WORLD HOUSEWARE PRODUCING COMPANY LTD v. CHAU KAM TONG

DCCJ 1640 /2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 1640 OF 2012

____________

____________

______________________________

JUDGMENT

______________________________

1. This case is about a dispute between an employer and an employee. The Plaintiff was the employer and the Defendant was its employee. It was not in dispute that the employment contract was terminated on 25 August 2006.

2. The Plaintiff alleged that the Defendant was in breach of his fiduciary duties as an agent and an employee, both in tort and in contract, that the Defendant, fraudulently or otherwise, procured or caused 3 overseas customers of the Plaintiff to make payments, namely US$26,466, US$27,832 (But this sum was later reduced by the Plaintiff after hearing the evidence that the loss actually suffered was only US$9,245.90.) and RMB 30,000 respectively, which were supposed to be payable to the Plaintiff, to a third party, namely Kin Shing Company, in 2 instances and to himself personally in 1 instance without Plaintiff’s knowledge and proper authorisation. The Plaintiff therefore argued that such acts of the Defendant were wrongful in law and they caused loss and damage to the Plaintiff. The Plaintiff now claimed for payment of these sums wrongfully paid to the third party or alternatively for damages.

3. The Plaintiff argued that the Defendant, as an agent and employee, was in breach of the following, inter alia, implied terms and duties that:-

(1) the Defendant would act in the best interests of the Plaintiff;

(2) the Defendant would act honestly and carry out his duties in good faith; and

(3) the Defendant would not defraud the Plaintiff which :-

(a) resulted either in benefit to the Defendant or the Defendant’s nominees or beneficiaries or a corporation or corporations set up and/or controlled and/or nominated by the Defendant; or

(b) resulted in prejudice or a substantial risk of prejudice to the Plaintiff or loss or damage to the Plaintiff.

4. The Plaintiff further alleged that, due to the aforesaid breaches, the Defendant was unjustly enriched and obtained personal benefits or secret profits and therefore asked the Defendant to account to the Plaintiff for these secret profits.

5. There is no issue that these implied terms and duties apply but the Defendant, in his defence, explained that, factually, there were no such breaches. He said, in fact, Kin Shing Company was a nominated agent of these overseas customers and he was specifically requested by two of these customers to pay through this agent. The Defendant denied that it was his idea to pay this Kin Shing Company. Further, he also said that he had obtained approval from the Plaintiff in doing so. For the payment of RMB 30,000, which was paid to the Defendant personally, he said that the money in fact was returned to the customer when the transaction was cancelled. In support of his answer, he also explained that it was normal or common for overseas customers of the Plaintiff to make payments:-

(1) through their agents in Hong Kong;

(2) by transferring to the personal bank accounts of the salesmen who would then account for the payment by transferring it back to the Plaintiff; or

(3) by cash or cheque to the salesmen who would then account for the payment by transferring it back to the Plaintiff.

6. There was no dispute on the evidence that the Plaintiff was a manufacturer of kitchen and bathroom houseware products and the Defendant was its sales representative, or “merchandiser” as the parties had described him. His scope of work included soliciting business from, and thereafter liaising and coordinating with, the local and overseas customers. Generally speaking, these overseas customers would provide their own design particulars and specifications of their products to the Plaintiff for manufacturing at the factory of the Plaintiff in Mainland China pursuant to their requests. After the contract prices for manufacturing of the products were agreed, these overseas customers would be requested to confirm their instructions by signing the “Sales Confirmations”. Sometimes the whole contract sums would be required to be paid at this stage but sometimes only initial deposits would be payable. If only the initial deposits were paid, the balance of the contract sums generally would be paid when the products were completed and shipped to the destinations. In so far as this case is concerned, 3 overseas customers were involved, namely Broder Manufacturing Inc. (“Broder”), Dryer & Hoffman Limited (“Hoffman”) and A&F International Co. (“A&F”) where Broder and Hoffman paid the whole contract sums whereas A&F only paid the deposit. Further, it is not in dispute that all these 3 customers were all handled by the Defendant.

7. There was unchallenged evidence showing that Broder and Hoffman had signed Sales Confirmations for certain products to be made by the Plaintiff and paid the whole contract sums of US$26,466 and US$27,832 respectively to Kin Shing Company. Regarding the A&F transaction, A&F also signed a Sales Confirmation and paid a deposit of RMB 30,000 to the Defendant personally. Although the Plaintiff did not actually receive these sums, in consideration of the long-term business relationship with these overseas customers, the Plaintiff decided to manufacture the products for these overseas customers and completed the transactions. The questions therefore for this Court to answer are: how did they happen? Was it due to the requests, fraudulently or otherwise, made by the Defendant, as suggested by the Plaintiff? Or was it a payment arrangement requested by the overseas customers and the Plaintiff knew and authorized it, as suggested by the Defendant? Was Kin Shing Company just an agent for these overseas customers and the Plaintiff should therefore claim against these overseas customers or Kin Shing Company instead of the Defendant? And for the A&F transaction, was the deposit of RMB 30,000 returned to the customer because the order was subsequently cancelled, as suggested by the Defendant?

8. The Plaintiff called 2 witnesses. Mr. Lee Pak Tung who was a director of the Plaintiff and Ms. Chan Lai Kuen who was a director of the parent company of the Plaintiff and managed the accounting affairs for the Plaintiff. On the other hand, the Defendant, besides giving oral evidence himself at the trial, did not call any other witness to give evidence. Apart from oral testimonies, both the Plaintiff and the Defendant also relied on documentary evidence, such as copies of letters, electronic mails, facsimiles, sales confirmations and other accounting documents in support of their cases. I am given to understand that the authenticity of these disclosed documents by the parties are not in dispute as no notice to challenge the authenticity was served pursuant to Order 27 rule 4 of the Rules of the District Court.

9. In support of its case, the Plaintiff mainly relied on some letters, electronic mails and facsimiles between the Plaintiff and the overseas customers to show that it was a scheme of arrangement orchestrated by the Defendant to divert funds belonging to the Plaintiff to either Kin Shing Company or himself personally. These documentary evidences included, inter alia :-

(1) A facsimile dated 5 September 2006 from the Plaintiff to Broder (Exhibit “LPT-22”);

(2) A handwritten reply by Broder dated 5 September 2006 to the Plaintiff (Exhibit “LPT-23”);

(3) A facsimile dated 7 September 2006 from the Plaintiff to Broder (Exhibit “LPT-25”);

(4) A facsimile dated 18 April 2006 from the Defendant to Broder (Exhibit” LPT-26”); and

(5) An electronic mail dated 12 September 2006 from the Broder to the Plaintiff regarding the A&F transaction (Exhibit “LPT-30”);

(6) A facsimile dated 3 July 2006 from a person called “Thomas” of Kin Shing Company to Hoffman (Exhibit “LPT-8”);

(7) A letter dated 4 September 2006 from the Plaintiff to Hoffman (Exhibit “LPT-9”);

(8) A hand written reply by Hoffman dated 4 September 2006 to the Plaintiff (Exhibit “LPT-10”);

(9) A compliant letter dated 6 September 2006 from Hoffman to the Hong Kong Trade Development Council (Exhibit “LPT-11”);

(10) A facsimile dated 6 September 2006 (in Chinese) from Ms. Chan Lai Kuen of the Plaintiff to a Mr. Wang regarding the A&F transaction (Exhibit “LPT-5”); and

(11) An electronic mail undated from the Defendant to a Mr. Wang regarding the A&F transaction (Exhibit “LPT-6”).

10. I have had the opportunity to go through very carefully these documentary evidences in detail and, in my judgment, they do give a very strong impression that these overseas customers, including Broder, Hoffman and A&F, followed the exact instructions of the Defendant in making the payment either to Kin Shing Company or to the Defendant personally.

11. For instance, regarding the Broder transaction, the facsimile dated 18 April 2006 from the Defendant to Broder (Exhibit” LPT-26”) said that:-

“FROM NOW WE WILL USE “KIN SHING COMPANY’ TO CONTINUE THE BUSINESS WITH YOU IN ORDER TO AVOID THE PROBLEM CREATE “BETTER HOME”. I HOPE YOU CAN UNDERSTAND ON IT.” (sic)

It was obviously a suggestion made by the Defendant who, in return, asked for Broder’s “understanding”. And on 5 September 2006, when the Plaintiff made enquiry on the payment for this transaction because the Plaintiff could not find any record of payment (Exhibit “LPT-22), Broder in reply (Exhibit “LPT-23”) said that the payment had been duly made to the Plaintiff already through Kin Shing Company as requested. This Kin Shing Company of course turned out to be not an agent for the Plaintiff. The payment therefore went missing.

12. Another example is the electronic mail dated 12 September 2006 from Broder (Exhibit “LPT-30”). It clearly showed that the request to pay Kin Shing Company was made by the Defendant and Broder just followed the instruction. There was absolutely no evidence that Kin Shing Company was Broder’s suggestion. Although Mr. Cheng, Counsel for the Defendant, attempted to bring my attention to the choice of words used in these correspondences between the Plaintiff and the overseas customers that they, in fact, had different meanings, in my judgment, the contents of these documentary evidences are plain and obvious. They indicated clearly that it was the Defendant’s suggestion to Broder to pay Kin Shing Company instead of the Plaintiff.

13. Similarly, Hoffman was requested to pay Kin Shing Company instead of the Plaintiff by a person called “Thomas” in a facsimile dated 3 July 2006 (Exhibit “LPT-8”). This later transpired in a compliant letter dated 6 September 2006 from Hoffman to the Hong Kong Trade Development Council (Exhibit “LPT-11”), that this “Thomas” of Kin Shing Company was, in fact, identified to be the Defendant. In the letter, Hoffman complained to the Hong Kong Trade Development Council that the Defendant misrepresented to them that Kin Shing Company was an associate company of the Plaintiff. In my judgment, the evidence unequivocally showed that using Kin Shing Company was not an idea put forward by Hoffman. I accept the words of Hoffman that in fact “Thomas” from Kin Shing Company was the Defendant. Although Mr. Cheng, Counsel for the Defendant, attempted to cast some doubts on the evidence that the Defendant always used his full name “Thomas Chau” in the Plaintiff’s correspondences and therefore this “Thomas” of Kin Shing Company could be somebody else, on balance of probabilities, I accept Hoffman’s identification with no difficulty as Mr. Hoffman of Dryer and Hoffman Limited dealt with the Defendant personally and he could not have made such a mistake. And I am unable to think of any reason that this was fabricated by Mr. Hoffman. Furthermore, in my view, there was no need to use Kin Shing Company by Hoffman at all, except at the request of the Defendant.

14. There was also an issue on signature which I will now turn to. The Plaintiff alleged that some documents of Kin Shing Company (Exhibit “LPT-14”) were signed by the Defendant so as to give support to its case that the Defendant was somehow involved in the operation of Kin Shing Company. The Defendant denied that they were his signatures. In my view, given my findings above that the Defendant was in fact the person called “Thomas” in Kin Shing Company, it was therefore more likely than not that the signatures were his. They also look striking similar to one of the 2 different signatures of the Defendant appeared on the Salary Advice (Exhibit “CLR-5”).

15. The Defendant, on the hand, denied that he had requested the overseas customers to use Kin Shing Company at all. In his evidence, he explained that it was these overseas customers’ ideas to use a local agent,  such as Kin Shing Company, for making payments and this was one of the “normal ways” how these overseas customers would conduct their business with the Plaintiff.

16. Firstly, there was no evidence before me, except the Defendant’s self-serving statement, in support of these so-called “normal ways” of making payments. If it were true, it would not be difficult for the Defendant, as an ex-employee of the Plaintiff, to adduce sufficient documentary evidence to show that there was such “normal ways” of using local agents for making payment or paying to the personal accounts of the sales representatives or merchandisers. If there were such “normal ways” of making payments by overseas customers, I am sure that the documentary evidence to prove such practices would be commonplace and it should not be difficult to obtain. Although the Defendant purported to rely on the bank transaction records from January 2006 to September 2006 (Exhibit “CLK-2”) to illustrate that overseas customers paying cash was not uncommon, in my view, it seems that the Defendant have misinterpreted the evidence. The evidence was adduced by the Plaintiff to show that the Defendant was almost the only merchandiser (except another called Mr. Chu Kit Choy) using cash payment during that period of time. It was, according to Ms. Chan Lai Kuen, an unusual arrangement (out of 21 cash transactions with the Plaintiff during that period, 19 of them came from the Defendant) and that was why she reported the matter to Mr. Lee Tat Hing and continued with the investigation of this unusual practice of using cash. In my view, this piece of evidence could not help the Defendant’s explanation very much. Secondly, the Defendant failed to explain why the overseas customers had difficulty to pay the Plaintiff directly by way of telegraphic transfer of banks (or colloquially called “T/T”) when the Plaintiff was just a Hong Kong corporation with bank accounts in Hong Kong. The fact that the Defendant was working in the office situated in Mainland China was entirely irrelevant. In my view, these general statements of how overseas customers making payment through the local agents are not very helpful to the Defendant’s argument at all.

17. Furthermore, the Defendant simply failed to explain satisfactorily why Broder, in the subsequent correspondences with the Plaintiff, alleged that it was the Defendant’s request to use Kin Shing Company. According to the Defendant, the reason why Broder wanted to use Kin Shing Company was because Broder and the Plaintiff wanted to conceal their relationship from Broder’s business rival “Better Home”. Firstly, it should be noted that the Defendant did not suggest that Broder, in using Kin Shing Company for the transaction in question, was a “normal way” for making payment to the Plaintiff. According to the Defendant’s evidence, there was a special reason for it. If this were true, which I find it difficult to accept, why would Broder sign several Sales Confirmations with the Plaintiff as shown in Exhibits “P1” and “LPT-21” personally without using the agent’s name, Kin Shing Company? Secondly, If what the Defendant telling the Court were true, I would have thought that Broder, or the Plaintiff, would not just use Kin Shing Company for making payment only. Logically speaking, they would use Kin Shing Company as a “middleman” to communicate with each other and stop all kind of direct communication in order to conceal their relationship. However, from the correspondences between them, I am unable to see that they had the intention to conceal at all. I find the explanation of the Defendant unbelievable and unacceptable.

18. Turning to the Defendant suggested reason of why Hoffman, namely the other overseas customer, wanted to use Kin Shing Company as an agent. I have to say that it was mysterious. In my view, using Kin Shing Company as an agent for Hoffman was quite unnecessary. The Defendant was unable to give any useful answer to that question at all. Although he admitted that he introduced Kin Shing Company to Hoffman upon request, he explained that he did not know the reason. He further said in his evidence that he knew absolute nothing of how this Kin Shing Company worked and how did Kin Shing Company conduct its business with his company, namely the Plaintiff and Hoffman. In my judgment, as an experienced sales representative or merchandiser of the Plaintiff, the Defendant must know the logistic of these matters. His answer was extremely unconvincing. On the whole, the Defendant’s evidence was not impressive at all and I find it very difficult to accept.

19. By reasons of the above, on balance of probabilities, I find that it was the Defendant who requested Broder and Hoffman to pay Kin Shing Company.

20. Besides the question of who asked the overseas customers to pay Kin Shing Company, the questions of knowledge and authorisation were also in issue. The Defendant argued that Mr. Lee Tat Hing, who was another director of the Plaintiff and the Chairman of the parent company of the Plaintiff, knew about this arrangement and authorised the Defendant to do so. Given my factual findings above that it was the Defendant who asked the overseas customers to pay Kin Shing Company and not the overseas customers themselves, it was against common sense why Mr. Lee Tat Hing would have authorised the Defendant to do so without a good reason. There was absolutely no benefit for the Plaintiff to do so. On the contrary, as submitted by Mr. Yip, Counsel of the Plaintiff, it greatly increased the credit and operational risks. In my judgment, I do not believe that the Defendant had informed Mr. Lee Tat Hing or anyone of the Plaintiff at all.

21. Regarding the A&F transaction, there was no dispute that A&F paid cash of RMB 30,000 into the Defendant’s personal bank account in Mainland China. However, against his evidence, the correspondences between the Plaintiff and A&F (Exhibits “LPT-4” and “LPT-5”) clearly show that Mr. Wang of A&F did not cancel the transaction at all. On the contrary, Mr. Wang was in fact making enquiries regarding the progress of his order. The Defendant’s evidence that Mr. Wang cancelled the transaction and asked for the refund of the RMB 30,000 was simply untrue. The Defendant should still have the funds but whether he was deliberately lying or just making a stupid mistake, I am not sure.

22. Mr. Cheng, Counsel for the Defendant, criticised the Plaintiff for not calling the overseas customers, including Mr. Broder of Broder Manufacturing Inc., Mr. John Hoffman of Dryer & Hoffman Limited and Mr. Wang of A&F International Co., to give evidence at the trial.

23. I accept that the oral testimonies of these overseas customers would be very useful but I do understand the reason why, given the value of the claim as well as saving costs, the Plaintiff did not call any of them as witnesses at the trial. This criticism, however, was perhaps a little unfair because the same could also be said by the Plaintiff against the Defendant too. As the Defendant alleged that it was Broder and Hoffman who requested to use Kin Shing Company to make payment to the Plaintiff and this was one of the “normal ways” how overseas customers would do business with the Plaintiff, the Defendant should also give an explanation to Court why he chose not to call any of them at the trial in support of his case. For Mr. Wang of A&F, if the Defendant’s version of events were true, I would have thought that Mr. Wang’s evidence would be most useful to him. Mr. Wang could confirm that he cancelled the transaction and got back the deposit of RMB 30,000. However, none of them came to give evidence at all. In the absence of these overseas customers giving oral evidence at the trial, the effect was, in fact, particularly damaging to the Defendant’s evidence (instead of the Plaintiff’s) when the correspondences between the Plaintiff and these overseas customers gave immense support of the Plaintiff’s version of the events instead of the Defendant’s. In my judgment, the criticism by the Defendant was unnecessary and inappropriate.

24. Besides these overseas customers, the Defendant also criticised the Plaintiff for not calling Mr. Lee Tat Hing as he was the person who allegedly gave approval to the Defendant to use Kin Shing Company and therefore must be an important witness. Mr. Cheng, Counsel for the Defendant, even went further to say that this Court could draw adverse inference against the Plaintiff’s evidence generally because of the failure to call him as a witness. Mr. Cheng relied on the following authorities:- Goei Tsusho Company Ltd v. Leader Engineering & Construction Ltd DCCJ 4581 of 2005 Date of Judgment: 27 October 2009, unreported, Wisniewski v. Central Manchester Heath Authority [1998] Lloyd’s Rep Med 223, Li Sau Keung v. Maxcredit Engineering Ltd [2004] 1 HKC 434. The Defendant further submitted that there was no difficulty at all for the Plaintiff to call Mr. Lee Tat Hing as he was the Chairman of the parent company of the Plaintiff.

25. I have no disagreement with the law cited by Mr. Cheng but I find the application of it in the present case, as submitted by the Defendant, rather difficult to follow.

26. First of all, it was the Defendant’s pleaded case (paragraph 9(5) of the Defence) that he obtained approval from Mr. Lee Tat Hing but the Plaintiff simply denied it. The burden, therefore, must be on the Defendant to prove it and not on the Plaintiff. Since the Defendant’s evidence is generally not accepted due to various reasons mentioned above, I do not see how any adverse inference drawn against the Plaintiff’s evidence could help the Defendant’s evidence very much on this issue of approval.

27. Secondly, the Plaintiff relied on the evidence of Mr. Lee Pak Tung, a Director of the Plaintiff (paragraph 8 of Lee Pak Tung’s Witness Statement) to deny the fact that approval was ever given as alleged by the Defendant. This was technically hearsay evidence and the Defendant was entitled to call Mr. Lee Tat Hing for cross-examination of his denial, if necessary, pursuant to section 48 of the Evidence Ordinance, Cap.8. But when the Defendant chose not to do so, why should this Court draw adverse inference against Plaintiff’s evidence?

28. Thirdly, I also accept the evidence of Mr. Lee Pak Tung that he was actually the Defendant’s immediate supervisor, against the Defendant’s suggestion. Mr. Lee Pak Tung gave evidence for the Plaintiff because he was more familiar with the case. The reason seems obvious. Mr. Lee Tat Hing, who was the Chairman of the parent company of the Plaintiff, was at a much higher level in the management hierarchy of the company and should therefore have less detailed knowledge of the operation at the working level. Although it was submitted that Mr. Lee Tat Hing approved the price of each transaction because his signature appeared on the every Sales Confirmation and therefore he must be familiar with the operation at the working level, in my view, it was neither here nor there.

29. In my judgment, in deciding the issue of whether or not the Plaintiff had knowledge of Kin Shing Company and approved the arrangement, it would be more reliable to analyse the circumstantial documentary evidences, particularly the correspondences between the Plaintiff and the overseas customers at the material times, than to assess the credibility of Mr. Lee Tat Hing. As a result, I do not see why Mr. Lee Tat Hing must be called. If the Defendant felt that Mr. Lee Tat Hing’s denial should be, somehow, tested by cross-examination, the Defendant was entitled to call him to do so. But since the Defendant did not choose to do so, it is therefore unfair to make such a complaint now. I therefore reject the submissions that I should draw adverse inference against the Plaintiff’s evidence and the authorities cited by the Defendant could not offer much help to me.

30. All in all, I accept the evidence of the Plaintiff’s witnesses but have great doubts on the Defendant’s evidence, particularly when it was in contradiction with the documentary evidence adduced before me. I therefore find that the Defendant was in breach of the implied terms and duties that the Defendant should act in the best interests of the Plaintiff and should carry out his duties in good faith that he had wrongfully requested the 2 overseas customers, namely Border and Hoffman to pay the respective sums of US$26,466 and US$27,832 to a third party, namely Kin Shing Company, instead of directly to the Plaintiff without the Plaintiff’s knowledge and approval. I further find that, in breach of the same implied terms and duties, the Defendant had wrongfully requested A&F to pay a sum of RMB 30,000 into his personal bank account instead of directly to the Plaintiff without the Plaintiff’s knowledge and approval.

31. As a result of my findings above, I also find that the Plaintiff has suffered loss and damage and the Defendant was therefore liable to pay damages to the Plaintiff by reason of his breach of the said implied terms and duties. I shall deal with the quantum below.

32. I am told that Broder paid Kin Shing Company a sum of US$26,466 as per the wrongful request of the Defendant. The sum was supposed to be paid to the Plaintiff as the contract sum when the Sales Confirmations were signed. There was no dispute that, pursuant to the contract, the goods were produced and shipped to Broder. Due to the wrongful act of the Defendant, the Plaintiff was kept out of this payment and the Defendant is therefore liable to pay this amount to the Plaintiff as damages.

33. Similarly, regarding the Hoffman’s transaction, the Plaintiff had manufactured the goods and completed the transaction. According to the relevant invoices (dated 21 July 2006) with numbers DD59/1362/06 and DD59/1636/06 respectively, the total contract sum was US$25,991.80. However the Plaintiff received a payment of US$7,500 only because the shortfall was wrongfully paid to Kin Shing Company pursuant to the Defendant’s instruction. As a result of this wrongful act, the Plaintiff should have suffered a loss of US$18,491.80. I, however, understand from the evidence that this loss would be shared equally by the Plaintiff and Hoffman. The actual loss was therefore reduced to US$9,245.90. I therefore find that the Defendant is further liable to pay US$9,245.90 to the Plaintiff as damages as well.

34. Regarding the A&F transaction, the sum of RMB 30,000 was supposed to be the deposit payable to the Plaintiff. As evidence showed that the Plaintiff had manufactured the goods and completed the transaction without being paid for this deposit, the Plaintiff suffered a loss of RMB 30,000 because of the Defendant’s wrongful retention of the money. In addition to the sums I find above, I also find that the Defendant is liable to pay a sum of RMB 30,000 to the Plaintiff.

35. Turing to the allegation of fraud, the Plaintiff alleged that the Defendant did the wrongful act fraudulently. For this reason, in addition to the damages suffered as a result of breach of the implied terms and duties, the Plaintiff further claimed for unjust enrichment and asked for equitable remedies, such as tracing and accounting for profits.

36. Given my findings above, I do have a strong suspicion that the Defendant conspired with Kin Shing Company to defraud the Plaintiff. For instance, the Defendant requested the overseas customers of the Plaintiff to pay the contract sums to Kin Shing Company for no apparent good reasons. The Defendant also sent electronic mails to these overseas customers of the Plaintiff in the name of “Kin Shing Company” and misrepresented to these overseas customers that Kin Shing Company was an associate company of the Plaintiff. But suspicion remains suspicion which is not sufficient. Both Counsel, Mr. Yip for the Plaintiff and Mr. Cheng for the Defendant made helpful submissions to me that when allegations of fraud in civil cases are raised, although the standard of the proof is still “on the balance of probabilities”, there must be some compelling and cogent evidence to prove it. The more serious the allegation, the stronger the evidence is required. The parties referred me to the authorities: News Cleaning Services Co Ltd v Watson Environment Management Ltd HCA 2244 of 2009 Date of Judgment: 14 June 2013, unreported, Re H & Others (Minors) (Sexul Absue: Standard of Proof) [1996] AC 563, In re B (Children) [2009] 1 AC 11 and Nina Kung v Wang Din Shin [2005] 8 HKCFAR 387.

37. In the deciding the issue of fraud, Mr. Yip, Counsel for the Plaintiff, further submitted to me that in assessing the evidence of the Defendant, I may find the Defendant conducting himself dishonestly in the affairs if I do not accept his explanation at all. He relied on ODL Securities Ltd v Adrian Martin McGrath & Others [2013] EWHC 1865 (Comm) and Datec Electronic Holdings Ltd v United Parcels Services Ltd [2006] 1 Lloyd’s Rep 279 (Court of Appeal) and [2007] 1 WLR 1324 (House of Lords).

38. I have no difficulty in accepting the law put forward by both Counsel and I am grateful for their effort in the legal research which helps me a lot in coming to my decision. Although I do not accept the explanation of the Defendant regarding the reasons of using Kin Shing Company and his personal bank account for accepting payment to the Plaintiff and, in my judgment, he was not entirely honest and forthcoming in his evidence, I am unable to say with compelling and cogent evidence that he then must have been fraudulent in conducting himself and not just careless, negligent or stupid because most importantly there was no reliable evidence to show how the Defendant, personally, had made any financial gain from this arrangement. In my view, although this was not the only way to prove that the Defendant was fraudulent, if evidence of personal financial gain could be found, this would certainly be compelling and cogent.

39. In conclusion, I find that the Defendant is liable for his wrongful acts, although they may not be fraudulently committed, and do pay damages arising from the breach of implied terms and duties for the sums of US$35,711.90 (namely US$26,466 + US$9,245.90) and RMB 30,000.

40. I further award interest at judgment rate from the date of Writ of Summons until full payment.

41. Lastly, I will deal the declaratory relief sought by the Plaintiff. It was not in dispute that an award was made by the Labour Tribunal for a sum of HK$101,156.91 in favour of the Defendant in the case of LBTC 1389 of 2012. Parties, as stated in their pleadings, agreed that this sum could be used for set off against the claim by the Plaintiff in the present action. For the sake of completeness, I therefore also grant the declaration that the Plaintiff is entitled to set off its liability in the award of the Labour Tribunal by the sums awarded in this action.

42. Regarding costs, I should think that the costs should follow the event. I understand that Mr. Cheng, Counsel for the Defendant, has reminded me in his final submission that the Plaintiff has failed to convince the Court to put in a substantial part of the Supplemental Witness Statement of Chan Lai Kuen dated 16 December 2013 on the first day of the trial and I should reflect that in the costs order, even if I find against the Defendant at the end. Taking the matter as whole, I do not intend to make a separate costs order for this application save and except to exclude the costs of preparation of some part of that supplemental witness statement. I will therefore make a costs order nisi that the costs of this action (including any costs reserved but excluding the costs of preparation of part of (from paragraphs 5 to 19) the Supplemental Witness Statement of Chan Lai Kuen dated 16 December 2013) be to the Plaintiff with Certificate for Counsel. And since the Defendant was on legal aid, I further order that theDefendant’s own costs be taxed in accordance with Legal Aid Regulations, Cap. 91. This order nisi will become absolute unless an application by summons to vary the same is filed within 14 days.