TREASURE SPOT FINANCE CO LTD v. HO KWAN CHEONG AND OTHERS

CACV 102/2025, [2026] HKCA 585

On appeal from [2025] HKCFI 546

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 102 OF 2025

(ON APPEAL FROM HCMP 738 OF 2022)

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D E C I S I O N

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Hon Harris J (giving the Decision of the Court):

Introduction

1.  This is the 2^nd Defendant’s application for leave to adduce further evidence on appeal.  Having considered the papers, we take the view that it is proper to dispose of this application on paper pursuant to Order 59, rule 14A(1) of the Rules of the High Court (Cap. 4A)  (“RHC”). This is our decision.

Background

2.  This case concerns a mortgagee action by the Plaintiff pursuant to Order 88 of the RHC against the 1^st to 5^th Defendants[1] in respect of eight properties.  On 5 February 2025, DHCJ Jonathan Wong found in favour of the Plaintiff[2] (“Judgment”)  upon rejecting the Defendants’ claim that there was a common understanding between the parties not to enforce the mortgages until such time as agreed.

3.  On 5 March 2025, the 2^nd Defendant filed a Notice of Appeal against the Judgment[3]. One of the grounds of appeal concerns the incompetence of his former legal representatives.  The 2^nd Defendant alleges that he entered into various loans, mortgages and a guarantee (“Instruments”)  under undue influence and/or duress exerted by his father, i.e. the 1^st Defendant. However, his former legal representatives, who represented all Defendants at the first instance, failed to take instructions from him or make enquiries as to whether a potential conflict of interest had existed between the 1^st and 2^nd Defendants.  By summons dated 16 June 2025, the 2^nd Defendant applied for leave to file and serve an affidavit in support of this ground of appeal.

Legal Principles

4.  The principles for adducing fresh evidence on appeal are well-established: see, for example, Ladd v Marshall[4]. The applicant must satisfy three conditions, namely:

(1)  the evidence could not have been obtained with reasonable diligence for use at the trial;

(2)  the evidence, if adduced, would probably have an important influence on the result of the case, although it need not be decisive; and

(3)  the evidence must be apparently credible, although it need not be incontrovertible.

5.  The burden is on the applicant to show that each of the three conditions is satisfied.  As we will demonstrate, the application is misconceived in particular, because the 2^nd Defendant’s complaint concerning his solicitor’s conduct of his case at trial is not a sustainable ground of appeal even if the 2^nd Defendant’s evidence is correct.

Discussion

6.  In his submission and supporting affidavit, the 2^nd Defendant states why he regards his former legal representatives as incompetent, but he does not explain how each of the three conditions is satisfied as required by Order 59, rule 10 of the RHC[5]. However, applying the conditions to the evidence the 2^nd Defendant’s application can be analysed as follows.

The First Condition – Reasonable Diligence

7.  The degree of diligence which the Court expects from the applicant must be assessed against the overall circumstances of the case[6].  The Court will take into account all relevant factors, such as the nature of the evidence, the difficulty encountered in obtaining the evidence, the time available to gather the evidence, and the effort used in gathering the evidence.

8.  In this case, the new evidence that the 2^nd Defendant seeks to adduce concerns his allegation of incompetence against his former legal representatives.  The 2^nd Defendant has been a qualified solicitor since 2011.  If his former legal representatives had failed to take instructions from him or make the necessary enquiries as alleged, it should have been apparent to him at the time.

9.  As such, the first condition is not satisfied.  We will deal with the third condition next.

The Third Condition – Is the evidence credible?

10.  Since the 2^nd Defendant is a qualified solicitor, it is inherently unlikely that he would sign the Instruments without understanding their legal effects.  Further, if the 1^st Defendant had, in fact, been exerting undue influence and/or duress on the 2^nd Defendant since around 2015[7], it is also unlikely that he would have only raised this after the Judgment in 2025. Similarly, if the 2^nd Defendant’s former legal representatives had made no effort to take instructions from him or make enquiries as to a potential conflict of interest between the 1^st and 2^nd Defendants since around 2022[8], it is difficult to believe that the 2^nd Defendant, who is himself a solicitor, would not have either taken steps to contact them or have recorded his concerns somewhere.

11.  In any event, the 2^nd Defendant’s submission and supporting affidavit consist of essentially bare assertions and he has adduced no contemporaneous documents which are consistent with his affidavit evidence.

12.  The new evidence sought to be adduced is not credible.  Thus, the third condition is also not satisfied.

The Second Condition – Important Influence on the Result

13.  To satisfy this condition, the applicant is required to show it is probable that the new evidence, if it had been adduced at trial, would have had an important influence on the result of the trial.

14.  Under this ground of appeal, the 2^nd Defendant seeks to argue that the incompetence of his former legal representatives had deprived him of the opportunity to raise the defence of undue influence and/or duress.  He claims that he did not have a fair trial due to the mishandling of the case by his lawyers.  In our view, this is not a viable ground of appeal because, generally, a litigant in a civil litigation is confined to remedies against his own lawyers if he has lost a case due to their mishandling[9].

15.  It would be unjust to deprive the Plaintiff, which was the successful party in the first instance, of a Judgment in its favour after a full trial on the basis that the 2^nd Defendant could have or would have run his defence differently had he had different legal representatives.  Accordingly, the appropriate remedy for the 2^nd Defendant lies in proceedings in negligence against his former legal representatives, rather than an appeal against the underlying Judgment[10].

16.  In any event since the new evidence sought to be adduced is inherently problematic and of doubtful veracity, it is unlikely to have had an important influence on the result of the trial.  As this is an entirely new matter and the Court has no idea what the 1^st Defendant and the Defendants’ lawyers at trial will say in response, it is all but impossible for the Court to be satisfied that it would probably have assisted the 2^nd Defendant at trial.

Disposition

17.  In light of the above, we dismiss the 2^nd Defendant’s application for leave to adduce further evidence on appeal.

18.  We see no reason why costs should not follow the event.  Upon considering the Plaintiff’s statement of costs, we allow a total sum of HK$72,000 on summary assessment and we order the 2^nd Defendant to pay such sum to the Plaintiff accordingly.