WONG WAI LAN v. LI YIM FONG

DCCJ 3413/2016
DCCJ 3414/2016
DCCJ 3415/2016
DCCJ 3416/2016
(Heard together)

[2019] HKDC 295

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 3413 OF 2016

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IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 3414 OF 2016

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IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 3415 OF 2016

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IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 3416 OF 2016

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DECISION

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1.  On 12 December 2018, I handed down a judgment in these four actions, in each case dismissing the plaintiff’s claim. By summonses each dated 9 January 2019, the plaintiffs apply for leave to appeal against the judgment. Following the guidance laid down by the Court of Appeal in Tsang Wing Kwai v Tsang Wing Fai [2018] 5 HKLRD 350, [2018] HKCA 759 at para 24, I gave directions for the lodging of written submissions. Having read the submissions, I am satisfied that an oral hearing is not necessary and the summonses are suitable for disposal on paper only.

2.  I shall adopt below the defined terms in the judgment.

3.  Wong and Cheng put forward five proposed grounds of appeal and Chim and Liu propose four grounds.  The first, fourth and fifth grounds relied on by Wong and Cheng are the same as the first, third and fourth grounds relied on by Chim and Liu.

Legal principles

4.  The principles governing the threshold for granting leave to appeal are not in dispute.  The applicant needs to show that the appeal has a “reasonable prospect of success” or there is some other reason in the interests of justice why the appeal should be heard: section 63A(2) of the District Court Ordinance, Cap 336.  A “reasonable prospect of success” means an appeal with prospects that are more than “fanciful”, without having to be “probable”: SMSE v KL [2009] 4 HKLRD 125 at para 17, per Le Pichon JA.

5.  In the present applications, the plaintiffs only rely on the “reasonable prospect of success” limb.

The first ground (relied on by all plaintiffs)

6.  Under this ground, the plaintiffs challenge my factual finding at para 45 of the judgment, namely that the defendant did not receive or derive any benefit in the purchases involving the plaintiffs, whether in the form of cash, gift vouchers or otherwise.  In gist, the plaintiffs say that I erred in not giving proper consideration to the key evidence on this issue, including most notably the contemporaneous WhatsApp messages exchanged between the defendant and Yip in December 2014 and January 2015.

7.  In the judgment, I set out the evidence which I considered material and relevant to the factual dispute.  Having weighed the conflicting evidence, including the above WhatsApp messages, I arrived at the finding in favour the defendant (see paras 40, 42, 44 to 50).  The plaintiffs effectively challenge the weight which I gave to the different evidential matters before me.  I am not satisfied that the plaintiffs have demonstrated that I committed any error in the evaluation of the evidence such that my finding should be overturned.  This ground has no reasonable prospect of success.

Wong and Cheng’s second ground

8.  Under this ground, Wong and Cheng contend that I made an error of law in holding that the defendant was not enriched by receiving the purchase moneys from them (para 66).  More specifically, I was wrong, it is argued, in not following the well-established principle that the question of whether a defendant was enriched should be tested at the date of receipt and I erred in placing undue reliance on the objective intention of the parties at the time of the receipt and the subsequent development after that time (paras 70 and 71).  Had I adhered strictly to the well-established principle, I would have held that the defendant was enriched on the dates when she received purchase moneys from Wong and Cheng.

9.  I do not agree.  The issue of enrichment ought to be determined by considering all the specific circumstances of each case on an overall basis.  The plaintiffs’ submissions on this ground are a re-run of those made at the trial.  This ground has no reasonable prospect of success.

Wong and Cheng’s third ground

10.  Under this ground, Wong and Cheng say that I erred in holding that the defendant has a valid defence of change of position (para 73).  First, the defence was not pleaded.  Secondly, there was no causal link between the payment by Wong and Cheng to the defendant and the payment by the defendant to Yip.  Thirdly, even if the defendant had a valid defence of change of position, I ought to have ordered the defendant to repay part of the purchase moneys to Wong and Cheng in order to strike a fair balance between the respective interests of the parties.

11.  There is no merit in the pleading point.  In the amended defence, it was pleaded to the effect that upon receiving the purchase money, the defendant would transfer the money to Yip’s bank account.  The material fact in support of the defence was pleaded. The legal consequence flowing from such fact need not be specifically pleaded.

12.  The payment flow from Wong and Cheng to the defendant and then from the defendant to Yip was common ground between the parties at trial (see para 16).  It is plain and clear from the factual background that the defendant would not have made the transfer to Yip if she had not first received the moneys from Wong and Cheng.

13.  This ground has no reasonable prospect of success.

Chim and Liu’s second ground

14.  Under this ground, the complaint is that I was wrong in holding that the defendant was not enriched on the basis that Chim and Liu’s purchase moneys were not deposited in the defendant’s account and did not go through the defendant’s hands (para 56).  First, there was no plea of the fact that Chim and Liu’s purchase moneys were not deposited in the defendant’s account.  Secondly, I did not give proper consideration to the fact that Chim and Liu were expressly directed by the defendant to pay moneys into Yip’s account and that otherwise they had no direct contact with Yip.

15.  There is no merit in the pleading point.  In the amended defence, it was amended that some buyers would deposit the required amount of money into Yip’s bank account directly.

16.  Separately, in my view, the fact that Chim and Liu had no direct contact with Yip or that they made payment as directed by the defendant does not and should not alter the fact that the purchase moneys did not go through the defendant’s hands at any time. For that reason, the defendant was not enriched by the direct payments made by Chim and Liu to Yip.  As observed in paras 63 and 64, the defendant never made any “corresponding gain”.

17.  This ground has no reasonable prospect of success.

Wong and Cheng’s fourth ground (same as Chim and Liu’s third ground)

18.  Under this ground, the plaintiffs contend that I was wrong in holding that the principles laid down in Lickbarrow v Mason (1788) 2 TR 63 and Commonwealth Trust, Limited v Akotey [1926] AC 72 has no application to the present case and in any event would not advance the plaintiffs’ position.

19.  The plaintiffs’ submissions made under this ground are a re-run of the submissions made at trial.  I have already rejected them in the judgment (paras 82 to 86).  This ground has no reasonable prospect of success.

Wong and Cheng’s fifth ground (same as Chim and Liu’s fourth ground)

20.  Under this ground, the plaintiffs say that I erred in finding that the defendant “was not enriched (in the negative sense) by reducing or saving her loss arising from the fraudulent scheme run by Yip at the expenses of the Plaintiff in the transaction of the Purchase Moneys” (paras 60 to 62).  It is submitted that had it not been for the purchase moneys paid by the plaintiffs, the defendant would have stood to suffer a loss from the orders placed.

21.  For the reasons set out in para 62, the submission is simply wrong and contrary to the common ground facts.  There is no merit in this ground.

Conclusion

22.  I dismiss the plaintiffs’ applications seeking leave to appeal.  I also order that the defendant do have costs of each application, summarily assessed in the sum of $15,000 in each case, payable by the plaintiffs within 14 days from today.