莫懿 V. 宏大香港資產管理有限公司 AND ANOTHER

HCA 897/2018

[2021] HKCFI 3218

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 897 OF 2018

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BETWEEN

(By original action)

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AND BETWEEN

(By counterclaim)

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______________

DECISION

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Introduction

1.  By Summons dated 21 January 2021 (the “Summons”), the plaintiff by original action (“Mo” or “莫先生”) seeks against the 1^st defendant by original action (Grand Cartel Hong Kong Asset Management Limited, “GCAM” or “宏大公司”) and the 2^nd defendant by original action (Chen Hong, “Chen” or “陳先生”):

(a) final judgment as claimed in the Re-Amended Statement of Claim (“RASoC”); or

(b) alternatively interlocutory judgment for damages to be assessed; or

(c) in further alternative, interim payment in the sum of HK$39,000,000.

2.  This is the hearing of the Summons. Mr Danny Fung appeared for Mo. Mr Ernest Ng appeared for GCAM and Chen.

The pleadings

3.  The Writ with general indorsement was issued on 20 April 2018.

4.  The Statement of Claim in Chinese was dated 4 June 2018, amended on 14 May 2019, and re-amended on 12 May 2020.

5.  The Defence and Counterclaim in English was dated 15 October 2018, amended on 2 May 2019, and re-amended on 6 May 2020[1] (“RADAC”).

6.  The Re-Amended Reply and Defence to Counterclaim in English was filed on 13 May 2020 (“RARADC”).

Mo’s pleaded case

7.  Mo’s pleaded case may be summarized as follows.

8.  Mo’s case is based on two agreements. They have been referred to as the “Investment Agreement” (or “投資協議”) and the “Supplemental Agreement” (or “補充協議”). I adopt those terms for the sake of convenience.

9.  Mo and GCAM entered into the Investment Agreement in about November 2016. Chen is not a party to that agreement.

10.  On the question of consideration, Mo pleads[2] that:

「 在《投資協議》下，莫先先以承諾向宏大公司及／或其指定証券賬戶注入現金30,000,000港元並交由宏大公司於《投資協議》所訂明投資期內託管和投資及承諾投資期內不得撤資等作為代價，以換取宏大公司承諾6個月後將該30,000,000港元連同額外百份之30的保證固定收益（即9,000,000港元）歸還／支付予莫先生。」

11.  In respect of the Investment Agreement:

(a) It is in Chinese and bears the title of “投資委託協議”;

(b) It is between Mo as Party A and GCAM as Party B;

(c) Clauses 1 to 7 and 14 thereof are the most relevant clauses, which stipulate as follows[3]:

「 第一條 甲方以自有資金進行投資，初始投資金額不低於3000萬港幣,並於[2016]年[11]月[14]日前將初始投資資金存入乙方為甲方開立或者乙方指定的其他的證券賬戶中。

第二條 甲方同意並確認將證券賬戶委託乙方代為管理。

第三條 乙方承諾，自入資之日起至未來[6]個月內，使甲方證券賬戶之資產額逐步升值，約定6個月的固定收益率為[30%]。

第四條 甲方承諾並確認，初始投資資金來源合法，並於規定時間內存入乙方所指定的賬戶，且甲方不得在投資期間撤資。

第五條 乙方承諾在委託管理期間，勤勉盡責，自[20l6]年[12]月[l]日起，並保證甲方證券賬戶中每日資產淨額不低於初始投資金額的150%, 即4500萬港幣。

第六條 乙方承諾在委託管理期間，如甲方證券賬戶淨資產低於前述之承諾額，乙方將在兩日內補充現金或證券資產以完成上述承諾。乙方將每日向甲方提供日結單，並展示相關交易明細。

第七條 乙方作為甲方證券賬戶的委託管理人，有權按照乙方的投資邏輯、投資策略等進行投資,甲方應予以尊重，並不得干涉。若甲乙雙方經友好協商，達成口頭或書面共識，則可對投資策略進行相應調整。

…

第十四條 一方違反本合同給對方造成損失的，應賠償對方損失。損失賠償額應相對於因違約所造成的損失，包括合同履行後可以獲得的利益。但不得超過違反合同一方訂立合同時預見到或者應當預見到的因違反合同可能造成的損失。」

12.  On about 14 November 2016, Mo deposited HK$30,000,000 (the “Invested Sum”) into a security account designated by GCAM.

13.  The investment period ended on about 13 May 2017.

14.  Despite requests, GCAM failed to return or pay the Invested Sum or the guaranteed sum of HK$9,000,000 (ie 30% of HK$30,000,000, the “Guaranteed Sum”, and together with the Invested Sum, the “Total Claimed Sum”).

15.  In exchange for Mo not immediately commencing legal action against GCAM, and for extending the repayment date to 31 December 2017, Mo and Chen in about August 2017 entered into the Supplemental Agreement.

16.  In gist, Mo claims that by the Supplemental Agreement, Chen contracted to provide his own personal guarantee in respect of the return or payment of the Total Claimed Sum.

17.  Despite the Investment Agreement and the Supplemental Agreement, the Total Claimed Sum were not returned or paid.

18.  A number of causes of action have been pleaded. They include breach of contract, money had and received, unjust enrichment and restitution.

19.  On the cause of action of breach of contract, §§13 and 14 of the RASoC are material, which I reproduce as follows:

「 13. 此後，無論是2017年12月31日前或後，宏大公司及陳先生一直拒絕或未能向莫先生償還及支付欠款總額[4]或當中任何部分，嚴重違反各自在《投資協議》及《補充協議》下的責任及義務。

14. 基於上述所述情況，宏大公司及陳先生須共同及各別地向莫先生償還及支付欠款總額，即39,000,000港元。」

The pleaded defence of GCAM and Chen

20.  A number of defences have been pleaded. In gist, GCAM and Chen plead that:

(a) The Investment Agreement and the Supplemental Agreement are not supported by consideration;

(b) The Invested Sum had been used to purchase shares, principally shares in Echo International Holdings Group Limited (“Echo”), which shares Mo has kept;

(c) Mo in June 2017 gained control of all the accounts he had opened with GCAM;

(d) The Supplemental Agreement was procured by duress perpetrated principally through a person called Wu Shangxing (“Wu”), who was a representative of Mo.

The Summons and the Affirmations

21.  The Summons was filed on 21 January 2021, quite sometime after the filing of the RADAC.

22.  Mo filed his affirmation in support on 21 January 2021 (“Mo/Aff1”). Chen filed his affirmation in opposition on 17 May 2021 (“Chen/Aff”). Mo filed his affirmation in reply on 21 July 2021 (“Mo/Aff2”).

23.  In the course of the hearing, Mr Fung confirmed that despite the number of causes of action which has been pleaded in the RASoC, he is for the purpose of the present application relying only on the cause of action of breach of contract, ie breach of the Investment Agreement on the part of GCAM to return or pay the Total Claimed Sum, and breach by Chen of his personal guarantee effected by the Supplemental Agreement. The alternative relief sought of interlocutory judgment for damages to be assessed is also based on breach of contract.

The applicable principles on Order 14

24.  The principles applicable to applications for summary judgment under Order 14 are not in dispute. Mr Fung has in particular citied to me the following observations by Deputy Judge Lisa Wong SC (as Her Ladyship then was) in Menfond Electronic Art & Computer Design Co Ltd v Wong Wang Tat Victor & Anor [2013] 2 HKC 259 at §61, that:

“ It is for the defendant to show that there is an arguable defence or triable issue. In doing so, the defendant must condescend to particulars. The mere assertion in an affidavit of a given situation by the defendant does not, ipso facto, ground leave to defend. The defendant must satisfy the court that his evidence is capable of being believed and that on the basis of such evidence, there is a fair or reasonable probability of the defendant having a real or bona fide defence. In deciding whether there is a fair or reasonable probability of the defendant having a real or bona fide defence, the court does not isolate each factual issue and consider whether it is possible that the defendant’s story on that issue is credible. Rather, the court must look at the whole situation. In assessing the credibility of the defendant’s factual case, while the court will not embark on a mini-trial on affidavit evidence, the court is not obliged to suspend its critical faculties and assume that the defendant’s evidence is accurate. If having regard to inherent plausibility, inconsistency with contemporaneous documents and other compelling evidence, the defence is not credible, the court must say so. If the defendant’s defence is incredible in any material respect, it cannot be said that there is a fair or reasonable probability that the defendant has a real or bona fide defence.”

25.  I apply those principles.

Discussion

The claim against GCAM

26.  I deal with Mo’s claim against GCAM based on the Investment Agreement first.

27.  Triable issues in relation to the terms of the Investment Agreement obliging GCAM to return or pay the Total Claimed Sum:

(a) For the reasons below, I hold that it is a triable issue as to to what term or terms of the Investment Agreement under which GCAM is said to have the obligations to return or pay the Total Claimed Sum, and the scope of those obligations;

(b) As mentioned above, Mo’s present application against GCAM is based solely upon breach of the Investment Agreement in failing to return or pay the Total Claimed Sum;

(c) I have set out §§13 and 14 of the RASoC. Mo has not whether in those or other paragraphs of the RASoC identified which express term of the Investment Agreement obliges GCAM to return or pay the Total Claimed Sum;

(d) I have set out the relevant terms of the Investment Agreement. There is in fact no express term obliging GCAM to return or repay of the Total Claimed Sum;

(e) Mo has not pleaded any implied term;

(f) The position is not a straightforward one. Under Clause 2 of the Investment Agreement, Mo entrusted the management of the investment account to GCAM. Under Clause 7, GCAM had the prerogative to invest according to its investment logic and strategies. Securities might have been purchased. For examples, shares in Echo had in fact been purchased. Upon purchase of investments, there might not be sufficient cash in the account for return or payment of the Total Claimed Sum. If Mo could at any given time demand return or payment of the Total Claimed Sum, and if at that point of time there was insufficient cash in the account for that purpose, investments might need to be realized. But the timing for the realization might not be favourable. Untimely realization may lead to loss. If so, who should they be borne by? These are just some of the complications that could have been involved;

(g) I therefore accept Mr Ng’s submission that in the absence of any plea in the RASoC of any express or implied term, how the Invested Sum and the Guaranteed Sum were to be treated, returned, paid or distributed and under what terms of the Investment Agreement, express or implied, are all at least triable issues which ought to be tried.

28.  Triable issue as to whether the Investment Agreement supported by valuable consideration:

(a) Consideration is a material fact which should be pleaded — see Huen Wai Kei v Choy Kwong Wa Christopher (No. 2) [2014] 4 HKLRD 782 at §62;

(b) There is no term in the Investment Agreement obliging Mo to pay GCAM any fee, remuneration or commission;

(c) At §21 of its RADAC, GCAM pleads specifically that it did not receive any fees, remuneration nor benefit in entering into the Investment Agreement;

(d) According to Chen (Chen/Aff at §15[5]), the assistance given by GCAM to Mo under the Investment Agreement was gratuitous in nature;

(e) In answer to §15 of Chen/Aff, Mo accepts at §17 of Mo/Aff2 that GCAM and Chen did not receive any benefit from him. Though Mo goes on in that paragraph to say that according to his belief, GCAM and Chen obtained some sort of benefit through his investment in Echo from the majority shareholder of Echo[6], that belief is speculative. Mo has at §16 of Mo/Aff2 said that he was himself not aware of the details in those regards;

(f) On the issue of consideration, I have set out above §4 of the RASoC. Mo’s pleaded case is not based on any benefit to GCAM, but on the alleged detriment (in terms of the depositing of the Invested Sum and the promise not to withdraw it during the investment period) said to have moved from himself as the promise;

(g) In the course of the hearing, Mr Fung confirmed that that is the only consideration which he is putting forward for the purpose of the application. In his words[7], “Mo would suffer the detriment in loss of use of the injected fund for the entire investment period” (the “Alleged Detriment”);

(h) Mr Fung further submits that there is no legal requirement that any consideration moving from a promisee should move to the promisor. He refers to Yue Tai Plywood & Timber Co Ltd v Far East Wagner Construction Ltd & Anor [2001] 2 HKLRD 446, at 450J-451A. That principle is not controversial, and is not in dispute;

(i) What is in dispute is whether on the facts of the present case the Alleged Detriment amounts to valuable consideration;

(j) In support of his submission that the Alleged Detriment does not, Mr Ng relies on §4-018 of Chitty on Contract (33^rd ed, 2018), that:

“ The rule that consideration need not be adequate makes it possible to evade the doctrine of consideration in the sense that a gratuitous promise can be made binding by giving a nominal consideration, e.g. £1 for the promise of valuable property, or a peppercorn for a substantial sum of money. Such cases are merely extreme examples of the rule that the courts will not judge the adequacy of consideration. If, however, it appears on the face of an agreement that the consideration must as a matter of arithmetic be worth less than the performance of the counter-promise, there would seem to be no contract: for example, if A promised to pay B £100 in return for £1 to be simultaneously paid by B to A. It has been said that, in such a case, the apparent contract would amount “in reality to a gift of £99”. It is assumed in the example that both sums are simply to be paid in legal tender. An agreement to exchange a specific coin or coins of a particular description for a sum of money greater than their face value (e.g. 20 shilling pieces bearing the date 1900 for £100) would be a good contract. The same would be true of an agreement to pay a sum in one currency in exchange for one payable in another, and of an agreement to pay a larger sum tomorrow in exchange for a smaller sum paid today ….” (emphasis added)

(k) Mr Fung submits that that example given in Chitty (the “Chitty Example”) applies only to a case of payment through legal tender;

(l) But in the present case, the Invested Sum and the Total Claimed Sum are both, according to Mo’s case, effected or meant to be effected by way of the same legal tender;

(m) One distinction between the present case and the Chitty Example is that the depositing of the Invested Sum on the one hand, and the return or payment of the Total Claimed Sum on the other, were not meant to be simultaneous;

(n) However, I note that the facts of the present case are highly unusual. On its face, the Investment Agreement requires Mo to make no payment of remuneration of any sort to GCAM. But what Mo says he would get out of it is a guaranteed yield of 60% per annum. This looks, as Mr Ng submits, more like a gift of the Guaranteed Sum;

(o) The only consideration which Mr Fung relies on for the present purpose is the Alleged Detriment. But as Mr Ng has submitted, the Invested Sum was deposited into Mo’s account. It remains Mo’s money. Whilst GCAM had the discretion to invest it, it invested it as the “委託管理人” of Mo’s account, prima facie as Mo’s trustee. There is a serious issue as to whether the depositing of the Invested Sum for 6 months into his own account amounts to any detriment suffered by Mo. I note that there is no evidence from Mo in this regard;

(p) I also note, as Mr Ng has submitted, that there has been no definitive judicial decision on the Chitty Example and its underlying proposition[8]. The exact scope and application of the proposition to the facts of this case can in my view only be resolved upon a trial;

(q) The issue of consideration is not a clear-cut one appropriate for disposition on an Order 14 application. On the highly unusual terms of the Investment Agreement, I am of the view that the issue of consideration raised by GCAM also constitutes a triable issue which ought to be tried.

The claim against Chen

29.  I next consider Mo’s claim against Chen based upon the Supplemental Agreement.

30.  Triable issue that the Supplemental Agreement not supported by consideration:

(a) I can deal with this quickly. Mr Fung fairly accepted in the course of the hearing that if there is triable issue as to whether the Investment Agreement is supported by consideration, it must follow that there is triable issue as to whether the Supplemental Agreement is supported by consideration;

(b) In my view, that must be right given the nature of the Supplemental Agreement and its relationship with the Investment Agreement (and if necessary see §4-051 of Chitty which Mr Ng relies on);

(c) I hold therefore that it is a triable issue as to whether the Supplemental Agreement is supported by consideration, which issue ought to be tried.

31. Triable issues that the Supplemental Agreement was procured by duress:

(a) That duress is a vitiating factor is not, and cannot be, disputed;

(b) On the law relevant to duress, Mr Ng has cited to me in H v N, (unrep, CACV 261/2010, 16 November 2011) per Fok JA (as the Permanent Judge then was) §45, which I have considered. I remind myself that when considering duress, two of the questions to be answered are first, whether the pressure or threat is legitimate, and secondly, the effect on the victim. I have also been cited Esquire (Electronics) Ltd & Another v Hong Kong and Shanghai Banking Corp Ltd & Another [2005] 3 HKLRD 358 per W Wang J at §108 which I have also considered;

(c) Duress is pleaded at §§16 to 19 of the RADAC. As mentioned above, Chen’s pleaded case is that the duress was perpetrated principally through Wu;

(d) Chen also deposes to the matters at §§32 to 41 of Chen/Aff;

(e) In summary, Chen’s evidence, consistent with his pleaded case, is that between about April and August 2017:

(i) Wu and others on multiple times trespassed onto the office of GCAM. They caused disruption there. They made a scene by yelling and messing up the papers. Employees of GCAM there were disturbed, intimidated, and could not work;

(ii) Flyers were printed, posted and distributed, with inter alia Chen’s photographs on them, describing Chen as「大老千」, and stating「宏大投資老千騙局」etc. Photographs showing those flyers and they having been posted in public have been produced. One of those flyers was mailed to Chen’s home in Beijing. The relevant envelop has been produced;

(iii) Wu uttered death threats to Chen and his family;

(iv) Wu said to Chen words to the effect that he had got triad members to check Chen’s background, and that he could still have some change if he paid them to kill Chen;

(v) Wu produced an agreement and said that if Chen did not sign it, Wu would harm or kill him;

(vi) Wu defaced the office door of GCAM by writing on it 2 big words「還錢」. A photograph showing that has been produced;

(f) Chen’s case is that it was as a result of those unlawful threats and duress that he signed the Supplemental Agreement;

(g) In his RARADC, Mo at §12 thereof denies that Wu has done the acts as alleged. Mo pleads further that:

“ Further or alternatively, even assuming that Wu did the alleged acts (which is denied), it is denied that Wu so did as Mo’s representative, servant nor agent and/or otherwise for and on behalf Mo as alleged or at all.”

(h) I notice on the other hand that in Mo/Aff2 at §8, Mo accepts that Wu was indeed one of his assistants;

(i) As Mr Ng has pointed out, despite the allegations made against Wu, Wu has filed no affirmation denying the same;

(j) I have considered the contents of Mo/Aff2 filed in rebuttal. I have in particular considered the various contemporaneous conduct on the part of Chen raised by Mo at §§28 to 34 of Mo/Aff2;

(k) I have considered Mr Fung’s submissions criticizing Chen’s case as having “not an ounce of truth”. I have considered in particular Mr Fung’s submissions criticizing Chen’s and GCAM’s failure to follow up on their call to the police;

(l) However, in resolving the issue on duress, and in particular in answering both the questions as to the existence of any pressure or threat and their effects on Chen, credibility is engaged. Order 14 is not, and ought not to be allowed to be turned into, a mini-trial;

(m) On the evidence before me, I cannot conclude that Chen’s case and evidence on duress is incredible or incapable of being believed. In my view, triable issues on duress have been raised, which ought to be tried.

Disposition

32.  For the reasons set out above, I rule that triable issues both in respect of the claims against GCAM and Chen have been raised. Those issues constitute arguable defences. They ought to be tried.

33.  For the same reasons, Mo’s application for an interlocutory judgment for damages to be assessed fails

34.  In respect of interim payment, Mr Fung realistically accepted in the course of the hearing that if Mo cannot get any interlocutory judgment, there will be no basis for any interim payment to be ordered.

35.  I have considered Order 14 rule 7. Chen/Aff has added little to what GCAM and Chen have already pleaded in their RADAC. There is a long time gap between the Summons and the RADAC. In my view, before the issue of the Summons, Mo knew that GCAM and Chen relied on contentions which would entitle them to unconditional leave to defend. In the circumstances, I accede to Mr Ng’s request and dismiss the Summons.

Costs

36.  Following on from my dismissal of the Summons and the reasons therefor, I make a costs order nisi that Mo shall bear the costs of and occasioned by the Summons, with certificate for counsel, to be summarily assessed. Any application for variation or submission of statement of costs shall be made within 14 days from the date hereof, upon receipt of which directions for further conduct will be handed down, with a view of disposing the same on the papers.