KOO MING KOWN v. THE BAPTIST CONVENTION OF HONG KONG AND OTHERS

CACV 481/2024, [2026] HKCA 372

On Appeal From [2024] HKCFI 2869

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 481 OF 2024

(ON APPEAL FROM HCA NO. 1481 OF 2014)

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J U D G M E N T

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Hon Anthony Chan JA (giving the Judgment of the Court):

1.  This is the Plaintiff’s appeal against the Judgment after trial of Mr Justice K Yeung dated 16 October 2024 (“Judgment”)  by which his action against the Defendants was dismissed with costs to the Defendants on indemnity basis.

2.  It will be seen below that the issues in this appeal rest within a narrow compass.  The vast majority of the findings made by the trial Judge are not challenged. 

Background

3.  Despite the complexity of this case, the material facts can be succinctly stated in light of the scope of this appeal. The Plaintiff is the Life Honorary Chairman and founding member of the Hong Kong Pui Ching Alumni Ltd.  Pui Ching Primary School and Pui Ching Middle School (“Hong Kong Schools”)  are well-known in Hong Kong.  The Plaintiff attended both of those schools.  He is a successful businessman and has been involved with the Hong Kong Schools as well as the Pui Ching Macau School (“Macau School”)  in various honorary positions.  He was described by the Judge as passionate towards matters relating to Pui Ching.  Such passion was particularly vehement over the “Campaign” (see below).  It verged on being obsessive[1].

4.  The history of the Hong Kong Schools can be traced back to 1889 when Pui Ching College was founded in Guangzhou.  It was nationalised in 1953.  Since 1984, it has been renamed Pei Zheng Middle School (“Guangzhou School”).  Collectively, the Hong Kong Schools, Macau School and the Guangzhou School are referred to as “the Schools”.

5.  The 1^st Defendant is a charitable entity.  It is the sponsoring body of the Hong Kong Schools under the Education Ordinance, Cap 279 and exercises overarching management over those schools.  It is also the owner of the trademarks registered in Hong Kong since about 2003 of the name, motto and insignia of Pui Ching.

6.  The 2^nd Defendant was at the material times a member of the Council of the 1^st Defendant, as well as holding different management positions of the Macau School and Hong Kong Schools. 

7.  The 3^rd to 5^th Defendants are alumni of either the Macau School or the Hong Kong Schools.  They were at the material times members of the Council of the 1^st Defendant, as well as holding various management positions of those schools.  The 5^th Defendant had passed away at the time of the trial.  It was ordered that the proceedings be continued against the estate of the 5^th Defendant notwithstanding the lack of representation of the estate. 

8.  Apart from managing the Hong Kong Schools and the Macau School, the 1^st Defendant has set up and operates (1)  the Pui Ching Education Centre (Evening)  (“PCEC (Evening)”); (2)  Pui Ching Academy (“Academy”); and (3)  Pui Ching Education Centre (Tuen Mun)  (“PCEC (TM)”).  They were set up in respectively 2000, 2002 and 2006.  For the present purpose, the name changes which these institutes had undergone are not relevant.  PCEC (Evening)  and PCEC (TM)  are collectively referred to as “Education Centres”.

9.  Since about 2000, the Hong Kong Schools, Macau School, Guangzhou School, the 1^st Defendant and the alumni of the schools had been deeply concerned about wrongful acts of passing off by three entities which were referred by the parties as “Three Fake Pui Ching Companies”.  Meetings were held to discuss possible actions to be taken to prevent further wrongful acts.  A campaign (a terminology used by the parties)  (“Campaign”)  was started after a meeting which took place on 28 February 2002 in respect of the proprietary interest in and the proper use of the name and insignia of Pui Ching  (“Name” and “Insignia”).

10.  The Plaintiff became a key funder of the Campaign.  In this action, he made 3 claims.  First, the tort of deceit based on alleged fraudulent misrepresentation by the Defendants.  Second, all the Defendants allegedly owed to the Plaintiff a duty to disclose all matters which might affect his decision to provide his contributions to the Campaign and/or the duty to undeceive the Plaintiff of his mistaken belief.  Third, a contract claim against the 1^st Defendant. 

11.  For the present purpose, it suffices to note that each of the Plaintiff’s claims was rejected by the Judge together with the various elements which made up the causes of action.  The Judge also upheld the limitation defence relied upon by the Defendants.  In this appeal, only the rejection of the fraudulent misrepresentation claim and the limitation defence are in issue. 

12.  The relevant parts of the Judgment will be referred to when the grounds of appeal are considered.

13.  In this appeal, the Plaintiff is represented by Mr Sussex SC, Mr Lam SC and Mr Chua.  The 1^st to 3^rd Defendants are represented by Mr A Chan SC, Mr Yip and Mr Cheung.  The 4^th Defendant is represented by Mr K Chan. 

Grounds of Appeal

14.  The Plaintiff contends, firstly, that part of his case on misrepresentation, namely, that the Name and Insignia were owned by the Schools (“Representation (a)”)  was wrongly rejected by the Judge (this is part of Ground (1)  of the grounds of appeal).  The contention here is based on 3 undisputed documents: (i)  a Joint Statement dated 15 August 2005 (“Joint Statement”); (ii)  the Articles of Association of a Working Committee which was approved on 21 October 2006 (“Articles”); and (iii)  a document referred to as “Pui Ching Declaration” dated 5 December 2009 (“Declaration”).  Collectively, the “Three Documents”.

15.  Secondly, the Plaintiff contends that the Judge erred in finding that the Plaintiff was not induced by or did not rely on Representation (a)  (part of Ground (4)).

16.  Thirdly, the Plaintiff contends that the Judge erred in law in finding that the Plaintiff’s claim on Representation (a)  is time-barred (part of Ground (6)).

17.  For convenience, the above contentions of the Plaintiff are referred to as Grounds (1), (4)  and (6).

18.  The details of the Plaintiff’s arguments will be addressed below.

The Plaintiff’s pleaded case on fraudulent misrepresentation

19.  It should be said at once that the Re-Re-Re-Amended Statement of Claim (“SOC”)  is everything which a proper statement of claim should not be.  It is a long document of 61 pages. There was no attempt by the drafters (none of the names of the Plaintiff’s current team of lawyers appears on the SOC)  to adhere to the elementary rules of pleading.  The document is heavily laden with evidence and submissions.  It is highly convoluted and repetitive.  Allegations were scattered all over the document.  There is no clarity to speak of. 

20.  Bluntly, instead of assisting the Court or anyone to understand and deal with the issues of this case, the SOC has the opposite effect.  This action was started in 2014.  There can be no doubt that much judicial time[2] and costs had been wasted over the years in having to decipher the SOC.  Allowing this kind of litigation conduct goes against each of the underlying objectives set out under O.1A, r.1 of the Rules of the High Court, Cap 4A.  The appropriate way to deal with a document like the SOC is to strike it out under O.18, r.19(b), (c)  or (d).  If a litigant believes that he has a legitimate claim, it should be properly formulated in compliance with the rules of pleading.  

21.  In order to understand the fraudulent misrepresentation claim, one has to refer to three pleaded matters referred to as the Campaign, Common Objectives and Obligations.  These are vital to the understanding of the Plaintiff’s case, as explained by the Judge in the Judgment, [78] and [79] :

“78. In Section D, various meetings and documents are pleaded. Amongst those meetings, the ones on 28 February 2002 stand out. They are pleaded in §§24 and 25. Those 2 paragraphs define the terms the ‘Campaign’ and ‘Common Objectives’, which are vital to the understanding of P’s case. §§24 and 25 read as follows:

‘24. On 28 February 2002, the Hong Kong Schools and the Macau School (both of which comprises representatives of [D1])  and the Guangzhou School (which took the leading role among the Pui Ching Schools in Mainland China and acted as their representative throughout the Campaign)  gathered together and resolved to seek recovery of the Name and the Insignia and to discuss among the Pui Ching community the right to use the Name and the Insignia and how its usage should be managed and regulated (the “Campaign”).

25. Also on 28 February 2002, the HKPCAAL convened a meeting at Pui Ching Primary School. The attendants of this meeting included [D2] and [D4] (as representatives of [D1] and the management committees of the Pui Ching Schools in Hong Kong and Macau). The meeting reached the following consensus of actions (the “Common Objectives”):-

25.1 The Alumni supported the Guangzhou School to take action to recover the right of the trademark registration of the Name and Insignia in the Mainland.

25.2 It was the consensus of all attendees that the Hong Kong Schools and the Macau School were inextricably associated with the Guangzhou School, which was their mother school. They therefore jointly owned and/or shared the right to use and control the use of the Name and the Insignia. The Pui Ching Schools should thus promptly discuss and set the criteria, qualifications and education principles upon which the use of the Name and the Insignia could be permitted and establish the mechanism (in conjunction with to, together [sic.] with other members of the Pui Ching community)  to, check, approve and regulate all future applications for permission to use using the Name and Insignia., This was necessary so as to avoid abusive use of the Name and the Insignia and adverse effects on their academic reputation.

25.3 [CPCEFL] should change its name to avoid confusion that it was related to the Pui Ching Schools.’

79. P avers that D1, ‘[being] the trustee entrusted with the operation and administration of the Hong Kong Schools and the Macau School and their assets’, ‘had thereby assumed the following express and/or implied obligations and/or fiduciary duties toward the Hong Kong Schools, the Macau School and the Guangzhou School (the “Obligations”)’. Those Obligations, which are also vital to P’s claim, are pleaded in §§27.1 to 27.4 of the RRRA-SOC as follows: -

‘27.1 [D1] shall act in accordance with the Common Objectives by:-

(a)  recognizing and respecting the fact that the Guangzhou School is the ‘mother school’ of both the Hong Kong Schools and the Macau School;

(b)  recognizing and respecting the fact that the right to use and control the use of the Name and the Insignia is jointly owned and/or shared by the Guangzhou School, the Hong Kong Schools and the Macau School; and

(c)  refraining from using the Name and/or the Insignia for [D1] own benefit and/or commercial profit;

27.2 [D1] shall promptly procure the setting up of a mechanism (in conjunction with other members of the Pui Ching community)  for: (i)  establishing the criteria, qualifications and education principles upon which the use of the Name and the Insignia could be permitted; and (ii)  checking, approving and regulating all future applications for permission to use the Name and/or the Insignia.

27.3 Except for the purpose of and [sic.] the Macau School, [D1] shall not procure, permit or suffer any use or continual use of the Name or the Insignia by any school or body without the joint approval by the Hong Kong Schools, the Macau School and the Guangzhou School in accordance with as their mother school, or by the body to be set up the mechanism referred to in paragraph 27.2 above.

27.4  [D1] shall faithfully support, protect and safeguard the proper use of the Name and the Insignia in Hong Kong and ensure that their uses shall not be abused by any unauthorized persons or organizations.’ ”

22.  The alleged representation (“Representation”)  was pleaded in para 28 of the SOC as follows (omitting the deletion)  :

“In inducing the Plaintiff to support the Campaign and the carrying out of the Common Objectives, the Defendants, by their respective conduct pleaded under paragraph 30 below expressly and/or impliedly represented to the Pui Ching community including the Plaintiff that (a)  the Name and Insignia were jointly owned by the Guangzhou School, the Hong Kong Schools and the Macau School; (b)  except for the purpose of operating and administering the Hong Kong Schools and the Macau School, the 1^st Defendant did not use and had not used the Name or the Insignia for its personal benefit or commercial profit making; (c)  the 1^st  Defendant had not procured, caused, permitted or suffered any other schools, institutions or entities (which have no traceable lineage with the Guangzhou School)  to make use of the Name or the Insignia and (d)  the 1^st Defendant intended to, and the 2^nd, 3^rd, 4^th and 5^th Defendants intended to procure and/or cause the 1^st Defendant to, conduct itself in accordance with the Common Objectives; respect and honour the spirit of the Campaign; and perform the Obligations (the “Representation”).”

23.  Throughout the SOC the Representation was pleaded as a composite one made up of 4 constituents.  Importantly, the Particulars of Continuing Representation in [30] of the SOC made no distinction between the 4 constituents, eg, by alleging that Representation (a)  was made in paragraph x of document y.  Instead, [30] contained 38 sub-paragraphs referring to events which took place from 28 February 2002 to 14 June 2014 with no attempt to identify which event or statement gave rise to which constituent(s)  of the Representation.  The Three Documents were pleaded in [30.10A], [30.11A], [30.11B] and [30.16] amongst those particulars.

24.  Paragraph [31] of the SOC pleaded the Plaintiff’s reliance of “the Representation”, such that during the period from 2002 to 2014 he made money contributions (“Contributions”)  and devoted substantial time and effort to support the Campaign. 

25.  The averment that the Representation “was” false was particularized in [48] of the SOC under 11 sub-paragraphs.  Essentially, it was alleged that unbeknown to the Plaintiff, the 1^st Defendant had established the Academy and the Education Centres[3] during the Campaign, and the 1^st Defendant had caused and allowed those institutes to use the Name and Insignia.  The 3^rd to 5^th Defendants were members of the Board of Governors of the Academy at the material times.  The 5^th Defendant was also the supervisor of the Education Centres. 

26.  It was further alleged that (a)  the 1^st Defendant had caused the Academy and the Education Centres to hold themselves out as associated or connected with the Schools despite the absence of traceable lineage with the Guangzhou School [48.3]; (b)  the 1^st Defendant had never applied or procured the Academy and the Education Centres to apply for consent or approval from the Schools for using the Name and Insignia [48.5]; (c)  the 1^st Defendant was therefore in breach of the Obligations [48.6]; (d)  the 1^st Defendant’s conduct ignored the fact that the right to use the Name and Insignia was jointly owned by the Schools and was a serious departure from the Common Objectives and total disrespect of the spirit of the Campaign [48.8].

27.  The Plaintiff’s plea of fraud appeared in [49] of the SOC, but it has to be read with [48A] where it was pleaded that each of the Defendants owed to the Plaintiff a duty to disclose all matters which might affect his decision to provide Contributions and/or a duty to undeceive the Plaintiff of his mistaken belief.  These duties allegedly arose from a relationship of trust and confidence [27E] and the Defendants’ perception that the Plaintiff was labouring under a mistake “as to some essential matters” and their omission to undeceive the Plaintiff would foster or perpetuate the mistake [27F].

28.  Under the Particulars of Fraudulent Misrepresentation pleaded in [49], essentially it was alleged that in breach of the duty to disclose, the 1^st Defendant had not made any disclosure of the Academy or the Education Centres.

29.  Mr Sussex made reference to [49.6B] where it was pleaded that despite the Defendants’ repeated Representation about the joint ownership of the Name and Insignia by the Schools and the use of the same would be subject to control, the Amended Defence of the Defendants was that the 1^st Defendant had the sole and full control of and the right to use the Name and the Insignia in direct contradiction of the Representation. 

30.  The above constituted the pleading of the Plaintiff on the essential elements of the tort of deceit: see Haifa International Finance Co Ltd v Concord Strategic Investments Ltd [2009] 4 HKLRD 29, [15].

Discussion

Representation (a)

31.  The Plaintiff says that Representation (a)  was made out on the Three Documents.  Further, it is a matter of construction of those documents, which is a question of law. 

32.  The Defendants (both Mr A Chan and Mr K Chan)  submit that the Plaintiff is not entitled to advance a case on appeal based on Representation (a)  as a self-contained case when that was not the case ran at trial.  Mr A Chan also submits that if such a case were advanced, it would have been addressed at the trial and submissions would have been made thereon.  There is certainly force in the submissions.  However, it will be seen below that this Court is unable to agree with the construction of the Three Documents proposed by the Plaintiff, and in any event his case based solely on Representation (a)  cannot succeed in light of the unchallenged findings made below.  It is therefore unnecessary to determine this objection of the Defendants. 

33.  We shall examine, firstly, how the Judge dealt with the fraudulent misrepresentation claim.  Secondly, the construction of the Three Documents.

Findings on the Representation

34.  The Judge’s reasons for rejecting the “Representations”[4] were set out in [129] of the Judgment.  In [127] and [128], the Judge referred to the closing submissions and written reply of the Plaintiff’s leading counsel.  In the closing submissions, it was submitted that Representation (a)  was expressly made and emphasis was placed on various documents to illustrate each Defendant’s making of Representation (a), including the Joint Statement (involving the 1^st Defendant)  and the Declaration (signed by the 2^nd and 3^rd Defendants).  Counsel went on to submit that Representation (b)  to (d)  were “also implicitly made”. 

35.  Paragraph 129 of the Judgment, which was the focus of Mr Sussex’s submissions, held as follows :

“129. I have considered those background facts relied upon. I have also considered the many documents referred to. I have also considered the very many cross-referencing paragraphs from the RRRA-SOC. I have considered Mr Edward Chan as summarised above. I have also considered Mr Abraham Chan’s submissions to the contrary at Sections F3, F4, Annex II and Annex III of his written closing. For the following main reasons, I find that none of the Ds made the Representations to P:

(a)  As can be seen from the above, Mr Edward Chan links Representation (a)  to the common lineage. He submits that the former ‘flows from’ the latter;

(b)  I have in Section D.2. above dealt with the history of the various Pui Ching schools. As summarised by Mr Edward Chan at Section II-F of his written closing, various parties might have on different occasions and in different publications or letters said things like ‘廣州東山培正中學、香港培正中學、澳門培正中學，三校同根同源，公家辦學理念相同…’, ‘此事在國內由東山培正負責進行法律程序取還校名，港澳培正在道義上，在培正一脈相承的淵源上，全力支持乃理所當然份內事’, and ‘…it has always been recognized by [D1] and the students and alumni of ‘香港培正中學 ’ and ‘澳門培正中學 ’ that both schools were and still are inextricably associated with [the Guangzhou School] and that [the Guangzhou School] is the ‘mother school’ of ‘香港培正中學 ’ and ‘澳門培正中學’ ‘. Support for recovering registration of the name in Guangzhou might have been voiced. But common historical heritage and the voicing of such support are objectively concepts different from joint-ownership of the Name and Insignia. The latter does not flow from the former;

(c)  P relies on the Articles of Association of the Working Committee. The language of the Articles should be noted. It is, as Mr Abraham Chan submits which I accept, aspirational. Specifically, under Section 2 entitled ‘工作原則’, it says that ‘廣州、香港、澳門三地培正學校應是 ‘培正’校名的創設者及商標的合法擁有人’. The word ‘應’ is important and should be noted;

(d)  It should further be appreciated, as submitted by Mr Abraham Chan, that 3 sets of schools in 3 different jurisdictions are involved. There is no evidence that under the respective systems which they are in, they are capable in law of owning the Names or Insignia;

(e)  The nature of the occasions when various matters were uttered or written (which P relies on)  should also be noted. On occasions (for examples the 28/2/2002 Schools Meeting, the 28/2/2002 HKPCAAL Meeting, and the meeting held on 10 April 2002), views were simply being exchanged. On others, support in relation to recovery of the registration of the school name were voiced (for examples, meeting of 15 April 2002), and the conduct of the ‘Three Fake Pui Ching Companies’ criticised (for example the 15/8/2015 Joint Statement). Joint-ownership of the Name and Insignia was not the focus. If anything, sentiments had in fact been expressed that the right of their use, and the management and regulation of their future usage, should be further discussed;

(f)  In relation to Representations (b)  to (d), P himself accepts that they were not expressly made. He claims that they were made impliedly by conduct;

(g)  I have mentioned the concept of ‘personal benefit or commercial profit making’. They are central to Representation (b). But they are vague concepts. It is particularly so given the charitable nature of D1’s operation. When asked during cross-examination as to what the concept of ‘commercial profit-making’ in this context meant, P answered that it meant ‘即係做生意賺錢咁樣’.That does [not] resolve the obscurity. It rather raises the question, as Mr Abraham Chan points out, whether it would according to P’s logic be wrong for BCHK to charge any school fees in excess of the costs and expenses;

(h)  Further, and importantly, as I have discussed above, the 28/2/2002 Meeting Report and 28/2/2002 Meeting Transcript in fact do not record any consensus in terms of the Common Objectives. I accept Mr Abraham Chan’s submissions that those documents rather recorded a variety of views having been expressed, but with no consensus recorded as alleged;

(i)  Mr Edward Chan refers to P’s ‘unshaken evidence that there was such a consensus’, and Ds’ failure to produce any witness to the contrary, so that ‘Ds’ silence is capable of converting P’s evidence into proof’;

(j)  I do not regard those matters as material. I have explained why I do not find P to be a reliable witness. I have explained the objective nature of the exercise when considering whether any implied representation has been made. I have also explained why I do not accept Mr Edward Chan’s submissions that Ds’ decision not to testify necessarily lowers the onus of proof on P. Specifically in respect of the existence (or otherwise)  of the Common Objectives, it is important to consider the quality of the evidence adduced by P;

(k)  P relies heavily on the 1/3/2002 Tse Letter, and in particular the sentence that ‘因此，培正之校名、校徽、校歌等之使用權，實應為三地母校所擁有，而世界各地紅藍兒女對母校之校譽均有維護之責任’ (emphasis added for ease of presentation). In that regard, I accept Mr Abraham Chan’s submissions that that letter should be read in its proper context, as being part of the discussions as to the course of actions to be taken in the Mainland. It was not addressed to P. The emphasised words are at least consistent with [the] meaning ‘should be’. No consensus as P now alleges was asserted or recorded. In any event, it was ‘使用權’ (the right to use)  which the letter was discussing, but not any joint ownership;

(l)  If anything, the contents of the 1/3/2002 Tse Letter are in fact more consistent with there having been no Common Objectives reached during the 28/2/2002 Schools Meeting, the 28/2/2002 HKPCAAL Meeting;

(m)  In my view, the contents of the 28/2/2002 Meeting Report and 28/2/2002 Meeting Transcript and their inconsistencies with P’s pleaded case go a long way against the implication of any existence of Common Objectives;

(n)  The Obligations are linked to the Common Objectives. The above equally affect the implication of any assumption of Obligations by D1;

(o)  P relies on a meeting on or about 25 October 2002 wherein he undertook to pay for the legal fees regarding legal fees (sic.). That meeting was referred at page 20 of a document entitled 培正風雨錄 – 校名校徽註冊權回歸史. There was no mention of any Common Objectives or Obligations;

(p)  P relies on D1’s conduct in the Hong Kong Legal Proceedings, P’s statement filed therein, and Ds’ alleged failure to inform him that D1 had allowed the use of the Name and Insignia by the Academy etc with no traceable lineage. But as Mr Abraham Chan has submitted which I accept, the focus of the Hong Kong Proceedings is different from the present one;

(q)  P asserts that in around December 2006 when the Working Committee was established, one of the agreed working principles was to perform the Obligations. But as pointed out by Mr Abraham Chan, no documentary record has been produced in support;

(r)  As I have mentioned above, P in §30 of the RRRA-SOC refers to 38 items of alleged ‘Continuing Representation’. Counsel have in their respective submissions totally upwards of 400 pages analysed them in great details. Those items relate principally to P and Ds’ involvement in the Campaign. I have specifically dealt with some of them above. I cannot otherwise reproduce all of them here. I record that I have nonetheless considered them. They did not reflect or record in any coherent, not to say in any clear or express manner, the existence of the Common Objectives, the Obligations, or the Representations. If they had in fact been reached, assumed or made in manner subsequently formulated and framed in P’s RRRA-SOC, I find it inherently most improbable that they had been no such coherent reference or record over the span of some 12 years. Contrary to P’s submissions that they support his case, in my view, their contents and collective absence of any coherent reference to the Common Objectives, the Obligations, or the Representations are in fact against the implication of the Representations;

(s)  Specifically in relation to D4, I record that I have considered those particulars under §30 of the RRRA-SOC which involves him. The allegations include that (1)  D4 by an undated reply slip addressed to HKPCAAL and by making an open statement in a school publication, represented that he supported the joint declaration of 18 January 2002; (2)  he signed another reply slip to HKPCAAL on 12 Mach 2003 stating that he supported the Pui Ching alma mater to register the name and insignia in the education category in Hong Kong to prevent passing off and abuse; (3)  D4 attended a meeting on 21 October 2006 which approved the Articles of Association for the Working Committee; (4)  D4 attended a meeting of the Working Committee on 15 December 2006 during which none of the attendants disputed what P said about D1 being entrusted to hold the assets, management and goodwill for Pui Ching; (5)  D4 being a member of the Working Committee which on 18 December 2006 issued an announcement on its establishment and aims; (6)  D4 on 24 September 2011 attended a meeting of the Working Committee wherein the setting up of the Trademark Management Committee was discussed and agreed upon, and wherein D4 allegedly continued to conceal the use by the Academy etc which had no traceable lineage of the Name and Insigna; and (7)  D4 on 16 June 2012, 26 January 2013, 8 March 2014 and 14 June 2014 attended meetings of the Trademark Management Committee wherein amongst others its draft constitution, the notification of the same to Taishan Pui Ching and WuZhou Pui Ching, draft agreements with those entities, and they being required to make applications for the use of Pui Ching’s name, were discussed. I have considered all of them. I am of the view that they do not support any implied Representation having been made by D4 to P;

(t)  I have also consider P’s pleaded particulars in relation to D5.’

36.  Mr Sussex submits that that Judge dealt with Representation (a)  separately under [129(a)] to [129(e)] and the remainder in [129(f)  to (t)].  We do not believe that the treatment by the Judge of the Representation should be read or understood as such.  Firstly, the Judge had a very clear understanding of the Plaintiff’s pleaded case, having summarised it at length in the Judgment, [76] to [92].  There can be no question that the Judge had at the forefront of his mind that the Plaintiff was running a case of a composite representation consisting of 4 constituents.  The Representation was allegedly made continuously over a period in excess of 12 years and supported by 38 paragraphs of particulars. 

37.  Secondly, the fact that in the course of submissions the various constituents of the Representation were addressed by the parties can only be expected. 

38.  Thirdly, [129] should be read as a whole, especially in light of the heavily interwoven nature of the Plaintiff’s case. The paragraph started off by dealing with the submission of the Plaintiff’s counsel on the relationship between Representation (a)  and the “common linage” [129(a)  to 129(b)].  It then dealt with the language of the Articles [129(c)]. In particular, the use of the word “should” (應)  used in the Articles (see para 50 below).  In [129(d)], the Judge expressed agreement with the submission of leading counsel for the 1^st to 3^rd Defendants that it was doubtful whether the Schools were capable in law of owning the Name or Insignia.  In [129(e)], the Judge made the point that the nature of the occasions when various matters were uttered or written should be noted.  Whilst it is true that [129(a)  to 129(e)] were particularly relevant to Representation (a), it was logical for the Judge to lay out his analysis of the Representation by dealing with those matters first.  Paragraph [129(e)], which referred to the Joint Statement, was applicable to all the constituents of the Representation.

39.  In [129(h)], [129(j)], [129(l)], [129(m)], [129(n)], [129(o)] and [129(q)] the Common Objectives and/or the Obligations were referred to, both of which included Representation (a).  In [129(j)], the Judge referred to “the objective nature of the exercise when considering whether any implied representation has been made”.  Representation (a), as a constituent of the Representation alleged to have been, inter alia, impliedly made, was certainly part of that consideration.  In [129(k)], the Judge referred to “joint ownership”, which was about Representation (a).  In [129(r)], the Judge referred to the 38 items of alleged “Continuing Representation” pleaded in [30] of the SOC and over 400 pages of analysis submitted by counsel on the same. 

40.  In our view, Representation (a)  was considered by the Judge alongside with the other constituents of the Representation.

The Three Documents

41.  The analysis should start with the representation of fact pleaded as Representation (a): “the Name and Insignia were jointly owned by [the Schools]”. 

42.  The high watermark of the suggestion that such a representation was made rested on para 45 of the Statement of Agreed Facts in Narrative Form (“SAF”), which was repeated in the Judgment, [71] :

“71 On 5 December 2009, the principal of the Guangzhou School, D2 as supervisor of the Middle School, and D3 as supervisor of the Macau School signed a joint declaration stating, inter alia, that the Guangzhou School, the Hong Kong Schools and the Macau School shared the same lineage and owned the right to use the Name and the Insignia. They also agreed to set up a Trademark Management Committee.”

43.  It should be pointed out that the SAF also referred to the nationalisation of the Guangzhou School in 1953 ([17] and [18]).  Further, the Agreed Chronology of Events referred to the 1^st Defendant becoming the registered owner of the Trademarks of the Name, Insignia and the motto of Pui Ching in 2002.

44.  In respect of the Three Documents, the Joint Statement (the first in time)  made no statement of fact that the Name and Insignia were jointly owned by the Schools.  The Plaintiff relies on the following sentence of that document :

“… 乙方未經甲方任何一單位授權，在內地搶注及濫用「培 正」校名一事 ...”

(Translation: … Party B’s unauthorised registration and misuse of the “Pui Ching” name in the Mainland without authorisation from any unit of Party A …)

45.  The 3 sentences which followed the one quoted above are also relevant because they shed light on who Party A was :

“廣州培正中學及香港浸信會聯會代表甲方(培正母校)，已聯名委託香港孖士打律師行，於2003年3月14日正式入稟香港高等法院, …”

(Translation: Guangzhou Pui Ching Middle School and the Hong Kong Baptist Convention, representing Party A (Pui Ching Mother School), had jointly appointed Messrs. Johnson Stokes & Master Solicitors in Hong Kong to formally file a lawsuit in the High Court of Hong Kong on 14 March 2003 …)

46.  In the Joint Statement, Party A was a reference to “Pui Ching Mother School” (培正母校)[5]. It is unclear what the term meant.  It was unlikely to be a reference to the Guangzhou School because the sentences which followed the one where “Pui Ching Mother School” appeared referred to the Guangzhou School (and the 1^st Defendant)  instituting passing off action on behalf of Pui Ching Mother School.  The sentence relied upon by the Plaintiff referred to “any unit” of Party A.  The term “any unit” is ambiguous.  It can mean that Party A consisted of more than one unit, but it is not clear what those units were.  

47.  If there was an inferential meaning as contended by the Plaintiff that in asserting the right to give authorisation Party A thereby asserted ownership[6], the asserted ownership was that of “Pui Ching Mother School”, not the Schools. Even on the Plaintiff’s own analysis, this document does not make out Representation (a).

48.  Further, the Joint Statement was considered by the Judge at [129(e)] of the Judgment in conjunction with many other documents before the Court, and it was found that joint ownership of the Name and Insignia was not the focus of the document.  Having carefully considered the Joint Statement, we take the view that the Judge was clearly right.

49.  Furthermore, as pointed out by Mr K Chan, it was not the Plaintiff’s pleaded case or evidence that the 4^th Defendant had any involvement with the Joint Statement.

50.  The Articles were the Articles of Association of the Working Committee for the Recovery of the “Pui Ching” Registration Rights. It is not clear why in adopting the Articles, a statement of fact was thereby made.  The Plaintiff relies on the following sentence under Article 2 :

“廣州、香港、澳門三地培正學校應是‘培正’校名的創設者及商標的合法擁有人”

[emphasis added]

(Translation:  The Pui Ching schools in Guangzhou, Hong Kong, and Macau should be the creators of the ‘Pui Ching’ school name and the lawful owners of the trademarks)

51.  First and foremost, the use of the term “should be” is not entirely consistent with the proposition that it is a statement of fact.  The statement could be one of opinion or adopted position.  We agree with the Judge that the word “should” is important and should be noted (Judgment, [129(c)]).  This has to be considered against the backdrop that the Guangzhou School was nationalised long ago and whatever rights which it had or has belong to the State.  Indeed, the sentence which followed the one quoted above referred to the unauthorised registration of the “Pui Ching” trademark as “stealing of state assets” (侵佔国有资产)[7]. Importantly, the entity which was said to be entitled to grant authorisation over the “Pui Ching” trademark was again the “Pui Ching Mother School”.  

52.  Secondly, the quoted sentence appeared under Article 2 which set out the “Working Principles” (工作原則)  of the Working Party. With respect, it is not at all clear how a statement under the working principles contained in an article of association can give rise to an actionable representation.  We see no sufficient basis to fault the Judge’s finding that the language of the Articles was aspirational (see [129(c)] of the Judgment). 

53.  Thirdly, the Schools were not legal entities and it is not clear how they could jointly own any rights.  Hence, the observation of the Judge at [129(d)] is clearly valid.

54.  In respect of the Declaration, the Plaintiff relies on the following sentence, which was referred by Mr Sussex as the “operative text” :

“作為『培正商標』在三地的理應合法的所有者和使用者，三校有神聖權利、歷史重責，珍惜保護『培正商標』”

[emphasis added]

(Translation: As those who should be the legal owners and users of the “Pui Ching” trademark in the three regions, the three schools have a sacred right and a heavy historical responsibility to cherish and protect the “Pui Ching trademark”.)

55.  First, the entire paragraph in question should be examined.  It stated as follows :

“經歷「商標被惡意搶注」的風波，香港培正中學和澳門培正中學分別在港﹑澳特區依法注冊「培正商標」; 廣州培正中學已向國家商標局提出註冊申請，正在審理中。作為「培正商標」在三地的理應合法的所有者和使用者，三校有神聖權利﹑歷史重責，珍惜保護「培正商標」。”

(Translation: After the controversy surrounding the “malicious trademarks squatting”, Hong Kong Pui Ching Middle School and Pui Ching Macau School registered the “Pui Ching trademarks” in their respective Special Administrative Regions in accordance with the law.  Guangzhou Pei Zheng Middle School has submitted a registration application to the China National Intellectual Property Administration, which is currently under review.  As those who should be the legal owners and users of the “Pui Ching trademark” in the three regions, the three schools have a sacred right and a heavy historical responsibility to cherish and protect the “Pui Ching trademark”.  )

56.  What the paragraph stated was that (a)  after the malicious registration of trademark saga, the Hong Kong Schools and the Macau School had registered the “Pui Ching” trademark[8], and the Guangzhou School was in the process of doing likewise; and (b)  the Schools should protect the “Pui Ching” trademark as they should be the lawful owner and user of the trademark in the three regions.

57.  Properly read, the operative text was a statement of position or commitment of the people who made the declaration to protect the “Pui Ching” trademark.  This is consistent with the nature of a document referred to as a declaration.  The statement demonstrated an aspiration or a pursuit.  There was no clear suggestion that the Name or the Insignia was jointly owned by the Schools.  Rather, the trademark was or was in the process of being individually registered in three regions. 

58.  Secondly, Mr Sussex accepted that three Documents had to be construed in the context of the numerous documents relied upon under the 38 paragraphs of Continuing Representation pleaded in [30] of the SOC.  That task was undertaken by the Judge (see [129(r)] of the Judgment).

59.  Finally, we accept Mr K Chan’s submission that the Plaintiff had advanced no pleaded case or evidence in respect of the Declaration against the 4^th Defendant, who was not one of its signatories.

60.  In the premises, we are unable to agree that Representation (a)  was made out by the three Documents.  There is no adequate reason to challenge the Judge’s finding that none of the Defendants had made the “Representations” to the Plaintiff and there was no continuing “representations” (Judgment, [167]).

Unchallenged findings

61.  It was noted above that the vast majority of the findings made below are not challenged in this appeal.  Even if there were a viable case of misrepresentation based on Representation (a), given the findings by the Judge on all other elements of the Plaintiff’s fraud claim, the claim cannot succeed.  For instance, the allegation of fraud (see paras 27 and 28 above)  has no leg to stand on in light of the rejection by the Judge of the alleged relationship of trust and confidence (which gave rise to the duty of disclosure)  [150], and the finding that the Plaintiff was aware of the Academy and the Education Centres since no later than 2000 and in any event by 2003 [182(g)].  Such knowledge predated the Three Documents.

62.  Any attempt by the Plaintiff to run a case which differs from the SOC must be rejected.  It is trite that a case of fraud has to be pleaded with utmost particularity and strictly proved.

63.  For these reasons, Ground (1)  is rejected.

64.  Having failed on Ground (1), which is the main contention of the Plaintiff, both Grounds (4)  (inducement and reliance)  and (6)  (limitation period)  are academic.  Out of deference to counsel, we shall deal with them succinctly.

Ground (4)

65.  Ground (4)  is a challenge to the factual finding of the Judge.  There is plainly a high threshold to meet.

66.  Mr Sussex submits that there was a presumption of inducement (by Representation (a))  in favour of the Plaintiff which the Judge had failed to apply, relying on Zurich Insurance Co plc v Hayward [2017] AC 142, [35] and [36], and that the presumption was not rebutted because the Defendants had elected to give no evidence.

67.  As stated in Zurich Insurance, [34], the “presumption” is an inference of fact, not a presumption of law.  An inference of fact can be rebutted taking into consideration all the relevant evidence, including the claimant’s testimony (see BV Nederlandse Industrie Van Eiprodukten v Rembrandt Enterprises Inc [2020] QB 551, [25] and [32], per Longmore LJ).

68.  In para [177(a)  to 177(j)] of the Judgment, the Judge considered the evidence of the case and found against the Plaintiff on the issue of inducement.  There is no sufficient basis to challenge such finding.

Ground (6)

69.  The Plaintiff complains that the Judge asked the wrong question: when the Plaintiff knew about the Academy and the Education Centres.  The correct question was:  when did the Plaintiff discover the falsity of Representation (a).

70.  There is no merit in the complaint.  The Plaintiff’s pleaded case on concealment was based on the non-disclosure of the Academy and the Education Centres (SOC, [51] and Judgment, [90] and [182(d)]). Insofar as there is any challenge to the factual findings of the Judge, we see no merit in it also.

Disposition

71.  By reason of the aforesaid, this appeal is dismissed with costs to the Defendants.  We see no sufficient reason to award costs on indemnity despite the requests of the Defendants.  Helpfully, the scope of this appeal has been considerably reduced and it should be taken into account.  Further, notwithstanding the lack of resistance by Mr Sussex, we do not believe that a certificate for 3 counsel is justified for the 1^st to 3^rd Defendants in light of the degree of complexity of this appeal.  We award a certificate of 2 counsel instead. 

72.  We are grateful to counsel for their assistance.