SUN LEGEND INVESTMENTS LTD v. HO YUK WAH, DAVID AND OTHERS

CACV 242/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 242 OF 2009

(ON APPEAL FROM HCA NOS. 1212 AND 2915 OF 2002)

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HCA 1212 /2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 1212 OF 2002

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AND BETWEEN

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AND

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AND BETWEEN

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(Consolidated by Order of Master Woolley dated 31 October 2003)

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J U D G M E N T

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Hon Rogers VP:

1.  This was an appeal from a judgment of Saunders J given on 18 September 2009. The matter before the judge was a claim by the plaintiffs for the payment of sums of money which had been collected by the fourth defendant, David Y.W. Ho and Company. The defendants had raised a counterclaim in respect of fees that were alleged to be due in respect of what was, almost entirely, conveyancing work. The judge dismissed the plaintiffs’ claims and gave judgment for the second and fourth defendants on the counterclaims.

2.  At the conclusion of this appeal, judgment was reserved.

Background

3.  The first defendant, Mr Ho, is a solicitor.  In 1991 he was in practice in Hong Kong.  He was a partner in Baker & McKenzie and worked in the section of that firm which was referred to as the China Practice Group.  Sometime in the early 1990’s he met Mr Peter Cheng, who from November1992 was a director of New World Development (China) Ltd and after 1994 was a director of New World Development Company Ltd (“NWD”).  NWD was a defendant to the counterclaim made by Mr Ho.  Mr Ho was concerned to secure business from companies associated with NWD, because of its position as a substantial developer.   He, evidently, cultivated Mr Peter Cheng as a client.

4.  As the judge said in his judgment, at the relevant time, solicitors undertaking conveyancing in Hong Kong were required to charge scale fees.  The common practice was that developers would require that purchasers should be responsible for the vendors’ conveyancing costs.  The net effect was that the developers would have their conveyancing costs paid by the purchasers and thus would not have to pay any solicitors’ conveyancing fees.  The solicitors, for their part, would receive scale fees.  Because property developments frequently involved a large number of premises, e.g. flats in a large block or blocks of flats, where the title and other conveyancing documentation followed a pattern, the conveyancing work was repetitive.  That was because, once satisfied as to title, the solicitors involved could safely leave the repeat sales transactions to be handled by non-professional staff.  Hence, as the judge also acknowledged, conveyancing work was often adequately remunerative even on a one-off transaction, but in respect of developments it was likely to be highly remunerative.  Because the solicitors made substantial profits in respect of conveyancing when acting for developers, they often provided other legal services free to clients.

The letter of 4 October 1991

5.  Following a meeting on 1 October 1991 between Mr Ho, Mr Peter Cheng and Mr Stewart Cheng, who were both sons of Dr Cheng Yu Tung, who through other companies was effectively regarded as holding the controlling interest in NWD, Mr Ho sent a letter that the judge recorded had been drafted by the conveyancing and construction practice groups of Baker & McKenzie.  The letter is important because the judge said at paragraph 129 of the judgment:

“The position of David Ho and the Firm was that that letter set out the terms of the agreement.”

6.  At paragraph 196 of the judgment the judge referred to the evidence of Mr Winston Zee, another partner of Baker & McKenzie, and said:

“196. What is most important however, is that in neither his subsequent witness statement, nor in evidence, did Winston Zee resile from the position he took in both witness statements, namely that the letter of 4 October 1991, provided the basis upon which Baker & McKenzie would charge the developers.”

7.  At paragraph 208 of the judgment the judge concluded:

“I am satisfied, on the balance of probabilities, that the retainers were on the basis of the FOA [“Fee Offsetting Arrangement”] as outlined in David Ho’s letter of 4 October 1991.”

8.  In the light of those findings and the background of Hong Kong conveyancing practice at the time that was accepted by the judge, I consider that the terms of the letter are important, not least because the judge would appear to have misunderstood the letter.  The letter commences:

“Dear Peter and Stewart,

Re: Conveyancing Fee – Off-setting Arrangements

Further to our meeting on October 1, 1991 regarding the conveyancing fee off-setting arrangements, I am writing with proposals for our future working relationship with the New World Group.

A. Basis of the Conveyancing Fee-Off-setting Arrangements

In Hong Kong, solicitors have managed to retain their statutory monopoly over the handling of conveyancing transactions. Furthermore, they are required by law to charge for their services on the basis of minimum scale fees calculated by reference to a percentage of the consideration. In addition, solicitors are, in many cases, at liberty to act for both vendors and purchasers, and also on behalf of mortgagors and mortgagees.

Each stage in the conveyancing process (for example purchase and sale agreement, equitable mortgage, formal transfer and legal charge) attracts a separate scale fee. Even in the case of the conveyance and a mortgage of a single property, the total amount of scale fees payable generally exceeds the fee which would be payable if calculated on the conventional time basis by a considerable margin. Large developments which generate hundreds of individual transactions based on a single set of precedent documents generate very substantial excess fees, often running into millions of dollars.

Over the years, property clients have come to recognise the substantial size of the profits earned by solicitors on conveyancing work and have sought means by which they can derive some benefit from the system. Since it would be unlawful for a solicitor either to reduce his scale fees below the statutory minima or to share them with the client in the form of rebates, certain solicitors now operate a system whereby a portion of the surplus of scale fees over notional time costs is allocated to the client in the form of free advice on other areas of law such as tax planning, construction, finance, litigation or China. Our Hong Kong office consists of over 130 lawyers and is one of the largest and most rapidly-growing local firms. I enclose an Introduction to Baker & McKenzie Hong Kong which briefly describes the different areas of practice our Hong Kong office offers. I also enclose a schedule listing the experience of Baker & McKenzie in conveyancing for large property developments in Hong Kong.

One practical problem sometimes encountered is that the client simply does not need enough free legal advice in Hong Kong to absorb the surplus within a realistic period. We have overcome this problem with some of our clients by making the surplus available to other companies within the client’s group and by providing advice not only in Hong Kong but in certain other jurisdictions through our international network of offices. I enclose a directory of Baker & McKenzie world wide offices which consists of over 1600 lawyers in 50 offices in over 30 countries throughout the world.

B. Conveyancing Fee-Off-setting Arrangements Proposal

I would now like to summarise the general principles which underly the above proposals: firstly, that we are obliged to charge scale fees for conveyancing work payable by the purchasers, which often exceed the amount which would have been payable if calculated on the basis of hourly rates; secondly, that we are prepared to make available an agreed portion of those excess scale fees to absorb fees payable for non-conveyancing work performed by us and our overseas offices generally on your behalf.

I set out below my initial suggestions for putting those principles into practice. I have tried to keep them as simple and practical as possible and would welcome your comments on them.

1.       I suggest we agree upon a percentage division of the scale fee payable in respect of each major conveyancing assignment.  Within our portion of that percentage split, we will perform in respect of that assignment the full range of conveyancing work normally included in the scale fee.  The agreed balance will be made available to you for your purpose of absorbing fees for other non-conveyancing work.

Because of the variables involved in conveyancing transactions, it is probably not in either party’s interests to agree on a single percentage figure of general application and I suggest we determine the apportionment on a case by case basis.

2.       In the case of your group, our Hong Kong office is of course prepared to make available the conveyancing fee “excess” and allow other fees incurred in Hong Kong to be carried forward against it as from the date when conveyancing work is initially committed to us.

However, given the substantial value of most of your property transactions and the lead times which are often involved, I think we would need to set a limit on the amount of non conveyancing fees which can be carried forward against an anticipated surplus, pending the accumulation of an actual surplus.  We can discuss an initial figure and review it regularly thereafter.

3.       I suggest that non-conveyancing work carried out pursuant to this arrangement is dealt with as follows:

(a)     Fees will be incurred in respect of that work at the normal rates applicable at the time it is carried out;

(b)     We will endeavour to pre-estimate the level of fees on individual assignments wherever possible, though you will appreciate that such estimates are often difficult and are to be used as guidelines only;

(c)     We will regularly inform you of fees incurred against current matters at whatever intervals are convenient to you;

(d)     We will bill you in the normal way in respect of any fees incurred in excess of the limit referred to above;

(e)     We will ask you to pay disbursements of non conveyancing matters (Counsel’s fees, etc.) as and when they are incurred.

4.       Assuming the proposals are acceptable to you I suggest we implement them as soon as possible.  We do not as yet have instructions on any property matters likely to yield a scale fee excess though you mentioned that you have a number of projects in mind.

C.        Significant Saving for the New World Group

            I would like to demonstrate the above fee off-setting arrangements with the following example.

            Based on the assumption that there are 300 units in a property development project and the average size of each of the units is 1,400 sq. ft., and the units are sold at the rate of HK$4,000 per sq. ft., the average price of a unit will therefore be HK$5,600,000.

            The estimated conveyancing fees likely to be generated will be as follows:

            Fees re sale and purchase agreements –

            HK$2,500 x 300 = HK$750,000.00

            Fees re assignments (assuming 40% of the purchases are separately represented)-

            HK$31,500 x 300 x 60% =       HK$5,670,000.00

            HK$15,750 x 300 x 40% =       HK$1,890,000.00

                                                              HK$7,560,000.00

Fees re mortgages (assuming 50% of the mortgage work of 60% of the purchasers are handled by the developer’s solicitors and assuming an average loan size of 70% of the purchase price) –

HK$24,600 x 300 x 50% x 60% = HK$2,214,000.00

Therefore the estimated total fees will amount to:

Sale and Purchase Agreements       HK$   750,000.00

            Assignments                        HK$7,560,000.00

            Mortgages                          HK$2,214,000.00

                                                     HK$10,524,000.00

            40% surplus fees to be used by the New World Group

            HK$10,524,000.00 x 40% = HK$4,209,600.00

            Based on our experience in implementing the fee off-setting arrangements for other major property developers, we should be able to provide about 40% surplus fees to be used by the New World Group for other non-conveyancing legal work.  In other words, based on the above estimation, Baker & McKenzie’s Hong Kong and overseas offices should be able to provide free legal services to the New World Group for close to the tune of HK$4,209,600.00 which amount should be considered as a significant saving for the New World Group.

            As I hope this proposal demonstrates, we are enthusiastic at the prospect of further developing our relationship with the New World Group.  I believe that there will continue to be an excellent match between your legal needs and the services which we are able to provide.

            I will assume a general coordinating role in relation to the allocation and monitoring of matters conducted within this office on your behalf and will also be responsible for implementing, from our side, whatever billing arrangement is eventually agreed between us.

            It would therefore be preferable if your instructions in relation to all new assignments were channelled through myself so that we can ensure that they are allocated to the appropriate people.

            Please give me a call when you have had a chance to consider this proposal.

            With best regards.

                                                                             Yours sincerely,

                                                                             David Ho”

9.  There was no written response to that letter.  In February 1992, Mr Peter Cheng instructed Baker & McKenzie to undertake work in respect of a substantial development being undertaken in Dongguan, Guangdong PRC (“the Dongguan project”).  There was no other document, other than the letter of 4 October 1991, evidencing the terms of the retainer of Baker & McKenzie in respect of the Dongguan project.

10.  It is pertinent to point out that it was Mr Cheng’s evidence that the project manager of the Dongguan project was a Mr Henry Yuen, who was the brother of Mr Philip Yuen, who was the senior partner of the well known firm of solicitors, Messrs. Yung, Yu, Yuen & Co.  Mr Cheng said that Mr Henry Yuen had said that his brother’s firm was willing to undertake the Dongguan project on the basis that it would only charge the purchasers and not the developer for the legal costs.

11.  In 1994 Mr David Ho left Baker & McKenzie and set up the fourth defendant.  Arrangements were made that his new firm should take over the conveyancing work for the Dongguan project.

12.  In or about 1993, the first and second plaintiffs in HCA 2915 of 2002 were set up.  There was to be a redevelopment project in the old city area in Beijing which was referred to as the Beijing New World Centre project.  Those plaintiffs engaged Mr Ho’s firm to handle the sale of the various units.  The units came available for sale in 1995 and early 1996.  On this occasion there was a Letter of Appointment dated 28 April 1995 issued by the relevant plaintiffs which set out the work which the firm was required to handle.  It was addressed to the fourth defendant.  It was apparently handed to Mr Brian Chan who was a solicitor in the fourth defendant.  At the conclusion of the list of functions to be undertaken was the following:

“Both of us agree for you to charge lawyer fees from purchasers.”

13.  The judge recorded that between January 1995 and October 2001, the fourth defendant continued to undertake work in relation to the Dongguan and Beijing projects.  It is noteworthy that in the whole of that time not only were no bills rendered by the fourth defendant to any of the plaintiffs or to NWD in respect of any conveyancing work in relation to the two projects but there was no indication of any costs which had been incurred in respect of any relevant conveyancing work.  In contrast, it is clear that New World Development (China) Ltd was invoiced in respect of a number of matters.  As an example, this court was shown a letter dated 6 March 1996 which listed a total of 10 invoices which had been rendered to different companies which were seemingly within the New World Group of companies.  They totalled more than $11 million.  This court’s attention was also drawn to bills which had been rendered and paid in respect of cancelling pre-sale contracts in relation to the Beijing project.  Those bills had been rendered and paid in 1998 and 1999.

14.  On 23 October 2001, a meeting took place in Lan Kwai Fong, between Mr David Ho and Mr Peter Cheng.  Mr David Ho’s evidence was that he requested the meeting to discuss outstanding fees in relation to the Dongguan and Beijing projects.  He said that he told Mr Cheng that there were substantial time costs outstanding which had not been offset by fees received from purchasers; he asked if some of the outstanding time costs could be paid to ease his firm’s cash flow.  Although Mr Ho did not go so far as to say that Mr Cheng agreed to make any payment, according to Mr Ho he said that it was a difficult time due to the prolonged recession.  Nevertheless, the judge recorded that Mr Ho said that it was clear throughout the conversation that Mr Peter Cheng recognised the obligation on New World Group to pay the fourth defendant’s fees.

15.  Mr Cheng’s witness statement gives the reason for the meeting: that he had heard negative news about Mr Ho’s financial situation and litigation in which he was personally involved.  He therefore thought that it might not be wise to have Mr Ho’s firm continuing to handle the projects.  The judge records that Mr Cheng told Mr Ho that the Dongguan and Beijing projects had been completed and that there would not be many more transactions in relation to the units in the future.  He said that the retainers in relation to the Dongguan and Beijing projects should therefore be terminated.  Mr Peter Cheng’s evidence was that Mr David Ho told him that there were no outstanding financial matters in relation to the two projects.

16.  On 29 November 2001, the fourth defendant sent two bills to NWD under cover of a letter, which could hardly be described as being friendly.  The letter was marked to the attention of Mr Peter Cheng.  It required payment of the amounts said to be due by 31 December 2001, and concluded by threatening legal proceedings should the bills not be paid.  It was not the sort of letter that could be expected to be written after an amicable conclusion of work for a client.

17.  In relation to the Dongguan project, the bill covered the period 16 December 1994 to 21 November 2001, and was for professional charges of $7,068,815, together with sundry disbursements of $148,346, making a total sum of $7,217,161.  The bill was almost entirely in respect of conveyancing fees.  There was then a deduction of $2,996,455, in respect of monies received from purchasers/mortgagors, leaving a balance due of $4,220,706.

18.  In relation to the Beijing project the bill covered the period 16 December 1994 to 21 November 2001.  The amount of the professional charges was $11,519,680 and other costs brought the total to $12,047,913.  There was a deduction of $5,731,900, being monies received from purchasers/mortgagors.  The balance said to be owing was $6,316,013.  In respect of this bill there were some items other than strictly conveyancing although they were clearly related to the Beijing project.  However, there were no separate figures given in respect of that.

19.  On 2 January 2002, the fourth defendant sent a revised bill in respect of the Beijing project in which the sum of $493,718.72 was credited as being part settlement from purchase money paid by purchasers together with interest.  Similarly in respect of the Dongguan project a revised bill was sent giving credit for $3,659,521.37 on the basis that it was part settlement from purchase money paid by purchasers together with interest.

20.  The bills were further revised in June 2002.  In respect of the Beijing project the balance said to be owing was $4,979,111.28.  In respect of the Dongguan project the bill was also revised, the new total being $589,619.37 was said to be due from the fourth defendant to the plaintiffs.

21.  The plaintiffs for their part, wrote letters in early 2002 claiming amounts that were owing to them in respect of payments which had been received by the fourth defendant on their behalf.  Those letters were responded to on the basis that the fourth defendant had taken the money as part payment of the bills which have been rendered.  The proceedings in these actions were commenced by the plaintiffs in March 2002.  After the defendants had given notice of intention to defend the proceedings continued in the normal way.

The judgment below

22.  As already noted the judge held that although the fourth defendant had not written specifically setting out the fees that would become payable in respect of the two projects, the retainers were on the basis of the fee-offsetting arrangements as outlined in the letter of 4 October 1991.  There was no dispute between the parties that there had been noagreed percentage split of the conveyancing fees.  It was the plaintiffs’ case that they should not have been charged any fees in respect of conveyancing in relation to the two projects since all conveyancing fees should have been paid by the purchasers on a scale fee basis.  The judge recorded the defendants’ case:

“71. The case for the Firm is that it had been agreed between Peter Cheng of behalf of NWD and its subsidiaries, and David Ho, initially on behalf of Baker & McKenzie, and subsequently in his own capacity with the Firm, that the Firm’s time in relation to instructions received on either project would be charged on a time basis, with the cost of the time being met pursuant to the FOA, as set out in paragraph 22 above.

72.       At the end of the day, the issue is simply one of credibility.  ….”

23.  There appears to be some confusion about that because later at paragraph 145 of the judgment the judge said:

“145. It is appropriate to note that this pleading does not address the key issue, namely the contention by the developers that the proceeds of conveyancing fees would meet the cost of the pre-conveyancing work. The Firm does not dispute that the joint-venture partners would not be liable to legal fees in relation to the sale of units in the Project. The contention of the Firm is that they are entitled to be paid for their work in respect of the pre-conveyancing matters, if the conveyancing fees are insufficient to cover that cost.”

24.  In another passage, at paragraph 180 the judge said:

“180. It is right, as David Ho acknowledged, that in respect of PRC conveyancing the so-called surplus expected to be derived might be less, and there may even be a shortfall in which event time costs would need to be settled. But that is merely a contingency and does not make the arrangement inherently improbable.”

25.  The judge appears to have decided the matter on the basis that he accepted that Mr Ho was a credible witness.  He refuted what he termed was the concerted attack on Mr Ho’s credibility.  In contrast he considered that the plaintiffs and, in particular, Mr Peter Cheng had acted inconsistently on receipt of the bills with the suggestion that the conveyancing would be conducted free of charge to the plaintiffs.

26.  It remains to be said that the judge dismissed the counterclaim against NWD, as opposed to that against the plaintiffs on the basis that there was no evidence that there had been any arrangement between NWD and the fourth defendant.

This appeal

27.  On this appeal Mr Pow SC, who appeared on behalf of the plaintiffs in this court, but not in the court below, pointed out, first of all, that any suggestion that there would be conveyancing charges on a time basis was wholly inconsistent with, first of all, the letter of 4 October 1991 and, secondly, the Letter of Appointment of 28 April 1995.

28.  In this respect, I consider that he is clearly correct.  The letter of 4 October 1991 makes no mention of charging conveyancing fees on a time cost basis.  On the contrary, the fundamental basis of the arrangement proposed in that letter was that there would be no conveyancing fees charged to the developers.  The purchasers would be charged scale fees.  There would be an agreed notional split of the fees.  All the conveyancing charges would be absorbed by the solicitors under their portion of the agreed split.  The developers’ portion of the agreed split would be allocated to other “non-conveyancing” matters.  In my view, there is no other way of reading the first paragraph of the proposal contained in that letter, which for convenience I set out again:

“I suggest we agree upon a percentage division of the scale fees payable in respect of each major conveyancing assignment. Within our portion of that percentage split, we will perform in respect of that assignment the full range of conveyancing work normally included in the scale fee. The agreed balance will be made available to you for your purpose of absorbing fees for other non-conveyancing work.”

29.  Moreover, if a solicitor charges scale fees, as the letter clearly imports that they should do, there is no scope for supplementing that with fees on a time cost basis.  Scale fees are set figures which are charged for a particular piece of work and there can be no addition to, or topping up of, scale fees.  It is simply a contradiction in terms to say that there could be.

30.  The fact that there was no agreed split of the fees simply meant that the solicitors could keep all the scale fees charged to the purchasers and did not have to give any credit in respect of non-conveyancing matters.

31.  The bill which the fourth defendant rendered in respect of the Dongguan project was, as already noted, in respect of conveyancing matters.  There were a few items in the Beijing project bill that might be said to be non-conveyancing matters on a very strict view, but the overwhelming bulk of the bill was clearly in respect of conveyancing.  However, as indicated, even those matters were clearly related to the Beijing project.  The fourth defendant had never previously charged for those items and had never indicated that charges had been incurred in respect of them.  In contrast, as already indicated, the fourth defendant had charged and been paid for work in relation to cancellation of sales related to the Beijing project.  That work might be categorised as non-conveyancing and had been carried out years after the items in the Beijing project bill.  In the circumstances one can only conclude that it had all along been intended to include the items at the beginning of the bill in respect of the Beijing project as part of the conveyancing work in relation to that project.  The fourth defendant was not entitled to charge the developers in respect of conveyancing in relation to either of the two projects.

32.  I do not propose to deal with each and every matter which the judge referred to as undermining the plaintiffs’ and, in particular, Mr Peter Cheng’s case.  It suffices to say that in respect of many of them the judge was clearly under a misapprehension as to the relevance or applicability of the points sought to be made.  For example, the judge considered that it was relevant that the fees charged to a joint-venture between NWD and Shun Tak Holdings Ltd appeared to be on a time cost basis.  It is noteworthy that in that respect the letter was written not to Mr Peter Cheng or NWD but to Ms Daisy Ho, who was, of course, acting for Shun Tak Holdings Ltd.  What fees were charged in respect of some totally different project, with a different company that was seemingly in charge of the project and joint-venture, appears to me to be irrelevant.

33.  Even more incongruously, the judge referred to the fact that fees had been charged to and paid by Chow Tai Fook Ltd. in respect of that company being a mortgagee of the some of the properties that were part of the developments of the two projects.  In this respect the judge said at paragraph 167 of the judgment:

“It is right that the mortgages were held by Chow Tai Fook, and not NWD, but it needs to be remembered that Chow Tai Fook is the Cheng family private company which is a substantial shareholder in NWD. That Chow Tai Fook held the mortgages was nothing more than a matter of administrative convenience, and undoubtedly had other financial advantages to both NWD and Chow Tai Fook. Plainly in the whole of the circumstances of the way in which NWD operated, if the arrangement was as Peter Cheng asserted, he would have been entitled to say that no fees should be charged to Chow Tai Fook, as the Firm had been paid by receipt of the conveyancing fees.”

34.  I would simply say that when one considers that NWD is a publicly listed company, the judge’s approach to piercing the corporate veil, is not something which I consider a court is entitled to do in circumstances such as this.  Even a major shareholder is not entitled to take the benefit of a contract made by a company with a third party.  When considered in that light, the proposition quoted does not bear analysis.

35.  The judge also drew an adverse inference and rejected Mr Peter Cheng’s evidence in certain respects on the basis that the financial controller of NWD was not called to give evidence as to what Mr Peter Cheng had said to her when the fourth defendant’s bills had been sent to the plaintiffs.  In this respect, I would simply say that I cannot see how the financial controller’s evidence in this respect would be admissible.  Neither do I share the judge’s view that Mr Peter Cheng’s reaction on receiving the two bills in November 2001 was inconsistent with his view that the developers would not be charged conveyancing fees.  The bills themselves date back 6 years.  There had been no interim bills rendered in respect of any conveyancing matters, but there had been bills in respect of non-conveyancing matters that had been rendered and paid.  Mr Peter Cheng’s stated reaction is not surprising and I do not consider it right that the judge should have ignored his evidence that he had told the financial controller that the developers would not be paying the bills simply because the plaintiffs did not attempt to call the financial controller to give inadmissible evidence.

36.  Although, for the reasons I have already given I consider that Mr David Ho’s contention that the fourth defendant was entitled to charge the developers on a time cost basis despite having undertaken to secure their fees from the purchasers on a scale fee basis should have been rejected, it is appropriate to say something about the judge’s approach to the credibility of Mr Ho.  He dealt with the matter in paragraphs 78 to 126 of his judgment.

37.  The judge’s conclusion was that he considered that what he referred to as a concerted attack on the credibility of Mr Ho failed.  Indeed, he considered that his decision turned on the credibility of Mr Ho.  In my view, the judge’s approach to Mr Ho’s credibility is a matter of grave concern.

38.  Central to what the judge referred to as the concerted attack on Mr Ho’s credibility was reference to other litigation in which Mr Ho had been a defendant.  One such case had been Mak Kang Hoi v Ho Yuk Wah David HCA 14674 of 1999.  In that case Ms Recorder G. Li SC gave judgment (12 November 2004) against Mr Ho for $32 million and dismissed his counterclaim.  It is unnecessary to go through the full details of that judgment but one passage at paragraph 74 of the judgment exemplifies the nature of Mr Ho’s conduct in relation to that case.

“74.     These letters demonstrate the deviousness of the defendant’s character.  Both letters commence with the words “As discussed, I shall pay you HK$___________ by the enclosed cheque no. ________ on the following basis:”  Yet, as the defendant and the plaintiff both say, there was no further contact of any kind between the plaintiff and the defendant, after the defendant had telephoned the plaintiff to complain that his threats had upset the defendant’s secretary.  This had all taken place before the plaintiff left the handwritten note on the Bloomberg releases.  Thus, there was no discussion of any kind between the plaintiff and the defendant as to any continuing investment on the same terms as before.  The defendant had told the plaintiff he would not deal with him again and all dealings would be with Clement Loong Ping Kwan.  The statement at the beginning of the letters was thus plainly untrue, known to the defendant to be untrue and completely inconsistent with the note which the plaintiff left on the Bloomberg release on 29 May 1998.  Yet, the defendant seeks to rely on them as agreements binding on the plaintiff for the continued investment of HK$32 million.  I find that there were no such agreements between the plaintiff and the defendant and that the plaintiff signed to acknowledge receipt of the cheques.  The plaintiff did not agree to wait any further for a listing of the GBRE shares.”

39.  That judgment was upheld both in this court and in the Court of Final Appeal.  Indeed, the above passage was quoted verbatim by Mortimer NPJ at paragraph 94 of his judgment, [2007] 10 HKCFAR 552 at 581.  All the other members of the court agreed with Mortimer NPJ’s judgment.  Immediately after quoting that paragraph he said:

“These strictures are entirely justified and Counsel has not demonstrated otherwise.”

40.  The recorder’s judgment in that case was one of the matters relied upon by the plaintiffs’ counsel in the court below; this court’ s attention has been drawn to the relevant skeleton argument.  Unfortunately, although when asked whether the judge had considered the judgment in that case, Mr Chan SC, who appeared for the defendants in this court but not in the court below, averred that the judge had done so in some detail.  It is clear that the judge had not done so.  He said at paragraph 93 of the judgment:

“The judgment arose out of a commercial dispute in which the plaintiff, a Mr Mak, and David Ho were personally involved. It has not been necessary for me to consider the content of either the judgment at first instance or in the Court of Appeal in detail, because no point was made as to any finding against David Ho in those judgments that might have gone to his credibility in this trial. The sole point sought to be made was that David Ho had a judgment of $32 million against him, which remained unsatisfied, and he was not prepared to come to Hong Kong for fear of enforcement proceedings.”

41.  Clearly the judge failed to understand the point that was being made.  It was not confined to the fact that Mr Ho was seeking to avoid his liability under the judgment by fleeing the jurisdiction.  Had the judge considered the judgment he would have been alerted to the fact that it had been proved at trial and confirmed on appeal, right up to the Court of Final Appeal, that Mr Ho had a devious character.

42.  Another judgment to which the judge’s attention was specifically drawn was that of Nissho Iwai Hong Kong Corporation Limited v Saint Joy International Company Limited and Ho Yuk Wah, David (13 November 2000, HCA 1747/2000).  In that case, Mr Ho was sued as a guarantor of a loan which had been obtained by the first defendant, his own company, from the plaintiff.  Amongst the defences that were put up on Mr Ho’s behalf was that a relevant notice had been served, not by the plaintiff, but by the plaintiff’s own solicitor.  Summary judgment was given under Order 14 and the judge there had little difficulty in dismissing the other defences and counterclaim both on the ground that there had been no basis for the defendants to allege that there had been some kind of joint-venture between themselves and the plaintiff, which was in effect a money lender, but also on the ground that there was manifestly no damage occasioned by anything that it was alleged that the plaintiff had done.  It was in those circumstances that Deputy High Court Judge Whaley said:

“In my view the defences and counterclaims raised are indeed “practically moonshine”, and should not be allowed to delay any longer of the plaintiff’s clear entitlement to repayment of the loan with interest and costs in accordance with the loan agreement and the guarantee.”

43.  Given the terms of the judgment, the sort of defences that were raised and the conclusions to which the judge arrived, the judge in that case could have equally used the word “bogus”.

44.  The judge below discounted the seriousness of a solicitor who had raised personal defences that had been treated with such disdain partly on the basis that Mr Ho had engaged senior counsel to argue the case and secondly on the basis that Mr Ho had paid the judgment debt.

45.  I, for my part, having considered Deputy High Court Judge Whaley’s judgment, cannot subscribe to the view that the expression he used was not in a “pejorative” sense and was not intended to be a personal criticism of the defendants.  It might, as the judge below said, be a reflection by the judge in well-known terms of the strength of the arguments, but it was, nevertheless, acerbic criticism of false arguments that had been raised on a personal matter by a solicitor.

46.  Finally, on this aspect it is necessary to refer to the fact that Mr Ho admitted that he had gone to Beijing and remained there and refused to come back to Hong Kong, even to give evidence, as the judge said, “for fear of enforcement proceedings.”  The judge dismissed any criticism of Mr Ho in this regard in paragraphs 94 and 95 of the judgment where he said:

“94. David Ho did not resile from those facts in any way, but frankly acknowledged them. His evidence was that if he had the funds available he would make payment on the judgment. In the light of his payment of a US$4.1 million judgment there was no reason to doubt that evidence. The mere fact that a man has a judgment against him does not, necessarily, by itself, render him unworthy of belief. Neither does the fact that he has not paid that judgment, if he frankly acknowledges the debt and expresses a believable willingness to pay it, if he has the funds.

95.       David Ho’s failure to meet this judgement and his consequent unwillingness to come to Hong Kong for fear of enforcement proceedings were, in the light of his frank acknowledgement of the circumstance, mere facts, which did not detract from his creditworthiness.”

47.  I regret to have to say that anybody, let alone a solicitor, who flees the jurisdiction in order to avoid his judgment creditors is not only a coward but disreputable.  Not only is he not fit to be a solicitor but his actions reflect badly on his creditworthiness.  One might add that for all Mr Ho’s protestations that he was willing to pay the judgment debt, which by now would presumably be significantly more than $32 million, he not only dissipated his own money on legal costs but caused the plaintiff to spend his money, probably running into several million dollars, in legal fees fighting a case that Mr Ho should have conceded at the outset.

48.  In summary, whilst this court is very slow to differ from a judge below on questions of fact and will only do so if satisfied that the decision in the court below was in error and, furthermore, this rule must apply even more rigorously to questions of credibility, I have no doubt that in this case it is necessary for this court to differ from the judge in relation to Mr Ho’s credibility.  Had the judge below given proper consideration to the judgments to which his attention had been drawn he would inevitably have come to the following conclusions and warned himself:

A.   That Mr Ho was a devious character;

B.    That Mr Ho was given to raising defences which were practically moonshine and

C.    That Mr Ho was prepared to go to the length of disgracing himself and his profession to avoid his legitimate creditors.

Conclusion

49.  In conclusion I would accordingly allow this appeal, set aside the judgment below and make the orders as sought in the amended notice of appeal.

50.  In addition, as discussed at the hearing, there were 13 box files of documents that were copied for the hearing of this appeal at the insistence of the defendants’ solicitors.  There was no justification, still less need for the documents.  Only a very few pages were referred to.  In order to mark the court’s disapproval of such unnecessary wastage to time and resources, this court will make an order that the costs of the preparation of the 13 “D” box files should be borne by the defendants on a solicitor and own client basis.  If the defendants consider that those costs should be borne by the solicitors personally then they are free to make application in that regard.

51.  The orders as to costs will, as is usual, be made nisi.

Hon Le Pichon JA:

52.  I agree with the judgments of Rogers VP and Kwan JA and the orders proposedby Rogers VP.

Hon Kwan JA:

53.  I agree with the Vice-President this appeal should be allowed and with the orders he proposes to make in paragraphs 49 to 51 of his judgment.  I wish to add a few words of my own as we are reversing the trial judge’s conclusion on findings of fact and as the Judge had given a detailed analysis of the evidence in a lengthy judgment.

54.  The central issue that was required to be resolved at trial was the terms of payment of the solicitors’ fees for work done in the Dongguan project and the Beijing project (paragraph 68 of the judgment).  The position of David Ho and the fourth defendant was that the letter of 4 October 1991 set out the terms of the agreement (paragraph 129 of the judgment).  That was the conclusion reached by the Judge, who stated in his summary of findings that the fee offsetting arrangement (“FOA”) as set out in that letter was the agreed basis upon which both Baker & McKenzie and the fourth defendant would be remunerated with respect to legal work undertaken on the two projects (paragraph 273(1) of the judgment).

55.  That being the case, if it is demonstrated that the Judge had misconstrued the single most important piece of evidence central to the case, his conclusion on the facts cannot stand.  This was one of the examples mentioned in Ting Kwok Keung v. Tam Dick Yuen [2002] 3 HKLRD 1 at 14C and F in which an appellate court is entitled to interfere with the trial judge’s findings of primary fact, as the judge “had misdirected himself as to the effect of certain evidence which he understood to support his conclusion.”

56.  The Judge had noted in paragraph 71 that the agreement alleged by the fourth defendant was that “the Firm’s time in relation to instructions received on either project would be charged on a time basis, with the cost of the time being met pursuant to the FOA, as set out in [the letter of 4 October 1991].”  He held in paragraph 74 that the agreement reached in respect of the retainer for the Dongguan project (it was common ground the Beijing retainer was on the same terms) was that “Baker & McKenzie would undertake such legal work as Peter Cheng may require in respect of the Dongguan project, that legal work to be charged by Baker & McKenzie on a time basis, that charge to be offset by surplus conveyancing fees earned by Baker & McKenzie in acting as solicitors to the vendor developers upon the sales of units in the Dongguan project, which fees were to be paid by purchasers of those units.”

57.  The Judge further set out his understanding of the FOA with regard to the two projects in these parts of the judgment:

“114. … Quite plainly, however the fee arrangement was formally structured, the reality of the situation was that the solicitor was content to accept the conveyancing scale fee that he received for acting for the developer on the sale of the individual units. He would do so and not render any bill to the developer for other work done, because the total amount of money that he received through that source was expected to be at least sufficient to meet the total cost that he had incurred in respect of all work undertaken for the developer. That work included pre-conveyancing work directed to the development, and the conveyancing work undertaken, on a time basis.

115.  In simple terms, first, on a time basis, a portion of the scale fee was applied by the solicitor, on a notional hourly basis, to the work undertaken for which the scale fee was received.  Then, second, the ‘lucrative super profits’, or the portion of the scale fee in excess of the time cost of the work undertaken, was applied, again on a notional hourly basis, to the time spent on other work in the development, for the developer, for which no account would be sent to the developer.”

58.  On the basis that the fourth defendant was to charge for legal work done in the two projects on a notional time cost basis, and as there was no surplus derived from conveyancing fees paid by purchasers in the projects but a shortfall instead, the Judge held the plaintiffs liable to pay the bills rendered in respect of the time costs of the fourth defendant.

59.  The Judge’s understanding that the fourth defendant was entitled to charge for work done in the two projects on a time cost basis was contrary to the terms proposed in the letter of 4 October 1991, which was found by him to be the agreed basis upon which the solicitors would be remunerated for legal work undertaken on the two projects.  The terms of that letter are clear, and there is no other way of reading it.  By that letter, the solicitors would charge only scale fees, not notional time costs, for which they would perform “the full range of conveyancing work normally included in the scale fee.”  It is quite clear from the example given in part C of the letter to illustrate how the proposals worked that the “surplus fees” envisaged in the FOA was the percentage division to be agreed upon of the scale fees generated, not the difference between scale fees and notional time costs as understood by the Judge.  And, contrary to the submission of Mr. Chan SC, the FOA as set out in the letter did not provide a mechanism by which time charges were to be paid for conveyancing work in the two projects.

60.  The Judge was plainly in error in thinking that the letter of 4 October 1991 was consistent with and supportive of the fourth defendant’s assertion that it was entitled to charge time costs for work undertaken on the projects.  He went wrong as to how “surplus conveyancing fees” were to arise.  This error undermines his analysis and assessment on factual issues resting on the relative credibility of witnesses, as dealt with in the judgment of the Vice-President. Given his finding that the proposals in the letter formed the agreed basis upon which the fourth defendant was to be remunerated, the ineluctable conclusion must be that the fourth defendant was to charge only scale fees from the purchasers for conveyancing work in the projects. It was not entitled to deduct sums from fees paid by the purchasers and to apply the same towards time charges for conveyancing work.  Its alternative case on implied term and quantum meruit must also fail, as there is no room for an implying a term of remuneration inconsistent with the express term, which was to charge scale fees and only from the purchasers.