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Wu Han Rong v Chan Hor Yee Hilda

Judgment Cited authorities 2 Cited in Precedent Map Related
Vincent
Judgment Date05 May 2015
Year2015
Judgement NumberHCA1617/2014
Subject MatterCivil Action
CourtHigh Court (Hong Kong)
HCA1617A/2014 WU HAN RONG v. CHAN HOR YEE HILDA

HCA 1617/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

HIGH COURT ACTION NO 1617 OF 2014

________________

BETWEEN
WU HAN RONG Plaintiff

and
CHAN HOR YEE HILDA Defendant
______________
Before: Deputy High Court Judge Le Pichon in Chambers
Date of Hearing: 22 April 2015
Date of Decision: 5 May 2015

________________

DECISION
________________

1. This is an appeal from a decision of Master J Wong dated 16 February 2015 dismissing the defendant’s summons to strike out the plaintiff’s claim and granting summary judgment to the plaintiff on her claim against the defendant based on 14 dishonoured cheques (“the Citic cheques”). My decision appears below.

Background facts

2. According to the plaintiff, the Citic cheques represented the total value of the principal amount of certain investments she had placed with the defendant as well as the guaranteed returns on those investments.

3. Since at least September 2011 the plaintiff has been a client of Success International Bullion (H.K.) Ltd (“Success”), a member of the Success Finance Group. The defendant was then a senior vice president of Success and handled her account.

4. The plaintiff invested in investment schemes involving a fixed return for the principal invested. The plaintiff placed various sums with the defendant for that purpose in or about September 2011 and in return was given post‑dated cheques covering the principal and the guaranteed returns. There are exhibited to the plaintiff’s affirmation 12 receipts signed by the defendant acknowledging monies received “for investment use” between 23 September 2011 and 26 October 2013 (“the earlier transactions”).

5. The earlier transactions (which do not form the subject matter of this action) involved investing in gold and IPO subscriptions, the investment period for each lasting no more than three or four months.

6. In 9 of the 12 earlier transactions, typically, a small percentage of the return (generally of the order of 3% but there are instances of a larger percentage) was payable at various monthly intervals with the balance of the return and the principal due at the end of the relevant period. The guaranteed return ranged between 30% to 35%.

7. The defendant had provided one or more post‑dated cheques to the plaintiff in respect of each of the earlier transactions. The cheques so provided were dated with dates falling within the period between 23 October 2011 and 26 January 2014.

8. Sometime after the plaintiff had begun her business relationship with the defendant, in or about 2012, the defendant established TYG Capital Management Ltd (“TYG”) as one of the founders and invited the plaintiff to invest in TYG. The plaintiff did so as is evidenced by a receipt (exhibited by the plaintiff’s solicitor) that had been signed by the defendant for TYG and issued on 11 June 2014 acknowledging receipt on 25 February 2014 of a sum of US$150,000 from the plaintiff for investment in the TYG Capital Fund.

9. As the earlier transactions had done well and the post‑dated cheques issued for the earlier transactions were duly honoured on presentation, the plaintiff continued to invest and kept giving the defendant more money for investments.

10. According to the letter dated 15 April 2014 from the plaintiff’s solicitors to the defendant and TYG (“the April letter”), in January 2014, the plaintiff signed a number of contracts with TYG and/or the defendant but she was not provided with copies. That was the reason given to explain the absence of the underlying documentation for the transactions in respect of which the Citic cheques were issued. It should be noted that the TYG receipt mentioned in §8 is not related to the Citic cheques.

11. The plaintiff’s affirmation stated that the defendant gave her the Citic cheques in or about January to February 2014 covering the return of the sums of her investments and for the guaranteed returns (“the later transactions”). The Citic cheques bore dates falling within the period from 21 January 2014 to 30 April 2014. But it is to be noted that neither the statement of claim nor the plaintiff’s supporting affirmation referred to the matters mentioned in the letter of 15 April 2014 (see §10 above).

Grounds of appeal

12. The defendant's appeal is based on various grounds: (a) the Money Lenders Ordinance; (b) physical duress; and (c) conditional delivery. These will be considered in turn but underpinning those grounds is the defendant’s case that the Citic cheques represented the capital amount of loans made to her by the plaintiff from time to time as well as the agreed interest.

13. While the defendant does not deny that the parties had a business relationship and acknowledged that there had been many dealings between them over the years, in her statement to the police on 27 June 2014 (“the police statement”), she maintained that she came to know the plaintiff in 2010 through the introduction of a friend and “afterwards I borrowed in my personal capacity about HK$15,000,000 …” and went on to state that “[as at 27 June 2014, the date of the police statement] including interests I have not repaid her about HK$30,000,000”.

14. However, in her affirmation dated 23 October 2014 filed in opposition to the summary judgment summons, it is stated (at §4(1)) that only “part of the sum underlying the present claim represents informal loan(s) from the plaintiff to myself”. No particulars were given as to the amount involved or which part represented loans. Surprisingly the defendant is also wholly silent as to whether the loans attracted any interest and if so which of the loans and at what rate(s). But it would appear from the police statement that the alleged loans did attract interest.

15. Then at §8 of her affirmation, the defendant explained that “[i]nsofar as the loan being the underlying subject matter of this action is concerned, they were sums provided to me on an informal basis for my own investment purposes”. §4(1) and §8 of the defendant’s affirmation cannot both be correct. The interest issue aside, the notion that the plaintiff would have made loans to a total stranger (which the defendant must have been in 2010 as there is no evidence of dealings, business or otherwise, earlier than September 2011) and without security of any form requires some believing.

16. Beyond that, all the defendant can say about the alleged loans (discerned from the police statement) is that they were made over the course of several years apparently “sometimes without signing IOUs or receipts acknowledging the loans”. The use of the word “sometimes” suggests that som...

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