FIELD FINANCE LTD v. CHEUNG MO CHING

CACV 94/2024, [2026] HKCA 1003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 94 OF 2024

(ON APPEAL FROM HCA NO 2818 OF 2018)

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J U D G M E N T

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Hon G Lam JA (giving the Judgment of the Court):

1.  The action below was a claim by the plaintiff for repayment of a loan advanced to the defendant pursuant to a written loan agreement. After trial, on 29 December 2023 DHCJ Winnie Tsui gave judgment for the plaintiff. The defendant, then acting in person, lodged a notice of appeal in March 2024. In July 2025, her solicitors lodged two summonses on her behalf applying for leave to adduce new evidence for the appeal and for leave to amend the notice of appeal.

2.  Having considered the written materials, we consider it appropriate to deal with these interlocutory applications on paper without a hearing, pursuant to Order 59 rule 14A of the Rules of the High Court (Cap 4A).

3.  The defendant’s case was that in April 2018, she received a cold call from one Mr Sean Chan of C Management Ltd and was subsequently induced by him as an intermediary to borrow a loan from the plaintiff, a finance company, purportedly as a bridging loan, with a view to obtaining a mortgage loan from Bank of East Asia later.  The defendant was persuaded to make an online application to the plaintiff for a loan to be secured by a charge over a property.  The property was at the time owned by the defendant and her husband as joint tenants.  The plaintiff approved the application and, on 16 May 2018 at 11:17, instructed its solicitors to prepare the legal documentation including a document for the severance of the joint tenancy.  Eventually the defendant signed the relevant documents including a loan agreement, a notice of severance and a second legal charge of her interest in the co-owned property.  She received two cheques for the loan proceeds, went with Sean Chan to the bank to cash the cheques, and handed over the money to Sean Chan, who gave her a receipt acknowledging C Management Ltd had received the cash from her for custody.  The defendant said that she never received the benefit of the loan.

4.  The main factual issue at trial was whether the plaintiff acted in collusion with Sean Chan and C Management Ltd as the defendant alleged.  The judge heard evidence from, among others, Mr Chang, the sole director of the plaintiff at the time, and the defendant.  At the end the judge rejected the defendant’s allegation of collusion and held in favour of the plaintiff.  Her Ladyship had “grave doubt” over the credibility and reliability of the defendant’s evidence because of “extensive inconsistencies … on material matters” and “her apparent willingness to make untrue statements to get what she wants” (judgment, §188).

5.  There are three items of new evidence that the defendant wishes to adduce on appeal: (1) a statement taken from the defendant by the police on 21 January 2025, together with its attachments; (2) a compact disc recording a telephone conversation between the defendant and two employees of the Land Registry on 9 January 2025; and (3) a transcript of that telephone conversation.  The gist of these materials is that according to what the employees told the defendant, the Land Registry does not offer any land search facility at a fixed periodic fee.  Each land search is individually charged. 

6.  The three items all go to the same point, which is this.  Chang’s evidence was that on 15 May 2018 at about 6 pm, he did a land search in relation to the property proposed to be used as security for the loan applied for by the defendant, from which he learnt that the property was held by the defendant and another person under a joint tenancy.  In discovery in the action, however, the plaintiff only disclosed a land search record of 16 May 2018 at 12:42 done by its solicitors.  During his oral evidence, when cross-examined in relation to his knowledge of the joint tenancy, Chang maintained that he did a land search on 15 May 2018 and further said that the fees for land search were charged to his company and paid on a monthly, half-yearly or yearly basis – he could not clearly remember which, in the amount of $20,000 odd, irrespective of how many searches were carried out.

7.  It is submitted on behalf of the defendant that the new evidence tends to show that Chang lied about paying a fixed periodic fee for land search, that this in turn supports the defendant’s case that Chang did not make a land search on 15 May 2018, which would tend to show that when the plaintiff gave instructions to its solicitors on the morning of 16 May 2018 it already knew of the joint tenancy without doing a land search.  From this, one could infer that the information came from Sean Chan and C Management Ltd, and this in turn supports the defendant’s case of collusion.

8.  Although the information in the items of new evidence was obtained from the Land Registry only after trial, in January 2025, it was plainly available all along.  The police statement simply records the defendant’s complaint, based on that information, that Chang gave false evidence at trial.  So despite that these new documents are dated after the trial, the evidence in substance existed at the time of the trial.  The usual Ladd v Marshall[1] conditions for admitting new evidence on appeal are applicable.

9.  In our view the application fails at the first hurdle. The first condition, namely, that it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial, is not satisfied.  Chang’s testimony was completed on the first day of trial, 10 March 2023.  Even if the solicitors and counsel representing the defendant at trial did not know there was no fixed periodic fee service at the Land Registry and could not immediately challenge Chang on that point during his cross-examination, there was a whole week before the last day of the trial, 17 March 2023, and, if there were exceptional circumstances, another nine months before judgment was given, for them to make inquiries and to apply to have Chang re-called if necessary.  With respect, the attempt to put in evidence on appeal, obtained more than a year later, to challenge a collateral answer given by a witness during cross-examination, is quite hopeless.  There is no need to consider the other two Ladd v Marshall conditions.

10.  We should mention that Chang has made an affirmation in response saying that at the time the plaintiff used the land search services of a company called 查冊通互聯網有限公司 (Land Search Online Ltd) at a fixed periodic fee and that his testimony at trial was not false.  It is unnecessary to examine this as the defendant’s application must be dismissed even without regard to Chang’s explanation.

11.  It follows that the proposed amendment to the notice of appeal based on the new evidence (i.e. paragraphs 22-23 of the draft amended notice of appeal) must be rejected. 

12.  The other proposed amendments to the notice of appeal do not appear to be based on any new evidence and, as such, may be effected by supplementary notice of appeal without leave pursuant to Order 59 rule 7(1).  The application for leave to amend has been made in ignorance of that rule and, being wholly unnecessary, falls to be dismissed.

13.  Accordingly, the defendant’s two summonses are both dismissed with costs.  On a nisi basis, we summarily assess the costs in the amount of $210,000.

[1] [1955] 1 WLR 1489, 1491: “To justify the reception of fresh evidence or a new trial, three conditions must be fulfilled: first, it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; secondly, the evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive; thirdly, the evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, though it need not be incontrovertible.”