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

HCA 1481/2014

[2024] HKCFI 2869

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1481 OF 2014

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J U D G M E N T

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A.  Introduction

1.  There have been long-standing disputes between the parties over the affairs of a group of schools and institutions bearing the name of “Pui Ching/Pei Zheng (培正)” (the “Name”). Those disputes concern in particular the goodwill of the Name, the red and blue insignia (the “Insignia”) bearing the Name in both Chinese and English, as well as the school motto “至善至正”[1] (the “Motto”).

2.  In the present action, the plaintiff (“P”) alleges variably deceit and breach of agreement against the 1^st to 5^th defendants (respectively “D1” (or “BCHK”), “D2”, “D3” (D1 to D3 collectively the “BCHK Parties” as appropriate), “D4” and “D5”, and all defendants collectively “Ds” as appropriate). P says that he has been misled into making various donations principally towards causes related to the recovery and protection of the Name and Insignia. He seeks various injunctive relief over the use of the Name and Insignia. He also seeks damages, including exemplary and aggravated damages.

3.  This is the trial of the action.

4.  Mr Edward Chan SC and Mr Jason Pow SC leading Mr Alexander Tang and Mr Abel Lam appeared for P. Mr Abraham Chan SC leading Mr Richard Yip and Mr Keith Cheung appeared for the BCHK Parties. Ms Theresa Chow with Mr Keith Chan appeared for D4. D5 has passed away. His widow however has not yet obtained probate for his estate. This Court has previously ordered and directed that the trial should proceed in the absence of D5. No legal representative appeared for him or his estate during the trial.

B.  A number of procedural matters

B.1.  The trial bundles

5.  The agreed trial bundles comprise some 29 files ([A1] to [A3], [B1] to [B19], [C1] to [C4], and [CB1] to [CB3]):

(a)  Authenticity of all documents therein is not in dispute;

(b)  Save the following exceptions, the documents are all agreed:

(i)  The descriptions of the documents as set out in the index to the B bundles are not agreed by the BCHK Parties;

(ii)  I bear this in mind. When considering the documents concerned, I will concentrate on the contents without being affected by the descriptions in the index;

(iii)  Items 177 in [B18] and 181 in [B19] are respectively not agreed by D4 and all Ds. The disagreement goes to relevance. I will again bear the disagreement in mind as and when those 2 items required consideration.

6.  On 30 October 2023, the BCHK Parties lodged Bundle D. Bundle D includes, in so far as relevant, (1) the Judgment of Mr Justice Anthony Chan in HCA 1619/2014 (the “HCA 1619 Judgment”) and (2) the trial transcript in HCA 1619/2014 (the “Transcript”).

7.  By summons of 2 November 2023, P seeks an order that those 2 documents be expunged (the “Summons to Expunge”).

8.  I heard Mr Edward Chan and Mr Abraham Chan[2], who made submissions on that summons as part of their respective oral opening submissions. The HCA 1619 Judgment is a judgment. It has been uploaded. The Transcript records what happened during the trial in open court. There are some common parties between that case and the present case. The contents of those 2 items (or part of them) could be relevant to and admissible in the present action. But whether they (and if so which parts) actually are will be dependent upon the actual uses which they are put to. In particular, insofar as the Transcript is concerned, it may become relevant and admissible as previous inconsistent statement under section 13 of the Evidence Ordinance, Cap. 8. Mr Edward Chan acknowledged this in the course of his submissions. And if they may be used during the trial, it will be fairer to all parties if they are to be made available in a bundle beforehand to avert any surprises. On the above basis, I on the 3^rd day of the trial upon conclusion of oral opening submissions ordered on a de bene esse basis that the 2 items may remain in Bundle D, but that their relevance and admissibility should be re-visited as and when they are put to actual use. I further ordered that the costs of the Summons to Expunge be in the cause of the trial.

9.  As things turned out, certain specific parts of the Transcript were read to P in the course of his cross-examination. No objection was raised on his behalf. P also did not dispute the accuracy of the same.

10.  Mr Edward Chan does not touch upon the Summons to Expunge in his written closing. In the course of his oral closing, this Court sought clarification from him as to whether the Summons to Expunge would still be pursued. He informed this Court that it would still be. He however agreed with this Court’s observations made to him that in respect of those parts of the 2 items that have been read and put to P during cross-examination, they are aide-mémoire, and what has become evidence is P’s evidence in response (be it adoption or otherwise). This approach is also not disputed by other counsel.

11.  On the above basis, I allow the 2 items to remain as part of Bundle D. Their admissibility and evidential values are to be approached on the basis as discussed above. There being no clear winner to the Summons to Expunge, I order that the costs of the same be in the cause of this action

B.2.  Attendance of parties

12.  In her written opening, Ms Chow informed the court that:

(a)  D4 had been indisposed. A medical letter dated 27 October 2023 has been placed before this court. According to that medical letter, D4 had been diagnosed with cancer[3], that he was scheduled to undergo a major surgery on 30 October 2023, that it was expected that recovery from the surgery would take more than 2 months, and that D4 was recommended to avoid stress as much as possible;

(b)  D4 would not be able to testify, despite having filed a witness statement (“D4/WS”);

(c)  D4 does not seek to rely on D4/WS as hearsay, and is content that it be ignored.

13.  For the above reasons, I ignore the contents of D4/WS.

14.  As said, no representative appeared for D5. He has previously filed a witness statement. Rather than having it expunged, parties are content that it be ignored. It will be.

B.3.  Order of speeches

15.  As I have recorded above, Ms Chow in her written opening informed this Court that D4 would not be testifying.

16.  Prior to evidence being called, Mr Edward Chan, Mr Abraham Cham and Ms Chow took turn to deliver their respective written openings previously filed. In the course of those submissions, Mr Abraham Chan flagged up the possibility that the BCHK Parties might not be giving oral testimonies. Mr Abraham Chan informed the Court that they would however only make their final decisions upon conclusion of P’s case.

17.  After P had closed his case, Mr Abraham Chan formally informed this Court that none of the BCHK Parties would testify.

18.  Their decisions have 2 direct effects on the trial process. The first is that the BCHK Parties could not rely on the witness statements of any of their witnesses. I ignore those statements.

19.  The second is the order of speeches. I heard parties on that issue. All counsel agreed that it is a matter of case management discretion for this Court. I have considered Order 35 rule 7, and in sub-rule (3). I bore in mind however the modern procedure of exchange of written submissions. I bore in mind also the fact that up till the conclusion of P’s case, submissions had been made in the order as if the BCHK Parties would be giving evidence (in the sense that both the BCHK Parties and D4 had opened their cases). Continuing to proceed on that basis would, with the appropriate safeguards, result in no unfairness to any party. In the end, I directed that there would be 2 rounds of simultaneous exchange of written closings. I would also when receiving oral submissions adopt appropriate procedure to ensure fairness to all parties. Subject to that, I directed that when it came to the order of oral delivery of closing submissions, the BCHK Parties would come first, followed by D4, and then P.

C.  The pleadings

20.  On 1 August 2014, the Writ of Summons herein was issued.

21.  The current set of pleadings comprises the Re-Re-Re-Amended Statement of Claim (the “RRRA-SOC”), the Re-Re-Amended Defence of D1 to D3 and D5 (the “D1-3,5 RRAD”), the Re-Re-Amended Defence of D4 (the “D4 RRAD”), the Further and Better Particulars provided by D1 to D3 (the “F&B”), and the P’s Re-Amended Reply (“RA-Reply”).

D.  The background facts

22.  Parties have pursuant to directions given by this Court during the pre-trial review lodged a Statement of Agreed Facts, an Agreed Chronology of Events, and an agreed Dramatis Personae. Unless otherwise specified, the facts set out in the following subsections (Subsections D1 to D5) are (with some presentational changes) taken from those documents[4] and other documentary records that are not in dispute. They provide the backdrop, and define the terms to be used, for the further consideration of the disputes.

D.1.  The parties

23.  P is an alumnus of the Pui Ching Primary School (the “Pui Ching Primary School” or simply the “Primary School”) and the Pui Ching Middle School (the “Middle School”, and collectively the “Hong Kong Schools”). He was the founder, Executive Director, Chief Financial Officer and Chairman of Namtai Property Inc. (formerly known as Nam Tai Electronic Inc.), whose shares are listed on the New York Stock Exchange since 1988.

24.  P has been involved in the Pui Ching schools[5] in various capacities both within and beyond the Pui Ching schools for many years. He was the Specially Invited Manager of the Primary School from 1 September 2010 to 31 August 2014, and of the Middle School from 1 September 2010 to 1 July 2011. He was the Honorary Manager of Middle School from 2 July 2011 to 31 August 2014. He has since 1 November 2011 also the Honorary Manager of Pui Ching Macau School (“Macau School”, together with the Hong Kong Schools, collectively the “Hong Kong and Macau Schools” where appropriate). P was also the member of advisory committee of Pui Ching Academy (“the Academy”) between 1 August 2010 and 31 July 2013.

25.  P is the Life Honorary Chairman and founding member of the Hong Kong Pui Ching Alumni Association Limited (“HKPCAAL”), and the Honorary President of the Trademark Management Committee established in 2012.

26.  In respect of D1:

(a)  D1 was incorporated in 1951 in Hong Kong as a company limited by guarantee under its former name, United Hong Kong Christian Baptist Churches Association. It is the sponsoring body of the Primary School and the Middle School under the Education Ordinance, Cap. 279 and exercises overarching management over the Hong Kong Schools via its Secondary and Primary Schools and Continuing Education Department (“Education Department”);

(b)  According to the various Certificates of Registration produced[6], D1 has since different days between 2003 and 2004 been the registered owner of the trademarks relating to the Name, Motto and Insignia.

27.  D2 is a member of the Council of D1 since 2000. He was the department head of the Education Department from 1994 to 2010, and its Chairman from May 2005 to 30 April 2010 and May 2019 to 30 April 2021. He was a member of D1’s Affairs Management Committee, and a Secretary of the Supervisory Committee of the Macau Pui Ching Middle School Educational Support Association. He was a Manager and School Supervisor of the Macau School from 2000 to 2005. He had been or has also been the School Supervisor of the Primary School from 2005 to 2010, and of the Middle School from 2005 to 2010 and from 2018 to present.

28.  D3 is an alumnus of the Macau School, and has been and a member of the Council of D1 since 1994. He has since 1994 been a member of the Education Department, and was its Chairman from 2010 to 2015. He has been the Manager of the Middle School since 2010, and a Supervisor and Manager of the Macau School since 2005. He is also the Chairman of the Executive Committee of the Macau School Association.

29.  D4 is an alumnus of the Pui Ching schools. He was a member of the Council of D1 from 1994 to mid-2018, and has been a member of the Education Department since 1998. He was a member of the School Management Committee of the Primary School from 2009 to 2018. He was also a member of Incorporated Management Committee of the Middle School from 2004 to 2018. He was the Supervisor of the Primary School from September 2010 to August 2018 and of the Middle School from September 2010 to August 2017. He was a member of the Board of Governors of the Academy from 2009 to 2015.

30.  D5 was an alumnus of Pui Ching and a member of the Council of D1 from 1994 to 2021, as well as a council member of the Education Department. He was a Manager of the Hong Kong Schools, and a School Supervisor of the Hong Kong Schools from 1990 to 2004 He passed away in September 2021.

31.  Upon P’s application, this Court on 14 August 2023 ordered that the proceedings herein be continued against the estate of D5 notwithstanding that no person represents D5.

D.2  History of the Pui Ching schools

32.  The Hong Kong Schools, the Macau School and the Guangzhou School[7] have been using the Name and the Insignia.

33.  Throughout the years, the Pui Ching schools have produced many outstanding scholars (e.g. Daniel Chee Tsui (崔琦), Nobel Prize Laureate in Physics and Yau Shing Tung (丘成桐), winner of Fields Medal and Wolf Prize in Mathematics). Substantial and valuable goodwill and reputation subsist in the Name and Insignia.

34.  In 1889, the Pui Ching College (培正書院) was founded in Guangzhou, providing primary schooling education. The Pui Ching College later changed its name in 1912 to Pui Ching School (培正學校) (the “Guangzhou School”[8]). In 1916, the Guangzhou School expanded into providing secondary education. In 1928, the Guangzhou School was renamed as Private Guangzhou Pui Ching School (私立廣州培正中學校).

35.  In 1933, a branch of the Guangzhou School was set up in Hong Kong (私立廣州培正中學香港分校), and began to provide primary education in Hong Kong. That was the beginning of Pui Ching Primary School. Kowloon Inland Lot No. 3056, and Section B and the Remaining Portion of Kowloon Inland Lot No. 2454 were later purchased for the use of the Primary School (“the Purchased Lands”). Subsequently Kowloon Inland Lot No. 6365 was granted to D1 in 1972[9] (“KIL 6365”, and together with the Purchased Lands, collectively the “Lands”)

36.  In 1938, a branch of the Guangzhou School was set up in Macau. At that stage, it was named “私立廣州培正中學澳門分校”.

37.  In 1950:-

(a)  The name of the Hong Kong branch school was changed to Pui Ching Middle School (香港培正中學, i.e. the Middle School as defined above). It then comprised a primary section and a secondary section; and

(b)  The name of the Macau branch school was changed to Pui Ching Middle School in Macau (澳門培正中學).

38.  Since 1950s, D1 has been entrusted with the administration of the Middle School. By a Trust Deed dated 25 July 1952, the title to the Purchased Lands was assigned to D1 for D1 to hold with absolute discretionary power to sell the same.

39.  After the People’s Republic of China was founded, in 1953, the Central Government in the Mainland promulgated《關於接辦私立中等學校和小學的計劃》(translated as “Plan about Administering Private Middle Level Schools and Primary Schools”) (the “New Policy”). Pursuant to the New Policy, all private schools in the Mainland, including the Guangzhou School, were nationalised and turned into public schools run by local governments.

40.  After its nationalisation, the Guangzhou School became a public school and had its name changed to “廣州市第七中學” (translated as “Guangzhou No. 7 Secondary School”).

41.  In or about 1957, the School Committees of the Middle School and the Macau School requested to transfer the power to manage and administer the Middle School and the Macau School to D1. D1 accepted the transfer. Since then, D1 has become the sponsoring body of the Primary School and the Middle School.

42.  In 1971, alumni of the Hong Kong Schools (“Alumni”) incorporated HKPCAAL in Hong Kong to organise activities for the Alumni. From the late 1970s, the Alumni began to campaign for the resumption of the Name for the Guangzhou School.

43.  In 1975, the secondary section of the Middle School started to receive subsidy from the Hong Kong Government.

44.  In 1984, the primary section of the Middle School became separately registered (and still is so registered) as a private school under the name of Pui Ching Primary School (香港培正小學, i.e. the Primary School as defined above), whereas the Middle School was (and still is) an aided school providing secondary education[10].

45.  On 22 December 1984, the People’s Government of Guangzhou Municipality approved the resumption of the Name for the Guangzhou School, which has since then been formally renamed as “Pei Zheng Middle School” (“廣州市培正中學”).

46.  The Guangzhou School has 2 sister schools, by the name of Dongshan Pui Ching Primary School (廣州東山培正小學) and Xiguan PeiZheng Primary School (廣州西關培正小學). They are currently owned and operated by the Mainland Government.

47.  P avers that the Primary School, the Middle School and the Macau School have a traceable lineage with the Guangzhou School, and that they inherited and expanded the history of Pui Ching Schools in Hong Kong and Macau. This concept of “traceable lineage” is not agreed by Ds.

D.3.  The Academy, and the Pui Ching Education Centres

48.  In this sub-section, I introduce a number of institutions that are relevant to the disputes.

49.  On 26 October 1999, D1 resolved to set up a private 「培正學院」. As recorded in the relevant meeting minutes of the Education Department[11]:

“成立背景

政府撥款培正推行「培正資訊科技校圍」計劃將於二零零零年八月完成，由於這是一次性的撥款，校方須對來年繼續維持推行資訊科技教育的經費作出開源辦法；因此，必須充份利用培正現有資源創富。成立一間私立「培正學院」是解決未來運作經費最佳辦法。

…

目標

爲配合學校發展，初期及中期目標爲：

l. 成立「培正學院－資訊科技教育中心」

爲學生、老師及家長開設各類實踐及推動資訊科技教育培訓課程。

2． 成立「培正學院－資優教育中心」

爲資優學生及其家長提供訓練，培養傑出人材。

3. 成立「培正學院－語文教育中心」

爲學生及家長提供多元化之語文訓練。”

50.  On 29 December 1999, the Pui Ching Education Centre Limited (“PCECL”) was incorporated. The BCHK Parties plead[12] that it was set up under the auspices of D1, but has never carried on any business and was later dissolved.

51.  In respect of the Pui Ching Education Centre (Evening) (培正教育中心(夜校)) (“PCEC (Evening)”):

(a)  Its predecessor was first established by D1 on 7 January 2000;

(b)  It was renamed as Pui Ching Education Centre (Evening) (培正教育中心(夜校)) when the Pui Ching Education Centre (Day) (培正教育中心(日校)) (“PCEC (Day)”) was on 17 August 2002 established;

(c)  It first obtained provisional registration under the Education Ordinance (School No 536130) on 7 January 2000, and obtained full registration on 2 September 2002.

52.  In respect of the Academy[13]:

(a)  The Academy was formerly known as PCEC (Day)[14];

(b)  On 17 August 2002, PCEC (Day) was established by D1 and obtained provisional registration under Education Ordinance (School No.550388)[15]. Full registration was obtained in April 2004;

(c)  It was renamed as Pui Ching Education Centre (培正教育中心) on 7 December 2006;

(d)  It was renamed as Pui Ching Academy in 2009;

(e)  It was further renamed as Academy of Baptist Convention of Hong Kong (香港浸信會聯會專業書院) on 1 July 2021;

(f)  D1 is its operator;

(g)  P avers that both the PCEC (Day) and the Academy were or are institutions separate from the Hong Kong Schools with different school registration numbers and dates of registration. Ds do not agree;

(h)  On 13 December 2007, P attended as one of the officiating guests in the founding ceremony of the New Building[16], and laid the foundation stone of the New Building;

(i)  On 18 December 2009, the roof-levelling ceremony of the New Building for the School and the Academy took place.

53.  In respect of the Pui Ching Education Centre (Tuen Mun) (培正教育中心(屯門) (“PCEC(TM)”)):

(a)  It was established by D1 on 27 September 2006;

(b)  On that same date, it obtained provisional registration (School No. 568600);

(c)  It obtained full registration on 30 May 2008;

(d)  PCEC(TM), together with PCEC (Evening), are collectively referred to as the “Pui Ching Education Centres”.

D.4.  The so-called Three Fake Pui Ching Companies

54.  In relation to what the parties have called the “Three Fake Pui Ching Companies” (which term I adopt purely for ease of presentation and reference):

(a)  In about late 1992 or early 1993, a tertiary educational institute known as “私立培正商學院” (translated as “Private Pei Zheng Commercial College”) (the “Commercial College”) was established by some Pui Ching alumni (including Mr Liang Shangli (“Liang”) and Mr Ho Hau Wong (“HHW”)) and some individuals who had no connection with Pui Ching. The classes offered by the Commercial College were conducted at the same site as the Guangzhou School at Dongshan District;

(b)  The Commercial College was operated by:

(i)  CPZ Education Net Ltd, was formerly known as Pui Ching Education Net Ltd (“PCENL”). PCENL was incorporated in Hong Kong on 26 April 2000; and

(ii)  China Pei Zheng Commercial College Foundation Limited (中國培正商學院基金會有限公司) (“CPZCCFL”) was formerly known as Pei Zheng Commercial College Educational Foundation Limited). CPZCCFL was incorporated on 2 August 2002 also in Hong Kong;

(c)  The Commercial College carried out its business outside of Hong Kong and was never managed by or operated by or associated with D1, and had no traceable lineage with the Guangzhou School;

(d)  Madam Yu Man Lai (“Madam Yu”) was one of the founding shareholders and directors of PCENL. She was an official of Kowloon City Baptist Church, which is and was at all material times a member church of D1. Her husband is Mr Yip Chee Tim (“Mr Yip”). At the time when PCENL was incorporated, Mr Yip was the vice principal of the Middle School. He was subsequently appointed by D1 as the Director of Development of the Academy and the principal of the Middle School from 2003 to 2015;

(e)  Liang is an alumnus of the Guangzhou School. He was the subscriber and director of CPZCCFL as well as another company incorporated in Hong Kong on 21 June 2000 named China Pui Ching Educational Foundation Limited (中國培正教育基金有限公司) ((“CPCEFL”), formerly known as Pui Ching Educational Foundation Limited (培正教育基金有限公司)). CPZCCFL and CPCEFL alleged that they were respectively set up for the purpose of soliciting donations to support the Commercial College and all educational institutions within China;

(f)  PCENL, CPZCCFL and CPCEFL have been collectively referred to by the parties as the Three Fake Pui Ching Companies.

D.5.  The so-called Campaign for recovery and protection of the Name and the Insignia

55.  In June 2000, the Guangzhou School applied to the Trademark Office of the State of Administration for Industry and Commerce (國家工商行政管理總局商標局) (the “Trademark Office”) for registration of the Name and the Insignia as trademark in the category of educational services.

56.  In November 2000, the Trademark Office notified the Guangzhou School that its trademark application was refused because the Commercial College had in 1999 applied for the registration with the Trademark Office of a trademark which bore the name and insignia of “培正”, and that such application had been approved in November 2000. It was subsequently discovered that on 14 May 2001, the Commercial College assigned such trademark to CPCEFL.

57.  In addition, it was further discovered that Liang and the Three Fake Pui Ching Companies had passed off the Three Fake Pui Ching Companies as establishments associated or in some way connected with the Pui Ching schools. Liang and CPCEFL had also passed off or procured the passing off of schools in the Mainland as those established by the Guangzhou School and/or BCHK or in some way approved or endorsed by them.

58.  Since about 2000, the Hong Kong Schools, the Macau School, the Guangzhou School, BCHK and the alumni of those schools had been deeply concerned about the wrongful acts of passing off by the Three Fake Pui Ching Companies. Various meetings were then convened to discuss the possible actions to be taken to prevent further wrongful acts of passing off.

59.  On 18 January 2002, the Hong Kong Alumni Association (香港培正同學會), Guangzhou Alumni Association (廣州培正同學會) and Macau Alumni Association (澳門培正同學會) published a joint announcement. Amongst other things, it was said[17]:

“廣州 香港 澳門三地同學會立場:

1. 支持「培正」校名及校徽的商標註冊權，在中國，由具歷史悠久的培正東山母校所擁有。

2. 深信祖國實行法制治國，公立東山「培正」法定地位，千秋長存。

3. 協商支持穗港澳三地具規模培正學府， 共謀制訂將來使用「培正」為名辦學的資格及原則，(除目前省港澳三地現己存在的培正學府例外)，遏止「培正」名被濫用，保存培正前賢學長們苦奮經營的優良學術名聲。

4. 呼籲發動國內及海外校友在此事件上對母校的支持，及蒐集各校友的表達意見，供各地母校參攷。”

60.  As agreed by the parties at §§34 and 35 of the Statement of Agreed Facts:

(a)  On 28 February 2002, a meeting (the “28/2/2002 Schools Meeting”) was held amongst the representatives of the Hong Kong Schools, the Macau School and the Guangzhou School at the school campus of the Primary School to discuss the possibility of recovery of the proprietary interest of the Guangzhou School in the Name and Insignia in the Mainland, and the necessity of considering principles for the proper use of the Name and Insignia in future (the “Campaign” for ease of presentation); and

(b)  During the meeting on 28 February 2002, the following consensus was reached: (a) support would be given to the Guangzhou School to recover the right of the Name and the Insignia in the Mainland; (b) the Hong Kong Schools, the Macau School and the Guangzhou School would discuss the principle for proper use of the Name and Insignia in future; and (c) the Hong Kong Alumni Association would request Liang to effect a name change to avoid confusion;

61.  I raised with Mr Edward Chan during the trial that the above-cited agreed facts are at variance with P’s pleaded case, both in relation to the contents of the consensus[18] and at which meeting where the consensus was allegedly reached[19]. I will talk more about those meetings later.

62.  On 1 March 2002, the Management Committee of the Middle School issued a letter to the principal of the Guangzhou School[20]. It was signed by Chairman of the Management Committee Mr Tse Chi Wai, (“Tse”, and the “1/3/2002 Tse Letter”). It stated inter alia that (a) the Guangzhou School, the Hong Kong Schools and the Macau School [shared the same lineage (同出一源); and (b) they[21]] jointly owned and/or shared the right to use the Name and the Insignia, and that they would discuss the principles upon which the Name and the Insignia should be used in future.

63.  On 1 April 2002, a joint declaration was published by the alumni associations in Hong Kong, Macau and Guangzhou stating, inter alia, that:

(a)  support would be given to the Guangzhou School to take legal action to recover its right of and in the trade mark registered with Chinese authorities concerning the Name and the Insignia;

(b)  the Guangzhou School, the Hong Kong Schools and the Macau School would discuss and lay down principles upon which the Name and Insignia would be used in future; and that

(c)  CPCEFL be requested to change its name to avoid confusion.

64.  On 4 June 2002, the Guangzhou School applied to the State Trademark Review and Adjudication Board (國家商標評審委員會) to strike out and/or cancel the trademark registration by the Commercial College.

65.  On 15 March 2003, the Guangzhou School commenced proceedings in Hong Kong against Liang and the Three Fake Pui Ching Companies for passing off by their use of the Name and/or the Insignia (HCA 946/2003, the “Hong Kong Proceedings”). D1 joined in as the 2^nd plaintiff in July 2003.

66.  On 21 May 2003, a meeting took place between the representatives from the school board of the Primary School and the Middle School and representatives from HKPCAAL.

67.  On 15 August 2005, the Guangzhou School, the Hong Kong Schools, the Macau School and D1 published a Joint Statement (the “15/8/2005 Joint Statement”) stating, inter alia, that Liang and the Three Fake Pui Ching Companies had never obtained approval for the use of the Name and/or Insignia from any of the rightful joint owners.

68.  On 15 July 2006, it was resolved amongst the Guangzhou School, the Hong Kong Schools and the Macau School that a working committee should be set up. A set of Articles of Association for the Working Committee was approved in October 2006. The Pui Ching Working Committee (the “Working Committee”) was in December 2006 set up. The stated aim was to work for the recover of the registration right, and to protect the Name. A number of meetings had afterwards been held.

69.  In December 2006, P donated a sum of HK$5 million to the Working Committee for the purpose of paying the legal costs and expenses of legal actions brought in Mainland China and Hong Kong for the recovery and protection of the Name and Insignia.

70.  In 2007, P donated a sum of HK$20 million to the Primary School to fund the redevelopment of its old hall into a new multi-storey educational building for the use of the Primary School (the “New Building”). The construction of the New Building was completed and its occupation permit was obtained in about early 2014. Subsequently, on 16 July 2014, P commenced an action against D1 (HCA 1339/2014) to recover the HK$20 million. Judgment was entered in favour of P by consent on 13 July 2016.

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[22] 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.

72.  On 30 April 2010, a Judgment of the Honourable Mr Justice Poon (as the Chief Judge then was) was handed down in relation to the Hong Kong Proceedings granting judgment in favour of the two plaintiffs.

73.  In March 2012, the Trademark Management Committee was established. It took over the role of the Working Committee. It has 15 members, with 5 representatives from each of the Guangzhou School, Hong Kong Schools and Macau School. P was appointed as the Honorary President[23].

74.  On 1 August 2014, P commenced these proceedings against D1 to D3. D4 was added in April 2015, with allegations added mostly upon further amendments in January 2017.

75.  On 18 August 2014, P commenced proceedings in HCA 1619/2014 against inter alios D1, D4 and D5. P sought and was granted leave to discontinue the action on 22 September 2022 in the course of the trial[24].

E.  Parties’ respective cases in summary

E.1.  P’s pleaded case

E.1.a  The “Campaign”, the alleged “Common Objectives”, and the alleged “Obligations”

76.  P’s case is not straightforward. It has been amended 4 times – in April 2015, January 2017, July 2020 and August 2023.

77.  In the RRRA-SOC, P pleads in some details the history of the Pui Ching schools (Sections A to C). Section D follows. It bears the heading “Campaign for recovery and protection of the Name and the Insignia”. It comprises a number of subsections:

(a)  Section D1 (§§19 to 23), which bears the heading “The Wrongful Trademark Registration of the Name and the Insignia by the Commercial”,

(b)  Section D2 (§§24 to 27), which bears the heading “The Common Objectives by the Pui Ching Community”,

(c)  Section D3 (§§27A to 27F), which bears the heading “[Ds’] Duty of Disclosure and/or Duty to Correct the [P’s] Mistake”,

(d)  Section D4 (§§28 to 30A), which bears the heading “[Ds’] Representation”,

(e)  Section D5 (§§30B to 30E), which bears the heading “The Contract or Assumed Contract between [P] and [D1]”,

(f)  Section D6 (§§30F to 32A), which bears the heading “[P’s] Contributions and Reliance on the Representation and/or the Assumed Contract”,

(g)  Section D7 (§§33 to 41), which bears the heading “Legal Proceedings for Recovery of the Name and the Insignia”,

(h)  Section D8 (§§42 to 43), which bears the heading “Setting Up of the Trademark Management Committee by Guangzhou School, Hong Kong Schools and Macau School”.

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[25] 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[26]. 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[27] that D1, “[being] the trustee entrusted with the operation and administration of the Hong Kong Schools and the Macau School and their assets”[28], “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.”

80.  Further duties which P says all Ds owe to him are pleaded in §§27E and 27F. He repeats the matters pleaded in Sub-sections D1 to D3. He pleads that by reason of those matters, and also the matters in §30, Ds knew or ought to have known of the various matters pleaded in §§27D.1 to 27D.6. He then pleads that:

“27E In the premises, it is averred that [P] and [Ds] were in a relationship of trust and confidence, and accordingly [Ds] at all material times owed to [P] a duty to disclose all matters which might affect [P’s] decision to offer his benevolent personal and financial contributions to the Campaign, which included the matters pleaded in paragraph 27D.1 above[29].

27F. Further or in the alternative, it is averred that where [Ds] perceived that [P] was laboring under a mistake as to some essential matters, [Ds] were under a duty to undeceive [P] if their omission to do so would foster or perpetrate the mistake.”

E.1.b.  The alleged “Representation”

81.  P claims that Ds have by conduct make to him certain representation (the “Representation”[30]). The contents of the Representation are pleaded in §28 of the RRRA-SOC. As pleaded, there are 4 parts (“Representation (a)”, “Representation (b)”, “Representation (c)” and “Representation (d)” respectively), and are linked to the Campaign, the Common Objectives, and the Obligations, as follows:

“In inducing [P] to support the Campaign and the carrying out of the Common Objectives, [Ds], by their respective conduct pleaded under paragraph 30 below, expressly and/or impliedly represented to the Pui Ching community including [P] 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, [D1] did not use and had not used the Name or the Insignia for its personal benefit or commercial profit making; (c) [D1] 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) [D1] intended to, and [D2], [D3], [D4] and [D5] intended to procure and/or cause [D1] to, conduct itself in accordance with the Common Objectives; respect and honour the spirit of the Campaign; and perform the Obligations (the “Representation”).”

82.  In §28A of the RRRA-SOC, P claims further or alternatively that the Representation was made by Ds by conduct by deliberately not disclosing facts and/or failure to correct certain of P’s mistaken beliefs, in breach of the duties they owed to P to disclose and undeceive (as pleaded in §§27E and 27F). P pleads therein as follows:

“Further or in the alternative, in inducing [P] to support the Campaign and the carrying out of the Common Objectives, [Ds], by their respective conduct pleaded under paragraph 30 below, expressly and/or impliedly made the Representation to [P] by (a) deliberately not drawing to [P’s] attention details concerning the set up and the use of the Name and/or Insignia by the Academy, the [Pui Ching] Education Centres, PCECL and/or PCENL; (b) not disclosing to [P] and/or deliberately concealed from [P] their involvements in and/or knowledge of the setting up and/or operation of the Academy, the [Pui Ching] Education Centres, PCECL and/or PCENL; and/or (c) not taking steps to correct [P’s] mistaken belief that [D1] not use and had not used the Name or the Insignia for its personal benefit or commercial profit making; and/or (d) not taking steps to correct [P’s] mistaken belief that [D1] had not procured, caused, permitted or suffered on any schools, or institutions or entities (which have no traceable lineage with the Guangzhou School) to make use of the Name and the Insignia in breach of their duties as pleaded in paragraphs 27E and 27F above.”

83.  In §30 of the RRRA-SOC, some 38 items of alleged “Continuing Representation” are particularised[31]. §30.1 first makes cross-references to the Campaign and Common Objectives. The other items comprise principally events that took place and things said or discussed during various meetings (the 28/2/2002 HKPCAAL Meeting and divers others with divers attendants and entities, including those of the Working Committee and Trademark Management Committee), the 1/3/2002 Tse Letter, certain reply slips, what D1 stated in pleadings and witness statements filed in the Hong Kong Proceedings, and contents of divers documents. The period which those items took place spans from February 2002 to 2014.

84.  In §30A of the RRRA-SOC, P pleads “[f]urther, and insofar as it may be necessary” that:

(a)  By reason of the matters pleaded in §30, each of Ds knew that P made his Contributions[32] on the basis of the belief of the Representation[33];

(b)  Wrongfully and in breach of their duties pleaded in §27F, each of Ds failed to undeceive P by bringing to his attention the falsity of aspects of the Representation[34];

(c)  “as a result of the said omission, each of the [Ds] fostered and/or perpetuated the said belief of [P]”[35];

(d)  “in the premises, each of [Ds] had expressly or impliedly given, or deemed to have given, and continued in the giving of the Representation.”[36]

85.  Reliance is pleaded in §§29 and 31[37], that:

“29. Acting in reliance upon [Ds’] Representation and believing the same were true, [P] without any personal rewards or benefits:-

29.1 paid and continued to pay all costs and expenses of all legal actions brought or to be commenced in the Mainland and Hong Kong under the name of the Guangzhou School and [D1] (as the trustee for the Hong Kong Schools and Macau School) and the Vancouver Proceedings (as defined in paragraph 31.4 below) commenced under [P’s] name in relation to and/or for recovery of the Name and the Insignia; and in addition to money contribution,

29.2 devoted and continued to devote time and effort for the materialization of the Common Objectives (collectively the “Contributions”).

…

31. In reliance of and on the faith of the Representation and/or the Assumed Contract[38], from time to time during the period from 2002 and until 2014, [P] without any personal rewards or benefits has continuously made numerous money contributions (which included but were not limited to payment of most costs and expenses of all related legal actions commenced in the Mainland, Hong Kong and Vancouver) which in total amount of not less than HK$50 million. Further, despite his busy schedule, [P] has also devoted substantial time and effort to support the Campaign, and played a pivotal role in it.”

86.  Falsity and discovery thereof is pleaded in §48. Particulars of falsity include the establishment and operation of PCECL, the Academy and the Pui Ching Education Centres, and the use by them and PCENL of the Insignia and/or Name (and the related goodwill).

E.1.c.  Alleged Deceit by Ds

87.  I refer to Section F of the RRRA-SOC (§§48A to 52).

88.  In respect of Section F:

(a)  Section F bears the heading of “The Defendants’ Deceit”;

(b)  Section F comprises (i) §48A, (ii) Sub-section F1 (comprising §§49, 49.1 to 49.7 and 50), and (iii) Sub-section F2 (comprising §§51, 51.1 to 51.12 and 52);

(c)  In §48A, P repeats §§27A to 27F and 30A. He avers that each of Ds owed to him:

“the duty to disclose all matters which might affect [P’s] decision to provide his benevolent Contributions to the Campaign, and/or the duty to undeceive [P] of his mistaken belief, which duties included (but were not limited to) the duty to disclose all details within [Ds’] knowledge concerning the use of the Name and/or Insignia by entities other than for the operation and administration of the Hong Kong Schools and the Macau School.”

89.  In respect of Sub-section F1:

(a)  F1 bears the heading of “Fraudulent Misrepresentation”;

(b)  In §49 thereunder P pleads that:

“The Representation turned out to be false as pleaded in paragraph 48 above. [Ds] made the Representation fraudulently, well knowing that it was false and untrue or recklessly not caring whether it was true or not, and intended [P] to act upon them.”

(c)  11 paragraphs of “Particulars of Fraudulent Misrepresentation” are pleaded. They include:

(i)  Ds knowledge in respect of the establishment of the Academy, the Pui Ching Education Centres and PCECL;

(ii)  D1’s procurement or knowledge of the incorporation of PCENL;

(iii)  Ds’ breach of duties in failing to make any related disclosure to P;

(iv)  Ds’ knowledge of the joint ownership of the Name and Insignia by the Guangzhou School and the Hong Kong and Macau Schools, and their knowledge of absence of any traceable lineage on the part of the Academy, the Pui Ching Education Centres, PCECL, and PCENL;

(v)  Ds’ knowledge of P’s understanding or belief in line with the Common Objectives and Obligations, and that P would not have provided the Contributions otherwise, but that Ds had failed to take steps to inform him otherwise;

(vi)  §49.7, that:

“Therefore, when continuously repeating and affirming the Representation throughout the years, [Ds] made the Representation fraudulently, well knowing that it was false and untrue or recklessly not caring whether it was true or not.”

(d)  In §50, P pleads that:

“As pleaded in paragraphs 29, 30 and 32 above, [P], acting upon the faithfulness and truthfulness of the Representation by [D], has made substantial Contributions throughout the years.”

90.  In respect of Sub-section F2:

(a)  Sub-section F2 bears the heading of “Non-disclosure and/or deliberate concealment”;

(b)  P avers in §51 that:

“Further, at all material times up to about July 2010 in the case of the Academy and up to the commencement of this action in the case of the [Pui Ching] Education Centres and PCECL, [Ds] in breach of the said duties failed to disclose to [P] and/or deliberately concealed from [P] the establishment and existence of the Academy, the [Pui Ching] Education Centres and PCECL being schools or a company that have made improper use of the Name and/or the Insignia whilst not being associated or connected with the Pui Ching Schools (in particular the Hong Kong Schools) and having no traceable lineage with the Guangzhou School. Furthermore, at all material times, [Ds] in breach of the said duties failed to disclose to [P] and/or deliberately concealed from [P] that [D1] was involved in or knew of the incorporation of PCENL which was a commercial profit making entity.”

(c)  14 paragraphs of particulars are then pleaded, §51.12 of which averts as follows:

“In the premises, and also by reason of those matters pleaded under paragraph 49 above, the said failure of disclosure or concealment by each of [Ds] was fraudulent and deliberate.”

(d)  In §52, P pleads:

“As a result of the aforesaid non-disclosure and/or deliberate concealment by [Ds], [P] continued to believe in the truthfulness of the Representation and continued to make substantial Contributions to support the Campaign without any personal rewards or benefits.”

E.1.d.  The contract claim against D1

91.  At Against D1, P bases his case further on contract or assumed contract, namely:

(a)  The October 2002 Agreement, pleaded in §30B of the RRRA-SOC as follows, that:

“By reason of the matters pleaded in paragraphs 30.1 to 30.6 above, it is averred that in or about October 2002, an agreement was reached by conduct and evidenced in writing between the [D1] and [P] (the “October 2002 Agreement”) whereby, in consideration of [P’s] commitments to pay the legal fees of those legal actions to be taken for the recovery and/or protection of the Name and the Insignia by, inter alia, [D1], [D1]:- (a) accepted and acknowledged that it was not the beneficial owner of the Name and the Insignia; (b) warranted that other than for the operation and administration of the Hong Kong Schools and the Macau School, it had not used, procured, caused, authorized, permitted or suffered any party to use the Name and the Insignia; and (c) agreed not to use, procure, cause, authorize, permit or suffer any other party to use, the Name and/or the Insignia without the prior joint approval or the consent of the Guangzhou School, the Hong Kong Schools and the Macau School, or the prior approval of the special committee to be set up in accordance with the Common Objectives for the management and regulation of the use of the Name and the Insignia.”

(b)  Alternatively, the December 2006 Agreement, pleaded in §30C of the RRRA-SOC as follows, that:

“In the alternative, by reason of the matters pleaded in paragraphs 30.1 to 30.11D above (in particular, paragraphs 30.11A to 30.11D above), it is averred that in or around December 2006, an agreement was reached by conduct and evidenced in writing between [D1] and [P] (the “December 2006 Agreement”) whereby, in consideration of [P’s] donation of HK$5,000,000 to the Working Committee in December 2006, [D1]:- [same as (a), (b) and (c) pleaded in respect of the October 2002 Agreement]”;

(c)  In the further alternative, the Assumed Contract, pleaded in §30D and 32A of the RRRA-SOC as follows, that:

“30D. In the further alternative, by reason of the course of dealings since February 2002 as pleaded in paragraphs 30.1 to 30.26 above, there is and was at all material times a common understanding or common assumption between [P] and [D1] that there are and were binding commitments on the part of [D1] that in consideration of [P’s] donations and contributions to the legal actions brought for the recovery and protection of the Name and Insignia (including the Hong Kong Proceedings), [D1]:- [same as (a), (b) and (c) pleaded in respect of the October 2002 Agreement].

32A. In the premises, further or in the alternative to the October 2002 Agreement or December 2006 Agreement respectively pleaded in paragraphs 30B and 30C above, it is averred that [D1] is estopped from denying or disputing that the Assumed Contract is (and was at all material times) binding upon it and is enforceable by [P] in the same way as a binding contract.”

E.1.e.  The relief sought

92.  P seeks, inter alia but principally, the following relief:

(a)  An injunction to restrain D1 from procuring, causing, authorising, permitting and/or suffering the use of the Name and/or the Insignia by the Academy and the Pui Ching Education Centres;

(b)  An injunction to restrain D1 from procuring, causing, authorising, permitting and/or suffering any use of the Name and the Insignia in Hong Kong by whosoever without the consent or approval of the Trademark Management Committee;

(c)  An order that D1 do cause or procure the change of the names of the Academy and the Pui Ching Education Centres to comply with the injunction claimed in (a) above;

(d)  All such other necessary injunctive relief to compel the D1 to honour and perform its obligations and commitments under the October 2002 Agreement, or alternatively the December 2006 Agreement, or alternatively the Assumed Contract;

(e)  Further or in the alternative, damages against Ds to be assessed by the Court;

(f)  Further or in the alternative, exemplary damages against Ds to be assessed by the Court;

(g)  Further or in alternative, aggravated damages against Ds to be assessed by the Court.

E.1.f.  Counsel’s clarification of P’s claim

93.  P’s case, as summarised by Mr Edward Chan[39], is as follows:

“3. In a nutshell, it is P’s case that he has been deceived by Ds into believing that D1, as the entity entrusted with the assets and management of the Hong Kong and Macau Schools, supported and agreed to, and abided by, the Common Objectives, i.e. that the Guangzhou School, as the mother school, jointly owned and/or shared the right of control of the Name and Insignia with the Hong Kong and Macau Schools, and that D1 had not, and would not, without consent, allow entities which did not share a traceable lineage with the Guangzhou School to exploit the Name and/or Insignia ...

4. Pursuant to such belief, P had agreed to donate and did donate significant amounts of money (to the tune of at least HK$21M) … to recover the Name and Insignia from third-party entities, including funding HCA 946/2003 where the Guangzhou School and D1 (as trustee of the Hong Kong and Macau Schools) acted as co-plaintiffs and co-owners of the goodwill in the Name and Insignia.

5. However, in 2014, P discovered that D1 had actually allowed the Name and Insignia to be used by a number of education institutions run by it for profits and its own benefit (i.e., the Pui Ching Academy and the Pui Ching Education Centres), despite such having no traceable lineage with the Guangzhou School and no consent obtained from the Guangzhou, Hong Kong and Macau Schools through their school boards ...

6. P, in this case, therefore seeks to right the wrongs perpetrated by Ds. In particular, P seeks to:-

6.1. hold D1 to its agreement, and enjoin D1 from continue running its education institutions by using the Name and Insignia;

6.2. recover the significant donations he made as a result of Ds’ deceit.”

94.  In the course of his oral closing, upon request for clarification from this Court, Mr Edward Chan made it clear that:

(a)  In the context of P’s claim, the terms “fraudulent misrepresentation” and “deceit” have been used interchangeably, and that P makes no claim for any “deceit” separate from or independent of the alleged “fraudulent misrepresentation”;

(b)  P’s claim based on misrepresentation is anchored to the “Representation” pleaded in §28 of the RRRA-SOC. While alleged breaches of the Obligations, duties to disclose and duties to undeceive have been pleaded (as set out above), they are not relied upon as any basis for any standalone cause of action sounding in damages, but are principally relied upon in support of P’s pleas based on misrepresentation by conduct (and continuous conduct), and to establish the fraudulent nature of the Representation;

(c)  Against D1 and D1 only, P’s case is based further on contract, as set out above. In the course of his oral opening, Mr Edward Chan clarified that despite the way the Assumed Contract is pleaded, P’s case in that regard is in effect one based on an agreement which P says can be inferred from the pleaded conduct.

E.2.  Ds’ defences

95.  The BCHK Parties deny P’s claim. In gist, and as described by Mr Abraham Chan in his oral opening, their defence is a negative one. In particular:

(a)  In respect of P’s claim of deceit or fraudulent misrepresentation, they deny having made any of the Representations. They say that P would have known inter alia about the establishment of the Academy and the Pui Ching Education Centres since 2003. In any event, P would definitely have knowledge of the alleged misuse of the Pui Ching Name in December 2007;

(b)  In respect of P’s claim that D1 to D3 had a duty to disclose or to undeceive P, there has never been any relationship of trust and confidence between D1 to D3 and P. They owed no duties to P, let alone the alleged duty to disclose or undeceive;

(c)  In respect of the contractual claim against D1, D1’s position is that the alleged agreements did not exist;

(d)  D2 to D5 lack the authority to bind D1;

(e)  P’s claims have also been time barred.

96.  As summarised by Ms Chow in her written opening, D4’s position is a simple one: (1) there was no misrepresentation as alleged by P, no reliance, no fraud and no loss; and (2) there was no duty to “undeceive”, no breach, no fraud and no loss. Mr Chow submits that D4 was simply a volunteer who had little if anything to do with the disputes in question. D4 has also pleaded a limitation defence.

F.  The agreed issues

97.  Parties have agreed upon a list of issues, as follows:

“In relation to all the Defendants

A. Fraudulent Misrepresentation

1. Did [Ds], by their words and/or conduct or otherwise as pleaded in §§28 and 30 of the [RRRA-SOC], make the [Representations] to the [P]?

2. Were the Representations false by reason of the matters pleaded in [RRRA-SOC] §48?

3. If so, were the false Representations made fraudulently by [Ds] in the manner pleaded in [RRRA-SOC] §49?

4. Was [P] induced by and did he rely on and act upon the Representations in the manner pleaded in [RRRA-SOC] §§29, 31?

5. Do [Ds] have any defence(s), including limitation based on s.4(1) and 26(1) of the Limitation Ordinance (as pleaded in D1-3,5 RRAD and D4 RRAD §53), given that [P’s] case is based upon fraud and deliberate concealment which he did not discover until July 2014 ([RRRA-SOC] §§46-48) while [Ds’] case is that [P] had knowledge all along based on events from 2003 onwards (D1-3,5 RRAD and D4 RRAD §§33, 53)?

B. Fraudulent Breach of Duties

6. Further or alternatively to paragraphs 1 to 5 above

a. Were [P] and [Ds] in a relationship of trust and confidence, and if so, did [Ds] owe to [P] a duty to disclose all matters which might affect [P’s] decision to offer his benevolent personal and financial contributions to the Campaign, as pleaded in [RRRA-SOC] §§27A-E, 28A, 48A; and/or

b. Where [Ds] perceived that [P] was laboring under a mistake as to some essential matters, were [Ds] under a duty to undeceive [P] if [Ds’] omission to do so would foster or perpetrate the mistake, as pleaded in [RRRA-SOC] §§27A-D and F, 28A and 48A?

c. If so, did [Ds] breach the above duties, and were these breaches fraudulent and deliberate in the manner as pleaded in [RRRA-SOC] §§30A and 51?

d. Do [Ds] have any defence(s), including limitation based on s.4(1) and 26(1) of the Limitation Ordinance (as pleaded in D1-3,5 RRAD and D4 RRAD §53), given that [P’s] case is based upon fraud and deliberate concealment which he did not discover until July 2014 ([RRRA-SOC] §§46-48) while [Ds’] case is that [P] had knowledge all along based on events from 2003 onwards (D1-3,5 RRAD and D4 RRAD §§33, 53)?

C. Relief

7. If a cause of action above is made out against the [Ds] as per sections A and/or B above, what relief should [P] be entitled to? In particular, is [P] entitled to any of the reliefs pleaded in [RRRA-SOC] §§53-56 and prayers (4) to (9) against any of the [Ds]?

In relation to [D1] only

8. Was an agreement reached between [P] and [D1] in October 2002 (i.e., the October 2002 Agreement pleaded in [RRRA-SOC] §30B)?

9. Was an agreement reached between [P] and [D1] in December 2006 (i.e., the December 2006 Agreement pleaded in [RRRA-SOC] §30C)?

10. Was there a common understanding or common assumption between [P] and [D1] in the form of an assumed contract (i.e., the Assumed Contract pleaded in [RRRA-SOC] §30D), or alternatively, is [D1] estopped from denying or disputing the existence of the Assumed Contract [[RRRA-SOC] §32A]?

11. Was there an implied term in the October 2002 Agreement, the December 2006 Agreement and/or the Assumed Contract that, insofar as [D1] had used, procured, caused, authorized, permitted or suffered the use of the Name and/or the Insignia by entities other than the Hong Kong Schools and the Macau School without the prior joint approval or the consent of the Guangzhou School, the Hong Kong Schools and the Macau School, [D1] would forthwith put an end to such use (i.e., the implied term pleaded in [RRRA-SOC] §30E)?

12. Were any of the abovementioned agreements breached?

13. Does [D1] have any defence(s), including limitation based on s.4(1) and 26(1) of the Limitation Ordinance (as pleaded in D1-3,5 RRAD §53), given that [P’s] case is based upon fraud and deliberate concealment which he did not discover until July 2014 ([RRRA-SOC] §§44-48) while [D1’s] case is that [P] had knowledge all along based on events from 2003 onwards (D1-3,5 RRAD §§33, 53)?

14. What relief should [P] be entitled to?”

98.  I should however add that those agreed issues under Parts B and C against all Ds should be read and understood in the light of Mr Edward Chan’s clarifications of P’s claim as recorded above.

G.  The witnesses

99.  P has filed one witness statement (“P/WS”). He testified, adopted P/WS as his evidence in chief, and was cross-examined by Mr Abraham Chan and Ms Chow.

100.  In respect of D1 to D4:

(a)  D1 has filed a witness statement of Mr Ho Kang Wai Eddie (“Ho/WS”). D2 to D4 have also each filed a witness statement (“D2/WS” and “D3/WS”, and D4/WS mentioned above);

(b)  As I have recorded above, none of Ds in the end testified or called any witness;

(c)  I ignore Ho/WS, D2/WS, D3/WS and D4/WS.

H.  Credibility and reliability

H.1.  The legal approach

101.  On the approach in assessing credibility and reliability, I have been cited Leung Chin Sing Rabo v Ko Chun Hay Kelvin [2021] HKCFI 2242 at §41, Lee Fu Wing v Yan Po Ting Paul [2009] 5 HKLRD 513 at §52 and Yip Chi Keung v Ming Tai Construction Engineering Co Ltd [2022] HKCFI 543 at §21. They are not controversial.

102.  A number of cases relevant to the proof of fraud have been cited to this Court. They include:

(a)  Re H (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563, wherein Lord Nicholls of Birkenhead at 586D-G observed that:

“ The balance of probability standard means that a court is satisfied an event occurred if the court considers that, on the evidence, the occurrence of the event was more likely than not. When assessing the probabilities the court will have in mind as a factor, to whatever extent is appropriate in the particular case, that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability. Fraud is usually less likely than negligence … Built into the preponderance of probability standard is a generous degree of flexibility in respect of the seriousness of the allegation.

  Although the result is much the same, this does not mean that where a serious allegation is in issue the standard of proof required is higher. It means only that the inherent probability or improbability of an event is itself a matter to be taken into account when weighing the probabilities and deciding whether, on balance, the event occurred. The more improbable the event, the stronger must be the evidence that it did occur before, on the balance of probability, its occurrence will be established.”

(b)  Peconic Industrial Development Ltd v Yu Ka Hong Paul [2006] 4 HKC 406, wherein Cheung JA at §33 adopted the judgment of Lord Millett in Three Rivers District Council & Ors v Bank of England (No 3) [2003] 2 AC 1 at 292, that:

“… an allegation of fraud or dishonesty must be sufficiently particularised, and that particulars of facts which are consistent with honesty are not sufficient. This is only partly a matter of pleading. It is also a matter of substance. As I have said, the defendant is entitled to know the case he has to meet. But since dishonesty is usually a matter of inference from primary facts, this involves knowing not only that he is alleged to have acted dishonestly, but also the primary facts which will be relied upon at trial to justify the inference. At trial the court will not normally allow proof of primary facts which have not been pleaded, and will not do so in a case of fraud. It is not open to the court to infer dishonesty from facts which have not been pleaded, or from facts which have been pleaded but are consistent with honesty. There must be some fact which tilts the balance and justifies an inference of dishonesty, and this fact must be both pleaded and proved.”

(c)  In Birmingham City Council v Jones [2024] AC 168, Lord Lloyd-Jones JSC, having considered the notion of the “heightened civil standard of proof” with reference to a number authorities (including Re H), concluded at §51 as follows:

“I pause at this point to take stock of these developments.

(1) It is now established that there is only one civil standard of proof at common law and that is proof on the balance of probabilities.

(2) Nevertheless, the inherent improbability of an event having occurred will, as a matter of common sense, be a relevant factor when deciding whether it did in fact occur. As a result, proof of an improbable event may require more cogent evidence than might otherwise be required.

(3) However, the seriousness of an allegation, or of the consequences which would follow for a defendant if an allegation is proved, does not necessarily affect the likelihood of its being true. As a result, there cannot be a general rule that the seriousness of an allegation or of the consequences of upholding an allegation justifies a requirement of more cogent evidence where the civil standard is applied.”

(d)  SFC v Wang Jian Hua (HCMP 745/2013, 29 October 2015), wherein G Lam J (as he then was), with reference to Nina Kung v Wang Din Shin (2005) 8 HKCFAR 387, observed at §§49-52, inter alia, that:

“50. First, although the civil standard of proof applies, ‘such standard is to be applied flexibly, factoring in the inherently greater improbability of serious misconduct as compared with lesser forms of misconduct, and therefore requiring the person bearing the burden of proving the allegation to prove it with evidence of a commensurate cogency’ (Nina Kung at §182) …

51. Secondly, where the court is invited to reach a conclusion of wrongdoing as an inference to be drawn on the basis of circumstantial evidence, ‘any such inference must be properly grounded in the primary facts found. The court guards against indulging in conjecture under the guise of drawing an inference where the primary evidence does not logically and reasonably justify the particular inference in question’ (Nina Kung at §185).

52. Thirdly, where the court is asked to find by inference fraud or serious misconduct, such inferences are to be drawn only where they are compelling, sufficient to overcome the inherent improbability that such conduct had occurred. The conclusion has to be ‘plainly established as a matter of inference from proved facts’ (Nina Kung at §§186-187; HKSAR v Lee Ming Tee (2003) 6 HKCFAR 336 at §72) …”

H.2.  Findings on P’s credibility and reliability

103.  I have considered the totality of the evidence. I have done so in the round. For the following main reasons[40], I do not find P to be a credible or reliable witness:

(a)  P is clearly and admittedly passionate towards matters relating to Pui Ching. The passion is particularly vehement over the Campaign. It verges on being obsessive. To achieve what he sought, he resorted to the media. He also resorted to legal proceedings. He has started multiple ones for the cause, including one against the Secretary for Education, and one against the Chief Secretary. Both were dismissed. Another one was HCA 1619/2014 which I have mentioned above, one which he withdrew in the middle of the trial with indemnity costs. His counsel accept that “P is no doubt a person of character with dogged determination”[41] (original emphasis), and that the “above attributes underlie the great sense of grievance P suffered from the conduct of Ds, and explains the zealousness with which he had pursued litigation against them”[42]. P himself during cross-examination accepted and agreed to the suggestion put to him that “your approach to the present action, 1481, is very much in line with the approach that you described for the two passages[43] that I have taken you to, relentless, zealous pursuit, regardless of whether it’s legally proper to do so and that's just another option, in addition to media, of pursuing your complaints”;

(b)  It is inherently probable that P’s recollection, perception, and interpretation of events, particularly those that happened years ago, would have been coloured by his passion, subjective sense of grievance, and zealousness in the pursuit of the cause. Indeed, towards the end of Mr Abraham Chan’s cross-examination, P agreed to the suggestion put to him that his strong feelings in the matters could distort his better judgment;

(c)  There are also specific material aspects of his evidence which are inherently improbable, and bear adversely upon his credibility and reliability;

(d)  One of such aspects concerns the affirmation of HHW[44] (the “HHW Affirmation”):

(i)  In respect of the HHW Affirmation, I deal with first of all Mr Edward Chan’s objection made for the first time in the course of his oral closing, that Ds were not entitled to rely on the same on the basis that it has not been pleaded;

(ii)  I do not accept those objections. I refer to the main paragraph of the respective §33 of D1-3, 5 RRAD and D4 RRAD[45]. I am of the view that the HHW Affirmation is evidence in relation to that plea. The HHW Affirmation was disclosed by P himself. No objection was raised when P was cross-examined on it. I accept the applicability of the following passage from §18/12/24 of Hong Kong Civil Procedure 2024 which Mr Yip for D1 to D3 highlighted to this Court[46], that:

“Where knowledge is pleaded as a fact, particulars of the facts on which a party relies in support of such allegation may, but need not, be contained in the pleading itself, but such particulars should be given on request or the court may order them to be given”.

I accept also Ms Chow’s submissions that the objection was in any event made far too late, and had the prejudicial effect of depriving Ds of any chance to seek any necessary amendment;

(iii)  The HHW Affirmation is dated 11 December 2003. It was filed in the Hong Kong Proceedings;

(iv)  Therein, HHW explained the background leading to the incorporation of PCENL. He said in particular at §§4 to 6 that, inter alia:

“4. Now I explain the background of the incorporation of [D3] in the name of [PCENL] … on 26^th April 2000. The Baptist Convention of Hong Kong runs 3 major educational institutions in name of ‘Pui Ching（培正）’ in Hong Kong. They are Pui Ching Middle School, Pui Ching Primary School and Pui Ching Education Centre.[47] …

5. Pui Ching Education Centre is the major organization in Hong Kong for training primary and secondary school teachers in computer education. Over the years, they have accumulated a lot of know how and experience in education through electronic media. They have also developed a lot of good education softwares which I verily believe are commercially marketable.

6. In early 2000, I met Mr. Yang Kwok Hung, the superintendent of Pui Ching Middle School in a restaurant of the Hong Kong Baptist University. I suggested to him that Pui Ching Middle School should form a company in order to commercially take advantage of Pui Ching Education Centre's know how and experience in education through electronic media. The money earned by the company could then be used for the renewal, repair, maintenance and improvement of their computing equipment of Pui Ching Middle School …”

(v)  P claimed originally that he was only told about it in 2006, and had never seen it. He said that he wanted very much to read it, but that as he only had limited time, that as D1 was the client in that case, the lawyers (being Messrs. Mayer Brown JSM) would only have shown it to D1, and that he trusted that the lawyers would deal with it;

(vi)  But according to a bill issued by Messrs. Mayer Brown JSM dated 12 February 2004:

(1)  P was named as the client;

(2)  Part of the work charged for 16 December 2003 was “Considering a fax to you attaching the affirmation filed by Ho Hau Wong in response to the Plaintiffs’ Summons”[48];

(vii)  Further, P himself referred to the HHW Affirmation in his witness statement dated 10 May 2006 filed in the Hong King Proceedings[49];

(viii)  Despite the above, P maintained even during re-examination that he only saw the HHW Affirmation after 2014;

(ix)  In any event, given P’s keen interest in the Campaign, and the nature and purpose of the Hong Kong Proceedings, I find it inherently most unlikely that P would not have asked to be shown a copy of the same and have the contents explained to him;

(x)  I find his evidence in this material regard not credible;

(e)  In respect of the allegation of concealment:

(i)  In §170.6 of P/WS, P says that:

“I further refer to [Ds’] non-disclosure and/or deliberate concealment of the existence of the Academy and/or the [Pui Ching] Education Centres and/or PCECL and/or PCENL and the unauthorized and improper use of the Name and/or the Insignia by the Academy, the [Pui Ching] Education Centres, PCECL and PCENL, and BCHK (D1)’s and Mr. Young (D5)’s non-disclosure and/or deliberate concealment of their involvement in or knowledge of the incorporation of PCENL in each of the events as pleaded in paragraph 30 of the RRASOC.”

(ii)  His allegations are contradicted by contemporaneous documents and conduct. In particular:

(1)  According to the School Magazines adduced, each issued since 20 December 2003 and 3 July 2004 contained a dedicated section bearing the heading “Pui Ching Education Centre”[50];

(2)  In Newsletter 164 of the HKPCAAL issued in 2005, there was an article entitled “香港培正小學重禮堂計劃簡介”[51], which stated that “七樓以上為培正教育中心校舍”;

(3)  In Newsletter 166 issued in 2006, there was an open letter of November 2006 co-signed by D2, wherein it was stated that “七樓以下為可容納約千人之大禮堂和小學擴充部份，而八樓以上為培正教育中心”[52]. The document seeking donations also made specific reference to “培正教育中心”[53];

(4)  The redevelopment project was reported in the media – see the news article on Ming Pao of 14 December 2007 which had the heading “培正擬發展基督教私立大學”[54], and the special issues published by Ming Pao and Ta Kung Pao[55];

(5)  P himself was an officiating guest at the founding ceremony in 2007, and the roof-levelling ceremony in 2009;

(iii)  With the above, P clearly could not deny contemporaneous knowledge of the Academy (or the institution it was previously known). He then during cross-examination claimed that he was not aware of their nature, claiming variably that he did not know that Pui Ching Education Centre was a school, that he thought it was a group “好似音樂中心、呢個童軍中心呢啲咁嘅活動嘅小組”, that “冇話明、冇介紹嗰個教育中心係一個學校、學術機構，而唔係一個學術小組”, that “教育中心究竟係一個小組、興趣小組抑或係一間學校我唔知”, that he did not know who founded it, and that he did not know that it did not have any traceable lineage. Given all the publications mentioned above, I find P’s denial of knowledge incredible. In any event, I find it inherently most incredible that he would not have asked or checked;

(f)  The 28/2/2002 Schools Meeting and the 28/2/2002 HKPCAAL Meeting:

(i)  I have mentioned that the meetings on 28 February 2003 are of significance to P’s case. I have also mentioned that according to P’s case, there were in fact 2 meetings that day. The important one was the one said to be convened by the HKPCAAL. At §§59 to 61 of P/WS, P says as follows:

“59. On 28 February 2002, the Hong Kong Pui Ching Schools and the Macau Pui Ching School (both of which comprises representatives of BCHK (D1)) and the Guangzhou Pui Ching School (which took the leading role among the Pui Ching Family in Mainland) 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”).

60. Side by side with the aforementioned meeting, on the same day of 28 February 2002, the HKPCAAL convened a meeting at the Primary School. A copy of a report for the meeting, i.e., 培正中英文校名、校徽商標注册風波意見交流會can be found at PLOD#74[56]. I also rely on the transcript of the meeting at PLOD#92[57], and the guest book for the meeting at PLOD#l21[58], which clearly shows that the attendants of this meeting included Mr. Ho (D2), Mr. Chan (D4) and the late Mr. Ho Hin Hung (the then Acting Supervisor of the Hong Kong Pui Ching Schools) as representatives of BCHK (D1) and the management committees of the Hong Kong Pui Ching Schools and the Macau Pui Ching School.

61. At the end of the meeting, the following consensus was reached (the “Common Objectives”):

61.1 The Guangzhou Pui Ching School would take action to recover the right of the trademark registration of the Name and Insignia in the Mainland.

61.2 The Hong Kong Pui Ching Schools and the Macau Pui Ching School were inextricably associated with the Guangzhou Pui Ching 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.

61.3 The Pui Ching Family 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 other members of the Pui Ching Family) to seek, approve and regulate all future applications for permission to use 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.

61.4 Foundation Co should change its name to avoid confusion that it was related to the Pui Ching Family.”

(ii)  To start with, according to the 28/2/2002 Meeting Guest Book, P in fact did not attend the meetings. His original pleaded case that he was one of the attendants has been amended[59];

(iii)  The 28/2/2002 Meeting Transcript does not support any consensus in terms of the Common Objectives as pleaded having been reached. In particular, there was no recorded consensus on the alleged joint ownership of the Name and Insignia;

(iv)  According to the 28/2/2002 Meeting Report, only the following consensus (共識) was recorded to have been reached:

“(1) 校名、校徽商標註冊事：支持廣州東山母校向商標局申請撤消培正商學院校名、校徽註冊權，取還培正中英文校名及校徽註冊權；希望花都培正商學院，在商標局判還前，盡速與東山培正母校協商解決。穗港澳三地母校同淵同源，港澳母校校董會盡速與東山母校校政管理層交流共商機制，設定以「培正」為校名開辦使用標準資格及辦學原則； 會同其他培正機構對所有將來申請以「培正」為校名者，實行審核監管以防校名被濫用。

(2) 「培正敎育基金有限公司」名稱事：要求該機構易名，避免使各地培正校內外人士產生混淆。”

(g)  In the retainer agreement between D1, P and JSM and signed by P on 23 June 2003 (the “Retainer”)[60], there was no reference to the Common Objectives, nor any agreement, nor any intimation that P’s performance of the same would be conditional upon the Common Objectives or D1’s compliance thereof. I find this inherently improbable if the Representations had been made and relied upon by P as alleged.

104.  Unless supported by undisputed facts or contemporaneous documents, I am not able to rely on P’s evidence.

I.  Adverse inference

105.  As I have mentioned above, none of the Ds testified or called any witness.

106.  Mr Edward Chan has made extensive submissions on the topic of inference. He submits that Ds’ “conspicuous absence would unleash upon themselves the full force of the adverse inference principle”[61]. A number of authorities have been referred to. I will now consider them.

107.  Mr Edward Chan submits that Ds’ decision to call no witness “effectively lowers P’s burden of proof”[62].

108.  I do not accept those submissions, and in particular not in that sweeping form without delineation as to what the word “effectively” means.

109.  Mr Edward Chan relies on a number of authorities, as follows:

(a)  Gibbs v Rea [1998] AC 786:

(i)  Having summarised the facts, Mr Edward Chan submits that:

“The Privy Council found that the plaintiffs had made a ‘circumstantial case’ which ‘called for an answer’ (at 800E). For such purposes, ‘slight evidence will suffice to require an answer from the defendant’ (800E-F). The election to give no evidence allows the Court to draw the inference that ‘there was no satisfactory answer’ and found the plaintiff’s claim proved (at 800G-801B).”[63]

(ii)  With respect, deconstructing the advice of the Privy Council and re-constructing it in the above manner may not convey the full and correct meaning of the decision;

(iii)  At 798H-799A, the Privy Council observed that (emphasis added for ease of presentation):-

“It was of course open to the defendants to elect to give no evidence and simply contend that the case against them was not proved. But that course carried with it the risk that should it transpire there was some evidence tending to establish the plaintiff’s case, albeit slender evidence, their silence in circumstances in which they would be expected to answer might convert that evidence into proof.”

(iv)  The underlined words are important. 2 separate points are involved: (1) whether the circumstances of the case are such that the defendants “would be expected to answer”, and (2) the word “might”;

(v)  The facts and relevant circumstances in Gibbs v Rea are hence important for the case to be properly understood. The plaintiff’s cause of action was the tort of malicious procurement of search warrant. The police was the defendant. The threshold for validity of the search warrant was mere reasonable suspicion. The defendants however only denied the plaintiff’s allegations and, apart from producing the informations and warrants, called no evidence. The important considerations were that the plaintiff had to prove a negative case in relation to matters which were within the knowledge of the defendant, and that a person alleging invalidity of a warrant should be entitled to expect answers. It was in those circumstances that the Privy Council made the following observations at 800D to 801A (from which selected phrases were cited in §71.1 of Mr Edward Chan’s written closing, as reproduced above), that:

“ In the absence of any suggestion of possession by the police of information from any other source, the evidence of the absence of any grounds for suspicion having been provided by the plaintiff himself must be accorded weight. When all of the factors mentioned are knitted together they form a circumstantial case of the absence of any grounds upon which a person could reasonably suspect him of trafficking in drugs or benefiting therefrom. Having regard to the consideration that when the plaintiff has to prove a negative in relation to matters which were within the knowledge of the defendant, slight evidence will suffice to require an answer from the defendant, Mr. Rea’s case called for an answer. Moreover a person alleging invalidity, indeed malicious procuring, of a warrant should be entitled to expect to be informed of the grounds for its issue unless there are good reasons for withholding such information. That the defence did not offer any reason or take any step to explain the grounds relied on to secure the warrants is the more surprising considering that, had there been concern that disclosure might prejudice drug investigations, the courts would have ensured all necessary protection by allowing public interest immunity. Any challenge to that could have been dealt with in such a way as to protect the information and its sources.

  The silence of the defence was maintained when some answer was called for. The absence of any answer supports the inference that there was no satisfactory answer and the detective inspector had no sufficient grounds, even though all that were required were grounds reasonably raising suspicion.

  If the detective inspector had no sufficient grounds for suspicion yet satisfied a judge that he did, in light of his subsequent conduct, it can be inferred that he knew the true position at the time. To procure the warrants in that state of mind was to employ the court process for an improper purpose (such as simply a fishing expedition). The further inference of improper purpose similarly called for answer, yet none was given. The further finding of malice therefore also was open to the Court of Appeal.”

(vi)  As shown in Gibbs v Rea, even in the absence of any evidence from the defence, it remains necessary to consider the circumstances of the case to decide what inference, if any, can be drawn;

(vii)  The word “might” highlighted above further clearly suggests the existence of a discretion with the court;

(viii)  P’s claims herein should further be contrasted with that of the plaintiff in Gibbs v Rea. P is not here required to prove any negative case. He has the onus of proving a positive case based essentially on the existence of the Obligations, the Common Objectives, the Representation, deceit, breach of duties, and breach of agreements. Those are also not matters, like whether the issuing authority had any reasonable suspicion to support the issue of a search warrant, which are exclusively within Ds’ knowledge. These are all part of the relevant circumstances to be taken into account when deciding whether any adverse inference may be drawn;

(b)  British Railways Board v Herrington [1972] AC 877:

(i)  The facts and issues in that case again should be appreciated;

(ii)  The facts, as summarised in the headnotes, are as follows:

“The defendants owned an electrified line which was fenced off from a meadow where children lawfully played. In 1965 the fence had been in a dilapidated condition there for several months and through it people took a short cut across the line. The defendants’ station master, who was responsible for that stretch of line, was notified in April 1965 that children had been seen on it, but the fence was not repaired. On June 7, 1965, the plaintiff, then aged six, trespassed over the broken fence from the meadow where he had been playing and was injured on the live rail. He brought an action claiming damages for negligence …”

(iii)  On those facts, Lord Diplock observed at p.930 F-G that:

“If the facts as to the use of the meadow and the condition of the fence which I have just recited were known to those responsible for running the railway, I believe that anyone endowed with common humanity would say that the common law ought to afford to the injured child a legal right to compensation against the railway authorities; and that if it did not there was something wrong with the common law.”

(iv)  In was in the above context, and in respect of the defendants’ staff’s state of knowledge of the use of the meadow and the disrepair of the fence, that Lord Diplock made the following observations (which Mr Edward Chan relies upon at §71.2 of his written closing):

“The appellants, who are a public corporation, elected to call no witnesses, thus depriving the court of any positive evidence as to whether the condition of the fence and the adjacent terrain had been noticed by any particular servant of theirs or as to what he or any other of their servants either thought or did about it. This is a legitimate tactical move under our adversarial system of litigation. But a defendant who adopts it cannot complain if the court draws from the facts which have been disclosed all reasonable inferences as to what are the facts which the defendant has chosen to withhold.”

and drew inferences adverse to the defendants in the following sense:

“A court may take judicial notice that railway lines are regularly patrolled by linesmen and gangers. In the absence of evidence to the contrary, it is entitled to infer that one or more of them in the course of several weeks noticed what was plain for all to see. Anyone of common sense would realise the danger that the state of the fence so close to the live rail created for little children coming to the meadow to play. As the appellants elected to call none of the persons who patrolled the line there is nothing to rebut the inference that they did not lack the common sense to realise the danger. A court is accordingly entitled to infer from the inaction of the appellants that one or more of their employees decided to allow the risk to continue of some child crossing the boundary and being injured or killed by the live rail rather than to incur the trivial trouble and expense of repairing the gap in the fence.”

(c)  Chapman v Copeland (1966) 110 SJ 569:

(i)  With reference to this case, Mr Edward Chan submits[64] that:

“Regardless of the fact that the plaintiff’s evidence was rather weak, the Court of Appeal allowed the claim based on, inter alia, the fact that the defendant’s failure to give evidence justified the inference that he was at fault.”

(ii)  The facts and the circumstances are again of vital importance. The context was a fatal traffic accident. The driver involved was sued by the widow of the victim. The driver/defendant failed to tell the court his side of the story. The following observations from Lord Denning are important:

“… it was often stated that it was hard that people run down by motor cars had to prove fault; but that was the law. On the other hand, when a man was killed on the road like this, the inference was plain that one or other or both were to blame. When the widow could not, as here, call evidence, it was incumbent on the defendant, if he sought to escape liability, to give his side of the case. The very fact that a man had been killed in an accident called for an answer. No answer was given by this defendant; and on the slender evidence that there was on the length of the brake marks the inference was sufficient for the court's purposes. If the defendant had been going at a reasonable pace and keeping a good look-out, surely he would have seen the deceased waiting to cross, made allowances, and pulled up in time to avoid an accident. On the question whether the deceased was in part at fault, if the driver alleged that the deceased was contributorily negligent, it was for him to prove it; and again he had not done so. In the absence of evidence by the one person who could tell the court, his lordship was not disposed to infer, any more than the judge had been, that the deceased was at fault.”

(d)  Benham Ltd v Kythira Investments Ltd [2003] EWCA Civ 1794 and Wisniewski v Central Manchester Health Authority [1987] PIQR P324:

(i)  Mr Edward Chan refers[65] to Benham Ltd wherein Simon Brown LJ at §26 adopted Brooke LJ’s observations in Wisniewski;

(ii)  Mr Edward Chan relies further on Simon Brown LJ’s observations at §30, that:

“the only issue then is whether the claimant has established his claim on the balance of probabilities. But it must be recognised that he may have done so by establishing no more than a weak prima facie case which has then been strengthened to the necessary standard of proof by the adverse inferences to be drawn from the defendant’s election. Such adverse inferences can in other words tip the balance of probability in the claimant’s favour.”

(iii)  The Wisniewski principles, and the above-cited passage from Benham Ltd, should however be understood with reference to a number of local decisions (2 from our own Court of Appeal) that Mr Abraham Chan and Ms Chow refer this Court to. I turn to them.

110.  Mr Abraham Chan and Ms Chow have cited to me Tjang Siu Thu v Profield Construction Engineering Ltd [2015] 5 HKC 22, Mohammad Rafiq v Kin Hong Transportation Co Ltd [2023] HKCA 185 and Moorthy Selvaraj v Karupayee Ammal [2024] HKCFI 403:

(a)  Tjang Siu Thu:

(i)  It is a decision of the Court of Appeal;

(ii)  Therein, both the Wisniewski principles and the above-cited passage from Benham Ltd which Mr Edward Chan relies on were considered;

(iii)  At §§31 to 34, and 36, McWalters JA summarised the Wisniewski principles, and observed, inter alia, as follows:

“31. In Pacific Electric Wire & Cable Co Ltd v Texan Management Ltd [2013] HKCU 2163, CACV 90, 91, 93, 94, 95 and 96/2012, unreported, 17 September 2013 this court referred to the Wisniewski principles. At paragraph 107 the court quoted a commentary on the principles by Lord Sumption in Prest v Petrodel Resources Ltd [2013] UKSC 34 at para 44 where he said:

‘There must be a reasonable basis for some hypothesis in the evidence or the inherent probabilities, before a court can draw useful inferences from a party’s failure to rebut it.’

32. At para 111 of its judgment the Court of Appeal relied on this statement in rejecting a contention by the defendants that an adverse inference should be drawn against the plaintiff.

33. The following propositions can be derived from the case law:

(i) the Wisniewski principles do not constitute a presumption; consequently, the mere failure of a party to call a witness does not automatically confer an evidential benefit on the opposing party;

(ii) the Wisniewski principles concern the drawing of inferences and whether any inference is drawn will depend upon the quality of the primary facts on which the inference is based; this is necessarily a fact sensitive matter and will vary from case to case;

(iii) the primary facts must allow of the inference to be drawn in the sense that the inference logically flows from those facts;

(iv) in the circumstances of the case the judge must be persuaded that it is appropriate to draw the inference; and

(v) one circumstance where it will not be appropriate to draw the inference is where there is an explanation for the party’s failure to call the witness.

34. One of the relevant circumstances in the present case is that the judge was dealing with a bare assertion from a plaintiff whom he regarded as totally unreliable as a witness and who was prone to exaggerating the seriousness of her medical condition. This is an assessment of the witness that the judge was perfectly entitled to make and his assessment that the plaintiff was lacking in credibility and that he could not rely on her was not challenged on appeal. Put simply, the witness who was the source of the assertion was not capable of belief.

…

36. Thus, the Master was faced with a bare assertion made by an unreliable witness supported by explanations which were inherently incredible and contradicted by the plaintiff’s own conduct. These are all circumstances relevant to whether any adverse inference should be drawn against the defendant. Mr Lim seeks to make use of the Wisniewski principles to transform an unbelievable witness making an unbelievable claim into a proven claim. The Wisniewski principles were never intended to be used in this way. The Master was entitled to decide that in the light of these circumstances it was not a proper case for the drawing of an adverse inference …”

(b)  Mohammad Rafiq:

(i)  It is another decision of the Court of Appeal;

(ii)  At §21, G Lam JA observed as follows:

“… the drawing of adverse inference is not an automatic exercise. There is no presumption for an adverse inference to be drawn from the mere absence of a witness or documents: Tjang Siu Thu … Whether an adverse inference should be drawn in a particular case is a matter of discretion for the trial judge based on all the relevant circumstances of the case including the quality of the other evidence. The grounds for appellate interference with such a decision are limited.”

(c)  Moorthy Selvaraj:

In that case, Harris J applied Mohammad Rafiq and observed at §20 as follows:

“The next matter that I need to address concerns how facts, which are not recorded in documents or independently verified are proved concerns the drawing of inferences from a defendant not giving evidence. Mr Chan argued that, to use his term, ‘all adverse inferences’ should be drawn from the 5^th Defendant’s failure to give evidence. This suggests that the Plaintiff’s evidence is made more compelling simply by virtue of the 5^th Defendant choosing not to give evidence disputing the facts alleged by the Plaintiff. This seems to me plainly to be wrong. A defendant’s election alone to make a no case to answer submissions and, in Hong Kong, the consequential election not to call evidence, is equally consistent with the defendant taking the view that the plaintiff’s case is so weak that there is no need to give evidence. There is no presumption that an adverse inference is to be drawn from a defendant’s decision not to call a witness. There must be a case to answer before an inference can be drawn from a defendant’s decision not to call a witness to rebut it, that the witness’s evidence would not have assisted in answering the prima face case, but even then it does not necessarily follow that such an inference can be drawn. A defendant can proceed on the basis that although a prima facie case was advanced in pleadings and witness statements after cross-examination of the plaintiff’s witnesses it can be demonstrated that the case has not been proved on the balance of probabilities and the defendant need not call any evidence; which will normally result in a no case answer submission being made. What a failure to call a witness cannot do is to transform a plaintiff’s unsatisfactory evidence into satisfactory evidence ...”

111.  I record that Mr Edward Chan has cited Triunion (HK) Cereal & Oil Co Ltd v Apac Investment Holdings Ltd [2022] HKCFI 3326. I have considered it. Recorder Victor Dawes SC in fact did not rely on any adverse inference, as the learned Recorder found that the plaintiff’s unchallenged evidence was sufficient to discharge the plaintiff’s burden of proof. The decision does not change the above.

112.  In my view, all the decisions, including those Mr Edward Chan himself cited, properly read, do not support his sweeping submissions that Ds’ decision to call no witness “effectively lowers P’s burden of proof”. The discretion whether to draw any adverse inference in such a case is a principled one, the exercise of which guided by the principles discussed above, and upon consideration of all the relevant circumstances, including the quality of the other evidence.

113.  With reference to a number of authorities, Mr Edward Chan also submits that adverse inferences could be used to establish even the most serious matters. I highlight the world “could”. With that word highlighted, the submission is not controversial. The question in most cases, however, remains whether all the circumstances of the case, including the quality of the other evidence, justify the drawing of an adverse inference. Previous cases as to how individual courts carried out the assessment and exercised their discretions are at best only of illustrative value. I remind myself of the discussions in Re H, Peconic, Birmingham City Council v Jones, and Wang Jian Hua which I have discussed above. I heed also Lord Brandon’s observations in Popi M [1985] 1 WLR 948 at 955H-956A, which Mr Abraham Chan reminds this Court of, that:

“… the judge is not bound always to make a finding one way or the other with regard to the facts averred by the parties. He has open to him the third alternative of saying that the party on whom the burden of proof lies in relation to any averment made by him has failed to discharge that burden. No judge likes to decide cases on burden of proof if he can legitimately avoid having to do so. There are cases, however, in which, owing to the unsatisfactory state of the evidence or otherwise, deciding on the burden of proof is the only just course for him to take.”

J.  Issue A.1.

114.  I have set out Issue A.1. above. I have also set out or summarised above §§28 and 30 of the RRRA-SOC.

J.1.  The applicable law

115.  All parties accept that the elements of the tort of deceits are those as set out by Cheung JA in Haifa International Finance Co Ltd v Concord Strategic Investments Ltd [2009] 4 HKLRD 29 at §15 (with reference to Winfield & Jolowicz on Tort (17^th ed., 2006) at p.472 para.11-3), that:

“(1) There must be a representation of fact made by words or conduct.

(2) The representation must be made with knowledge that it is or may be false. It must be wilfully false, or at least made in the absence of any genuine belief that it is true.

(3) The representation must be made with the intention that it should be acted upon by the claimant, or by a class of persons which includes the claimant, in the manner which resulted in damage to him.

(4) It must be proved that the claimant has acted upon the false statement.

(5) It must be proved that the claimant suffered damage by so doing.”

116.  Issue A.1. focuses upon the first element.

117.  Relevant to the first element, and in addition to Haifa, parties have referred to and relied on quite a number of further authorities, the principal ones being the following:

(a)  Representations can be express or implied. In Leeds City Council v Barclays Bank Plc [2021] QB 1027, Cockerill J at §51 observed that:

“… virtually all express representations will be by words (though for example one might misrepresent one’s identity by a non-verbal response to a question). However, once one gets beyond express representations the picture becomes cloudy. Implied representations may comprise words, conduct or (quite frequently) a melange of the two. They may do so in circumstances of widely varying factual complexity.”

(b)  In Joytex Development Ltd v Super Homes Ltd [2018] HKCFI 2286, Deputy Judge Alexander Stock SC at §§77(2) and (3), following Yang Dandan v Hong Kong Resort Company Ltd (CACV 247/2015, 9 August 2016, per Kwan JA at §§52-55 and 67-74), recited the objective approach in ascertaining the interpretation of representation, and in deciding whether any implied representation has been made, that:

“(2) Where there is a dispute as to the meaning conveyed, the court interprets the relevant words or conduct. The approach is objective, viewing the communication from the perspective of a reasonable person in the position of the representee. The test is whether: (a) the words or conduct in fact led the representee to believe the alleged false fact; and (b) it was reasonable for the representee to believe it from the words or conduct as he perceived them. In applying the test, the characteristics of the representee, including level of sophistication, are taken into account.

(3) Where an implied representation is alleged, the question is what a reasonable person would have inferred was being impliedly represented by the representor’s words and conduct in their context.”

(c)  The aforesaid objective approach is borne out by other authorities. In Xie Li Xin v Law Ka Yan Thompson [2022] HKCFI 1591, Wilson Chan J at §184 observed (emphasis not reproduced):

“ Representations are not limited to express words. As Toulson J (as he then was) explained in IFE Fund SA v Goldman Sachs International [2006] EWHC 2887 (Comm) at §50:

50. In determining whether there has been an express representation, and to what effect, the court has to consider what a reasonable person would have understood from the words used in the context in which they were used. In determining what, if any, implied representation has been made, the court has to perform a similar task, except that it has to consider what a reasonable person would have inferred was being implicitly represented by the representor’s words and conduct in their context.”

(d)  In UBS AG (London Branch) v Kommunale Wasserwerke Leipzig GMBH [2014] EWHC 3615 (Comm), Males J at §739 recited the summary made by Christopher Clarke J in Raiffeisen Zentralbank Osterreich AG v Royal Bank of Scotland Plc [2010] EWHC 1392 (Comm), [2011] 1 Lloyd’s Rep 123 at inter alia §85, that:

“The essential question is whether in all the circumstances it has been impliedly represented by the defendant that there exists some state of facts different from the truth. In evaluating the effect of what was said a helpful test is whether a reasonable representee would naturally assume that the true state of facts did not exist and that, had it existed, he would in all the circumstances necessarily have been informed of it: Geest plc v. Fyffes Plc [1999] 1 All ER (Comm) 672, at 683 (per Colman J) …”

(e)  The certainty (or lack of it), width and complexity of an alleged implied representation bear upon the assessment as to whether any implied representation has been made. As explained by Picken J in Marme Inversiones 2007 SL v NatWest Markets plc [2019] EWHC 366 (Comm):

“123 Although each of these authorities is necessarily fact-specific, drawing the threads together, a number of principles can be distilled from these authorities:

(1) First, it is possible for a representation to be made expressly or impliedly through words or conduct. For a representation to be implied, silence or mere assumption is not usually enough as there is no general duty of disclosure. It is necessary to view the words or conduct objectively to determine whether an implied representation has been made, although the natural assumptions of the reasonable representee will be helpful in assessing whether an implied representation has been made through the conduct of the representor.

(2) Secondly, whether or not a representation is implied is ultimately a question of fact to be determined in the circumstances of the particular case …

(3) Thirdly, more may be required, in terms of words or conduct, for a representation which is wide in meaning or complex to be implied.

(4) Fourthly, it is less likely that a representation that is vague, uncertain or ambiguous would be objectively understood to have been made from words or conduct.

…

157. Although, as to this, I accept that passive conduct may sometimes be sufficient for the implication of a representation, indeed Mr Quest QC accepted that it is conceptually possible for a representation to be implied from passive conduct such as RBS accepting Marme’s proposals, it seems to me, nonetheless, that the broader and more complex the alleged representations, the more active and specific the conduct must be to give rise to the implication. Put differently, whilst it may be that some representations are legitimately to be implied, it is less obvious that intricate and broad representations such as the EURIBOR Representations should be implied from passive (and necessarily somewhat limited) conduct. In the present case, there is no basis on which it can sensibly be concluded that the EURIBOR Representations were implied. Passivity and assumption such as that contemplated in Geest are simply not, without more, sufficient.”

(f)  An illustration of the above is afforded by Raiffeisen. There, Clarke J was considering the meaning of the phrase “no support” in the context of whether any representation can be implied. He observed and concluded at §111 that:

“The meaning of ‘no support’ is, in any event, unclear. If, as RZB contends, it means that there was no support of any kind it is extremely wide … This elasticity of possible meaning is a factor against regarding the representation that there was ‘no support’ as necessarily implied.”

(g)  A person’s state of mind can be a fact. In Edgington v Fitzmaurice (1885) 29 Ch. D. 459, Bowen LJ observed at 483 that:

“There must be a misstatement of an existing fact: but the state of a mans mind is as much a fact as the state of his digestion. It is true that it is very difficult to prove what the state of a man’s mind at a particular time is, but if it can be ascertained it is as much a fact as anything else. A misrepresentation as to the state of a man's mind is, therefore, a misstatement of fact.”

(h)  On silence, Spencer Bower and Handley: Actionable Misrepresentation (5^th Ed, 2014) explains at §4.21 that (underlying added for ease of presentation):

“A misrepresentation may be made by silence when the representee or another makes a statement which indicates that the representee will remain under a false impression unless something more is said. A hearer who remains silent in that situation may tacitly confirm the representee’s error as truth and become a representor … A person who allows a false statement by a third person to the representee to go uncorrected may also make a misrepresentation.”

The authority in support of the underlined statement is Pilmore v Hood (1838) 132 ER 1042, which is summarised in the footnote[66] as follows:

“… defendant made a misrepresentation to a third person who, to his knowledge, communicated it to the plaintiff, and when the defendant remained silent, this was a misrepresentation to the plaintiff;”

(i)  In Spice Girls Ltd v Aprilia World Service BV [2002] EMLR 27, wherein Morritt VC at §51 set out a number of “well-extablished” principles on misrepresentation, that, inter alia:

“... Second, a representation once made is likely to have continuing effect. So if made for the purpose of an intended transaction it will continue until the transaction is completed or abandoned or the representation ceases to be operative on the mind of the representee … Third, if at a time when it is continuing the representor discovers that the representation was false when made or has become false since he should correct it…”

Morritt VC further made the following observations on the cumulative effects of continuing representations at §63, that:

“Whilst it is necessary to give each episode separate consideration it is also necessary to have regard to their cumulative effect. This is not a case of an isolated representation made at an early stage of ongoing negotiations. It is the case of a series of continuing representations made throughout the two months’ negotiations leading to the Agreement. Later representations gave added force to the earlier ones; earlier representations gave focus to the later ones.”[67]

118.  I have considered the above. I bear them in mind when approaching the facts.

119.  Mr Edward Chan has also set out what he submits to be the applicable legal principles under the heading of “Non-Disclosure When a Duty to Undeceive/Disclose Exists”[68]. I will deal with the relevant law as appropriate when I come to discuss P’s alternative case below. That will be a better place to discuss the law because, as will be made clear below, an issue has arisen as to whether certain of the legal principles are even engaged given the lack of pleading by P.

J.2.  Parties’ cases

120.  Mr Edward Chan summarises P’s case on misrepresentation at §95.1 of his written closing, as follows:

“95.1. Ds had made the express, implied and/or continuing representations as pleaded in [§28 of the RRRA-SOC] (Representations)[69]. Alternatively, the Representations were made by silence for Ds’ failure to correct P’s mistaken belief.”

Specifically in respect of Representation (a), Mr Edward Chan submits that it is proved by contemporaneous documents, and that D either made or participated in the making of this express representation[70]. In respect of Representations (b) to (d), he submits that they were made impliedly. He further submits that all 4 parts of the Representation have been reiterated through the continuous conduct of Ds[71].

121.  The BCHK Parties deny ever making the Representation or continuing representations. Mr Abraham Chan submits that “there was simply no reason for Ds to have made them”[72]. He submits further that given the nature of P’s allegations, and in the light of Re H and Peconic, P is required, on a strict basis, to precisely plead and adduce cogent evidence to substantiate his case. P has failed to.

122.  D4’s position is that he has not make any of the Representations[73].

J.3.  Discussion and analysis

J.3.a. The nature of the Representations

123.  I have set out the Representations above. Factually, their contents are complex. They are composite Representations. They comprise 4 main parts. They embrace and incorporate various notions and concepts. Those notions and concepts include at least:

(a)  joint-ownership of the Name and Insignia by the Guangzhou School, Hong Kong Schools and Macau School;

(b)  “purpose of operating and administering the Hong Kong Schools and Macau School”;

(c)  “personal benefit or commercial profit making” outwith that purpose;

(d)  the concept of “traceable linage”;

(e)  the “Common Objectives”;

(f)  the “spirit of the Campaign”; and

(g)  the “Obligations”, and their performance.

124.  Most of those notions and concepts are themselves composite in nature. They are composite in terms both of acts and concepts. Some of the constituent elements themselves are vague and undefined. In particular:

(a)  In respect the Campaign (and they are not exhaustive):

(i)  The term “Campaign” is defined in §24 of the RRRA-SOC in the context of a resolution alleged to have reached during the 28/2/2002 Schools Meeting;

(ii)  It concerns plans in general terms in the future to do multiple acts, namely:

(1)  to seek recovery of the Name and Insignia; and

(2)  to discuss:

(a)  the right of their use, and

(b)  the management and regulation of their usage;

(iii)  On top of the above, Representation (d) stretches the concept further to the vague and undefined “spirit of the Campaign”, and the honouring of that spirit;

(b)  In respect of the Common Objectives (again not exhaustive):

(i)  They themselves comprise 3 parts;

(ii)  They embrace multiple acts and concepts of the “Alumni support”, “consensus of all attendees” of the 28/2/2002 HKPCAAL Meeting, joint-ownership of the Name and Insignia, and a request that CPCEFL should change name;

(iii)  It again involves an intention to hold future discussion;

(c)  In respect of the Obligations (again not exhaustive):

(i)  They contain alternative limbs of “express and/or implied obligations and/or fiduciary duties”;

(ii)  Part of the alternative limbs are hence by themselves “implied”;

(iii)  The act of assumption of those Obligations by D1 are alleged;

(iv)  The Obligations themselves comprise 4 limbs, with one of the limbs having 3 sub-limbs;

(d)  Permeate through all the above is the concept of traceable lineage, which is itself a vague concept.

125.  Back to P’s claim. He is saying that Representations (b) to (d) were impliedly made. Even in respect of Representation (a), he is not saying that it was made specifically to him. He relies on divers contemporaneous documents most of which he was not the direct recipients.

126.  The width, complexity, vagueness, and the implied nature of the multi-faceted Representations are all important considerations when I come to considered whether they had in fact been impliedly made. I repeat the discussions on law above.

J.3.b.  The evidence

127.  Mr Edward Chan submits that the Representations have been proved. He sets out his analysis of inter alia the evidence at Section IV-C of his written closing. He repeats Sections II-E to II-J of his written closing[74]. He also refers back to §30 of the RRRA-SOC. He submits that (with the bundle references omitted and inserted as footnotes):

“97. … It is clear that the first Representation concerning joint ownership (which flows from the common lineage) is the most important consensus underlying the whole Campaign and such was expressly made. As illustrations of each D’s making of the Representation, emphasis is placed on the following evidence:-

97.1. The [15/8/2005 Joint Statement] against Commercial College et al is particularly important[75]. There, D1 is one of the ‘甲方’ (together with Guangzhou, Hong Kong, and Macau School). By stating that ‘乙方 [Commercial College et al] 未經甲方任何一單位授權’ to use the Name and Insignia, D1 was clearly acknowledging and representing that the Name and Insignia were jointly owned by the Guangzhou School, Hong Kong Schools and Macau School and no other. If Ds had believed otherwise, there was no reason not to make known the error or omission.

97.2. As to D2, D2 had also made numerous representations to the effect that he approved of the ideas of traceable lineage and that the Name was jointly owned by the Guangzhou School, Hong Kong Schools and Macau School[76].

97.3. As to D2 and D3, they signed the Pui Ching Declaration, which reiterated the concept of traceable lineage (同根同源) and affirmed the joint ownership of the Name and Insignia and the commitment to protect and regulate the same[77].

97.4. As to D4, he affirmed the joint ownership[78].

97.5. As to D5, in the meeting on 10.4.2002, he also adopted the concept of traceable lineage (一脈相承的淵源) and said that joint regulation from Guangzhou School, Hong Kong Schools and Macau School were needed to prevent the abuse of the Name from happening again[79]. The clear pre-supposition is that there is joint ownership of the Name based on traceable lineage.

98. The second to fourth Representations were also implicitly made:-

98.1. As made clear in Section II, the context of this case is that Commercial College et al. misused the name and insignia because they did not share the traceable lineage. The Pui Ching Community was hence outraged and launched the Campaign to reclaim the Name and Insignia from someone guilty of their misuse. Discussions about co-ownership and co-regulation of the Name and Insignia were repeatedly held to ensure that a similar incident would not happen again. Within this milieu, Ds entered the scene, expressing alignment with the concept of traceable lineage and joint ownership and regulation in solidarity with the Campaign.

98.2. A reasonable representee, in this context, would naturally infer that by endorsing the idea of traceable lineage and joint ownership, Ds were implicitly asserting that they were righteous parties and they had not, and would not, engage in the wrongful use of the Name and Insignia – the very issue the Campaign sought to rectify. Applying UBS, a representee (such as P) would naturally assume that, had such misconduct existed, he would have been informed of it or at least Ds would not have joined in the campaign at all.

98.3. To put the same point another way, the representation made by Ds, aligning with the concept of traceable lineage and joint ownership, undeniably signifies a commitment against any actions contrary to it and a clear intention to pursue the Common Objectives and conduct themselves accordingly.”

128.  In his written reply[80], Mr Edward Chan “re-emphasise[s]” the context, that there was an uproar in the alumni community, that the Hong Kong Schools, the Macau School and the Guangzhou School came together and presented a united front, such that Ds must have “implicitly stated that they had adhered to the Common Objectives and pledged not to commit similar abuse.” I have also considered his submissions at §§25 to 28.

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…”[81], “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”[82], 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’ ”[83]. 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[84]), 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[85]). 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 resolve the obscurity. It rather raises the question, as Mr Abraham Chan points out[86], 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[87] that those documents rather recorded a variety of views having been expressed, but with no consensus recorded as alleged;

(i)  Mr Edward Chan refers[88] 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 they 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. 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[89]. 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[90], 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.

130.  I do not lose sight of P’s further or alternative case of representation by Ds by silence. That aspect of P’s case is covered by Issue B.6. That needs to be considered before I can come back and reach conclusion on Issue A.1.

K.  Issue B.6.

131.  I have set out Issue B.6(a) to (d) above.

132.  Whilst Issue B.6. has been framed as such, its scope and relevance have to be understood in the light of the clarifications which Mr Edward Chan has made in respect of P’s causes of action, as I have recorded above.

K.1.  Issue B.6.a.

133.  P’s case, as summarised by Mr Edward Chan[91], is that there was a relationship of trust and confidence for the reasons set out in his written closing at §§114-128. In those paragraphs, Mr Edward Chan relies on a joint venture which he submits exists between the parties. §114 encapsulate his written closing, that:

“The existence of a joint venture between the parties to pursue and achieve the Common Objectives is undeniable. This encompasses the Campaign aimed at recovering the Name and Insignia, coupled with the subsequent institution of a mechanism to regulate the usage of the Name and Insignia through the creation of the Working Committee and the Trademark Management Committee (Joint Venture).”

He submits that the Joint Venture is characterised by several pivotal consensuses amongst participants, encapsulating the essence of the Common Objectives, namely, traceable lineage, joint ownership, and joint management. He proceeds to deal with the evidence. He then submits at §128, inter alia, that:

“128. Ad Hoc Fiduciary Relationship: Even if the Court did not accept that joint venture is a settled fiduciary relationship, the relationship of P and Ds clearly meets the criteria of an ad hoc fiduciary relationship:

128.1. Over the years, via P’s participation in Pui Ching’s affairs (including Working Committee and Trademark Management Committee) and his significant donations, P built up extensive relationship of trust and confidence vis-à-vis Ds, especially on the issue of the protection of the Name and Insignia and his decision to donate in relation thereto.

128.2. There also exists significant information and power asymmetry, such that Ds are in a position of ascendency over P …

128.3. P’s reliance on Ds (and those natural persons behind it, i.e., D2-5) to comply with the Obligations, and to inform P that, in fact, D1 had not been acting in accordance with its Obligations, is justified.”

134.  Both Mr Abraham Chan and Ms Chow submit that there was no such relationship of trust and confidence. Mr Abraham Chan in particular stresses further that the concept of Joint Venture has not been pleaded, and P ought not be permitted to run it.

135.  For the following reasons, I answer Issue B.6.a. in the negative.

136.  I have set out the relevant parts of P’s RRRA-SOC above. §§27E and 27F thereof are of particular relevance here. In the former, a “relationship of trust and confidence” is pleaded; in the latter, P pleads a “duty to undeceive”.

137.  Mr Edward Chan accepts that the phrase “joint venture” has not been used in the pleadings, but submits that P has pleaded the material facts which give rise to the fiduciary relationship. Mr Edward Chan also refers to several paragraphs of his written opening and submits that the Joint Venture has been “fairly raised”.

138.  I reiterate the observations of Ma CJ at §21 of Kwok Chin Wing v 21 Holdings Ltd (2013) HKCFAR 663, that:

“It is the pleadings that will define the issues in a trial and dictate the course of proceedings both before and at trial. Where witnesses are involved, it will be the pleaded issues that define the scope of the evidence, and not the other way round. In other words, it will not be acceptable for unpleaded issues to be raised out of the evidence which is to be or has been adduced.”

139.  To the above, I may add that it is the pleadings that will define the issues, but not any opening submissions (even assuming that Mr Edward Chan had ‘fairly raised” the issue in his opening);

140.  Whilst the term “joint venture” has not been pleaded, I accept that the more important question is whether the pleaded facts had given rise to any relationship of trust and confidence.

141.  But if Mr Edward Chan, by the use and reliance of the label “Joint Venture” seeks to add anything to the pleaded facts, he is clearly not entitled to.

142.  To start with, allowing Mr Edward Chan to do so would in effect allowing P to goes beyond the pleaded facts. P ought not be.

143.  Secondly, as Mr Edward Chan himself submits, citing Mr Abraham Chan’s submissions, “joint venture” is not a magic label. As Mr Abraham Chan submits, which I agree, it is not a principle that joint ventures belong to any legally recognised class that specific fiduciary duties flow. Equally, the term “ad hoc fiduciary relationship” is not a legal term which embraces specific fiduciary duties. It is the pleaded facts which are important.

144.  The above are clearly borne out by the following authorities cited by Ms Chow:

(a)  Ross River Ltd v Waveley Commercial Ltd [2013] EWCA Civ 910, per Lloyd LJ at §34, that:

“… although the analogy with a partnership may suggest that fiduciary duties are owed in the context of a joint venture, the phrase ‘joint venture’ is not a term of art either in a business or in a legal context, and each relationship which is described as a joint venture has to be examined on its own facts and terms to see whether it does carry any obligations of a fiduciary nature.”

(b)  John Alexander’s Clubs Pty Ltd v White City Tennis Club Ltd (2010) 241 CLR 1 at §44, with footnotes omitted, that:

“ The expression ‘joint venture’ is no doubt a vague one, capable of a range of applications, but it is often used to bolster a conclusion that a fiduciary relationship exists. The Court of Appeal, however, correctly said:

‘Describing the arrangements as a “joint venture” does not however have any particular legal consequences. The rights and obligations of the parties remain to be determined by examination of the detail of what they have agreed and done.’ ”

(c) Snell’s Equity (34^th ed), §7-006, again with footnotes omitted, that

“  Joint venturers have been held to owe fiduciary duties to one another, but not all joint ventures necessarily involve such duties. While it has been suggested that joint ventures may be ‘inherently fiduciary’ because of their similarity to partnership, the term ‘joint venture’ is a business term ‘which does not have a precise legal meaning’. Indeed, it has been said not even to be a term of art in business. It is unwise for such an ill-defined term to be the trigger for a category of fiduciary relationship. Instead, it is preferable for joint ventures not to be treated as a settled category of fiduciary relationship, but an individual joint venture may appropriately be treated as a fiduciary relationship if, ‘after a meticulous examination of its own facts’, the fiduciary expectation is found to be appropriate, bearing in mind the points made above regarding the appropriateness of that expectation between commercial actors …”

145.  I have considered Chirnside v Fay [2007] 1 NZLR 433. At §113 of his written closing, Mr Edward Chan submits that:

“As noted above, ‘the essence of a joint venture…is that it is an arrangement or understanding between two or more parties that they will work together towards achieving a common objective’ ”.

But that is not the sole test. The issue remains factual. That is clearly borne out by §§52 and 90 of the judgment. In particular, §52 thereof needs to be appreciated in full, in addition to the excerpt extracted by Mr Edward Chan at §92.1.3 of his written closing (which is the part underlined below). The full paragraph is as follows:

“I agree that the relationship between Mr Fay and Mr Chirnside was such as to give rise to fiduciary obligations of loyalty in respect of the property development project in issue. The term ‘joint venture’ can cover many forms of arrangement, not all of which necessarily will give rise to fiduciary obligations. In this case, however, the relationship had advanced considerably beyond mere preliminary discussions of possibilities. Mr Fay and Mr Chirnside not only had discussed, formulated and costed the proposed development, but they had gone some distance in implementing it. They had targeted and approached the prospective key commercial occupant. A conditional contract for the purchase of the Speights site had been negotiated and secured. On the findings of fact of the trial Judge, they had embarked upon a joint enterprise on which they were working together in pursuit of a clear objective. That they had not completed a formal written agreement cannot detract from the mutual commitments to the project that plainly existed. Each had a duty to the other not to act against their joint interest in the project. Mr Chirnside breached that obligation of loyalty and appropriated the project to the exclusion of Mr Fay.”

146.  Relevant also to the above are the following observations from Millett LJ in Bristol and West Building Society v Mothew [1998] Ch 1 at 18A-C, that:

“A fiduciary is someone who has undertaken to act for or on behalf of another in a particular matter in circumstances which give rise to a relationship of trust and confidence. The distinguishing obligation of a fiduciary is the obligation of loyalty. The principal is entitled to the singleminded loyalty of his fiduciary. This core liability has several facets. A fiduciary must act in good faith; he must not make a profit out of his trust; he must not place himself in a position where his duty and his interest may conflict; he may not act for his own benefit or the benefit of a third person without the informed consent of his principal. This is not intended to be an exhaustive list, but it is sufficient to indicate the nature of fiduciary obligations. They are the defining characteristics of the fiduciary. As Dr. Finn pointed out in his classic work Fiduciary Obligations (1977), p. 2, he is not subject to fiduciary obligations because he is a fiduciary; it is because he is subject to them that he is a fiduciary.”

147.  The legal principles relevant to the assumption and imposition of fiduciary duties have been authoritatively explained by Ribeiro PJ in Libertarian Investments Ltd v Hall (2013) 16 HKCFAR 681 at section F. I have attempted to summarise them in §§34 and 36 of Fung Tin Yau v Fung Tin Shing [2020] HKCFI 252, which I will not repeat in full, but just §§34(e) and (f) for ease of reference:

“(e) fiduciary duties arise in two broad, overlapping situations, namely (1) agency, and (2) a relationship of ascendancy or influence by one party over another, or dependence or trust on the part of that other; and

(f) in respect of such ‘relationships of ascendancy’, they have been described ‘power-dependency relationships’ involving a need for ‘the protection of one party against abuse of power by another’. The learned PJ explained further that:

‘67. It is in the context of such "ascendancy" cases that the courts have identified as an essential feature of the fiduciary relationship, an obligation on the fiduciary to exercise discretionary powers in the interests of another, highlighting the vulnerability of that other person to any potential abuse of such powers.

68. In Hospital Products Ltd v United States Surgical Corp, one of the questions was whether the relationship between distributor and supplier was such a "power-dependency" relationship and it was in that context that Mason J stated:

“The critical feature of these relationships is that the fiduciary undertakes or agrees to act for or on behalf of or in the interests of another person in the exercise of a power or discretion which will affect the interests of that other person in a legal or practical sense. The relationship between the parties is therefore one which gives the fiduciary a special opportunity to exercise the power or discretion to the detriment of that other person who is accordingly vulnerable to abuse by the fiduciary of his position. The expressions ‘for’, ‘on behalf of’ and ‘in the interests of’ signify that the fiduciary acts in a ‘representative’ character in the exercise of his responsibility, to adopt an expression used by the Court of Appeal. It is partly because the fiduciary’s exercise of the power or discretion can adversely affect the interests of the person to whom the duty is owed and because the latter is at the mercy of the former that the fiduciary comes under a duty to exercise his power or discretion in the interests of the person to whom it is owed …” ’

69. In Breen v Williams, the Australian High Court considered a doctor/patient relationship one of ascendancy giving rise to fiduciary duties relating to some, but not all, aspects of the relationship.”

148.  In the present case, the facts do not bear out any agency between P and any of the Ds.

149.  Nor has any “ascendancy” cases been made out. P has been a vehemental alumnus. He took active part in the activities which he described as the Campaign. Ds in different capacity were also involved. P made donations towards the cause. Whilst that was so, the focus was the cause. There had been no “relationships of ascendancy”. There was no need for any “protection of one party against abuse of power by another”. There was no vulnerability to abuse. Ds had not been acting in “a representative character in the exercise of [their] responsibility”. In my view, there existed on Ds’ part no fiduciary duties. There was no fiduciary relationship between P and any of the Ds, ad hoc or otherwise. Seeking to adopt the label “joint venture” does not change that.

150.  In my view, P’s case based on the existence of fiduciary duties/trust and confidence/joint venture is far-fetched, and is not made out.

151.  I add that Ds’ decision not to give evidence does not bear on this issue.

K.2.  Issue B.6.b.

152.  I have set out Issue B.6.b. above.

153.  Mr Edward Chan summarises P’s case as follows[92], that:

“- There was a relationship of trust and confidence for the reasons set out in P’s Closing §§114-118.

- The participation of each of Ds in this Joint Venture is identified in P’s Closing §§120-128.

- The duty to undeceive existed …”

154.  In the way as presented by Mr Edward Chan, this issue is connected to Issue B.6.a. discussed immediately above. Those paragraphs of his written closing were equally relied upon by P under Issue B.6.a. Further, I note that in section IV-B of his written closing[93], various authorities are discussed in the context of fiduciaries.

155.  My rejection of any relationship of trust and confidence leads also to Issue B.6.b. being answered in the negative.

156.  I may add the following in relation to any alleged duty to undeceive independent of any fiduciary duties.

157.  Mr Edward Chan relies on New World Development Co Ltd v Sun Hung Kai Securities Ltd (HCA 21961/1998 & 3191/1999, 1 April 2004) and Pacific South (Asia) Holdings Ltd v Million Unity International Ltd [1997] HKLRD 1238. With specific reference to Pacific South, he submits[94] that:

“the Court of Appeal held that a duty to undeceive can also arise when a party knows that the other party acts under a mistaken belief, and the circumstances are such that the mistaken party is entitled to expect the other party to correct them (to put it another way, it would be deemed disgraceful not to correct the mistake).”

158.  It is useful to take a closer look at New World, wherein Pacific South was also discussed.

159.  As recorded by Deputy Judge To[95], New World concerned a 50-50 joint venture to purchase land and to build 2 hotels of 1,000 rooms and a 200 unit apartment block at the city centre of Kuala Lumpur. The case of the 1^st plaintiff (“NW”) against the defendant (“SHKS”) was based primarily on the latter’s silence to the former’s demands. In that context, the learned Deputy Judge observed that:

“119. … The weight of authority is to the effect that silence alone is not enough to support an estoppel by convention. In Moorgate Mercantile Co Ltd and Twitchings [1977] AC 890 at 903A, Lord Wilberforce said:

‘… inaction or silence, by contrast with positive conduct or statement, is colourless: it cannot influence a person to act to his detriment unless it acquires a positive content such that that person is entitled to rely on it. In order that silence or inaction may acquire a positive content it is usually said that there must be a duty to speak or to act in a particular way, owed to the person prejudiced. …’

And in Superhulls Cover [1990] 2 Lloyds Law Report 431, Phillips J (as he then was) said at 452:

‘… a party who has remained silent may be estopped from asserting that the facts are other than those which they were mistakenly assumed to be. But such an estoppel will only arise if the party estopped was under a legal duty to dispel the other party’s misunderstanding.’

Thus on these authorities, silence may be prayed in aid to support the existence of a shared common assumption only if the party who was silent had a legal duty to speak or to act in a particular way.

120. Mr Chan, SC, referred to Pacific South (Asia) Holdings Ltd and Million Unity International Ltd [1997] HKLRD 1238 and submitted that SHKS was under a duty to undeceive if it perceived that NW was labouring under a mistake as to some essential matter. Mr Strachan, QC, argued that such a duty would only be imposed on a person for having deluded another into believing a certain state of affairs. In Pacific South (Asia) Holdings Ltd and Million Unity International Ltd, the vendor’s solicitors led the purchaser’s solicitors into the belief that the vendor would accept payment of a deposit by the purchaser’s personal cheque rather than cash as normally required. The vendor then rescinded the contract on the basis that the purchaser has failed to perform in accordance with the terms of the contract. Godfrey JA (as he then was) took a dim view of the conduct of the vendor’s solicitors and found that they led the purchaser’s solicitor into a trap. He said at 1244:

‘The judge took a dim view of the vendor’s solicitors’ conduct. So do I. They led the purchaser’s solicitors into a trap. Their failure to particularise any grounds for their objection to the tender led the purchaser’s solicitors into thinking that the tender was objected to on the grounds of prematurity. The purchaser’s solicitors so informed the vendor’s solicitors. At this stage, when there was time for the vendor’s solicitors to put the purchaser’s solicitors right upon this point so as to enable the purchaser to make an acceptable tender, the vendor’s solicitors made no attempt to do so. … The purchaser’s solicitors were entitled to expect that the vendor’s solicitors would have corrected them if their belief as to the vendor’s objection to the tender was mistaken.

Where one party to a transaction perceives that the other party is labouring under a mistake as to some essential matter, he comes under an obligation to undeceive the other party if his omission to do so will "foster and perpetuate the delusion" (as it is put in Spencer Bower and Turner, Estoppel by Representation, 3^rd edn., (1977), at para. 59). In such a case silence is in effect a misrepresentation that the facts are indeed as the other party mistakenly believes them to be; and the first party is estopped from asserting otherwise.’

It can be seen from the above dicta that the duty to undeceive does not arise merely when a party perceives that the other party is labouring under a mistake as to some essential matter. Whether the duty arises depends on all the circumstances of the case, the relation between the parties and their conduct. In Pacific South (Asia) Holdings Ltd and Million Unity International Ltd, the duty arose because of the misleading conduct of the vendor’s solicitors in circumstances where it was reasonable to expect they would correct the other’s mistake. It is impossible to lay down rules as to what would give rise to this duty. All depends on the circumstances of the individual case.

121. This duty may arise where the parties are in a contractual relationship as in Pacific South (Asia) Holdings Ltd and Million Unity International Ltd. The duty would most readily arise if the parties are parties to a fiduciary relationship, such as a partnership. Partners owe a fiduciary duty to one another. They have a common interest in the partnership. If one partner has come to the knowledge that the other partner is labouring under a mistake and the mistake is related to some essential matters concerning their partnership, that partner comes under a duty to correct the other partner’s mistake. The other partner would also be entitled to expect him to do so.”

160.  I with respect highlight the underlined part of the above passages. The special facts in Pacific South should be noted. The conveyancing context in which that case was decided should also be noted. According to the fuller passage from Spencer Bower and Turner, which book Godfrey JA referred to[96]:

“Where a person having a title right or claim to property of any kind perceives that another person is innocently, and in ignorance, conducting himself with reference to the property in a manner inconsistent with such title, right, or claim it is the duty of the former to undeceive the other party forthwith; if he omits to do so, and if all the other conditions of a valid estoppel are satisfied, he is precluded from exercising or asserting his right or title or claim …”

161.  As can be seen from the above, the authorities before me do not establish any free-standing duty to undeceive as contended for by Mr Edward Chan.

162.  Back to P’s case. At §130 of his written closing, Mr Edward Chan submits that (emphasis being original):

“Duty to Undeceive: From the interactions between the parties in all the meetings for the Campaign, Ds must have known that P assumed that Ds had complied with the Obligations. Plainly, there is no reason to assume otherwise, and did not correct P’s mistaken beliefs.”

163.  But as I have mentioned above, while alleged breaches of the Obligations, duties to disclose and duties to undeceive have been pleaded, they are not relied upon as any basis for any standalone cause of action sounding in damages, but are principally relied upon in support of P’s pleas based on misrepresentation by conduct (and continuous conduct), and to establish the fraudulent nature of the Representation. Before the existence of the Obligations and any Representation in that regard have been established (in particular Representation (d)), it would be premature for P to say that he had “assumed that Ds had complied with the Obligations”. The circular nature of the submissions is quite apparent.

164.  As I have stated above, in the way as framed by P, my rejection of the existence of any relationship of trust and confidence is sufficient for this Court to dispose of Issue B.6.b. in the negative. In any event, as I will explain further below, I am not satisfied that any of the Ds had intentionally or otherwise concealed the existence and operation of the Academy or Pui Ching Education Centres[97]. In the absence of any fiduciary relationship, nor otherwise any fiduciary duties, nor any contractual relationship, I am not prepared on the state of the law as discussed to hold that any of the Ds had any duty to undeceive.

K.3.  Issues B.6.c. and Issues B.6.d.

165.  In the light of the conclusions reached on Issues B.6.a. and Issues B.6.b. above, Issues B.6.c. and Issues B.6.d. are not engaged. In respect of any limitation issues which otherwise remain relevant, I will consider them under Issue A.5.

L.  Back to Issue A.1.

166.  I now come back to Issue A.1.

167.  I recite the width, complexity, vagueness, and the implied nature of the multi-faceted Representations. I reiterate the words of caution made by Harris J in Moorthy Selvaraj about the care necessary for assessing evidence on events from the distant past (discussed below). I have considered in the round all the circumstances and facts are relied upon by P. For all reasons set out in Sections J and K above, I hold that none of the Ds had, whether by words, or conduct, or through any breach of any duty to disclose, or through any breach of any duty to undeceive, or otherwise, made the Representations to P. There were further no continuing representations.

168.  For completeness, and having considered all the circumstances, I refuse to draw any adverse inference under this issue on the basis of Ds’ decision not to give evidence. The onus always remains on P to prove the positive case that the Representation had been made. Ds’ decisions not to give evidence can be explained by the quality of the evidence P had adduced. D4’s decision not to testify was further explained by his bad health.

M.  Issue A.2.

169.  In the light of my conclusions above, the issue of falsity is not engaged.

N.  Issue A.3.

170.  Again, in the light of my conclusions above, the issue of fraud is not engaged. I will however say this. As pleaded in §49 of the RRRA-SOC, P’s case of fraud is pleaded on the basis that “[Ds] made the Representation fraudulently, well knowing that it was false and untrue or recklessly not caring whether it was true or not …”. On my findings, no Representations had been made. No primary facts of the Representations having been made, or the manner in which they were made, have hence been proved. In the absence of primary facts, any case of fraud based on the drawing of inferences from those facts necessarily fails.

171.  I repeat my observations above in relation to Ds’ decisions not to give evidence.

O.  Issue A.4.

172.  On my findings that there was no Representations and no fraud, there could be no reliance. On the submitted authorities and evidence before me, I will say further the following.

173.  Mr Edward Chan refers to Zurich Insurance Co plc v Hayward [2017] AC 142, wherein Lord Clarke at §33 cited with approval the decision of the High Court of Australia in Gould v Vaggelas (1984) 157 CLR 215, which was a case of deceit, where Wilson J said, at p 236:

“The representation need not be the sole inducement in sustaining the loss. If it plays some part, even if only a minor part, in contributing to the course of action taken a causal connection will exist.”

174.  The above principle is not controversial.

175.  Then, Mr Edward Chan refers further to Zurich at §35 and submits that in cases of fraudulent misrepresentation, there is a presumption in favour of a causative effect of inducement.

176.  Whatever the scope of that “presumption” is, it has no application in the present case. I have found that there was no Representations, and no fraud.

177.  I have on the other hand considered the evidence cited and discussed by Ds. In particular:

(a)  P has been a most vehemental alumnus. He had been actively and keenly involved in the Pui Ching schools. He is the founding and Life Honorary Chairman of the HKPCAAL;

(b)  As P himself has said in P/WS, since the late 1970s, the Alumni, and especially members of the HKPCAAL, had begun to campaign for the resumption of the Name for the Guangzhou School;

(c)  In 1994, their efforts were met with success in the Mainland (see §45 above);

(d)  The activities of Liang and the Three Fake Pui Ching Companies were discovered in about 2000. The Campaign commenced. Various meetings and steps were convened and taken to prevent further passing off. Amongst others, the Hong Kong Proceedings were commenced;

(e)  P had been active, vocal and most enthusiastic in that cause. He in effect spearheaded the Campaign, enlisted D1 to participate, and been a major contributor of the costs involved;

(f)  The contemporaneous records suggest that P’s willingness to contribute was motivated by his love for his alma mater – see for example the minutes of the meeting on 21 May 2003[98];

(g)  As submitted by Mr Abraham Chan, there was no mention of any of the Common Objectives, Obligations or Representations in the minutes of the Working Committee or Trademark Management Committee. That is inherently most improbable if P had indeed been induced by the misrepresentation;

(h)  At §65 of his written closing, Mr Abraham Chan submits that:

“P’s case on ‘inducement’ further flounders against the fact that BCHK is a charity, set up for dissemination of the Christian faith, the advancement of education, and other charitable purposes, and is responsible only for the Primary School and Middle School in Hong Kong. It would be contrary to those objects and parameters – and any practical sense – for BCHK to surrender the use of the Name and Insignia in exchange for funding of a project which did not concern its schools in Hong Kong. P cannot point to any coherent incentive for BCHK to do so. There is even less incentive for D2-D3, who serve in BCHK as volunteers, to deliberately deceive P to fund litigation that would bring them no benefits, monetary or otherwise.”

At §38 of his written reply, Mr Abraham Chan repeats his earlier submissions (and in particular §§65 and 66-71) and submits further that:

“There was no incentive for BCHK to induce P … it was P who decided to spearhead his campaign out of his own free will.”

In my view, those submissions are amply justified by the evidence, and by inherent probability. I accept them;

(i)  I have found that P is not a reliable witness. His evidence on inducement and reliance is also contrary to contemporaneous documents and inherent probability. I reject his evidence in those regards;

(j)  On the evidence, and for those further reasons, I find against P on the issue of inducement.

178.  I repeat my observations above on Ds’ decisions not testify, which equally apply.

179.  For all the above reasons, I answer Issue A.4. in the negative.

P.  Issue A.5.

180.  I have set out Issue A.5. above. It concerns the limitation issues.

181.  On my findings above, the limitation issues are not engaged. On the submitted authorities and evidence before me, I will say further the following.

182.  The law is not in dispute:

(a)  The limitation period applicable to actions founded on simple contract or on tort is 6 years from the date of accrual;

(b)  Mere absence of knowledge does not postpone accrual. As explained by Kwan JA (as the V-P then was) in Hotung Investment (China) Ltd v Ernst & Young (a firm) [2012] 5 HKLRD 421 at §§29-30:

“29. The fact that a plaintiff did not know or could not, even with reasonable diligence, have discovered the essential facts for pleading a cause of action is not, on its own, sufficient to postpone the commencement of the limitation period. Historically, s.26 was enacted to reflect the equitable principle that a statute should not be used as an engine of fraud and ‘deliberate concealment’ was merely a species of fraud (Limitation Periods by Andrew McGee (6^th ed., 2010), paras.20-002 and 20-010).

30. To postpone time under s.26(1), the additional element of fraud, deliberate concealment or mistake must be shown. Further, the postponement of the limitation period is only up to the time when the plaintiff has discovered, or could with reasonable diligence have discovered, the fraud, deliberate concealment or mistake …”

(c)  In Lee Tsan Sum v Wong Pui Hon David [2010] 4 HKLRD 219 at §39(a)-(c), Fok J (as the PJ then was) explained what a plaintiff is required to prove to overcome limitation defences (with citations of cases omitted):

“(a) Concealment within the subsection means a deliberate concealment of relevant facts and the six-year period provided in the section starts to run from the date on which the concealment is discovered …

(b) The burden rests on a plaintiff to establish that there has been a relevant concealment … Similarly, the burden is on a plaintiff to show that he could not have discovered the concealed facts without exceptional measures which he could not reasonably have been expected to take …

(c) A fact relevant to a plaintiff ’s cause of action is an act without which the cause of action would be incomplete. It is not relevant that a defendant may have concealed a fact which, if known, would merely go to strengthen an existing case …”

(d)  The crux of P’s case on limitation is that Ds deliberately concealed the relevant fact that D1 was abusing the Name and Insignia, in that the Academy and the Pui Ching Education Centres did not share the traceable lineage;

(e)  I have found above that there had been no fraud;

(f)  I repeat my discussions above on the HHW Affirmation and on the allegation of concealment. Specifically in relation to the HHW Affirmation, I find that P must have had contemporaneous knowledge of its contents;

(g)  I accept Mr Abraham Chan’s submissions[99] and find on the evidence that P must have known, and could have known with reasonable diligence about the nature of the Academy and Pui Ching Education Centres since not later than 2000, and in any event by 2003 (with reference to the HHW Affirmation). If necessary, I would also find that P must have had those knowledges by latest 2007 (with reference to P’s participation as the officiating guest in the founding ceremony of the New Building);

(h)  In his written reply, Mr Edward Chan submits that there could still be deliberate concealment because the duty owed to P by Ds to disclose was breached. I have found against P in those regards;

(i)  P has failed to discharge the burden on him to overcome the limitation defences.

183.  I reiterate the fact that the Writ herein was only taken out on 1 August 2014.

184.  For the above reasons, I answer Issue A.5. in relation to limitation defences in the affirmative.

Q.  Issue C.7.

185.  For the reasons set out above, I find that P’s claims against Ds based on the misrepresentation or any fraudulent breach of duties all fail. Ds’ limitation defences would in any event also be successful. P is not entitled to any relief under those claims.

R.  Issues 8, 9 and 10

186.  Mr Edward Chan deals with the 3 issues together in Section V of his written closing. I shall do the same.

187.  I have set out the 3 issues above. They concern only D1. I have also set out above P’s pleaded case in relation to them. They concern the existence, and if so the terms, of the October 2002 Agreement, the December 2006 Agreement, and the Assumed Contract.

R.1.  The applicable legal principles

188.  A binding contract can be inferred from the parties’ conduct. In Shanghai Tongji Science & Technology Industrial Co Ltd v Casil Clearing Ltd (2004) 7 HKCFAR 79 at §§36-40:

(a)  Ribeiro PJ explained and observed that:

(i)  In deciding whether a contract should be implied, the court adopts as its starting-point an objective test;

(ii)  The burden of establishing such a contract is on the person asserting its existence;

(iii)  The court will not imply such a contract lightly. The conduct relied on must be unequivocally referable to the contract sought to be inferred.

(b)  The learned PJ cited with approval Mitsui & Co Ltd v Novorossiysk Shipping Co (The Gudermes) [1993] 1 Lloyd’s Rep 311 where Staughton LJ at p.320 put the requirement of unequivocality in the following terms:

“… it is not enough to show that the parties have done something more than, or something different from, what they were already bound to do under obligations owed to others. What they do must be consistent only with there being a new contract implied, and inconsistent with there being no such contract.”

189.  As summarised by G Lam JA in Honour State Ltd v Gorgeous Textile Co Ltd [2022] HKCA 472 at §19:

“… the defendant had to prove, from the conduct of the parties, an agreement whereby the plaintiff, for consideration, accepted and acknowledged the liability asserted by each of the debit notes in question, giving rise to a binding contract between them. As is established by authorities, the court will not imply a contract from conduct lightly. It is necessary that the conduct relied upon is unequivocally referable to the contract contended for, in the sense that it is consistent only with there being the contract sought to be implied and inconsistent with there being no such contract …”

190.  The following observations of Lord Phillips in Shogun Finance Ltd v Hudson [2004] 1 AC 919 at §123[100] help explain why the objective test is only the starting-point (though normally it involves no more than that):

“A contract is normally concluded when an offer made by one party (“the offeror”) is accepted by the party to whom the offer has been made (“the offeree”). Normally the contract is only concluded when the acceptance is communicated by the offeree to the offeror. A contract will not be concluded unless the parties are agreed as to its material terms. There must be ‘consensus ad idem’. Whether the parties have reached agreement on the terms is not determined by evidence of the subjective intention of each party. It is, in large measure, determined by making an objective appraisal of the exchanges between the parties. If an offeree understands an offer in accordance with its natural meaning and accepts it, the offeror cannot be heard to say that he intended the words of his offer to have a different meaning. The contract stands according to the natural meaning of the words used. There is one important exception to this principle. If the offeree knows that the offeror does not intend the terms of the offer to be those that the natural meaning of the words would suggest, he cannot, by purporting to accept the offer, bind the offeror to a contract ... Thus the task of ascertaining whether the parties have reached agreement as to the terms of a contract can involve quite a complex amalgam of the objective and the subjective and involve the application of a principle that bears close comparison with the doctrine of estoppel. Normally, however, the task involves no more than an objective analysis of the words used by the parties. The object of the exercise is to determine what each party intended, or must be deemed to have intended.”

191.  Kwan VP recently in Redland Precast Concrete Products (China) Ltd v Permasteelisa Hong Kong Ltd [2023] HKCA 1278 summarised the applicable approaches as follows (at §§10 and 11):

“10. There was no dispute in the court below (and on appeal) about the law on the relevant principles for inferring a contract from the conduct of the parties and from the existence or issuance of the documents relied on by the plaintiff as evidence of the Pre-bid Agreement. The dispute was about the application of the principles in the present case.

11. The applicable principles may be stated as follows:

(1) The burden of establishing such a contract is on the party asserting its existence.

(2) The court will not imply a contract from conduct lightly. There is an obvious difference between the situation where the court is asked to imply a term where there is already an existing agreement and where the court is asked to imply an agreement from scratch. The latter situation demands a stricter requirement for the implication to be made.

(3) It is not enough to show that the parties have done something more than, or different from, what they were bound to do or intent on doing. It is necessary that the conduct relied upon is unequivocally referable to the contract contended for, in the sense that it is consistent only with there being the contract sought to be implied and inconsistent with there being no such contract. In other words, the party propounding the contract must be able to point to some conduct of the parties which is consistent with, and only with, the contract contended for. This is an objective test.

(4) The general exclusion of evidence of subjective intent is subject to one qualification. There will be no contract if (despite the objective appearance of agreement) the party seeking to rely on the contract either actually knows that the other party has no intention to contract with him (or to contract on the terms alleged), or does not in fact intend to be bound thereby. The party who did not intend to be bound would not be bound if his state of mind was actually known to the other party, as to apply the objective test in this situation would pervert its purpose, which is to protect a party who has relied on the objective appearance of consent from the prejudice he would suffer if the other party could escape liability on the ground that he had no real intention to be bound.”

192.  Additional to the above (and in particular the requirement of unequivocality) is Harris J’s observations in Moorthy Selvaraj at §§10 to 14 on the practical difficulties in proving an oral agreement said to have reached in the distant past. Memories fade. Not only that, even honest witnesses are prone to construct their memory of events to confirm their beliefs, prejudices, or interests. The learned Judge hence observed that:

“13. … although it is open to a party to pursue a claim based on an oral agreement, understanding or a recollection of an event, for which there is little, if any, corroborating documents the party should be informed that proving the claim may be very difficult because of the difficulties I have described in a court choosing between alternative narratives in the absence of contemporaneous records. The court does not have to choose who to believe; if it takes the view that the evidence is unreliable, it can decide the case on the burden of proof …

14. Given the challenge of proving an oral agreement made over 18 years ago it was necessary for careful and precise evidence to be adduced …”

193.  Harris J was therein dealing with a claim based on an alleged oral agreement. Mr Abraham Chan submitted that the learned Judge’s observations are applicable a fortiori in the present case, as we are concerned with alleged inferred and assumed contracts. I agree.

194.  In relation to the Assumed Contract, Mr Edward Chan relies on the concepts of estoppel by convention. He relies in particular on the following observations of Ribeiro PJ in Unruh v Seeberger (2007) 10 HKCFAR 31, wherein the learned PJ, with reference to Amalgamated Investment & Property Co Ltd v Texas Commerce International Bank Ltd [1982] QB 84 and Waltons Stores(Interstate) Ltd v Maher (1987–1988) 164 CLR 387, explained at §§152 to 154, that:

“152. It is clear that, unlike equitable estoppels which create enforceable equitable rights, an estoppel by convention is not a source of legal obligation. However, such an estoppel may, in the circumstances of the particular case, result in an otherwise ineffective or incomplete cause of action being made viable. The doctrine therefore does not play a wholly defensive role in litigation.

153. In the Texas Bank case, Brandon LJ illustrated this by postulating an action by the bank on the guarantee, a plea by Amalgamated in the defence that the indebtedness fell outside the scope of the guarantee and a plea in the reply that Amalgamated was estopped from questioning the parties’ common interpretation of the guarantee. His Lordship continued:

This illustrates what I would regard as the true proposition of law, that, while a party cannot in terms found a cause of action on an estoppel, he may, as a result of being able to rely on an estoppel, succeed on a cause of action on which, without being able to rely on that estoppel, he would necessarily have failed.

154. Brennan J takes a similar view and provides an exposition of the mechanism of the estoppel (which he dealt with in terms of an estoppel in pais):

The effect of an estoppel in pais is not to create a right in one party against the other; it is to establish the state of affairs by reference to which the legal relationship between them is ascertained …

It has been said that estoppel in pais is merely a rule of evidence and not a cause of action (Seton, Liang & Co v Lafone (1887) LR 19 QBD 68; Low v Bouverie [1891] 3 Ch 82; Re Ottos Kopje Diamond Mines, Ltd [1893] 1 Ch 618) but that proposition needs some explanation. If the estoppel relates to the existence of a contract between the parties, the legal relationship between the parties is ascertained by reference to the terms of the contract which has been assumed to exist. If, in the assumed state of affairs, the contract confers a cause of action on the party raising the estoppel, the cause of action may be enforced. The source of legal obligation in that event is the assumed contract; the estoppel is not a source of legal obligation except in the sense that the estoppel compels the party bound to adhere to the assumption that the contract exists.”

R.2.  Discussion

195.  For the following reasons, I find that all 3 heads of P’s contractual claims against D1 fail.

196.  First to be emphasised is this. P is not inviting the Court to imply just a term into an agreement. He is not seeking to establish any oral agreement. He is inviting the Court to imply agreements from scratch from parties’ conduct. The court will not do this lightly. P must be able to point to some conduct of the parties which is consistent only with the October 2002 Agreement, the December 2006 Agreement, and/or the Assumed Contract. The conduct relied upon must be unequivocally referable to those alleged agreements.

197.  On further top, the events which P seeks to rely on took place some 20 years ago. It is necessary for careful and precise evidence to be adduced.

198.  With the above in mind, I come back to P’s pleaded case. I have set out above the §§30B, 30C and 30D of the RRRA-SOC[101]. There are justifications in Mr Abraham Chan’s use the words “a tangled web” when describing P’s case in relation to the October 2002 Agreement[102]. P has not pleaded specifically the legal elements normally required for a legally binding agreement to be concluded. Those paragraphs rather cross-reference a number of other paragraphs of the RRRA-SOC. P pleads the alleged consideration, and what D1 in exchange allegedly accepted, acknowledged, warranted, and agreed not to do. How he claims the contracts were agreed upon, and in particular how it was that there existed any consensus ad idem between the parties, are ambiguous and hardly coherent.

199.  The element of consensus ad idem is of particular significance in the context of P’s claim, when he in the same pleading pleads that he had in fact been deceived by Ds, that there had been non-disclosure and/or deliberate concealment by Ds, and so that he continued to believe in the truthfulness of the false Representation.

200.  Consensus ad idem is quite inconsistent with deception.

201.  I have considered the conduct and documents pleaded by P in support[103]. None of them makes any reference to any of the alleged agreements or contract.

202.  At §54 of his written reply, Mr Edward Chan submits that (emphasis added for ease of presentation):

“D1 Closing, Annex I seem to take the view that if there is no mention of the contract in the documentary record, there can be no contract. This is not the correct approach when the question is whether a contract is inferred by conduct. After all, by definition, a contract by conduct depends on conduct of the parties rather than whether the parties referred to it in correspondence. The Court is invited to consider the matters set out in Section V of P’s Closing and conclude that those conduct is only consistent with the existence of an invisible contract between the parties in the joint pursuit of the Common Objectives.”

203.  I do not accept those submissions. The underlined criticism misses the point. No one can conclude merely from the absence of any documentary reference of an agreement that “there can be no contract”. It is simply that if the alleged agreements had indeed existed, and had been understood by the parties to exist, it would have been inherently most improbable that there would have been no reference to them in any of the divers meetings and documents which P seeks to rely on.

204.  In this regard, I have considered P’s evidence during cross-examination:

(a)  He claimed that “我哋感受到呢個好似係一個無形中有個合約喺度㗎嘞”;

(b)  To start with that was only his subjective feeling, and adds little to the objective assessment of the evidence;

(c)  More importantly, if he had in fact felt that, it would be inherently even more improbable that he had not mentioned it in any of documents or records.

205.  Material also to the present discussion is the Retainer:

(a)  As I have mentioned above, the Retainer made no reference to any agreement;

(b)  Mr Abraham Chan highlights Clause 3 of the Retainer, which provided that:

“The parties herein may terminate this Agreement at anytime by giving notice to other parties in writing only on the condition that such termination will not cause any detrimental consequences to all parties including Guangzhou Pei Zheng Middle School which shall be supported by a legal opinion stating that there are no such detrimental consequences.”

(c)  I accept Mr Abraham Chan’s submissions[104] that the existence of this termination right in fact contradicts and undermines there being any overriding agreement or contract between P and D1.

206.  Further, as has been pointed out, P has clearly and admittedly been passionate towards matters relating to Pui Ching, and in particular over the Campaign. His preparedness and commitment to pay for the relevant donations are far removed from being unequivocally referable to the alleged agreements or contracts.

207.  In that same paragraph of his written reply mention above (§54 thereof), Mr Edward Chan refers to “Section V of P’s Closing”. But, and with respect, in that Section, and more particularly in §§144 to 149 of his written closing, Mr Edward Chan essentially simply repeats and reproduces the relevant paragraphs in P’s RRRA-SOC. I have considered them. Such mere repetition does not add materially to P’s contractual claims against D1.

208.  Specifically in relation to the Assumed Contract, I specifically do not accept that there was any “common understanding or common assumption between [P] and [D1] that there are and were binding commitments on the part of [D1]”, as pleaded in §30D of the RRRA-SOC.

209.  For completeness, I repeat my observations on Ds’ decisions not to testify, which equally apply.

R.3.  Conclusion

210.  For the above reasons, the criteria for inferring the existence of the October 2002 Agreement, the December 2006 Agreement, and the Assumed Contract are not met. The overall evidence do not support their existence.

211.  I dismiss P’s contractual claims against D1.

S.  Issue C.11.

212.  In the light of my findings above, the issue of implied term does not arise. I answer Issue C.11. in the negative.

T.  Issue C.12.

213.  In the light of my findings above, the issue of breach does not arise. I answer Issue C.12. in the negative.

U.  Issue C.13.

214.  I repeat my discussions under Issue A.5. above.

V.  Issue C.14.

215.  P is not entitled to any relief.

W.  Overall disposition

216.  For all the reasons set out and explained above, I make an Order that all claims of P in this action against all Ds be dismissed.

X.  Costs

217.  Mr Abraham Chan seeks costs on an indemnity base, on the basis that this action was brought in bad faith in pursuit of some personal agenda or vendetta. He relies on Cheung Wei Man Vivien v Centaline Property Agency Ltd (HCA 286/2000, 4 December 2006). Ms Chow adopts those submissions and makes the same application.

218.  I have considered those submissions. I see force in them. I at this stage make a costs order nisi that the costs of the action, including all costs reserved, be paid by P to Ds (and in D5’s case to his estate) on an indemnity basis, with certificate for three counsel for the BCHK Parties, and certificate for 2 counsel for D4, to be taxed if not agreed. I add that I at this stage have no full information as to whether D5 prior to his death had incurred any costs, and what the state of his estate’s representation is at this stage. I am of the view that it is prudent for the costs order nisi to cover his estate. Any necessary application arising in respect of D5 may then be made to this Court.

219.  I direct that any application for variation shall be made to this Court within 21 days from the date this Judgment is handed down, in which case further directions will be handed down. In the absence of any application for variation, the costs order nisi will becomes absolute upon expiry of that 21 days.