香港長城投資有限公司 v. 施鶴平

HCMP 287/2025

[2025] HKCFI 5007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 287 OF 2025

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REASONS FOR DECISION

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1.  At the end of the hearing, I came to the view that this matter is not suitable for determination by way of originating summons on affidavits alone as there are factual disputes. I therefore invoked O.28 r.8(1) and ordered:

(a)  The Plaintiff do file and serve the Statement of Claim within 35 days from 15 October 2025.

(b)  The 1^st Defendant do file and serve the Defence within 35 days thereafter.

(c)  The Plaintiff do file and serve the Reply (if so advised) within 28 days thereafter.

(d)  Costs reserved.

2.  These are my reasons.

3.  By Originating Summons dated 24 February 2025, the Plaintiff applies for, inter alia, declarations that (a) its board resolution dated 30 September 2024 (“Board Resolution”) is null and void and (b) a notarial certificate dated 21 October 2024, which was signed by the 2^nd Defendant on the strength of the Board Resolution, is null and void. The Plaintiff also applies for damages against the 1^st Defendant to be assessed.

4.  The Plaintiff’s main complaint (as it appears from the evidence) is that the 1^st Defendant had forged the Board Resolution, which appeared to have been signed by P’s 3 directors at that time (i.e. the 1^st Defendant, Yan and Zhao). In particular, it is said the signatures appearing at pages 2 and 4 of the Board Resolution, which purported to be Yan’s and Zhao’s signature respectively, were in fact not Yan’s and Zhao’s signatures but were forged. Alternatively, it is said that if they were indeed Yan’s and Zhao’s signatures, they were “obtained and attached to the said document unethically without…consent”.

5.  The evidence also explains the steps taken by the Plaintiff after discovery of the alleged forgery. It is said that as a result, the Plaintiff has incurred fees but there is no further articulation on what is the nature of the fees and the quantum.

6.  It would appear from the papers that the concurrent Originating Summons and other documents have been served out of the jurisdiction on the 1^st Defendant. No Acknowledgment of Service has been filed, and the 1^st Defendant did not appear at the hearing. That said, he filed a document entitled “答辯狀” dated 18 September 2025 with enclosures. For present purposes, the main points made include: (a) the Originating Summons and other documents have not been properly served on him (b) the Plaintiff has failed to prove the Board Resolution was contrary to the Plaintiff’s articles and that Zhao’s and Yan’s signatures were forged bearing in mind there is no expert evidence on handwriting (c) P is unable to prove any actual loss or damage.

7.  At the hearing, Mr Lam for the Plaintiff fairly accepted that I should not ignore the 1^st Defendant’s “答辯狀” despite it is not in affidavit or affirmation form, and that no Acknowledgment of Service has been filed. Nevertheless, Mr Lam argued that it would be expedient for the Court to proceed in the 1^st Defendant’s absence and make final orders against him in the terms of the Originating Summons. With respect, I disagree:

(a)  It seems to me whether Yan and Zhao did or did not sign the Board Resolution is a material factual dispute. As I have noted, the Plaintiff’s evidence suggests 2 alternative factual scenarios. Plainly, this factual dispute cannot be resolved summarily and on affidavit.

(b)  While it is a matter for parties to decide what sort of evidence to adduce, I should point out that both Yan and Zhao did not substantiate why they say the signatures were either forged or were obtained from them and attached to the Board Resolution without their consent. Mr Lam argued that it would be difficult to prove a negative. But evidence on allegedly forged signatures is not an uncommon feature in modern civil litigation.

(c)  Mr Lam accepted there might be a factual dispute had the 1^st Defendant “took it further”. However, Mr Lam pointed out that had the 1^st Defendant been serious about opposing the Originating Summons, he ought to have filed an affidavit. That may be so. But it is trite that the burden is on the plaintiff to justify its entitlement to summary judgment under the originating summons procedure. As explained, the Plaintiff’s present evidence suggests there is a material factual dispute.

8.  For these reasons, I gave the directions identified at §1 above.