DCCJ 3124/2021
[2023] HKDC 264
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CIVIL ACTION NO 3124 OF 2021
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BETWEEN
CHAN YIN TING (陳嬿婷)
Plaintiff
and
CHAN CHUN CHOI (陳進財)
Defendant
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Before: Deputy District Judge Kenneth K. H. LEE in Chambers
Date of Hearing: 17 May 2022
Date of Decision: 20 March 2023
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DECISION
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Introduction
1. This is an appeal from the order of Master Jocelyn Leung made on 30 December 2021 ordering, inter alia , that:
(1) Judgment be entered for the plaintiff against the defendant;
(2) The defendant do pay the plaintiff HK$2,200,000.00 together with interest at prime rate plus 1% from 1 July 2021 to the date thereof and thereafter at judgment rate until payment in full; and
(3) The defendant do pay the plaintiff’s costs of this action summarily assessed at HK$100,000.00.
(the “Decision ”)
Factual background
2. Save where otherwise indicated, the following facts are not in dispute .
3. On 24 October 2012, the plaintiff (as buyer) and the defendant (as seller) entered into a written agreement (the “Original Agreement ”) for the sale and purchase of the certain rights, benefits and interest in a building on Lot No. 138 and Lot No. 145 in D.D.28, Tai Po, New Territories (the “Land ”) for a total sum of HK$2,900,000 (the “Purchase Price ”).
4. Pursuant to the Original Agreement, the plaintiff paid the Purchase Price to the defendant by various payments made between September 2012 and April 2013.
5. Despite full payment by the plaintiff, the defendant has never transferred any right or interest in any property to the plaintiff.
6. In or around January 2019, the plaintiff and the defendant reached an oral agreement for the full refund/repayment of the Purchase Price (the “2019 Agreement ”).
7. Pursuant to the 2019 Agreement, the defendant made partial repayments in the total sum of HK$700,000 to the plaintiff between May 2019 and October 2019, leaving HK$2,200,000 unpaid (the“Outstanding Sum ”).
8. In or around 22 July 2020, the plaintiff and the defendant entered into a written agreement on how and when the Outstanding Sum should be repaid (the “2020 Agreement ”).
9. The defendant failed to make any repayment in accordance with the terms of the 2020 Agreement or at all. The plaintiff therefore commenced the present action.
Principles on Summary Judgment
10. The following legal principles on summary judgment are well-established:
(1) The plaintiff has to raise a prima facie sustainable case in the first place. The burden, as it were, then shifts to the defendant to satisfy the court why judgment should not be given against him: §14/4/1 of Hong Kong Civil Procedure 2022.
(2) The burden is on a defendant to establish triable issues by way of credible evidence: §14/4/9 of Hong Kong Civil Procedure 2022.
(3) Mere assertion of a defence on affidavit does not, in itself, give rise to leave to defend: §14/4/9A of Hong Kong Civil Procedure 2022.
(4) The court will take the defendant’s alleged defence not on its face value but test it against the evidence disclosed in the affidavit including matters such as contemporaneous documents: §14/4/9A of Hong Kong Civil Procedure 2022.
(5) The defendant’s affidavit must condescend upon particulars, and should, as far as possible, deal specifically with the plaintiff’s claim and affidavit, and state clearly and concisely what the defence is, and what facts are relied on to support it: §14/4/4 of Hong Kong Civil Procedure 2022.
(6) If a legal objection is raised, the facts and the point of law arising thereon must be clearly stated: §14/4/4 of Hong Kong Civil Procedure 2022.
(7) that there is a triable issue: §14/4/4 of Hong Kong Civil Procedure 2022.
The Defendant’s case
11. The defendant’s submissions are fourfold:
(1) Forbearance to sue relied on by the plaintiff as consideration is not pleaded;
(2) The agreements are tainted with illegality;
(3) The suspected illegality is sufficient for “some other reasons to be a trial ”; and
(4) The claim of damages is defective.
Forbearance to sue not pleaded
12. Ms Christine Yu, counsel for the defendant, submitted that forbearance to sue had not been pleaded as a consideration in the Statement of Claim, and the plaintiff had not identified which clause(s) were said to have been breached by the defendant: Huen Wai Kei v Choy Kwong Wa Christopher (No 2) [2014] 4 HKLRD 782.
13. With respect, I disagree with Ms Yu, for the following reasons:
(1) As explained by Kwan JA (as she then was) in Huen Wai Kei (at §60), the need to plead consideration flows from O.18 r.7(1), which provides that every pleading must contain a statement in a summary form of the material facts on which the party pleading relies for his claim or defence.
(2) In this light, I agree with Mr Timothy Lam, counsel for the plaintiff that, so long as the plaintiff has sufficiently pleaded all the material facts of the case which show the consideration for the 2020 Agreement (and 2019 Agreement), it is not necessary for the plaintiff to plead using the magic words “forbearance to sue”.
(3) On a fair reading of the Statement of Claim, consideration could be inferred from the flow of events pleaded and the terms of the relevant agreements: Pomato Pro Co. Ltd & Anor v Chow Ngai Keung Alex & Anor (unrep., HCA 2640/2008, 28 March 2011)
(4) Ultimately, the fundamental question is whether the defendant knows what case he is supposed to meet: Asia Equity Value Ltd v HQX (Group) Ltd [2021] HKCFI 2593
Illegality
14. This is the main defence of the defendant.
15. The defendant submitted that:
(1) The Original Agreement concerned transaction of small houses. It could not be seriously disputed that transactions of small houses “can be ” illegal;
(2) There were clauses which provided that the Land could be sold to a person appointed by the plaintiff, which was a typical arrangement involving nominee ding(s);
(3) There were clauses that expressly mentioned payment to ding(s).
(4) It was neither here nor there that no false declaration had been exhibited as evidence. Illegality can be established even if no false statutory declaration has yet been made, provided that the implementation of the scheme necessarily involves the making of such a declaration: Chung Mui Teck & Others v Hang Tak Buddhist Hall Association Ltd & Anor [2001] 2 HKLRD 471, at pp. 477H-478A, per Le Pichon JA; Tang Teng Hong Tso v Cheung Tin Wah [2014] 2 HKLRD 1032, at §21(3), per Au Yeung J.
16. I think there is no factual basis for the above illegality argument in this case.
17. First, the mere fact that a contractual transaction is concerned with “ding” right does not mean that there must have been illegality or breach of public policy involved in the transaction. In short, the case law is to the effect that transactions of ding houses are not ex facie illegal. It all depends on the particular facts of a case, the contents of any statutory declaration that an indigenous villager is required to make and his arrangement with the developer: Fu Kai Wa v Luk Ngai Ling Irene (unrep., HCA 3074/2001, 14 August 2006)
18. Second, where a contract is challenged by a defendant as being illegal, it is for that defendant to specifically plead his case. It is not sufficient for a party to plead that an agreement was “unlawful” or “illegal” without setting out the factual grounds in support of that pleading: Chao San San v Worldpart Industrial Limited (unrep., CACV 158/2002, 21 March 2003)
19. In the present case, however, the defendant has not seen fit to explain in his affirmation in any detail as to why the arrangement under the Original Agreement was illegal. It has to be noted that the defendant was a party to the Original Agreement. He is therefore in a perfect position to reveal the details of the relevant arrangement and to explain what the alleged element of illegality in the arrangement was. Nevertheless, apart from making bare contentions that the agreement was illegal, he has failed to provide any real particulars or evidence to substantiate his claim that the Original Agreement was illegal. In particular, he did not say that the arrangement under the Original Agreement would involve the making of any false declaration to the government or other illegal acts. In such circumstances, the illegality argument does not even get off the ground.
Other reasons to be a trial
20. The defendant relied on Caesar’s Empire Karaoke (a firm) v Lam Chuen Ip & Others (unrep., HCA 4594/2003, 24 March 2004) to contend that there were “some other reason ” for trial even if he had no triable defence. Casar’s Empire Karaoke concerned the suspected enforcement of contracts involving the control of and taking money from prostitution. The court applied Miles v Bull [1969] 1 QB 258 and held that such suspicion was sufficient to provide “some other reason for trial ” in that case (at §§35-39).
21. However, a defendant relying on the “some other reason for trial ” ground is not absolved from the duty to show that his case and his defence are credible. A defendant cannot resist summary judgment by claiming that there are circumstances requiring investigation if ultimately he simply does not have any credible basis to resist the claim: Nice Plan Development Ltd v Ke Jun Xiang (unrep, CACV 259/2014, 25 June 2015)
22. Further, in Newmax Garments Ltd v So San Ping (unrep, DCCJ 67/2007, 6 September 2007)Casar’s Empire Karaoke by observing that in Casar’s Empire Karaoke , the defendants were able to identify and there was evidence before the court to support the claim of illegality, whereas in the case before her the defendant had not been able to give any credible basis for his claim (at §§23-24).
23. The court further emphasised that in resisting an application for summary judgment, a defendant must condescend to particulars and could not make bare assertions and hope that something relevant might be unearthed should further investigations be made (at §25).
24. The court found a further distinguishing factor between Miles v Bull and the case before the court. In the former, most or all of the relevant facts were under the control of the plaintiff in that case, and the defendant had to elicit information by discovery, interrogatories and cross-examination to assist her case. In the latter, the defendant was a director and shareholder of the plaintiff at the material time and therefore had sufficient information about the plaintiff to enable him to substantiate his allegations. However, the defendant had failed to give any or any reliable particulars. This threw doubt on the credibility of his assertions. The court was therefore not satisfied, on the face of the defendant’s bare assertions, that there were suspicious circumstances that ought to be investigated at trial (at §26).
25. In the present case, given that the defendant was a party to the agreement (i.e. the Original Agreement) alleged to be illegal, he has sufficient information about the relevant arrangement to enable him to substantiate his allegations. Nevertheless, he has not provided any meaningful particulars in this regard. The present case is therefore distinguishable from Casar’s Empire Karaoke and Miles v Bull .
Claim of damages is defective
26. The defendant submitted that there were two reasons why the plaintiff’s claim was defective.
27. First, the defendant relied on a clause in the 2020 Agreement which provided as follows:
“如陳進財還回夠HKD$2,000,000給陳嬿婷時，需要將土地轉名給回陳進財”
28. The defendant therefore contended that the plaintiff was at most entitled to “HK$2,200,000 less the value of “the land” (土地) ”. As there was no information about “the land” (土地) ” before the court, the court could not assess the precise quantum of damages.
29. I am unable to accept those submissions.
(1) As stated above, there is no dispute that despite full payment by the plaintiff, the defendant has never transferred any right or interest in the Land to the plaintiff. It follows that there is no question of transferring or returning the Land to the defendant upon repayment of the Outstanding Sum.
(2) In the event that “the land ” means another piece of land, the defendant has failed to supply any particulars about this property, which he contended would affect the quantum of damages.
(3) I also agree with Mr Lam that it is not permissible for the defendant to raise these matters by way of legal submissions (rather than by affidavit evidence). It would be unfair to the plaintiff if the defendant is now permitted to raise these matters because the plaintiff will be deprived of the opportunity to address those matters by way of reply evidence.
30. Secondly, the defendant submitted that under the 2020 Agreement, the defendant agreed to refund HK$2,200,000 to the plaintiff by instalments. The first instalment of HK$200,000 should be repaid before 10 August 2020 and thereafter by instalments of HK$30,000 per month from 1 September 2020. The final instalment of HK$20,000 would only be repayable in March 2026. Therefore, when the Writ of Summons was issued on 5 July 2021, at most the plaintiff could claim HK$530,000 as the sum due from the defendant, but not the whole sum of HK$2,200,000. Further, the defendant argued that if the whole sum was payable, there should be a discount for accelerated receipt.
31. I do not agree that the plaintiff is only entitled to repayments of those instalments that have fallen due. In this regard, I accept the plaintiff’s submissions that that the plaintiff has accepted the defendant’s repudiation of the 2020 Agreement and therefore is entitled to sue for the entirety of the Outstanding Sum. However, I agree that an appropriate discount for accelerated receipt should be applied.
32. As explained by the learned editors of Chitty on Contract (34th edn):
(1) If, before the time arrives at which a party is bound to perform a contract, he expresses an intention to break it, or acts in such a way as to lead a reasonable person to the conclusion that he does not intend to fulfil his part, this constitutes an “anticipatory breach” (at §27-070).
(2) The innocent part may then “accept” the renunciation, treat it as discharging him from further performance, and sue for damages forthwith, or he may wait till the time for performance arrives and then sue (at §27-070).
(3) Under a contract for payment by instalments, no claim in respect of instalments due in the future may be brought as a claim for a debt, but if the party due to pay the instalments has committed a breach of his obligations which entitles the other party to terminate the contract, then, subject to the general rules on damages, an award of damages may be made in respect of the prospective loss of the future instalments, allowance being made for a discount on account of the earlier payment of a lump sum to be received under the judgment instead of the instalments spread over the future period (at §29-010).
33. I hold that the defendant has repudiated the 2020 Agreement. The defendant failed to make any repayment under the 2020 Agreement. By the time when the plaintiff’s solicitors issued a demand letter to the defendant on 30 June 2021 demanding for the return of the entire Outstanding Sum (the “Demand Letter ”) and when the writ was issued on 5 July 2021, the arrears of repayment were already substantial and had lasted for a lengthy period. Such failures clearly indicated either a complete inability or a complete unwillingness to perform the remaining contractual obligation for repayments of the future instalments.
34. In this regard, the defendant claimed that at all material times he was able and willing to repay the Outstanding Sum to the plaintiff. However, the defendant said he was prevented from making repayments because of the following:
(1) The defendant did not have the plaintiff’s bank account number.
(2) At all material times, he was only able to contact the plaintiff with the help of one Ms Wong, a middleman who introduced the plaintiff to the defendant.
(3) After the execution of the 2020 Agreement, in order for him to pay the first instalment of HK$200,000 to the plaintiff on or before 10 August 2020, the defendant attempted to contact the plaintiff multiples times but in vain. The defendant therefore asked Ms Wong to contact the plaintiff on his behalf but Ms Wong also could not reach the plaintiff. The defendant therefore could not pay the Outstanding Sum to the plaintiff.
35. I do not accept the above contentions:
(1) Ms Wong had the plaintiff’s bank account number when she made partial repayment of HK$400,000 to the plaintiff for the defendant on 6 May 2019. The defendant could therefore have asked Ms Wong for the plaintiff’s account number if the defendant really intended to make repayment as alleged.
(2) The defendant’s case is that he could not contact the plaintiff up until the commencement of the present action on 5 July 2021. However, whilst the defendant said in his affirmation that both he and Ms Wong had tried but failed to contact the plaintiff for a number of times in August 2020, the defendant failed to provide any particulars about what he (or Ms Wong) had done in order to contact the plaintiff for the next year or so from August 2020 up until 5 July 2021.
36. I accept the plaintiff’s submissions that by the issuance of the Demand Letter and the Writ, the plaintiff has accepted the defendant’s repudiation. As such, an award of damages may be made in respect of the prospective loss of the future instalments. On the other hand, I accept the defendant’s submissions that allowance should be made for a discount on account of the earlier payment of a lump sum to be received under the judgment instead of the instalments spread over the future period: Chitty on Contract (34th edn), at §29-010; Moschi v Lep Air Services Ltd & Ors [1973] AC 331 (HL), at pp. 356E and 358C.
Disposition
37. By reasons of the aforesaid, the appeal is dismissed save that the judgment sum in paragraph 2 of the Decision should be adjusted in light of the holdings in this judgment.
38. The plaintiff’s stance is that if the court is minded to grant a discount for accelerated receipt, she will agree to the formula proposed by the defendant in the defendant’s supplemental submissions. Parties are therefore asked to apply the said formula and agree the quantification of the damages up to the date of the Decision and to submit a draft Judgment for the approval of the court.
39. As for costs, I make an order nisi that the defendant shall pay the plaintiff the costs of and occasioned by this appeal, with a certificate for counsel, to be taxed if not agreed.
40. I am grateful to counsel for their assistance.
( Kenneth K. H. Lee )
Deputy District Judge
Mr Timothy LAM instructed by Cheung & Co for the plaintiff
Ms Christine YU instructed by Chan & Ho for the defendant