HONG KONG FINANCE EQUITY MANAGEMENT LTD v. CHEN MAILIN

HCA 64/2024

[2026] HKCFI 4004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 64 of 2024

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J U D G M E N T

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Introduction

1.  This is an appeal by the Defendant (Chen) against a Master’s decision which entered summary judgment in favour of the Plaintiff (HKFEM) for HK$70,000,000 with interest and costs and struck out the Defendant’s counterclaim. This appeal comes to me by way of a fresh rehearing. At the hearing before me, Mr Laurence Li SC leading Mr Alvin Cheung represented HKFEM and Mr Christoper Chain SC leading Mr Jonathan Lee represented Chen.

The Factual Background

2.  HKFEM is an investment holding company incorporated in the British Virgin Islands. Mr Hui Chi Ming (Hui) acted on its behalf in the relevant transactions. Chen is a businessman in the real estate industry in Mainland China and a Hong Kong permanent resident.

3.  Hong Kong Finance Investment Holding Group Limited (Company) is publicly listed on the Hong Kong Stock Exchange under Stock Code 00007. At the material time, Hui was the Chairman of the Board of Directors and its controlling shareholder.

4.  By June 2020, Hui and Chen discussed the prospect of Chen acquiring shares in the Company. From the documentary evidence, it appears that it was initially contemplated that Chen might acquire 240,000,000 shares in the Company from Mr Li Songbo (Mr Li).    

5.  On 9 June 2020, Hui wrote a letter addressed to Chen (9 June Letter)[1]:

“ … I am pleased to see that the strengths of both parties complement each other and there is a future for cooperation and jointly expanding the [Company’s] business. Thus, I sincerely invite you to invest in and acquire the 240,000,000 shares of the [Company] held by an independent third-party, Mr Li Songbo, and I sincerely invite you to join as a shareholder and become a member of the board of directors of the [Company].

As the person extending the invitation, I hereby make the following commitment: if by the end of 2020, the [Company] share price is lower than the share price at which you acquired the shares, I am willing to compensate for the difference and the corresponding interest, as a demonstration of confidence and support …”.

6.  Chen’s case is that Li’s name was included as a ‘placeholder’ but this is not accepted by Hui. Eventually, it was decided that the seller of the shares in the Company would be changed. There is some suggestion by Hui in the evidence that Mr Li wished to sell his shares at HK$0.98 per share, which Chen regarded as being too expensive. However, Chen disputes this account, and the 9 June Letter does not refer to this share price. In the end, Chen eventually did not purchase Mr Li’s 240,000,000 shares but instead bought HKFEM’s 200,000,000 shares.

7.  This is reflected in the terms of the Sale and Purchase Agreement dated 17 June 2020 (SPA) through which HKFEM agreed to sell and Chen agreed to purchase 200,000,000 shares (Shares) in the Company for HK$140 million at HK$0.70 per share. The SPA provided that the purchase price should be paid upon payment of stamp duty and disclosure of the transaction to the Hong Kong Stock Exchange.      

8.  On 17 June 2020, the relevant bought and sold notes were executed and HKFEM transferred the Shares to Chen.

9.  On 19 June 2020, Chen paid HK$30 million to HKFEM as partial payment under the SPA leaving a total of HK$110 million as the outstanding purchase price.  On the same day, a Supplemental Agreement was signed by the parties (Supplemental Agreement) which varied the payment schedule under the SPA. It provided that Chen shall pay HK$40 million to HKFEM by 30 June 2020 and the remaining HK$70 million within 6 months from the date of the Supplemental Agreement. On 23 June 2020, Chen paid HK$40 million as required by the Supplemental Agreement. However, Chen did not pay the remaining HK$70 million by the deadline under the Supplemental Agreement, or at any point afterwards. HKFEM seeks to recover this sum against Chen in these proceedings.    

10.  On 16 July 2020, Chen was appointed an Executive Director of the Company. However, he later resigned on 9 October 2020.

11.  On 6 February 2024, Chen commenced an action in HCA 242/2024 against Hui seeking to recover damages of HK$99,600,000 for breach of the Master Agreement (as defined below). Default judgment was entered on 11 April 2024 but was set aside by consent on 22 August 2025. The proceedings in HCA 242/2024 are ongoing.

Mr Chen’s Defence and Counterclaim

12.  Chen does not dispute that the HK$70 million remains unpaid under the Supplemental Agreement.

13.  However, his case is that in June 2020 Hui invited Chen to purchase shares in the Company from a seller to be brokered by Hui, which eventually was decided to be HKFEM. Further, Hui made representations to Chen that the Company had a concrete plan to fully develop its Zhanjiang Smart City real estate development project (Zhejiang Project) which would be completed in or before April 2021 and would bring RMB 2 billion net revenue to the Company upon completion. In addition, the Company also had a concrete plan to fully utilise the exclusive operating rights enjoyed by one of its wholly-owned subsidiaries to conduct sand mining and export business, and to invest and operate port and terminal facilities in the Kikori Delta in the Gulf of Papua (New Guinea Project). This was also scheduled to be completed in April 2021 would bring RMB 1 billion in net revenue.

14.  Chen says that on or around 17 June 2020 he entered into a ‘master agreement’ with Hui. Hui promised Chen that if the market price of the shares to be acquired by Chen at the end of 2020 was lower than the purchase price paid by Chen for the shares, then Hui would fully indemnify Chen for the eventual difference in value (Master Agreement). Chen relies on the 9 June Letter and alleged oral representations by Hui that this assurance would remain valid regardless of the specific identity of the seller or quantity of shares ultimately purchased by Chen. Chen says that Mr Li’s name was included in the 9 June Letter as a ‘placeholder’ and that his understanding was that ‘neither the identity of the seller nor the specific quantity of shares’ was essential to Hui provided that Chen did in fact invest in the Company, which he did.

15.  Chen says that the market price of the Shares dropped to HK$0.202 per share on 31 December 2020. Accordingly, under the Master Agreement Hui is liable to pay Chen HK$99.6 million. This figure represents the total value of the difference between HK$0.70 and HK$0.202 with respect to the 200,000,000 shares in the Company. Chen has commenced separate proceedings in HCA 242/2024 against Hui seeking to recover this amount. Those proceedings are not before me.  

16.  Chen relies on an oral agreement allegedly reached over a phone call with Hui in December 2020 (Oral Agreement). At this time, the market price of the Shares had dropped well below HK$0.70 per share. Chen says that he demanded that Hui pay all outstanding sums under the Master Agreement by 31 December 2020 when the exact amount of the shortfall would be ascertained. Chen further says that Hui asked for indulgence claiming that he was suffering from cash flow problems.    

17.  The effect of the Oral Agreement was that Chen shall withhold immediate legal action against Hui pursuant to the Master Agreement for one year until 31 December 2021. In return, Hui would procure HKFEM to suspend its rights to demand payment of the HK$70 million outstanding under the Supplemental Agreement until Hui has first paid off all outstanding sums due to Chen under the Master Agreement. Chen submits that because Hui has not settled the amounts due to Chen under the Master Agreement, HKFEM is not entitled to recover the outstanding purchase price under the Supplemental Agreement. This is his principal defence.  

18.  Chen relies on the Oral Agreement as a variation of the Supplemental Agreement. He further relies on estoppel by convention, equitable forbearance and promissory estoppel as defences. At a foundational level each of these defences rely on the factual viability of the Oral Agreement as a common denominator.  

19.  Chen counterclaims for damages in misrepresentation. He says that Hui made misrepresentations personally and on behalf of HKFEM and that the Company did not have a concrete plan for either of the Zhejiang or New Guinea Projects in June 2020 which was the time when the SPA and Supplemental Agreements were signed. Chen says that Hui did not have reasonable grounds to believe in the truth of these statements, and that Chen acted in reliance on the representations in entering the SPA and Supplemental Agreement which he otherwise would not have done.

Legal Principles on Summary Judgment 

20.  The relevant legal principles on an application for summary judgment under RHC Order 14 are well-established. There is a helpful exposition given by Ng J in Guanghua SS Holdings Limited v Lim Yew Chen [2022] HKCFI 1052 at [13]:

(1)  The Order 14 machinery works on the basis that if the plaintiff's application is properly constituted, it is prima facie entitled to judgment unless the defendant shows cause to the contrary.

(2)  The mere assertion in an affidavit of a given situation by the defendant responding to an application for summary judgment does not ipso facto ground leave to defend.

(3)  The burden is on the defendant to show a real or bona fide defence or some other reason for a trial. 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.

(4)  In deciding whether there is a fair or reasonable probability of the defendant having a real 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.

(5)  In assessing the credibility of the defendant's factual case, while the court will not embark upon 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.

(6)  If having regard to inherent plausibility, inconsistency with contemporaneous documents and other compelling evidence the defence is not credible, the court must say so; and

(7)  If the defendant's evidence 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.

21.  Where the defence rests on a collateral oral agreement, the threshold onus on a defendant is in a sense compounded by the onus to strictly prove such agreement. Not only the terms of such contracts but an intention to create legal relations on the part of all parties must be clearly shown. This is because the law treats collateral contracts the sole effect of which is vary or add to the terms of a principal contract with suspicion: Bank of India v Surtani Murlidhar Pamanand [1994] 1 HKC 7, 11I-12C per Nazareth JA (as he then was). However, the need to prove an oral collateral contract strictly does not alter the basic threshold on a defendant in summary judgment to satisfy the court that his assertions are capable of belief: China Everbright Holdings Company Limited v Synergy Finance Limited, HCA 933/2002, 18 December 2002 at [18] per DHCJ Poon (as he then was). In my view, the need to ‘strictly prove’ a collateral agreement relates not to a heightened evidential standard as such, but instead to the quality and contents of the oral discussions necessary to constitute a legally enforceable variation of a pre-existing contract. For example, oral discussions with uncertain or incomplete terms would not suffice.

22.  Relatedly, it is rare in modern commercial litigation to encounter a claim based on an agreement which is not only said to have been purely by word of mouth but of which there is no contemporaneous documentary record of any kind. The prevalence of e-mails, text messages and other forms of electronic communication is such that most agreements or discussions which are of legal significance, even if not embodied in writing, leave some form of electronic imprint. Because the value of a written record is understood by anyone with business experience, its absence may, depending on the circumstances, tend to suggest that no contract was concluded: Leung Chin Sing Rabo v Ko Chun Hay Kelvin [2021] HKCFI 2242 at [42].

Discussion on Summary Judgment

23.  Having sent out the undisputed factual background and relevant legal principles, I will now evaluate whether Chen’s evidence in these proceedings discloses a real and credible defence.

24.  The first question is whether Chen has shown a real defence in relation to the existence of the Master Agreement. This is a core element of Chen’s overall defence in this action because the Oral Agreement is predicated on Hui promising Chen to pay all outstanding sums under the Master Agreement by 31 December 2020. If Chen is unable to show that it is believable that the Master Agreement existed, it necessary follows that the Oral Agreement would fail. However, even if there is a triable issue on the existence of the Master Agreement, it is still necessary to separately consider the Oral Agreement.

25.  Mr Chain SC relies heavily on the 9 June Letter as an important part of the factual matrix to support the existence of the Master Agreement. In particular, that document shows that Hui clearly gave a commitment to Chen to make up the shortfall between the purchase price of the shares and their market value by the end of 2020. Mr Li SC counters by pointing out that the 9 June Letter related to Mr Li and his 240,000,000 shares, but not HKFEM and its 200,000,000 shares. His submission is that the 9 June Letter is irrelevant since the SPA was signed by a different seller and relates to a different batch of shares. Accordingly, irrespective of the commitment that was given by Hui to Chen under the 9 June Letter, it did not apply to the SPA and Supplemental Agreement. Thus, Chen’s case falls at the first hurdle. Mr Chain SC responded by submitting that even if that was the true construction of the 9 June Letter, it was still nevertheless an important part of the indisputable factual context since the SPA was only signed about one week later. He pointed out that it was his client’s case that oral representations were made by Hui that the commitments he gave would remain valid regardless of the specific identity of the seller or quantity of shares ultimately purchased by Chen.  

26.  I have carefully considered the submissions made by both sides in relation to the Master Agreement both orally and in writing. In my view, I consider that it is not incapable of belief that Hui extended Chen a similar assurance under the 9 June Letter to be applied to shares acquired under the SPA. I acknowledge that the 9 June Letter relates to a different seller and batch of shares, and the Master Agreement was not reduced into writing as might be expected by commercial parties. However, I am unable to say that Chen’s case is incapable of belief at this stage. There are points which may be fairly made by both sides. This is a matter for trial. Given that the proceedings in HCA 242/2024 are ongoing, I will refrain from saying more than this. I make it clear that I do not express any view as to the relative credibility of either account.

27.  As I have mentioned above, the mere fact that Chen may have demonstrated a triable issue with respect to the Master Agreement does not mean that Chen necessarily has a believable defence on the Oral Agreement. It is necessary to evaluate both aspects of his case. The Oral Agreement was allegedly concluded in December 2020 at a time when market price of the Shares had dropped substantially. Chen had already resigned as a director of the Company. Moreover, unlike the Master Agreement, there is no real anchor in the documentary evidence to support the existence of the Oral Agreement. Given the substantial amounts at stake and in view of the significant drop in share price, I find it difficult to accept that there is not a shred of documentary evidence which tends to suggest that the Oral Agreement was concluded. There is no evidence which even hints at the telephone call leading to it. These features are remarkable given that Chen was able to produce WeChat records between him and Hui in July 2020, but there was no evidence in relation to their communications allegedly taking place in December 2020. This is all the more glaring given that the parties had previously executed a written Supplemental Agreement where Chen had sought HKFEM’s indulgence as to the payment timetable under the SPA.

28.  As Mr Li SC submitted, the Oral Agreement defies commercial common sense. Chen still held the Shares at the time and on his own case, even if the value of the Shares rose substantially in 2021, Hui would still be obliged to pay Chen the difference in value (if any) based on share price at the end of 2020. I find it incapable of belief that Hui would agree to an arrangement that would allow Chen to pocket the potential increase in value of the Shares in 2021 but preserving Chen’s claim under the Master Agreement at the same time.

29.  The difficulties with Chen’s factual case do not stop here. To recap, his case is that he would withhold immediate legal action against Hui pursuant to the Master Agreement for one year until 31 December 2021. In return, Hui would procure HKFEM to suspend its rights to demand payment of the HK$70 million outstanding under the Supplemental Agreement until Hui has first paid off all outstanding sums due to Chen under the Master Agreements.

30.  In my judgment, this framing of the Oral Agreement has the hallmarks of a concocted account for the purposes of defending this action. Chen’s case is that the discussion with Hui was oral and the degree of informality was such that there was no written record of the Oral Agreement. Yet, Chen says that the specific sequence of payments was discussed and agreed with Hui on this informal and undocumented telephone conversation. It is incapable of belief that it was actually discussed and agreed, with no documentary support of any kind, that Hui would pay Chen under the Master Agreement first before HKFEM could demand payment on the Supplemental Agreement. HKFEM would then have to assume the risk that Chen would default and not fulfil his payment obligations under the Supplemental Agreement after having been paid by Hui under the Master Agreement. Chen’s affirmation does not shed any light on these issues.

31.  I have not lost sight of Mr Chain SC’s point that it was not until November 2023 that HKFEM’s solicitors demanded payment of HK$70,000,000 under the Supplemental Agreement. However, it seems to me that the delay on the part of HKFEM to enforce its rights under the Supplemental Agreement does not, in itself, mean that Chen has discharged his burden in establishing a believable defence on the Oral Agreement. Even with such a delay, the court cannot simply suspend its critical faculties and accept Chen’s account at face value.

32.  I have also borne in mind that my function at the summary judgment stage is determine whether Chen’s account is capable of belief and not whether it is to be believed. Having regard to the undisputed evidence as a whole and inherent plausibility, I am firmly of the view Chen’s account of the Oral Agreement is incapable of belief. Having reached this conclusion, it follows that Chen has no real defence to this action and that summary judgment should be entered against him.

Discussion on the Striking Out of the Counterclaim

33.  I now turn to consider Chen’s counterclaim for damages in misrepresentation in these proceedings. As I have mentioned above, his case is that Hui made misrepresentations on behalf of HKFEM and that the Company did not have a concrete plan for either of the Zhejiang or New Guinea Projects in June 2020 which was the time when the SPA and Supplemental Agreements were signed.

34.  Mr Li SC’s main objection is that the basis of the counterclaim is inconsistent with Chen’s claim against Hui in HCA 242/2024 and is an abuse of process. In essence, in HCA 242/2024 Chen claims against Hui personally for breach of the alleged Master Agreement. The claim is founded on contract and assumes that the contract will be performed. However, in the present case, Chen’s claim for damages under s.3(1) of the Misrepresentation Ordinance must assume that the party would not have entered into the same transaction. This was explained in Joytex Development Limited v Super Homes Limited [2018] HKCFI 2286 where DHCJ Alexander Stock held at [142]:

“Pursuant to section 3(1) of the Misrepresentation Ordinance, damages are available in respect of a non-fraudulent misrepresentation which induces a contract, on the same basis as for the tort of deceit. Damages are awarded so as to put the plaintiff in the position it would have been in, had the representation not been made”.

35.  Chen’s pleaded case in this action is that he would not have entered into the SPA and Supplemental Agreement in reliance on the alleged misrepresentations.[2] He does not say that a different agreement would be entered into had the alleged representations not been made. Mr Li SC submits that the two claims are inconsistent because Chen cannot, at the same time, be put into a position as if the transaction had been performed and not performed simultaneously. As expressed in Burrows, Remedies for Torts, Breach of Contract and Equitable Wrongs (4^th ed) at p.14:

“… one cannot combine damages protecting the expectation interest for breach of contract with damages protecting the reliance interest for a tortious misrepresentation inducing that contract. Where the bargain was a good one, the former swallows up the latter and, where the bargain was a bad one, the latter swallows up the former”.

36.  In my view, where a party decides to pursue one claim in an earlier action, the second claim will be considered to be abusive if the claims are mutually exclusive and impossible to co-exist in law. I am satisfied that this is the case on the facts. On the one hand, Chen seeks to enforce the Master Agreement in HCA 242/2024 by seeking damages of HK$99,600,000. It is specifically pleaded in that action that the SPA was entered into under the Master Agreement, and the Supplemental Agreement was a variation. His claim is based on the performance. On the other hand, his counterclaim (made on 23 February 2024, after HCA 242/2024 was commenced) in these proceedings is for damages to be assessed on the basis that the contracts would not have been entered into. I am conscious that, as Mr Chain SC submitted, that no recission has been sought by Chen in these proceedings. However, it seems to me that in order for Chen to succeed on his counterclaim as pleaded, it will be necessary for him to establish that he would not have entered into the contracts and has suffered loss and damage as a result. I agree with Mr Li SC that the inconsistency does not arise from the precise form of relief sought, but from the premise of the case pleaded. In my view, it is not possible to reconcile the inconsistent positions taken by Chen in the two sets of proceedings.

37.  Moreover, I agree that the abusive nature of the counterclaim is highlighted by the fact that Chen’s pleaded case in this action is that the misrepresentations were made by Hui both in his personal capacity and as authorized representative of HKFEM.[3]  Despite his case that Hui personally made the alleged misrepresentations to him, Chen makes no claim in misrepresentation against Hui in HCA 242/2024.

38.  Overall, I am satisfied that this is a plain and obvious case where Chen’s counterclaim should be struck out as an abuse of process.

Conclusion and Orders

39.  For the above reasons, I dismiss Chen’s appeal. Consequently, I affirm the judgment and orders of Master Connie Lee dated 2 October 2025. I heard submissions on costs at the hearing. Costs should follow the event. I order that the costs of this appeal be paid by Chen to HKFEM, to be taxed if not agreed, with certificate for two counsel.