DBS BANK (HONG KONG) LTD v. TIAN WEN QUAN

CAMP 79/2017

[2018] HKCA 65

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 79OF 2017

(ON AN INTENDED APPEAL FROM HCA NO 3228 OF 2016)

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JUDGMENT

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Hon Lam VP (giving the Judgment of the Court):

1.  Having considered the application by the Plaintiff in light of the materials before us, and the submissions of counsel (and Mr Tang had tried his best to put forward the arguments on behalf of the Plaintiff), we refuse to grant leave for Grounds 3 to 4 to be argued in the appeal against the decision of A Chan J of 12 October 2017 for the following reasons.

2.  As Ms Chan SC acknowledged in her written submissions, the intended appeal is in respect of the exercise of discretion by the judge and an appellant faced a high threshold.  In the context of a challenge to the judge’s evaluation of merits or evidence in an interlocutory decision, the Court of Appeal should only interfere where there is an error of law or misunderstanding of evidence or that the result is so aberrant that no reasonable judge could have reached the same, see Tsit Wing (Hong Kong) Co Ltd v TWG Tea Co Pte Ltd [2013] 2 HKLRD 505 at [24] to [25]; Joint and Several Liquidators of China Medical Technologies Inc v Bank of China HCMP 576 of 2016, 3 November 2016, at [12]. 

3.  These grounds related to the judge’s conclusion on lack of serious issue to be tried regarding if there is unconscionable knowledge on the part of the Defendant under the claim for knowingly receipt.

4.  In that respect, at [22] of the judgment, the judge correctly identified the law on the requisite knowledge to be established by the Plaintiff.

5.  Applying the law to the facts of the case, the judge came to the conclusion that the case of the Plaintiff on the guilty knowledge of the Plaintiff is tenuous: see [23] to [27].

6.  Notwithstanding the efforts of Ms Chan and Mr Tang, we are not satisfied that it is reasonably arguable that the judge’s analysis of the evidence was flawed in any material respect in coming to his above conclusion.  None of the matters relied upon by counsel come near to demonstrating that the judge’s acceptance of the defence case of underground money exchange transaction is aberrant. 

7.  The judge is correct in holding that the mere use of underground money exchange to procure transfer of funds is not sufficient to establish the requisite knowledge.

8.  The summons of 21 December 2017 is dismissed.  The Plaintiff can proceed with the appeal based on Grounds 1 and 2.

9.  Having considered the statement of costs of the Defendant and having heard counsel submissions of the same, we order the costs of this application be paid by the Plaintiff to the Defendant, which is summarily assessed at $90,000.