FUBON BANK (HONG KONG) LTD v. NG KWOK WEI AND ANOTHER

HCA 172/2025

[2026] HKCFI 3203

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 172 OF 2025

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D E C I S I O N

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Introduction and Background

1.  By Notice of Appeal dated 9 September 2025 (“Notice of Appeal”), the 1^st and 2^nd Defendants (collectively, “Ds”) appeal against the Judgment of Master Ken To (“Master”) dated 26 August 2025, entering judgment for the Plaintiff (“P”) against Ds for the sum of HK$56,430,653.14 (“the Sum”) together with interest thereon and costs.

2.  P’s case is that its claim is a straightforward one, founded on the express terms of written banking documents signed by the 1^st Defendant (“D1”) as a director and guarantor of Good Timing Hong Kong Limited (“Good Timing”) and the 2^nd Defendant (“D2”) as a director and guarantor of Sure Profit Trading Limited (“Sure Profit”).

3.  There is no dispute that: (1) at all material times, D1 and D2 were the sole director and shareholder of Good Timing and Sure Profit respectively; (2) P granted various banking facilities to Good Timing and Sure Profit as borrowers from 2022 to 2024; (3) D1 and D2 defaulted under their respective guarantees; and (4) the Sum, including interests, claimed by P is not challenged.

4.  However, essentially, Ds’ case is that: (1) D1, who was based in the US since July 2022, never saw, signed or authorised the signatures on the facility letters or guarantees. He was absent from Hong Kong on key execution dates of those documents after July 2022; and (2) D2 also similarly denied any knowledge of, the signing of or authorisation of those documents. In short, they allege that their signatures had been forged and that all the facility letters and guarantees are invalid and unenforceable against them (“the Forgery Defence”).

5.  Today is the substantive hearing of the Notice of Appeal. I have also before me a Summons dated 9 March 2026, taken out just 3 days before today’s hearing, filed by Ds for leave to adduce new evidence namely, the Affirmation of Lo Wai Yan Winnie (“Lo’s Affirmation”) which exhibits inter alia the Statement of Travel Records of D1 dated 2 September 2025 issued by the Immigration Department (“Travel Records”). The Travel Records show that D1 was not in Hong Kong from 21 July 2022 to 14 June 2024.

6.  Mr Lee, counsel, appeared for P and Miss Ho, counsel, appeared for Ds.

Applicable Principles

7.  It is trite that an appeal from a master to a judge in chambers pursuant to O.58 of Rules of the High Court, Cap. 4A (“RHC”) is dealt with by way of an actual rehearing of the application which led to the order under appeal, and the judge treats the matter as though it came before him or her for the first time: see Hong Kong Civil Procedure 2026, Vol.1, §58/1/2.

8.  The applicable principles for O.14 of RHC are also trite. These were summarised by Ng J in Guanghua SS Holdings Limited v Lim Yew Cheng & Another [2022] HKCFI 1052 at §13 as follows:

(1)  The Order 14 machinery works on the basis that if the plaintiff’s application is properly constituted, it is prima facie entitled to judgment unless the defendant shows cause to the contrary;

(2)  The mere assertion in an affidavit of a given situation by the defendant responding to an application for summary judgment does not, ipso facto, ground leave to defend;

(3)  The burden is on the defendant to show a real or bona fide defence or some other reason for a trial. The defendant must satisfy the Court that his evidence is capable of being believed and that on the basis of such evidence, there is a fair or reasonable probability of the defendant having a real or bona fide defence;

(4)  In deciding whether there is a fair or reasonable probability of the defendant having a real or bona fide defence, the Court does not isolate each factual issue and consider whether it is possible that the defendant’s story on that issue is credible. Rather, the Court must look at the whole situation;

(5)  In assessing the credibility of the defendant’s factual case, while the Court will not embark upon a mini-trial on affidavit evidence, the Court is not obliged to suspend its critical faculties and assume that the defendant’s evidence is accurate;

(6)  If having regard to inherent plausibility, inconsistency with contemporaneous documents and other compelling evidence, the defence is not credible, the Court must say so; and

(7)  If the defendant’s evidence is incredible in any material respect, it cannot be said that there is a fair or reasonable probability that the defendant has a real or bona fide defence.

9.  In considering whether there are triable issues, I bear in mind that the court will not take the defence on its face value but test it against the evidence disclosed in the affidavit including matters such as contemporaneous documents, whether the alleged defence is inconsistent with the defence previously put forward or whether the defence is only recently raised despite the opportunity being given to the defendant to respond earlier: see Time Rich 08 Limited v DBE (HK) Limited & Ors (Unrep) CACV 282/2017, 16 July 2018 per Cheung JA at §5.2.

10.  As for adducing further evidence on an appeal from a master to a judge, it has to be shown that there are “special grounds” for receiving such evidence: see O.58, r.1(5) of RHC. It was accepted by Miss Ho that “special grounds” require the conditions laid down by Ladd v Marshall to be satisfied: see Hong Kong Civil Procedure 2026, Vol.1, §58/1/3. Under those conditions, further evidence is admissible only when such evidence: (1) could not have been obtained with reasonable diligence for use at the hearing below; (2) if given, it would have an important influence on the result of the case, though it need not be decisive; and (3) must be such as is presumably to be believed.

11.  Miss Ho submitted that the first condition should be relaxed or less strictly or “flexibly” applied. However, merely because this is an appeal from a summary judgment does not mean that the requirement of reasonable diligence will be automatically relaxed. It is only one of the factors that the court will bear in mind. If, for example, the defendant is time-pressed to obtain the evidence in support of his defence and was unable to do so because of the shortage of time, the court might be more inclined to grant him the indulgence to adduce fresh evidence but even then that does not relieve him from his duty to put before the master all the evidence he seeks to rely albeit in a summary form. However, if the defendant had been given ample time to gather all the evidence in opposition but had unreasonably failed to do so, it is very much doubtful the appellate court would be prepared to relax the reasonable diligence requirement. See Bank of New York Mellon v Sun Jiangrong [2016] 1 HKC 137 per Poon JA (as he then as) at §§25-26 and Wang Yuexian v Xinyang Maojian Group Limited (formerly known as China Zenith Chemical Group Limited) [2024] HKCA 660 per Anthony Chan J (as he then was) at §§10-14.

Discussion

12.  I turn first to the Summons. In the present case, Miss Ho accepted that there was over 5 months’ delay from obtaining the Travel Records in September 2025 to the taking out of the Summons but in Lo’s Affirmation, it was said that this was due to the intervening holidays, change of legal representations and P’s delay in responding (on 21 January 2026) to a letter from Ds’ then solicitors which provided the Travel Records to P’s solicitors and asked if they would consider setting aside the summary judgment entered against Ds as well as time taken to consider a further affirmation filed on behalf of P (2^nd Affirmation of Yu) in January 2026.

13.  I was not satisfied that any of these matters can satisfactorily explain the belated filing of the Summons. As the Court of Appeal has reiterated in Re Estate of Chiu Keung [2020] 3 HKLRD 779 at §43, by reference to O.1A, r.3 of RHC (that requires parties and their legal representatives to assist the court to further the underlying objectives), a late application for admission of new evidence with no satisfactory explanation for the delay would be refused on the ground of lateness alone without regard to whether the requirements in Ladd v Marshall have been satisfied.

14.  In any event, I was not satisfied that the first condition of Ladd v Marshall was met. Miss Ho pointed out that the Forgery Defence was raised in D1’s Affidavit (exhibited to the Affidavit of Cheung Bing Keung Peter dated 25 June 2025) to oppose P’s application for summary judgment. D1 said that he left Hong Kong since July 2022 and seldom returned and therefore could confirm that he was not in Hong Kong on 29 March 2023, 8 August 2023 and 13 May 2024, the dates of execution on the some of the facility letters and guarantees (see §12). D1 also said that he had instructed his solicitors to apply for a statement of his travel records from the Immigration Department (see §14). Although it was asserted that it takes around 10 weeks to obtain travel records, and therefore the Travel Records was not available at the time of the hearing before Master, there is no good reason why D1 did not apply for the Travel Records when these proceedings were commenced against them (in January 2025) or when P applied for summary judgment against them (in March 2025). If the forgery defence was a bona fide one, and no doubt D1 knew that he was not in Hong Kong after July 2022, there is no reason why this defence was not “anticipated” from the start when P demanded repayment from Ds pursuant to the guarantees or when this action was commenced and the Travel Records obtained then. The Travel Records could have been obtained for use before the Master if reasonable diligence had been exercised. Ds had ample time to obtain in support of the Forgery Defence before the summary judgment application was heard before the Master in late August 2025.

15.  Nonetheless, as I indicated at the outset of today’s hearing, I will consider the further evidence on a de bene esse basis.

16.  I next turn to the application for summary judgment. I am satisfied that P has discharged its initial burden to show prima facie that it is entitled to judgment on its claim. It then falls to be considered whether Ds have shown their evidence is capable of being believed and that on the basis of such evidence, there is a fair or reasonable probability of Ds having a real or bona fide defence.

17.  In both D1’s Affidavit and D2’s Affirmation it was stated that the facility letters and guarantees had never been shown to them and they had no knowledge of those documents. They confirmed that they never put their signatures on them. The documents which they have said were not executed by them and their date of execution are as follows:

Documents	Date of execution
Facility Letter dated 6 January 2022 (“1st Facility Letter”) •   As revised/supplemented on 8 March 2023 •   As revised/supplemented on 13 April 2024	7 January 2022 29 March 2023 13 May 2024
Facility Letter dated 6 January 2022 (“2nd Facility Letter”) •   As revised/supplemented on 8 March 2023 •   As revised/supplemented on 13 April 2024	7 January 2022 29 March 2023 13 May 2024
Facility Letter dated 2 August 2023 (“3rd Facility Letter”)	8 August 2023
Facility Letter dated 6 January 2022 (“4th Facility Letter”) •   As revised/supplemented on 8 March 2023 •   As revised/supplemented on 13 April 2024	7 January 2022 29 March 2023 13 May 2024
Facility Letter dated 6 January 2022 (“5th Facility Letter”) •   As revised/supplemented on 8 March 2023 •   As revised/supplemented on 13 April 2024	7 January 2022 29 March 2023 13 May 2024
Facility Letter dated 24 February 2023 (“6th Facility Letter”)	3 March 2023
Deed of Guarantee dated 7 January 2022 (“1st Guarantee”)	7 January 2022
Deed of Guarantee dated 7 January 2022 (“2nd Guarantee”)	7 January 2022
Deed of Guarantee dated 8 August 2023 (“3rd Guarantee”)	8 August 2023
Deed of Guarantee dated 3 March 2023 (“4th Guarantee”)	3 March 2023
Deed of Guarantee dated 7 January 2022 (“5th Guarantee”)	7 January 2022
Deed of Guarantee dated 7 January 2022 (“6th Guarantee”)	7 January 2022

18.  However, there is not one contemporaneous document to support their assertion that their signatures were forged which remains a bare assertion. They have never reported the alleged fraud to the police or taken the matter up with bank regulators or conducted any internal investigations.

19.  Inherently, Ds’ case is incredible when what they assert is that someone had forged their signatures in 20 documents over a period of over two years without their discovery until these proceedings were commenced. As will be seen below, a larger number of other documents with their signatures would have to be forged too if their defence is true. Although in an application for summary judgment the test is whether the defendant’s evidence is believable and not whether it will be believed at trial, I bear in mind that an allegation of forgery is a serious allegation which the defendant will bear the burden of proving by cogent and compelling evidence since it is trite that the more serious the allegation, the less likely it is that the event occurred: see Billion Wealth Group Limited v Strategic Media International Limited (unrep) HCMP 2586/2009, 3 May 2010 per Fok J (as he then was) at §40.

20.  Furthermore, Ds’ assertions are not believable when assessed against so much of the background that is beyond reasonable dispute. As already mentioned, D1 and D2 are respectively the sole directors and shareholders of Good Timing and Sure Profit, and there is no dispute that banking facilities were advanced by P to them as borrowers. It is incredible that these facilities would have been extended to Good Timing and Sure Profit if the facility letters and deed of guarantees were not executed by those being in control.

21.  The fact that Ds claim that they have no knowledge of any of the facility letters and guarantees is contradicted by contemporaneous documents (not said to be forged) and even excluding those post-July 2022 documents when D1 was not physically in HK, including:

(1)  An attendance note of Mr Alex Wa, the relationship manager in charge of the accounts of Good Timing and Sure Profit, recording that he had met with Ds at the office of Good Timing and Sure Profit on 15 October 2021. The attendance note recorded that D1 and D2 were respectively the director and shareholder of Good Timing and Sure Profit, they wanted to enhance their productivity and competitiveness and the final plan was “Action to apply for SFGS 80% and Mortgage”. Whilst Miss Ho criticized that there is no affirmation of Mr Wa, it had been explained that Mr Wa has left P’s employ and it was never suggested that the note was forged nor is there any basis to so suggest. A defendant cannot resist summary judgment by claiming that there are circumstances requiring investigation if ultimately, he simply does not have any credible basis to resist the claim: see Hong Kong Civil Procedure 2026, Vol.1, §14/4/10;

(2)  On 1 December 2021, around 1 month before execution of the 1^st, 2^nd, 4^th and 5^th Facility Letter and the 1^st, 2^nd, 5^th and 6^th Guarantees, D1 and D2 had signed and submitted three Mortgage Loan Application Forms to P;

(3)  On 18 January 2022, D1 and D2 executed standard banking documentations comprising Global Applications for Accounts and Services and Instruction Indemnities, corporate resolutions in respect of board meetings of Good Timing and Sure Profit to authorize the execution of the Instruction Indemnities, certified copies of Ds’ Hong Kong Identity Cards and the Memorandum and Articles of Associations of Good Timing and Sure Profit;

(4)  On 28 January 2022, D1 and D2 acknowledged receipt in writing and returned signed acknowledged dated 9 February 2022 in respect of their e-banking accounts application;

(5)  Three legal charges dated 10 February 2022 (“the Three Legal Charges”), which were required under the 2^nd and 5^th Facility Letter dated 7 January 2022, were executed by D1 and D2; and

(6)  There were also multiple resolutions and minutes in respect of Good Timing and Sure Profit signed by D1 and D2 in February 2022.

22.  Ds’ case is also inconsistent with the position taken by Good Timing and Sure Profit (which could only act through their sole director, i.e. D1 and D2) in HCMP 203/2025, a mortgage action commenced by P against Good Timing and Sure Profit pursuant to the Three Legal Charges and the Deeds of Guarantee dated 7 January 2022 executed by Good Timing and Sure Profit respectively in favour of P, not to take issue with the validity of the 1^st to 6^th Facility Letters, the 5^th and 6^th Guarantees or Ds’ signatures thereon. Forgery was never raised in those proceeding and was the earliest opportunity to raise the Forgery Defence if genuine as those documents were signed by Ds on behalf of Good Timing and Sure Profit.

23.  Whilst Miss Ho submitted that the evidence adduced on behalf of P were suspicious (for example, a Call Report prepared by Mr Wa dated 22 May 2023 when the meeting location was “office of client” despite the Travel Records show that D1 was not in Hong Kong, the signatures of Ds and Mr Wa being dated on a date D1 was not in HK, and the change in the evidence of Ms Yu on the date she allegedly met with Ds), I disagree that P’s claim turns on the credibility of Mr Wa and/or Ms Yu. I also agree with Mr Lee that in this day and age, documents can be executed even if D1 was not in Hong Kong.  In any event, for documents executed prior to July 2022, D1 cannot rely on his absence to support the Forgery Defence and it remains his bare assertion.  Indeed, P can simply rely on the earlier documents in its claim against Ds.  It is clear that Ds are liable to P in respect of “all sums of money and liabilities whether actual or contingent whether now or at any time hereafter owing or incurred to P” (see recital of 1^st Deed of Guarantee). Furthermore, P has a contractual right to restrict, enlarge or vary any credit to the borrowers without reference to Ds and without affecting its rights against Ds (see ibid clause 7) so even if the subsequent facility letters were not executed by Ds that will not afford them any defence.

24.  In all, having considered all of Miss Ho’s submissions, I am not satisfied that the Forgery Defence raised by Ds is bona fide and triable nor are there facts that call for investigation. Like the Master, I would also enter judgment against Ds.

25.  Whilst in Mr Lee’s skeleton he submitted that the Master’s costs orders “cannot be supported” and invited this court to re-assess the Master’s summary assessment, I decline to do so.  Firstly, there is only before me an appeal by Ds against the Master’s Judgment and no notice was given prior to the filing of Mr Lee’s skeleton that P intended to appeal against the Master’s costs order. Secondly, in general, a judge will not allow an appeal from a costs order unless it is shown that the master was unreasonable or erred in law, i.e. he has either failed to take into account proper matters or took into account matters that should not have been taken into account: see Hong Kong Civil Procedure 2026, Vol.1, §58/1/6.  The Master did award costs of this action on an indemnity basis which is as provided in the guarantees. As for the quantum summarily assessed, that is in the Master’s discretion and he was entitled to adopt a broad brush approach. Notwithstanding Mr Lee’s submissions, I am not convinced that the Master erred.

Disposition and Orders

26.  Accordingly, I will dismiss the Notice of Appeal and the Summons with costs against Ds on an indemnity basis.

27.  P shall lodge and serve a Statement of Costs within 7 days and Ds shall lodge and serve a List of Objections (limited to 3 pages) within 7 days thereafter. There will be a summary assessment of costs of the Notice of Appeal and Summons by me on paper.