Lin Ren Xiang v. Hui Kam Fong also known as Hui Kam Fong Wendy
Read the full judgment text of DCCJ 1361/2014 on BabelCite. This District Court judgment was delivered on 18 September 2014.
1. This is the plaintiff’s appeal from Master SP Yip’s decision to grant unconditional leave to the defendant to defend the plaintiff’s claim.
Cited by 1 case · Cites 4 cases
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DCCJ1361/2014 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CIVIL ACTION NO 1361 OF 2014 --------------------------------------
-------------------------------------- Before: Deputy District Judge Catrina Lam in Chambers (Open to Public) Date of Hearing: 8 September 2014 Date of Decision: 18 September 2014 ------------------------ DECISION ------------------------ 1.This is the plaintiff’s appeal from Master SP Yip’s decision to grant unconditional leave to the defendant to defend the plaintiff’s claim. BACKGROUND 2.The defendant was at all material times until around October 2013 the plaintiff’s secretary and personal assistant, having worked in this capacity since around 1987, some 20 odd years ago. The plaintiff initially hired the defendant in his personal capacity but later used one of his companies, Sure Resources Company Limited (“Sure Resources”), as her employer. 3.It is not in dispute that Sure Resources was the only company that the defendant had a contractual relationship with. The defendant had no contractual relationship with any of the plaintiff’s other companies. 4.The plaintiff says his case is simple. On or shortly before 26 September 2011, at the defendant’s oral request, the plaintiff agreed to lend HK$1 million to the defendant. Pursuant to this agreement, on 26 September 2011, the plaintiff through his nominee companies, Superway Group Limited (“Superway”) and Sure Resources (HK) Company Limited, caused a total sum of HK$1 million (the “Amount”) to be transferred to the defendant. 5.By letter dated 11 March 2014, the plaintiff through his solicitors, Messrs Boase Cohen & Collins (“BCC”), formally demanded the defendant to repay the Amount, stated as a loan, on or before 25 March 2014. Despite the plaintiff’s demand, the defendant has failed and/or refused to repay the Amount. On 10 April 2014, the plaintiff commenced the present proceedings to recover the Amount from the defendant. 6.The defendant admits that the plaintiff did transfer the Amount to her and that the transfer was done pursuant to her request. The defendant’s defence is that the Amount was not a loan but was remuneration for her past services to Superway. 7.The defendant alleged in her affirmation filed in opposition to the application for summary judgment (“Affirmation”) that she and the plaintiff are both directors and shareholders of Superway. In his reply evidence, the plaintiff exhibited copies of the registers of members and directors of Superway, as well as documents dated 8 April 1998 relating to the opening of Superway’s bank account with The Hong Kong and Shanghai Banking Corporation Ltd (“HSBC”). These documents show that, contrary to the defendant’s allegation, the plaintiff was Superway’s sole shareholder and director. In the circumstances, Mr Jeremy Cheung, counsel for the defendant, quite properly accepted at the hearing that the plaintiff was not in fact a director or shareholder of Superway on record. 8.Superway was initially used for trading in shares listed on the Stock Exchange of Hong Kong. It was later used as an intermediate trading firm in relation to the sale of rare earth. 9.The defendant’s case is that she was entrusted with Superway’s day-to-day management as the plaintiff travelled frequently. She was in charge of the buying and selling of shares at the beginning, and was later in charge of all the business associated with trading rare earth. Her responsibilities included “negotiating with client(s), arranging for shipment and all banking matters etc”. The defendant says she did not receive remuneration of any kind for managing Superway for 13 plus years and was never given any share in the profits made. 10.On or shortly before 26 September 2011, the defendant says she told the plaintiff that she was in need of money to acquire a property and suggested HK$1 million as a fair sum to remunerate her for her services to Superway over the past 13 years. The defendant claims that the plaintiff agreed then that HK$1 million was a fair sum and promised to transfer the same to the defendant. As stated, it is not in dispute that the plaintiff did transfer the Amount to the defendant and that such transfer was done at the defendant’s request. 11.It is common ground that the plaintiff and the defendant fell out towards the end of 2013. According to the plaintiff, he orally terminated the defendant’s employment in October 2013. On 27 January 2014, the plaintiff through his previous solicitors issued a letter to formally terminate the defendant’s employment. APPLICABLE PRINCIPLES Appeal from master’s decision 12.I remind myself that this is an appeal by way of an actual rehearing of the plaintiff’s application for summary judgment and I should treat the matter as though it came before me for the first time. I will give the weight it deserves to the previous decision of the Master but I am in no way fettered by the previous exercise of his discretion: see Hong Kong Civil Procedure 2014, para 58/1/2. Principles on summary judgment 13.The principles applicable on an application for summary judgment are well known and not disputed by the parties. These are set out in extenso in Hong Kong Civil Procedure 2014, in particular, paras 14/4/3-11 and 16. In summary :- 14.The test at the summary stage is whether the defendant’s assertions are believable by taking them in the context of so much of the background as is either undisputed or beyond reasonable dispute and having regard to contemporaneous documents. 15.The onus is on the defendant to show that there are triable issues or that he has a “real or bona fide defence” on the balance of probabilities. 16.Sufficient facts and particulars must be given to show that there is a triable issue. The defendant’s affidavit must “condescend upon particulars”. Bare allegations are not sufficient. 17.It is the court’s duty to give judgment for the plaintiff when it is satisfied not only that there is no defence but no fairly arguable point to be argued on behalf of the defendant. 18.Leave to defend conditional on the full amount claimed being paid into court may be ordered where the defence is “shadowy” or there is little or no substance in it or the case is almost one in which summary judgment should be ordered. 19.Before a decision is made as to the imposition of a condition, an examination must be taken of the plaintiff’s case, having regard to any attack made on it by affidavit. If that examination aroused suspicions that the claim might be made in bad faith, that “there was something shadowy about it”, or that it might be tainted with illegality, the correct course for the judge to adopt was to give unconditional leave to defend so that all matters could be ventilated at trial. No opinion should be expressed, however tentative, as to which case appeared to be stronger at the time: Billion Silver Development Ltd v All Wide Investments Ltd [2000] 2 HKC 262 at 266E-I, 268C-269E, citing the approach adopted by the English Court of Appeal in Extraktionstechnik Gesellschaft Fur Anlagenbau MbH v Oskar (1984) 128 SJ 417. THE DEFENDANT’S DEFENCE 20.In his customarily concise and helpful submissions, Dr William Wong SC, Leading Counsel for the plaintiff, submitted that the defendant’s defence does not withstand scrutiny. Dr Wong grounds his submissions on 2 principal basis: First, the defence is a last minute concoction that is inherently contradictory to be incapable of being believed. Second, even on the defendant’s own version of facts, the purported defence is not a real or legally valid defence because what is alleged to constitute the consideration for the defendant’s alleged remuneration, namely, her past services, amount to past consideration, which is as a matter of law no consideration. Factual analysis 21.Dr Wong took me to the inter-solicitors’ correspondence exchanged prior to the commencement of this action. By letter dated 11 March 2014, BCC formally demanded the defendant to repay the Amount. The defendant’s solicitors, Messrs Alan Ho & Co (“AHC”), replied two weeks later on 25 March 2014, having taken instructions, merely putting forward a bare denial to the plaintiff’s contentions. Nowhere in this reply was there any allegation or suggestion that the Amount was transferred to the defendant as remuneration for her past 13 plus years of services to Superway. If this was indeed the true and genuine position, says Dr Wong, it is inconceivable that the defendant (who was already legally represented at the time) would have failed to put forward her case in this letter. 22.By letter dated 27 March 2014, BCC sought clarification from AHC as to whether the defendant is denying she received the Amount from the defendant at all or whether she is denying that the Amount received by her was in the nature of a loan. AHC did not provide the clarification as requested. AHC simply sent a holding response to BCC on 31 March 2014. 23.The first time the defendant raised her purported defence was more than two months later when she filed her Affirmation on 21 May 2014, after the plaintiff had issued the application for summary judgment. Dr Wong submits that this last minute allegation has all the hallmarks of a recent fabrication and is, upon careful analysis, not capable of being believed. I agree for the reasons detailed below. 24.Next, Dr Wong directed my attention to Superway’s registers of members and directors, as well as its HSBC bank account opening documents dated 8 April 1998. These documents show that the plaintiff was at all material times and still is the sole shareholder and director of Superway, and the only person authorised to operate its bank accounts. The latter was admitted by the defendant in her Affirmation. As stated, Mr Cheung correctly accepted at the hearing that the defendant was not in fact a director or shareholder of Superway. It follows, therefore, that the defendant’s argument that she was entitled to a share of profits because she was a shareholder, or that she was entitled to remuneration as its director, falls away. In any event, there is no dispute that all the monies held by Superway were injected by the plaintiff. Thus, there is no logical reason why the defendant should be entitled to any share or interest in Superway. 25.Pausing here, I should point out that the defendant also placed reliance upon a Customer Information Statement issued by Wardley Securities Limited (“Wardley”) and signed by the plaintiff, which filled in both the plaintiff and the defendant’s names as shareholders of Superway. Mr Cheung argues that the plaintiff is “bound” by this document because he had put his signature on it and therefore the defendant should be entitled to a share of Superway’s profits on this basis. I agree with Dr Wong that this argument is highly artificial. In light of Mr Cheung’s acceptance that the defendant was not in fact a shareholder of Superway, I do not see how this document can assist Mr Cheung. 26.Mr Cheung further clarified at the hearing that it is not the defendant’s case that she is entitled to be remunerated by each and every company she managed for the plaintiff. Mr Cheung submits that the defendant’s case is that, of all the companies she managed for the plaintiff, Superway was “special” because it engaged in trading activities unlike the other companies. There is, however, no evidence before this court to support the defendant’s case that Superway was “special” or that it engaged in activities different to those carried out by the plaintiff’s other companies. 27.The only evidence adduced by the defendant in this context was two invoices issued by Superway. One invoice showed that the defendant was asked to handle a cheque for an insurance policy, which is entirely consistent with the plaintiff’s case that the defendant was carrying out her routine work as his secretary and personal assistant. The other invoice relied upon did not even show that the defendant was in any way involved in the transaction. 28.Per contra, Dr Wong took me to two documents which he says show that the plaintiff’s relationship with the defendant was one of “master and servant”. 29.The first document is a handwritten letter dated 25 July 1997 from Wardley to the plaintiff concerning the securities account of another company of the plaintiff, Lucky Ocean Industrial Limited (“Lucky Ocean”). Although the defendant was a director and/or secretary of Lucky Ocean, it is clear from this letter that Wardley regarded the plaintiff as the owner of the account and the defendant was simply expected to pass the message in relation to the matters concerning that account to the plaintiff. Dr Wong submits that this modus operandi applies with even stronger force in respect of Superway because the defendant was neither its director nor shareholder. Mr Cheung points out that there is no evidence to show that the defendant was a director of Lucky Ocean in 1997. This is not strictly correct. In a letter dated 11 March 2014 to the defendant, BCC stated that the results of their searches with the Companies Registry revealed that the defendant was a director and secretary of Lucky Ocean from 28 June 1996 until at least 16 December 2013. The defendant had chosen not to deny this or reply to BCC’s letter. 30.The second document is an internal memo of Sure Resources handwritten by the plaintiff to the defendant dated 9 July 1997. It is plain from this document that the plaintiff was instructing the defendant to handle matters for him as a secretary. 31.These documents reinforce the plaintiff’s case that the defendant’s role never ventured beyond her standard secretarial role. Apart from the defendant’s bare assertion in her Affirmation, not an iota of evidence has been adduced to show that she performed any work outside of the scope of her routine work as the plaintiff’s personal secretary and assistant. It is therefore fanciful for her to suggest that she should be entitled to extra remuneration on top of her usual salary for her work vis-à-vis Superway. There is no real dispute that the defendant had all along received salary in her capacity as the plaintiff’s personal secretary. In the circumstances, insofar as the defendant played any role in Superway, it is clear that it was performed in her capacity as the plaintiff’s personal secretary, for which she had received remuneration. 32.Pausing here, Mr Cheung complained that the plaintiff has not adduced any evidence to show that the defendant received any salary beyond 1997. The Employer’s Tax Returns exhibited by the plaintiff, Mr Cheung says, go up to the year ending 31 July 1997 only. I do not see how it is open to the defendant to make this complaint since she never made any suggestion or allegation in her Affirmation that she did not receive any salary after 1997. The defendant could have sought leave to file supplemental evidence to challenge the matters set out in the plaintiff’s 2nd and 3rd affirmations but she had chosen not to do so. 33.Next, Dr Wong made the following and I think quite powerful submission. The defendant’s case that she had been willing to work for Superway for 13 plus years without any remuneration, without a single word of complaint, is inherently incredible. The sum involved is not insignificant compared with the defendant’s monthly salary – HK$1 million for 13 years’ service translates to an average of HK$6,400 per month. As Dr Wong put it, “it is incredible and moonshine” that the defendant never once complained about not receiving any remuneration from Superway in 13 plus years. I agree. Likewise, the defendant’s suggestion that one day when she wanted to be remunerated for her past services, Superway immediately agreed to pay her HK$1 million, is equally nonsensical. 34.As Dr Wong pointed out, there is no suggestion or evidence to show that the defendant had declared the Amount, received supposedly as remuneration, to the Inland Revenue Department or that she had paid any tax on the same. There is zero documentation to show that the Amount was remuneration other than the defendant’s bare allegation in her Affirmation. 35.Apart from her bare assertion, there is no evidence showing that the defendant was entitled to receive any remuneration from Superway or that there had been any declaration of dividends by Superway. Indeed, the fact that she received no remuneration and there had been no declaration of dividends has been admitted by the defendant. 36.Mr Cheung submitted that where there are factual issues involving one person’s words against another, then the dispute should be resolved at trial. I respectfully disagree. 37.It is well-established that where an oral contract is sued on and its terms are in dispute, summary judgment must be refused unless the plaintiff can satisfy the court either that on the defendant’s version he is entitled to judgment or that the defendant’s version is not truthful or capable of belief: see Hong Kong Civil Procedure 2014 at para 14/4/11. In other words, even where there are factual issues involving one person’s words against another, it is clear that the court must still make an assessment as to whether or not the defendant’s assertions are credible or believable in the light of the evidence before the court. Failure to recognize this would, using the often-cited words of Bokhary JA in Re Safe Rich Industries Ltd, unrep., CACV 81/1994, 3 November 1994, create “a debt-dodger’s charter”. 38.Applying the principles applicable to summary judgment, and taking the contentions advanced by and on behalf of the defendant in the context of the background that is either undisputed or beyond reasonable dispute, as well as having regard to the contemporaneous documents, I find that it is simply not believable that the plaintiff transferred the Amount to the defendant as remuneration for her past services to Superway. There is very little or no substance in the defendant’s defence. It is, in my view, a shadowy defence at best. Legal analysis 39.The second tier of Dr Wong’s case is as follows: even on the defendant’s own version of facts, the Amount was paid for past services which amount to past consideration. It is trite law that if the act alleged to constitute the consideration has already been done before, and independently of, the giving of the promise, it amounts to past consideration which does not in law amount to consideration for the promise: Chitty on Contracts (31st ed), Vol 1, paras 3-026 to 3-029. Accordingly, Dr Wong submits that the plaintiff’s alleged promise to remunerate the defendant for her past services is not enforceable as a matter of law and the defendant’s past services cannot in law amount to a good reason for keeping the HK$1 million. 40.Mr Cheung did not dispute this point in reply. Dr Wong drew my attention to paragraph 46 of the defendant’s skeleton submissions where it is submitted that even if the defendant’s past services amount to past consideration, “it would not be a valid defence to a claim of money had and received for total failure of consideration”. I must confess I do not quite understand the point sought to be made here and I do not see how it assists the defendant’s case. Not surprisingly, this point was not elaborated upon in the oral submissions advanced on behalf of the defendant. 41.Whilst I bear in mind that it is usually not enough for a defendant on an application for summary judgment to show a defence creating no enforceable right (Hong Kong Civil Procedure 2014 at para 14/4/4 citing Woolston v Baines [1876] WN 74), I note that there is no suggestion here that the plaintiff had failed to fulfil his alleged promise to pay remuneration to the defendant. Nor is the defendant now seeking to enforce the plaintiff’s alleged promise. In the circumstances, I do not agree that the defendant’s defence must therefore necessarily fail in limine. 42.I do accept, however, that the defendant’s past services do not amount to a good reason in law for keeping the HK$1 million. This is a factor that further militates against the defendant’s assertions being a real or bona fide defence. THE PLAINTIFF’S CASE 43.Having concluded that the defendant’s defence has little or no substance, and is at best a shadowy defence, I now turn to examine the plaintiff’s case, taking into account any attack made on it by affirmation, before deciding whether or not to impose a condition. 44.The defendant’s skeleton submissions put forward a number of matters alleged as weaknesses in the plaintiff’s case, which the defendant says indicate that there are triable issues in this case. Dr Wong took me through the various allegations in the defendant’s skeleton submissions in detail. I will not repeat each and every allegation here. These allegations are broadly summarised below. 45.First, the defendant submits that plaintiff’s case as originally formulated was that the loan was repayable on demand but the plaintiff later “shifted” his case in his 2nd affirmation to say that the loan was repayable once the defendant’s liquidity problem improved. I do not see any inconsistency or shift in stance between the plaintiff’s case as pleaded and as set out in his 2nd affirmation. 46.According to paragraph 4 of the plaintiff’s 2nd affirmation, it was the defendant, not the plaintiff, who suggested that she would repay the plaintiff once her liquidity improved. This is consistent with the plaintiff’s case that this was not a commercial loan, but was rather the case of an employer helping out his personal secretary in need, with whom he has had a long term relationship of mutual trust and confidence for over 20 years. Put in this context, it seems entirely understandable and indeed not so surprising that the plaintiff did not ask the defendant to sign any IOU or discuss any interest or repayment term. This is particularly so given that the plaintiff was at the time “cash-rich” and therefore did not consider HK$1 million to be a very significant amount of money. I agree with Dr Wong that there is a “ring of truth” to the plaintiff’s case. 47.Second, the defendant points to the oddity that a successful and prudent businessman like the plaintiff would agree to advance an interest free loan of HK$1 million to the defendant without any record of the loan agreement, security or imposing any terms as to repayment. The defendant also submits that the loan agreement was absurd and commercially unsound as the defendant earned only HK$16,000 per month as a secretary and it would take her more than 5 years to repay the loan. It was inconceivable that the plaintiff would put himself in a situation whereby he would be forced to retain the defendant even though he was dissatisfied with her service to ensure she had a steady income to repay him or else risk losing HK$1 million. 48.As stated, the lack of loan documentation in the present case is not surprising, since it was not a commercial or business transaction. Nor do I agree that that the loan was absurd or unsound. As Dr Wong pointed out, if the Amount was indeed used to acquire a property in 2011, it is likely that the property would have gone up in value substantially. In any event, there is simply no evidence that the defendant had no other source of income besides her salary. 49.As to the risk of losing HK$1 million, this is a risk inherent in every unsecured loan. The fact that an inherent risk is present does not and cannot mean that every unsecured loan is incapable of being believed. 50.In my view, the observations of Deputy High Court Judge Louis Chan (as he then was) in Fourway (HK) Ltd v China Nantong Harbour Logistics Ltd, unrep, HCA 1618/2009, 30 September 2011, relied upon by the defendant, that it would seem odd for the plaintiff in that case to advance a loan to the defendant on terms of interest-free, unsecured and repayable on demand, do not assist the defendant. Each case must be decided on its own facts. As pointed out by the learned Judge, unlike the present case, there was no explanation there at all as to why the plaintiff had agreed to advance US$4,042,800 to the defendant without any loan documentation (at para 13). The sum of money involved in that was case was significant by any standard and the parties involved were corporate entities. The facts of this case are starkly different. 51.Third, the defendant says that it is inconceivable that the plaintiff did not demand the defendant for repayment until 11 March 2014, some 5 months after her employment was terminated when her ability to repay would definitely be an issue. This, the defendant says, casts doubts on the plaintiff’s case and points to the alleged loan agreement being a recent fabrication. 52.I disagree. As stated, there is no evidence that the defendant had no other source of income besides her salary. There is therefore no basis for suggesting that her ability to repay would “definitely be an issue”. Further, whilst the parties differ as to the reason why they fell out towards the end of 2013, there is no real controversy that the loan had nothing to do with the termination of the defendant’s employment. Accordingly, there was no reason why her formal notice of termination dated 27 January 2014 should include a demand for repayment of the Amount. The formal demand letter was issued no more than a few weeks later. I see no proper basis for suggesting that the loan agreement was a recent fabrication. 53.Further, Dr Wong submitted that, as the defendant has admitted to receiving the Amount from the plaintiff, the payment would prima facie import an obligation to repay on demand, absent circumstances giving rise to any presumption of advancement. The legal burden is thus on the defendant to prove the facts which he alleges show that the Amount is not repayable on demand. 54.To support this proposition, Dr Wong relied on Mak Ka Hing v Pang Ming Chung [2011] 1 HKLRD 347. In that case, the plaintiff sought to recover from the defendant an alleged advance of $14.9 million. The defendant admitted receiving the sum, but claimed it was not repayable because it represented “agency and consultancy fees” and a reward for the introduction to a joint venture project by him and his wife. The first instance judge disbelieved the defendant’s claim and gave judgment in favour of the plaintiff. The Court of Appeal dismissed the defendant’s appeal, holding that the principle in Seldon v Davidson applied in that case. Le Pichon JA (with whom Ma CJHC and Rogers VP agreed) set out the observations of Willmer LJ in Seldon v Davidson as follows at para 23:-
55.Mr Cheung submitted that the burden of proof did not shift to the defendant in the present case, as she has alleged that the consideration backing the payment was her past 13 plus years services to Superway. My attention was directed to paras 18 and 19 of 周月珍 v 伍栽治, unrep, HCA 983/2011, 24 June 2014, Deputy High Court Judge Wilson Chan (as he then was). After reviewing the relevant authorities, the learned Judge took the view that the highlighted words should not be read restrictively and stated as follows:-
56.It is significant to note that the learned Judge did not appear to have specifically considered the Court of Appeal’s decision in Mak Ka Hing v Pang Ming Chung. 57.In my view, it is not necessary to decide at this stage whether or not the Seldon v Davidson “presumption of fact” applied in this case. This is because, regardless of whether the presumption applied, on an application for summary judgment, the onus is on the defendant to demonstrate on the balance of probabilities that her defence of payment for past services is real or bona fide and capable of being believed. This, as explained above, the defendant has fallen short of achieving. 58.Lastly, Mr Cheung complained that the plaintiff has not adduced any evidence to show that the defendant’s cash flow has improved, let alone significantly improved. I do not see the relevance of this complaint. As stated, the plaintiff’s case is that the Amount is repayable on demand and it was the defendant who said that she would repay him when her liquidity improved. In any event, it is not the defendant’s case that her cash flow has not improved and therefore the plaintiff is not entitled to sue on the loan. Nor is there any evidence to show that the defendant currently has any liquidity problem. 59.Having carefully considered all the matters raised by the defence both in the defendant’s skeleton submissions and in Mr Cheung’s oral submissions, I do not regard the various matters relied upon as so-called weaknesses as casting doubt or suspicion on the plaintiff’s case. In any event, I am satisfied that the plaintiff has come up with reasonable explanations for these matters and his case has a “ring of truth” in it. RULING 60.In my view, there are grounds for believing that the defence set up is a sham and this case is almost one in which summary judgment should be ordered. Accordingly, I make the following orders:-
61.I also make a costs order nisi that the costs of and occasioned by this appeal, including the plaintiff’s application for summary judgment before Master SP Yip, be costs in the cause. There will be a certificate for one counsel for the hearing of this appeal. 62.The above costs order nisi shall become absolute unless an application for variation is made within 14 days from the date of delivery of this decision.
Dr William Wong, SC and Ms Ebony Ling, instructed by Boase, Cohen & Collins, for the plaintiff Mr Jeremy Cheung and Ms Candy Tang, instructed by Alan Ho & Co, for the defendant | ||||||||||||||
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