MAK CHEUNG CHING v. WONG MEI FONG AND ANOTHER

HCA 254/2016

[2020] HKCFI 2488

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 254 OF 2016

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JUDGMENT

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A.   Introduction

1.  The matter in dispute in this case took place from around September 2014 to early 2016 when the Plaintiff was a contracted artist of Television Broadcast Limited (“TVB”).  According to him, since 2010, his career as an actor was on the rise.  At the end of 2015, he met for the first time in his career the opportunity of becoming the leading actor in a TVB’s drama.  There is no dispute that at the material time he regularly appeared in TVB’s television programmes, and was familiar to television audience in Hong Kong.

2.  The 1^st Defendant was a businesswoman in the mobile phone trading business.  The 2^nd Defendant was a corporate vehicle which she owned and controlled for the running of her business.

3.  The Plaintiff advances two causes of action against the Defendants: malicious falsehood and procuring breach of contract.  He seeks damages for pecuniary loss and aggravated damages for the distress and anxiety that he suffered as a result of the torts.  He also seeks injunctive reliefs restraining the Defendants from defaming the Plaintiff and procuring any third party to breach of any contracts that such party has entered with the Plaintiff.  It is the Plaintiff’s case that the Defendants committed these wrongdoings through the wrongful acts of certain anonymous debt-collecting agents engaged by the Defendants.  Lastly, since the Defendants have all along been claiming that he should return a sum of $1,180,900 (“the Subject Sum”) to the 2^nd Defendant, the Plaintiff further asks the Court to declare that they have no legal basis in making such claim.   

4.  The Defendants deny the Plaintiff’s claim and put the Plaintiff to strict proof of his case.  They say they had no relationship with, and had no knowledge of the alleged acts of the debt collectors.  As to the Subject Sum, the 2^nd Defendant counterclaims that the Plaintiff is liable to return the money to it “on the ground of money had and received, total failure of consideration, unjust enrichment and/or restitution”, as so pleaded in its Amended Counterclaim.

B.   The Plaintiff’s case

5.  The Plaintiff and the 1^st Defendant did not know each other.  They had no previous dealing.  They were complete strangers.

6.  Madam Lam Che (“Mrs Mak”) was the Plaintiff’s wife.  She was a housewife.  Her evidence is that in around September 2014, she came to know a Mr Ng Chi Ho (“Mr Ng”).  Mr Ng represented himself as an iPhone trader.  He successfully persuaded Mrs Mak to invest in his business. 

7.  Between September and November 2014, Mrs Mak paid a total $1.6 million to Mr Ng.  She got back $1,635,000 from Mr Ng.  Profit was hence made.

8.  In around mid-November 2014, Mr Ng coaxed more money out of Mrs Mak, who also asked her friends to join the investment through her.  She transferred to Mr Ng her money and her friends’ money in the total sum of $4,436,000 as further investment (“Further Investment Sum”).  Mr Ng told her that he would pay back the Further Investment Sum together with profit to her on 8 December 2014.

9.  In this instance Mr Ng did not keep his promise.  He did not pay anything to Mrs Mak on 8 December 2014.  She chased him repeatedly.  Sometime before 23 December 2014, Mr Ng gave her a cheque for $1,180,900 in partial repayment of the Further Investment Sum.  The cheque was dated 23 December 2014.  Its drawer was the 2^nd Defendant.  Its signer was the 1^st Defendant.  The name of the payee was left blank.  Mr Ng told Mrs Mak that the cheque was issued by his client and the monies were proceeds of trading iPhones.  He asked her to fill in the cheque herself the name of the payee and bank it in whatever account she wanted.  She then wrote down the Plaintiff’s name on the cheque as the payee and banked it in the Plaintiff’s savings account with the Bank of China (Hong Kong) Limited (“the Plaintiff’s account”).  However, the cheque was dishonoured.  Mrs Mak complained to Mr Ng over phone immediately.

10.  A few days later, on or about 27 December 2014, Mr Ng telephoned Mrs Mak, telling her that the sum which was stated on the bounced cheque (i.e. $1,180,900) was then ready.  He asked for a bank account so that he could deposit the said sum into it.  Mrs Mak gave him information of the Plaintiff’s account.  In or around noon on the same day, she checked and noted a sum of $1,180,900, i.e. the Subject Sum, had indeed been deposited into the Plaintiff’s account.  As part of the Further Investment Sum was from her two friends, out of the Subject Sum of $1,180,900, Mrs Mak returned $1,035,000 to them on that same day. 

11.  Since then, Mr Ng did not repay any further sum to Mrs Mak.

12.  There is no dispute that in January 2015, Mr Ng was arrested by the police.  In 2017, he was convicted of multiple charges of fraud[1].  

13.  In around March or April 2015, Mrs Mak began to receive certain phone calls and voice messages left for her.  According to Mrs Mak’s evidence, the callers of these phone calls and voice messages claimed themselves as representatives of a Madam Wong Mei Fong.  Wong Mei Fong is the name of the 1^st Defendant.  In fact, one of the callers identified herself as Wong Mei Fong.  In these phone calls or voice messages, Mrs Mak was told that the 1^st Defendant was the person who transferred the Subject Sum to the Plaintiff’s account on 27 December 2014, and that the Subject Sum was paid out of Madam Wong’s company. She was asked to return the Subject Sum to the 1^st Defendant, or else the 1^st Defendant would sue her and the Plaintiff.  She was also asked to meet with the 1^st Defendant to settle the matter but she refused.  She was then lambasted by the callers as cheater who conspired with the Plaintiff to cheat the 1^st Defendant out of the 1^st Defendant’s money.  

14.  Mrs Mak said during the following few months, she received these phone calls or voice messages from time to time.  She recalled that in the last of these telephone conversations, the female caller relaying messages for the 1^st Defendant further threatened to report to the police that the Plaintiff and she had defrauded the monies of others.

15.  In early May 2015, Mrs Mak received a telephone call from a staff of Andy Fung & Associates, a solicitors’ firm.  The caller told Mrs Mak that the firm acted for the 1^st Defendant and asked her to collect from the firm a letter addressed to the Plaintiff, or otherwise the letter would be posted to TVB.  Mrs Mak informed the Plaintiff of the call.  The Plaintiff then instructed the Plaintiff’s solicitors to receive the letter on his behalf.  The letter was dated 7 May 2015.  In the letter, Andy Fung & Associates stated that they acted for the 2^nd Defendant, and that at the end of December 2014, the 2^nd Defendant, acting at the direction of Mr Ng of the Plaintiff’s side, deposited in the Plaintiff’s account the Subject Sum as the purchase price for ordering iPhone 6 mobile phones.  However, as alleged in the letter, the Plaintiff’s side did not deliver the goods as promised, and Mr Ng had been arrested for fraud in relation to mobile phone trading.  The solicitors demanded the Plaintiff to return the Subject Sum to the 2^nd Defendant, failing which the 2^nd Defendant should commence legal action against the Plaintiff for recovery of the Subject Sum and interest.

16.  On 21 May 2015, the Plaintiff’s solicitors replied by letter, that he was not related to Mr Ng nor was involved in his sale of iPhone 6, and that the Plaintiff would defend vigourously any legal action brought by the 2^nd Defendant.

17.  Despite the Plaintiff’s refusal to return the Subject Sum, the 2^nd Defendant did not commence legal action as threatened.

18.  In January 2016, when Mrs Mak began to receive telephone calls again.  I extract the following paragraphs in Mrs Mak’s first witness statement which records her recollection of these telephone calls:

“15. Since then, no further action was taken out by the 2^nd Defendant. In January 2016, I began to receive telephone calls again. Up to the end of January 2016, there were over 20 calls in total. I did not pick up some of them. For those calls that I answered, I can identify there were at least 2 male callers. For those I missed the calls, the caller has left her voice messages.

16. In those calls or voice messages, the callers identified themselves as representing “Madam Wong Mei Fong”. They demanded my husband and me to repay the sum of $1,180,900.00 to “Madam Wong” or else they would call my husband and go to TVB to look for him. They also warned me that if monies were not repaid, they would make known to the public that my husband and I owed others monies. I told my husband about those calls and let my husband listen all voice messages.”

19.  According to the Plaintiff’s evidence, on 20 January 2016, an incident taking place at the office of TVB.  I shall refer to this incident below as “the TVB incident”. In his first witness statement, the Plaintiff described the incident as follows:

“13. I was informed that on 20^th January 2016, 2 fierce looking men with strong build attended at the office of TVB in Tseung Kwan O, Sai Kung, New Territories. They shouted at the receptionists asking to see me. They referred to “Madam Wong” and said words to the effect that I owed “Madam Wong” monies. As I was not there, they ultimately left the office of TVB.”

In his supplemental witness statement, the Plaintiff added the following[2]:

“12. 就着那事的事發經過，雖然我沒有在現場耳聞目睹，然而同日我在TVB的助手便向我匯報了此事。以我所知，當時行政大樓外負責接觸兩名大漢的同事，曾因此聯絡了藝員部，事件更驚動了藝員部的主管樂易玲小姐。樂小姐是TVB的其中一位高層管理人員，負責管理全台的藝員。事後，樂小姐還親自問我到底有否欠人錢，我說沒有；我問她我是否需要報警，那時樂小姐着我不要驚動警方，避免把事情鬧大。”

20.  On 26 January 2016, a few days after the said incident on 20 January 2016, at about 12:13 am, another voice message was left with Mrs Mak.  The content of that voice message as recorded^[3] is as follows:

“啊 … 麥太，同你老公麥包講啦，錢就一定要拎番出黎嫁啦。 想低調處理呢，就儘快聽番電話。下，攞番舊錢比番人地。如果唔係呢，自己心裡有數。呢D野呢，詐騙，刑事黎咖。搞大件事，對大家都無好處，自己諗下啦。”

[English translation in Mr Mak’s witness statement:

“Ah … Mrs Mak, tell your husband “麥包”, he must take the monies out. If (you) want to settle it in private, (you) should answer the calls as soon as possible. Return the monies to others.  Otherwise, you know what will happen.  These things, fraud, is criminal.  If the matter continues to escalate, it will do no good to all of us.  You consider yourself.]

21.  The Plaintiff claims that another incident took place on 26 January 2016.   This incident concerned On Kee Dry Seafood Co., Limited (“On Kee”), a dry seafood retailer and wholesaler in Hong Kong, which engaged the Plaintiff as its brand ambassador or spokesman for advertising purposes.  In his witness statement, he asserted as follows:

“17. In the afternoon of 26 January 2016, he received a phone call from my manager, Madam Lau Yuen Yee of the Senior Artiste Management Department of TVB. Madam Lau told me that something happened at the Sheung Wan branch of On Kee around noon that day. She said some men went to that branch of On Kee around noon that day. She said some men went to that branch and claimed that I owed other monies. She added that On Kee’s owner, Mr Poon happened to be there at that time. My manager further informed me that Mr Poon and On Kee decided to terminate their spokesman contract with me.

18. After talking to my manager, I immediately made a phone call to Mr Poon.  The call was picked up by him and he told me that some people went to his Sheung Wan branch earlier that day and alleged that I owed them monies.  Mr Poon told me that because of that, he had to terminate the spokesman contract with me.  I asked Mr Poon to give me more details on what exactly happened, he refused.  Our conversation then ended.”

I shall refer to this incident below as “the On Kee incident”. 

22.  On 28 January 2016, the Plaintiff obtained an ex parte injunction restraining the Defendants from procuring any person who had contracted with the Plaintiff to breach such contract.  The Defendants did not apply to set aside the order.

23.  The Plaintiff pleads that although he did not know the 1^st Defendant, the natural and reasonable inference to be drawn from the above matters is that the 1^st Defendant and/or the 2^nd Defendant were the ones making or instructing others as their agents to make the telephone calls and engaging the two men who attended the TVB’s office on 20 January 2016 and those people who went to the Sheung Wan branch of On Kee on 26 January 2016 as afore-described.  He complained that these incidents caused irreparable harm to his career as an artist.  He lost his first opportunity to play as the leading actor in a TVB drama, which he had waited for almost 30 years.  He was no longer offered any role in drama programmes by TVB, and his contract with TVB was not renewed after expiration.  His frequency of appearance on the television dropped significantly, so as his income.

C.   The Defendant’s case

24.  The 1^st Defendant told the Court that the Defendants were also the victim of the iPhone investment fraud perpetrated by Mr Ng[4].

25.  The Defendants’ counsel sums up her clients’ case in the opening submissions as follows:

“5.  D2 is a victim of an iPhone investment fraud based on 2014. Briefly stated:

5.1  On several occasions, Ds paid certain sums of monies to the Fraudster [i.e. Mr Ng] to pre-order iPhones at a price lower than the market price.  However, some iPhones were not delivered as agreed.

5.2  In reliance of the Fraudster’s representation that the iPhones would be delivered if Ds could help the Fraudster to resolve some cash flow problems, D2 transferred HK$1,180,900 to an account designated by the Fraudster (“the Account”) on 27 December 2014, which turned out to be an account of P.

5.3  The sum of HK$1,180,900 was therefore received by P without good consideration required to support a contract between P and Ds.

6.  What Ds fairly claim is the restitution of the sum of HK$1,180,900 which should not have been transferred to the Account but for the fraud.  The sum was intended to be transferred at the instruction of the Fraudster for the sole purpose of purchasing iPhones.”

26.  A key allegation of the Defendants’ case is an oral agreement of “offsetting” between payments of various purchase orders.  In their Amended Defence and Counterclaim, this oral agreement was allegedly reached when the 2^nd Defendant placed the first order with Mr Ng:

“9. In November 2014, the 1^st Defendant came to know one Mr Ng Chi Ho (“Mr Ng”) who claimed to be acting for and on behalf of Billion Wealth International Trading Limited (“Billion Wealth”). Mr Ng claimed Billion Wealth was able to purchase large quantity of i-Phones directly from Apple and Billion Wealth agreed to sell such Apple i-Phones at cheap price to the 2^nd Defendant on the terms and conditions inter alia the 2^nd Defendant had to pay the purchase price in full in advance.

10. In early December 2014, the 2^nd Defendant, acting by the 1^st Defendant, agreed to purchase and Billion Wealth, acting by Mr Ng, agreed to sell 500 Apple i-Phones at a price of $5,588 x 500 = $2,794,000. As part of Billion Wealth’s terms and conditions, the 2^nd Defendant paid and Billion Wealth received the said sum of $2,794,000 in full on 11^th December 2014 and Mr Ng said Billion Wealth would deliver the 500 Apple i-Phones to the 2^nd Defendant within 14 days, namely on or about 24^th December 2014. At the time of the said agreement on 11^th December 2014, it was further and orally agreed between the 2^nd Defendant, acting by the 1^st Defendant, Billion Wealth, acting by Mr Ng (“the oral agreement”) that:

(a) Between the time from 11^th December 2014 to the date of actual delivery of the said 500 Apple i-Phones, upon the 2^nd Defendant’s request, Billion Wealth would sell and deliver further batch(es) of Apple i-Phones to the 2^nd Defendant (“the following batch(es) of Apple i-Phones”) and the purchase price of the following batch(es) of Apple i-Phones would be immediately paid by and off-set from the said sum of $2,794,000 or any other sum already paid by the 2^nd Defendant.

(b) At the time of delivery of the following batch(es) of Apple i-Phones, the 2^nd Defendant would issue a cheque of the same date or post-dated one or several days, in a sum of the purchase price of the following batch(es) of Apple i- Phones so as to make up the full sum of $2,794,000 mentioned and referred to hereinabove and/or any other sum due from the 2^nd Defendant.”

I shall refer to the alleged oral agreement below as “the D1/Ng Oral Agreement”.

27.  The operation of the D1/Ng Oral Agreement was complicated if not convoluted.  The 1^st Defendant’s answers during cross-examination served more to confuse rather than to clarify how the agreement worked.

28.  The 2^nd Defendant placed all together 10 purchase orders from Mr Ng.  During the trial, the parties agreed on the flow of funds and the quantities and models of the iPhones involved.  The Plaintiff’s counsel prepared a table summarizing the position of each purchase order.  I have tidied it up and set it out below:    

Date of the transaction (in 2014)	Agreed purchase Price	Form of payment from the 2nd Defendant, payment amount and date (in 2014)	Payee / Name of the payee if by cheque	Proof of the purchase produced by the Defendants	Whether the goods ordered were received by the 2nd Defendant	Amount of the mobile phones ordered and the model name
(1) 11.12	$2,794,000	Transfer of $2,794,000 to bank account on 11.12	Billion Wealth	Billion Wealth’s Quotation	No	500 iPhone 6 (16GB)
(2) 11.12	$429,000	Cash of $429,000 given on 11.12	Mr Ng	Nil	Yes	100 iPhone 5s (16GB)
(3) 12.12	$1,087,500	Cheque dated 12.12 for $1,074,500, banked in on 15.12	Billion Wealth	Invoice	Yes	250 iPhone 5s (16GB)
(4) 15.12	$787,000	Cheque dated 15.12 for $740,000, banked in on 16.12	Billion Wealth	Invoice	Yes	100 iPhone 6 (128GB)
(5) 16.12	$1,216,000	Cheque dated 16.12 for $1,168,000, banked in on 17.12	Billion Wealth	Invoice	Yes	100 iPhone 6 (128GB) & 100 iPhone 5s (16GB)
(6) 17.12	$2,220,000	Cheque dated 17.12 for $2,220,000, banked in on 17.12	AST*	Nil	No	500 iPhone 5s
(7) 17.12	$2,113,000	Cheque dated 19.12 for $2,113,000, banked in on 19.12	Name of the payee was left blank on the cheque.	Nil	Yes	150 iPhone 5s (16GB) & 200 iPhone 6 (128GB)
(8) 18.12	$1,253,600 less $61,600**	Cheque dated 18.12 for $1,253,600, banked in on 19.12 but was bounced on 22.12.  The excess of $61,600 would be used to offset the following transaction.	Billion Wealth	Nil	Yes	160 iPhone 6 (16GB) & 40 iPhone 6 (64GB)
(9) 19.12	$2,342,500	(a)   Cheque dated 22.12 for $1,100,000, banked in on 22.12 (b)   Cheque dated 23.12 for $1,180,900, banked in on 23.12 but was bounced on 24.12. (c)   Transfer of $1,180,900 to the Plaintiff’s bank account on 27.12	Name of the payee was left blank on both cheques in (a) and (b). The Subject Sum in (c) was deposited into the Plaintiff’s account	Nil	Yes	200 iPhone 6+ (16GB) 250 iPhone 5s (16GB)
(10) 22.12	$558,800	Cheque for $558,800, banked in on 23.12 but was bounced on 24.12	Name of the payee was left blank on the cheque.	Nil	Yes	100 iPhone 6 (16GB)

*   AST: AST Global Express Ltd., which was referred to the Defendants by Mr Ng as an associated company

**   In paragraph 10 of the 1^st Defendant’s witness statement, the agreed purchase price should be $1,253,600 less $61,600, i.e. $1,192,000.

29.  The Defendants alleges that the 2^nd Defendant suffered the loss of the following two sums because of Mr Ng’s fraud:

(1)  $2,020,700[5], which was the balance retained by Mr Ng out of the above 10 transactions; and

(2)  $1,180,900, which was transferred to the Plaintiff’s account at Mr Ng’s request.

30.  The 1^st Defendant said she was not acquainted with the Plaintiff and Mrs Mak.  In the beginning of 2015, the 1^st Defendant obtained Mr Mak’s mobile telephone number from a friend.  She telephoned Mrs Mak several times, inviting Mrs Mak and the Plaintiff to meet with her and to discuss the returning of the Subject Sum to the 2^nd Defendant.  However, Mrs Mak refused all invitations and requests.

31.  The 1^st Defendant admitted that she instructed Andy Fung & Associates issuing a letter to the Plaintiff claiming the Subject Sum as mentioned in paragraph 15 above.

32.  The Defendants deny all the allegations of the Plaintiff and Mrs Mak, including instructing other persons telephoning Mrs Mak and attending TVB’s office in Tseung Kwan O and On Kee’s shop.  She said they never did, and never had any intention to do, anything illegal to the Plaintiff and Mrs Mak.       

D.  The issues and the burden of proof

33.  The Plaintiff claims that the persons who made the telephone calls at Mrs Mak and left the voice messages for her and the persons who attended TVB’s office and On Kee’s shop as described above were all engaged by the Defendants; and hence the Defendants should be liable for the torts committed by these persons.  On the other hand, the Defendants contends that the Plaintiff is liable to return the Subject Sum to the 2^nd Defendant.

34.  In my view, there are five issues to be decided by this Court.

35.  First, whether the Defendants were the principals of (a) the persons who made the telephone calls at Mrs Mak and left the voice messages for her (in respect of the Plaintiff’s claim of threat of defamation), (b) the persons who attended TVB’s office on 20 January 2016 (in respect of the TVB incident), or (c) the persons who went to the Sheung Wan branch of On Kee on 26 January 2016 (in respect of the On Kee incident). 

36.  Second, in so far as the TVB incident is concerned, if the answer to the first issue is in the affirmative, whether the elements of falsity and malice have been proved such that the Plaintiff is liable for the wrongful act of malicious falsehood.

37.  Third, in so far as the threat of defamation is concerned, also on the premise that if the Defendants were the principals who instructed the making of the aforesaid telephone calls and the leaving of the aforesaid voice messages, whether the voice message left with Mrs Mak in the small hours on 26 January 2016 constituted a threat to defame the Plaintiff, and as such justifies the granting of an injunction against the Defendants as sought by the Plaintiff.

38.  Fourth, in so far as the On Kee incident is concerned, again on the same premise that the first issue is found in the Plaintiff’s favour, whether the acts of the persons who made a scene at the Sheung Wan branch of On Kee during the On Kee Incident “has procured On Kee to breach its spokesperson contract with the Plaintiff”; hence the Defendants has committed the tort of procurement of breach of contract.

39.  Fifth, whether the transfer of the Subject Sum by the 2^nd Defendant to the Plaintiff was induced by Mr Ng’s false representation and hence a payment by mistake, or whether the basis or consideration of the transfer has failed; and if so whether the Plaintiff is liable to return the Subject Sum to the 2^nd Defendant.  

40.  The Plaintiff bears the burden of proving that the answers to the first four issues should be in the affirmative, whereas for the fifth issue, the burden of proving the 2^nd Defendant’s payment by mistake or total failure of consideration rests with the Defendants.

E.   Credibility of witnesses

41.  Four witnesses gave evidence at the trial: the Plaintiff and Mrs Mak; and the 1^st Defendant and his son Mr Au Yeung Yi Pang.

42.  In so far as his evidence on matters of fact was concerned, I find what the Plaintiff said to the Court to be credible, and prefer his evidence to that of the 1^st Defendant and Mr Au Yeung.  During cross-examination, the Plaintiff gave answers straightforwardly.  He was forthcoming in answering every question.  He was not shy in admitting matters which he did not know.  For instances, when asked, he frankly admitted that he did not have a copy of the contract with On Kee and that he did not sign it and did not know its details.  Also, when challenged that he did not call TVB’s officers and executives such as Ms Lok Yee Ling (“Ms Lok”) as his witnesses on the details of the TVB incident and its impacts on him and his career, he, without hesitation, told the Court that this was his choice because he did not wish to affect his relationship with TVB.  

43.  I have reservation on the credibility of Mrs Mak’s evidence in relation to those telephone calls and voice messages where she said the callers identified themselves as representing the 1^st Defendant.  She told the Court that there were more than 20 telephone calls made to her.  She said she had taken two or three calls.  For those calls which she did not take, voice messages were left for her.  However, out of all these phone calls which she took and voice messages which were left for her, she produced to the Court only one voice message on 26 January 2016 (as referred to in paragraph 20 above).  In that voice message, the name or surname of the 1^st Defendant, as well as the Subject Sum, were not mentioned at all.  She was asked several times during cross-examination why no other voice messages were produced, her answers were unclear, vague and inconsistent.  At one occasion she said other voice messages had been lost but she could not explain why they were lost.  She also seemed to have suggested that she had passed the voice messages to lawyers.  But when asked why the voice messages were not produced to the Court if they had been passed to lawyers, she just said she had told the lawyers what she remembered. 

44.  Mrs Mak told the Court that the voice messages contained express reference to the name or surname of the 1^st Defendant as well as the Subject Sum.  She should be aware of the importance of keeping record of these voice messages.  She could not explain why she kept the record of the voice message on 26 January 2016 only. She also could not explain why all the rest of the voice messages were lost.

45.  As to the 1^st Defendant, I find her evidence incredible.  Her answers during cross-examination were evasive and slippery.  Many of them were inconsistent with her own witness statement, pleading or other documentary evidence.  In particular, her evidence on the D1/Ng Oral Agreement is hard to believe:

(1)  In January 2015, the 1^st Defendant reported to the police on her dealings with Mr Ng.  She signed a witness statement dated 28 January 2015 for the police (“the police statement”).  However, in describing those transactions that she entered with Mr Ng as mentioned in paragraph 28 above, the 1^st Defendant mentioned nothing of the D1/Ng Oral Agreement at all in the.

(2)  Instead, what the 1^st Defendant told the police, as recorded in the police statement, was that, in respect of the first transaction, on 11 December 2014, she through the 2^nd Defendant had transferred $2,794,000 to the bank account Mr Ng gave her but Mr Ng told her that the 500 mobile phones would only be delivered before 24 December.  Since she was afraid that the mobile phones would not be delivered on 24 December, she told Mr Ng that she would in the meantime purchase more mobile phones from him, and that she would pay Mr Ng by post-dated cheque, so that if there was anything wrong with Mr Ng or if she lost his contact, she could still inform the bank to stop payment of the cheque and minimize her loss.  She explained to the police that with companies which she knew for the first time, this was the usual way she did business. 

(3)  What she said the police statement was completely different from what she stated in her witness statement in these proceedings and in her Amended Defence and Counterclaim as referred to in paragraph 26 above in respect of the arrangement under the D1/Ng Oral Agreement.

(4)  She was asked to explain the inconsistency.  She said she could not recall.  As the Plaintiff’s counsel rightly submits, the police statement was made by her on 28^th January 2015, when her memory of what happened with Mr Ng should be the freshest.  If the D1/Ng Oral Agreement did exist at that time, it would not possibly have escaped her attention when she described the dealings with Mr Ng to the police.  It should have been recorded in the police statement of the 1^st Defendant.

46.  I find that Mr Au Yeung’s evidence was partisan of the Defendants’ case.  It was no more credible than the 1^st Defendant’s evidence.  Firstly, as Mr Au Yeung admitted during cross-examination, much of the contents of his witness statement was exact duplication (“搬字過字” in Chinese) of the 1^st Defendant’s witness statement.  He also agreed with the Plaintiff’s counsel that his mother invited him to corroborate the evidence given by her, he therefore made this witness statement (“媽媽邀請你配合佢俾口供，所以做左呢份證供”).  Secondly, the result of the duplication was that his witness statement included the same assertion of the reaching of the D1/Ng Oral Agreement as in the 1^st Defendant’s witness statement.  This was so notwithstanding, as he said so during cross-examination, that he learnt of the D1/Ng Oral Agreement only subsequently from his mother.  Nonetheless, he changed his evidence in re-examination, when he said he was present when the oral agreement was reached.  However, he did not explain why he came up with two different recollections during cross-examination and during re-examination.  These recollections served to confuse further, as earlier in her cross-examination, the 1^st Defendant told the Court that she could not recall whether the oral agreement was reached in the presence of third party.  Fourthly, Mr Au Yeung told the Court that he was responsible for the accounts of the 2^nd Defendant.  However, no account record of the 2^nd Defendant was produced before the Court, not to mention any account document showing any offsetting of payments under the D1/Ng Oral Agreement according to the Defendants’ case as mentioned in paragraph 26 above. 

47.  I shall deal with the issues as identified in Section D above.

F.   Whether the Defendants were the principal behind (i) the telephone calls to Mrs Mak and the voice messages left with her, (ii) the TVB incident and (iii) the On Kee incident

48.  On the totality of the evidence adduced, I find that the Plaintiff could not, and has failed to, discharge the burden of proving, on the balance of probabilities, that the persons who made the telephone calls at Mrs Mak, the persons attending the TVB’s office during the TVB incident and the persons attending the Sheung Wan branch of On Kee during the On Kee incident were engaged or instructed by the 1^st Defendant and/or the 2^nd Defendant.

49.  I shall first deal with the question whether the 1^st and/or 2^nd Defendants was or were the principal(s) of the persons who made the telephone calls at Mrs Mak.  The Plaintiff produced the voice message on 26 January 2016 as described in paragraph 20 above.  However, it contains no reference to the name or surname of the 1^st Defendant or the name of the 2^nd Defendant.  The only other relevant evidence was Mrs Mak’s oral evidence.  She mentioned that in those voice messages, demands were made for return of the money owed to the 1^st Defendant.  However, for the reasons explained in paragraph 43 above, I do not believe I can make the finding that those voice messages exist.

50.  Therefore, I find that the Plaintiff has failed to discharge the burden in proving that the 1^st and/or 2^nd Defendants were the principal instructing or engaging persons who made those phone calls or left those voice messages mentioned above.

51.  In respect of the TVB incident and the On Kee incident, the problem with the Plaintiff’s case is that all the direct material evidence is missing – no eyewitness[6], no video footage, no voice record, and not even a photograph.  There is no direct evidence showing what happened.  His case is clouded with multiple hearsay.  With no eyewitnesses of both incidents testifying, the Defendants had no opportunity to test the veracity of such material evidence through cross-examination.  It was the Plaintiff’s choice not to issue writs of subpoena to compel witnesses to give material evidence, but then he had to take the risk that his case might not be up to proof.  

52.  Furthermore, the chain of the hearsay and how it reached the Plaintiff is not at all clear from the evidence.  In the Plaintiff’s case on the TVB incident, his evidence is more of a conjecture than fact.  In his first witness statement[7], the Plaintiff did not state the source of the information on the incident.  He just mentioned[8], “I was informed that …”.  In his supplemental witness statement[9], he said[10] his assistant at TVB reported the incident to him.  He further said[11] that “according to his knowledge”, the colleagues who were responsible to contact two big men at the administration building had contacted the Artiste Management Department for this incident.  He did not mention who provided him with the knowledge. 

53.  At the trial, during cross-examination, he said he heard the recount of the event from Ms Lau Yuen Yee (“Ms Lau”), a supervisor in the Artiste Management Department of TVB.  He also mentioned Ms Lok also told him what happened when the two men got into TVB.  However, his witness statements mentioned neither Ms Lau nor Ms Lok recounting to him the incident.  He admitted that he did not hear himself what the two men said during the incident, neither did Ms Lau hear so.  He said he thought Ms Lok must have watched the relevant CCTV video of TVB.  However, he did not produce any such CCTV video clip.  He explained he had asked TVB for a copy of the video clip but TVB refused to assist.  Clearly, if this video clip exists, it will be a very important piece of evidence.  He did not issue a writ of subpoena compelling TVB to produce it at the trial.  He might have good commercial or personal reason for not doing so.  But the failure to produce such material evidence which in my view would have been reasonable and practicable for the Plaintiff to so e.g. by issuing writ of subpoena, in my view, the Court would attach very little weight to the double or multiple hearsay relied on in the Plaintiff’s own evidence.  The Plaintiff’s task of discharging the burden of proving that defamatory words were uttered and they were uttered at the instruction of the 1^st and/or 2^nd Defendants becomes one which cannot be accomplished. 

54.  On such snippets of hearsay, the Court cannot ascertain what exactly had happened or what exactly the two men had said and done during the incident.  There is no or no sufficient evidential basis for the Court to find on balance of probabilities that the two men, who were instructed by the 1^st Defendant, shouted at TVB’s premises that the Plaintiff owed the 1^st Defendant money.

55.  The Plaintiff’s counsel submitted that the evidence of Mrs Mak and the Plaintiff in this regard was not challenged under cross examination.  In my view, this submission is barking at the wrong tree.  For the foregoing reasons, the evidence is deficient.  It is not up to proof of the Plaintiff’s case.   

56.  The Plaintiff’s counsel, in his written closing submissions and oral submissions, nonetheless asked the Court to draw inference from certain matters to find that the debt collectors, i.e. the two men who attended the TVB’s premises shouting that the Plaintiff owed the 1^st Defendant money were the Defendants’ agents. Those matters are:

(1)  that apart from the property mortgage loan that he obtained from bank, the Plaintiff did not owe anybody monies;

(2)  that the 1^st Defendant admitted that in around early 2015, she and her friend, after acquiring the contact of Mrs Mak, had called her up several times demanding for the return of the sum of $1,180,900 from the Plaintiff;

(3)  that in May 2015, the 1^st Defendant and her company, the 2^nd Defendant, instructed solicitors to write to the Plaintiff threatening to commence legal action if the monies were not repaid;

(4)  that the 1^st Defendant admitted under cross-examination that the Subject Sum was not a small figure to her and that she was “in need of monies” (“等錢洗”) at the times for her mobile phones business;

(5)  that Ms Lok asked the Plaintiff whether the Plaintiff owed other people money;

(6)  that as both the voice message received by Mrs Mak on 26 January 2016 and the letter dated 7 May 2015 issued by Andy Fung & Associates carried the same innuendo that the Plaintiff was connected to some sort of fraud, the person who gave instructions to the caller of the phone and the sender of the letter should be the same person;

(7)  that the close proximity in time of the acts committed against Mrs Mak and the Plaintiff further shows that they were part of an organized plan and the Defendants were the only persons who would benefit therefrom;

(8)  that the Defendants had every motive to engage debt collecting agents when none of their previous methods worked.  It is difficult to imagine that the Defendants’ pursuit for the sum would came to a halt, just after the first few attempts, when they were prepared to hire lawyers in pursuing the matter in the first place.

The first 5 matters above are not directly related to the TVB incident.  They are not evidence showing that the Defendants are the principal behind what those persons did at the TVB’s office on 20 January 2016.  The next 3 matters are really conjecture.  I do not find such matters, taken cumulatively or singly, form sufficient evidential basis to draw the inference on balance of probabilities that the 1^st and/or 2^nd Defendants were the principal behind the TVB incident.

57.  It was even more difficult for the Plaintiff to prove his case on the On Kee incident, which was seriously deficient of details.  The only evidence that the Court received concerning what happened during the incident was from the Plaintiff’s own words.  However, he was not present when the incident took place at around noon on 26 January 2016.  According to his witness statement, it was Ms Lau who informed him by phone after the incident.  Ms Lau herself was not present when the incident took place.  It was not known who informed Ms Lau.  In his witness statement, the Plaintiff said Mr Poon, On Kee’s owner was present when some men went to the branch of On Kee.  However, during cross-examination, he said he did not know whether Mr Poon was there during the incident because On Kee had a number of shops.

58.  Importantly, both Ms Lau and Mr Poon told the Plaintiff over phone that those men claimed at the Sheung Wan branch of On Kee that he owed them monies.  There was no mention in the Plaintiff’s witness statement, and he also made no mention when giving oral evidence during the trial, that the name or surname of the 1^st Defendant, or that of the 2^nd Defendant, had been mentioned by those men during the incident.

59.  The Plaintiff’s evidence on the On Kee incident was so thin that there was no evidence on how many men attending On Kee’s premises and what they said there.  Whether they did make a scene the Court did not know.  Consequently, the only finding I could make is that the Plaintiff has failed to discharge the burden of proving that the 1^st and/or 2^nd Defendants was or were the principal of those men who went to On Kee’s premises on 26 January 2016.

60.  The Plaintiff’s counsel invites the Court to ask a rhetorical question: “Who else, apart from the Defendants, would engage the debt collecting agents to go after the Plaintiff?”.  I do not consider this question helpful, or a question which is sufficient to enable a finding to be made.  The Court should make a finding based on evaluation of each piece of evidence before it and assessing the weight that should be attached to it in connection with the issue to be determined.  Such rhetorical question is too sweeping, and is inapposite in purporting to be an illustration of the answer that the Plaintiff asks on no objective basis the Court to accept.    

61.  It can be understood that because the series of event taking place (that the Subject Sum originally belonged to the 2^nd Defendant was deposited into the Plaintiff’s account, and that the 1^st Defendant had through herself and lawyers demanded for return of the Subject Sum from the Plaintiff), the Plaintiff might have suspicion of the Defendants.  However, based on the flimsy evidence described and explained above, the Defendants could not be found responsible for the wrongful acts alleged by the Plaintiff.

62.  The above findings have been sufficient to dispose of the Plaintiff’s claims against the Defendants. For completeness, I shall express my view below on the Plaintiff’s case in respect of the second, third and fourth issues as mentioned in paragraphs 36, 37 and 38 above.

G.   The Plaintiff’s case on Malicious Falsehood

63.  I agree with the Defendant’s counsel that central to the Plaintiff’s claim of malicious falsehood, what has been exactly said in the TVB incident is of paramount importance.  Without knowing the exact words uttered and the context or circumstance when they were uttered, there could be no basis to determine whether the words uttered were true or false, and whether they were uttered maliciously.

64.  The Plaintiff’s counsel spent quite some time in cross-examining the 1^st Defendant the demand letter dated 7 May 2015 as mentioned in paragraph 15 above, which appeared to suggest, rather erroneously, that the Plaintiff and Mr Ng were parties acting in concert, and invited the Court to draw inference of malice from it.  I reject this submission.  First, an erroneous assertion does not necessarily infer mala fide.  There should be some further evidence to provide the nexus.  Second, there is no dispute that at the time when the letter was issued, the Plaintiff and the 1^st Defendant never met before and did not know each other.  The 1^st Defendant did not have any knowledge of the relationship between Mr Ng and the Plaintiff.  Third, there was no, or no evidence to show that there was any, relationship, causal or otherwise, between the demand letter and the TVB incident.  Third, there was no evidence showing that issuance of the demand letter was related to the TVB incident.  Of course, the Plaintiff did not accede to the demand made in the letter on behalf of the 2^nd Defendant.  But it does not necessarily follow that the Defendants then engaged debt collector to cause the TVB incident.  It goes back to the fundamental requirement that there should be other evidence proving so.  

65.  In the absence of any direct evidence, and in light of the inherent unreliability of multiple hearsay on issues central in this dispute as discussed above, I do not consider there to be any or any sufficient evidence to enable the Court to make a finding, or draw inference, of malice on the part of the 1^st and/or 2^nd Defendants.

66.  To be fair to the Plaintiff, I should nonetheless mention that if there were evidence establishing that the two men did say something at the TVB premises to the effect that the Plaintiff was owing the Defendants money, for the reasons explained in section J below for dismissing the 2^nd Defendant’s counterclaim, I would have found such statement to be false.  In other words, if it were proved that the words uttered were “麥包爭人錢” (i.e. “[The Plaintiff’s nickname] owes others money”), such words mean plainly that the Plaintiff was owing other money and he had not yet repaid.  In so far as the Subject Sum is concerned, as between the Plaintiff and the Defendants, this would be a false statement for the reasons explained in section J. 

67.  Lastly, for completeness, I should mention that in my view, the Plaintiff has also failed to prove that the loss and damage that he claimed to have suffered was attributable to or caused by the tort of malicious falsehood committed by the Defendants.  As mentioned in paragraph 23 above, he complained that the TVB incident (as well as the On Kee incident) caused irreparable harm to his career as an artist, in that he lost his first opportunity to play as the leading actor in a TVB drama, which he had waited for almost 30 years, and TVB did not renew the artist contract with him afterward.  He said that at the time, he understood that he lost the leading role because of a crash of his schedule, but it was only some time afterward that his friend suggested there might be a link between the TVB incident and the loss of the leading role that he started felling suspicious.  However, this suspicion is not sufficient as a matter of evidence to justify his claim for loss.  There was simply no evidence showing the casual relationship between his loss and the incident.  As he admitted during cross-examination, this was his “own speculation from hindsight” “basing on gossip” (“都係事後推論 － 可以咁講, 小道消息”) and were “conjecture from what other people said” (“都係事後推論 － 可以咁講, 小道消息”).  Without any evidence from the management of TVB or other objective evidence, the Court cannot afford any significant weight to the Plaintiff’s own speculation or conjecture.

H.   The Plaintiff’s case on threat to defame

68.  The Plaintiff said the voice message mentioned in paragraph 20 above constituted a threat to defame. The Plaintiff relied on the recording of the voice message and Mrs Mak’s evidence.  As discussed above, the voice message contained no reference to the Defendants. Mrs Mak said there were other voice messages and telephone calls wherein the Defendants were expressly referred to.  I have mentioned above that not one of these voice messages and telephone calls was produced.  Mrs Mak, when specifically asked, could not provide any explanation why they could not be produced.  With no supporting evidence, together with the absence of any or any plausible reasons why it could not be adduced, there is no or no sufficient basis for the Court to find that the Defendants had indeed orchestrated a threat to defame. 

I.   The Plaintiff’s case on procurement of breach of contract

69.  In respect of the On Kee incident, the Plaintiff pleads in the Amended Statement of Claim as follows:

“20. The Plaintiff has never breached any part of his spokesperson contract with On Kee. The acts of the people referred to in the preceding paragraph has procured On Kee to breach its spokesperson contract with the Plaintiff. The acts were done deliberately with intent to injure the Plaintiff. That amounted to the tort of procuring a breach of contract.”

70.  The starting of the Plaintiff’s case has to be the contract between On Kee and the Plaintiff. There was no written contract produced before the Court.  During cross-examination, the Plaintiff admitted that the contract was made between TVB and On Kee.  He told the Court that he did not sign that contract, and in fact he did not see that contract before.  In other words, there was no evidence on what the terms of the contract are.      

71.  As such, there was no evidence to show in what way On Kee has breached the contract.  The Plaintiff told the Court that Mr Poon, the boss of On Kee terminated his spokesman contract because of the On Kee incident.  There was no further evidence to show that the termination amounted to breach of the spokesman contract.  He also told the Court that, in his belief, but for the On Kee incident, On Kee would have renewed the spokesman contract at least for another two years.  However, a refusal to renew a contract normally would not constitute a breach of contract.  In the Plaintiff’s own words during cross-examination, On Kee had no obligation to renew the contract, and there were many factors which might affect the decision on whether to renew[12].

72.  With the scanty evidence, there is no support for a finding that there was a breach of contract, let alone procurement of breach.  The fundamental elements of the claim cannot be substantiated by the evidence before me.

73.  For the same reasons explained in paragraph 67 above, the Plaintiff has also failed to prove that the loss and damage that he suffered was caused by the tort of procurement of breach of contract committed by the Defendants.  

J.   The 2^nd Defendant’s counterclaim for return of the Subject      Sum

74.  The Defendants’ counsel emphasizes that the 2^nd Defendant was defrauded by Mr Ng.  She submitted that this case is “a typical scenario of commercial fraud where a payment was made by way of mistake”.  She relied on a segment of the textbook Commercial Fraud in Civil Practice by Paul McGrath QC, 2^nd ed., 2014, namely sub-paragraph (a) in paragraph 3.86:

“Behind many commercial frauds is a claim for recovery of monies paid over by mistake. So, for example, a claim in unjust enrichment will arise where a victim has been persuaded by a fraudster to transfer money to a third party on the basis that the fraudster wrongly represented that a debt was due and owing to a third party. Such a claim can be characterized as a payment by way of a mistake.” (The Plaintiff’s counsel’s emphasis)

75.  The Defendants might, or might not, have been defrauded[13] by Mr Ng.  In my view, it would be too broad-brush to suggest that because the Defendants were defrauded by Mr Ng, the Subject Sum was paid by mistake, and hence the Plaintiff was unjustly enriched by the mistaken payment.  In my view, it is paramount to investigate the precise nature of the particular payment in more detail.    

76.  As mentioned in paragraph 74 above, the Defendants’ counsel relied on a segment of paragraph 3.86 in Commercial Fraud in Civil Practice.  I find the general principle stated at the beginning of that paragraph more instructive.  It reads:

“At the heart of a commercial fraud scenario is deception. Payment against the production of a false invoice or a materially misstated fact can be characterized as payment made by way of mistake. The victim is deceived of a material fact in order to make a payment or transfer funds. The fact that the deception is deliberate does not alter the fundamental fact that any payment or transfer made as a consequence can properly be characterized as having been made by way of mistake.”

77.  The Defendants said that the Subject Sum was made out of the deception.  They however have not analysed in detail with evidence to show that the Defendants’ purpose of transferring the Subject Sum to the Plaintiff’s account was akin to payment against the production of a false invoice or a materially misstated fact.  It is necessary to find out whether the Defendants were induced by a false statement of Mr Ng to transfer the Subject Sum to the Plaintiff’s account.

78.  As shown in the table in paragraph 28 above, the Defendants deposited the Subject Sum into the Plaintiff’s account for payment of a part of the purchase price of the order placed on 19 December 2015.  This was the transaction number 9 shown in the table. 

79.  The Defendants appeared to suggest that this was not the case.  The Defendants said pursuant to the D1/Ng Oral Agreement as described in paragraph 26 above, the purchase price in the transaction number 9 was already “immediately paid by and off-set from” the sum of $2,794,000 (in the transaction number 1 of the table) already paid by the 2^nd Defendant.  The Subject Sum was deposited into the Plaintiff’s account “to make up the full sum of $2,794,000 mentioned”.

80.  Other than the 1^st Defendant’s oral evidence, there was no documentary evidence supporting the existence of the D1/Ng Oral Agreement.  For the reasons explained in paragraph 45 above, I have found that the 1^st Defendant’s evidence is incredible.  Therefore, I do not find that the D1/Ng Oral Agreement existed. 

81.  In line with the finding that there was no D1/Ng Oral Agreement, I also find that the Subject Sum transferred by the 1^st Defendant from the 2^nd Defendant’s account to the Plaintiff’s account at Mr Ng’s direction was for payment of a part of the purchase price of the mobile phones in the transaction number 9 set out in the Table.  The indisputable evidence of the Plaintiff and Mrs Mak was that Mr Ng was then owing Mrs Mak money.  As such, I agree with the Plaintiff’s counsel’s submission that it was more likely that in part repayment of the debt due to Mrs Mak, Mr Ng asked the 1^st Defendant to deposit the Subject Sum, as payment of a part of the purchase price of the mobile phones ordered and delivered under the transaction number 9 in the Table by deposit the Subject Sum, into the Plaintiff’s account.

82.  It is therefore also my finding that the 2^nd Defendant paid Mr Ng in partial settlement of the purchase price of the mobile phones in the transaction number 9 set out in the Table, which had already been delivered by Mr Ng to the 2^nd Defendant.  The payment was not induced by Mr Ng’s false statement or presentation of a false invoice.  In other words, the Subject Sum was paid not because of Mr Ng’s fraud or his false statements or representations to the Defendants, but as a settlement of the price for goods sold and delivered.  In my judgment, the primary purpose[14] of the Defendants’ transfer of the Subject Sum to the Plaintiff’s account was to pay for the purchase price of the mobile phones ordered under the transaction number 9 in the Table as well as delivered.   

83.  It is trite that for payment of purchase price by the purchaser under a sale of goods upon or after delivery of the goods, the payment can be made to any payee at the direction of the seller of the goods.  I have found that the 1^st Defendant’s evidence is not credible.  I do not believe in her evidence that the transfer of the Subject Sum should be or should have been made to Mr Ng or Billion Wealth or “an associated entity”.  If the 1^st Defendant did care about the identity of the payee as submitted by her counsel; and if she, as she told the Court, did insist that the Subject Sum could only be used by Mr Ng for payment of iPhones from Apple, she should have, and indeed would have, issued a cross-cheque with the name of the payee stated thereon, or marked at its back the purpose of the payment, i.e. for purchase of iPhones from Apple.  The fact was, not only that she went ahead with the transfer without knowing or caring whom the transferee of the Subject Sum was, she (as well as his son Mr Au Yeung who was responsible for the accounts) did not make any record in the 2^nd Defendant’s accounting book or record of the purpose of the transfer or the name of the transferee after the transfer.  This would be, in my view, unreasonable or unlikely for an experienced trade business operator like the 1^st Defendant not to do so.  

84.  Since I have found as fact that the purpose of the 2^nd Defendant’s transfer of the Subject Sum to the Plaintiff’s account at Mr Ng’s direction was for payment of a part of the purchase price of the mobile phones delivered to it under the transaction number 9, the Defendants’ claim of total failure of consideration falls away.

85.  I should also add that in any event, there was no dispute that Mrs Mak paid $4,436,000 to Mr Ng as investment in the mobile phone trading, and as such she was a bona fide purchaser for value entitling to receive the Subject Sum through the Plaintiff as her agent.  In this way the Defendants’ claim of unjust enrichment also fails. 

86.  For the above reasons, the 2^nd Defendant’s counterclaim fails.  I have found that the Plaintiff is not liable to return the Subject Sum to the 2^nd Defendant. I do not consider necessary to exercise the Court’s discretion to make a declaration as sought by the Plaintiff, that the Defendants have no legal basis in claiming for the return of the Subject Sum from the Plaintiff.  Dismissal of the 2^nd Defendant’s counterclaim for the above has set the position clear.

K.   Disposal

87.  The Plaintiff’s claim is dismissed. 

88.  The 2^nd Defendant’s counterclaim is dismissed.

89.  Costs should follow event.  I make an order nisi that the Plaintiff shall pay the Defendants their costs of the Plaintiff’s claim (including any costs reserved in relation to the Plaintiff’s claim), and that the Defendants shall pay the Plaintiff his costs of the 2^nd Defendant’s counterclaim (including any costs reserved in relation to the counterclaim).

90.  I thank the parties’ counsel for their assistance.