ANDREW LIU AND ANOTHER v. ALEX CHIU CHIH SUN AND ANOTHER

HCA 469/2024

[2026] HKCFI 5538

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 469 OF 2024

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BETWEEN

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DECISION

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Introduction

1.  Before me are the following applications:

(1) An application by the 1^st Plaintiff (“Andrew”) and 2^nd Plaintiff (“Alice”) (collectively, “Ps”) for summary judgment against the 1^st Defendant (“Alex”) and the 2^nd Defendant (“Big Trade”) (collectively, “Ds”) by Summons dated 13 February 2026 (“SJ Summons”); and

(2) Three applications by Ds taken out shortly before the hearing of the SJ Summons for: (a) leave to amend the Amended Defence dated 16 December 2025 (“AD”) by Summons dated 15 June 2026 (“Amendment Summons”); (b) an order that Andrew and Tsai Kwok Leung Turbo (“Turbo”) do attend the hearing of the SJ Summons on 30 June 2026 for cross-examination by Summons dated 15 June 2026 (“Cross-Examination Summons”); and (c) leave to file the 3^rd Affirmation of Alex (“Alex 3^rd”) by Summons dated 15 June 2026 (“Further Affirmation Summons”)[1].

2.  The following evidence was filed in respect of the SJ Summons pursuant to Order of Master Maurice Lam dated 13 March 2026:

(1) The 2^nd Affirmation of Andrew (“Andrew 2^nd”) and 2^nd Affirmation of Alice both dated 16 February 2026 in support;

(2) The 2^nd Affirmation of Alex dated 27 April 2026 (“Alex 2^nd”) in opposition; and

(3) The 3^rd Affirmation of Andrew, 3^rd Affirmation of Alice, Affirmation of Chuang Yue-Chien Eugene (“Eugene”) and Affirmation of Turbo all dated 9 June 2026 in reply.

3.  Mr Christopher Chain SC leading Mr Han Sheng Lim, counsel, appeared for Ps and Mr Kevin Hon, counsel, appeared for Ds.

Background Facts and the Parties’ pleaded case

4.  Essentially, Ps’ case (taken from the Amended Statement of Claim dated 26 September 2025 (“ASOC”)) is that:

(1) Andrew is an investor and financier and Alice is his wife;

(2) In around 2019, Ps were introduced to Alex through mutual friends who were very high net worth individuals and Alex held himself out as being wealthy, well-educated and well-connected;

(3) In early April 2021, Alex offered Andrew an opportunity to invest in Hong Kong Aerospace Technology Group Ltd (“ATG”), a company listed in the Hong Kong Stock Exchange, having represented to Andrew that: (a) ATG was in the aerospace technology business; (b) Alex was a director of ATG; (c) Big Trade, Alex’s corporate vehicle, was a shareholder of ATG with an initial investment amount of HK$1.2B; (d) Alex was offering Andrew the opportunity to acquire some of the shares that Big Trade held in ATG below the market price and repurchase them at a later date; and (e) Big Trade would guarantee minimum returns when it repurchased the ATG shares from Andrew;

(4) As Alex said that he needed the money quickly, Andrew paid HK$20M and HK$29,680,000 to Big Trade’s designated recipient, Hong Kong Financial Assets Management Ltd (“HKFAML”) by way of two cheques on 23 and 28 April 2021;

(5) Subsequently on 23 August 2021, Andrew and Big Trade signed a written agreement (“the 1^st ATG Investment Agreement”) to record their agreement in writing which provided inter alia: (a) Andrew would invest a total of HK$154M in two tranches (HK$49,680,000 already paid for 7.2M ATG shares and HK$104,500,000 to be paid by 23 August 2021 for 5.5M ATG shares); and (b) 2 years later (i.e. on 23 August 2023), Big Trade would pay Andrew the sum of HK$889M or the closing price of 12.7M shares in ATG, whichever was higher;

(6) Andrew paid a further HK$104,500,000 to Big Trade directly by way of a cheque on 23 August 2021;

(7) In around September 2021, Alex offered Andrew an opportunity to further participate in more shares in ATG and on 18 September 2021, Andrew and Big Trade signed a further written agreement (“2^nd ATG Investment Agreement”) which provided inter alia: (a) Andrew would invest a further HK$190M for 10M ATG shares; and (b) 2 years later, i.e. on 23 August 2023, Big Trade would pay Andrew the additional sum of HK$700M or the closing price of 10M shares in ATG, whichever was higher;

(8) Andrew paid a further HK$190M to Big Trade directly by way of cheque on 18 September 2021;

(9) In around May or June 2021, Alex told Andrew that he was an early investor in ByteDance Ltd (“BD”) via Big Trade with an initial investment of US$100M and offered Andrew the opportunity to participate in his investment which would yield guaranteed returns;

(10) On 5 July 2021, Andrew and Big Trade signed a written agreement (“BD Investment Agreement”) which provided inter alia: (a) Andrew would invest HK$100M; and (b) on 15 July 2023, Big Trade would pay Andrew the sum of HK$200M or HK$100M multiplied by “the grown multiplier”, whichever was higher;

(11) On 15 July 2021, Andrew paid HK$100M to Big Trade by way of cheque;

(12) On around July 2021, Alex proposed that Andrew lend him the sum of HK$400M for a term of 3 years at 18% interest per annum (“the Loan”) which Ds would on-lend to Alex’s friend in the Mainland who would pay interest at 20% per annum;

(13) On around 15 July 2021, Andrew paid HK$400M to Big Trade by way of cheque, and Big Trade signed a promissory note in favour of Andrew (“Promissory Note”) which provided inter alia that Big Trade would repay Andrew the principle sum of HK$400M on 31 July 2024 as well as regular interest at 18% per annum starting from 31 July 2021;

(14) A total of HK$165M interest payments were paid by Big Trade to Andrew between July 2021 and November 2023 pursuant to the Loan and Promissory Note;

(15) In around April 2023, Alex informed Andrew that Big Trade wished to restructure the payment under the 1^st and 2^nd ATG Investment Agreements by only paying the principal on the original due date of 23 August 2023 and repaying the balance by semi-annual instalment, and Alex would execute a personal guarantee in respect of Big Trade’s payment obligation;

(16) On 26 April 2023: (a) Andrew and Big Trade signed a written agreement which inter alia restructured the payments due under the ATG Investment Agreements (“Supplemental ATG Investment Agreement”) and provided for an acceleration clause entitling Andrew to declare by written notice the entire outstanding balance to become immediately due and payable; and (b) Alex executed a Deed of Guarantee (“the Guarantee”) in favour of Andrew whereby Alex inter alia guaranteed as primary obligor the due and punctual payment of all monies payable by Big Trade to Andrew pursuant to the 1^st and 2^nd ATG Investment Agreements and the Supplemental ATG Investment Agreement (collectively, “ATG Agreements”) and to indemnify Andrew against all losses, liabilities, damages and costs arising out of Big Trade’s failure to make due and punctual payment pursuant to the ATG Agreements;

(17) On 15 July 2023, Ds defaulted in repaying HK$200M to Andrew under the BD Investment Agreement;

(18) On 23 August 2023, Ds defaulted on repaying the principal of HK$344,180,000 under the Supplemental ATG Investment Agreement;

(19) On 17 October 2023, Andrew granted Alice a power of attorney in relation to the Promissory Note and assigned her his claims in relation to the ATG Agreements, the Guarantee and BD Investment Agreement;

(20) In December 2023, Big Trade’s cheques (delivered to Alice) in respect of interest payments (totalling HK$212M) pursuant to the Loan and Promissory Note bounced and no further interest payments were made;

(21) In breach of the Loan and the Promissory Note, Big Trade failed to pay a total of HK$454M (9 interest payments of November 2023 to July 2024 and principal of HK$400M due on 31 July 2024);

(22) On 9 January 2024, Alice issued a Statutory Demand to Big Trade and exercised the acceleration clause under the Supplemental ATG Investment and the entire HK$1.589B became immediately due and payable; and

(23) On 9 January 2024, Alice issued a Statutory Demand to Alex demanding payment of the entire sum of HK$1.589B pursuant to the Guarantee.

5.  By the SJ Summons, P seeks judgment to be entered:

(1) Against Alex in the sum of HK$1.589B and costs of Ps’ claim on an indemnity basis pursuant to the Guarantee;

(2) Against Big Trade for the sum of HK$2.243B (being HK$1.589B pursuant to the ATG Agreements, HK$200M pursuant to the BD Investment Agreement and HK$454M pursuant to the Promissory Note) less any sums recovered from the HK$212M dishonoured cheque claim; and

(3) Alternatively, unjust enrichment for the sum of HK$844.18M actually paid to Big Trade.

6.  On the other hand, in gist, it was pleaded in the AD by Ds that:

(1) The ATG investment was part of an elaborate scheme to manipulate the stock price of ATG (“Ps’ Scheme”) which parties would benefit and was backed by a funder who masterminded it (“the Mastermind”) entailing: (a) Alex lending (but without requiring parting possession of) his shares in ATG to Ps and/or their nominee(s); (b) cash being paid to Ds as advance remuneration but which may be subsequently adjusted or required to be refunded; (c) Ps would arrange the preparation of necessary documentation for Ds to execute; and (d) Ds should keep the scheme confidential. The 1^st ATG Investment Agreement was signed despite the contents therein were not accurate or reflecting the truth of the matter. Later, when Ps and/or the funder wanted to increase their stake in Ps’ Scheme, the 2^nd ATG Investment Agreement was signed despite the fact that the contents therein were not accurate or reflecting the truth of the matter;

(2) The BD investment was intended to enable Ps and/or a funder to invest in shares of BD in an anonymous manner and it was agreed that: (a) Ds would act as the trustees of Ps to hold the to-be-acquired BD shares; and (b) to remunerate Ds and to hold Ds harmless from any loss, Ps and/or their nominees would transfer HK$100M to Ds which may be subsequently required to be refunded;

(3) As for the Loan, in around March 2021, Andrew told Alex that he wished to lend HK$650M to a person named Lee Wilson. Alex requested to participate in the lending and it was agreed that Andrew and Alex would advance HK$400M and HK$250M respectively with Alex acting as Andrew’s agent insofar as the HK$400M was concerned and any repayment from Lee Wilson would first go to diminish the indebtedness to Alex but Lee Wilson never made repayment. It was in those circumstances that Andrew transferred HK$400M to Big Trade and D1 executed the Promissory Note which was not accurate nor reflected the truth of the matter;

(4) The Supplemental ATG Investment Agreement was signed because Ps deemed Ds to have made profits from Ps’ Scheme and required them to pay Ps and/or the Mastermind an adjusted amount and despite the content was not accurate or did not reflect the truth of the matter; and

(5) Save it was admitted that on 26 April 2023, Alex signed the Guarantee pursuant to Ps’ Scheme and which was required to be executed for the ease of mind of the funder, Ds had no choice but to sign on the Guarantee despite the content therein were not accurate or reflect the truth of the matter.

(“Ds’ Original Case”)

7.  However, by the Amendment Summons (but first foreshadowed in Alex 2^nd), Ds seek to re-amend the AD to plead, in gist, inter alia:

(1) Ds did not own any of the subject ATG shares at all. They were owned by Mr Sun, the then Chairman and CEO of ATG, who asked Ds to look out for wealthy contacts who might be interested in investing in ATG. In around March 2021, Andrew informed Ds that he and Eugene were interested in investing in ATG and Eugene was willing to provide the funds. Andrew proposed a scheme (“the Scheme”) as follows: (a) Ds lent their shares in ATG (which were shares of ATG held by Hong Kong Aerospace Technology Holdings Limited ultimately held by Mr Sun) to Andrew or his nominee; (b) Andrew will arrange cash to be paid to Ds and/or their nominees in consideration of their lending the ATG shares as advance remuneration but such may be adjusted or required to be refunded should the scheme not proceed smoothly; (c) Ds could expect to keep around 10% of the fund as remuneration though it was only a rough figure and parties should not be rigid about it; (d) Andrew would from time to time give instructions to Ds as to how to use the funds deposited in Ds’ nominee’s account; (e) Andrew would arrange preparation of all necessary documents which Ds or Ds’ nominees would execute but they were to be used for auditing and accounting purposes and would not be used against Ds; (f) Ds would not need to part possession with the ATG shares as Ds did not actually have them; (g) Eugene was the funder and the Mastermind; (h) Andrew and Eugene will take care of all liaison and discussion with various parties including Mr Sun and his partner Mr Ji; and (i) all parties would keep the Scheme strictly confidential;

(2) Ds aver that the 1^st ATG Investment Agreement and 2^nd ATG Investment Agreement were signed in furtherance of the Scheme and as Andrew represented to Ds that Ds did not have to worry about the content as the documents were only for formality purposes and despite the fact the contents therein were not accurate nor reflect the truth;

(3) In respect of the BD investment, in around May or June 2021, Andrew represented to Alex that he wished to be remunerated by Ds in the amount of HK$100M for the Scheme and it was agreed that Andrew would transfer a sum of HK$100M to Big Trade and Big Trade would then enter into an agreement that Big Trade would need to pay Andrew HK$200M. The BD Investment Agreement was signed in those circumstances;

(4) In around May 2021, Andrew approached Alex and proposed Alex or his nominees (later confirmed to be Big Trade) would act as Eugene’s agent to lend HK$400M to a potential borrower (later known to be Lee Wilson) and so that Eugene’s name would not appear in the documentation and Alex would need to provide his share of HK$250M as part of the principal of the loan. It was in these circumstances that the Promissory Note was executed despite the fact that the content was not accurate or reflecting the truth of the matter. Ds in around July 2021 provided the loan in the amount of HK$650M to Lee Wilson as instructed by Andrew and Andrew transferred HK$400M to Big Trade. Andrew repeatedly asked Alex to advance the interest for the loan to Eugene and pursuant to the request Alex advanced HK$169.7M to Andrew and/or Eugene;

(5) In around April 2023, Andrew represented to Alex that Andrew and Eugene desired a change in the Scheme and Big Trade would need to sign the Supplemental ATG Investment Agreement which was signed despite the fact that the content therein was not accurate or reflect the trust of the matter; and

(6) After the commencement of these proceedings, Alex discovered the Guarantee produced by Andrew is not his own signature and there was more than one purported guarantee dated 26 April 2023 purportedly signed by Alex but were not Alex’s signatures.

(“Ds’ New Case”)

Applicable Principles

8.  The applicable principles for summary judgment are well-established and was not disputed. In Guanghua SS Holdings Limited v Lim Yew Cheng & Another [2022] HKCFI 1052 at §13, Ng J set out a helpful and succinct summary of the proper approach to such application as follows:

(1) The Order 14 machinery works on the basis that if the plaintiff’s application is properly constituted, it is prima facie entitled to judgment unless the defendant shows cause to the contrary;

(2) The mere assertion in an affidavit of a given situation by the defendant responding to an application for summary judgment does not, ipso facto, ground leave to defend;

(3) The burden is on the defendant to show a real or bona fide defence or some other reason for a trial. The defendant must satisfy the Court that his evidence is capable of being believed and that on the basis of such evidence, there is a fair or reasonable probability of the defendant having a real or bona fide defence;

(4) In deciding whether there is a fair or reasonable probability of the defendant having a real or bona fide defence, the Court does not isolate each factual issue and consider whether it is possible that the defendant’s story on that issue is credible. Rather, the Court must look at the whole situation;

(5) In assessing the credibility of the defendant’s factual case, while the Court will not embark upon a mini-trial on affidavit evidence, the Court is not obliged to suspend its critical faculties and assume that the defendant’s evidence is accurate;

(6) If having regard to inherent plausibility, inconsistency with contemporaneous documents and other compelling evidence, the defence is not credible, the Court must say so;

(7) If the defendant’s evidence is incredible in any material respect, it cannot be said that there is a fair or reasonable probability that the defendant has a real or bona fide defence.

9.  See also Jiang Jianxin v Yiu Ming Fung [2020] HKCA 916 at §6.4 per Cheung JA (giving the Reasons for Judgment of the Court of Appeal):

“In an application for summary judgment the test is whether the defendant has raised triable issues on the plaintiff’s claim. But the mere fact that the defendant has put forward a defence does not necessarily mean that there are triable issues because the Court does not need to accept such defence on its face value. On the contrary the Court is required to decide whether the defence is credible or simply moonshine. The Court is, of course, not to conduct a mini trial on the evidence but at the same time in order to access the credibility of the defence, the Court is clearly entitled to test it against contemporaneous documents, whether the defence is inconsistent with the defendant’s case previously put forward or whether it is only recently raised despite opportunity being given to the defendant to respond earlier. The Court will also consider the inherent probability of the defence.”

10.  Furthermore, where a defendant in a summary judgment application has filed a defence, he is not entitled to rely on an unpleaded defence: see Hong Kong Topkey Limited v Wintac (Hong Kong) Limited & Anor [2023] HKCFI 1711 at §§14-16 affirmed by the Court of Appeal in Wang Shuai v Zhang Qiaohui [2024] HKCA 304 at §46. See also more recently, Link Properties Limited v 1968 Limited [2025] 5 HKC 705 at §§12-26 per H Au Yeung J.

11.  As for the applicable principles concerning amendments to pleadings, it was not disputed that generally speaking, all such amendments ought to be made “for the purpose of determining the real question in controversy between the parties to any proceedings or of correcting any defect or error”. Leave is readily granted to amend before trial unless it can be shown that the new claim based on the proposed amendment is bound to fail. While the court is entitled to have regard to the merits of the case, it should only do so when the merits are readily apparent, and are so apparent as not to require prolonged investigation: see Natamon Protpakorn v Citibank NA [2009] 1 HKLRD 455 at §25. However, where a party seeks to amend by introducing for the first time allegations of fraud, misrepresentation or other such serious allegation, the court will ask why this was not pleaded originally, and may require to be satisfied as to the truth and substantiality of the proposed amendment: see Heraeus Limited v Chan Yun Mui & Anor [2018] HKCFI 2721, §52 per DHCJ Marlene Ng (as she then was).

12.  As for the withdrawal of admissions, the applicable principles were set out in Re Ng Wai Jing [2016] 2 HKLRD 1460 at §§18-21 and 30 per Kwan JA (as she then was) and include:

(1) In exercising its discretion, the Court will consider all the circumstances of the case and seek to give effect to the overriding objective;

(2) Among the matters to be considered will be: (a) the reasons and justification for the application which must be made in good faith; (b) the balance of prejudice to the parties; (c) whether any party has been the author of any prejudice they may suffer; (d) the prospects of success of any issue arising from the withdrawal of any admission; and (e) the public interest, in avoiding where possible satellite litigation, disproportionate use of court resources and the impact of any strategic manoeuvring;

(3) The nearer any application is to a final hearing the less chance of success it will have even if the party making the application can establish clear prejudice. This may be decisive if the application is shortly before the hearing;

(4) Above all, the exercise of any discretion will always depend on the facts of the particular case before the Court. The words “will consider all the circumstances of the case” have particular resonance in this context; and

(5) The need for the applicant to put forward a convincing credible explanation for the circumstances in which the admission was in fact made is nonetheless a powerful factor (although not conclusive) in considering whether to give leave to withdraw an admission. The question whether there is a proper explanation why the admission was made goes to the issue of good faith on the part of the applicant.

13.  As for leave to file further evidence where directions were already given for filing of evidence, under O.32, r.11A(4) of the Rules of High Court, Cap. 4A, it must be demonstrated that there are exceptional circumstances normally where the Ladd v Marshall conditions are satisfied: see Tian Hongmei v Zhang Wei & Ors [2023] HKCFI 2675 at §§26-32 per DHCJ H Au-Yeung (as he then was).

Discussion and Disposition

14.  As the Cross-Examination Summons and the Further Evidence Summons, are premised on leave to re-amend the AD (in particular to plead that Alex’s signature on the Guarantee was forged in reliance on the expert evidence exhibited in Alex 3^rd and to withdraw the admission in AD that Alex signed the Guarantee), logically, the Amendment Summons should be considered first as it can dispose of the other two Summonses.

15.  It is clear that Ds’ New Case contains very serious new allegations against Ps and now Eugene (who is implicated in the Scheme as the Mastermind and funder) for stock market manipulation (in breach of various provisions of the Securities and Futures Ordinance, Cap. 571) that was not previously pleaded. These include the very serious allegation of forgery of Alex’s signature on the Guarantee, the Scheme with greater details which is not the same as Ps’ Scheme as originally pleaded, and the allegation that Ps sought to scam Ds out of the remuneration previously agreed for Ds’ participation in the Scheme via entering into the BD Investment Agreement. In some respect, Ds have even abandoned Ds’ Original Case and pleaded a completely different case such as: (1) Ds now claim that they did not own the subject ATG shares; (2) completely abandoned the original defence in relation to BD Investment Agreement but that it was entered into to extract HK$100M from Ds; (3) instead of claiming that it was Andrew who advanced HK$400M to Lee Wilson, it was Eugene; and (4) the payment of HK$169.7M was a loan advanced to Andrew and/or Eugene. The change in Ds’ pleaded case was also comprehensively analyzed in Ps’ Skeleton Submissions at §74 (“the Table”) which I have reproduced in the Annex to this Decision.

16.  The court will ask why Ds’ New Case was not pleaded originally and needs to be satisfied as to the truth and substantiality of the proposed amendment.

17.  As to why it was not originally pleaded, save for the purported explanation concerning why Alex did not notice it was not his signature on the Guarantee, Mr Hon frankly accepted that there is no explanation from Ds on the change of case.

18.  As to the truth of the proposed amendments, I am not satisfied that Ds’ New Case is true. If it was true, one would have expected this to be pleaded at the first opportunity when the AD was filed when Ps had relied on the various written agreements and the whole case against Alex rested on the Guarantee as pleaded in the ASOC. The Scheme which would have been known to Alex before agreeing to participate in it and executing the various agreements, which he had not denied were executed by him on behalf of Big Trade, ought to have been pleaded when preparing the AD but was not and the intention to amend indicated only after Andrew 2^nd revealed the flaws in Ds’ Original Case. As already mentioned, there is no explanation from Ds why it was not earlier pleaded.

19.  Furthermore, as already mentioned, the internal inconsistency between Ds’ Original Case and Ds’ New Case as identified in the Table suggests to me that Ds’ New Case is a recent fabrication.

20.  Ds’ New Case is also contradicted by Ds’ contemporaneous conduct. From the WhatsApp messages, it can be seen that when Ds defaulted in their obligations, rather than to dispute liability by reason of Ds’ New Case, Alex gave a number of excuses to delay payment, such as being ill, running into problems with the bank and even being assaulted by his own mother requiring hospitalization.

21.  In all the circumstances of this case, I am not satisfied that Ds’ New Case is true and leave to amend AD should be granted.

22.  Moreover, even the explanation that Alex could not have noticed the alleged forgery of his signature earlier because he signed a number of documents without reading any of them it is utterly incredible. As early as when the Statutory Demand was served on Alex relying on the Guarantee, that no doubt would be the first time his attention was drawn to the Guarantee and indicated to him that Ps were seriously pursuing this matter. I cannot accept, as submitted by Mr Hon, the first time Ds were faced with a serious application which might result in a final determination was when the SJ Summons was taken out. In the AD, it was specifically pleaded that Andrew informed Alex in April 2023 that he would “need to execute a personal guarantee for the ease of mind of the funder” and therefore he was plainly aware that he would be signing the Guarantee. The Guarantee was also exhibited in Ps’ application for Mareva injunction and served on Ds as early as 15 March 2024. The delay in taking out the Amendment Summons and leave to adduce further evidence, and lack of convincing explanation for such delay which also calls into question the issue of good faith on the part of Ds and genuineness of Ds’ New Case, are additional reasons to dismiss the Amendment Summons.

23.  Since the Amendment Summons is to be dismissed, the Cross-Examination Summons and the Further Evidence Summons which are parasitical on the grant of the Amendment Summons, should also be dismissed.

24.  This leaves the SJ Summons. Having considered all of Mr Hon’s submissions, looking at the whole situation, I am not satisfied that Ds have raised any credible defence or credible triable issues to Ps’ contractual claim based on signed written agreements and undisputed evidence of Andrew’s payment of HK$844.18M which are supported by the cheques issued by him to HKFAML (which in AD, Ds admitted was the designated payee of Big Trade) or Big Trade.

25.  Given the belated attempt to re-amend the AD and the change (and to some extent abandonment) of Ds’ Original Case as already mentioned, in Mr Chain’s words, this robs Ds’ original defence of any shred of credibility.

26.  Furthermore, no documentary evidence has been adduced by Ds in support of Ds’ original defence as Alex 2^nd only purported to put forward Ds’ New Case. The document entitled “Standard Promissory Note” which was purportedly issued by Big Trade in favour of Lee Wilson is dated 23 March 2021 and provides that the loan from Big Trade to Lee Wilson was made on that date. Yet, Ds’ New Case is that Andrew only approached Alex regarding the Loan in around May 2021 and therefore the Standard Promissory note could not be genuine. In any event, the fact that Ds admitted in the AD to having paid HK$165M to Andrew in respect of the Loan is contrary to Ds’ New Case.

27.  As for Ds’ original defence to the ATG Investment Agreements, it is simply incoherent and non-sensical because on Ds’ own case, Ps’ Scheme did not required Ds to part with possession their ATG shares. If so, it is simply impossible for Ps’ Scheme to have manipulated ATG’s stock price as it would not have exerted any market pressure on the stock price at all. Furthermore, the fact that Ds claim that what Andrew paid them constituted remuneration but is subject to subsequent adjustments and refunds is contrary to the ATG Investment Agreements requiring Big Trade not only to pay back the entire sums but significant returns on top.

28.  As for Ds’ original defence to the BD Investment Agreement, again, it is also incoherent and non-sensical. It is contrary to commercial sense that Ps would park HK$100M with Ds in exchange for Ds holding some shares on trust for Ps which are to be acquired but it is not suggested they were ever acquired. Again, on Ds’ case, only part of the HK$100M may be refunded to Ps but the BD Investment Agreement not only provided for Ds to repay HK$100M but another HK$100M or more as well.

29.  Ds’ case as regards the Supplemental ATG Investment Agreement and the Guarantee is also unbelievable. Ds’ case that they were signed because Ps and/or the Mastermind regarded as Ds having made a profit pursuant to Ps’ Scheme and demanded adjusted amounts thereunder but the Supplemental ATG Investment Agreement and Guarantee simply delayed the timeline for repayment which was beneficial to Ds and the Guarantee simply rendered Alex liable for Big Trade’s payment obligations.

30.  Lastly, to the extent that it is pleaded that the ATG Agreements, the Guarantee and Promissory Notes are sham (in that they were not accurate and do not reflect the truth of the matter), this is clearly unmeritorious and raises no triable issues. In order to raise a sham, not only must the parties intend the documents would not create the legal rights and obligations they appear to create, the parties must intend the relevant documents would mislead a third party into believing the parties had created those rights and obligations: see Hui Cheung Fai & Anor v Daiwa Development Limited & Ors (unrep), HCA 1734/2009, 8 April 2014 at §71 per DHCJ Eugene Fung SC (as he then was). However, in the present case, it is not pleaded in AD who is the third party they wished to mislead.

31.  Furthermore, the fact that the document is uncommercial or artificial does not mean that it is a sham: see Hitch v Stone [2001] STC 214 per Arden LJ at 230 (quoted ibid at §72).

32.  The contemporaneous conduct of Ds in making payment of HK$165M and not denying liability under the written agreements in the WhatsApp communication also demonstrate that Ds’ defence that the agreements were a sham is incredible.

33.  In Ds’ Skeleton Submissions, it was submitted Ps’ case is inherently incredible given: (1) the lack of due diligence carried out on Big Trade on matters Andrew claimed were fraudulently misrepresented to him by Alex; (2) the lack of written agreement when Andrew first parted with significant amounts and not asking for any collaterals from Big Trade; and (3) the unusual terms of the 1^st ATG Investment Agreement, 2^nd ATG Investment Agreement and the BD Investment Agreement.

34.  As to (1), this affords no defence to Ps’ contractual claim when no judgment is sought on the Ps’ claim in deceit/misrepresentation.

35.  As to (2) and (3), these also afford no defence to Ps’ contractual claim. As already mentioned, the fact that a document is uncommercial or artificial is not sufficient to hold that it is a sham. I also do not agree that any of the matters raised, on its own or collectively, casts any doubt on Ps’ case which might afford some other reasons for trial when Ds have not shown his case is credible.

36.  Accordingly, I would enter judgment in favour of Ps in terms of the draft Order submitted to me.

37.  It was agreed that costs should follow the event. Ds should therefore pay the costs of and occasioned by Ds’ Three Summonses and the costs of this action, including the SJ Summons, and any reserved costs, to be taxed if not agreed.

Annex