below should be set aside and the defendant’s liability to the bank should be limited to $1,160,040.

49.The evidence relied on by counsel consisted of these documents:

(1)     the instruction of the bank to CGC dated 10 November 1997 to prepare a legal charge, which stated that: “For your reference as to calculate the professional charges, this Charge is to the extent of HK$1,160,040.00”; and

(2)     the drawdown letter of CGC to the bank dated 14 November 1997 reporting that the instructions had been carried out with the statement that: “As set out in your instructions letter, the facilities granted by your Bank under the above Legal Charge is (extent of facilities – HK$1,160,040.00), in accordance with the regulations prescribed by the Law Society, our costs for preparing the above Legal Charge have been calculated on that basis and our maximum liability in case of negligence is limited to (extent of facilities – HK$1,160,040.00)”.

50.This is an entirely new point not pleaded or raised at the trial.  The defendant is not permitted to advance any argument of a collateral or composite agreement on appeal as this raises issues of fact which should be pleaded and investigated at the trial.

51.In any event, the documents relied on by the defendant do not support the case of any agreement to limit his liability to $1,160,040.  In the instruction of the bank to CGC dated 10 November 1997, it was clearly stated that CGC was to prepare a legal charge to secure “general banking facilities to an unlimited extent”.  The judge also found the defendant knew that part of the facilities to Universal Taxi was an overdraft of $1,160,040 which was to finance part of the purchase of the Property, evidenced by the application for overdraft facilities and the directors and shareholders resolution of the company[30].

52.For the above reasons, as none of the grounds of appeal are of merit, we have dismissed the appeal with costs.

Hon Chu JA:

53.I agree.

Miss Liza Jane Cruden, instructed by Raymond Cheung & Chan, assigned by Director of Legal Aid, for the Appellant / Defendant

Mr Bernard Man, instructed by K.W. Ng & Co., for the Respondent / Plaintiff