EVER-LONG SECURITIES CO. LTD. v. WONG SIO PO

HCA625/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 625 OF 2001

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J U D G M E N T

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1. This is an action commenced by writ of summons alleging breach of contract in respect of which the sum of $648,973.15 together with interest and costs is claimed by the plaintiff.

2. On 29 January at the conclusion of the plaintiff's case Mr Chu, for the defendant, made a submission that there was no case for the defendant to answer and he made it clear that he would be calling no evidence for the defence.

3. The statement of claim filed by the plaintiff in February 2001 sets out, inter alia, the following :

"(1) The Plaintiff is a stock brokerage firm and is a member of the Stock Exchange of Hong Kong Limited.

(2) By a Margin Client's Agreement ('the Agreement') signed by the Defendant with the Plaintiff, the Defendant requested the Plaintiff to open one or more margin accounts with the Plaintiff for the purpose of trading in securities and the Plaintiff agreed to open and maintain such margin account (s) and act as an agent for the Defendant in the purchase and sale of securities subject to the terms and conditions of the Agreement.

(3) Pursuant to the Agreement, the Plaintiff .... opened a margin account No.M0006365 (C009) ('the Margin Account') for the Defendant."

[I interpose here simply to lay emphasis upon the words "and act as an agent for the defendant"]

4. The statement of claim then proceeded to recite the relevant terms of the so-called agreement and it concludes as follows :

"As at 27th December 2000, the Margin Account has shown a debit balance of H$648,973.15.

Despite repeated demands, in particular, by a letter dated 28th December 2000 from the Plaintiff's solicitors, the Defendant has failed and still fails to pay the sum of HK$648,973.15 or any part thereof."

[Again I interpose, by way of explanation, to say that on 15 December the debit balance was $1,333,047.73 which balance was reduced on that day in consequence of a cash payment/deposit of $700,000.00 received by the plaintiff from one Pang Man Kin about whom I shall say more later.]

5. Following upon a request for further and better particulars of the statement of claim the defendant, on 21 August 2002, filed an amended defence which, in addition to denying those matters set out in paragraph 3 above, alleged (inter alia) the following :

"(a) .... various positions of all the signed documents were undated and left blank, in particular, the Agreement was not witnessed and the Declaration section was not signed by any Registered Person.

(b) Further or alternatively, if the Agreement is legally binding against the Defendant, .... which is denied, the Defendant avers that the Plaintiff .... or its agents or servants:-

(i) did not meet with and see the Defendant in person at the material times;

(ii) never caused any of its agents or servants to explain the risk of margin trading to the Defendant;

(iii) The Defendant avers that the sole purpose of opening up such an account is to evade the various regulatory requirements of the regulatory bodies, which included, inter alia, the United Stock Exchange of Hong Kong ('SEHK') and the Securities and Future Commission of Hong Kong ('SFC');

(iv) The Plaintiff being a market person is subject to the various rules and regulations of the SEHK and SFC. Such omissions were grossly in breach of the various mandatory rules of the SEHK and SFC;

(v) In the premises, such an account was a sham. It was intended to escape the various regulatory bodies likely surveillance from time to time. Alternatively, the said Agreement was void for illegality; and

(vi) The Defendant further pleads that there was never any intention to create legal relationship to have a binding Agreement for the purpose of carrying on trading with the Plaintiff. The Plaintiff knew, or ought to have know, that ever since the account was opened, the Plaintiff, failed and continued to fail to exercise due care and diligence to the said account of the Defendant. The Plaintiff was in breach of the code of conduct as a financial adviser or investment dealer as stipulated by the SFC.

(c) .... The Defendant further avers that the Agreement or any of its terms contained therein ceases to have any legal effects for the reasons aforesaid. ....

.... the Defendant avers that: -

(1) ... the Margin Account traded only one share, Wah Lee Resources Holdings Limited ('Wah Lee') ...

(2) He was never asked to give nor had he given any instructions to the Plaintiff, or its agents or servants to execute any of the transactions, either as claimed, or at all. In particular, the Plaintiff claimed that over 60 million of shares were traded through the account, which amounted to more than 2% of the total paid up shares of Wah Lee.

(3) The Plaintiff, being an investment dealer was fully aware of the 10% disclosure threshold as stipulated in sections 4 and 6 of the Disclosure of Interest Ordinance (Cap.396, Laws of Hong Kong). The plaintiff, in the premises, on all these purported transactions, had only one objective to achieve, in the circumstances, that is, to shield behind the shadows of the Defendant.

(4) If the Agreement is binding, which is denied ... the plaintiff acted either recklessly or negligently so as to turn a blind eye to the activities of the said account, causing damage to the Defendant.

(5) He did not make any payment at all on 29th and 30th November 2000 or any time thereafter [nor was he asked for such payment and he had never been informed by the plaintiff that a credit facility of HK$2 million had been granted to him].

(6) In the premises, the Agreement is void for breach of public policy. Alternatively, it was an Agreement entered into with [the] purpose of circumventing any inquiry of the regulatory bodies ....

(7) The Defendant particularly pleads that he had not placed any order either as claimed, or at all. The purported transactions were a sham ...

(8) Further, the Plaintiff was in breach of its fiduciary duties ... to the Defendant (if the Defendant was a genuine client which is denied) in disposing of the shares of the Defendant without informing him on or about 15th December 2000 of such disposal."

6. In its amended reply dated 30 October 2002 solicitors for the plaintiff, inter alia, stated the following :

"(i) In or about 27th November 2000, a Mr. Pang Man Kin ('Mr. Pang') requested the Plaintiff's account executive, Mr. Tam Cheuk Hong to meet with Mr. Pang's friend, Mr. Yeung Ming Keung ('Mr. Yeung') at a Restaurant in Shun Tak Centre, Sheung Wan, Hong Kong.

(ii) At the said meeting, Mr. Yeung told Mr. Tam that he would like to open a security margin trading account with the Plaintiff to trade the shares of Wah Lee Resources Holdings Limited and Mr. Pang would take care of all the share dealing transactions in this account to be opened by him.

(iii) Mr. Yeung gave Mr. Tam a namecard showing he was the Deputy General Manager of a company known as Jiu Feng International Company Limited. Finally, Mr. Yeung told Mr. Tam that he would send somebody to collect from the Plaintiff the necessary forms and documents for opening the account and that a Ms. Rita Chan who was his subordinate could be contacted in relation to the matter.

(iv) On 28th November 2000, a female messenger who represented herself as coming from Jiu Feng International Company Limited came up to the Plaintiff and collected the account opening documents.

(v) On 30th November 2000, the same female messenger brought back the account opening forms and documents to the Plaintiff and the Plaintiff noted that the name subscribed in the Agreement and other account opening forms was that of the Defendant.

(vi) Mr. Tam immediately rang up Mr. Pang to ascertain if there was a mistake but obtained Mr. Pang's confirmation that the account was to be opened in the name of the defendant.

(vii) On the same day of 30th November 2000, Mr. Tam gave a call to the said Ms. Rita Chan asking for the Defendant's residential address as what was put down in the account opening documents was an office address and requesting her to ask the Defendant to sign on some of the account opening forms where his signature was missing.

(viii) The said Ms. Rita Chan faxed to the Plaintiff on 1st December 2000 copy of HSBC's statement of credit card/charge card account to the Defendant showing his residential address.

(ix) On 1st December 2000, the same female messenger brought back to the Plaintiff those account opening documents that previously lacked the Defendant's signature apparently duly signed by the Defendant together with a stamped Instrument of Transfer and the sold and bought note in relation to 20 million shares of Wah Lee Resources Holdings Limited transferred to the Defendant on 29th November 2000 at a price of 0.217 per share.

...

(x)	a) On 6th December 2000, Mr. Tam asked Mr. Pang to make margin payment after which it was noted that the sum of HK$200,000.00 and HK$300,000.00 were deposited into the Margin Account on 7th December 2000 and 9th December 2000 respectively.
	b) On 15th December 2000, Mr. Pang gave cash of HK$700,000.00 to Mr. Tam as partial settlement of the debit balance of HK$1,333,047.77 shown in the Margin Account on 13th December 2000.
	c) The Defendant knows or ought to have known of the credit facility granted to him by the Plaintiff ..."

7. I have recited those pleadings at some length because they, in part, reflect the evidence given by the sole witness for the plaintiff and because on the first day of this trial Ms Ng, for the plaintiff, made an application to amend the statement of claim alleging that Pang Man Kin and/or Yeung Ming Keung had traded in the account in the name of the defendant as his agent or, alternatively, that the defendant had permitted and induced the plaintiff to believe that he (the defendant) had "authorized and/or consented to the trading activities under the defendant's margin account resulting in the plaintiff's loss and damages" and he (the defendant) was thus estopped from denying his liabilities.

8. In the exercise of my discretion, given the substance of that application and its very lateness, I refused it. In doing so, I took fully into account those principles recited in the judgment of the Court of Appeal in Tang Kam Wah & Others v. Tang Ming Yat & Another, CACV522/2000. The proposed amendment, in reality, sought at the very last moment to completely recast the plaintiffs' case in an attempt to meet the amended defence which had been pleaded six months beforehand.

The evidence for the plaintiff

9. Tam Cheuk Hong gave evidence largely consistent with his witness statement and as is set out in paragraph 6 above. Perhaps more importantly in the light of the "no case" submission he said the following :

(a) Credit facilities would normally be offered to new clients of his company in the range of 10-20% of the value of the collateral put forward by that client.

(b) Prior to December 2000 neither he, nor his company, had had any dealings whatsoever with the defendant. The defendant was unknown to him.

(c) The very limited information concerning the defendant was provided by Pang Man Kin or by persons apparently on his behalf.

(d) Credit in the sum of $2 million was provided to the defendant.

(e) The first time that he had any direct contact with the defendant was on 16 December 2000 after the shares in the account in the name of the defendant had been disposed of by the plaintiff.

(f) He had had no contact at all (prior to 16 December 2000) with the defendant, and he had dealt and traded at all times upon the instruction of Pang Man Kin with whom he was in frequent contact and from whom he sought confirmation following each dealing in the shares in the account.

(g) When he contacted the defendant on 16 December and thereafter, the defendant professed to know nothing about what had taken place - in particular about how the account in his name had been used.

(h) He first met the defendant "face to face" on 14 March 2001 when the defendant told him that he wanted to settle the matter and that "both sides should be responsible" - by which he (Tam) understood the defendant to mean that Tam was at fault and in breach of the SFC code by (inter alia) not meeting him "face to face" and giving him appropriate advice.

(i) He accepted that he had been negligent in this matter; that he was aware of the SFC code in respect of the opening of a margin account but that nevertheless he had not met the defendant "face to face" and he had not given him appropriate advice as to the possible consequences which might arise from the opening and operation of the account.

(j) In relation to the "Margin Client's Agreement" [upon which this whole action is based] Tam Cheuk Hong agreed that :

(i) the name of the defendant had been omitted and the agreement was undated;

(ii) that whilst he had signed as a witness to the client's signature he had not in fact witnessed any such signing, and that he had only signed as such because the signature before him looked like the signature attributed to the defendant on a document produced to him by a third party;

(iii) the signature of the party who (on the face of the document) signed on behalf of the plaintiff as a party to the contract had not been witnessed and it is not known when he or she signed that document; and

(iv) that he had been negligent in doing what he had done in relation to this account, because he had allowed himself to be impressed by the value of the apparent collateral put forward by (or on behalf of) the defendant and that in consequence led him to ignore the SFC requirements set out in that commission's code. Indeed, in evidence before me he said this : "I knew I had never met/seen the defendant so his signature was very important to us".

10. Further, in cross-examination, Tam Cheuk Hong told me, (inter alia), the following :

(i) when he met Pang and Yeung on 27 November 2000 no mention was made of the defendant whatsoever;

(ii) that the trading in the "defendants" account lasted only between 1 to 13 December and that the "bought and sold" notes had not been disclosed either to the defendant or to the court albeit that monthly statements had been;

(iii) that Pang was a client of the plaintiff who had his own account with the plaintiff, and that he traded on that account during the relevant period in the same shares which concerned the defendant's account; that Pang gave instructions to Tam concerning trading both in respect of his own account and in respect of that in the name of the defendant;

(iv) that there was no confusion in respect of which account the trading was done because Pang confirmed, upon the completion of each share transaction concerning Wah Lee Resources Holdings Limited, which account that transaction was to be attributed to;

(v) that investment in the Growth Enterprise Market is very risky and, as a consequence, the regulations provide that investors must be advised "face to face" concerning such risks. He had not advised the defendant about such matters and accordingly the fact that the defendant may have signed the Risk Disclosure Statement of Margin Account (which is Annex I to the Margin Client's Agreement) he (Tam) had not given the required advice despite the fact that his (undated) signature on that annex might suggest otherwise;

(vi) that he assumed that the "financial data sheet" (page 36 in the document bundle) referred to the defendant albeit that (again on the face of the document) it related to nobody in particular;

(vii) that, despite the blanks - or non entries - in the documentation, he was not put on enquiry and he relied solely upon his assumptions; upon the apparent fact that the defendant had put forward collateral worth some $4 million and that he was a company director, in recommending to his credit department that an account in the name of the defendant should be opened;

(viii) that in his view the trading in Wah Lee Resources Holding Limited was "highly risky"; that the first day of trading in those shares (on the account in the name of the defendant) resulted in a loss of $2 million but he was unaware of the state of that company at that time albeit that he accepted as a fact that dealing in its shares was suspended in December 2000;

(ix) that despite the fact that he found the trading pattern in the defendant's account to be "strange" he did not speak (or attempt to speak) to the defendant himself - he spoke only with Pang; and

(x) that the defendant at no time traded upon the account registered in his name : everything that was done in relation to that account was done upon the instructions of Pang (who was at the same time giving instructions in respect of his own account in respect of the same shares).

11. Mr Chu's cross-examination of Tam Cheuk Hong proceeded as follows, and I paraphrase it thus :

"Q : After Pang could not pay up the margin call - your company sold the shares on 13 December 2000?

A : Yes.

Q : Some 20 million shares were sold?

A : Yes.

Q : At that time you did not contact [the Defendant]?

A : No.

Q : You did not know, at that time, if [the Defendant] had the means to meet the margin call?

A : No.

....

Q : You still had not met [the Defendant] - before the forced sale?

A : Correct.

Q : You didn't try to telephone him?

A : Right ....

....

Q : On 13 December the shares dropped some 45%?

A : Yes ....

Q : Between 1-13 December the shares dropped 90%?

A : Yes.

Q : And you didn't feel obliged to call [the Defendant]?

A : Correct.

....

Q : [The Defendant] never told you that PANG was his agent?

A : I agree.

Q : That is only your assumption?

A : Yes.

Q : You breached the SFC rules?

A : Yes.

Q : When [things went wrong] you went to Pang first; then to Yeung and [as a last resort] to the defendant?

A : Yes.

....

Q : [The Defendant] placed no orders (in respect of this account) at all?

A : Not directly he didn't.

....

Q : Each of the trades in these shares were Pang's liability?

A : Yes."

The "no case" submissions

12. I have had the benefit of helpful submissions in writing from both counsel. Put shortly Mr Chu argues that there was no binding contract at all and, even if there was, it is wholly unclear on the face of the documents when it was to take effect, and there was no agreement between the plaintiff and the defendant which allowed the plaintiff to trade on the defendant's account upon the instructions of a third party - the man Pang. It may or may not be significant, says Mr Chu, that one of the documents upon which the plaintiff seeks to rely as forming part of a contract (that is a photocopy of a letter from Citibank to the defendant with a copy of the defendant's ID card superimposed upon it) bears the date of 27 December 2000 in its top left hand corner - at least leaving open the possibility that the plaintiff did not act upon that information until 27 December at the earliest.

13. Ms Ng in her written submissions poses four questions as follows :

"(a) whether the Defendant knew or ought to have known that there were trading activities through the Account at the relevant period?

(b) If so, in the circumstances of the instant case, was the Defendant under a duty to inform the Plaintiff that there was unauthorized trading through the Account?

(c) Whether the Defendant had authorized those trading activities through the Account?

(d) Even if in the absence of express authority, whether by reason of the Defendant's conduct, he would be precluded from denying responsibility for those trading activities leading to the debit balance under the Account?"

Ms Ng then proceeded to place great reliance on the defendant's case, as it appears in the amended defence, as somehow establishing (either directly or by inference) his opening of the account which was to be operated by a third party, and his appreciation of the risks involved in so doing. That, in spite of the fact that no evidence (beyond that of Tam Cheuk Hong relating to his assumptions) was adduced before me concerning those matters.

14. Similarly, whilst Ms Ng has sought to rely upon a number of documents in opposing Mr Chu's submission she appears to have overlooked the counter notice dated 23 December 2002 and served on the plaintiff by the defence requiring the makers of most of those documents to be called as witnesses - which they were not. And of course it is for the plaintiff to prove its case as set out in its statement of claim upon a balance of probabilities.

15. Mr Chu's argument in some detail is as follows :

(a) The evidence adduced by the plaintiff does not match the statement of claim which is, in any event, uncertain and wholly unsatisfactory. That evidence included those matters set out in paragraphs 9, 10 and 11 above.

(b) There is no evidence of any intention between the plaintiff and the defendant to form a legal relationship or to have a binding agreement. If it could be inferred that the defendant had indeed applied to open a Margin account with the plaintiff there was no evidence of any response to that application, (i.e. there was no acceptance of the offer) and it is trite law that silence cannot amount to acceptance.

(c) (i) According to his evidence what persuaded Tam to open the account in the name of the defendant (and to do so at the behest of Pang) was his understanding that the defendant was the holder of some 20 million shares in Wah Lee Resources Holdings Limited which was to be used as collateral in support of the account.Whilst Tam said in evidence that such collateral would enable the account to be traded upon a credit figure of between $400,000 - 800,000 he appeared to accept that no information whatsoever regarding a credit margin was notified to the defendant and that, in any event, he (Tam) acquiesced in the account reaching a debit figure as high as $4.7 million on 8 December 2000.

(ii) It follows that the plaintiff acted either recklessly or negligently in turning a blind eye to the activities of the account without mitigating the damage likely to be caused to the defendant, by not giving him a chance to meet the "margin calls". Tam owed a fiduciary duty to his client, the defendant, but he did not exercise due care and diligence. Kung Kwok Wai v. Citibank NA (CA) [1989] HKC 2 48, at 51-52.

(iii) And Tam should at all times have known about the precarious state of Wah Lee Resources Holdings Limited and been put on notice. As to that precarious state, see the judgment of McCoy DJ in Yeung Kwok Fan v. Standard Chartered Bank (Unreported, HCMP2308/2001, 19 October 2001) as follows :

" The plaintiffs .... are the directors and the sole shareholders of Lucky Bingo Investment Limited ('Lucky Bingo'), a company incorporated in British Virgin Islands. Lucky Bingo in turn holds shares in Wah Lee Resources Holdings Limited ('Wah Lee') which is a company incorporated in Bermuda and is a public company listed and traded on the Stock Exchange of Hong Kong. From the time Wah Lee started to list and trade in about January 1997 to about February 2000, Lucky Bingo was the major shareholder of Wah Lee, holding about 33% of the shares issued of Wah Lee.

The plaintiffs were the founders of the Wah Lee business which traded in electronic products. Wah Lee company and its Group Companies ran into financial difficulties and were unable to meet their banking facilities. The plaintiffs signed a Guarantee over such facilities in favour of the Bank. In subsequent proceedings initiated by the Bank, the plaintiffs disputed the Guarantee. Various enforcement proceedings were initiated against the plaintiffs by a number of Banks, including the defendant. Winding-up proceedings were taken against Wah Lee and companies in the Group based on statutory demands not being met.

The plaintiffs needed to deal with the financial crisis and they therefore intended to encash some of their shares in Wah Lee. Because Wah Lee was a public company, obligations required the plaintiffs to give public notice of their intentions in relation to the proposed transaction in the shares. Upon the publication of the requisite public notice, the defendant applied for a Mareva injunction, which was granted by Woo JA, in aid of its proceedings on the Guarantee that it held against the plaintiffs. The case for the Bank was that the transaction that had been notified had the effect of diluting actually or potentially the plaintiffs' assets and therefore the value of its Guarantee provided by the plaintiffs.

Not long thereafter, a financial restructuring was arranged and agreed between the Wah Lee Group and its creditors including the Bank. It is against this factual background that [a] deed dated 30 June 2000 came into existence. ...."

In the light of all of those matters the purported trades (in the account bearing the name of the defendant) are unenforceable as being in breach of public policy or as being illegal if constituting activity forbidden by sections 135 and 136 of the Securities Ordinance.

(d) Further or alternatively, the plaintiff by its acts or omissions is estopped from relying on the uncertain accounts opening form, since it did not act on any mistaken belief. All along Tam dealt not with the defendant but with Pang from whom he took instructions

(e) The conduct of the parties after 16 December 2000 is of no material effect since post-contractual conduct is irrelevant and any "without prejudice" negotiations cannot assist the plaintiff to affirm its case that there was a binding contract effective from 1 December 2000. In the premises, the defendant submits that the only inference to be drawn is that the account was a sham. The defendant submits that taking the circumstances as a whole, the plaintiff has failed to establish a prima facie case in accordance to its pleaded case.

Conclusion

16. In her submission Ms Ng says the following :

"According to The Halsbury's Law of Hong Kong Vol 5(2) para 90.1012 p.1069, a defendant may make a submission of no case to answer either where the evidence adduced by the plaintiff does not establish any case in law for the defendant to answer, or where the evidence is so unsatisfactory or unreliable that the court should rule that the burden of proof on the plaintiff has not been discharged.

This being a civil case the ordinary standard of proof applies, namely, on balance of probability.

If in the course of the trial there is proved a set of facts with raises a prima facie inference that the Defendant was responsible for the trading loss incurred in the Account, the issue will be decided in the Plaintiff's favour unless the Defendant by their evidence provides some answer which is adequate to displace the prima facie inference. However, upon the submission of no case, the only issue then becomes whether in light of the evidence already adduced the Plaintiff has made out its case on the balance of probabilities.

The Court should put aside allegations raised by the Defendant since no evidence has been adduced to support them."

17. I do not doubt any of those submissions. However it is quite plain to me, upon the evidence adduced in this trial, that the plaintiff has failed to establish a case in law for the defendant to answer : that the evidence so adduced is unsatisfactory in the extreme in determining that issue and that, in consequence, the burden on the plaintiff has not been discharged.

18. Further, and given the evidence to which I have referred in the course of this judgment, I am simply unable to draw the inference that the plaintiff invites me to draw that the defendant was primarily or at all responsible for the trading loss incurred in the account. The only inference that might be drawn from the evidence is that the defendant lent his name to the opening of the account and that, in my judgment, is insufficient in the light of all of the other evidence to establish responsibility for what then ensued.

19. What did ensue was, in my judgment, almost inevitable and the plaintiff should have been aware of that fact given the history of the company in which the shares were traded and the manner in which they were being traded. The plaintiff, in the form of its dealing manager Tam Cheuk Hong, was negligent in the extreme firstly in setting up the account and secondly in its running.

20. Whilst I have little doubt that the defendant allowed his name to be put forward for the setting up of the account that does not, and cannot, absolve the plaintiff from its duties and liabilities. In my view it closed its eyes to the obvious. By conducting the account in dealing with the shares of a company (which can best be described as financially unsound) upon the instructions of a third party and with no consultation whatsoever with the named account holder, it seems plain to me (if no more than as a matter of common sense) that the plaintiff in collusion with Pang brought the account's losses upon itself.

21. In my judgment there was no enforceable contract between the plaintiff and the defendant because of the wholly unsatisfactory nature of the documents upon which the plaintiff seeks to rely as forming such a contract. Also relevant to that conclusion is the fact - and it is a fact - that the defendant did no trade whatsoever on the account; that he was not informed of any "credit facility"; and he was not consulted at all until after a late margin call was made not to him, but to the man who to all intents and purposes arranged for the setting up of the account for his own purposes.

22. For all of these reasons I find that the defendant has no case to answer and the plaintiff's claim is dismissed.

23. In the normal course of events upon a successful submission of "no case" the defendant should have his costs. Subject, of course, to hearing argument from counsel I can indicate that in this case I may find such a course inequitable.

24. It happens too often in this jurisdiction that people lend their names, their bank accounts, or their position to others in consequence of which those others act with impropriety.

25. In determining the question of costs upon a "nisi" basis it seems to me that I am not precluded from considering the pleadings in this case and, in particular, the amended defence.

26. Accordingly, in dismissing the claim of the plaintiff, I make an order nisi that each party will bear its own costs in this matter.

Remarks: