ASPAROUH IANEV DIMITROV as administrator of the estate of KALOIAN IANEV DIMITROV (Deceased) v. DOMINIC TAK MING LAU also known as LAU TAK MING

HCA 1079/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1079 OF 2015

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DECISION

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Introduction

1.  This is the hearing of the Plaintiff’s (“Asparouh”) summons filed on 25 January 2017 seeking summary judgment or, alternatively, interim payment against the Defendant (“Lau”).

The legal principles applicable to summary judgment

2.  The principles applicable to summary judgment are well‑established and can be summarized as follows.

3.  First, the starting point is that the plaintiff must first demonstrate that the defendant has no defence before the defendant is charged with the burden of showing he has a credible defence: Ju Yan Di Emperory Genesisy and Yau Wai Han [1].

4.  Second, upon the plaintiff discharging that burden, it is for the defendant to show there is a triable issue or an arguable defence: see Hong Kong Civil Procedure 2017 [2]. Summary judgment is for clear cases.  It is not appropriate where there is any serious dispute as to matters of fact or any difficult question of law: see Hong Kong Civil Procedure 2017 [3]. In considering whether there are triable issues, the court will not take the alleged defence on its face value but will test it against the evidence disclosed in the affidavit including matters such as contemporaneous documents and inherent probability of the defence. In Re Safe Rich Industries Ltd [4] Bokhary JA (as he then was) said:

“ The test at the summary stage is indeed as simple as whether the defendant’s assertions are believable. But it must be recognized — because failure to recognize it would create a debt‑dodger’s charter — that whether the defendant’s assertions are believable is a question to be answered not by taking those assertions in isolation but rather by taking them in the context of so much of the background as [is] either undisputed or beyond reasonable dispute.”

It will not conduct a mini‑trial on complicated factual issues: see Paul Y Management Ltd v Eternal Unity Development Ltd [5]. Where the circumstances are such as to require close investigation, there ought to be a trial and summary judgment would be inappropriate: see Hong Kong Civil Procedure 2017 [6] and Miles v Bull [7].

5.  Third, where a defence, though arguable, can be described as shadowy, the court may order conditional leave to defend: see Hong Kong Civil Procedure 2017 [8].

6.  Fourth, if a counterclaim and set‑off is raised, that can be a basis for granting unconditional leave to defend up to the amount of set‑off claimed.  This is regardless of whether the amount is ascertained, and whether the set‑off has been pleaded as a counterclaim or not.  However, the court must assess whether the counterclaim is credible or believable: see Hong Kong Civil Procedure 2017 [9]; Ling Dai Hong v 汪裕祖 [10].

7.  Fifth, whether to order interim payment is an exercise of the court’s discretion.  The test is essentially the same as that for granting conditional leave to defend, namely whether the defence and/or counterclaim raised can be said to be shadowy: see Hollywood Palace Co Ltd v Trans‑Global Hong Kong Investment Ltd [11].

The background

8.  The Plaintiff, ie Asparouh, is the administrator of the estate of his brother, Kaloian Ianev Dimitrov (Deceased) (“Kal”).

9.  Kal was a businessman conducting his business from the United Kingdom (the “UK”).  He passed away in the UK on 5 July 2015, shortly after the commencement of these proceedings. 

10.  The Defendant, ie Lau, is a businessman carrying on business in Hong Kong.

11.  The Plaintiff’s case is that Kal and Lau entered into a number of agreements whereby Lau was engaged as his agent to carry out investments for him in Hong Kong.  Pursuant to those agreements, he caused funds to be transferred to the accounts of companies under Lau’s control for the purpose of investment.  Despite repeated requests, Lau failed or refused to return his investment to him in accordance with their agreements.  He commenced this action on 14 May 2015, filed his amended statement of claim on 21 May 2015 and passed away on 5 July 2015.  The affirmations filed in support of this application were made by his brother Asparouh largely based on documents retrieved from Kal’s possession or his computer or documents disclosed by Lau.

12.  Lau’s defence was filed after much delay.  It was dated 13 July 2016, more than a year after Kal’s death, which made it impossible for Asparouh to make any meaningful reply.  Lau denied having entered into the agreements pleaded, except one (the “Repayment Agreement”) which he said was signed by him when he felt being intimidated.  He admitted receiving funds caused to be transferred by Kal for the purpose of investment and that he carried out investment as an agent, but alleged that the funds and the investment belonged to another person, Alexander Mirtchev (“Alexander”), a Bulgarian based in New York and an advisor of the President of Kazakhstan.  In essence, his case is that Kal was only an agent of Alexander.  He resisted the application for summary judgment on two grounds, viz (1) Kal was not entitled in his personal capacity to any relief against him (the “capacity defence”); and (2) the repayment obligation under the Repayment Agreement had not yet arisen as the amount to be repaid was subject to confirmation and no such confirmation had ever been made (the “confirmation defence”).

13.  In addition, Lau argued that if the Plaintiff was unable to prove that Kal was the source of funds, the case was not a suitable one for summary judgment and there was no need to put him to show a credible defence.  The source of funds argument therefore formed part of the capacity defence.

The facts

14.  Hereunder are the facts relied on by the parties, most of which are not in dispute or are beyond reasonable dispute.  I shall highlight those which are in serious dispute and deal with them in the later part of this decision where necessary.

15.  The Plaintiff’s case is that Kal and Lau entered into an oral agreement around August 2008 (the “2008 Agreement”) whereby they agreed to each raise funds to invest in the energy and other business sectors, with corporate vehicles incorporated in Hong Kong.  Some of the terms of the 2008 Agreement were reduced into writing in a memorandum of understanding dated 11 November 2008 (the “Memorandum”).  Lau disputed the existence of the 2008 Agreement and the Memorandum.  However, nothing turned on these agreements.  They are just part of the background from which the other agreements evolved.

16.  In accordance with Kal’s instructions, Lau caused two companies, namely Helios Holdings Limited (“Helios”) and King Master Development Limited (“King Master”), to be incorporated in Hong Kong, of which Lau was the sole shareholder and director.  Lau also caused bank accounts to be set up for these companies with the Bank of East Asia (the “BEA Accounts”). These facts are admitted by Lau.

17.  Between 1 September 2009 and 27 July 2010, Kal transferred or caused to be transferred, to use a neutral term, 25 sums, totalling US$38,612,052.11 into the two BEA Accounts.  Lau only admitted 11 of those transfers in his Defence and put the Plaintiff to strict proof in respect of the other transfers.  But it is not Lau’s case that he was beneficially entitled to any of the sums deposited into the BEA Accounts.

18.  The Plaintiff’s case is that on 11 September 2009, Kal and Lau entered into an agreement (the “Investment Agreement”) with Kal as principal and Lau as agent.  That agreement included the following terms:

(1)  In consultation with Kal, Lau would use his best efforts as Kal’s agent and fiduciary to invest Kal’s funds in different securities products;

(2)  Lau shall invest the funds deposited in the BEA Accounts of Helios and King Master as well as from funds withdrawn by Lau from those accounts, and the amount of investment shall not exceed US$35 million;

(3)  Lau undertook to fully secure Kal’s principal;

(4)  Upon Kal’s request or instructions, in writing or orally, any or all of the funds invested shall be repaid in accordance with the instructions;

(5)  For any delay beyond the final repayment date, Lau would be subject to liquidated damages of 1% per month for all amounts outstanding and not repaid to Kal;

(6)  Lau was entitled to performance commission of 20% on any gains generated by the investment after deduction of any costs or losses incurred;

(7)  Lau was also entitled to a 4% management fee per annum of the total investment;

(8)  The term of the Investment Agreement was for a period of two years from 11 September 2009 and final repayment was to be made within 90 days from that date, ie 10 December 2011;

(9)  Kal granted Lau authority to act on Kal’s behalf, upon his consultation, to invest the funds advanced in trust; and

(10)   Lau agreed to indemnify and hold Kal harmless from any or all losses caused by Lau’s acts or omissions or breach of any obligation imposed.

Accompanying the Investment Agreement was a document identifying the investment target and strategies as well as possible stocks targeted, namely Hang Seng Bank, MTR Corporation, Hong Kong Stock Exchange and Bank of Communications (the “Term Sheet”). 

19.  Lau disputed having entered into the Investment Agreement and the Term Sheet.  He alleged that what purported to be his signature on the agreement was transferred onto the document by electronic means.  Though the existence of the Investment Agreement was disputed, except for the alleged breaches, Lau and Kal conducted their affairs along the lines of this agreement. The following contemporaneous emails exchanged between them around September 2009, which are beyond dispute, are consistent with the parties having entered into the Investment Agreement:

(1)  Email dated 17 September 2009 in which Lau informed Kal about the market situation of blue chips in Hong Kong;

(2)  Email dated 28 September 2009 in which Kal responded asking Lau for more specification of the shares and bonds that Lau had in mind to invest;

(3)  Email dated 29 September 2009 in which Lau replied suggesting “#11 Hang [Seng] Bank, #66 Hong Kong MTR, #388 Stock Exchange, #3328 Bank of Communications”;

(4)  Email dated 20 October 2009 in which Lau sent Kal details and share prices for the above stocks; and

(5)  Email dated 15 January 2010 in which Lau asked Kal if he would agree to make a placement of new shares of HK$100 million through Lau’s account with Industrial and Commercial Bank of China as he was an approved professional investor of the bank.

20.  It is not disputed that around that time, Lau sought Kal’s approval to transfer funds for the purpose of making investments from the BEA Accounts to his personal accounts with Chong Hing Bank Ltd (“Chong Hing Bank”) and Deutsche Bank AG Hong Kong Branch (“Deutsche Bank”) to take advantage of the preferential terms he had with those banks.  The Plaintiff’s case is that Kal transferred a total sum of US$38,347,369 to Lau’s account.  Curiously, while admitting the transfer, Lau denied transferring the total sum of US$38,347,369 as pleaded by the Plaintiff.  Despite such a denial and despite his having access to the BEA Accounts, the Chong Hing Bank account and the Deutsche Bank accounts, Lau did not plead the amount transferred and did not produce a full set of statements of those bank accounts to show the exact amount transferred or that the sum of US$38,347,369 had not been transferred.

21.  In June 2011, Kal instructed Lau to send all amounts back to him.  In response, Lau replied by an email dated 14 June 2011 confirming receipt of Kal’s instruction and promising that he “will start sending all amounts” to Kal.  On 16 November 2011, Lau send another email to Kal stating that he would complete all the remittance within the next four weeks.  Kal’s instruction and these emails were issued at around the end of the two‑year term under the Investment Agreement, which would terminate on 11 September 2011 with full payments to be made before 10 December 2011.  These facts are documented and beyond dispute.  They are consistent with the parties having entered into the Investment Agreement.

22.  Some transfers were made.  Between October 2010 and April 2012, Lau transferred a total sum of US$15,924,000 to Kal in accordance with Kal’s instruction.  There is also no dispute that certain amount remained outstanding.  While admitting these transfers, Lau denied that they were made pursuant to the Investment Agreement. 

23.  Following the last payment in April 2012, Kal and Lau agreed to a repayment schedule dated 26 April 2012 (the “Repayment Agreement”).  The full terms of the Repayment Agreement are as follows:

“ The undersigned [Lau, who is referred to as Agent], has been appointed as investment agent for [Kal, who is referred to as Principal] for funds withdrawn from the accounts of [King Master] and [Helios] since the formation of these companies in Hong Kong. The full amount outstanding is US$24.8 [million]. The full amount is subject to confirmation by both parties.

[Lau] is also a Director of the abovementioned companies, and has executed these activities pursuant to his fiduciary responsibilities.

[Lau] agrees to repay all outstanding Funds to the Full amount to the accounts of these companies or as per instructions of the Principal before 27 October 2012, and repay US$12 [million] as part of this payment before or by July 27, 2012.

This agreement shall not affect the other rights and remedies of [Kal] as well as instructions for payments by [Kal] undertakings by [Lau] and otherwise provided by law.

[Lau] agrees that he shall be subject to liquidated damages of one percent (1%) per month for all amounts up to US$12 [million], but not repaid by 27, July 2012 and on the unpaid balance of the full amount after 27 October, 2012.

[Lau] personally guaranties his obligations under this Agreement.”

The sum of US$24,800,000 stated in the Repayment Agreement had not taken into credit the sum of US$240,000 paid by Lau to Kal on 24 April 2012.  Lau admitted that he signed the Repayment Agreement but alleged that he signed because he felt intimidated, not that he was actually intimidated.

24.  On the same day, Kal and Lau also entered into a side agreement (the “Conditional Compensation Agreement”), whereby it was agreed that Kal shall provide Lau with management fee equal to 4% of the amount committed to invest during the last three and half years (which happened to be the same period from the date of the Investment Agreement until the date of the Conditional Compensation Agreement) on the condition precedent that Lau makes timely repayments under the Repayment Agreement.  Lau has no dispute about having entered into this Conditional Compensation Agreement. 

25.  In May 2012, Kal and Lau discussed about Lau providing security to Kal for the outstanding payment.  They exchanged emails dated 2 May 2012 in which they discussed about a list of shares to be use as security.  On 3 May 2012, Kal sent Lau a letter confirming acceptance of Lau’s proposal.  On 29 May 2012, Kal and Lau entered into an agreement called “Liquid Collateral Pledge Agreement” (the “Pledge Agreement”).  But Lau never transferred or assigned the shares or funds to Kal.  In the recital of the Pledge Agreement, Lau confirmed that the outstanding sum payable to Kal was US$24,500,000.  These facts are documented and beyond reasonable dispute.

26.  The Pledge Agreement has not been pleaded in the statement of claim.  It was raised in Asparouh’s affirmation and disclosed in the course of discovery.  Lau denied signing the Pledge Agreement and alleged that what purported to be his signature thereon was forged. 

27.  In a letter dated 12 July 2012 from Kal to Lau disclosed by Lau, Kal demanded Lau to first transfer to Kal $5 million of the funds invested with Lau into Kal’s account with Chong Hing Bank.

28.  Lau failed to pay Kal US$12 million by 27 July 2012 in accordance with the Repayment Agreement.  On 16 August 2012 and 5 September 2012, Kal’s lawyers in Shanghai wrote to Lau reminding him of his breach of the Repayment Agreement and the accruing and continuing liquidated damages.  On 17 September 2012, Lau paid Kal US$320,000.

29.  Accordingly, the Plaintiff claims the sum of US$24,240,000 being the sum of US$24,800,000 due under the Repayment Agreement less the sums of US$240,000 and US$320,000 received from Lau.

The amount of funds

30.  Lau disputed the amount of funds transferred to the two BEA Accounts.  Though not a crucial issue for the purpose of the summary judgment application, I shall deal with this issue to put myself in the proper context when determining the source of funds issue and the capacity defence. 

31.  In paragraph 9 of the amended statement of claim, Kal pleaded that pursuant to the Investment Agreement, he made 25 remittances in the total sum of US$38,612,052.11 to the two BEA Accounts on specified dates.  Lau denied and put the Plaintiff to strict proof as to the amount and that Kal was the owner of the funds.  The Plaintiff produced a summary of the 25 transfers, 18 of which bear references to the bank statements disclosed by Lau.  But Lau only admitted 11 of them in his Defence. These 11 transfers corresponded in amount with those pleaded by Kal subject to some insignificant differences which probably represented bank charges and perhaps exchange rate differences.  In respect of these undisputed transfers, Lau alleged, somewhat equivocally, that they were funds belonging to Alexander for whom Kal acted as agent. 

32.  In the face of these 18 statements disclosed by himself, Lau still insisted on strict proof as to the amount and that Kal was the owner of the funds transferred not only of the seven which were not supported by bank statements, but also in respect of 11 which were.  He admitted he was the sole signatory of the two BEA Accounts.  The bank statements must be in his possession, custody and power.  Yet, he chose to disclosed only 18 of the statements but not the other seven and then he turned around to ask the dead for strict proof in respect of the seven payments which would be evidenced in the statements which he withheld. He could have easily obtained those seven statements and checked for himself if the remittances were received.  The majority of the amounts pleaded have been shown by these 18 bank statements.  There is not much genuineness in Lau’s defence. He was probably taking advantage of the fact that Kal could not be here to answer his challenge.  However, for the purpose of this summary judgment application, the amount of funds remitted is not a critical issue because the Repayment Agreement which contained the amount outstanding was admitted. The initial amount remitted, the profits made and repayments in the intervene periods became non-issues. 

The source of funds

33.  Mr Chan submitted that a plaintiff must first demonstrate that the defendant has no defence before the defendant is charged with the burden of showing he has a credible defence.  Quoting Ju Yan Di Emperory Genesisy and Yau Wai Han, he submitted that where the provenance of funds was disputed by a defendant, the onus was on the plaintiff to demonstrate that he had indeed provided those funds to the defendant.  He argued that in the absence of a proper explanation by the Plaintiff, a serious doubt is cast on the Plaintiff’s case and a triable issue has been raised.  He quoted the following passages from Ju Yan Di [12]:

“ 15.  For a start, the plaintiff must demonstrate that he had indeed lent $130,000 to the defendant when this matter is expressly put in issue by the defendant.  While initially he had exhibited the pay‑in slips to the defendant’s bank account of the nine loans, it now transpires that the money of five of the loans came from some other source and not the plaintiff.  What is more surprising is that when faced with this evidence, the plaintiff’s response is simply to put in a general statement stating that he refuted the allegations made against him without giving any particulars.  In my view this is not enough.  The plaintiff should explain why cheques belonging to third parties had been used and deposited into the defendant’s account, particularly when the defendant had stated that she had often, at the plaintiff’s instruction, effected transfer of funds between her two bank accounts, for purpose she was not aware of.  The bank statements disclosed by the defendant revealed that there were indeed withdrawals following deposits made into her account.  If the parties’ relationship was simply confined to the investment by the defendant of $120,000 in the plaintiff’s business, why would he lend money of an even greater amount to her?  The plaintiff has been reticent in responding to the defendant’s allegations.  The overall impression is that there is more to the parties’ transactions than meets the eye.

16.  In the absence of a proper explanation by the plaintiff, a serious doubt is cast on the plaintiff’s case and hence a triable issue is raised whether he had indeed lent money to the defendant.  This point was not considered by the Judge.  This leads to a further doubt on whether the three cheques were properly supported by consideration.  This is more so when the plaintiff himself had given two different versions of the circumstances in which he received the three cheques from the defendant.”   

   (Emphasis by the Defendant underlined)

34.  I have no disagreement with the proposition that where the provenance of funds was disputed by a defendant, the plaintiff bears the onus of proof.  But the onus on the plaintiff is only to discharge the burden of proof to a degree which commensurates with the circumstances of the case.  Here, on the fact, Lau received the funds from Kal by way of remittances into the two BEA Accounts.  That in my view is enough to discharge the burden in an ordinary case.  A tenant who was led into possession of rented property cannot dispute his landlord’s title or right to possession of the property.  A bailee is estopped from disputing the bailor’s right to possession of chattel entrusted to his care: see Armory v Delamirie [13].  So too, as against the transferor of funds, the transferee cannot dispute that the transferor was the owner of the funds, unless he can produce some evidence showing the contrary.  While the legal burden of proving ownership of the funds transferred falls squarely on the shoulders of the transferor, but as against the transferee, the fact of transfer is sufficient. If the transferee wishes to dispute the ownership of the transferor, he bears, at least, the evidential burden of showing some evidence to the contrary which is sufficient to pass the judge.  If he succeeds, the transferor has to discharge the legal burden.  If he does not, the mere fact that the transferee received the funds from the hands of the transferor is sufficient for the transferor to discharge his evidential burden and, if unchallenged, the legal burden as well. It is never our law that a transferee of funds or chattel can dispute the transferor’s superior right or ownership by doing nothing other than making a bare denial, or putting the transferor to the proof, or an oral assertion that the funds or chattel belonged to another.  As against his transferor, jus tertii is no defence.  The transferee has to do something more by producing at least some evidence which is sufficient to pass the judge.  That is the evidential burden which he has to discharge if he wants to raise an issue that the funds he received from the transferor belonged to someone else.

35.  The above analysis is not inconsistent with Ju Yan Di.  In that case, the plaintiff produced pay‑in slips, which discharged her evidential burden.  But as stated in the passage of that case quoted above, it then transpired that five of those payments came from some other source and not the plaintiff.  With that the defendant discharged his evidential burden which cast the burden back to the plaintiff to explain why cheques belonging to third parties had been used to provide the alleged loan.  With respect, paragraph 16 of Ju Yan Di was quoted by Mr Chan out of context. Where the transferor has proven a prima facie case of ownership of the funds transferred which is not challenged, there is no burden on him to offer any explanation.

36.  In the present case, Lau received the funds from the hands of Kal.  Without showing anything, he just made a bare assertion that the funds belonged to Alexander.  On that basis, Mr Chan argued that Asparouh had to explain the source of funds.  I have to ask rhetorically, “explain what?”  Kal was the transferor from whose hands Lau received the funds.  The present case is distinguishable from Ju Yan Di in which the defendant adduced some evidence that some of the funds came from a third party.  That called for an explanation.  Furthermore, Lau is the signatory of the two BEA Accounts.  He disclosed 18 bank statements evidencing receipt of the funds from Kal showing bank references with respect to those 18 remittances.  He has authority to request the bank to produce all relevant documents relating to those remittances to show a prima facie case that the funds came from some source other than Kal.  He did not.  Instead of taking this almost effortless steps, Lau instructed a United Kingdom firm of solicitors to obtain from the District Probate Registry of Manchester of the High Court of Justice a copy of the Grant showing that the net value of Kal’s estate amounted to £91,113 only to support his argument that Kal could not have been the source of funds of US$38 million.  I would give little weight to that piece of evidence.

37.  I should also add it is not uncommon for people to cause funds to be transferred by a third party to discharge his obligation owed to the transferee.  A spouse writes cheques to discharge the debt of the other. Parents write cheques to discharge the obligation of their children and vice versa.  The same happens in the commercial world.  It would not be surprising to find that the transfers or some of them were made by Kal’s companies or associated companies.  But not until Lau produces some evidence as to suggest that the funds may have come from sources other than Kal, there is no burden on the Plaintiff to explain or to prove the source of funds which he put in Lau’s hands.

38.  In conclusion, I find that Lau has not discharged his evidential burden of putting the Plaintiff to explanation.  I am satisfied that the Plaintiff has discharged the legal burden of proving that Kal was the owner of the funds remitted to Lau via the BEA Accounts and that this is a suitable case for summary judgment.  The burden is on Lau to show that he has a good defence or raise some triable issues or that the case should otherwise proceed to trial. 

The capacity defence

39.  The capacity defence is premised on two facts: viz (1) Alexander and not Kal was the source of funds; and (2) that Kal was an agent of Alexander.  It is trite that an agency terminates upon the death of the agent.  The deceased agent’s estate has no locus standi to sue on behalf of his principal: Bowstead & Reynolds on Agency [14].  Lau bears at least the evidential burden of proving the source of funds came from Alexander and an agency between Alexander and Kal.

40.  That it was Alexander who provided the funds to Kal to transfer to the two BEA Accounts is the lynchpin of this defence.  Lau could, as I have suggested earlier, have obtained bank documents evidencing the transfer of funds from sources other than Kal to discharge his evidential burden.  He did not.  He could even have taken a step further by asking Alexander to produce more direct evidence that it was Alexander who provided funds to Kal to effect the transfers.  He did not.  All he has is his bare assertion.  Mr Chan argued that these are not necessary for the purpose of raising a triable issue or showing a credible defence.  He suggested that Alexander might wish to maintain confidentiality which was why he decided to conduct his financial dealings through intermediary agents.  He submitted that Alexander’s reticence to come forward was not unsurprising and that did not diminish Lau’s fiduciary or trustee’s responsibilities to him.  He said it was for the defendant to decide at trial whether to produce that witness.

41.  The starting point in showing a bona fide defence is that the defendant has to condescend on particulars.  The type and nature of evidence required depends on the circumstances.  If his case is that someone other than the plaintiff was the supplier of the funds, it is reasonable for him to at least identify that someone and the source of fund and provide such particulars as bank account, date of transfer and references if relevant.  Such evidence should preferably be given by way of affidavit evidence from that someone supported by documentary evidence, such as bank statement, transfer slip or remittance advice, etc.  But Lau’s case about the funds is absolutely devoid of particulars.  Alexander is based in New York, a jurisdiction in which he could have no problem making an affidavit and forwarding it to Lau.  Lau’s argument about confidentiality and Alexander’s reticence to come forward and his defence is just moonshine.

42.  Lau’s case of agency as gathered from his defence and affirmation is as follows.  He was and is an investment advisor of the President of Kazakhstan.  During his visit to Kazakhstan in mid‑2008, he was introduced to Alexander who was a professional investor and also an advisor for the President of Kazakhstan.  Later, his business acquaintance in Kazakhstan, Birzhan Murataliyev (“Birzhan”) arranged a meeting between him and Alexander in London where they had a general discussion about investment in Hong Kong.  In October 2008, Birzhan introduced him to Kal.  Then Alexander told Lau that Birzhan and Kal would be his intermediary agents for the intended investments in Hong Kong. Shortly afterwards, Birzhan came to Hong Kong and discussed with him about Alexander’s proposed investment through Birzhan and Kal as his agents. Helios and King Master were set up with Lau, Birzhan and another Kazakhstan citizen as shareholders.  The two BEA Accounts were opened with Lau as the sole signatory.  He denied having entered into the 2008 Agreement or the Memorandum or Investment Agreement with Kal.  But he also produced no documentary evidence to support his allegation of having reached this US$38 million investment agreement with Birzhan on behalf of Alexander.  But on the other hand, he and Kal conducted their affairs along the lines of the Investment Agreement.

43.  Lau also relied on a number of emails and letters from Kal to Lau in which Kal mentioned “… the funds investing on our behalf” or “us” or “we”.  He argued that this is evidence that the fund held by Lau were not owned or did not belong solely to Kal.  When these correspondences are critically examined, all except two, are found to be related to other joint investments using different bank accounts.  Obviously, Lau was a party to other joint investments of Kal and his associates. In the circumstances, the use of the words “us” and “we” in the two correspondences could easily be explained as a matter of inadvertence.

44.  Most fatal to Lau’s defence is the Repayment Agreement.  The authenticity of this agreement is not in dispute and Lau admitted signing this agreement.  The opening clause of this agreement reads:

“ The undersigned Dominic Tak Ming Lau (hereinafter called ‘Agent’), has been appointed as investment agent for Mr Kal Dimitrov (hereinafter called ‘Principal’) for Funds withdrawn from the accounts of King Master Development Ltd and Helios Holdings Ltd since the formation [of] these companies in Hong Kong. The full amount outstanding is US$24.8 [million]. The full amount is subject to confirmation by both parties.”

At the end of that agreement, Kal signed as principal and Lau signed as agent.  Clearly, Kal was acting as principal in his own right and Lau recognised he was acting as Kal’s agent.  The agreement referred to the investment, the BEA Accounts and acknowledged that the outstanding sum payable to Kal was US$24.8 million subject to confirmation.  In the face of this agreement, how can Lau’s argument that Kal was acting as Alexander’s agent be sustained?  How can his oral evidence contradict the express terms of this agreement in writing?

45.  Lau alleged that at the time he was having a meeting with Kal, Birzhan, two men and a woman in the Grand Hyatt Hotel to discuss how to resolve their differences.  He was presented with the agreement and the other party insisted him to sign.  He asked for time to consult his accountants and lawyers, but they refused to let him do so.  He signed as he felt outnumbered and intimidated.  He did not say he was actually intimidated.  He only vaguely suggested that the Repayment Agreement was void because of some vitiating factors, but he did not say what those factors were.  In any event, his account is unbelievable.  On his case, his agreement was with Alexander, not with Kal; Kal and Birzhan were Alexander’s agents and he never signed any agreement with Kal.  If so, why would he sign this agreement with Kal as principal and not as agent of Alexander?  Why would Birzhan go along with this design in breach of his fiduciary duty as Alexander’s agent?  Putting aside these doubts about his account, he is a person of full age and understanding and someone capable of managing investments of over billions of dollars.  He must be bound by the act of his signature.  In Ming Shiu Chung & Others v Ming Shiu Sum & Others [15], Ribeiro PJ said:

“ 84. … Reliance is universally placed on signatures appended to documents by persons of full age and understanding as signifying the signatory’s assent or adherence to what that document states. Where such a person has signed a document which purports to have legal effect, the law has never regarded it as enough to show that he signed without knowing its contents for the document to be disavowed. It is an everyday occurrence that people sign documents without reading the small (or even the large) print and therefore sign without actually knowing the terms (or all the terms) of the document signed. But they are held to the documents which they have chosen to sign unless there is shown to be a recognized legal basis for concluding that their apparent consent has been in some way vitiated or that reliance on that document by some other person falls into some category of unconscionable conduct justifying relief in equity.”

Except for his assertion of feeling being outnumbered and intimidated, he offered no evidence as to why his consent has been vitiated or why it would be unconscionable to allow reliance to be placed on this agreement.  He is a man of full age, understanding and experience. He was in a public place, a prestigious hotel and in the presence of his friend, Birzhan.  There was no suggestion of threat or violence, fraud, undue influence or inducement.  If he felt intimidated, he could just stand up and leave or ask the waiter to call the police.  If he owed fiduciary duty to Alexander, why should he sign the Repayment Agreement acknowledging Alexander’s funds in his hands as debt owing to Kal? He is bound by his signature on this agreement.  I give full weight to this document. 

46.  Lau gave some particulars about his agreement with Alexander.  They are all bare assertions.  Anyway, if believable, he would be entitled to leave to defend.  However, he did not produce any affirmation from Alexander or any document in support.  That is not fatal.  But, his assertion is utterly unbelievable for the following reasons. Firstly, the lynchpin of his capacity defence is that Alexander was the source of the investment funds.  That premise fell apart.  Secondly, it is incredible for an agreement of that magnitude to be wholly unsupported by any written document.  Thirdly, in the face of the Repayment Agreement which is not disputed, his assertion is obviously incredible.  He cannot contradict the written terms of an agreement by oral evidence.  Fourthly, Lau demonstrated lack of good faith in his conduct of this litigation as shown in his dispute about transfer by Kal of the US$35 million into the BEA Accounts and of his transfer out from the BEA Accounts to his accounts with Chong Hing Bank and Deutsche Bank.  He was obviously taking advantage of the fact that Kal could not be here to answer his accusation. Even if he were able to file affirmations by Birzhan or Alexander, those affirmations would not have any bearing unless they deal with the above points in a credible manner.  He failed to condescend to particulars which are sufficient to deal with the above points.  On the totality of the evidence, I am not satisfied that Lau’s capacity defence is credible.  Simply put, his defence is, “I am not going to return the money you put under my care because I say it belongs to a third person”.  It is sheer moonshine.

The confirmation defence

47.  The Plaintiff is claiming the sum of US$24.24 million, being the sum of US$24.8 million stated in the Repayment Agreement less two sums of US$240,000 and US$320,000 paid on 24 April 2012 and 17 September 2012 respectively.  Lau argued that the sum of US$24.8 million under the Repayment Agreement was not yet due for payment because the amount had not been confirmed.  There is no dispute that the following events took place around the time of making of the Repayment Agreement.  On 24 April 2012, Lau paid Kal US$240,000.  Two days later, on 26 April 2012 the Repayment Agreement was signed acknowledging a debt of US$24.8 million.  On the face, it is more likely than not that the amount acknowledged on 26 April 2012 must have taken into account the amount paid two days before.  The outstanding debt as at that day would still be US$24.8 million.  If the payment of 24 April 2012 was made in anticipation that it would be deducted and the amount owing confirmed later, then the amount outstanding would be US$24.56 million.  In breach of the Repayment Agreement, Lau did not pay the sum of US$12 million on or before 27 July 2012.  On 17 September 2012, he paid another sum of US$320,000.

48.  Then, according to the Plaintiff’s case about four months prior to that payment, ie on 29 May 2012, the parties executed the Pledge Agreement acknowledging a debt of US$24,500,000.  Lau disputed having entered into or signed that agreement. 

49.  On Lau’s argument, the debt under the Repayment Agreement was not payable because of lack of confirmation.  On that logic, when he paid the sum of US$320,000 on 17 September 2012, he was making a confirmation.  In the absence of explanation from Lau to the contrary, indeed there was none, that payment amounted to a confirmation. I shall next consider the parties’ position under the two different scenarios.

50.  If there was no Pledge Agreement, the amount outstanding as at 17 September 2012 would be US$24.48 million (ie US$24,800,000 − US$320,000) or US$24,240,000 (ie US$24,800,000 – US$240,000 – US$320,000), depending on whether the sum paid on 24 April 2012 had been taken into account before signing the Repayment Agreement.

51.  If the parties had entered into the Pledge Agreement, then the debt would have been reduced from US$24,800,000 or US$24,560,000 to US$24,500,000 as at the date of the Pledge Agreement and that would also have taken into credit the sum of US$240,000 paid on 24 April 2012. The Pledge Agreement must be a confirmation.  Discounting the sum paid by Lau on 17 September 2012, the amount outstanding as at that date would be US$24,180,000 (ie US$24,500,000 − US$320,000).  This scenario would be more favourable to Lau.  As the Pledge Agreement is part of the Plaintiff’s case and appears more credible, I shall enter judgment for this lesser amount even though it is disputed by Lau and is less favourable to the Plaintiff.

Forgery and other alleged triable issues

52.  Lau alleged that Kal had forged his signature on the Memorandum, the Investment Agreement and the Pledge Agreement.  Mr Chan submitted that these are serious allegations which could not be disposed of summarily and should be resolved at trial with witnesses cross‑examined.  He also suggested that the Plaintiff’s claim should be struck out in the light of these forged documents and/or the Plaintiff’s abuse of the process of the court.  As the above analysis shows, Lau’s liability is basically determined on the basis of the Repayment Agreement which he acknowledged was signed by him.  The 2008 Agreement, the Memorandum and the Investment Agreement all merged into the background.  As for the Pledge Agreement, it was assumed for his benefit.  As for the allegation of forgery, there is not even prima facie evidence.  These agreements and the allegation of forgery raised no triable issues.

53.  There are also disputes about the amount remitted into the BEA Accounts by Kal and the amount transferred by Lau out of those accounts to his own account with Chong Hing Bank and Deutsche Bank.  For the same reason, these disputes have no bearing in view of Lau’s admission in the Repayment Agreement that he owed Kal US$24,800,000.  The amount admitted must have taken into account all sums remitted into the BEA Accounts, all sums transferred out of those accounts and all payments made by Lau to Kal.  These disputes could not raise any triable issue.  Besides, Lau is the holder and signatory of these accounts.  He did not even plead or adduce evidence of the correct amount according to these accounts.  He merely put the Plaintiff to strict proof and dressed up the dispute as a triable issue.  His disputes about these amounts are not made bona fide and raised no triable issue at all. 

54.  There are other issues which Mr Chan argued were triable.  I have considered them but do not find it necessary to specifically deal with them.  They are frivolous and have no bearing on the Plaintiff’s application for summary judgment.

Conclusion

55.  For the above reasons, I am satisfied that this is a case suitable for summary judgment.  I am also satisfied that the Defendant has not shown any credible defence or raised any triable issue.  Accordingly, I enter judgment for the Plaintiff in the amount of US$24,180,000 with interest.  Interest shall be calculated at the rate of 1% per month from 27 July 2012 under the date of issue of the writ and 1% above prime rate from that date until the date of this judgment and thereafter at judgment rate until payment. There shall also be a costs order nisi that the Defendant shall pay the Plaintiff’s costs on party and party basis, to be taxed, if not agreed.