LAM YEE HUNG v. CHINACHEM CHARITABLE FOUNDATION LTD

HCA 764/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 764 of 2015

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D E C I S I O N

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1.  In this case the plaintiff brought a case against the defendant (“the Foundation”) in respect of an oral agreement for a loan of $42.35 million. Allegedly the purpose of the loan was to fund litigation over the late Nina Wang’s will. It was said that the oral agreement took place sometime in January or February 2009; that the initial introduction was made by the late Tsui Chin Tong to introduce Dr Kung of the Foundation to the plaintiff; that the initial meeting precipitated further meetings at which the oral agreement came about.

2.  There were eight payments made between 9 March and 12 June in 2009 amounting to the $42.35 million.  The first payment of $20 million was said to be from the plaintiff from his own resources, and the other remaining payments were said to be loans made to the plaintiff from his business associates in Hong Kong and China.

3.  In August 2014, over five years later, the plaintiff’s solicitors demanded the repayment of $42.85 million.  It is now said that of that amount, half a million was not a loan so that the demand actually covered the loan of $42.35 million and the $0.5 million but the loan was not for the whole sum of $42.85 million demanded.

4.  The master granted the defendant’s request for further and better particulars relating to §5 of the statement of claim that dealt with the initial meeting.  The particulars sought were those relating to when the meeting took place, who was there, what the circumstances leading to the meeting were and its purpose, where the meeting was held and details of what had passed at the meeting.

5.  For §6 of the statement of claim, the request dealt with the further meetings relating to this loan.  So in respect of that, the plaintiff was asked to provide particulars of the further meetings in the same way.

6.  Finally, as regards the pleading in §8 of the statement of claim that part of the monies, namely $22.35 million were loans to the plaintiff from his business associates in Hong Kong and China which he then lent to the defendant, the particulars related to details of those alleged loans from business associates to the plaintiff.  The details were when they were agreed, what were the terms, who were the parties to it, and so on and so forth.

7.  The master gave a fully reasoned decision.

8.  This is the plaintiff’s appeal.  I have to hear it afresh.  Having read the parties’ submissions, I really cannot see any valid objection to supplying the further and better particulars requested.

9.  The purpose of providing further and better particulars is set out in the Hong Kong Civil Procedure 2016 at §18/12/1.  There are six reasons given:

(1)  To inform the other side of the nature of the case they have to meet.

(2)  To prevent the other side from being taken by surprise at the trial.

(3)  To enable the other side to know with what evidence they ought to be prepared and to prepare for trial.

(4)  To limit the generality of the pleadings, the claim and the evidence.

(5)  To limit and define the issues to be tried, and as to which discovery is required.

(6)  To tie the hands of the parties so that he cannot, without leave, go into any matters not included.

10.  It is quite clear that as regards the first two requests, the defendant needs to know the answers so that it can prepare its defence.  For example, if it is alleged that the meeting took place on a particular day in a particular city, and Dr Kung’s diaries were to show otherwise, that he was in a different jurisdiction altogether, that would afford a defence as to that particular allegation and all that will go to the plaintiff’s credibility.

11.  Now it is said that the objection is to the third request because it is nothing more than a fishing expedition.  The defendant, it was said, is not entitled to know who the business associates are.  At one point, there was mention of syndication of a loan, but then counsel informed the court that it is not their case that there was a syndication for a loan to advance it to the Foundation.

12.  Again, when you look at the defence, the defendant has stated very clearly that all payments received by it are clearly documented and recorded. It accepts that on the specific dates on the said occasions there were payments of the amounts alleged received, but according to the defendant those were donations and there was no mention of the plaintiff or that the monies were advanced on his behalf, or anything of that sort.

13.  Mr Man, who appeared for the defendant, posed this question: if on the day alleged there happened to be more than one payment/donation received by the defendant of an identical amount, if the plaintiff does not identify who that associate is in respect of that advance, how is the defendant expected to prepare its defence?

14.  I have no hesitation in reaching the conclusion that the defendant is entitled to the particulars sought, and I will therefore dismiss this appeal with costs.

(Discussion on costs)

15.  I will award $50,000 altogether.