DBS BANK (HONG KONG) LTD v. SIT PAN JIT

CACV 91/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 91 OF 2015

(ON APPEAL FROM HCA 382 OF 2009)

_______________

_______________

________________________

J U D G M E N T

________________________

Hon Poon JA (giving the Judgment of the Court) :

Introduction

1. By a judgment dated 2 April 2015, Deputy High Court Judge Marlene Ng entered judgment for the plaintiff against the defendant in the sum of US$3,429,724.27 with interest and costs and dismissed the defendant’s counterclaim.  We dismissed the defendant’s appeal on 10 June 2016.  We upheld the Judge’s findings on, among other things, the meaning of the Words and that the Words were not false, misleading or deceptive as the defendant alleged.

2. The defendant now seeks leave to appeal to the Court of Final Appeal on the strength of 7 questions said to be of great general or public importance and the “or otherwise” limb pursuant to section 22(1)(b) of the Court of Final Appeal Ordinance, Cap 484.

Questions of great general or public interest

3. The first 3 questions raised by the defendant are these.  In a claim under s.108 of the Securities and Futures Ordinance, Cap 571 (s.108), where a representee alleges that he was induced by a statement as he subjectively understood it :

(1)  is such understanding “irrelevant” as a matter of law in deciding whether that statement is “false, misleading or deceptive”? (“Question 1”)

(2)  is such understanding “irrelevant” as a matter of law in deciding whether he was induced by such statement? (“Question 2”)

(3)  does fairness require the representor to cross-examine the representee on such statement (including the representee’s subjective understanding of that statement) before the Judge could fairly:

(a)  reject such understanding as being unreasonable or implausible;

(b)  reject the representee’s case that he was induced by such statement; and/or

(c)  accept an alternative interpretation of that statement put forward by the presentor not in its pleadings or witness statements, but only in opening and/or closing submissions? (“Question 3”)

4. The 4^th to 7^th questions are premised on a factual finding of misrepresentation in favour of the defendants :

(1)  Does “contractual estoppels” (as recognized in Peekay Intermark v ANZ Banking Group [2006] 1 CLC 582; Springwell Navigation Corp v JP Morgan Chase Bank [2008] EWHC 1793 (27 May 2008); and Springwell Navigation Corp v JP Morgan Chase Bank [2010] 2 CLC 705) exist as a legal doctrine? (“Question 4”)

(2)  If the answer to Question 4 is in the affirmative, can “contractual estoppel” defeat a claim based on s.108? (“Question 5”)

(3)  Do contractual clauses similar to the Group Clauses relied upon by DBS give rise to “contractual estoppel”? (“Question 6”); and

(4)  Is the principle of incorporation stated in Interfoto Picture Library v Stiletto Visual Programmes Ltd [1989] QB 433, 438-439, 445 (“the Interfoto principle”) part of the laws of Hong Kong and, if so, does the Interfoto principle apply to written contracts” (“Question 7”)

5. Questions 1 to 3 essentially seek to challenge the concurrent findings of fact made by the Judge and accepted by the Court of Appeal.  It is however trite that the Court of Final Appeal will not disturb concurrent findings by the courts below save in exceptional and rare circumstances where there is a miscarriage of justice or violation of some principle of law or procedure : Sky Heart Ltd v Lee Hysan Co Ltd [1999] 1 HKLRD 100, at pp 113I – 114C. The party seeking to overturn concurrent findings of fact is required to state clearly what the special circumstances are that warrant the Court’s review of the findings below : Chan Wai Sun v Law Shiu Kai (2007) 10 HKCFAR 601, at [28]; Tam Mei Kan v HSBC International Trustee (2011) 14 HKCFAR 512, at [36].  The hurdle is not easy to surmount.

6. With respect, we do not consider Questions 1 to 3 come anywhere near to meeting the high threshold for leave to be granted to appeal to the Court of Final.

7. In respect of Question 1, it is well established that the meaning of the Words is to be objectively assessed.  The defendant’s own subjective understanding is irrelevant.  In any event, the Judge did consider the defendant’s own subjective understanding but for the reasons that she gave, rejected it.  And we agreed with her.  We fail to see how Question 1 can possibly arise in the circumstances.

8. In respect of Question 2, since the defendant has no prospect of overturning the concurrent findings on the meaning of the Words, it simply does not arise.

9. In respect of Question 3, we do not consider whether the defendant had been cross-examined on his subjective understanding before the Judge made the relevant findings against him is a question of great general or public importance.

10. Questions 4 to 7 are questions of law. They all premised on leave being granted on Questions 1 to 3.  Since we are not going to grant leave on Questions 1 to 3, they cannot get off the ground either.

The “or otherwise” limb

11. It is well established that the granting of leave to appeal under the “or otherwise” limb is an exceptional course : Chao Keh Lung v Don Xia (2004) 7 HKCFAR 260, at 263J.

12. The defendant relies on four reasons to invoke the “or otherwise” limb.

13. First, he complains that there are errors of law on the defendant’s credibility; the Call Report; the meaning of the Words, the Word being misleading or deceptive; unfairness in not following Browne v Dunn; and “conservative v representations” in the contents of the Recordings/Transcripts.  With respect, these so-called errors are no more than a veiled attempt to ask the Court of Final Appeal to overturn concurrent findings of fact by lower courts.

14. Second, the defendant complained that the Judge and the Court of Appeal gave erroneous answers to Question 1 to 3.  This is just a second attempt to argue Question 1 to 3.

15. Third, he relies on the novel questions of law in relation to a claim under s.108.  But as said, there is no factual basis for these questions to arise.  They are purely academic.

16. Finally, the defendant relies on the substantial amount of money or value at stake.  We do not consider the amount of the claim alone constitutes an exceptional factor in favour of granting leave to appeal.

17. We are not satisfied that the reasons relied on by the defendant can satisfy the “or otherwise” limb.

Conclusion

18. For the above reasons, we refuse to grant leave to the defendant to appeal to the Court of Final Appeal.

19. Costs should follow event.  The plaintiff asks for indemnity costs pursuant to the contractual terms between the parties.  We note that the Judge below had at [474] of her judgment acted on those contractual provisions and granted the plaintiff indemnity costs for the trial below.  Although the plaintiff did not ask for indemnity costs of the appeal, we think it is entitled to have indemnity costs of this leave application.  We order the defendant to pay the plaintiff the costs of the present application with a certificate for two counsel, to be taxed on indemnity basis if not agreed.