SUPER WIN TRANSPORTATION COMPANY LTD v. LAM LAI KUEN AND ANOTHER

DCCJ 5699/2023

[2025] HKDC 1064

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 5699 OF 2023

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REASONS FOR DECISION

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A. Introduction

1.  The plaintiff brings this action to claim against the defendants for a sum of HK$1,555,059.34 (the “Sum”)  and/or damages as particularised in the Re-Amended Statement of Claim. 

2.  By Summons dated 9 August 2024 (the “Summons”), the plaintiff seeks final judgment against both defendants for the Sum.

3.  The Summons was adjourned to be heard before me on 20 June 2025 (the “Hearing”). At the Hearing, Mr Tsui, acting for the plaintiff, confirmed that if the Court was minded to grant summary judgment, he would only require an order in the terms of §1 and §2(1)  of the Summons.

4.  At the Hearing, I made an order for final judgment to be entered against the 1^st defendant for the Sum but granted unconditional leave for the 2^nd defendant to defend the claim against her. I also indicated that reasons for judgment would be given in English.[1] 

B. Background and Parties’ Respective Cases

5.  The plaintiff’s case can be summarised as follows. 

6.  The 1^st defendant is a contractor truck driver of the plaintiff, a company engaged in overland transportation of construction materials and waste in Hong Kong. At the same time, he is also a sub-contractor truck driver of the plaintiff working as a contractor of Heng Cheong Transportation Company or Heng Cheong Transport Limited (“Heng Cheong”)  owned by a Mr Fung Man Kei (“Mr Fung”).

7.  In short, the plaintiff claims that during the period from June 2022 to April 2023, the 1^st defendant had claimed and received from the plaintiff a total sum of HK$1,587,356.57 as remuneration for the trips completed for the plaintiff as a contractor truck driver. The plaintiff further claims that out of this total sum, the 1^st defendant is and was simply not entitled to receive the Sum on the basis that:-

(1)  HK$1,416,940.30 of the Sum represents trips which were completed by Heng Cheong (the “Purported Trips”), ie trips completed by the 1^st defendant as a contractor truck driver of Heng Cheong and trips completed by other contractor truck drivers of Heng Cheong. It is said that Heng Cheong, as opposed to the 1^st defendant, should be the one entitled to be remunerated by the plaintiff; and

(2)  HK$138,119.04 of the Sum represents trips that never existed (the “Non-existent Trips”).

8.  The plaintiff says this is a clear case of fraud on the part of the 1^st defendant. Alternatively, if and insofar as the 1^st defendant suggests he had made some mistakes in claiming such remuneration from the plaintiff, the plaintiff relies on the claim based on unjust enrichment. 

9.  The 2^nd defendant was the plaintiff’s project and operation officer since 1 August 2020 until 21 August 2023, when her employment with the plaintiff was terminated.

10.  It is the plaintiff’s case that the 2^nd defendant must have assisted the 1^st defendant in wrongfully claiming the Sum by (1)  divulging the plaintiff’s confidential information (ie the particulars of trips completed by Heng Cheong and other contractors between June 2022 and April 2023)  for the same to be included in the 1^st defendant’s “homework” submitted to claim remuneration from the plaintiff and (2)  fabricating the particulars of the Non-existent Trips to deceive the plaintiff.

11.  The plaintiff therefore claims against the 2^nd defendant for conspiring with the 1^st defendant using unlawful means and/or damages for breach of the confidentiality agreement and employment contract with the plaintiff.

12.  The 1^st defendant does not dispute that he had received the Sum from the plaintiff. Essentially, he admits that:-

(1)  He “would make inadvertent mistakes such as miscalculation or mixing up the trips”, and that his “homework” might well include trips and orders he received from Heng Cheong;

(2)  He also claimed remuneration in respect of trips completed by other truck drivers under Heng Cheong on behalf of them but he intended to and was prepared to distribute such remuneration received from the plaintiff to those truck drivers; and

(3)  He would have to repay or return such amounts paid by the plaintiff to Heng Cheong for the same trips.

13.  However, he denies that he had fabricated any so-called Non-existent Trips or that any alleged fraud had been committed. He would simply rely on the plaintiff to independently verify the accuracy of the “homework” he submitted for claiming his remuneration and he lacks the means to re-check such “homework” as he does not retain or possess any copy of “fei zai” (ie the receipts issued by the consignor at the construction sites)  that was required to be submitted with the “homework” as well as other underlying records.

14.  The 2^nd defendant categorically denies that she was involved in any alleged conspiracy or preparation of the 1^st defendant’s “homework” submitted to the plaintiff for claiming remuneration. It is her case that she was not designated to verify the accuracy of the contractors’ “homework” and she did not divulge any so-called confidential information or trade secrets, including the particulars of trips completed by Heng Cheong or other contractors to the 1^st defendant during the relevant period of time.

C. Relevant Legal Principles

15.  The relevant principles for the grant of summary judgment are trite. A concise statement of the standard approach is to be found in the dicta of Ma J (as he then was)  in Schindler Lifts (Hong Kong)  Ltd v Ocean Joy Investments Ltd[2]:-

“The court has to determine two questions: firstly, whether what the defendant says is believable as opposed to whether its version of events is to be believed; and secondly, if it is, whether what the defendant says amounts to an arguable defence in law^”.

16.  It is incumbent upon the defendant to raise a defence or triable issue. The mere assertion in an affidavit of a given situation by the defendant responding to an application for summary judgment does not, ipso facto, ground leave to defend.  The defendant’s affidavit must “condescend upon particulars” and state clearly and concisely what facts are relied on to support the defence. A mere general denial that the defendant is liable will not suffice: Chugai Pharma Usa, Inc v Cheng Yan & Anors.[3]

17.  The standard of proof in civil case, in which serious allegations of misconduct such as fraud is in issue, is on the preponderance of probabilities and the degree of probability must be commensurate with the occasion. That does not mean the court is looking to a degree of probability higher than the civil standard. It means that the more inherently improbable the act in question, the more compelling will be the evidence needed to satisfy the court on a preponderance of probability: ADS v Brothers.[4]  

18.  In this regard, the court will require cogent evidence in drawing inferences of the conspiracy and the intention: Triunion (H.K)  Cereal & Oil Company Limited v Apac Investment Holdings Limited & Anors.[5]

D. Whether The defendants Have Raised a Credible Defence

D1. Whether the 1^st defendant has a credible defence

19.  Having considered all available evidence, including the evidence adduced by the 1^st defendant himself, I am not satisfied that the 1^st defendant has raised a bona fide defence or any genuine triable issue. 

20.  First, the plaintiff’s staff, ie Coco, has prepared and adduced the Comparison Document, ie “LPY-29”, which identifies the relevant overlapping entries of the Purported Trips in Heng Cheong’s “homework”, ie “LPY-28” and the 1^st defendant’s “homework”, ie “LPY-25”. This Comparison Document also indicates:-

(1)  The corresponding job numbers, item numbers and the money paid to the 1^st defendant and Heng Cheong extracted from the underlying accounting records supported by the payment records, ie “LPY-23 & 24 and LPY-26 & 27”; and

(2)  The car plate number (車牌)  of the particular vehicle or truck used for the trips and the client (客戶), weight (噸數), unit price (單價)  as well as the relevant location (由…至/地點)  identified from the respective “homework” of the 1^st defendant and Heng Cheong.

21.  The 1^st defendant admits that he only completed the trips with the vehicle bearing the car plate of SY2296. In other words, for other vehicles or trucks with other car plates indicated in his “homework”, it must mean that those trips were not completed by the 1^st defendant but by other drivers, also being Heng Cheong’s independent contractors.

22.  Second, the 1^st defendant also accepts that he might well have mixed up the trips and included trips and orders he received from Heng Cheong. In this respect, Mr Fung confirms that Heng Cheong had remunerated the 1^st defendant in respect of all the trips in the Comparison Document which involved the use of SY2296.

23.  In the circumstances, the 1^st defendant has no real answer to the plaintiff’s allegation of “double-claim” or “over-payment” for the same trips that he had already been remunerated by Heng Cheong with a lower rate. The 1^st defendant’s purported explanation for submitting such overlapping trips to both the plaintiff and Heng Cheong for remuneration is that “there was no clear or express agreement between the 1^st Defendant and Heng Cheong as to who would submit the ‘homework’ to the Plaintiff”. The same is expressly refuted by Mr Fung in his Affirmation.

24.  There is also no reason why the 1^st defendant would or could claim and receive remuneration from the plaintiff for trips completed by other contractor drivers hired by Heng Cheong. Where the 1^st defendant claims that he “intended to and was prepared to distribute such remuneration to be received from the Plaintiff to those truck drivers”, he has not produced any evidence relating to any of the alleged distribution to other truck drivers.

25.  The 1^st defendant, therefore, accepts that he has to return such “over-payment” to the plaintiff.

26.  Third, in respect of the Non-existent Trips identified by Coco in the form of the Excel document, ie “LPY-31”. The plaintiff’s case is that these purported trips were not supported by any underlying document and were therefore fabricated.

27.  Save for a bare denial of fabrication, the 1^st defendant cannot rebut or verify that these trips did exist with underlying or supporting documents. The 1^st defendant’s explanation that he no longer retains any copy of the “fei zais” and/or other relevant underlying records due to lapse of time is wholly incredible. These trips occurred and/or were completed rather recently during the period of June 2022 to April 2023. Shortly thereafter, this action was commenced in December 2023. The original statement of claim was filed on 19 January 2024. By then, the 1^st defendant was well aware of the serious allegation made against him, and there is no good reason why he would not keep and could not produce any supporting document to verify that these Non-existent Trips did occur.

28.  Fourth, the 1^st defendant tries to suggest the Comparison Document is unreliable with a view to disputing the quantum claimed. However, he cannot even point to which entry is wrongfully identified or miscalculated. I have also explained why I find the assertion that he has no means or supporting documents to verify or check the entries to be incredible. As such, the fact that there are some discrepancies in the total weight or unit rates concerning the trips claimed by the 1^st defendant and Heng Cheong and/or the format of the “homework” submitted by the 1^st defendant and Heng Cheong is not the same or similar does not assist the 1^st defendant at all.

29.  Having considered the respective “homework” submitted by the 1^st defendant and Heng Cheong and the Comparison Document, I agree with Mr Tsui’s submissions and illustrations that they must, on the whole, be referring to the same or overlapping trips despite such discrepancies nitpicked by the defendants. The remaining trips, which are not present in Heng Cheong’s homework, identified in the 2^nd defendant’s Affirmation, are either not part of the plaintiff’s claim or are part of the Non-existent Trips.

30.  For the reasons set out above, the plaintiff is entitled to its claim for the Sum against the 1^st defendant for unjust enrichment. For the avoidance of doubt, any reliance on the defence of change of position and/or ministerial receipt is misplaced as the 1^st defendant cannot point to any particulars or evidence that he had made corresponding payments to the other truck drivers.

31.  Having considered the overall circumstances and the evidence available before me, I also find the 1^st defendant’s assertion that “it was a genuine mistake or miscalculation” to be wholly incredible. I have already explained why there is no real or reasonable explanation on the part of the 1^st defendant for (1)  submitting his “homework” for the same or overlapping trips to claim remuneration from both the plaintiff and Heng Cheong; (2)  submitting claims for trip completed by other truck drivers; and (3)  including Non-existent Trips in his “homework”. The same is simply inconsistent with an honest or innocent state of mind, but points to dishonesty or fraud on the part of the 1^st defendant.

32.  For the sake of completeness, I do not find any substance in the 1^st defendant’s allegation that the present claim is wrongfully commenced by the director and general manager of the plaintiff, ie Jessie out of spite or jealousy.

D2. Whether the 2^nd defendant has a credible defence

33.  However, even if there was fraud or dishonesty involved on the part of the 1^st defendant, it does not mean that the 2^nd defendant must necessarily be involved or implicated.

34.  As accepted by Mr Tsui, the plaintiff can only rely on the following matters to draw inference for a serious allegation of fraud and conspiracy against the 2^nd defendant:-

(1)  The presence of 23 files relating to the 1^st defendant in the download folder of the 2^nd defendant’s desktop at work, ie “LPY-33”, which included an incomplete or unfinalized version of the 1^st defendant’s “homework” for July 2022 and October 2022;

(2)  The 1^st defendant would submit his “homework” to the 2^nd defendant directly for the same to be submitted to the plaintiff; and

(3)  The fact that the 1^st defendant and the 2^nd defendant appear to be in a relationship and the 1^st defendant had transferred his SY2296 vehicle to the 2^nd defendant on 17 August 2023 with no explanation pro-offered.

35.  I am satisfied that the 2^nd defendant has shown a bona fide defence to the plaintiff’s claim of conspiracy using unlawful means and breach of confidentiality and the employment agreement raised specifically against her.

36.  First, the assertion that the 2^nd defendant was responsible for verifying the accuracy of “homework” submitted to the plaintiff and/or her involvement as deposed to in Coco’s Affirmation is hotly disputed. It is a classic situation of “your words against my words”, and the same must be tried against the following background:-

(1)  The 2^nd defendant’s employment agreement with the plaintiff only described her position as “Project & Operation Officer”. It does not shed light on her specific job duties and responsibilities; and

(2)  The 2^nd defendant appears to be the most junior staff member of the plaintiff as compared to Coco and Niki. She only joined the plaintiff for around 3 years. It is her case that she was therefore not assigned to handle any particular contractors’ “homework” and was not privy to the details of the plaintiff’s projects, such as which subcontractors undertook which trips for the particular projects on which days.

37.  Second, the plaintiff also accepts that there are discrepancies and different particulars in the “homework” of the 1^st defendant and Heng Cheong. It is also not seriously disputed that the 1^st defendant’s “homework” would always be submitted prior to that of Heng Cheong. As such, one cannot say the 2^nd defendant’s assertion that she did not divulge any confidential information in relation to Heng Cheong’s trips, including those completed by other truck drivers to be unbelievable. In fact, Mr Fung is unable to point to the 2^nd defendant’s involvement.

38.  Third, where the precise scope of the 2^nd defendant’s job responsibility and her involvement in “checking/verifying” contractors’ “homework” is hotly disputed, the plaintiff cannot seriously suggest that her defence that she had no knowledge or involvement in any alleged fraudulent scheme as she only “collected” “homework” and sometimes “fei zais” from contractors to be unbelievable without a trial or cross-examination.

39.  Fourth, having considered the available evidence and the overall circumstances, I do not find there exist any cogent evidence or basis including that as relied upon by the plaintiff, to draw any inference of the conspiracy or intention on the part of the 2^nd defendant at this stage.

40.  The presence of the 23 files in the 2^nd defendant’s desktop is neither here nor there. At best, it can show that the 1^st defendant had submitted some “homework” or drafts to her. This is consistent with her claim that it was part of her responsibility to collect “homework” and the 1^st defendant would sometimes submit his “homework” directly to the 2^nd defendant via WhatsApp. It does not and cannot show that the 2^nd defendant had material input in such “homework” or drafts or had otherwise prepared the same for the 1^st defendant. The fact that she did help in typesetting and update other records not relevant to the present action does not add anything in substance.

41.  Whilst the 2^nd defendant’s assertion that the 1^st defendant’s homework would always be submitted to the plaintiff via the WhatsApp group had been refuted, this would at best go to the issue of general credibility, which should be examined at trial.

42.  The pure fact that the 1^st and 2^nd defendants appear to be in a relationship and the 1^st defendant had transferred his vehicle SY2296 to the 2^nd defendant on 17 August 2023 is also neither here nor there. I do not understand why this must necessarily be an indication that the 2^nd defendant was complicit in the 1^st defendant’s scheme, and how I could possibly draw any adverse inference against the 2^nd defendant based on these matters at this stage.

43.  In particular, it is not the plaintiff’s case that it had confronted either the 1^st or 2^nd defendant shortly after the discovery of fraud on the part of the 1^st defendant. Quite the contrary, it is the plaintiff’s case that the 2^nd defendant’s employment was terminated for another reason ie failure to turn up for work without giving any reasons and the plaintiff did not allege any conspiracy or other wrongdoing in the termination letter because it did not want to “tip off” the defendants.

E. Conclusion

44.  For the above reasons:-

(1)  I grant an order in the terms of §1 of the Summons; and

(2)  I grant unconditional leave for the 2^nd defendant to defend the present action.

45.  Insofar as costs is concerned, as between the plaintiff and the 1^st defendant, there is no reason why costs should not follow the event. I order that the 1^st defendant do forthwith pay the plaintiff’s costs of this action, including costs of and occasioned by the Summons. Such costs are to be taxed if not agreed with Certificate for one Counsel.

46.  As between the plaintiff and the 2^nd defendant, I order that costs of and occasioned by the Summons be in the cause. Whilst Mr Mok asked for costs at the end of the Hearing, he had never in his skeleton submissions asked for dismissal of the Summons but only asked for unconditional leave to defend. I also do not agree that there was absolutely no basis for the plaintiff to take out the application in the first place. In particular, the 2^nd defendant’s opposing affirmation was only filed and served on 3 March 2025.

47.  If and insofar as it is necessary, I will certify that this application is fit for one counsel.

48.  Finally, it remains for me to thank counsel for their assistance.