JIANG, JIANXIN v. YIU, MING FUNG

HCA 2063/2017

[2019] HKCFI 528

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 2063 OF 2017

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DECISION

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1.  This is the Defendant’s appeal against Master Hui’s Order dated 13 September 2018 whereby it was ordered that:

   (a)   Summary judgment be entered in favour of the Plaintiff for:

   (1)   the sum of RMB 70,000,000 being the loan amount;

   (2)   interest being 3% of the total amount of the loan per month for the period of 1 November 2011 to 31 May 2013; and

   (3)   interest at the rate of 8% per annum from 1 June 2013 until judgment and thereafter at judgment rate until payment in full.

   (b)   The Defendant do pay costs of the action, including the Plaintiff’s summons filed on 27 March 2018 for summary judgment and all costs reserved, to the Plaintiff to be taxed if not agreed, with certificate for one Counsel.

Pleadings and affirmations

2.  The Writ of Summons endorsed with Statement of Claim was filed on 4 September 2017. 

3.  The Defence was filed on 22 November 2017.

4.  No reply was filed.

5.  On 27 March 2018, the Plaintiff applied for summary judgment, supported by an affirmation of the Plaintiff dated 21 March 2018.  Pausing here, it is noted that when the Plaintiff applied for summary judgment, he had already had sight of the Defence.  Thus, in his affirmation, the Plaintiff made rather substantive replies to the Defendant’s case as pleaded in his Defence.  As can be seen later, the Defendant takes issue with this,submitting that absent a Reply, the Plaintiff is relying on evidence outside his pleaded case in support of his application for summary judgment.

6.  Thereafter, the Defendant filed his affirmation in opposition on 27 April 2018, next followed by evidence of the Plaintiff’s witnesses dated May and June 2018.

The parties’ respective cases

7.  The Plaintiff’s pleaded case is simply that the Defendant had in breach of a written agreement dated 30 November 2011 failed to repay a sum of RMB 70,000,000 (plus interest of 3% on the principal sum from 1 November 2011 to 31 May 2013) which was lent by the Plaintiff to the Defendant.  The Defendant having failed to answer his letter of demand for repayment of the loan in May 2017, the Plaintiff started legal action against the Defendant in September 2017.

8.  The Defendant filed his Defence on 22 November 2017 and pleaded his case as follows.

9.  In about the end of 2010 / beginning 2011, due to cash flow difficulties, he asked for a loan of RMB 70,000,000 from the Plaintiff, part of which would be used to buy shares in a company called Triplex International Biosciences Co Ltd (“Triplex”).  The Defendant averred, however, that there was no agreement on interest.

10.  He made no admission to the fact that the Plaintiff did lend him RMB 70,000,000.  His case is that from January 2011 to July 2012, he had only received from the Plaintiff through his brother-in-law RMB 65,467,766.

11.  It was further pleaded that the Loan Confirmation Note (which indisputably means the personal loan agreement for RMB 70,000,000 lent by the Plaintiff to the Defendant) was not signed on 30 November 2011 but was signed on 13 September 2012 and backdated to 31 March 2012. The place where the interest rate of 3% was written was actually left blank at the time of signing but was later inserted in hand-writing as 3% by the Plaintiff without the Defendant’s knowledge or consent.

12.  It was an important part of the Defendant’s pleaded case that at the time of the signing of the Loan Confirmation Note there was an oral agreement between the Plaintiff and the Defendant that out of the RMB 70,000,000 received by the Defendant, RMB 35,000,000 would be a loan and the balance was part payment for the purchase price of the 15% of the Defendant’s shareholdings in Triplex under a Share Purchase Agreement also signed on 13 September 2012.  It was further orally agreed between the same parties that the Defendant would pay the Plaintiff RMB 35,000,000 as interest on the loan of RMB 35,000,000 if Triplex was successfully listed. This oral agreement was pleaded at §6(d) and §6(e) of the Defence.

13.  The listing failed in about June 2013.

14.  As a result, the Defendant pleaded that the Plaintiff was disentitled to interest of RMB 35,000,000 under the oral agreement. 

15.  In September 2013, the Plaintiff called the Defendant, indicated that he did not want to proceed with the Share Purchase Agreement and asked the Defendant to repay RMB 70,000,000 — made up of RMB 35,000,000 being the loan and RMB 35,000,000 being the purchase price for the shares, which the Defendant duly repaid between September 2013 and August 2014.  He attached to his Defence a schedule showing the said repayments totalling RMB 70,000,000. 

16.  In light of the Defence, the Plaintiff filed a rather lengthy affirmation in support of his application for summary judgment. He confirmed his pleaded case at §§5 – 15.

17.  The Loan Confirmation Note was headed as follows:

“ Confirmed by: Yiu, Ming Fung HKID Card No.: [number withheld].”

18.  The terms of the Loan Confirmation Note were set out in full as follows:

“ Regarding the issues of claims and liabilities between YIU, MING FUNG and JIANG, JIANXIN …, it is hereby confirmed that:

1. I, YIU, MING FUNG, hereby confirm that I borrowed RMB70 million from JIANG, JIANXIN in November 2011,which would be used for investment in Triplex International Biosciences Co., Ltd.

2. In order to repay the principal and interests of the loan to JIANG, JIANXIN, I hereby agree:

(1) To pay JIANG, JIANXIN, the first instalment of RMB35 million by the end of February 2013;

(2) To pay JIANG, JIANXIN the second instalment of RMB35 million by the end of May 2013;

(3) To pay JIANG, JIANXIN interests from 1 November 2011 to 31 May 2013 at monthly rate of 3% (on RMB70 million as the base) by the end of May 2013.”

19.  The Plaintiff further confirmed that the Loan Confirmation Note, which was in fact evidence of the personal loan agreement, was prepared by his Chinese lawyer (Huang) and signed on 30 November 2011 in the presence of his Chinese lawyer (Huang), one Ms Wang Qing Qing and a friend of the Defendant. 

20.  As regards the interest, the Plaintiff elaborated that on the draft confirmation note (which he produced), it was originally written that the Defendant would pay him liquidated damages at certain percentage on the unpaid amount from the date of default.  The Defendant disagreed to this clause and after negotiation on the day of signing (30 November 2011), the Chinese lawyer made the amendment to reflect the parties’ agreement that the Defendant would pay the Plaintiff interest now stated in the Statement of Claim.  One of the Plaintiff’s witness, Wang Qing Qing made an affirmation saying the Loan Confirmation Note was signed in late November 2011 and she was the one who hand-wrote the figure “3” immediately before the “%” sign. 

21.  The Plaintiff then spent the rest of his affirmation to deal with the Defence. 

22.  In gist, the Plaintiff denied any oral agreement with the Defendant.  He said that the repayment of the RMB 70,000,000 in fact arose out of a separate transaction evidenced by two documents, namely,an Investment Confirmation Note dated 28 December 2012 (which he produced) (“the Investment Confirmation Note”) and the Share Purchase Agreement dated 31 March 2012 (which he also produced) (“the Share Purchase Agreement”).

23.  The Plaintiff explained that since about 2010, the Defendant had been asking him to invest in Triplex.  Thus, from 2011 to October 2012, the Plaintiff had successively transferred RMB 66,000,000 and HK$3,000,000 to the Defendant for investing in Triplex.

24.  It is the Plaintiff’s case that the RMB 70,000,000 which the Defendant paid him was in fact the return of his initial investment (RMB 66,000,000 and HK$3,000,000, which was a very similar amount to RMB 70,000,000) under this Confirmation Note.

25.  The underlying document governing the Plaintiff’s investment in Triplex was the Share Purchase Agreement, which provided, inter alia, as follows:

   (a)   the Defendant (named as Party A) agreed to transfer 15% of his shareholdings to the Plaintiff (named as Party B); and

   (b)   as at 31 March 2012, the assets of Triplex were worth RMB 919.856 million and the Defendant agreed to transfer the 15% to the Plaintiff for RMB 137.9784 million.

26.  The Plaintiff explained that this agreement was concluded in December 2012 but back-dated to 31 March 2012 at the request of the Defendant, the reason being that he had submitted the listing application of Triplex in December 2012 and there should not be any share transfer thereafter.  The Plaintiff supported his case by drawing reference to the clause whereby the Defendant was stated to be holding the shares on his behalf and an e-mail dated 19 November 2012 in which the Plaintiff was seeking legal advice in relation to listing in Hong Kong.  Thus, it was impossible that this Share Purchase Agreement was signed in September 2012.  It is also noted that the reference to the purchase price of the shares took the value of the company as at 31 March 2012.  The Defendant did not deny he signed the Share Purchase Agreement but only said it was also signed on 13 September 2012, together with the Loan Confirmation Note and the Investment Confirmation Note (see §28 below). 

27.  After entering into the Share Purchase Agreement, the Defendant told the Plaintiff that there would be 100% return on his investment of RMB 66 million and HK$3 million, thus making a total of RMB 132 million and HK$6 million.  The parties agreed that since the Plaintiff had already paid the Defendant RMB 66 million and HK$3 million,they would treat the money as the Plaintiff’s purchase price for the shares and the Defendant did not have to pay the return on investment (i.e., RMB 132 million and HK$6 million) to the Defendant, the reason beingthat the aggregate of RMB 132 million and HK$6 million was very similar to the purchase price stated in the Share Purchase Agreement, i.e., 137.9784 million. 

28.  This agreement was reduced into writing to become the Investment Confirmation Note dated 28 December 2012 which says: 

“ Regarding the issues of claims and liabilities between YIU, MING FUNG and JIANG, JIANXIN …, it is hereby confirmed that,

1. I borrowed RMB52.5 million from JIANG, JIANXIN in March 2011 to invest in Triplex International Biosciences Co., Ltd.

2. I borrowed RMB6 million from JIANG, JIANXIN in October 2012 to invest in Triplex International Biosciences Co., Ltd.

3. I borrowed RMB7.5 million from JIANG, JIANXIN in October 2012 to invest in Triplex International Biosciences Co., Ltd.

4. I borrowed HK$3 million in June 2012 to invest in Triplex International Biosciences Co. Ltd.

5. …

The total amount of the principal of the loan above is RMB66 million and HK$3 million, which are all used for investment in Triplex International Biosciences Co., Ltd.  I, YIU, MING FUNG, hereby confirm that, as at December 2012, the return rate of JIANG, JIANXIN’s investment is 100%; the total sum of principal and income are RMB132 million and HK$6 million, which will be used to continuously invest in Triplex International Biosciences Co., Ltd.  See details in Investment Contract.”

29.  The Plaintiff said the Investment Contract stated in the above Investment Confirmation Note referred to the Share Purchase Agreement.  This does not seem to be disputed by the Defendant save that similarly, he said this Investment Confirmation Note was also signed on 13 September 2012, the same date as the Share Purchase Agreement and the Loan Confirmation Note.

30.  According to the Plaintiff, the Defendant never transferred the 15% shareholdings in Triplex to him.  In about 2013, when the Triplex listing failed, the Plaintiff demanded the repayment of the personal loan (of RMB 70 million) and the repayment of the principal and interest on theconsideration for the share transfer under Article VIII of the Share PurchaseAgreement.  However, the Defendant said he could only repay the Plaintiff RMB 66 million and HK$3 million representing the original investment sums he obtained from the Plaintiff. The Plaintiff agreed.  Hence, he gave him the account for transferring the RMB 70 million.

31.  The Plaintiff’s case, therefore, is that the transfers totalling RMB 70 million by the Defendant to him (as stated in the Schedule attachedto his Defence) represents the repayment for his initial investment in Triplex,i.e., RMB 66 million and HK$3 million, which sums were very close to RMB 70 million, but not repayment for his personal loan.

32.  In his reply affirmation, the Defendant denied that he had ever received RMB 66 million and HK$3 million, insisting that there was no other business dealing with the Plaintiff other than the loan (of which full repayment had been made) in the present case. 

33.  He said according to his record, he had only received RMB 65 million odd from the Plaintiff through his brother-in-law’s account but he said he would correct the amount received if the brother-in-law’s record turned out to be inaccurate.

34.  He denied there was an agreement on 3% interest and said it was left blank on the Loan Confirmation Note and later inserted by the Plaintiff after he signed the same on 13 September 2012.  This was done without his consent.  He did not keep a copy of the said Note after signing and only saw it for the first time when he received the letter of demand from the Plaintiff’s solicitors on 15 May 2017.

35.  The Defendant further said all the three documents, namely, theLoan Confirmation Note, the Share Purchase Agreement and the Investment Confirmation Note were signed on 13 September 2012.

36.  His reply to the Plaintiff’s case about the investment in Triplex was that there was no receipt of RMB 66 million and HK$3 million.  The Investment Confirmation Note was signed because the Plaintiff “was worriedabout the risk of investment and therefore requested me [the Defendant] tosign another Loan Confirmation Note. … If the listing or investment failed, he [the Plaintiff] would not recognise the Investment Confirmation Note but would only recognise the Loan Confirmation Note. There was only one copy of Investment Confirmation Note, which was kept by the Plaintiff andI [the Defendant] did not have a copy.  I [the Defendant] only received thisLoan Confirmation Note for the first time when I [the Defendant] received this Application.”

37.  The listing plan failed in June 2013.  The Defendant informed the Plaintiff in July 2013 of the failure and sent RMB 70 million to an account designated by the Plaintiff.

38.  Finally, he referred to a mistake made in §6(d) and §6(e) of his Defence which pleaded an oral agreement between the Plaintiff and the Defendant at the time of the signing of the loan agreement (as evidencedby the Loan Confirmation Note).  He said when the Defence was prepared, he did not have a copy of the Loan Confirmation Note and he might be wrong about the timing of the oral agreement which he now confirmed to have taken place before 13 September 2012, i.e., before his alleged date of signing. 

39.  He further stated that since the parties had “signed the Loan Confirmation Note and the Investment Confirmation Note, the oral agreement between both parties was superseded by the two documents.”  

The Defendant’s submission on the law

40.  On behalf of the Defendant, Mr Dawes SC (together with Mr Anthony Chan) submits that “[s]ummary judgment application may onlybe granted on the basis of facts as verified by the plaintiff in the affidavit in support, and, the case being defined and bound by the statement of claim, such facts must be confined to those facts as pleaded therein.  But where the application is based not on facts pleaded in a statement of claim and verified on oath, the application falls outside the requirements of the provisions in Order 14 and should be dismissed.”—see para 10 of the defendant’s skeleton submission.  It is the Defendant’s submission that the Plaintiff has not filed a reply and is thus relying on evidence outside his pleaded case in support of his summary judgment application. 

41.  The Defendant relies on the following paragraphs of the Decision of Mr Recorder Steward Wong SC in Chu Wen Jing Jennifer v Sin Hon Wai HCA 10, 6 and 121/2016 (14 November 2016):

“ 23. In the context of summary judgment, when a plaintiff seeks to obtain the same under Order 14, he must:

(1) serve a statement of claim (Order 14, rule 1(1)). The statement of claim ‘must contain, and contain only, a statement in a summary form of the material facts on which the party pleading relies for his claim’ (Order 18, rule 7(1));

(2) support his application for summary judgment by ‘an affidavit verifying the facts on which the claim, or the part of a claim, to which the application relates is based and stating that in the deponent’s belief there is no defence tothat claim or part, as the case may be’ (Order 14, rule 2(1)).

24. The court may give summary judgment unless inter alia the defendant shows that there is an issue or question in dispute which ought to be tried or that there ought for some other reason be a trial (Order 14, rule 3(1)).

25. It is clear from the above provisions that a summary judgment can only be granted on the basis of facts as verified bythe plaintiff in the affidavit in support, and, the case being definedand bound by the statement of claim, such facts must be confined to those facts as pleaded therein. If no triable issue or other reasons for trial are shown by the defendant, then the court is entitled to accept those facts which have been pleaded, and verified on oath, as proven facts as between the parties, and to give summary judgment thereon.

26.   But where the application for summary judgment is basednot on facts pleaded in a statement of claim and verified on oath by or on behalf of a plaintiff, the application falls outside the requirements of the provisions in Order 14 and cannot be granted thereunder.  In particular, I do not see how an application for summary judgment can properly be made based on facts not only not pleaded or verified by the plaintiff (as required by Order 14, rule 2(1)) but in fact the plaintiff still insists is untrue (namely that the Transfers were gifts).”

42.  It is important to understand the factual background of Chu Wen Jing’s case.  It concerns a couple who were once romantically involved and during the subsistence of such romantic relationship, the plaintiff transferred various sums of money and a property to the defendant. At para 3 of the Decision, it was recorded that in the pleadings, the plaintiffalleged that the payments were paid for specific purposes and the defendantheld the monies on trust for the plaintiff.  On the other hand, the defendant alleged that the transfers were romantic gifts made to him by the plaintiff.  

43.  At para 13, it went on to say that it was clear from the pleadings, the Mareva injunction and the summons for summary judgment that the plaintiff was expressly relying on the allegation that the defendant was holding the sums of money in the bank accounts and the property on trust for her.

44.  At para 14 of the Decision, it says:

“ However, in her fifth affirmation, made in support of the presentapplication for summary judgment, the basis of her application is different. She makes no attempt to support a case for summary judgment based on her own pleaded facts, which she has verifiedby a statement of truth and confirmed by affirmations in supportof her application for a Mareva injunction. Rather, she relies on the defendant’s own pleaded case ….” (Original emphasis)

45.  Furthermore, at para 8 of the plaintiff’s 5^th affirmation, she said if, as alleged by the defendant the payments were gifts, which she denied, the gifts fail on the basis of the matters pleaded by the defendant.  Thus, it is clear that whilst the plaintiff in Chu Wen Jing’s case denied a case of gifts, she was relying on the defendant’s pleaded case of gifts, yet at the same time, continued to uphold her case of trust.  This can be seen at para 17 of the Decision where Mr Recorder Steward Wong SC said: 

“ Thus, it can be seen that, in this application, the plaintiff is still refuting the defendant’s case that the Transfers were romantic gifts given by a girlfriend to her boyfriend. Her case of trust,which is of course wholly inconsistent with a case of gift, is maintained, and expressly stated by Mr Clough, her counsel, to be not abandoned.”

46.  Mr Recorder Steward Wong SC went on to make the following observations:

“ 20. The first question is whether the summary application procedure under Order 14 is appropriate in a case like this, where the plaintiff is not seeking judgment on facts which she pleads or verifies, but on facts which the defendant pleads and which she denies. …

21. …

22. The court can only give judgment to a plaintiff based on facts which entitle the plaintiff to judgment in law. Except in the case of default judgments, such facts have to be established by way of admissions, affidavits (in cases where judgment is applied for or obtained by way of application before trial), or by evidence at trial. Even in cases of default judgments, the facts have to be properly set out in a writ or a statement of claimwhich are then assumed to be true because no effective challenge is made by way of a notice of intention to defend or a defence. But the point is that the court must have a set of facts based on which it can then give judgment. What it cannot do is to ask to give judgment on a set of facts which the party asking for judgment is itself saying to be untrue.” (Original emphasis)

47.  The Recorder explained at para 27 that “if summary judgmentis granted in such circumstances, it is not a judgment based on proven facts but based on facts which the beneficiary of the judgment (ie the plaintiff herself) denies to be true.  I cannot see how I can or should do that. …”  

48.  Thus, the Chu’s case is a case where the plaintiff relied on a case she denied and did not accept (and hence logically difficult to see how she could rely on it in the first place) whilst at the same time, insisting on a case which is inconsistent with a case which she sought to rely on. 

49.  It is on this basis and under those peculiar circumstances that Mr Recorder Wong said at para 26 of his judgment that “where the application for summary judgment is based not on facts pleaded in a statement of claim and verified on oath by or on behalf of a plaintiff, the application falls outside the requirements of the provisions in Order 14 and cannot be granted thereunder.” (emphasis added) The plaintiff in Chu’s case obviously did not rely on facts pleaded, nor facts verified on oath, but she relied on facts pleaded in the defendant’s case and evidence of the defendant.  The really significant part of the decision of Mr Recorder Wongis what he said immediately next following, i.e., “In particular, I do not see how an application for summary judgment can properly be made based on facts not only not pleaded or verified by the plaintiff (as required by Order 14, rule 2(1)) but in fact the plaintiff still insists is untrue (namely that the Transfers were gifts).” (emphasis added)

50.  The present case is different.  As set out above, in the Plaintiff’s 1^st affirmation filed in March 2018, he had confirmed all the facts pleaded in the Statement of Claim.  The rest of the evidence — filed in the same 1^st affirmation, subsequently, the 2^nd affirmation and those affirmations filed by his witnesses — is all evidence to refute or in response to matters raised in the Defence and the Defendant’s affirmation. In other words, the Plaintiff is not relying on evidence outside his pleaded case to support his application for summary judgment.  He is merely relying on those facts to answer allegations raised by the Defendant.

51.  I agree with Mr Jason Wong (together with Mr Ryan Law) for the Plaintiff that I am entitled to look all the facts of the present case to see if there are triable issues or whether I can give a judgment thereon.

Discussion

52.  To see whether the Defendant has raised any triable issues, it is important to discern whether there was only one transaction, namely, the personal loan of RMB 70 million which was evidenced by the Loan Confirmation Note, or whether there were two different transactions, one contained in the Loan Confirmation Note and the other evidenced by the Investment Confirmation Note and the Share Purchase Agreement.  Examination of this issue will cast light on the whether the defence of full repayment of RMB 70 million is believable.

53.  The Defendant said he received RMB 65 million odd but he repaid RMB 70 million.  He made no admission to the fact that he did receive RMB 70 million in his pleaded Defence.  But it is obvious he was not in a position to deny the advancement of RMB 70 million by the Plaintiff to him. Mr Dawes placed much emphasis on the lack of source documents to support the payment of RMB 70 million by the Defendant,submitting that the only documentary evidence was a schedule produced by the Defendant which suggests total advancements of RMB 65,467,766only from January 2011 to July 2012.  Mr Dawes also submitted that even though his client admitted he did sign the Loan Confirmation Note acknowledging receipt of RMB 70 million, it was perfectly consistent withhis case of having received only RMB 65 million odd.  Mr Dawes submitted that on this fact alone, the Defendant should be given unconditional leave to defend.

54.  This submission ignores the fact that I am entitled to look at the totality of the evidence (which will be elaborated below) when assessing the credibility of the Defendant’s case, especially documentary evidence which contradicts oral assertions.  I am aware that the Defendant did produce a schedule showing he received RMB 65 million.  But I can assess whether this schedule is consistent with other documentary evidenceor his oral assertions.  It can be seen that apart from the schedule of receipt and the schedule of repayment, the Defendant’s case, in particular, his case that he had made full repayment of RMB 70 million arising out of one transaction on 13 September 2012, which forms the crux of the matter,was largely made up of oral assertions: 

   (a)   the oral agreement entered into at the time of the loan, as pleaded in §6(d) and §6(e) of the Defence;

   (b)   the oral assertion that the Loan Confirmation Note was signed on 13 September 2012;

   (c)   the oral assertion that the Investment Confirmation Note and its underlying agreement, the Share Purchase Agreement were also signed on 13 September 2012;

   (d)   the oral assertion that he had not received RMB 66 million and HK$3 million;

   (e)   the oral arrangement that the Loan Confirmation Note would only be recognised if listing failed;

   (f)   the oral arrangement that the Investment Confirmation Note would not be recognised if listing failed; and

   (g)   the oral arrangement that the Loan Confirmation Note and the Investment Confirmation Note superseded the pleaded oral agreement.

55.  The Defence mainly produced two documents, namely, the schedule showing receipt of RMB 65 million and the schedule showing repayment of RMB 70 million which were not referenced to any particular transaction. 

56.  It is an important part of the Defendant’s case that he had never received RMB 66 million and HK$3 million from the Plaintiff. This was repeated by him a few times in his affirmation.  The Plaintiff said the RMB 70 million represented repayment of these two sums.  When we turn to the document, it is plain that in the Investment Confirmation Note dated 28 December 2012, there was an express acknowledgment that the Defendant borrowed RMB 66 million and HK$3 million from the Plaintiff for investment in Triplex. 

57.  Mr Dawes fairly accepted that he was stuck with the case that his client agreed that he signed this Investment Confirmation Note even though he said it was signed on 13 September 2012.  But he submitted that it is possible that the Defendant had acknowledged receipt of RMB 66 million and HK$3 million but indeed did not receive the sums.  This may well be the case.  But no explanation was offered or no evidence was placed before the Court as to why he acknowledged in the said Note he received RMB 66 million and HK$3 million yet somehow he actually received none. 

58.  It was submitted that the Defendant did not have the burden of proof.  I disagree.  In his Defence, he said he had fully repaid RMB 70 million.  In his affirmation, the Plaintiff said the RMB 70 million was not repayment of the personal loan but was repayment of the RMB 66 million and HK$3 million, with documents to support his case that the Defendant acknowledged receipt of the sums of money.  If the Defendant offered no explanation, it is no more than his bare assertion that he never received RMB 66 million and HK$3 million.  It is trite that the court is not bound to accept his bare assertion, in particular, his say-so is contradicted by the contents of a written document which he accepted he had signed.

59.  Taking all the evidence together, it is readily discernible that the Defendant was trying to suggest a case that there was only one loan transaction contained in the two documents, i.e., the Loan Confirmation Note and the Investment Confirmation Note, which were signed on the same day, 13 September 2012. 

60.  But this is totally incredible.

61.  It is obvious the Loan Confirmation Note was a document about a loan of RMB 70 million and how it should be repaid.  The Defendant expressly acknowledged in the Loan Confirmation Note that heborrowed RMB 70 million from the Plaintiff in November 2011.  There is no dispute that he signed the Loan Confirmation Note.  The only dispute was the date of signing and whether an interest rate of 3% was being inserted. Even on his own case, he did repay RMB 70 million.

62.  The other document, the Investment Confirmation Note concerned an investment and its rate of return.  The contents of the Investment Confirmation Note support the Plaintiff’s case that RMB 66 million and HK$3 million were paid to the Defendant, and it was agreed that there would be 100% return on his investment.  The principal and income, ie, RMB 132 million and HK$6 million were very close to the stated purchase price on the Share Purchase Agreement, which was RMB 137.9784 million.  The Loan Confirmation Note and the Investment Confirmation Note were plainly records of two different transactions.

63.  I do not accept that the Defendant signed the Investment Confirmation Note on 13 September 2012.  The Defendant did not dispute the contents of the Investment Confirmation Note, which says,inter alia, “as at December 2012, the return rate of JIANG, JIANXIN’s investment is 100%; …” (emphasis added) If the said Note was signed in September 2012, it would not have been possible to state a return rate in December 2012, certainly not in the absence of any explanation.

64.  Similarly, I reject the Defendant’s case that the Loan Confirmation Note was also signed on 13 September 2012.  There is no evidence at all which contradicts the document itself which was dated 30 November 2011.  This is quite clearly an attempt to adjust the dates of signing of the two documents to fit his case that all this was one transaction which took place on 13 September 2012. 

65.  I consider valid the Plaintiff’s complaint that there was the complete lack of explanation of why the Loan Confirmation Note was backdated to 30 November 2011—if as the Defendant said, it was signed on 13 September 2012.  Absent a plausible explanation, it is merely an oral assertion which carries no weight as it is flatly contradicted by the written document.

66.  The Defendant’s case on the two documents was inconsistent and incredible.  Mr Wong submits that the Defendant’s pleaded case is entirely inconsistent with his only affirmation which purportedly supports his own defence.  It is noted that the Defendant has confirmed the contents of his Defence as true and correct save as to the alleged mistakes under §6(d) and §6(e) of the Defence.  This is also a valid complaint.

67.  Rather than as pleaded, a loan confirmation for RMB 70 million to allay his cash flow difficulties, the Loan Confirmation Note suddenly became a document to ease the Plaintiff’s worry about his investment risk in the Triplex shares. 

68.  This is totally inconsistent with his pleaded case.  If the Defendant was right that the Loan Confirmation Note was part of the parties’ agreement relating to the share acquisition and the listing, there is no reason why in the Loan Confirmation Note, nothing about the acquisition of the shares was mentioned. 

69.  It does not make sense because according to the Defendant,all the three documents, namely, the share purchase agreement, the Confirmation Note of 28 December 2012 and the Loan Confirmation Notedated 30 November 2011 were all signed on the same day of 13 September 2012.  Why was there the need to execute three documents?  Why did they mention different things?  It is obvious the Confirmation Note of 28 December 2012 was related to the Share Purchase agreement and was a confirmation of the Plaintiff’s investment and profits return on his investment in Triplex.  There is no repayment term and it only records the sums advanced by the Plaintiff (RMB 66 million plus HK$3 million) and his 100% return on investment. 

70.  On the other hand, the Loan Confirmation Note was a straight- forward simple record of a loan of RMB 70 million with a repayment schedule plus interest.  There is no explanation at all as to why the Loan Confirmation Note mentioned nothing about share acquisition.  It is absurd that the Defendant would assume an additional RMB 70 million worth of liabilities just because the Plaintiff was “worried” about his investment,bearing in mind that investment carried risk by definition and both the Plaintiff and Defendant were businessmen.  There was no mention that this Loan Confirmation Note would only be recognised if listing failed. Neither was there reference to non-recognition, in case listing failed, of the Investment Confirmation Note.  One would expect cross-reference to recognition / non-recognition in both the Loan Confirmation Note and the Investment Confirmation Note.  The court is simply not bound to accept the oral assertions of the Defendant. 

71.  The absence of these provisions means that if listing succeeded, the Defendant might well find himself being liable to pay the Plaintiff RMB 70 million plus 100% return on his investment.  This cannot be real.

72.  This case which the Defendant runs in his affirmation is irreconcilable with what was pleaded in his Defence, in particular, in the Defence, it provided for what would happen if listing was successful; in his affirmation, he put forward a case of what would happen if listing failed. 

73.  Moreover, it is after all the Defendant’s case that three documents were signed on 13 September 2012.  If it was indeed the agreement between the parties on the recognition of one document but not the other, I do not see how and why this was not reduced into writing. It is a real challenge to common sense that with three documents all signed on the same day, none of them contained a record of what the Defendant now said. 

74.  And whilst the parties went to the extent of drawing up and signing written agreements, somehow there was an oral agreement containing terms which were not seen in any of the written documents.  What is even stranger is that, the two written agreements which the Defendant said had superseded the pleaded oral agreement, did not reflect the oral agreement at all.  The oral agreement as pleaded referred to RMB 35 million being interest on the RMB 35 million if listing succeeded; the oral arrangement in the affirmation became one in which the Investment Confirmation Loan would be disregarded and only Loan Confirmation Notewould be recognised if listing failed.  In fact, I note that the Investment Confirmation Note was not even pleaded.

75.  The Defendant’s case is absurd and not believable at all because according to him, none of the written document means what it says.   

76.  Mr Dawes placed heavy weight on the table of receipts showing the Defendant had only received RMB 65 million odd up to July / August 2012.  However, as can be seen above, the Defendant’s case concerning the Loan Confirmation Note was incapable of belief.  It defies logic and sense that the documents which the Defendant admitted to have signed did not say what they purported to say, but rather the court should accept what he orally asserted.  This cannot be right.  Looking at the totality of the evidence, in particular, the documentary evidence whichthe Defendant tried hard but failed to refute, the Defendant’s case including his case on receipt of RMB 65 million odd only is rejected.

77.  I am aware that summary judgment will only be given in obvious cases in which the defendant clearly has no defence.  The court has to be satisfied that there is no issue or question which ought to be tried and no other reason exists which justifies going to trial.  It is not the job of this court to embark upon a mini-trial.  In assessing the credibility of the defendant’s factual case, the question to ask is whether such case of the defendant is capable of being believed, not whether it is to be believed.

78.  Plainly, the Defendant’s case that he had repaid RMB 70 million is totally incredible and defiant of belief.

79.  The same, however, cannot be said in relation to the 3% interest.  The relevant provision said the Defendant was to pay the Plaintiff interests from 1 November 2011 to 31 May 2013 at monthly rate of 3% (on RMB 70 million as the base) by the end of May 2013.  On the written document, the figure “3” immediately preceding the “%” sign was hand-written.

80.  The Plaintiff said it was inserted after negotiation; the Defendant said it was left blank and was inserted by the Plaintiff after signing.  I am aware that one of the Plaintiff’s witnesses corroborates and confirms that the Loan Confirmation Note was signed in late November 2011 and that she was the one who filled in the figure “3” in the relevant interest provision clause. 

81.  But this is a classic case of oral disputes which cannot be resolved on affidavit.  It cannot be said that the Defendant’s version that the figure “3” was written after signing is wholly incapable of belief.

Order

82.  The Defendant’s appeal is allowed only to the extent that para 2of the Master’s order, namely, interest at the rate of 3% of the total amountof the loan (RMB 70 million) per month for the period of 1 November 2011to 31 May 2013 be set aside, and unconditional leave to defend this part of the case is granted.

83.  The Plaintiff is largely successful in resisting the Defendant’s appeal, and thus, I make an order that the Defendant do pay the Plaintiff’s costs of and incidental to this appeal, with certificate for two counsel.

84.  I am indebted to counsel for their assistance.