周敏 v. 王洪春及另一人

HCA 1458/2020

[2022] HKCFI 2151

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1458 OF 2020

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BETWEEN

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DECISION

(On Leave to Appeal)

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Introduction

1.  This is an application for leave to appeal against this Court’s judgment of 16 March 2022 in which the Court refused leave for the plaintiff to serve the writ with the amended statement of claim on the 1^st defendant outside jurisdiction (“Judgment”). In this decision, unless other indicated, I will follow the abbreviations and nomenclature in the Judgment.

2.  P issued his summons for leave to appeal on 12 April 2021, with a draft notice of appeal attached (“Leave Summons”). On 21 April 2022, P issued a further summons to amend its draft notice of appeal. D1 opposed both summonses. This Court directed that the summonses be dealt with on paper.

3.  Counsel Mr Lai Chun Ho lodged written submissions on behalf of P and counsel Mr Jerome Liu and Mr Tsang Hing Ting lodged written submissions on behalf of D1.

Amendment of the draft notice of appeal

4.  Having considered paragraph 38 of P’s submissions, and there being no sufficient evidence of any prejudice to D1, I am prepared to grant leave to P to amend its draft notice of appeal, with costs to D1. I will consider the Leave Summons based on the amended draft notice of appeal.

Draft grounds of appeal

5.  There are essentially 5 grounds of appeal:

(1) The Court erred in law, applied the wrong test, and/or was plainly wrong, in holding that P had not established a good arguable case that Gateway E is applicable as P did not have “a good arguable case for contending that his trading activities vis-à-vis D1 were conducted from Hong Kong”, due to, amongst other things, the Court applied the wrong test by considering Question 1 in determining if P satisfied the requirement of Gateway E, in that Question 1 ought not to exist as an independent and determinative consideration for the requirement of Gateway E, and that the requirement should be satisfied, so long as the parties have expressly or impliedly agreed Hong Kong to be the place of performance of the contract and in absence of agreement, there is a legal presumption that a debtor will tender payment at a creditor’s place of business or residence (“Presumption”) (“Ground (1)”);

(2) The Court erred in law, applied the wrong test, and failed to take into account relevant factors (or vice versa), and/or was plainly wrong, in holding that “all the evidence showed that P and D1 had sought each other out in Macau or in Mainland China and had dealt with each other in Macau or in Mainland China” when determining whether there was a good arguable case that an implied agreement existed that the Loans to be enforced by P would be repaid in Hong Kong (“Implied Agreement”) (“Ground (2)”);

(3) The Court erred in law, applied the wrong threshold, took into account irrelevant factors (or vice versa), and/or was plainly wrong, in finding that there was “no sufficient evidence” to infer that the Implied Agreement existed (“Ground (3)”);

(4) The Court erred in law and/or failed to take into account relevant matters (or vice versa), applied the wrong legal test, and/or was plainly wrong, in finding that P’s place of business and/or residence was not Hong Kong, when applying the Presumption (“Ground (4)”);

(5) The Court failed to take into account relevant matters (or vice versa) and/or was plainly wrong in finding that P would not suffer a juridical disadvantage if proceedings were brought in Mainland China (“Ground (5)”).

Ground (1)

6.  It is contended on behalf of P by Mr Lai that this Court wrongly held that for Gateway E to be satisfied, P must have a good arguable case that P’s trading activities vis-à-vis D1 were conducted from Hong Kong, namely this Court held that the Question 1 was determinative and that this was an erroneous reading of the case of Komala Decof.

7.  In paragraph 3 of his judgment in Komala Decof, Hunter J stated that the issue raised by the appeal was whether the plaintiffs had a good arguable case for contending that by failing to pay the sums claimed under those oral contracts the defendants had committed a breach within the jurisdiction because the defendant's obligation was to pay in Hong Kong, and that Hunter J went on to say that during the course of the argument it became clear that the issue could be said to depend on two questions which he then set out in paragraph 3 of his judgment.

8.  In paragraph 24 of the Judgment, this Court quoted the two questions posed by Hunter J, and referred to them in the Judgment as Question 1 and Question 2.

9.  On Question 1, Hunter J in Komala held that the answer was “yes”, having found that the trading activities of the plaintiffs were conducted in Hong Kong as the documentary evidence was overwhelming - “… They all point one way, namely the plaintiffs’ dealing with this defendant were in fact all conducted from an address in Hong Kong….” (p.161E-H) and the defendant relied on two insignificant factors only - “…failure to discover visible signs of the plaintiffs’ presence at the plaintiffs’ alleged business address on 30th October 1980…” and “… 1^st and 2^nd plaintiffs had never been registered at the company’s register, and the 3^rd plaintiff had ceased to be registered at the Business Register Office in June 1977” (p. 161I - 162B).

10.  Hunter J then went on to consider Question 2 and the 3 Stages.

11.  As pointed out by Mr Liu on behalf of D1, this Court never held that Question 1 was determinative in the sense that it must be resolved in P’s favour in order to satisfy Gateway E. In fact, in paragraph 36 of the Judgment, this Court having stated that Question 1 could not be answered in P’s favour, this Court then went on to consider Question 2 in paragraphs 37 to 48 of the Judgment before coming to the conclusion that P has not satisfied this Court that there is a good arguable case that his case falls within Gateway E.

12.  Having considered the above, I am of the view that P has not made out Ground (1).

Ground (4)

13.  It is contended on behalf of P that this Court had taken an unduly narrow view of the Presumption when this Court stated in paragraph 45 that a debtor “has to pay the creditor at the creditor’s place of business”, in that under the Presumption, a debtor must repay a creditor at his place of business or residence at the date the debt was contracted, citing Chitty on Contracts (34^th ed) at 24-053 and Drexel v Drexel [1916] 1 Ch 251 at 259-260.

14.  As pointed out on behalf of D1, in paragraphs 30-35 and 45-47 of the Judgment, this Court has considered and assessed P’s evidence regarding P’s place of residence and also whether P had a place of business in Hong Kong. Further, this Court had referred to the case of Drexel in which Mrs Drexel being in England had a right to have payment made to her in England. This Court went on to consider P’s residence in Hong Kong in paragraph 47 (which this Court had again considered in paragraph 53) and also whether P had a place of business in Hong Kong in paragraph 48, before concluding in paragraph 49 that Stage 3 could not be satisfied.

15.  In the above circumstances, I do not find that Ground (4) has been made out.

Grounds (2) and (3)

16.  It is contended on behalf of P that the Court had failed to apply the correct test in relation to the implication of an agreed term.

17.  As pointed out by Mr Liu on behalf of D1, it was P who had to satisfy this Court that under the test there was a good arguable case that the payment was to be implied to be made in Hong Kong.

18.  In paragraph 44, this Court did not find there was sufficient evidence for any inference to be drawn that there was the Implied Agreement between the parties that the place of performance or the repayment of the Loans was to be in Hong Kong. This Court had set out all the reasons in paragraphs 38 to 43 of the Judgment.

19.  P has not made out Grounds (2) and (3).

Ground (5)

20.  It is contended on behalf of P that the Court’s finding that P would not suffer a juridical disadvantage if proceedings were brought in Mainland China was unsupported by the evidence. As seen in paragraph 55 of the Judgment, the submission of P’s former counsel was that P would suffer a juridical disadvantage or be deprived of a juridical advantage in Mainland China as gambling debts are not enforceable in Mainland China.

21.  As to the submission made by Mr Lai on behalf of P in relation to the Loans being time-barred in Mainland China, suffice to say and as pointed out on behalf of D1, this is a new argument, which was not argued at the substantive hearing and was not addressed by P’s expert.

22.  In respect of the 1^st Loan (of which the 2^nd Loan was said to be part of), this Court was of the view that the guarantee provided by P was for the release of D1 and not for D1 to gamble and further there was no evidence that the 1^st Loan would not be enforceable in Macau. As for the 3^rd Loan, P had not alleged that he would suffer any juridical disadvantage and there was no sufficient evidence that the 3^rd Loan had anything to do with gambling. As for the 4^th Loan, this Court again found there was no evidence that it would not be enforceable in Macau.

23.  The burden is on P to satisfy this Court that Hong Kong is clearly the proper or appropriate forum for the 3 new causes of action. The Court has set out reasons in paragraphs 51-62 why P has not satisfied this Court that Hong Kong is clearly the appropriate forum.

24.  I do not find that Ground (5) has been made out.

Conclusion and Order

25.  In light of all said above, this Court is not satisfied that P’s appeal has a reasonable prospect of success, or there is some other reason in the interests of justice that the appeal should be heard. In the circumstances, I dismiss P’s Leave Summons with costs to D1.

Costs

26.  The costs of P’s summons to amend the draft notice of appeal and the Leave Summons are to be summarily assessed, with certificate for one counsel. D1 is to submit his statement of costs within 14 days and P to submit any list of objections within 14 days thereafter. The costs summarily assessed shall be paid by P within 21 days of assessment.