YUAN YUQIN v. CHEUNG HIU YAN, FION AND ANOTHER

HCA 928/2016

[2020] HKCFI 1419

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 928 of 2016

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J U D G M E N T

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Introduction

1.  The matter before the court was the trial of the Plaintiff’s claim against the 2^nd Defendant in respect of unpaid amounts said to be due in respect of a loan of HK$2,000,000 (“the Loan”).  The Loan was made pursuant to a written Loan Agreement dated 24 March 2015 (“the Loan Agreement”) in which the plaintiff was named as the creditor, and the 1^st and 2^nd defendants, who are husband and wife, were each named as debtors.  The parties will be referred to in this judgment as P, D1 and D2 respectively.

2.  Final Judgment was entered against D1 and D2 on 21 July 2016.  That judgment was set aside as against D2 on 12 October 2017, and D2 was granted leave to defend the action.  Therefore, the action before me was against D2 only. 

3.  It is common ground that P and D1 were on friendly terms prior to the making of the Loan.  The Loan Agreement named P as the lender, and D1 and D2 as borrowers; was prepared by a firm of solicitors, Lim & Lok, acting on the instructions of P; and was signed on 24 March 2015.  The signatories were P, and D1 acting for herself, and on P’s case, for and on behalf of D2.  D1’s authorization to act for D2 is said to have been made in writing by a power of attorney dated 19 March 2015 (“the POA”).  The Loan Agreement was attested by a legal executive at Lim & Lok.

4.  D2 disputes liability however, and contends that he neither signed the Loan Agreement, or agreed to borrow money, and is therefore not bound by the Loan Agreement.  D1’s signature that appears on the Loan Agreement to be made on his behalf was placed there without his authority because he had never executed the PoA or given any such authority to her.  D2 says that D1 forged his signature on the PoA and therefore entered into the Loan Agreement knowing that she had no authority to act for him.

5.  P’s case, in essence, is that the Loan Agreement is binding on D2, because his assertions of misconduct on the part of D1 are not to be believed.  The signed agreements are to be taken at face value.  Further, and, in any event, it is said that D2 has ratified the Loan Agreement by subsequent conduct, including in particular by making partial repayment.  It is further contended by P that liability has been assumed by D2 by his having proposed to settle the debt as a joint debtor.  This is said to be evidenced by a draft repayment agreement advanced by D2 on or around 3 March 2016.  D2 does not accept that there has been any such acknowledgement of liability on his part.  Moreover, there is a “pleading” point taken by counsel for D2 in regard to the draft repayment agreement.

6.  Before turning to the chronology of events, I set out below the gist of the Loan Agreement.

The Loan Agreement

7.  The Loan Agreement contained terms specifying that the amount of the loan was $2,000,000.00 which was to bear interest at a rate of 36% per annum, which was payable by 12 instalments of HK$60,000 each.  The principal sum and the final month’s interest was to be repaid as the 12^th instalment, such that the amount of that last payment was to be HK$2,060,000.  Repayment was to (and did) begin with the 1^st instalment, which was to be paid on or before 25 April 2015, with the 11 other instalments paid on or before the 25^th of each succeeding month.

8.  Any default in payment was to result in the whole Loan becoming immediately repayable.  The liability of the debtors was expressly made joint and several.

The PoA

9.  The PoA had as its stated purpose the appointment of D1 as attorney for D2 to act in signing the Loan Agreement.  It was prepared by solicitors; So Ho & Co (“SHC”), and on its face was signed by D2 before a legal clerk of that firm, Leung Yiu Kei (“Leung”).  The PoA was executed as a deed and dated 19 March 2015.

Issues

10.  In his opening submission, Mr Sunny Chan, counsel for P identified the “key issues” as being:

(1)     Whether the POA was forged as a matter of fact;

(2)     If so, whether D2 is estopped from denying he is bound because D2 has ratified the Loan Agreement through

(a)     being complacent in D1’s fraud,

(b)     by making repayment of the Loan, and

(c)     offering to repay the full Loan as a joint debtor by preparing a draft repayment agreement dated 3 March 2016 [D/295].

11.  Mr Simon Wong who, with Ms Abigail Liu appeared on behalf of D2 at the trial was broadly in agreement with those issues subject, as noted above, to the pleading point taken regarding the latter issue.  It is perhaps convenient to address this at this juncture.

12.  Paragraph 8 of the Statement of Claim pleads that D2 acknowledged his liability by paying a sum of $435,000 on 27 January 2016, which included two instalments of interest.  The drafting of a repayment agreement was not pleaded.  Paragraph 4 of the Statement of Reply pleaded the “non action and inactivity” on the part of D2 as a basis on which the Loan Agreement was said to have been ratified by D2, but again, there was no mention of the repayment agreement.

13.  In the circumstance I do not think it is open to P to seek to rely on this repayment agreement as a basis for the “ratification” case.  Nor, as it happens, and as is set out below, do I think it is a point which would be of assistance to P.

The Chronology

14.  The relevant events unfolded in the following way.  At some point in early March 2015 D1 approached P seeking a loan of $2 million.  The purpose of the loan was unstated, but it appears to have been suggested that D1 was facing cash flow issues.

15.  P did not agree to help to provide a loan at first, and this may have been because, it appears, she did not have the money to lend.  It seems however that she was able to source funds through her husband and certain relatives, and so, at some point in early March she commissioned the solicitors to draw up the Loan Agreement.

16.  It seems to have been understood from the outset between P and D1 that D2 would be named as a borrower and, furthermore, understood by D1 early on that D2 would not sign such a loan agreement himself. There is in fact no evidence at all of D2 having been consulted about any of this at this time, and he denies any knowledge or involvement.  In any event, by her WhatsApp message on 12 March 2015 D1 asked SHC to prepare a Power of Attorney in her favour which would allow her to sign the Loan Agreement on behalf of D2. 

17.  D1 asked SHC to provide her with a copy of the PoA on 16 March so that, she said, she could provide this draft to the lawyers acting for P for approval.  At about the same time P supplied D1 with a draft of the Loan Agreement.  P’s evidence, in re‑examination, was that she was only informed that D2 would be unable to sign personally on or after 18 March 2015. 

18.  In any event, by 19 March the draft PoA had been sent by D1 to P’s lawyers, and it seems that the draft was “approved” by them.  D1 stated as much in a WhatsApp message to Leung of 19 March, and that she would obtain D2’s signature on the PoA that evening.

19.  D2 may or may not have signed the PoA that evening.  It is his case that he did not, but on 20 March D1 delivered a signed PoA to the offices of SHC.  D2’s case is that the PoA was then signed by Leung as a witness to D2’s “signature”, and the document was then returned by SHC to D1.

20.  On 24 March 2015 the Loan Agreement was signed by P and D1 at the offices of Lim & Lok.  It is common ground that D2 was not present, and that D1 signed the Loan Agreement purportedly on D2’s behalf pursuant to the authority purportedly conferred by the PoA.  The loan was then extended to D1 by way of three cheques issued by relatives of P to D1.

21.  D1 made a series of payments of interest at the agreed monthly rate of $60,000, but she defaulted on the interest payment that was due on 25 December 2015, and it appears that D1 herself has made no subsequent payments of any amount.

22.  P and D1 met in the period immediately after D1’s default, but without any satisfactory resolution of the position, and thereafter P’s husband, Man Chi Chiu (“Man”) took over the discussions regarding the unpaid loan.

23.  Man demanded repayment of the loan and overdue interest from D1 on or before 12 January 2016 through a series of WhatsApp messages.  The conversations included in the hearing bundle appear to show that Man met with D1 on 10 January 2016, and his first message on 12 January suggests that they had discussed raising matters with D2.  He said “Fion, have you discussed with your husband yet?” (12.1.2016 12:57 pm)

24.  D1’s response was that she had not discussed matters with D2, but that she would “deal with it as soon as possible” and would “return HK$60 thousands to you as soon as possible”.  Later she stated “I will exhaust all methods for the sum payable before 24^th”.

25.  D1 repeated, somewhat later in time, but as part of the same WhatsApp exchange that she was “thinking of a way to return the money to you” in response to which Man said “Well, but you yourself do not have this ability now, (right)?  If no you have to seek others for help, don’t waste time.  Up to this point, I don’t understand why you don’t tell your husband frankly.”

26.  That message was timed at 11:05 am, and the WhatsApp conversation between Man and D1 continued over the next 50 minutes or so during which Man said:

(11:16 am)       “If you borrow the loan it is unreasonable for you not to tell your husband, only if you borrow the loan together with someone else, then you may have some reasons to bear it on your own and tell your husband that you borrowed money from other people.”    

(11:19 am)       “Your guess at the end he wouldn’t know even if you don’t tell your husband now?”

(11:30 am)       “think about if they call the police, your power of attorney being fake and it turns to be criminal case of using false instrument, need to go to jail, Fion”

(11:36 am)       “By that time, your husband would know it too, and you have to bear the criminal liability.  What for?”

27.  D1 said, at 11:46 am “I am really thinking of a method to solve it.  I know they will sue me, I need to go to jail, I understand that”.  Man responded: (11:51 am) “Even if they do not sue you for using false instrument, (if they) called police, the police would sue you too”.

28.  On 14 January 2016 D2 learned, he said, that D1 had used his name on the Loan Agreement.  On 15 and 16 January 2016 he had some WhatsApp exchanges with Man in which he stated that he could only repay “2.5 million” … “for my wife”.  If that was not agreeable, he said he would divorce D1, and “in any case I completely know nothing, didn’t sign any documents”.  Man responded with a message that concluded: “You better think again, we don’t want you two divorce and we don’t want Fion to go to jail, both sons need their mother, consider it”.

29.  On 27 January 2016 D2 made a repayment to D1 of $450,000 as partial payment of the loan.  P relies on this as an acknowledgement of his obligation under the loan while D2 says that this was “merely” an attempt to settle his wife’s obligation on her behalf.  D2 says that this can be seen from the contemporaneous WhatsApp messages from D2 which followed that repayment; specifically:

17.2.2016 8:20 pm	“This matter has completely nothing to do with me”
19.2.2016 9:16 pm	“from the beginning, everyone knows.  I did not borrow any money, and did not borrow and did not sign any documents.”
24.2.2016 5:48 pm	“the one who is lack of integrity is her, not me”

30.  The response to the first of these messages from Man was to point out (on 18 February) that the loan agreement stated “that both you and your wife bear the debts jointly in black and white”.  He reiterated that position on 24 February 2016.

31.  On 17 February 2016 D2 informed Man that D1 had run away from home.

32.  On 3 March 2016 D2 prepared a cashier order, in the sum of $1,750,000.00 in settlement of the loan, but in the eventuality, this was not paid to D1.  On 4 March D2 drafted (with the help of lawyers) the draft Repayment Agreement (referred to above) naming both D1 and himself as debtors.  However, no settlement was reached between the parties in the end, and Man stated by WhatsApp on 4 March that he would not sign the proposed agreement.

33.  These legal proceedings were commenced about 1 week later but D2 did not receive a copy of the writ until February 2017.

34.  In February 2017 also, D1 returned to Hong Kong and she told Man by WhatsApp that she had decided to turn herself in to the police.  On 17 February, 2017 she told Man that D2 could defend the claim as “he knows nothing about the power of attorney and the borrowing”.  D1 then said that and if this path is chosen, both Man and herself needed to be “punished by the law” as both of them breached the law. “Mr.  Chiu [ie D2] is intentionally and falsely accused”.

The Burden of Proof

35.  Given the nature of the allegations made by D2 regarding his not having authorised D1 to make the Loan Agreement on his behalf this was a feature of the submissions made by the parties, each asserting that the other bore, to a greater or lesser extent the relevant burden of proof.

36.  In Nina Kung v Wong Din Shin [2005] 8 HKCFAR 387, the respondent in an appeal advanced a case which contended that a will had not been made by the named testator, and that the signatures which it bore were forged.  The CFA held that the respondent bore the evidential burden of adducing evidence sufficiently cogent and probative to raise the issue of forgery with a view to defeating the appellant’s claim based on the will.

37.  The court reiterated the importance of avoiding conjecture when it was necessary to consider whether an inference of forgery was sought to be drawn on the basis of circumstantial evidence.  It was not permissible merely to choose what may be considered to be the more likely of two guesses if neither could be said to be properly justified by the primary facts found.  A passage from the judgment of Kitto, J sitting in the High Court in Australia in Jones v Dunkel & Another (1958‑1959) 101 CLR 298 (at 305) was cited:

“One does not pass from the realm of conjecture into the realm of inference until some fact is found which positively suggests, that is to say provides a reason, special to the particular case under consideration, for thinking it likely that in that actual case a specific event happened or a specific state of affairs existed.”

38.  As was noted in Nina Kung there was a difference in the burden that fell on a party as between one advancing a non‑admission of the genuineness of a document (in that case, the disputed will), and one making a positive allegation of forgery.  In the former case the party seeking to rely on the will would simply have been put to proof of the genuineness of the will, whereas the latter case:

“... in my view, takes the respondent’s case beyond merely challenging genuineness. He is not merely putting the appellant to proof of the will but is seeking to discharge an evidential burden which involves raising a definite case of forgery with a view to defeating the appellant’s claim for probate.” per Ribeiro PJ at 443H.

39.  D2 submits that the burden remains on P, and refers me to Club Deluxe Ltd v Club Metropolitan Ltd [1995] 2 HKLR 69, a decision of the Court of Appeal.  The case involved an assertion by the plaintiff in that case that a document had been signed by D3, and a denial by D3 of that assertion.  As described the Court of Appeal (at page 80):

“… the inference is, of course, that someone had without her authority signed Ex C244, making it appear that she had signed it: in other words, a forgery. It is important to stress however that it was no part of her case, as pleaded, that she was levelling the accusation of forgery against anyone, far less of conspiracy. She was, at the end of the day, simply saying: this is not my signature.”

40.  In that context, Litton JA said:

“There was no legal burden imposed on the defendant to prove forgery, irrefragable or otherwise. The legal burden rested on the plaintiff, to satisfy the court on a balance of probabilities that the signature on the contract was that of D3.”

41.  It follows that P bears the burden of showing that the Loan Agreement was properly signed on behalf of D2 by his lawful agent. D2, having asserted that the signature said to be his on the PoA was a forgery, has the burden of establishing that fact, on a balance of probabilities.

The Witness Evidence

42.  Both P and D2 gave oral evidence at the trial.  It is noteworthy that there were three people who were significantly involved in the loan and in the subsequent events who did not give evidence however.  The spouses of P (Man) and D2 (D1) did not give evidence although both were centrally involved.  Nor did Leung give evidence.  He had been summoned to appear by the issue of a sub‑poena by D2, but on the first day of trial I was informed by Mr Wong for D2 that he did not intend to call Leung because the witness had indicated that he would not answer questions about the execution of the PoA.

43.  This statement of Leung’s intended position was said by counsel to have emerged from pre‑trial correspondence with Leung’s employers, SHC, and P applied for these items of correspondence to be disclosed. D2 asserted privilege over the correspondence and, after consideration, I declined to order disclosure.

44.  In the result, there is no evidence to explain the decision not to call Leung.  Submissions are made by counsel as to adverse inferences to be drawn in regard to the absence of these witnesses, and those are considered below.

Submissions on the Evidence

45.  P gave evidence in support of her case.  She was straightforward in her evidence, confirming the making of the loan, and that she had understood D1 to be acting on her own behalf and on behalf of D2.  Her portrayal of the position was that she was seeking to do a favour for a friend in extending the loan, but I found this suggestion of a non-commercial motive to be somewhat undermined by the drawing up of this detailed loan agreement, the unusual interest terms, and the fact that she herself did not have money to lend to D1.  In effect, the source of the loan was members of her family.

46.  P’s evidence was that she handed over the problem of the loan to her husband, Man, almost immediately when repayment issues arose.  Man, of course, did not give evidence notwithstanding the importance of his WhatsApp messages once the default emerged.

47.  D2 was a very different character of witness, and could, at best, be said to have been highly cautious in the answers he gave under cross examination, so much so that his counsel submitted in closing that even during examination in chief and re‑examination, the Court must have observed that only very short questions could be well understood by him, or otherwise he required a long time to digest, and that was indeed the case.

48.  In cross examination P attacked D2’s credibility for example by asking him why he did not obtain a copy of the POA upon discovery of the fraud.  His answer was somewhat strange; that he did not need to “buy” a copy of the document, but Mr Wong submits that there is nothing wrong with this answer.  If he knew the POA was forged because he did not sign such a document, there was simply no need to obtain a copy via solicitors to verify whether it was forged.

49.  In closing counsel for P contends that D2 was an unreliable witness because his evidence was contradictory, inconsistent and inherently improbable.  P is, further, critical of D2’s “highly suspicious attitude of nonchalance” said to have been displayed after discovering the alleged fraud.

50.  Whatever the cause of his hesitancy in giving his oral evidence I agree that it is hard to place great reliance on D2’s oral evidence.  I do not think that too much turns on his failures to obtain copies of the allegedly forged PoA when repayment issues arose however when the alleged forger was his wife.

51.  With both witnesses, and perhaps D2 in particular, in my judgment, the most reliable “test” of veracity and reliability in the circumstances of this case is to be found in terms of consistency with the available documents and records.  Such documents are relatively few, comprising primarily the two “legal” documents, the PoA and the Loan Agreement (the terms of which are not in dispute), and the WhatsApp messages.  The latter appear to me to tell a reasonably consistent story however, and one which is consistent with D2’s defence.

Adverse Inferences

52.  As noted, P submits that an adverse inference is to be drawn against D2 for not proceeding to call Leung, and to put to him the serious allegation that he has signed the PoA purporting to have witnessed D2’s signature when in fact he had not.  I agree that Leung’s absence is such as to give rise to some element of surprise.  Having been summoned on behalf of D2, it would be expected that he would be called, and given the opportunity to answer the complaints made by D2.  But I agree with D2, that it would also be expected that P would call Leung to verify the propriety of the PoA because it is P who relies on the authenticity of the PoA, thereby bringing to an end D2’s argument on D1’s authority.

53.  Were such an inference to be drawn against D2, it would be that Mr Leung, if asked, would have stated that he had properly witnessed the signature of D2.  Were the inference to be drawn against P, then it would be to the opposite effect.  It must be remembered of course also that were it to emerge that Leung had signed as a witness to D2’s signature when he had not in fact seen him sign, then serious consequences could ensue for him.

54.  In such circumstances, the drawing of inferences is not, in my view appropriate.  The available evidence is, in any event, not to be supplanted by any such inference.

55.  I do not think the same is to be said of the absence of either D1 or Man.  D1 appears to have had concerns as to whether she would face criminal liability in giving evidence, but clearly her evidence would have been centrally relevant to the issues before the court.  Man may have felt that his involvement was only as a “debt collector”, after the agreement was made, but as appears below, it appears to me that he was well aware of the true situation surrounding the making of the Loan Agreement.  Both are witnesses I would expect to have been called to give evidence, and their absence does call for adverse inferences to be drawn.

Was D2’s signature on the PoA forged?

56.  So far as the 1^st issue is concerned, the starting point in the evidence is D2’s continued assertion that he did not sign the PoA, while the deed itself says that he did.  As noted, I place some reduced weight on the fact that D2’s signature is said to have been witnessed at the time the deed was made.

57.  Counsel for P submits that D2’s case on the PoA being a forgery is no more than bare assertion, unsupported by any evidence.  I do not accept that proposition.  As early as 12 January 2016, Man was discussing some such issue with D1 (for example his message referring to “your power of attorney being fake”).  There is no explanation in the WhatsApp “chain” as to how this topic arose, but Man appears to have been untroubled by the possibility of the PoA being “fake”, or in using D2’s ignorance of that possibility as a way to pressurize D1 into repaying.

58.  Mr Chan submits that, in doing so, Man was simply taking advantage of the circumstances to seek to force a settlement of the loan.  There is no evidence of this, and it seems to me to be improbable that this would have been his approach, without any expression of concern that his wife had loaned money to, as it would have appeared, a fraudster.  Neither participant in the relevant WhatsApp conversation gave evidence, but the tenor of what is recorded seems to me to be inconsistent with Man having been taken by surprise by the suggestion that there was something “fake” about the PoA.

59.  Secondly, the contemporary messages strongly suggest that Leung did not witness the signing of the PoA by D2.  These messages were exchanged between D1 and Leung and set out an arrangement whereby D1 told Leung that she would have her husband sign, and that she would then bring the signed document to Leung’s office for processing (attestation) on the following day.  On 19 March 2015 D1 messaged Leung and said “The lawyer of the other party has reviewed and said ok.  I will give it to my husband to sign tonight.  Would it be at your convenience if I give it to you around and before noon tomorrow in Central?”, to which the response was “sure no problem”.  These exchanges do not reference the PoA, but there is no suggestion of any other document that could have been the subject of this discussion.

60.  Thirdly, D2 does not appear to have been a client of the lawyers who prepared the PoA, (SHC), at any relevant time.  That firm when asked, in May 2018, to provide copies of the documents leading to the preparation of the PoA, including the letter of engagement, refused, stating that these documents were privileged communications with their client, who was D1.  As pointed out by counsel for D2 in submissions, if SHC had been instructed to prepare a power of attorney authorising D1 to act for D2, it would be expected that their client would be D2, not D1.

61.  It seems not to be disputed that the signature on the PoA purporting to be that of D2 does not resemble his “normal” signature. This, in itself may be of little weight, but would imply, if taken to be a deliberate falsification by D2, that it was intended all along that D2 would evade liability for the loan if a default were to occur.  There is however no other evidence that would indicate that D1 and D2 had embarked on such a scheme from the outset, and such a scheme would not explain the WhatsApp exchanges with Man following the default referred to above.  Reviewing the evidence overall it seems to me that weight is to be given to the communications passing between the plaintiff and her husband and the two defendants at the time that the default in payment arose.  Those communications can be cherry picked to identify instances which appear to be self‑serving for each side, but viewed overall, in my judgment, point clearly to D2 not having authorised D1 to enter into the Loan Agreement on his behalf.

62.  The signed and witnessed PoA says otherwise, but again reference to the WhatsApp messages casts doubt on the reliability of the attested document.  When these matters are taken together with D2’s own evidence, the conclusion I reach is that, more likely than not, D2 did not sign the PoA, and at no stage authorised D1 to enter into the Loan Agreement on his behalf.

63.  In the circumstances I answer the 1^st Issue in the affirmative. In my judgment on the evidence before me the signed PoA was not authorised by D2.

The Consequence

64.  It does not seem to be disputed that, if the signature on the PoA was forged then the Loan Agreement was not binding on D2.  On behalf of P however it is submitted that D2 has nevertheless assumed responsibility, by ratification of the transaction.

Ratification

65.  As identified in counsel’s key issues, the key elements of conduct relied on, excluding the unpleaded draft repayment agreement are complacency in relation to D1’s fraud and the making of some repayment in respect of the loan.

66.  In submissions, Mr Chan contends that, whatever may be the position regarding the PoA, there is no question of forgery in relation to the Loan Agreement.  That agreement may be ratified by D2 even if made by D1 on his behalf without authority to do so: Demco Investment v Interamerican Life Insurance [2012] EWHC 2954 (Comm).  P submits that it was “competent” for D2 to ratify the Loan Agreement by taking no steps to disavow the transaction and by positively taking steps to make repayment once he was aware of the true position.

67.  On behalf of D2 Mr Wong and Ms Liu submit that the PoA, being “tainted by forgery” was a nullity, and that therefore the Loan Agreement executed on the strength of a document which was a nullity was itself also a nullity.

68.  I do not find it necessary to express any view as to whether or not the Loan Agreement could have been ratified by D2 because it is clear in my view that, as a matter of fact, he did not do so.

69.  It is trite that any act of ratification must be one which shows a clear and manifest intention on the party ratifying to accept a contract as binding.  Acts which are not wholly referable to the relevant contract, or which are equivocal, or ambiguous in their meaning, will not suffice.

70.  In my judgment, P’s case on ratification is optimistic at best.  While it is true that D2 took no steps to obtain relevant documents, has made a substantial repayment, has negotiated over further repayments, and even drawn up a written repayment agreement, throughout he made it clear that he was seeking to pay off the debt of his wife.  All of the ‘documents’ show that these steps were undertaken in terms that were consistent only with an attempt to settle the debts of another, his wife, not to assume personal liability for such debts.

71.  I do not agree that this conduct (including as it happens the draft repayment agreement) have the necessary element of clarity to show that D2 adopted the loan transaction and liability under it.  The opposite is in fact the case.  Accordingly, I reject the submission that D2 has ratified the transaction.

Disposition

72.  For the above reasons, in my judgment the claim against D2 does not succeed and is dismissed.  There is to be judgment in favour of D2, together with an order nisi for costs in favour of D2 against P.