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DCCJ 3769/2019
[2024] HKDC 1193
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CIVIL ACTION NO 3769 OF 2019
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BETWEEN
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FINE WINE CELLAR LIMITED (緻尚酒業有限公司) |
Plaintiff |
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and
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KOO YING YING (顧盈盈) |
1st Defendant |
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THAT’ S PTE LTD |
2nd Defendant |
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| Before: |
His Honour Judge Alan Kwong in Court |
| Dates of Hearing: |
9 to 12, 15 and 17 July 2024 |
| Date of Judgment: |
30 July 2024 |
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JUDGMENT
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A. INTRODUCTION
1. The present action is concerned with the sale and purchase of some Australian red wines that were never delivered. The crux of the parties’ dispute is whether the 1st Defendant is a contractual party to the transaction in question.
2. In gist:-
(1) The Plaintiff says that it did enter into a binding agreement with the 1st Defendant; whereas
(2) The 1st Defendant says that she was merely an innocent middleman, and the party that contracted with the Plaintiff was the 2nd Defendant (which is a company incorporated in Singapore).
3. In the present trial, Mr John Hui together with Mr Billy Liu appear for the Plaintiff, and Mr Ernst Ng together with Ms Nicole Chui appear for the 1st Defendant.
4. The 2nd Defendant does not seek to participate in these proceedings. However, the 2nd Defendant’s sale director, namely Mr Timothy Lee, testified for the 1st Defendant. Banging the same drum with the 1st Defendant, Mr Lee’s stance is that the 2nd Defendant was the one who contracted with the Plaintiff, and the 2nd Defendant accepts full liability.
B. THE RESPECTIVE CASE OF THE PARTIES
B1. The Plaintiff’s Case
5. The Plaintiff is a Hong Kong company that has been carrying on a business of trading wines and liquors. It is owned and controlled by Mr Kwok Hong Ping (“Mr Kwok”).
6. The 1st Defendant is the niece of Mr Koo Ka Fung (“Mr Koo”). Mr Koo was a friend of Mr Kwok, and he carried on a business of trading dutiable commodities under the tradename of World Trading Company (“WTC”).
7. In the circumstances, the 1st Defendant was introduced to Mr Kwok in around early 2017. From time to time, she approached Mr Kwok to explore business opportunities.
8. In light of his friendship with Mr Koo, Mr Kwok wished to offer some support to the 1st Defendant. Thus, he instructed the Plaintiff’s purchasing manager, namely Mr Chan Yin Shing Vincent (“Mr Vincent Chan”), to liaise with the 1st Defendant.
9. Since around May 2018, Mr Vincent Chan and the 1st Defendant had kept exchanging messages with each other via WhatsApp in regard to intended sale and purchase of wines and liquors.
10. According to the primary pleaded case of the Plaintiff, on 27 August 2018 (at 15:59:14) Mr Vincent Chan acting on its behalf entered into a binding agreement with the Defendant via WhatsApp for purchasing 2,200 cases of Australian wines at the aggregate purchase price of AUD539,990. The details of the transaction are as follows:-
| Wine products |
Number of
cases[1] |
FOB unit costs
(AUD/Case) |
Sub-Total
Amount (AUD)
|
| 2016 Penfolds Bin 389 Wines 750 ml (Cork) (“Penfolds Bin 389 Wines”) |
800 |
324.50 |
259,600.00 |
| 2016 Penfolds Bin 407 750 ml (“Penfolds Bin 407 Wines”) |
800 |
324.50 |
259,600.00 |
| 2017 Rawson Shiraz Wines Cabernet 750 ml (Cork) (“Rawson Shiraz Wines”) |
400 |
34.65 |
13,860.00 |
| 2017 Rawson Merlot Wines 750 ml (Cork) (“Rawson Merlot Wines”) |
100 |
34.65 |
3,465.00 |
| 2017 Rawson Cabernet Sauvignon Wines 750 ml (Cork) (“Rawson Cabernet Sauvignon Wines”) |
100 |
34.65 |
3,465.00 |
| TOTAL: |
539,990.00 |
11. In their opening submissions, Mr John Hui together with Mr Billy Liu (for the Plaintiff) submit that:-
(1) The WhatsApp messages exchanged between the Plaintiff’s Mr Vincent Chan and the 1st Defendant from 18 August to 27 August 2018 show that (a) the 1st Defendant was the contracting party; (b) the quantities of the subject matters (ie the aforesaid Australian wines) were agreed; (c) the purchase prices (ie the aggregate sum of AUD539,990 as well as the unit prices of the Australian wines) were agreed; (d) the location of the wines (ie Australia) was identified; (e) the terms of the shipment (ie FOB) were agreed; (f) the documents to be provided by the 1st Defendant (ie health certificate, certificate of analysis and certificate of origin) were agreed; and (g) the delivery period (ie two to three weeks) was agreed.
(2) After the aforesaid matters were discussed and agreed, on 27 August 2018 (at 15:57:07), the 1st Defendant sent a WhatsApp message to Mr Vincent Chan asking him “Is this ok?”. In response, Mr Vincent Chan sent a message (at 15:58:59) to the 1st Defendant where he said “OK, 就咁”. The 1st Defendant then confirmed with Mr Vincent Chan, and she said “Ok thanks” in her message at 15:59:14.
(3) In these premises, there has been a concluded agreement between the parties, which is binding on the 1st Defendant.
12. Pursuant to the 1st Defendant’s request[2], on 27 August 2018 at around 16:38, Mr Vincent Chan sent a purchase order (the “1st Purchase Order”) to the 1st Defendant via her personal email account. The 1st Purchaser Order contained the information set out in paragraph 10 above. In his oral evidence, Mr Vincent Chan said that he issued the 1st Purchase Order to WTC because Mr Kwok caused his companies to issue purchase orders to WTC on previous occasions, and he adopted the precedents in his computer. He also said he was given to understand that WTC was controlled by the 1st Defendant.
13. In the evening on 27 August 2018, the 1st Defendant sent messages[3] to Mr Vincent Chan via WhatsApp asking whether the Plaintiff felt “comfortable to change the P.O. to [her] other Singapore company” and agreed to effectuate “the payment to Singapore”. Mr Vincent Chan indicated to the1st Defendant that her request was agreeable[4]. The 1st Defendant then apologized for the inconvenience caused[5]. When the 1st Defendant provided Mr Vincent Chan with the information of her “other Singapore company” (which transpired to be the 2nd Defendant), she described the same as “the P.O. Company attn. to [her] name.”[6]
14. In the circumstances, on 28 August 2018 (ie the next day), Mr Vincent Chan sent another purchase order (the “2nd Purchase Order”) to the 1st Defendant’s personal email account. Like the 1st Purchase Order, the 2nd Purchase Order also contained the information set out in paragraph 10 above. It was addressed to the 2nd Defendant, and an address in Singapore was stated. In his oral evidence, Mr Vincent Chan said that he did seek Mr Kwok’s approval. When Mr Kwok was cross-examined, he stressed that the Plaintiff dealt with the 1st Defendant, and he would not agree that a huge sum be paid to a foreign company, which was not known to him at all.
15. After the 2nd Purchase Order was issued, the 1st Defendant provided an invoice dated 28 August 2018 (the “Invoice”) to Mr Vincent Chan via WhatsApp. Pursuant to such Invoice (which was in the name of the 2nd Defendant), the Plaintiff paid the full purchase price (ie an aggregate sum of AUD539,990) into the 2nd Defendant’s bank account on 30 August 2018.
16. The Plaintiff stresses that it is common for sellers of dutiable commodities to request purchasers to make payments to their ultimate suppliers or related companies. For instance, there were two previous occasions in August 2018 where Mr Kwok placed orders for tobacco products with the 1st Defendant/TWC but he was billed or invoiced by some third party corporate vehicles nominated by them.
17. Against the said background, the Plaintiff contends that the Purchase Orders and the Invoice merely served the purpose of confirming the items being purchased and the method of payment. Whilst these documents are evidence that shed light on the identities of the contracting parties, they do not provide the conclusion.
18. It is the Plaintiff’s primary case that it entered into a final and binding sale and purchase agreement with the 1st Defendant via the WhatsApp messages exchanged between herself and Mr Vincent Chan (who had authority to act on its behalf).
19. The Plaintiff also advances two alternative cases (which are based on the same facts but different legal analysis):-
(1) The Plaintiff’s first alternative case is that the 2nd Purchase Order constituted an offer from the Plaintiff to purchase the wines set out in paragraph 10 above, and the Invoice constituted an acceptance of the Plaintiff’s offer. When the 2nd Defendant issued the Invoice, it accepted the Plaintiff’s offer. However, it did so in the capacity as an agent of the 1st Defendant, who was a disclosed principle.
(2) In the further alternative, it is contended that even if the 2nd Purchase Order and the Invoice represented a contract with the 2nd Defendant, there was still a collateral agreement between the Plaintiff and the 1st Defendant, whereby the 1st Defendant warranted that she would procure the 2nd Defendant to perform the contractual obligations owed to the Plaintiff.
20. It is not in dispute that the 800 boxes of Penfolds Bin 407 Wines (the price of which was agreed at AUD259,600) have never been delivered to the Plaintiff, and that other wines purchased by the Plaintiff were delivered late.
21. Envisaging that the 800 boxes of Penfolds Bin 407 Wines would be delivered, the Plaintiff entered into a sub-sale agreement with a sub-buyer in Guangzhou named “廣州勝豐行貿易有限公司” (hereinafter the “Guangzhou Sub-Buyer”). Since the Plaintiff was unable to perform its obligation under this sub-sale agreement, it paid a compensation sum of HK$200,000 to the Guangzhou Sub-Buyer.
22. In the premises, the Plaintiff claims:-
(1) restitution in respect of the purchase price of AUD259,600;
(2) damages in respect of loss of profit in the amount of AUD16,450 that was expected to arise from the transaction with the Guangzhou Sub-buyer; and
(3) damages in respect of the compensation sum of HK$200,000 paid to the Guangzhou Sub-Buyer.
B2. The 1st Defendant’s Case
23. The 1st Defendant does not dispute the facts that:-
(1) she is Mr Koo’s niece;
(2) Mr Koo owned the business under WTC (which was his sole proprietorship); and
(3) she has been working as the chief operating officer of WTC since 2017.
24. However, the 1st Defendant says that:-
(1) WTC traded tobacco products, not wines and/or liquors.
(2) She was introduced to Mr Kwok at a restaurant on an occasion around May 2018. Subsequently, Mr Kwok used his companies to place orders for tobacco products with WTC through her.
(3) Although she did from time to time send information regarding wines and liquors to Mr Vincent Chan, she did not seek to solicit business from him, the Plaintiff and/or Mr Kwok’s companies.
(4) She had very limited knowledge of wines, and had no intention to sell wines to Mr Kwok and/or his companies.
25. The 1st Defendant is not in a position to deny the contents of her WhatsApp messages exchanged with the Plaintiff’s Mr Vincent Chan. However, she seeks to rely on a series of telephone conversations that allegedly took place on 24, 27, 29 and 31 August 2018 (collectively the “Alleged Telephone Conversations”). The 1st Defendant alleges that:-
(1) At around 3:40 pm on 24 August 2018, she expressly informed Mr Vincent Chan over the phone that the wines to be purchased belonged to a Singaporean company that was not under her control and that WTC (which only traded tobaccos) did not allow her to work with overseas companies.
(2) At around 9 am on 27 August 2018, she told Mr Vincent Chan over the phone that neither herself nor WTC could take up the order, and she was merely acting as a messenger between the Plaintiff and the Singaporean company (ie the 2nd Defendant). During the telephone conversation, she also (i) suggested to Mr Vincent Chan that he should speak to the Singaporean company and seek the approval of Mr Kwok, who had already been told that the Singaporean company was not hers; and (ii) relayed the Singaporean company’s request that the order be placed by the Plaintiff within the day.
(3) The 2nd Defendant’s sales director, namely Mr Timothy Lee, had a conversation with Mr Vincent Chan over the phone at around 10 am to 11 am on 27 August 2018. During the conversation, Mr Timothy Lee introduced himself to Mr Vincent Chan, and informed him that the contents of the 1st Purchase Order were incorrect, in that the same should be addressed to the 2nd Defendant instead of the 1st Defendant. Mr Timothy Lee further said that the 1st Defendant or her company would not participate in the transaction.
(4) On 29 August 2018, the 1st Defendant had a telephone conversation with Mr Kwok. She said to him that WTC did not sell the wines in question and that all she could do was to refer the 2nd Defendant to him. Mr Kwok agreed to liaise with the 2nd Defendant directly. He even asked the 1st Defendant to contact Mr Vincent Chan, and let him liaised with the 2nd Defendant directly.
(5) At around 7:55 am on 31 August 2018, on Mr Kwok’s specific request, the 1st Defendant called Mr Vincent Chan and updated him about the arrangement. She also asked Mr Vincent Chan to liaise with the 2nd Defendant. Mr Vincent Chan agreed and confirmed that he had Mr Kwok’s approval and that the payment was made to the 2nd Defendant.
26. Based on the contents of the 1st Defendant’s subsequent WhatsApp message on 15 November 2018 (at 23:34:23), Mr Ernest Ng (together with Ms Nicole Chui) emphasize that their client acted as a mere middleman between the Plaintiff and the 2nd Defendant upon the basis of goodwill, and she did not receive any monetary benefit.
27. Mr Ng and Ms Chui also heftily rely on the contents of the 2nd Purchase Order and the Invoice. They submit that these documents show the transaction was between the Plaintiff and the 2nd Defendant, and this was why the 1st Defendant was not identified in these documents at all.
C. WITNESSES
28. The Plaintiff adduces evidence from (i) Mr Vincent Chan; and (ii) Mr Kwok.
29. The 1st Defendant adduces evidence from (i) herself; and (ii) Mr Timothy Lee (ie the 2nd Defendant’s sales director)
D. LEGAL PRINCIPLES ON ASSESSING CREDIBILITY
30. In Lee Fu Wing v Yan Paul Po Ting [2009] 5 HKLRD 513 at 524, DHCJ Au (as Au JA then was) set out the well-established approach on assessing credibility. In the course of assessing the credibility of a party’s case, the Court shall consider the following matters:
(1) whether the party’s case is inherently plausible or implausible;
(2) whether the party’s case is, in a material way, contradicted by other evidence (documentary or otherwise) which is undisputed or indisputable;
(3) where it is shown that a witness has been discredited over one or more matters to which he has given evidence using the above tests, this is relevant to the assessment of his overall credibility; and
(4) the demeanour of the witnesses.
31. In the context of adjudicating a dispute in relation to an alleged oral agreement or understanding, in Joint and Several Trustees of Yeung Wing Sing v Yeung Wing Sing & Anor [2021] HKCFI 2018, at para 26, Yvonne Cheng J pointed out that:
(1) contemporaneous written documents and documents which came into existence before the problems in question emerged are of the greatest importance in assessing credibility;
(2) in deciding whether to accept a witness’ account, importance should also be attached to the inherent likelihood or unlikelihood of an event having happened, or the apparent logic of events;
(3) care should be taken in regard to the consistency of the witness’ evidence with undisputed or indisputable evidence, and the internal consistency of the witness’ evidence;
(4) care should be taken in drawing conclusions about truthfulness and reliability solely or mainly from the appearance of a witness or from the assessment of a witness’ character; and
(5) witnesses’ credibility should be tested by reference to the objective facts proved independently of their testimony, and regard should be had to their motives and to the overall probabilities.
32. The aforesaid approach is well-established: see eg Siu Miu Hua v Wu Ching Kuen [2024] HKCFI 232, para 84 (per Keith Yeung J); Hui Chi Ming v Koon Wing Yee [2023] HKCFI 93 at para 147; Salleh Abu Baker v Anway Ltd [2021] HKCFI 3407 at para 12 (per Recorder William Wong SC). I will apply the same in assessing the credibility of the parties’ case and their assertions.
E. DELIBERATION
E1. Whether there is a binding agreement between the Plaintiff and the 1st Defendant?
The Purchase Orders and the Invoice are not Conclusive
33. Throughout the trial, the 1st Defendant heftily relies on the contents of 1st and 2nd Purchase Orders as well as the Invoice (which was issued in the name of the 2nd Defendant). These documents appear to show that the 1st Defendant was not involved in the transaction, and the transaction was between the Plaintiff and the 2nd Defendant.
34. Despite the attractive submissions presented by Mr Ng and Ms Chui, I am of the view that I cannot confine myself to the four corners of the 2nd Purchase Order and the Invoice in disregard of the factual circumstances surrounding the transaction.
35. First of all, the 1st Defendant does not even advance an affirmative pleaded case that the 2nd Purchase Order and the Invoice ipso facto constitute the agreement in respect of the transaction in question.
36. More fundamentally, the 2nd Purchase Order and the Invoice do not touch upon some crucial aspects of the transaction:-
(1) As evidenced by the WhatsApp messages exchanged between the 1st Defendant and the Plaintiff’s Mr Vincent Chan from 23 August 2018 at 18:07:26 to 24 August 2018 at 11:40:15, there was extensive discussion on the delivery period. Initially, the 1st Defendant said that the delivery period would be around two to three weeks, but in the worst scenario it could take as long as three months. Mr Vincent Chan immediately indicated that this was unacceptable. He was only satisfied when the 1st Defendant indicated that the loading period or delivery period could be between two weeks to three weeks.
(2) As a matter of commercial common sense, no buyer would have agreed to wait for an indefinite period of time. Indeed, in his WhatsApp messages on 24 August 2018 at 14:21:27 and 17:41:32, Mr Chan made known to the 1st Defendant that the Plaintiff had a sub-buyer (or client), and the intended transaction was “subject to [its] feedback”. It was obvious that but for the 1st Defendant’s assurance regarding the delivery period, the Plaintiff would not have agreed to enter into the transaction at all. In the circumstances, the delivery period must be an important term in the agreement in respect of the transaction.
(3) However, the 1st and 2nd Purchase Orders as well as the Invoice were completely silent on the delivery period. Not an iota in these documents shed light on the period within which the wines being purchased should be delivered.
37. In the premises, there is no question that the Purchase Orders and the Invoice did not exhaustively set out the contractual dealings between the parties. These documents were not even created or designed for the purpose of setting out the contractual relationship between the parties on an exhaustive basis. Had this been the intention of the parties, the delivery period (which was an important matter) would have been stated expressly in the Purchase Orders and the Invoice. This was not the case.
38. In my view, the Purchase Orders and the Invoice are only evidence that sheds light on the contractual dealings between the parties. They do not ipso facto provide conclusive answers to the disputes in this action.
39. It is necessary to understand and examine these documents in light of the factual circumstances in which they were created as well as the communication between the parties at the time. After all, the Court must consider the entire course of the negotiation and objectively assess the words and conducts of the parties: see Chitty on Contract (35th Ed) at para 4-034; Formation and Variation of Contract (4th Ed) at para 3-08; Devani v Wells [2020] AC 129 at para 17 (per Lord Kitchin JSC); RTS Flexible Systems Ltd v Molkeri Alois Muller GmbH Co KG (UK Production) [2010] 1 WLR 753 at para 45 (per Lord Clarke JSC).
40. In this connection, Mr Ng and Ms Chui (for the 1st Defendant) submit that the Plaintiff’s case is even contradicted by the contents of the Purchase Orders and the Invoice. Based on the discrepancies in the contents of the table that Mr Vincent Chan sent to the 1st Defendant on 23 August 2018 (at 14:18:21) (hereinafter the “23rd August Table”) and the contents of the 1st Purchase Order, they contend that:-
(1) The parties could not have reached an agreement on 27 August 2018 at 15:58:14 through WhatsApp as alleged by the Plaintiff; and
(2) The parties’ agreement must be capsulated by the 2nd Purchase Order and the Invoice, which came into existence subsequently.
41. Ms Chui extensively cross-examined Mr Vincent Chan on this point on the first day of trial:-
(1) Ms Chui pointed out to Mr Chan that:-
(a) Whilst the 23rd August Table showed that the Plaintiff wished to purchase 700 boxes of Penfolds Bin 389 Wines and 700 boxes of Penfolds Bin 407 Wines, the 1st Purchase Order (which was sent to the 1st Defendant subsequently on 27 August 2018 at 16:11:38) as well as the 2nd Purchase Order (which was sent to the 1st Defendant on 28 August 2018 at 13:06:06) stated that the Plaintiff would purchase 800 boxes of Penfolds Bin 389 Wines and 800 boxes of Penfolds Bin 407 Wines.
(b) Further, the 23rd August Table did not show the vintage of the Penfolds wines to be purchased, and this information only appeared in the 1st and 2nd Purchase Orders (which were sent to the 1st Defendant subsequently).
(2) In these premises, it was suggested to Mr Chan that the parties could not have reached an agreement as of 27 August 2018 at 15:58:14. This was because at this time, the parties had not yet agreed the quantities of the wines being purchased and the vintage(s) or the year(s) of production. Such information was only stated for the first time when Mr Chan issued the 1st Purchase Order.
42. As I understand, the purpose of this line of attack was to demonstrate that the Plaintiff’s Mr Vincent Chan and the 1st Defendant did not reach any agreement through WhatsApp at all, and the agreement in respect of the transaction was only formed subsequently when the 2nd Purchase Orders and the Invoice were issued and signed. Since the 2nd Purchase Orders and the Invoice did not show the 1st Defendant’s involvement at all, the 1st Defendant could not be privy to the transaction.
43. On the evidence before me, I am unable to accept this contention.
44. Insofar as the quantities of the wines are concerned, at one stage Mr Chan appeared to be confused about the relevant events. However, during re-examination, Mr Chan was shown the relevant contemporaneous WhatsApp messages and the documents attached to the relevant messages. Thereupon, Mr Chan was able to confirm that the relevant events (which are recorded in and evidenced by the contemporaneous WhatsApp messages) were as follows:-
(1) On 23 August 2018 (at 14:18:21), Mr Chan sent the 23rd August Table to the 1st Defendant via WhatsApp indicating that the Plaintiff wished to purchase totally 2,000 boxes of wines, ie 700 boxes of Penfolds Bin 389 Wines, 700 boxes of Penfolds Bin 407 Wines, 200 boxes of Rawson Cabernet Sauvignon Wines. 200 boxes of Rawson Merlot Wines and 200 boxes of Rawson Shiraz Wines[7]. The 24th August Table did set out the unit price of the wines, which the parties agreed.
(2) On 24 August 2018 (at 15:35:40), the 1st Defendant via WhatsApp proposed to Mr Chan that the Plaintiff could additionally purchase 200 boxes of Penfolds Bin 389 Wines and 200 boxes of Penfolds Bin 407 Wines. In other words, the Plaintiff could purchase totally 2,400 boxes of wines. Upon receiving the 1st Defendant’s WhatsApp message, Mr Chan had a telephone conversation with the 1st Defendant at around 15:40. In her subsequent messages on 15:47:36 and 15:48:40, the 1st Defendant indicated that a 40-footer container could be booked to ship the 2,400 boxes of wine.
(3) In the morning on 27 August 2018 (from 08:51:00 onwards), the 1st Defendant and Mr Chan had further discussions via WhatsApp. They also had a telephone conversation shortly after 09:06:19. In short, the 1st Defendant proposed that the Plaintiff should only additionally purchase 200 boxes of Penfolds Bin 389 Wines and Penfolds Bin 407 Wines (rather than 400 boxes). It appears there was concern that the container would be too heavy (see the 1st Defendant’s message on 24 August 2018 at 16:03:31). Due to this concern, Mr Chan wished to explore the possibility as to whether it was feasible to use another container to ship the remaining 200 boxes (see his message at 8:52:43). In response, the 1st Defendant indicated that it would be ideal to deliver the wines in one consolidated shipment, and the arrangement that Mr Chan wished to explore would be too troublesome (see her messages at 12:35:45 and 12:40:07). In light of the 1st Defendant’s comments, Mr Chan indicated that the parties should forget about the additional 200 boxes (see his message at 12:40:20), and the Plaintiff was contented to purchase only 100 boxes of Penfolds Bin 389 Wines and 100 boxes of Penfolds Bin 407 Wines[8] (ie totally 200 boxes rather than 400 boxes). This was acceptable to the 1st Defendant. She sent a message saying “ok” at 12:43:14 in response to Mr Chan’s earlier message that the parties should forget about the additional 200 boxes.
(4) In the afternoon on 27 August 2018 at 15:56:53 and 15:57:07, the 1st Defendant sent messages to Mr Chan asking him whether the Plaintiff agreed that the purchase included 400 boxes of Rawson Shiraz Wines, 200 boxes of Rawson Merlot Wines and 200 boxes of Rawson Cabernet Sauvignon Wines. The 1st Defendant asked Mr Chan “is that ok”, and Mr Chan responded “OK, 就咁”. The 1st Defendant then re-confirmed with Mr Vincent Chan, and she said “Ok thanks” (see her message at 15:59:14). The 2nd Defendant then went on to ask Mr Chan to send her a purchase order (see her message at 15:59:21).
45. As regards the vintage or year of the Penfold wines being purchased:-
(1) By the WhatsApp messages on 22 August 2018 at 19:01:08 and 19:02:20, Mr Vincent Chan asked the 1st Defendant to provide him with the “vintages” of the wines. In response, at 19:03:15 the 1st Defendant indicated that she would “check the vintages first”. Shortly thereafter, at 19:36:16 the 1st Defendant sent a list that was titled “September New Vintage Cork” to Mr Chan. In this list, it was stated that the vintage or year of production in respect of Penfolds Bin 389 Wines and Penfolds Bin 407 Wines (as well as all other Penfolds wines available for sale) was 2016.
(2) In his oral evidence, Mr Chan further said that the Penfolds wines being purchased were sourced from Treasury Wine Estate (“TWE”), which was the official distribution channel nominated by the Australian chateau that manufactured Penfolds wines. In the circumstances, it was known and understood that the Penfolds wines available must be produced in 2016, which was the latest production available at the time.
46. In light of the aforesaid matters, Mr Chan confirmed (in his witness statement[9] and in his oral evidence given during re-examination) that as of 27 August 2018 at 15:59:14, the parties had already conclusively agreed, inter alios, that the quantities of the wines being purchased as well as the years of production. Mr Chan was also adamant that based on the agreement and consensus arising from his discussions with the 1st Defendant, he drafted the 1st Purchase Order and sent the same to the 1st Defendant at around 16:38:14 by email.
47. I accept Mr Vincent Chan’s evidence:-
(1) Mr Chan’s account of events as set out in paragraph 44 above is based on, and consistent with, his contemporaneous WhatsApp messages exchanged with the 1st Defendant, which are incontrovertible
(2) Based on the contemporaneous exchange set out in paragraph 45(1) (which are incontrovertible), there is no question that the vintage (or year of production) in respect of the Penfolds Bin 389 Wines and Penfolds Bin 409 was 2016, and both Mr Chan and the 1st Defendant knew that this was the case. Further, Mr Chan’s explanation set out in paragraph 45(2) above also makes sense to me.
(3) All in all, it appears to me that Mr Chan is an honest and reliable witness who has nothing to hide. Whilst his answers were direct and succinct, he was also willing to make concessions in a fair manner[10]. Due to lapse of time and the amount of details involved, it is understandable as to why the Mr Chan could only give an accurate account of the events upon being taken to the relevant contemporaneous messages and documents.
48. In the premises, I disagree with the suggestion that the Plaintiff’s primary case is contradicted by the contents of the Purchase Orders. It would be wrong in principle to compare the contents of the 24th August Table against the contents of the Purchase Orders without taking into account (i) the communication between the 1st Defendant and Mr Chan in the meantime; and (ii) the commercial background relating to the transaction.
49. In light of the contemporaneous messages, the contemporaneous documents and Mr Vincent Chan’s evidence (which I accept):-
(1) I find that the quantities of wines being purchased, the unit prices of the wines[11], the types of the wines, the years of production[12], the shipment terms, the delivery period as well as the documents to be provided had already been agreed through the parties’ WhatsApp messages as of 27 August 2018 at 15:58:14.
(2) I also find that based on the agreement and consensus in his communication with the 1st Defendant through the WhatsApp messages before 27 August 2018 at 15:58:14, Mr Vincent Chan prepared the 1st Purchase Order and issued the same to the 1st Defendant on the same day at around 16:38.
(3) I reject the suggestion that the agreement in respect of the transaction was only formed subsequently when the 2nd Purchase Order and the Invoice were issued and signed.
The Role of the 1st Defendant and the Reason why she liaised with Mr Vincent Chan
50. Before I further analyze the communication that led to the transaction in question, at this juncture I shall deal with the 1st Defendant’s suggestion that she never had the intention to trade wines.
51. In paragraph 11 of her witness statement, the 1st Defendant said that she simply, as a matter of courtesy, facilitated Mr Vincent Chan to purchase the wines that he needed and that she had no commercial reason to represent the 2nd Defendant at all. In her oral evidence, the 1st Defendant kept emphasizing that (i) she merely wanted to provide “good services” for Mr Kwok’s companies as Mr Kwok was an important client of WTC at the time; and (ii) she did not want to trade wines because WTC only traded tobacco products and her knowledge of wines was limited.
52. I reject all these allegations, which were plainly untrue.
53. The 1st Defendant’s suggestion that she had no intention to trade wines is diametrically contradicted by her contemporaneous WhatsApp messages exchanged with Mr Vincent Chan:-
(1) In May 2018, the 1st Defendant started sending a series of WhatsApp messages to Mr Vincent Chan in regard to specific wine products:-
(a) By her WhatsApp message on 24 May 2018 at 16:33:15, the 1st Defendant asked Mr Vincent Chan the prices at which Mr Kwok’s companies purchased Moet champagnes and the quantities they usually ordered. Upon receiving Mr Chan’s response, the 1st Defendant indicated that some imports from Europe were available. If 1,800 boxes of Moet Champagne were ordered, the purchase price could be US$200 per case. However, if less than 1,800 boxes were ordered, the purchase price would be higher (see the 1st Defendant’s messages from 16:54:29 to 17:06:50).
(b) On 2 August 2018 at 20:36:17, the 1st Defendant sent a list of wines (most of which were Penfolds wines) to Mr Vincent Chan via WhatsApp, and she indicated that these wines were the “lately stocks” (see her message at 20:36:28). This triggered Mr Chan’s interest, and he raised enquiries regarding the quantities (see his messages from 20:48:23 to 21:00:08). The 1st Defendant indicated that she would revert to him (see the message at 21:07:51).
(c) On 3 August 2018 at 12:54:38, the 1st Defendant sent a WhatsApp message to Mr Vincent Chan asking whether he required wines of other brands. In her message on the same day at 22:31:44, the 1st Defendant further asked whether Mr Chan was interested in some American wines produced by a chateau named Robert Mondavi.
(d) On 24 August 2018 at 12:48:20, the 1st Defendant sent a file to Mr Chan which contained images of Kozak vodkas.
(2) The aforesaid WhatsApp messages were shown to the 1st Defendant when she gave oral evidence. Mr Hui (for the Plaintiff) suggested to the 1st Defendant that there was no reason why she would send these messages to Mr Vincent Chan if she had no intention to sells wines to the companies which Mr Vincent Chan represented.
(3) The 1st Defendant responded along the line that the discussions were casual in nature. She said that she merely wished to arouse Mr Vincent Chan’s interest and to understand more about the wine products from him. She said that as Mr Chan had expertise in wines, he could educate her. She also said that if she could find the wines that Mr Chan wanted, she could help handle the purchase orders. After all, Mr Chan worked for Mr Kwok, who was an important client of WTC.
(4) I am unimpressed by the 1st Defendant’s evidence. Her answers are unconvincing, unsatisfactory, against common sense and most importantly inconsistent with the contents of the WhatsApp messages.
(5) Instead of discussing taste, preferences, the qualities of the wines and liquors in question and/or the market in a causal manner, the 1st Defendant repeatedly provided Mr Chan with specific information in respect of certain wines and liquors. The discussions were concerned with the prices of specific wine products, their locations, the quantities available and the quantities to be ordered in order to obtain favourable prices. The discussions were commercial in nature, and had nothing to do with interest in wines. I cannot see how it can be said the 1st Defendant sought to learn from Mr Chan.
(6) It is clear that the 1st Defendant sought to solicit business from the companies that Mr Vincent Chan represented, and this was why she sent the aforesaid WhatsApp messages to Mr Chan. The purpose of these WhatsApp messages was to inform Mr Chan about the wines and liquors which the 1st Defendant was capable of procuring.
54. The 1st Defendant’s allegations are also flatly contradicted by her WhatsApp messages exchanged with Mr Jevon Wong, who was a director of the 2nd Defendant and who was the de facto boss of Mr. Timothy Lee[13]::
(1) In her two WhatsApp messages to Mr Jevon Wong on 7 September 2018 at 8:51:51 and 8:52:51, the 1st Defendant said:-
“As we know your price are attractive and I can sure that definitely would get a better profit to share for next round”
“But we want to make sure your products are genuine from TWE and everything will be a long term partnership about buying from you.”
(2) When the 1st Defendant gave oral evidence, she said what she meant in these WhatsApp messages was that she hoped the 2nd Defendant could earn some profits from its dealings with Mr Kwok’s companies and meanwhile products of good qualities would be sold to Mr Kwok’s companies, such that Mr Kwok would have a good impression about her.
(3) I do not accept the 1st Defendant’s explanations, which were unconvincing and inconsistent with the contents of the WhatsApp messages.
(4) The aforesaid contemporaneous messages show that the 1st Defendant intended to nurture a long-term business relationship with the 2nd Defendant. This was why she praised Mr Wong saying that the prices offered by the 2nd Defendant were attractive. However, in order to safeguard her own commercial interest, the 1st Defendant also said it was necessary to ensure that the wines sold by the 2nd Defendant were genuine.
(5) It is also clear that the 1st Defendant intended to purchase wines from the 2nd Defendant and then sub-sold the same to her own clients. The 1st Defendant intended that this exercise would generate profits in the future and create a win-win situation for both the 2nd Defendant and herself. This was why the 1st Defendant said that there would be more profit to share for the next round. What the 1st Defendant meant was that both herself and the 2nd Defendant could earn more profits in the next transaction.
55. For the above reasons:-
(1) I reject the 1st Defendant’s allegation that she did not intend to trade wines. I also reject her allegation that she merely out of goodwill and/or courtesy facilitated Mr Vincent Chan and/or Kwok’s companies to purchase the wines that they needed. This was not her intention at all.
(2) I find that from May 2018 onwards, the 1st Defendant had actively solicited business opportunities from Mr Vincent Chan and/or Mr Kwok’s companies. The 1st Defendant sent out the WhatsApp messages and attachments referred to in paragraph 53(1) above because she wished to inform Mr Vincent Chan of the wines and liquors that she could procure. The 1st Defendant treated the 2nd Defendant as a supplier (from whom wines were sourced). Her underlying agenda was to establish a long-term business relationship with the 2nd Defendant, such that she could sub-sell the wines procured from the 2nd Defendant to her clients, which include Mr Kwok’s companies (such as the Plaintiff).
The Communication relating to the Transaction in Question
56. I now analyze the communication in relation to the transaction in question.
57. It is not seriously in dispute that the transaction in question arose from the communication between the 1st Defendant and Mr Vincent Chan (who represented the Plaintiff).
58. It appears that the transaction in question emanated from the 1st Defendant’s WhatsApp message on 2 August 2018 at 20:36:17. As mentioned in paragraph 53(1)(b) above, the 1st Defendant sent a list (which included Penfolds wines) to Mr Vincent Chan. In his WhatsApp messages on 3 August 2018 at 22:32:42, 8 August 2018 at 18:20:17 and 18 August at 19:09:44, Mr Chan expressed interest. As such, he had subsequent discussions with the 1st Defendant via WhatsApp.
59. For the reasons set out in paragraphs 40 to 49 above, I find that all the material terms in respect of the sale and purchase of the wines in question, including quantities, unit prices, types and vintages, shipment terms, delivery period as well as documents to be provided, had been agreed between Mr Vincent Chan and the 1st Defendant through WhatsApp. In this connection, I accept the submissions and the analysis of the evidence set out in the table under paragraph 20 of the closing submissions filed by Mr Hui and Mr Liu. I am of the view that all the material terms of the transaction must have been agreed before 27 August 2018 at 15:58:14 (and definitely before the 2nd Purchase Order was sent to the 1st Defendant on 28 August 2018 at 13:06:06) [14]
60. What remains to be resolved is whether Mr Vincent Chan (who represented the Plaintiff) contracted with:
(1) the 1st Defendant (which is the Plaintiff’s cases); or
(2) the 2nd Defendant (which is the 1st Defendant’s case).
61. As evidenced by the WhatsApp messages, Mr Vincent Chan and the 1st Defendant extensively liaised with each other during the period from 21 August to 27 August 2018. Their discussions aimed at sorting out the details of the transaction. As pointed out, Mr Chan and the 1st Defendant agreed all the terms of the transaction through the communication on WhatsApp.
62. Had the parties agreed that the transaction was between the Plaintiff and the 2nd Defendant as alleged, such alleged agreement, understanding or consensus would have been recorded in or reflected by the contemporaneous WhatsApp messages between Mr Vincent Chan and the 1st Defendant. This was not the case. None of the WhatsApp messages prior to 27 August 2018 remotely supports the 1st Defendant’s assertion that the 2nd Defendant was the contracting party.
63. Indeed, as evidenced by the WhatsApp message from the 2nd Defendant’s Mr Jevon Wong to the 1st Defendant on 17 November 2018 at 22:07:01, the Plaintiff and the 2nd Defendant did not have any previous communication with each other at all[15], and this was why Mr Wong requested the 1st Defendant to link up the 2nd Defendant with the Plaintiff when he knew that the Plaintiff repeatedly complained about the non-delivery.
64. I am of the view that the inherent probabilities lie against the 1st Defendant’s case, and it is unlikely the parties’ agreement and understanding were such that there was a direct contractual relationship between the Plaintiff and the 2nd Defendant.
65. Moreover, the 1st Defendant’s case is also diametrically contradicted by her own WhatsApp messages regarding the role of the 2nd Defendant, ie the “Singapore company”:
(1) As mentioned, after receiving the 1st Purchase Order in the afternoon on 27 August 2018, in the evening on the same day:-
(a) The 1st Defendant sent WhatsApp messages to Mr Chan asking whether his side felt “comfortable to change the P.O. to [her] other Singapore company” and to make “the payment to Singapore” [16].
(b) When the 1st Defendant provided the information of the 2nd Defendant to Mr Chan, she described the 2nd Defendant as “the P.O. Company attn. to [her] name.”[17]
(2) It was abundantly clear that:-
(a) The 1st Defendant sought to induce Mr Vincent Chan to believe that the 2nd Defendant (ie the Singapore company) belonged to her and/or was controlled by or associated with her. This was why the 1st Defendant described the 2nd Defendant as “[her] other Singapore company” and “the P.O. Company attn. to [her] name.”.
(b) The 1st Defendant’s purported reason for changing the contents of the purchase order was to facilitate the payment to be received in Singapore. Otherwise, there was no reason why the 1st Defendant asked Mr Chan whether his side felt “comfortable” to “do the payment to Singapore”.
(3) The aforesaid WhatsApp messages flatly contradict the 1st Defendant’s case that she repeatedly made known to Mr Vincent Chan and Mr Kwok that the 2nd Defendant was an independent contractual party that had nothing to do with herself. Had the 1st Defendant’s allegations been true, she would have said that the 2nd Defendant was the vendor, and thus the Plaintiff should have issued the purchase order to the 2nd Defendant directly.
(4) Instead of saying this in any of the WhatsApp messages, the 1st Defendant even apologized to Mr Chan for the trouble arising from her request that a new purchase order be issued (see her WhatsApp message on 27 August 2018 at 22:00:17). On the next day, the 1st Defendant went on to ask Mr Chan to send the new purchase order (ie the 2nd Purchase Order) to her personal email account (see her WhatsApp message on 28 August 2018 at 13:04:27). She did not ask Mr Chan to send the new purchase order to the 2nd Defendant directly.
(5) These matters speak volumes.
(6) Had the parties intended that the Plaintiff should contract with the 2nd Defendant directly, the 1st Defendant would have provided the contact of the 2nd Defendant’s representative to Mr Chan on WhatsApp and asked Mr Vincent Chan to liaise with him or her directly; the 1st Defendant would not have apologized for the inconvenience caused, and would not have repeatedly requested that the purchase order be sent to her personal email account[18].
(7) When 1st Defendant was cross-examined by Mr Hui on the aforesaid WhatsApp messages, she could not provide any valid explanation. She kept harping along the lines that she only used WhatsApp for casual communication and that she was not careful about her choice of words. I cannot see how the 1st Defendant may disown her WhatsApp messages. I am unable to agree with the 1st Defendant’s suggestion that she simply wanted to assist out of goodwill and/or as a matter of courtesy. These explanations were utterly unconvincing, devoid of substance, against commercial common sense and unbelievable.
(8) In my view, the truth was that in light of her good relationship with Mr Kwok at the time and the trust that Mr Kwok reposed on her, the 1st Defendant knew that (i) Mr Chan and the Plaintiff only intended to deal with her personally; (ii) they might not be willing to proceed with the transaction if they were asked to deal with an unknown foreign company that had nothing to do with herself. These were the reasons why the 1st Defendant induced Mr Chan to believe that (i) the 2nd Defendant belonged to her and/or was controlled by or associated with her; and (ii) that the arrangement was for the purpose of facilitating payment to be received in Singapore. The 1st Defendant did this on purpose, such that the transaction would not derail.
(9) The 1st Defendant’s underlying agenda was to pave the way for more businesses in the future, and she hoped that both herself and the 2nd Defendant (who played the role as her supplier) could earn profits from these business transactions.
66. In these premises, I find that the 1st Defendant must know that Mr Kwok and Mr Vincent Chan only wished to deal with herself personally, and she knowingly and continuously dealt with Mr Chan (who acted on behalf of the Plaintiff and who worked for Mr Kwok) on this basis.
67. The aforesaid finding is also supported by the 1st Defendant’s WhatsApp message on 6 November 2018 at 13:03:10. When Mr Vincent Chan expressed his concern about the delay in delivery (see his message at 13:01:44), the 1st Defendant responded as follows (see her message at 13:03:10):
“I want to make sure what I am going to delivery to u will be all fine” (emphasis added).
The 1st Defendant’s response was unequivocal. It is hardly disputable that as of 6 November 2018, the 1st Defendant still took the view that she was under a duty or obligation to deliver the wines under the transaction, and she gave an assurance to Mr Vincent Chan that this would be done.
68. The 1st Defendant only changed her stance on 15 November 2018. By this time, Mr Chan had repeatedly complained about the non-delivery, and he bluntly made known his displeasure to the 1st Defendant (see eg his messages on 15 November 2018 at 22:20:50, 23:23:24, 22:36:19, 22:43:26 and 22:47:00). It was in these circumstances that the 1st Defendant, for the first time, issued a WhatsApp message alleging that she was an innocent middleman (see the 1st Defendant’s WhatsApp on 15 November 2018 at 23:34:23).
69. In my view, this assertion was an afterthought that was conjured up when the 1st Defendant realized that she might not be able to procure the delivery and resolve the matter. The 1st Defendant’s stance on 15 November 2018 was inconsistent with her previous stance in the messages to Mr Chan in the evening on 27 August 2018 (where she described the 2nd Defendant as her company) as well as her messages to Mr Jevon Wong on 7 September 2018 (where she indicated her desire to build up a long-term business relationship with the 2nd Defendant that generated profits for both sides).
70. However, in her subsequent WhatsApp to Mr Vincent Chan on 20 November 2018 at 10:11:01, she referred Mr Chan and/or the Plaintiff as “her client” when she told Mr Chan that the 2nd Defendant proposed direct communication with the Plaintiff’s side. This suggestion was not consistent with the 1st Defendant’s previous stance that she was merely an “innocent middleman”.
71. Whilst the 1st Defendant’s stance was ever-changing, Mr Vincent Chan’s stance was consistent all along. Throughout the process of liaising with the 1st Defendant, Mr Chan insisted that the 1st Defendant should be accountable to the Plaintiff. He was surprised that the 2nd Defendant’s Mr Jevon Wong managed to obtain his contact and send an email to him on 19 November 2018. Mr Chan made it clear to the 1st Defendant that he did not wish to communicate with the 2nd Defendant’s representatives. This was because the 2nd Defendant was the 1st Defendant’s supplier, and he and/or the Plaintiff did not have any relationship with the 2nd Defendant. Whilst Mr Chan repeatedly mentioned that he did not wish to know about the 1st Defendant’s dealings with the 2nd Defendant, he made it clear that that the 1st Defendant should procure the 2nd Defendant to deliver the wines that the Plaintiff purchased: see Mr Vincent Chan’s WhatsApp messages on 19 November 2018 at 15:23:32 and 22:15:20, 20 November 2018 at 10:52:06, 10:58:14 and 11:01:13 and 12 March 2019 at 17:27:47, 17:29:02, 17:31:17, 17:37:01, 17:47:11 and 17:56:06.
72. In my view, had the parties agreed that the Plaintiff should contract directly with the 2nd Defendant, Mr Vincent Chan would not have issued the aforesaid messages, and the 1st Defendant would have rebutted Mr Vincent Chan’s assertions in these messages. In this connection, I am not persuaded by the 1st Defendant’s explanation that she simply tried to be nice and courteous when she exchanged WhatsApp messages with Mr Chan. I also disagree with the suggestion that Mr Chan manufactured these messages in a self-serving manner in order to advance the Plaintiff’s interest. Having heard Mr Vincent Chan’s oral evidence, I am of the view that his response in the aforesaid WhatsApp messages was natural and consistent with the objective circumstances. I accept Mr Chan’s evidence that he and the 1st Defendant agreed and understood that the transaction was between the Plaintiff and the 1st Defendant, and this was why he issued the aforesaid WhatsApp messages to the 1st Defendant.
73. Insofar as the stance of the 2nd Defendant is concerned:-
(1) Mr Hui draws my attention to Mr Jevon Wong’s WhatsApp message to the 1st Defendant on 17 November 2018 at 21:56:23. By this time, Mr Vincent Chan and/or the Plaintiff had repeatedly complained about the non-delivery. In this WhatsApp message, Mr Jevon Wong stated:-
“Hi Michelle[19], I am terribly apologetic of the outcome of this deal between us. As you are fully aware I am a victim myself of this crafted scam but as promised, I will provide solution to solve the situation. I have 2 solutions for you to choose from. 1. I would like to offer you a fully refund. 2. I manage to gather the following stock so far….. However since the situation happens, it has been brought to my attention that the price I have quoted and invoiced is a 2017-2017 prices. Prices has since then rise a significant amount for 2018…. If your clients choice is to have the stock, I would like to kindly request for them to top up the difference in price.” (emphasis added)
(2) Mr Jevon Wong’s WhatsApp message supports the Plaintiff’s primary case, and contradicts the 1st Defendant’s case. Had the 2nd Defendant contracted with the Plaintiff directly, Mr Wong would not have apologized to the 1st Defendant, and said that there was a “deal between us”.
(3) The said WhatsApp message shows it was Mr Jevon Wong’s understanding that the 2nd Defendant contracted with the 1st Defendant, and the 1st Defendant contracted with her client (ie the Plaintiff). This was why whilst Mr Wong said that there was a deal between his side (ie the 2nd Defendant) and the 1st Defendant, he expected the two options that he proposed would be conveyed to the 1st Defendant’s client (ie the Plaintiff), who would make a choice.
74. Knowing that her case is contradicted by the contemporaneous WhatsApp messages, throughout the trial the 1st Defendant kept alleging that she preferred to discuss business matters over the phone. As mentioned, the 1st Defendant relies on the Alleged Telephone Conversations on 24, 27, 29 and 31 August 2018.
75. For the following reasons, I am firmly of the view that all the Alleged Telephone Conversations were concoctions, and I reject the evidence of the 1st Defendant and Mr Timothy Lee:
(1) First of all, the Alleged Telephone Conversations are plainly inconsistent with the 1st Defendant’s WhatsApp messages with the Plaintiff’s Mr Vincent Chan and the 2nd Defendant’s Mr Jevon Wong as set out above.
(2) Second, I am of the view that the Alleged Telephone Conversations are afterthoughts that were conjured up after the present action was commenced:
(a) Had the Alleged Telephone Conversations existed, they would have been the forefront of the 1st Defendant’s case. However, the 1st Defendant only pleaded the Alleged Telephone Conversations on 31 January 2022 when her Defence was amended. This was more than 2 years after her initial Defence was filed on 29 August 2019.
(b) It was true that the Plaintiff amended its Statement of Claim on 29 November 2021. However, the Plaintiff’s amendments did not explain why the Alleged Telephone Conversations were alleged belatedly. In the initial version of her Defence, the 1st Defendant did plead that she had a telephone conversation with Mr Vincent Chan at around 9 am on 27 August 2018. In this alleged telephone conversation, she allegedly clarified with Mr Chan that her employer could not take up the order, and Mr Chan allegedly agreed to accept the stock from the 2nd Defendant.
(c) In the premises, the 1st Defendant plainly understood and appreciated the importance of the telephone conversations. There was no valid reason why the Alleged Telephone Conversations that she seeks to rely on now were not pleaded in the initial version of her Defence filed on 29 August 2019. The 1st Defendant could not offer any meaningful explanation when he was cross-examined by Mr Hui.
(3) Third, I prefer the evidence of Mr Vincent Chan (as well as Mr Kwok) to the evidence of the 1st Defendant and Mr Timothy Lee. Whilst the allegations raised by 1st Defendant and Mr Timothy Lee are contradicted by the contemporaneous messages and the objective circumstances in multiple respects, Mr Vincent Chan is, in my view, a reliable and honest witness who provided answers that were commercially sensible and consistent with the contemporaneous documents.
(4) Fourth, each of the Alleged Telephone Conversations is contradicted by the contemporaneous exchange between the parties at the time as well as all the objective circumstances. The 1st Defendant and Mr Timothy Lee’s allegations cannot withstand scrutiny at all.
(5) Insofar as the Alleged Telephone Conversation on 24 August 2018 at around 3:40 pm is concerned[20]:
(a) As evidenced by the WhatsApp messages on 24 August 2018 from 15:35:40 to 15:39:36, Mr Vincent Chan and the 1st Defendant were discussing the additional boxes of Penfolds Bin 407 Wines and Penfolds Bin 389 Wines to be purchased. Against this background, Mr Chan requested to have a discussion with the 1st Defendant over the phone: see his messages at 15:39:36 and 15:39:58. After the telephone discussion, Mr Chan and the 1st Defendant continued to discuss the size of the container, the weight thereof and the total boxes of wines: see the messages after 15:47:36.
(b) In these premises, I agree with Mr Hui’s submissions that it was unlikely the 1st Defendant would, out of the blue, tell Mr Chan that the wines belonged to the Singaporean company, that the Singaporean company (ie the 2nd Defendant) was not under her control, and that WTC did not allow her to work with overseas companies. These matters were not concerned with what the parties tried to resolve at the time.
(c) I also agree with Mr Hui’s submissions that had Mr Vincent Chan been told that the vendor that contracted with the Plaintiff was the Singaporean company (ie the 2nd Defendant), Mr Chan would have sought the contact of the 2nd Defendant’s representatives, and proceeded to liaise with them directly. This would have been much more efficient and convenient.
(6) As regards the Alleged Telephone Conversations on 27 August 2018 at around 9:00 am, 9:30 am and 10 am to 11 am[21]:
(a) An important aspect of the 1st Defendant’s case regarding the Alleged Telephone Conversations is that in the morning on 27 August 2018, Mr Timothy Lee expressly told Mr Vincent Chan over the phone that the contents of the 1st Purchase Order was wrong and that the purchase order should be issued to the 2nd Defendant instead as the 1st Defendant had nothing to do with the transaction. It is Mr Timothy Lee’s evidence that this Alleged Telephone Conversation did take place.
(b) However, as pointed out by Mr Hui, the 1st Purchase Order was not issued to the 1st Defendant until the afternoon on 27 August 2018 at 16:38. This fact is evidenced by the email as well as the WhatsApp messages, which are incontrovertible. Hence, Mr Timothy Lee could not have said to Mr Vincent Chan that the contents of the 1st Purchase Order were wrong in the morning on 27 August 2018. The document had not yet come into existence when this Alleged Telephone Conversation took place. Neither the 1st Defendant nor Mr Timothy Lee could offer any meaningful explanation when they were cross-examined.
(c) In the premises, I have no hesitation to find that the allegations of the 1st Defendant and Mr Timothy Lee are false. I am of the view that their evidence is wholly incredible.
(d) Mr Hui further points out the contemporaneous WhatsApp messages shows that in the morning on 27 August 2018:
(i) The 1st Defendant and Mr Vincent Chan were discussing the additional 200 boxes of wines and the shipping arrangement. Against this background, the 1st Defendant requested to have a telephone discussion with Mr Chan, and Mr Chan agreed (see their messages on 8:57:29 and 9:06:19).
(ii) The 1st Defendant started looking for Mr Timothy Lee at 9:47:57. Throughout the morning, Mr Lee did not respond all. At 12:22:48, the 1st Defendant even sent a message to Mr Lee asking “Are u ok?”. Mr Lee only responded at 12:26:22. He said “Sorry..was in a meeting..”. The two of them then proceeded to discuss the additional 200 boxes of wine and the shipping arrangement.
(e) In light of the contents of the contemporaneous WhatsApp messages, I am of the view the truth was that:-
(i) There was a telephone conversation between Mr Vincent Chan and the 1st Defendant in the morning on 27 August 2018 shortly after 9:06 am. However, the discussion was only concerned with the 200 additional boxes of wines and the shipping arrangement. Mr Chan and the 1st Defendant did not discuss anything relating to the Singapore company during this telephone conversation as these matters had nothing to do with what the parties tried to resolve at the time.
(ii) In the morning on 27 August 2018, the 1st Defendant wanted to discuss the 200 additional boxes of wines and the shipping arrangement with Mr Timothy Lee. However, Mr Timothy Lee attended a meeting in the entire morning, and he was so busy that he could not even respond to the 1st Defendant’s messages. In the circumstances, Mr Timothy Lee did not have any telephone conversation with the 1st Defendant at all; nor did he have any telephone conversation with Mr Vincent Chan.
(7) As regards the further Alleged Telephone Conversations with Mr Kwok and Mr Vincent Chan on 29 and 31 August 2018:-
(a) Mr Hui points out that as of 29 and 31 August 2018, Mr Chan had already sent the 2nd Purchase Order (which was addressed to the 2nd Defendant) to the 1st Defendant, and as such there was no reason why the parties would still wish to discuss the arrangement.
(b) I agree. I do not believe that these Alleged Telephone Conversations had taken place.
(c) I am of the view that the 1st Defendant made up these Alleged Telephone Conversations for the purpose of establishing that Mr Kwok (who was Mr Vincent Chan’s boss and the owner of the Plaintiff) also agreed that the Plaintiff should contract with the 2nd Defendant directly. In light of all the objective circumstances and the contemporaneous documents, this cannot be true.
(8) Lastly, I should point out that both 1st Defendant and Mr Timothy Lee put forward some purported hand-written notes to bolster their assertions. They suggest that the purported hand-written notes recorded and/or reflected the Alleged Telephone Conversations. In my view, these purported hand-written notes raise more questions than answers, and they are not reliable. They fall short of explaining why the 1st Defendant and Mr Timothy Lee’s evidence is materially contradicted by the contemporaneous WhatsApp messages and the objective circumstances as discussed above. Moreover, I am most skeptical as to their contents and how they were created:-
(a) Insofar as the purported hand-written notes prepared by the 1st Defendant are concerned, it is noteworthy that (i) the contents thereof were written with pens of different colours; (ii) additional pages were inserted into the 1st Defendant’s notepad. Whilst the 1st Defendant could not even explain why there were additional pages, she said that she had the habit of writing in different colours, but no special meanings were attached to the colouring. I am utterly unconvinced and unimpressed by this explanation.
(b) As regards Mr Timothy Lee’s purported hand-written notes, during cross-examination Mr Lee admitted that the notes were not contemporaneous at all. He said that he jotted down a few bullet points on some “scraps of paper” after the Alleged Telephone Conversation took place in the morning on 27 August 2018. Subsequently, upon the 1st Defendant’s request, he prepared the purported hand-written notes that were adduced as evidence in these proceedings. For reasons best known to Mr Lee himself, the original “scraps of paper” were thrown away. In my view, this is dubious. In any event, Mr Lee conceded and admitted that the contents of his purported hand-written notes were largely based on his memory. For all the above reasons, I am not of the view that Mr Lee’s memory is reliable.
76. For all the above reasons, I find that:-
(1) The 1st Defendant is a party to the sale and purchase agreement in respect of the wines set out in paragraph 10 above, and she has knowingly and willingly shouldered up the contractual obligation to deliver the wines to the Plaintiff.
(2) Throughout the liaison process, both Mr Vincent Chan (who acted on the Plaintiff’s behalf) and the 1st Defendant agreed and understood that the latter was the seller and a contractual party to the transaction.
(3) This was why instead of facilitating Mr Vincent Chan to liaise the 2nd Defendant directly (or vice versa), the 1st Defendant induced Mr Chan to believe (i) that the 2nd Defendant was a company owned and/or controlled by her; and (ii) that the purpose of issuing the purchase order to the 2nd Defendant was to facilitate receiving payment in Singapore. The 1st Defendant did this because she knew that Mr Chan and/or the Plaintiff only intended to deal with her, and she wished to ensure that they felt assured.
(4) The 1st Defendant never told Mr Vincent Chan, Mr. Kwok and/or any representative of the Plaintiff that the seller was the 2nd Defendant.
(5) The 1st Defendant did not request or invite Mr Vincent Chan, Mr Kwok and/or any representative of the Plaintiff to approach or contact the 2nd Defendant and/or its representatives; nor did the 1st Defendant invite the 2nd Defendant’s representatives to approach Mr Vincent Chan and/or the Plaintiff.
(6) The representatives of the Plaintiff and the representatives of the 2nd Defendant had no communication or contact with each other until 19 November 2018 when Mr Jevon Wong unilaterally sent an email to Mr Vincent Chan, who felt surprised.
Further Discussion on the Functions of the Purchaser Orders and the Invoice in the Present Case
77. Following the analysis and findings set out hereinabove, I also accept the Plaintiff’s case that in the present transaction, the functions and purposes of the Purchase Orders and the Invoice were to confirm (i) the items being purchased; and (ii) the method of payment.
78. Apart from the contemporaneous WhatsApp messages and objective circumstances discussed above, in accepting the Plaintiff case, I also take into account the following matters:-
79. First of all, when Mr Kwok was cross-examined, he made it loud and clear that he would not have agreed to pay away a huge sum of money (in the amount of AUD 539,990.00) to a foreign company that was unknown to him. Mr Kwok also stressed that he only agreed that the Plaintiff should deal with the 1st Defendant (who was known to him personally and who was the niece of his friend, namely Mr Koo). I accept Mr Kwok’s evidence, which makes ample commercial sense to me.
80. As pointed out, there is not a shred of evidence showing that there was any communication between the Plaintiff and the 2nd Defendant when the material terms of the transaction were agreed, and Mr Jevon Wong’s WhatsApp message on 17 November 2018 at 22:07:01 further shows that the Plaintiff and the 1st Defendant were complete strangers to each other.
81. Bearing in mind that the Plaintiff was required to pay 100% of the purchase price upfront, I accept the Plaintiff’s case that it could not have agreed to contract with the 2nd Defendant (which was a complete stranger). It follows that the Purchase Orders and Invoice were merely part of the arrangement between the Plaintiff and the 1st Defendant that (i) facilitated receiving payment in Singapore; and (ii) confirmed the goods being purchased.
82. I also take into account the circumstances in which the Purchase Orders came into existence, and I am not convinced that the contents of these documents (which were prepared in a casual manner) reflect the parties’ intention as to the contractual entities that actually entered into the transaction. In this connection, the following matters are worth-mentioning:
(1) When Mr Vincent Chan was cross-examined, he said that the 1st Purchase Order was addressed to WTC because he adopted the precedents in his computer out of convenience. Mr Chan also said that he assumed that the purchase order should be addressed to WTC as this entity was controlled or represented by the 1st Defendant[22]. It does not appear that Mr Chan had in mind the issues regarding the identities of the contractual parties when he prepared the 1st Purchase Order.
(2) Although the 1st Purchase Order was addressed to WTC (which was Mr Koo’s sole proprietorship), the 1st Defendant was neither surprised nor discontent when she received the document on 27 August 2018. When Mr Vincent Chan asked the 1st Defendant to confirm receipt of the 1st Purchase Order (see his WhatsApp message at 16:38:14), the 1st Defendant simply responded “Yes” and “Got it”[23]. In my view, had the parties intended that the contractual terms in respect of the contractual entities be encapsulated by the contents of the Purchase Orders, the 1st Defendant would have raised concern as to why the 1st Purchase Order was addressed to WTC and she would have asked Mr Chan to rectify the contents. These never happened.
(3) As regards the 2nd Purchase Order, as discussed, Mr Chan agreed to issue same to the 2nd Defendant only because the 1st Defendant induced him to believe that it was her “Singapore company” and that the arrangement would facilitate payment to be made in Singapore. It was obvious that Mr Chan acted on the basis that the Plaintiff’s contractual counterpart was the 1st Defendant. Thus, it must be the case when Mr Chan prepared and issued the 2nd Purchase Order, he did not have in mind the issues regarding the identities of the contractual parties, and the 1st Defendant knew that this was the case.
83. For all the above reasons, I do not accept the 1st Defendant’s contention that the contracting party had changed by reason of the 2nd Purchase Order and the Invoice (which was issued pursuant to the 2nd Purchase Order). I find that all along, the 1st Defendant and the Plaintiff’s Mr Vincent Chan well understood that the Purchase Orders were only for the purposes of (i) confirming the goods being purchased and (ii) facilitating payment.
Other Miscellaneous Arguments raised by the 1st Defendant
84. In light of the analysis of the facts and evidence set out above, I also reject the following contentions raised on the 1st Defendant’s behalf:-
(1) I reject the contention that the 1st Defendant and Mr Vincent Chan (who represented the Plaintiff) did not reach any agreement as to whom the payment should be made. There is no substance in this contention. As pointed out, Mr Vincent Chan as well as the 1st Defendant liaised with each other on the basis that the latter was the vendor, and as such it must follow that the Plaintiff should make payment pursuant to the instructions or directions given by the 1st Defendant. Both Mr Chan and the 1st Defendant knew and understood that this was the case. This was exactly why Mr Chan agreed with the 1st Defendant’s proposal that the 2nd Purchase Order be issued to her “Singapore company”, such that the payment would be received in Singapore. There was no lacuna in the contractual terms; nor was there any confusion.
(2) I reject the contention that the WhatsApp messages between the 1st Defendant and Mr Vincent Chan did not evince the intention to enter into a legally binding relationship. This contention also has no substance. For the reasons elaborated above, I am firmly of the view that the 1st Defendant and Mr Chan conducted serious contractual negotiation on WhatsApp. As pointed out, during the liaison, the 1st Defendant and Mr Chan resolved all the difficulties, and they agreed all the terms of the transaction.
(3) Mr Ng and Ms Chui remind me that the 1st Defendant did not earn profit in the present transaction. This might be true. However, this would not avail the 1st Defendant’s case at all. As pointed out, the 1st Defendant wished to build up a long-term business relationship with the 2nd Defendant (which was her supplier), and she treated the Plaintiff (which was a company owned and controlled by Mr Kwok) as her client. In the circumstances, the 1st Defendant did shoulder up the contractual obligations to make delivery to the Plaintiff in the present transaction. Her underlying agenda was that after the present transaction went through successfully (which unfortunately did not happen), the parties would enter into more transactions in the future, such that profits could be generated. In my view, the 1st Defendant must have the intention to enter into a legally binding relationship with the Plaintiff, and she did take up the contractual obligation to deliver the wines set out in paragraph 10 above to the Plaintiff.
Sum Up
85. For all the above reasons, I accept the Plaintiff’s primary case, and reject the 1st Defendant’s case.
86. Since I find that there was a direct contractual relationship between the Plaintiff and the 1st Defendant, the Plaintiff’s alternative cases (which may only arise if there were a direct contractual relationship between the Plaintiff and the 2nd Defendant based on the 2nd Purchase Order and the Invoice) fall away.
87. In any event, based on the facts and evidence set out hereinabove, I am not of the view (i) it can be said that the 2nd Defendant was the 1st Defendant’s agent; (ii) a collateral contract existed.
E2. Remedies
88. It is not in dispute that that the Penfolds Bin 407 Wines were never delivered.
89. In light of the findings set out in Section E1 above, the 1st Defendant must be in breach of contract.
90. Mr Ng and Ms Chui:-
(1) helpfully refer to Chitty on Contracts (35th Ed) at para 30-032, which suggests that the innocent party may claim expectation loss and reliance loss, so long as there is no double recovery or overcompensation; and
(2) fairly accept that on the facts of the present case, the 3 heads of claims advanced by the Plaintiff (ie restitution for the purchase price of AUD259,600, consequential loss of profit in the amount of AUD16,450 and damages in respect of the compensation sum of HK$200,000) do not involve double recovery or over-compensation.
Restitution for Purchase Price
91. I accept that:-
(1) there was a repudiatory breach on the part of the 1st Defendant in respect of the sale and purchase of the Penfolds Bin 407 Wines;
(2) such repudiatory breach was accepted by the Plaintiff; and
(3) there has been total failure of consideration in respect of the purchase price of AUD259,600.
92. Accordingly, the 1st Defendant is liable to make restitution or refund to the Plaintiff in respect of the sum of AUD259,600.
Consequential Loss of Profit
93. The WhatsApp messages show that the 1st Defendant knew that the Plaintiff would sub-sell or on-sell the wines being purchased to another party[24]. The 1st Defendant admitted that this was the case when she gave oral evidence.
94. As evidenced by the sales invoice dated 29 August 2018, the Plaintiff agreed to sell, inter alios, 700 boxes[25] of Penfolds Bin 407 Wines to the Guangzhou Sub-buyer at the consideration of AUD243,600.
95. Since the aggregate purchase price of the 800 boxes of Penfolds Bin 407 Wines (which the 1st Defendant failed to deliver) was AUD259,600, the unit price was AUD324.5 per box (ie AUD259,600/800 boxes). Thus, the total purchase price in respect of 700 boxes of Penfolds Bin 407 Wines was AUD227,150 (ie AUD324.5 per box x 700 boxes).
96. Accordingly, the Plaintiff suffered damages in respect of loss of profit in the amount of AUD16,450 (ie AUD243,600 - AUD227,150). I hold that the 1st Defendant is liable to the Plaintiff for this sum.
Damages in respect of Compensation paid to the Guangzhou Supplier
97. The Plaintiff has adduced the following documents in order to prove its dealings with the Guangzhou Sub-buyer:-
(1) the WeChat messages exchanged between Mr Vincent Chan and the representative of the Guaanzhou Sub-buyer;
(2) the refund notices issued by the Guangzhou Sub-buyer dated 7 January 2019 and 21 January 2019; and
(3) a computer file that was a running-account in respect of the dealings between the parties.
98. These documents show that:-
(1) As the Plaintiff was unable to deliver the 700 boxes of Penfolds Bin 407 Wines, the Guangzhou Sub-buyer demanded full refund in the amounts of HK$1,000,000 and HK$447,300.
(2) Whilst the Plaintiff agreed to make full refund to the Guangzhou Sub-buyer, it also agreed to pay a compensation sum of HK$200,000. The agreement was evidenced by the WeChat messages as well as the computer file/running account.
(3) Taking into account the refund of HK$1,000,000 and HK$447,300, the said compensation sum of HK$200,000 as well as other contractual dealings between the parties, the Plaintiff owed the Guangzhou Sub-buyer a balance of HK$101,107.06.
99. When Mr Vincent Chan was cross-examined on the 2nd day of the trial, it became clear that the payment records in respect of the dealings with the Guangzhou Sub-buyer were not disclosed. It was Mr Chan’s evidence that there was an oversight on the part of the Plaintiff.
100. Unsurprisingly, on the 3rd day of the trial, Mr Hui (for the Plaintiff) promptly made an application seeking to adduce the following documents:-
(1) the bank records on 8th January 2019 showing that the refund (ie a sum of HK$1,000,0000 and a sum HK$447,300) were remitted to the company nominated by the Guangzhou Sub-buyer;
(2) the printout of a WeChat message showing that Mr Vincent Chan was asked by Guangzhou Sub-buyer’s representative to remit the balance sum (round-down to HK$101,000) to a person named Yeung Pui Nam (who was a friend)[26]; and
(3) The Plaintiff’s cheque of HK$101,000 dated 18 December 2019 together with the deposit slip showing that the said sum of HK$101,000 was received by Yeung Pui Nam.
101. Having heard the submissions from counsel on both sides, I acceded to the Plaintiff’s application. It was true that the applicant came very late. However, in my view, the foremost concern was to ensure just resolution of the disputes between the parties. The new documents (particularly the banking records) were not only highly material and probative, but also incontrovertible. I cannot see how the 1st Defendant might suffer real prejudice. In any event, the Plaintiff was willing and able to tender Mr Chan for further examination, such that the 1st Defendant would have full opportunities to challenge the documents in question and explore the circumstances in which they came into existence. In these premises, I was of the view that the appropriate course to take was to accede to the application but order costs against the Plaintiff.
102. In the circumstances, Mr Vincent Chan (as well as Mr Kwok) was cross-examined in regard to the new documents on the 4th day of the trial. During the cross-examination, Mr Chan explained how the documents came about, why the balance sum paid to the Guangzhou Sub-buyer was rounded down to HK$101,000 from HK$101,107.06[27] and why the cheque of HK$101,000 was only issued in December 2019 when he received the running account from the Guangzhou Sub-buyer’s representative through WeChat as early as July 2019[28].
103. I accept Mr Vincent Chan’s evidence, which makes commercial sense and which is consistent with all the contemporaneous documents.
104. In light of all the contemporaneous WeChat messages and banking records, there is no room to suggest that the payment of HK$101,000 on 19 December 2019 concerned another transaction that had nothing to do with the settlement with the Guangzhou Sub-buyer.
105. I accept the Plaintiff’s case that it did reach a settlement agreement with the Guangzhou Sub-buyer. Pursuant to this settlement agreement, the Guangzhou Sub-buyer was entitled to a compensation sum of HK$200,000. This compensation amount was taken into account in the set-off exercise, which is evidenced by the running account contained in the computer file referred to in paragraph 98(2)-(3) above.
106. I also accept that the settlement deal with the Guangzhou Sub-buyer was fair and reasonable. The compensation sum of HK$200,000 was around 13.81%[29] of the aggregate consideration in respect of the 700 boxes of Penfolds Bin 407 Wines. This figure does not appear to be disproportionate. Moreover, it is also necessary to take into account the facts that (i) the Plaintiff was clearly at fault; (ii) the Plaintiff and Mr Kwok (who owned and controlled the Plaintiff) had every reason to uphold their business reputation; (iii) the Plaintiff would incur more expenses in the event that the Guangzhou Sub-buyer commenced litigation.
107. For all above reasons, I accept the Plaintiff’s claims for damages in respect of the compensation sum of HK$200,000, and I hold that the 1st Defendant is liable to the Plaintiff in respect thereof.
F. DISPOSITION AND ORDERS
F1. The Claims against the Defendants
108. I order that the 1st Defendant do pay the following sums to the Plaintiff: (1) AUD259,600; (2) AUD16,450; and (3) HK$200,000.
109. I dismiss the Plaintiff’s claims against the 2nd Defendant.
F2. Interest
110. The Plaintiff is entitled to interest at 1% above prime rate on the 3 sums of AUD259,600, AUD16,450 and HK$200,000 from 19 July 2019 (ie the date of the writ in this action) to the date of this judgment, and thereafter interest at judgment rate until payment in full.
F3. Costs
Costs between the Plaintiff and the 1st Defendant
111. There is no reason why costs does not follow the event.
112. I make a costs order nisi that the costs of these proceedings, including all costs reserved, be paid by the 1st Defendant to the Plaintiff to be taxed if not agreed (with certificate for counsel). Any application to vary such costs order nisi shall be made within 14 days.
113. For the following reasons, I am inclined to the view that there should be certificate for one counsel rather than two counsel:-
(1) Although the present dispute involves considerable amount of contemporaneous document (which require careful examination), the amounts involved were modest.
(2) Despite the factual details involved, it cannot be said that the issues in dispute are complicated.
(3) Although both sides engage two counsel to conduct the trial, it appears that the 1st Defendant only engaged Mr Ng[30] upon finding out that the Plaintiff engaged two counsel.
Costs between the Plaintiff and the 2nd Defendant
114. I make a costs order nisi that there be no order as to costs between the Plaintiff and the 2nd Defendant.
115. For the following reasons, it appears to me that this is the appropriate costs order:-
(1) Since I find in favour of the Plaintiff on its primary case, its claims against the 2nd Defendant are dismissed.
(2) Although the 2nd Defendant does not seek to participate in these proceedings, the 2nd Defendant authorized Mr Timothy Lee to testify in Court. I reject his evidence, which is, in my view, untruthful.
G. OTHER MATTERS
116. Mr Hui, Mr Ng, Mr Liu and Ms Chui conducted the present trial in a manner that was fair, helpful and proportionate. I express my gratitude to them.
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( Alan Kwong ) |
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District Judge |
Mr John Hui and Mr Billy Lu, instructed by Vincent TK Cheung, Yap & Co, for the plaintiff
Mr Ernest Ng and Ms Chui Nicole Chui, instructed by MCA Lai Solicitors LLP, for the 1st defendant
The 2nd defendant is not represented and did not appear
[1] There were 6 bottles in each case
[2] See WhatsApp messages on 27 August 2018 from 12:43:31 to 12:45:31
[3] See the WhatsApp messages on 27 August 2018 at 21:55:55 and 21:55:56
[4] In his WhatsApp message on 27 August 2018 at 21:56:59, Mr Vincent Chan stated “Sure we can do.”
[5] WhatsApp message on 27 August 2018 at 22:00:17
[6] WhatsApp messages on 27 August 2018 at 22:01:15 and 22:01:33
[7] The table did not identify the years when the wines were produced. This point would be dealt with in paragraph 45 below.
[8] As reflected by her WhatsApp message to the 2nd Defendant’s Timothy Lee on 27 August 2018 at 1:21:04, the 1st Defendant well understood that this was the case. She did mention that 100 boxes of Penfolds Bin 389 Wines and 100 boxes of Penfolds Bin 407 be added.
[9] See paragraph 6
[10] For instance, it was repeatedly suggested to Mr Vincent Chan that the Purchase Orders and Invoice did not identify the 1st Defendant at all. Mr Chan gave direct answers that this was the case, and he did not seek to raise contention and/or express views until he was invited to explain the matters from his perspective. Mr Chan also fairly admitted without qualification that he did not tell the truth to the 1st Defendant in the WhatsApp message where he said that the Plaintiff would be sued by the sub-buyer. When Mr Chan gave evidence, he frankly admitted that at the time when this message was issued, the Plaintiff had already reached a settlement with the sub-buyer. However, as the Plaintiff wished to obtain the wines that were purchased, he made this allegation to the 1st Defendant, hoping that she would try her best to procure the wines.
[11] Throughout the cross-examination on Mr Vincent Chan, Ms Chui for the 1st Defendant did not suggest that the parties reached no agreement in respect of the unit prices of the wines being purchased. In my view, Ms Chui was correct not to pursue this point. The contemporaneous messages exchanged between the parties show that the unit prices had been agreed all along. By her message on 18 August 2018 at 19:13:11, the 1st Defendant provided Mr Chan with a quotation (ie a table showing the wines available, the available quantities and their unit prices). The unit prices stated in the said quotation or table were the same as unit prices stated in the 23 August 2018 Table (which Mr Chan sent to the 1st Defendant subsequently on 23 August 2018 at 14:18:21) as well as the 1st and 2nd Purchase Orders.
[12] For completeness, it should also be pointed out that throughout the cross-examination on Mr Vincent Chan, Ms Chui for the 1st Defendant did not suggest that the parties reached no agreement on the vintage or years of production in respect of the Rawson Cabernet Sauvignon Wines, the Rawson Merlot Wines and the Rawson Shiraz Wines. In my view, Ms Chui was correct not to pursue this point. In the WhatsApp messages between Mr Vincent Chan and the 1st Defendant on 27 August 2018 from 15:39:00 to 15:56:53, the vintage of year of the three types of Rawson wines was 2017.
[13] When Mr. Timothy Lee gave evidence, he said that he told outsiders that Mr. Jevon Wong and himself were partners. However, the reality was that Mr. Jevon Wong was the one who made the important decisions, and he worked for Mr. Jevon Wong.
[14] For completeness, I should also point out there is no room to suggest that the identity of the purchaser was not agreed before the 2nd Purchase Order was issued. There is no dispute that both Mr Vincent Chan and the 1st Defendant knew and agreed the entity purchasing the wines would be one of the companies owned/controlled by Mr Kwok. In the WhatsApp messages on 22 August 2018 from 19:02:08 to 19:09:23, in response to the 1st Defendant’s enquiries, Mr Chan indicated that the company being used to order would be the trading company or the wine company. Taking into account the background of the discussions, it appears to me that the latter obviously referred to the Plaintiff, which was the company owned/controlled by Mr Kwok and which traded wines. In any event, bearing in mind 100% of the purchase price had to be paid upfront under the transaction, I am not of the view that this was an essential term at all. For the reasons set out above, I am of the view that all the essential terms of the transaction had been agreed before 1st Purchase Order was sent to the 1st Defendant. Even if this were not the case, there must be no doubt that the purchasing entity was agreed and made clear to the 1st Defendant when she received the 1st Purchase Order on 27 August 2018 at 16:38. In the 1st Purchase Order, it was stated that the Plaintiff was consignee. Hence, when the 1st Purchase Order was received (ie 27 August 2018 at 16:38), the 1st Defendant must know and accept that the entity purchasing the wines was the Plaintiff. This happened before the 2nd Purchase Order was issued.
[15] It is Mr Timothy Lee’s evidence that he had a short conversation with Mr Vincent Chan about the purchase order in the morning on 27 August 2018. For the reasons elaborated below, I rejected his suggestion, and I find that no such telephone conversation occurred. In any event, it has not been suggested that Mr Timothy Lee and Mr Vincent Chan discussed the substantive terms of the transaction.
[16] See the WhatsApp messages on 27 August 2018 at 21:55:55 and 21:56:10
[17] WhatsApp messages on 27 August 2018 at 22:01:15 and 22:01:33
[18] In her previous WhatsApp message on 27 August 2018 at 12:45:06, the 1st Defendant also asked Mr Vincent Chan to send the purchase order to her personal email account.
[19] This referred to the 1st Defendant, whose English name is Michelle.
[20] This is pleaded in Amended Defence, para 3.4.2
[21] These are pleaded in Amended Defence, paras 3.4.2, 3.4.3 and 3.4.4
[22] During cross-examination, Mr Vincent Chan accepted that the last sentence in paragraph 9 of his witness statement was not correct. He confirmed that the 1st Defendant did not request him to issue the 1st Purchase Order to WTO. He said that prepared the 1st Purchase Order based on what was agreed with 1st Defendant via WhatsApp. I accept evidence and his clarification.
[23] The 1st Defendant also acknowledged that the consignee stated in the document was the Plaintiff: see her message at 16:42:52.
[24] See for example Mr Vincent Chan’s message on 24 August 2018 at 14:21:27 and 17:41:32; and the 1st Defendant’s message on 24 August 2018 at 15:35:40
[25] There was 6 bottles of wines in one box, and hence the totally 4,200 bottles of Penfolds Bin 407 Wines sold to the Guangzhou Sub-buyer.
[26] The printout contained mark-up inserted by Mr Vincent Chan, and it was his evidence that this was his explanatory note to the accounting staff. With the explanatory note, the accounting staff would understand what the background of the WeChat messages was about, and arrange the payment.
[27] The computer file that contained the running account showed that the balance figure was HK$101,107.06. Mr Chan explained that this was a decision made by the representative of the Guangzhou Sub-buyer. Mr Chan believed that he was a reputable businessman, and he might not want to pay his friend a sum involving an odd figure as it did not look good. After all, the difference was only HK$107.06, which was a small sum.
[28] Mr Chan said that there were potential business transactions between the parties in the meantime, and the balance sum could change. However, when it became clear that no further transactions would materialize in the foreseeable future, the parties decided to wrap up the matter.
[29] This calculation is based on the total amounts refunded to the Guangzhou Sub-buyer: HK$200,000/HK$1,000,000 + HK$447,300 = 13.81%
[30] Mr Ng’s name does not appear on the 1st Defendant’s opening submissions. It appears that he was only engaged at a late stage after the 1st Defendant’s opening submissions were filed.
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