JAFOON PROPERTY FINANCE LTD v. KING PETER HICKSON SEETO SHEW also known as JIN ZHIHAO

HCA 648/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 648 OF 2014

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REASONS FOR DECISION

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1.  By this action, the plaintiff seeks, inter alia, to recover money lent to the defendant. The defendant raised various defences based on the Money Lenders’ Ordinance. The trial had been fixed before me on 12 July 2017 for three days.

2.  The plaintiff took out two Summonses, one dated 1 June 2017, seeking to strike out the whole of the 2^nd supplemental witness statement of the defendant (“the Statement”) dated 24 May 2017 and the documents exhibited to the Statement.  On 23 June 2017, the plaintiff took out another Summons to amend the first Summons.  Instead of striking out the whole of the Statement and the exhibits, the plaintiff sought to strike out paragraphs 6, 7, 12 and 13 of the Statement, and also pages 1 to 5, 9, 18, 19 and 21 of the exhibits to the Statement. 

3.  On 3 July 2017, the defendant by Summons sought leave to amend and file the Statement as well as to file and serve a Supplemental List of Documents.  The main additions by the amended Statement were two new paragraphs 14 and 16.  The List differed from the exhibits to the Statement in two ways.  First, the defendant had removed pages 3 to 5 of the exhibits, which were part of the documents objected to by the plaintiff.  Secondly, the defendant added items 19 and 20, being the writ of summons of HCA 1893 of 2016 and the loan agreement between Zong Qi Se Medicine Company Limited and Total Shares Limited referred to in that action.

4.  In a nutshell, the plaintiff’s case was that the new evidence was irrelevant and that the matters were never raised by the defendant in his Re-Amended Defence and Counterclaim.  I would add that the plaintiff, by the 2^nd Summons, was not seeking to challenge the whole of the Statements and the new documents but only part of them.

5.  Mr Wong, counsel who had just been instructed by the defendant, submitted that paragraphs 6, 7, 12 to 14 of the amended Statement were relevant to the defence under section 27 of the MLO, as to whether Ms Lee Yuk Kwan of the plaintiff and the alleged agent Mr Lee Pak Keung were acting in collusion.  Mr Wong said they were also relevant to the credibility of the witnesses.

6.  In relation the new paragraph 16 of the amended Statement, Mr Wong argued that they were relevant to the allegation in the second supplemental statement of Ms Lee Yuk Kwan filed by the plaintiff where the plaintiff relied on certain faxes sent by the defendant promising to make repayment of the loan.  By the said paragraph 16, the defendant said the faxes in fact related to another loan by another company of Ms Lee.  That was the reason for the inclusion of items 19 and 20 referred to in paragraph 3 above.

7.  Having read the materials before me and considered the submissions by the parties, I allowed the defendant to file and serve the amended Statements and file the Supplemental List of Documents, except the part that is described in paragraph 8 below.  I considered that the matters were relevant and that they had been raised in the previous witness statements of the defendant (for example, paragraph 3 of the supplemental statement of the defendant dated 7 September 2015).

8.  I ordered that the last two sentences of paragraph 12 of the amended Statement be struck out, namely “串通李玉群合謀來詐騙我，這個證據他們是無法抵賴”.  That was a new issue never mentioned in the Re-Amended Defence and Counterclaim.  It was also a serious one of fraud.  I agreed with the plaintiff that it would not be acceptable for unpleaded issues to be raised out of the evidence which is to be adduced (see Court of Final Appeal decision in Kwok Chin Wing v 21 Holdings Ltd & Anor (2013) 16 HKCFAR 663 at para 21 to 23, Ma CJ).    

9.  I made clear to the parties that allowing the defendant to put in the evidence did not mean that I accepted the truth of the Statement and the documents, nor did it in any way reflect my view on the credibility of those evidence.

The Order

10.  I gave leave to the defendant to file the amended Statement (with the said two sentences struck off) and the Supplemental List of Documents by 4 pm on 4 July 2017. 

11.  I gave leave to the plaintiff to file evidence in reply (if so advised) by 10 am on Monday, 10 July 2017. 

12.  I also ordered that the costs of the said three Summonses be to the plaintiff.