HO SUK CHING WINNIE v. LUNG CHEE MING GEORGE

HCA 858/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 858 OF 2009

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JUDGMENT

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1.  This is a dispute between friends who have known each other for many years.

BACKGROUND

2.  The plaintiff and Ms Maggie Yau (“Ms Yau”) are former schoolmates and they have known each other for more than 30 years.  Ms Yau is the wife of the defendant, and the defendant has been friend with the plaintiff for many years.

3.  The defendant was formerly working in the Lands Department of the Hong Kong Government.  In about 1991, the defendant started to work as an insurance agent and he is now the head of the “George Lung District” of Manulife International Ltd (“Manulife”).

4.  The plaintiff used to work in the estate agent business.  After the plaintiff’s divorce in 2001, the defendant and Ms Yau recommended and tried to recruit the plaintiff to work as an insurance agent for Manulife. However, the plaintiff failed in the qualifying examination for the insurance agent licence.

5.  It is the plaintiff’s case that on or about 15 June 2004, she had entered into an oral agreement with the defendant over a telephone conversation, whereas in the case that the plaintiff referred clients to the defendant and his affiliates in Manulife and if the clients eventually purchased any products from Manulife, the defendant would pay to the plaintiff a sum equivalent to 30% of all the first year’s income, commissions and monies payable and paid to the defendant and his affiliates by Manulife out of and in respect of the premiums or purchase monies paid by the clients for the products.

6.  It is also the plaintiff’s case that such referral fee agreement was a general agreement which was applicable to all the referrals she made to the defendant and his affiliates, and there was no time limit imposed on when the clients should purchase the products from Manulife.

7.  Pursuant to such agreement, the plaintiff made the first referral to the defendant on 16 June 2004 by introducing one Mr Donald Wilfred Shilton (“Mr Shilton”) to the defendant and his affiliate, Mr Chan Hoi Pong Samy (“Mr Chan”), in a breakfast meeting.

8.  There is some dispute between the parties about the contents of the alleged agreement.  Firstly, the defendant claims that, subject to the approval to be granted by Manulife, the defendant only agreed to pay 30% of his own first’s year income and commissions but not those earned by his affiliates if Mr Shilton were to purchase any products from Manulife. Secondly, it is the defence case that such agreement would only cover that particular client introduced by the plaintiff, ie Mr Shilton.  Despite the disagreement about the exact terms of the agreement, I would simply refer this agreement as “the 30% Referral Fee Agreement”.

9.  Mr Shilton had a few meetings with the defendant, Mr Chan and other staff members of Manulife or its related companies.  By that time, Mr Shilton was interested in purchasing a product known as “Guarantee Note” issued by a company known as “John Hancock”, which was a related company of the Manulife Group.  Subsequently, the Manulife Group decided to withdraw such product from the market and so there was no transaction concluded between Mr Shilton and Manulife.

10.  The subject action is related to the investment products known as “Manulife Secure Income Plus” (“the Products”) purchased by Mr Suen Yiu Wah (“Mr Suen”) and his wife Mrs Suen Lee Wai Han (“Mrs Suen”), through their investment company, in November 2007.  The Suens paid premium in the total sum of US$10,000,000 for the purchase of the Products, and they were the common friends of the plaintiff and the defendant at the material time.

11.  It is the plaintiff’s case that she had referred the Suens to the defendant for the purchase of the Products.  Prior to the referral, the defendant had assured her that the 30% Referral Fee Agreement also covered any products to be purchased by the Suens.  After obtaining the relevant figures from Manulife, the plaintiff alleges that the defendant and Mr Chan had earned the sums of $2,410,463.05 and $1,970,254.01, being their respective first year’s income and commissions relating to the purchase of the Products by the Suens, and she therefore claims 30% of that total sum, ie $1,314,207, against the defendant pursuant to the alleged terms of the 30% Referral Fee Agreement.

12.  On the other hand, the defendant disputes that it was the plaintiff who had referred the Suens to the defendant.  The defendant and Ms Yau had known the Suens for a long time and the latter had purchased the Products from the defendant without any involvement or referral of the plaintiff. Further, the 30% Referral Fee Agreement was only applicable in the case of any transactions concluded by Mr Shilton, and the defendant denies that he had given any assurance to the plaintiff that the 30% Referral Fee Agreement would apply for the products to be purchased by the Suens.

13.  The dispute between the parties is therefore a factual one, and the main issues in the present case are:

(i)  what were the terms of the 30% Referral Fee Agreement?; and

(ii)  whether the plaintiff did refer the Suens to the defendant for the purchase of the Products?

EVIDENCE AT THE TRIAL

(i)      The plaintiff’s evidence

14.  At the trial, the following witnesses testify on behalf of the plaintiff’s case: the plaintiff, Mr Shilton, Mr Yeung Kong Sang and Mr Ho Kui Sun Danny.  The plaintiff has also issued a witness summons against one Ms Jessie Wong who is working as a Senior Manager in the Agency Compensation & Compliance Division in Manulife.

15.  I would try to give a summary of the evidence of the plaintiff.  She tells the court her version of the contents of the 30% Referral Fee Agreement.  The plaintiff also recalls how she had introduced Mr Shilton to the defendant, and the details of the meetings she had attended with Mr Shilton, the defendant and other staff members of Manulife.

16.  The plaintiff knew the Suens in around 1990.  The plaintiff had emigrated to Calgary in Canada in about 1991, and she had visited the Suens in Vancouver.  Through the arrangement of Mrs Suen’s sister, they met once in around 1999 to 2000.  After that meeting, they had lost contact with each other.  In about December 2004, she learnt from a common friend that the Suens had just returned to Hong Kong from Canada for holiday.  They arranged to meet for lunch.  During that gathering, the Suens consulted her on matters relating to management of their assets, as they were worried about the heavy estate duty that might be levied upon their estates upon their death.  The plaintiff told them about her earlier referral of Mr Shilton to the defendant, and the Suens had expressed an interest in purchasing similar financial and insurance products.

17.  The plaintiff therefore arranged the Suens to meet the defendant, Ms Yau and Mr Chan on or about 27 January 2005.  On that day, the defendant assured her that the 30% Referral Fee Agreement was still applicable if the Suens were to purchase any products from Manulife.  The Suens did not purchase any products on that particular occasion but she did help the defendant and Mr Chan in forwarding some information to the Suens after the meeting on 27 January 2005.

18.  It is the plaintiff’s case that the Suens only knew that the defendant was working in the insurance business through her introduction to the Suens on 27 January 2005.  The plaintiff further says that after that referral, Mr Suen had requested the plaintiff to introduce more professionals to him and she therefore introduced Ms Serena Koa of DBS Bank to him on 5 February 2005 and Ms Eva Lo and Mr Roger Yip to him on 18 April 2006.

19.  On or about 10 April 2008, the plaintiff met Ms Yau and learnt that the Suens had purchased some products from Manulife.  Ms Yau told her that referral fee would be paid to her, and Ms Yau gave her a cheque drawn by the defendant in favour of the plaintiff in the sum of $70,000.  By that time, she did not know the details of the Products purchased by the Suens and so she accepted the cheque as partial payment of the referral fee.  The plaintiff signed on a receipt (“the Receipt”) which referred to the payment of $70,000 as “the consultation fees of George Lung District”.

20.  On about 4 December 2008, the plaintiff had lunch with Mrs Suen during which Mrs Suen told her that they had paid US$10,000,000 to purchase the Products from Manulife and asked her whether she had fully received her referral fee.

21.  On about 7 December 2008, the plaintiff agreed, over a telephone conversation with the defendant, to make the third referral to the defendant.  During the same conversation, the defendant had reconfirmed with her that the 30% Referral Fee Agreement was also applicable to this referral.  On 15 December 2008, the plaintiff arranged this potential client called Mrs Pang to meet the defendant and Mr Chan, but Mrs Pang did not show up.  During that meeting, the plaintiff asked the defendant to calculate the exact amount of the referral fee in respect of the purchase of the Products by the Suens.

22.  In support of her case, the plaintiff has produced to the court, inter alia, the Receipt, her diary showing the dates of the various meetings she had with Mr Shilton, the defendant, Mr Chan and the Suens and the contact particulars of Mrs Suen that she had supplied to the plaintiff in late December 2004.

23.  The plaintiff also relies on a statement signed by Mrs Suen dated 17 February 2009 (“the Statement”), in which Mrs Suen acknowledged that it was the plaintiff who had made the referral for them to purchase the Products from Manulife, and the referral date was April 2006.  The plaintiff prepared the Statement for Mrs Suen to sign, but the plaintiff made a mistake about the actual referral date which should be 27 January 2005.  The plaintiff had also made another mistake about the date of the making of the 30% Referral Fee Agreement in the pre-action letter dated 26 February 2009, and she insists that these mistakes were genuine mistakes.

24.  The plaintiff’s second witness is Mr Shilton who runs a financial and fund management business in Canada.  He first met the plaintiff in Calgary in 1996.  He tells the court as to how the plaintiff had introduced him to the defendant for the potential purchase of the products of Manulife and its related company, and the meetings he had with the defendant, Mr Chan and other staff members of Manulife on 16 June, 12 July and 24 August 2004 and in mid January 2005. Before he met the defendant, Mr Shilton was told by the plaintiff that she would get a 30% referral fee from the defendant if he were to purchase any products from Manulife.  Mr Shilton also recalls that the defendant had personally assured him that he would take care of the plaintiff’s referral fee once they concluded the deal for the purchase of Manulife’s products.  He maintains that it was the defendant and his staff who had recommended him to buy the investment product known as “John Hancock’s Guarantee Note” and it was not he who mentioned such product at the outset. 

25.  The plaintiff has also called Mr Yeung Kong Sang and Mr Ho Kui Sun Danny to testify on her behalf.  They are the common friends of the plaintiff, the defendant and the Suens.  They give the court some background of the relationships between the relevant parties but their evidence is not particularly helpful in determining the main issues in this case.

26.  The plaintiff has also issued a witness summons against Ms Jessie Wong, who testifies as to the amounts of the first year’s commissions that were earned by the defendant and Mr Chan in respect of the purchase of the Products by the Suens.  According to Ms Jessie Wong, the commissions earned by them consist of the following components: (i) Single Premium Commission; (ii) WM Trailer Fees; (iii) Monthly Production Bonus (“MPB”); (iv) Production Club Bonus (“PCB”); (v) PTM Bonus; (vi) Year End Bonus; and (vii) Semi Annual Incentive Bonus.

27.  MPB is payable when an agent has achieved a certain sales target and PCB is calculated by reference to the business generated by a particular agent for the whole year.  In other words, the calculation of MPB and PCB for a particular agent would depend on the amount of transactions concluded by an agent over a period of time.  Since the system of Manulife was not designed to show how much an individual product sold by an agent would attribute to the overall MPB and PCB earned by that particular agent, Manulife would not be able to supply these figures even if the agent were to request for such information.

28.  In this particular case, Manulife had devoted special effort in calculating how much MPB and PCB were earned by the defendant and Mr Chan only in respect of the Products purchased by the Suens.  Manulife would not have done so but for the present legal proceedings.

(ii)     The defendant’s evidence

29.  The following witnesses testify on behalf of the defendant’s case: Mr & Mrs Suen, the defendant, Mr Chan and Ms Yau.

30.  Mr and Mrs Suen are aged 80 and 74 respectively.  The Suens had emigrated to Vancouver in Canada in 1974, and they tell the court how they met the plaintiff and the defendant in around 1989 and 1990.  In the early 90’s, the defendant and Ms Yau had also emigrated to Vancouver and they met occasionally for tea when the defendant was in town.  On the other hand, the Suens had very little contact with the plaintiff before December 2004.  In recent years, Mrs Suen stayed in Vancouver most of time whilst Mr Suen stayed in Hong Kong.

31.  Mr Suen tells the court as to how he had approached the defendant and Mr Chan in late 2003 or early 2004 to seek advice on the management of their assets with a view to avoid the levy of heavy estate duty on the Suens’ estates upon their death (“the First Meeting”).  After the First Meeting, Mr Chan passed to him some information relating to the levy of estate duty in Hong Kong.  Mr Suen also gives an explanation as to why he made a mistake about the date of the First Meeting in his first witness statement.  Mr Suen cannot recall when he actually knew that the defendant was working in the insurance business, but he had met the defendant and Ms Yau occasionally when he went back to Vancouver for holidays in the early 90’s and they had maintained regular contacts ever since.  He confirms that he had lunch with the plaintiff, the defendant and Mr Chan in January 2005, but that was only a casual lunch gathering and they only talked about family matters.  After the lunch, he went to the defendant’s office to make some enquiries about the purchase of education fund for his grandchildren.

32.  After Mr Suen met the plaintiff in early 2005, the plaintiff always referred Mr Suen to meet some people in the private investment business with a view to purchase some investment products.  Although he did attend some of these meetings, Mr Suen was not particularly interested in such referrals.

33.  In November 2007, the Suens were in Hong Kong and they approached the defendant with a view to purchase some investment products from Manulife.  After certain discussions, the Suens, through their investment company, purchased the Products from the defendant and they paid a premium of US$10,000,000 for such purchase.

34.  The Suens confirm that they had purchased the Products from the defendant without the involvement or referral of the plaintiff.  The Suens also deny the plaintiff’s suggestion that they have fabricated the evidence in favour the defendant so as to protect their interests in the Products purchased from Manulife.

35.  After the purchase of the Products, Mrs Suen had met the plaintiff on one particular occasion, during which the plaintiff told her that she had borrowed a sum of $70,000 from Ms Yau to pay for the costs of relocating her home.

36.  Regarding the Statement, Mrs Suen explains that she signed the Statement because of the repeated requests and persuasions of the plaintiff.  The plaintiff told her that she could use the Statement to get some commission from Manulife.  By that time, Mrs Suen had sympathy with the plaintiff as her divorced husband had died recently and she had to take care of her child who was suffering from some kind of disability.  With a view to help the plaintiff to get some commission, Mrs Suen signed the Statement without reading clearly the contents of the Statement.  In the witness box, Mrs Suen says that she regrets signing the Statement as the plaintiff has abused the trust that she had placed on her.

37.  The defendant himself testifies at the trial.  He is the head of the “George Lung District” in Manulife and he has about 600 insurance agents working in his District.  He tells the court as to how the plaintiff had referred Mr Shilton to him for business.  By that time, the defendant agreed, subject to the approval of Manulife, to pay 30% of his first year’s commissions to the plaintiff for such referral, and he had sought the permission from Manulife before confirming such arrangement with the plaintiff.  According to the defendant, without first obtaining the approval of his affiliates, he would not have agreed to pay 30% of the commissions earned by his affiliates to the plaintiff.

38.  The defendant recalls how Mr Suen had approached him in late 2003 or earlier 2004 for enquires relating to the management of their assets.  He also tells the court the gatherings and meetings he had with the Suens and the plaintiff in 2005.  He confirms that the Suens had purchased the Products from him without the involvement or referral of the plaintiff, and the sum of $70,000 he gave to the plaintiff was only a loan.

39.  In about early December 2008, the plaintiff called him and told him that she had a friend that she wanted to introduce to the defendant to purchase some insurance products, and asked the defendant whether she could receive referral fee.  The defendant replied that, subject to the approval of Manulife, the plaintiff could receive 30% of his first year’s commissions if it was successful but stressed that the purchase had to be made within 3 months, and he also gives the court the reason why this should be the case.  They and Mr Chan met on 15 December 2008 but the potential client did not turn up.  In that meeting, the defendant denied the plaintiff’s request to pay her referral fee for the Products purchased by the Suens.

40.  Mr Chan also testifies at the trial.  He is the sub-ordinate of the defendant in Manulife.  He tells the court about the First Meeting in which Mr Suen made some enquiries about the levy of estate duty in Hong Kong. After the First Meeting, Mr Chan downloaded some material from the internet on or about 24 February 2004, and with the volunteered assistance of the plaintiff, such material was delivered to Mr Suen later in the year.  Mr Chan also tells the court the subsequent meetings he had with Mr Suen and how the Suens had purchased the Products in 2007.  He recalls the heated argument between the plaintiff and the defendant about the referral fee in the meeting on 15 December 2008, and he also explains why he had made a mistake about the date of the First Meeting in his first witness statement.

41.  Ms Yau is the wife of the defendant and she worked as a secretary of defendant in the “George Lung District” at the material time.  She tells the court as to how she came to know the Suens, and how they had maintained regular contacts throughout the years.  She denies the plaintiff’s evidence about the payment of $70,000, and she maintains that it was a loan from the defendant.  She also testifies that it was the plaintiff who prepared the Receipt for the payment of $70,000.  By that time, she did not pay attention to the contents of the Receipt.

42.  The defendant’s last witness is Mr Chan Sze Yuan Graham who worked as a vice-president in Manulife Asset Management at the material time.  He tells the court about the meetings that he had with Mr Shilton about the intended purchase of the investment product known as “John Hancock’s Guarantee Note”.  He also confirms that the defendant had sought his permission for the payment of 30% referral fee to the plaintiff if Mr Shilton were to purchase any products of Manulife or the “John Hancock’s Guarantee Note”.  He is now not working for the Manulife Group.

(iii)    Assessment of the evidence

43.  Having carefully considered the evidence in this case, I have no hesitation in accepting the defendant’s case as the truth.  My reasons are as follows.

44.  I consider Mr and Mrs Suen to be truly independent witnesses.  They have no direct interest in the outcome of the proceedings, and they have no motive to fabricate the evidence in support of either party’s case.  Further, the Suens, in particular Mrs Suen, do not have to come all the way from Canada to give evidence because the outcome of the trial does not affect them, and it would also put unnecessary pressure on Mr Suen’s health of which Mrs Suen is very worried.  Hence, they have no purpose to serve by giving evidence except to reveal the truth to the court.

45.  Further, considering the age of the Suens, I must say that their evidence is quite impressive.  They are able to recall most of the events which happened long time ago in a clear and logical manner, and their evidence has remained unshaken despite the vigorous cross-examination by Ms Yiu, counsel for the plaintiff.

46.  In the cross-examination, it is put by Ms Yiu to Mr and Mrs Suen that they want to help the defendant, even to the extent of fabricating evidence in support of the defence case, because they are afraid that the defendant would not take care of their interests in the Products that they had purchased from Manulife.  In my judgment, this is wide speculation without any basis.  The rights and obligations of the Suens under the Products should have been regulated by detailed provisions in the relevant contracts made between the Suens and Manulife, and it is quite incredible to suggest that the defendant is in a position to do something adverse to the interests of the Suens under the Products if they do not give favourable evidence in support of the defence case.  This suggestion simply has no merit.

47.  Further, if the plaintiff’s case were to be accepted, it would virtually mean that there was a conspiracy between all the defendant’s witnesses, including the Suens who are persons of advance age and Ms Yau who had been the friend of the plaintiff for more than 30 years, just to deny the plaintiff’s right to obtain the 30% referral fee.  In my judgment, such conspiracy could not have existed because of the following reasons. Firstly, the personal circumstances of the plaintiff by that time deserved sympathy.  Her divorced husband had just passed away and the plaintiff had to take up the sole responsibility of taking care of her child who was suffering from some kind of disability.  Taking into account the friendship that once existed between the parties, I do not think that the Suens and Ms Yau would have fabricated the evidence against her just to deny her claim for the referral fee.  Secondly, the Suens are persons of advance age and Mr Suen has been suffering from various kinds of long-term illnesses.  If they have to testify in the witness box based on fabricated evidence, they have to memorise all the fabricated facts supplied to them by others.  Taking into account their age and the health condition of Mr Suen, it is quite an onerous task and there is a real risk that they may simply collapse in cross-examination.  This is certainly not the case here, and so I do not believe that they are telling lies for the benefit of the defence case.

48.  As I have no reservation in accepting the Suens’ evidence as the truth, I accept the explanation given by Mrs Suen as to why she had signed the Statement.  She trusted and sympathised with the plaintiff at that time and so she was willing to help her to claim some money from Manulife.  She did not check the contents of the Statement before signing it, as she did not anticipate that the plaintiff would abuse her sympathy and use the Statement to lodge a civil claim against the defendant.  In my judgment, there is certainly some degree of truth in Mrs Suen’s evidence in this regard.  If the plaintiff sought to gather proper evidence to support her claim, she should have sought assistance from Mr Suen and not Mrs Suen, as the latter was not directly involved in the referral process.  Hence, I have reason to believe that the plaintiff was targeting Mrs Suen to obtain the Statement, as it would have been easier to persuade Mrs Suen to do so because of her sympathy on the plaintiff.

49.  Apart from the testimony of the Suens, there are also many other reasons why I prefer to accept the defence case on the balance of probabilities.  Firstly, based on the plaintiff’s own case, her relationship with the Suens was not close and they had very few contacts from about 1990 to 2004.  They met perhaps once in 1999 or 2000 and they had lost contact with each other since then until 2004.  The plaintiff did not have the Suens’ contact address and telephone number in Canada until Mrs Suen gave her in December 2004.  On the other hand, it is not challenged that the defendant had maintained regular contacts with the Suens after they had emigrated to Vancouver in the early 90’s.  In fact, the plaintiff admits in cross-examination that she does not know whether the Suens had met the defendant during the years that she had lost contact with the Suens.  With such limited relationship between the plaintiff and the Suens, it was more likely that the Suens would have approached the defendant for advice relating to the management of their assets rather than seeking assistance from the plaintiff.  Bearing in mind that the defendant had maintained regular contacts with the Suens, it is also difficult for me to accept the plaintiff’s evidence that the defendant had expressly agreed to pay her 30% referral fee for introducing the Suens, who were actually the defendant’s own friends, to him.  This simply does not make sense.

50.  Secondly, the plaintiff’s evidence about the exact contents of the 30% Referral Fee Agreement also lacks creditability.  In fact, the averment about the plaintiff’s exact entitlement under the Agreement in the pleading has been amended a number of times.  According to the latest version of the plaintiff’s case, the defendant had, in the telephone conversation prior to the first meeting with Mr Shilton on 16 June 2004, agreed to pay the plaintiff 30% of the first year’s income and commissions payable and paid to the defendant and his affiliates.  Whilst I have no problem in accepting that the defendant might have agreed to pay her 30% of the commissions payable to the defendant, it does not make sense that the defendant had agreed for the arrangement to cover the commissions payable to his affiliates.  Unless the defendant had secured the approval of his affiliates, I do not believe that the defendant would have made such promise to the plaintiff.  Further, the evidence of Ms Jessie Wong shows that the figures relating to certain bonuses payable to the defendant upon the purchase of the Products by the Suens would not be readily available.  In such circumstances, why would the defendant have agreed for the 30% Referral Fee Agreement to cover such kind of bonuses the figures of which even the defendant could not obtain from Manulife?  Again it does not make very much business sense.

51.  Thirdly, according to the plaintiff’s own case, she must have realised from Mrs Suen, at the latest on 4 December 2008, that the defendant had lied to her and not kept his promise to pay her the referral fee.  However, the plaintiff did not confront the defendant immediately on this matter and was prepared to refer another potential client known as Mrs Pang to him.  Being a businesswoman herself, I would have expected the plaintiff to sort out the matter with the defendant first before making another referral to him.

52.  Further, according to the plaintiff’s own case, she knew that the Suens had purchased some products from Manulife when she met with Ms Yau in April 2008.  Taking into account her background, the plaintiff should have taken the initiative to find out more information about the Products purchased by the Suens with a view to ascertain the quantum of her referral fee.  Yet the evidence does not suggest that the plaintiff had taken any such steps after the meeting in April 2008, and the plaintiff simply did not pursue the matter until December 2008.  Such kind of conduct certainly does not support the plaintiff’s case.

53.  Fourthly, despite the Receipt referring the sum of $70,000 as being “the consultation fee of George Lung District”, I accept the evidence of the defendant and Ms Yau that it was in fact a loan to the plaintiff.  Their evidence on this subject is actually supported by the independent testimony of Mrs Suen, who says that the plaintiff had confirmed to her that she had borrowed $70,000 from the defendant and Ms Yau.  In fact, Mrs Suen does not volunteer such piece of evidence with a view to protect the privacy of the plaintiff, and it is only after the vigorous cross-examination by the plaintiff’s counsel that Mrs Suen reveals the contents of her conversation with the plaintiff to the court.  Under such circumstances, there is some degree of truth in Mrs Suen’s evidence in this regard.

54.  In her final submission, Ms Yiu argues that the evidence of the defendant’s witnesses is unsatisfactory.  As I see it, the arguments that deserve serious consideration are as follows:

(i)  there are inconsistencies in the evidence as to the frequency of the gatherings and contacts between the Suens and the defendant throughout the years;

(ii)  there is some confusion in the Suens’ evidence as to when they actually knew that the defendant was working in the insurance business;

(iii)  it is quite incredible that Mr. Suen, Mr Chan and the defendant all made a mistake in their first witness statements about the date of the First Meeting;

(iv)  it is quite incredible that, as alleged by the defendant, the plaintiff had not concluded or finalised the 30% Referral Fee Agreement with the defendant before the actual referral of Mr Shilton in the breakfast meeting on 16 June 2004; and

(v)  Mr Shilton is an independent witness and he confirms that it was the defendant and his affiliates that recommended the product known as “John Hancock’s Guarantee Note” to him, which directly contradicts the evidence of the defendant’s witnesses.

55.  Despite the able submission of Ms Yiu, I do not accept that any of these arguments would undermine the credibility of the defence case.  About the mistake relating to the date of the First Meeting, the plaintiff issued the present proceedings in early 2009 and these witnesses were being asked to recall the date of a quite insignificant incident, at least that was the case for them, about 5 to 6 years ago.  In such circumstances, it is not surprising for them to make a mistake about the exact date of the First meeting.  In my judgment, it would also be too demanding to expect the Suens, the defendant and Ms Yau to give exact evidence about the frequency of their gatherings and contacts from about 1990 to 2004, or when the Suens exactly knew that the defendant was working in the insurance business.  As I see it, what is most important is that they have known each other since 1990 and they have maintained regular contacts since then.  Their evidence in this regard is simply loud and clear.

56.  Further, I have no difficulty in accepting the defendant’s version about the making of the 30% Referral Fee Agreement.  It was always prudent for the defendant to say to the plaintiff that the referral fee arrangement would be subject to the approval to be obtained from Manulife.  If not, the defendant might get into all sorts of trouble, including breaching the rules of Manulife or other laws or regulations.  The evidence also shows that the defendant did subsequently obtain the preliminary approval from his superior.  One must also bear in mind that the relationship between the parties by that time was very good, and Mr Shilton’s intended transactions might take a long time to finalise.  In such circumstances, I do not find it odd that that the parties had not finalised the terms of the 30% Referral Fee Agreement before the breakfast meeting on 16 June 2004.

57.  Finally, whether it was Mr Shilton who sought to purchase the “John Hancock’s Guarantee Note” from Manulife or whether it was a product recommended by the defendant and his affiliates is quite immaterial.  The episode involving Mr Shilton is not the subject matter of the claim and there is no logical reason as to why the defendant’s witnesses had to fabricate the evidence on the contents of the discussions with Mr Shilton.  This argument simply has no merit.

58.  On the other hand, the plaintiff’s mistakes about the dates are more inexcusable.  The first mistake was made in the pre-action letter when the plaintiff’s solicitors stated that the 30% Referral Fee Agreement was made on 3 April 2006, whereas the correct date should be about 15 June 2004.  The plaintiff made another mistake in the Statement when she stated that it was in April 2006 that she referred the Suens to the defendant for the purchase of Manulife’s products, whereas the correct date should be January 2005.  As I see it, both the 30% Referral Fee Agreement and her referral of the Suens to the defendant are the pillars of the plaintiff’s claim, and it is therefore quite difficult to explain why the plaintiff could have made the mistakes about such important dates.

59.  I also do not accept that the documents produced by the plaintiff, including her diary and the agreement that she had made with other third party for the payment of referral fee, can take the plaintiff’s case any further.  The diary only shows that there were meetings between certain people on certain dates.  In fact, there is no dispute that most of these meetings did take place as recorded in the diary, but it was the materials that were discussed in these meetings that matter.  The record in the diary cannot assist the plaintiff’s case in this regard.  Further, the fact that the plaintiff had made similar referral fee agreement with other third party has no direct relevance as to the exact terms of the 30% Referral Fee Agreement made between the plaintiff and the defendant.

CONCLUSION

60.  By reason of the aforesaid analysis, I prefer to accept the defendant’s evidence on the balance of probabilities.  I therefore find that:

(i)  the 30% Referral Fee Agreement only applied to the transactions involving Mr Shilton and no other; and

(ii)  the defendant had all along known and maintained regular contacts with the Suens and it was not the plaintiff who had referred the Suens to the defendant for the purchase of the Products.

In such circumstances, the plaintiff is not entitled to claim for the 30% referral fee in respect of the purchase of the Products by the Suens and her claim against the defendant has to be dismissed.  I order accordingly.

61.  The defendant counterclaims against the plaintiff for the sum of $70,000 being the loan advanced to the plaintiff.  As I accept the defendant’s case as the truth, I grant judgment on the counterclaim in the sum of $70,000 against the plaintiff.

62.  I also make an order nisi that:

(i)  there be interest on the sum of $70,000 at the rate of 8% per annum (the existing judgment rate) from 12 August 2009 (the date of the counterclaim) to the date hereof and thereafter at judgment rate; and

(ii)  the costs of the action be to the defendant and the plaintiff’s own costs to be taxed in accordance with Legal Aid Regulations.

The order nisi shall be made absolute 14 days after the date of the handing down of this Judgment.