AIMS IMMIGRATION AND RELOCATION SPECIALIST GROUP LTD formerly known as AIMS AND PARTNERS LTD v. NG OI MAN

DCCJ 5263/2024

[2026] HKDC 1082

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 5263 OF 2024

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BETWEEN

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DECISION

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1.  By an Amended Summons dated 13 May 2024 (“Plaintiff’s Summons”), the Plaintiff applied for the following orders against the Defendant:

(1) Final Judgment for the amount of CAD 129,500 claimed under §31A (1) to (4) and Interlocutory Judgment with damages to be assessed claimed under §31A (5) of its Amended Statement of Claim dated 1 February 2025 (“ASOC”); and

(2) The Defendant’s counterclaim under §4 of her Amended Defence and Counterclaim dated 7 March 2025 (“ADCC”) be struck out on the grounds that it is scandalous, frivolous or vexatious and/or an abuse of process of the Court.

2.  The matter came before Master Y H Chan on 4 June 2025 who granted both of the Plaintiff’s applications with costs against the Defendant summarily assessed at HK$120,105. The Defendant appealed against the learned Master’s decisions. Having heard arguments from both sides, I reserved my decisions and indicated to parties that judgment in English[1] would be handed down later, which I now do.

FACTUAL BACKGROUND

3.  At all material times, the Plaintiff was and still is carrying on business as an immigration consultancy in Hong Kong. It was formerly called AIMS AND PARTNER LIMITED until it was changed to its current name on 19 December 2022.

4.  On 5 January 2022, the Defendant attended a webinar entitled “STARTUP 新事業一步到位取得加拿大永居” hosted by the Plaintiff (“Webinar”) with Mak Hang Sang, its Chief Commercial Officer who had filed 3 affirmations in support of the Plaintiff’s applications (“Mak”), as the speaker. At the Webinar, Mak gave an introduction on the Startup Visa Program launched by the authorities of Canada (“Program”) that would enable applicants to become eligible to apply for a Canada Permanent Resident Visa (“PR Visa”).

5.  In short, an applicant under the Program was to develop a business plan for an innovative startup business to be established in Canada which has to be endorsed by one of the Designated Organizations recognized by the Canadian Government (“DO”) by way of a Letter of Support (“LOS”). There were three categories of DOs, namely Business Incubators, Angel Investors, and Venture Capital Funds. The choice of DO to be engaged in the issuance of LOS would depend on the maturity of the business idea: Business Incubators are suitable for ones that are in the early stages of development whereas Venture Capital Funds for more mature and validated ones. A maximum of 4 applicants could apply together in each startup business. Upon the issuance of the LOS, all applicants would be eligible to apply for a PR Visa via the Program. Throughout the process, the Plaintiff would provide consultancy services and act as an agent for the applicants in engaging the DO and liaising with the same for the issuance of LOS, and eventually applying for the PR Visa.

6.  During the Webinar, the relevant procedures for applying under the Program and the fees to be charged by the Plaintiff as well as the DO under different packages were explained. Mak also introduced three new startup business ideas which were available to be used for applications under the Program. On the other hand, he mentioned that the Plaintiff would assist clients who have their own startup business ideas or explore business ideas with clients based on their own profile and background.

7.  Following the Webinar and on 6 January 2022, Ms Chu of the Plaintiff received a phone call from the Defendant for enquiries about the Program. On 8 January 2022, the Defendant went to the Plaintiff’s former office in Wan Chai and met with Ms Chu to discuss her intended application under the Program in detail. (“Meeting”)

8.  At the Meeting, the Defendant signed a written agreement entitled “Expression of Interest” (“EOI”) in which the Defendant agreed to engage the Plaintiff to provide preliminary services for the Program. Despite the provision that the Defendant was to pay HK$20,000 upon signing of the EOI which could be transferred to be part of the consultancy fee for the Plaintiff’s full services, no such payment was made by the Defendant.

9.  According to the Plaintiff, it was explained to the Defendant during the Meeting that her intended application under the Program would be made together with other co-applicants who would share the fees of the DO for the issuance of the LOS.

10.  Following the meeting and on 10 January 2022, the Defendant sent an e-mail to the Plaintiff stating that she was interested in the Program and enclosing her CV together with a cover letter for the Plaintiff’s further action.

11.  On 15 January 2022, Ms Chu sent the Mutual Non-Disclosure Agreement to the Defendant via e-mail (“MNDA”). The Certificate of Completion produced by the Plaintiff showed that the Defendant e-signed it on “Jan 15, 2022 14:50 HKT” which was not disputed by the Defendant.

12.  Later on the same day, a Consultancy Service Agreement duly signed by the Plaintiff (“Agreement”) was sent to the Defendant again via e-mail for her e-signing. According to the Plaintiff and on the face of the copy produced by the Plaintiff, it was e-signed by the Defendant on 17 January 2022. The Defendant denied that she had signed the Agreement.

13.  Clause 4 of the Agreement provides that the Defendant agreed to pay to the Plaintiff (i) consultancy fee of CAD 85,000 (“Consultancy Fee”) and (ii) introduction fee for a Canadian lawyer or a licensed representative and the legal advisory and representation fee of CAD 20,000 (“Introduction Fee”) which were payable by way of three payments as follows:

1^st Payment: 30% of the Consultancy Fee within 7 days upon signing of the Agreement;

2^nd Payment: 50% of the Consultancy Fee and 100% of the Introduction Fee within 7 days upon the receipt of the LOS; and

3^rd Payment: 20% of the Consultancy Fee within 7 days upon the issuance of the work permit or the PR Visa whichever is earlier.

14.  Having participated in the Webinar, the Defendant was entitled to a discount in the sum of HK$50,000 for the Consultancy Fee, equivalent to CAD 8,089, which would be applied to deduct the amounts payable under the 3 payments. In an invoice issued by the Plaintiff dated 18 January 2022, the Consultancy Fee and the Introduction Fee payable by the Defendant pursuant to Clause 4 of the Agreement, together with the corresponding discount deductions, were set out.

15.  It is not disputed that the Defendant has settled the 1^st Payment in the sum of CAD 23,073.30, being the discounted amount for 30% of the Consultancy Fee[2] on 20 January 2022. This was the only payment made by the Defendant.

16.  In or around September 2022, the Plaintiff lined up the Defendant with its other clients in forming a startup business group for the project referred to as “Automated Transaction Monitoring AI System for AML/CFT” (“AML Project”), which was one of the 3 new ideas presented at the Webinar. It was intended that the team would engage a DO that belonged to the category of Angel Investors for the issuance of the LOS. The Plaintiff also engaged an agent in Canada called Startup Visa Services (“SVS”) for the work relating to the issuance of the LOS.

17.  Soon thereafter, the AML Project was terminated because one of the team members was not responsive and thus considered by the Plaintiff to be unreliable. The Defendant was then placed in another team called “Feelings” for her application under the Program.

18.  After some interviews, assessments, attendance of online courses by the Feelings team members and the finalization of the business plan, SVS recommended the Feelings team to engage a DO named York Entrepreneurship Development Institute (YEDI) VC Fund (“YEDI”) which was within the category of Venture Capital Funds for the issuance of the LOS. Also around that time, one of the team members decided to withdraw her application under the Program and the Plaintiff arranged another applicant to replace her. Eventually, the members of the Feelings team were the Defendant, Ms Yip (Anne), Mr Ho (Ken) and Mr Ma (Matt).

19.  For the Feelings venture, SVS/YEDI charged a total sum of CAD 220,000 which was settled by the Plaintiff by various payments made between May 2023 to April 2024. It is the Plaintiff’s case that the said sum was to be shared equally among the 4 members of the Feelings team and each was to reimburse the Plaintiff their share (“DO Costs”).

20.  Since 22 January 2024, Mak began to send WhatsApp messages to chase the Defendant for settlement of the DO Costs because all other team members had already settled the same. After discount, the Defendant’s share of the DO Costs was CAD 50,000[3].

21.  There were text exchanges between Mak and the Defendant about her recent visits to the Plaintiff’s former offices only to find that the Plaintiff has moved out from those premises. Mak explained that the Plaintiff has moved to the office of the Plaintiff’s associated company called Aims Immigration Specialist (HK) Limited (“Plaintiff’s Associated Company”) in Tsuen Wan. To ease her mid, Mak invited the Defendant to visit its Tsuen Wan office and even sent her the Business Registration Certificate of the Plaintiff’s Associated Company.

22.  On 19 March 2024, the Plaintiff received the LOS issued by YEDI to the Defendant and other Feeling team members. Mak then texted to inform the Defendant that subject to her settlement of the outstanding payment, necessary forms for her PR Visa application would be prepared for her to sign for submission to the Canadian authorities. He further made it clear that in case she did not make payment, the Plaintiff would have to re-do the LOS for all team members and all costs would have to be borne by her, in addition to all the overdue as well as future payments that she should be responsible for.

23.  The Defendant replied that since her family did not allow her to go to Canada, she asked if the Plaintiff “would try to reimburse(d) on these costs” with the “deposit” she paid in 2022 and that she would talk with her family.

24.  On 21 March 2024, Mak wrote an e-mail to inform the Defendant that with the LOS issued, the 2^nd Payment under the Agreement in the total sum of CAD 58,455.50 was due on 27 March 2024 and further demanded her to settle the DO Costs in the sum of CAD 50,000.00 the due date of which was extended to 22 March 2024. The two invoices for the said payments and the LOS were enclosed to the said e-mail.

25.  The Defendant did not respond. Three demand letters dated 3 May 2024, 30 May 2024 and 10 July 2024 were issued by the Plaintiff’s solicitors to the Defendant demanding payment for a total sum of CAD 129,000.00. On 22 May 2024, the Plaintiff’s solicitors received an undated letter from the Defendant denying her liability to pay any sums under the Agreement.

26.  Due to the Defendant’s withdrawal from the Program, the Plaintiff had to remove her from the application in order not to compromise the validity of the LOS issued to the other Feeling team members. The costs for removing the Defendant from the LOS incurred by YEDI was in the sum of USD 10,000.00 which the Plaintiff would need to pay to YEDI at the conclusion of the present proceedings as agreed between them (“Removal Costs”).

THE PLAINTIFF’S CASE

27.  It is the Plaintiff’s case that the Defendant was in repudiatory breach of the Agreement by failing to pay the outstanding 2^nd Payment and the DO Costs and terminating the application process of the Program on her own volition. By reason of the Defendant’s breaches, the Agreement was terminated and the Plaintiff was entitled to claim for all outstanding payments including the 3^rd Payment.

28.  As to the Removal Costs, it has been agreed between the Plaintiff and YEDI that it would only become payable at the conclusion of the present proceedings. The Plaintiff therefore seeks interlocutory judgment for this claim with damages to be assessed.

THE DEFENDANT’S CASE

29.  In opposition to the Plaintiff’s Summons, the matters raised in the Defendant’s ADCC and her Affirmation can be summarized as follows:

(1) At the Webinar and also in the promotional leaflets, the Plaintiff has made misrepresentation that a LOS would be issued within 2 months or at most 6 months and PR Visa approved within 12 months or at most 18 months, generally[4] or for application made under the AML project[5]; by reason of the said misrepresentation, the Plaintiff agreed to pay the sum of CAD 23,073.30; eventually the AML Project was terminated (“Misrepresentation”)[6];

(2) She only signed the MNDA and the e-signature appearing on the Agreement was not by her but copied-and-pasted by the Plaintiff from the MNDA; the contents of the Agreement were not explained to or agreed by her; further, she had not entered into any agreement with the 3 co-applicants (“Validity of the Agreement”)[7];

(3) The Defendant challenged the Plaintiff’s entitlement to the DO Costs claiming that she did not understand its nature and necessity; further, the beneficiary’s name on the invoice was not the Plaintiff but the Plaintiff’s Associated Company (“DO Costs Claim”)[8];

(4) The Plaintiff did not have the required licence for carrying on the business of immigration consultancy in Canada thus rendering the Agreement illegal and unenforceable (“Illegality”)[9]; and

(5) The Defendant counterclaims for the refund in the sum of CAD 23,073.30 and damages for misrepresentation[10].

30.  In this appeal, the Court has to first determine whether the Defendant, who has been acting in person throughout, was entitled to rely on documents that she filed in the present proceedings other than her affirmation dated 23 January 2025. For the purpose of identifying what those documents are, it is necessary for me to set out the procedural background leading to the appeal.

PROCEDURAL BACKGROUND

(1) Before the hearing below

31.  The following are what took place before the hearing below:

(1) 5 September 2024: the Plaintiff’s Writ of Summons endorsed with a Statement of Claim was filed;

(2) 28 October 2024: the Defendant’s Defence and Counterclaim was filed[11];

(3) 18 December 2024: the Plaintiff’s Summons with the 1^st Affirmation of Mak were filed;

(4) 23 January 2025: the Defendant’s affirmation in opposition to the Plaintiff’s Summons was filed (“1^st Affirmation”);

(5) 6 February 2025: the Plaintiff’s ASOC was filed; the amendments were mainly for adding particulars to its claim for the Removal Costs;

(6) 7 February 2025: At the call-over hearing of the Plaintiff’s Summons, the learned Mr Registrar granted leave to the Defendant to file her amended defence and counterclaim on or before 7 March 2025 and further affirmation in opposition to the Plaintiff’s Summons on or before 21 March 2025; the substantive hearing was fixed on 4 June 2025 with directions for filing of skeleton submissions;

(7) 7 March 2025: the Defendant filed her ADCC with no substantive amendments; however, she did not file any further affirmation despite the leave granted;

(8) 13 May 2025: the Plaintiff filed Mak’s 2^nd Affirmation in reply to the Defendant’s 1^st Affirmation; and

(9) 15 May 2025: the Plaintiff amended its summons and Mak filed his 3^rd Affirmation verifying the contents of the amended summons and the ASOC.

32.  On 26 May 2025 and pursuant to the Court’s direction, the Defendant filed her skeleton submissions[12] including 10-paged of submissions, a 4-paged “List of Authorities” listing out 10 cases with further submissions therein and 10 annextures (“May Submissions”). It was, however, affirmed by the Defendant in front of the Commissioner for Oath.

33.  On 4 June 2025, the Plaintiff’s Summons was heard before Master Y H Chan with counsel Mr Kwok representing the Plaintiff, who also appeared before me, and the Defendant acting in person.

(2) Hearing before Master Y H Chan

34.  I had the benefit of reading the transcript of the hearing which was adduced by the Defendant as evidence purporting to support her argument that the hearing below was conducted unfairly. I have also retrieved the May Submissions from the Court’s file for consideration. Mr Kwok had no objection to such course being taken.

35.  At the hearing before the learned Master, Mr Kwok submitted that the May Submissions contained new contentions not raised in the ADCC and the Defendant’s Affirmation. Since there was no application for leave to file the same as affidavit evidence, the learned Master only considered it as the Defendant’s submissions. Hence, the May Submissions, although in the form of an affirmation, was not evidence before the Court for the purpose of the appeal.

(3) Notice of appeal & the Appeal Documents

36.  By a Notice of Appeal dated 16 June 2025, the Defendant appealed against the orders made by the learned Master and sought inter alia the dismissal of the Plaintiff’s Summons or unconditional leave to defend on the ground that new evidence revealed that the subject dispute involved proceeds of crime and contravention of the Canadian Criminal Law.[13] In the said notice, it was not stated that she intended to appeal against the summary assessment of costs awarded against her.

37.  On the same day, the Defendant also filed a set of documents, not in the form of an affirmation, entitled “關於：就2025年6月4日簡易判決提出上訴許可申請（依據《高等法院規則》第58號命令）” which consisted of the main body of 10 pages and 36 exhibits of over 500 pages. I shall refer this as the “Appeal Documents”. Many of the exhibits thereto are copies of judgments, extracts of Canadian statues, textbooks, articles etc. while some are factual evidence.

38.  On 10 October 2025, there was a hearing of the Defendant’s appeal before DDJ Patrick Siu which was adjourned due to the Defendant’s application for legal aid. The Defendant claimed that the Plaintiff was ordered by the learned Deputy Judge to file further evidence which was denied by Mr Kwok. There was no such order made.

39.  The appeal was fixed to be heard by this Court on 6 February 2026.

40.  On 26 January 2026, the Defendant filed a 13-paged affirmation containing 14 exhibits which was served to the Plaintiff on 2 February 2026 (“New Affirmation”).

41.  One day before the hearing and on 5 February 2026, the Defendant filed her skeleton submissions in which references were made to the documents in the Appeal Documents and the New Affirmation (“Appeal Submissions”).

NEW EVIDENCE SOUGHT TO BE ADDUCED ON APPEAL

42.  At the appeal hearing, the Defendant asked the Court to grant leave to her to rely on the documents she had filed. Although there was no summons filed in support of the application, Mr Kwok has made extensive submissions in his skeleton submissions in opposition of the same. Given that the Defendant was acting in person, I exercised my discretion and proceeded to hear arguments on the Defendant’s application to adduce new evidence rather than reserving admissibility by receiving the same de bene esse.

43.  For the purpose of identifying the “new evidence”, I went through the documents filed by the Defendant with the parties and it was agreed that the following were not disputed as new evidence:

(1) The May Submissions were submissions before the learned Master which the Defendant did not seek to rely on as she had filed the Appeal Submissions;

(2) As regards the Appeal Documents, the main body at pages 1 to 7 should be considered by the Court as the Defendant’s grounds of appeal and submissions but not as evidence;

(3) Among the 36 exhibits enclosed thereto, exhibits 5, 7, 8, 11, 13-16, 22-26 and 30-31, which are copies of judgments and textbooks, could be relied on by the Defendant as part of her submissions; exhibits 6, 10, 17-21 and 27-28 are documents already included in the hearing bundles; exhibit 9, which is copy of a cheque showing that the Defendant has been awarded costs of $400 in the present proceedings[14] and exhibit 12 showing the exchange rate of Canadian dollar to Hong Kong dollar were agreed to be irrelevant and unnecessary; and

(4) As to the New Affirmation, 12 out of the 14 exhibits therein are the same as those included in the Appeal Documents and exhibit M being the transcript of the hearing below is not disputed by Mr Tam.

44.  Accordingly, the evidence that the Defendant sought leave to adduce which were opposed by the Plaintiff were exhibits 1, 2a, 2b, 3a-d, 3, 4 and 29 in the Appeal Documents, the main body of the New Affirmation and exhibit N therein which are as follows:

1: the Immigration and Refugee Protection Act of Canada, last amended on 19 August 2024;

2a: the College of Immigration and Citizenship Consultants Act of Canada, last amended on 22 June 2023;

2b: a declaration by the Immigration Consultants of Canada Regulatory Council dated 11 December 2020;

3 & 3a-d: a record showing four complaints made to the College of Immigration and Citizenship Consultants of Canada (“CICC”) by the Defendant and four e-mails of reply by CICC;

4: a record showing an online tip submission has been made to the Canada Border Services Agency;

29: two online news articles published by “明報加西網” and “大紀元” on 7 February 2025 and 25 March 2017 respectively and an article published by “加拿大国际教育服务中心 张学勇移民公司”; and

N: an online news article published by “rci 7种语言的加拿大新闻” on 15 January 2026.

Applicable Principles

45.  It is trite that no further evidence on question of fact (other than evidence as to matters which have occurred after the date of the hearing) shall be admitted except on special grounds: Order 58 rule 1(4), Rules of the District Court (Cap 336H).

46.  In Yu Wing Cheong & the other v Yu Wing Yin[15], Lam VP (as Lam PJ then was) helpfully set out the applicable principles and in particular in the context of an appeal against summary judgment at §§11-13:

“11. As held in Ladd v Marshall, [1954] 1 WLR 1489, further evidence is admissible on appeal only where such evidence:

(i) could not have been obtained at the trial with reasonable diligence;

(ii) would or might, if believed, have a very important influence on the result of the case, though it need not be decisive; and

(iii) is apparently credible though it need not be incontrovertible.

12. Since the judgment was granted in the context of an application for summary judgment, the following observations of Lord Bridge in Langdale v Danby [1982] 1 WLR 1123 at 1133B to F are relevant,

“The classic statement of what amounts to ‘special grounds’ within the meaning of Ord. 59, r 10(2) comes from the judgment of Denning L.J. (as he then was) in Ladd v. Marshall [1954] 1 WLR 1489 …

In the situation arising on an appeal to the Court of Appeal from a summary judgment, the application of these conditions and perhaps the conditions themselves will require some modification. It may well be that the standard of diligence required of a defendant preparing his case in opposition to a summons for summary judgment, especially if under pressure of time, will not be so high as that required in preparing for trial. The second and third conditions will no doubt be satisfied if the further evidence tendered is sufficient, according to the ordinary principles applied on applications for summary judgment, to raise a triable issue. But I can see no injustice at all in requiring a defendant to use such diligence as is reasonable in the circumstances to put before the judge on the hearing of the summons, albeit in summary form, all the evidence he relies on in defence, whereas it would be a great injustice to the plaintiff to allow the defendant to introduce for the first time on appeal evidence which was readily available at the hearing of the summons but was not produced.”

13. This approach is applicable in Hong Kong: Fortis Insurance Co v Lam Hau Wah Inneo CACV 86/2010, 28 October 2010; Johnson Electric International Ltd v Bel Global Resources [2014] 5 HKC 504.”

47.  In The Bank of New York Mellon v Sun Jiangrong[16], Poon JA (as Poon CJHC then was), having considered Fortis Insurance Company (Asia) Limited v Lam Hau Wah Inneo[17], Halifax Plc v Gould & Swayne & Others[18] and Langdale v Danby, said:

“25. In our view, when considering the first condition of the Ladd v Marshall test, the context in which the application for leave to adduce fresh evidence arose is crucial. For the degree of reasonable diligence which the court expects the defendant to have exercised in his effort to obtain the evidence in question must be assessed against the overall circumstances of the case. The court will take into account all relevant factors, such as the time available to the defendant to gather the evidence, the nature of the evidence, the difficulty encountered in obtaining the evidence, the effort that the defendant had used in gathering the evidence. (The list is of course not exhaustive.)

26. We do not think that merely because it is an appeal from a summary judgment or proceedings not amounting to a trial, the requirement of reasonable diligence will be automatically relaxed. It is only one of the factors that the court will bear in mind. If, for example, in an application for summary judgment where the defendant is time-pressed to obtain the evidence in support of his defence and was unable to do so because of the shortage of time, the appellate court might be more inclined to grant him the indulgence to adduce fresh evidence on appeal. (But even then, as Lord Bridge made it explicitly clear, that does not relieve him from his duty to use such diligence as is reasonable in the circumstances to put before the judge below all the evidence that he seeks to rely on, albeit in a summary form.) However, if the defendant has been given ample time to gather all the evidence in opposition but has unreasonably failed to do so, we doubt very much if an appellate court would be prepared to relax the reasonable diligence requirement on his application to adduce fresh evidence on appeal simply because it is an appeal from summary judgment.”

48.  Having heard arguments from both sides, I came to the conclusion that the Defendant’s application had failed to meet the test in Ladd v Marshall and dismissed the application at the hearing. I shall now set out my reasons.

Reasons for refusing the Defendant’s application

49.  The Defendant submitted that the new evidence sought to be adduced would support her defence of illegality. It is her case that the Plaintiff was not a licensed immigration consultant in Canada and under the Canadian law, it would be illegal for the Plaintiff to provide consultancy service to her, and the Agreement was therefore unenforceable.

(1) Exhibits marked 1, 2a, 2b, 29 & N

50.  In her 1^st Affirmation, the issue of the Plaintiff not being a licensed immigration consultant in Canada has already been raised. It may well be that she was under time pressure to gather all the necessary evidence at that time. However, she had deliberately chosen not to file further affidavit evidence for the use at the hearing before the learned Master despite the leave granted for her to do so on or before 21 March 2025. Exhibits 1, 2a, 2b and the 2 news articles in exhibit 29 all existed before the hearing.

51.  If the Defendant was serious about her defence and had exercised reasonable diligence, there is no question that exhibits 1, 2a, 2b, and 29 could not have been obtained. The very fact that the Defendant was able to produce all these exhibits shortly after the learned Master found against her demonstrated very clearly that she could have obtained them with no difficulty. Hence, the first condition in Ladd v Marshall even as applied in the context of summary judgment is not met.

52.  I notice that in exhibit 29, there is an article published by “加拿大国际教育服务中心 张学勇移民公司”, which bears a time stamp of “2025/6/15 凌晨1:01” on the top left-hand corner of each page. It is unclear on the face of the document whether it denotes the time of its publication or the time when the said document was being downloaded by the Defendant. Even assuming it in the Defendant’s favour that it was only published at midnight of 15 June 2025, and thus could not have been obtained before the hearing before the learned Master, I am not satisfied that the second condition in Ladd v Marshall is met.

53.  In The Griesheim[19], it was held by Power J (as he then was) that in interlocutory proceedings where foreign law applied, the requirement was that foreign law must be proved as a fact to the satisfaction of the judge; unless the circumstances be exceptional, when a party sought to rely upon the evidence of an expert to prove foreign law, that evidence should be embodied in an affidavit or affirmation sworn or affirmed by the expert himself.

54.  Applying the above principle, an article published by a company carrying on the business of immigration consultancy can by no means be regarded as expert evidence to prove the Canadian law. The same also applies to the Canadian statutes (exhibit 1, 2a and 2b) and the other news articles (exhibit 29 and N). In my judgment, none of these exhibits would have any bearing on the result of the case as they are not evidence proving Canadian law.

55.  By reason of the above, I find that the Defendant’s application fails to meet the test in Ladd v Marshall insofar as exhibits 1, 2a, 2b, 29 and N are concerned.

(2) Exhibits 3, 3a–d & 4

56.  Exhibit 3 shows that on 5 June 2025, the Defendant made 4 online complaints with CICC against the following names: (i) Muniza Ayube; (ii) Slava Apel; (iii) Hang Sang Mak and (iv) Hang Sang Mak. Exhibits 3a–3d are the reply from the CICC by 4 separate e-mails to the Defendant on 6 June 2025 contents of which are identical and confirming that each of the “individual” was not a licensee of CICC. The 4 complaints were made by the Defendant online one day after the hearing before the learned Master and she received a reply from CICC the next day.

57.  As to the first condition in Ladd v Marshall, the Defendant failed to explain why the complaints to CICC could not have been made before the hearing below. In fact, the Defendant had adduced evidence in her 1^st Affirmation showing that she had made online enquiries at an official website of the Canadian government with a view to verify whether the Plaintiff and Mak were licensed immigration consultant or not. She exhibited the search record and stated that the Plaintiff was not licensed and she challenged that the Plaintiff could not have legally provided consultancy service to her. Although the Defendant has misspelled the name of Mak in that search and the search record therefore had no evidential value, the point remains that the Defendant had ample time to make complaints or necessary enquiries with a view to obtain evidence to support her defence of illegality which she chose not to do so until after the hearing.

58.  As to the second condition in Ladd v Marshall, the Defendant deposed in the New Affirmation that the exhibits showed that the Plaintiff, the Plaintiff’s Associated Company, Mak and SVS were all not licensed immigration consultant with CICC.[20] The Defendant argued that the exhibits would have an important influence on the result of the case because they are evidence proving that the Plaintiff was not a licensee with CICC. I do not agree.

59.  As mentioned, the complaints made by the Defendant were against Muniza Ayube and Slava Apel, who were staff of SVS, and Mak, a director of the Plaintiff, not the Plaintiff, the Plaintiff’s Associated Company nor SVS as the Defendant claimed. Thus, even if the records were to be believed, they still did not prove that the Plaintiff was not licensed. I would also add that the contention that SVS was not licensed with CICC was only raised in the New Affirmation.

60.  Most importantly, there is no evidence of the relevant Canadian law to found the assertion that it would be illegal for the Plaintiff to provide consultancy service in Hong Kong if the three named individuals were not licensed with CICC.

61.  For the same reason above, had the Defendant acted with reasonable diligence, she would have obtained records to support the contention well before the hearing, although any reply from CICC would not be accepted as evidence of proving foreign law in any event: The Griesheim.

62.  Hence, the first and second conditions in Ladd v Marshall is also not met.

63.  Exhibit 4 is a record of an online tip submission made to the Canada Border Services Agency. However, there are absolutely no particulars as to who made it, when it was made and against whom it was made. I have no hesitation in finding that the Defendant has failed to meet any of the conditions in Ladd v Marshall.

(3) The main body of the New Affirmation

64.  The New Affirmation was filed on 26 January 2026 and served to the Plaintiff on 2 February 2026. I must say at the outset that the main body contained no new factual matters which are all argumentative in nature. Strictly speaking, it is not necessary for me to consider the contents in the context of Ladd v Marshall rule but I would deal with it briefly.

65.  Under Part II, the Defendant referred to exhibits 3a-d and 4 and argued that the requirements in Ladd v Marshall have been satisfied. [21] Having refused to admit the relevant exhibits, the corresponding submissions made in the main body should go as well.

66.  Under Part III[22], the Defendant complained that the way the hearing below was conducted was unfair to her being a litigant in person. She claimed that the learned Master had refused to consider her 1^st Affirmation and that she was not given the opportunity to supplement her submissions orally.

67.  Having read the transcript, I find that all the criticisms are utterly untrue. In any event, these are not factual matters relevant to the subject dispute. Most importantly, all evidence, properly admitted, would be considered in this appeal as if it came before the Court for the first time. I adopt the principles summarized by DHCJ H. Au-Yeung (as he then was) in 孫嬅徽 & Anor v CIS 環球機遇基金獨立投資有限公司[23], at §3:

“3. It is well established that an appeal against Master’s decision is dealt with by way of an actual rehearing of the application which led to the order under appeal, and the judge treats the matter as though it came before him for the first time. The judge will give the weight it deserves to the previous decision of the Master, but he is in no way bound by it. The judge in chambers is in no way fettered by the previous exercise of the Master’s decision. (Hong Kong Civil Procedure 2023, Volume 1, paragraph 58/1/2).”

68.  As to her grievance of not being treated fairly, the courts have emphasized that a litigant in person is not subject to a looser and lower standard compared to a litigant who is legally represented. In Success Land Development Ltd v Ferguson Hong Kong Ltd t/a New World Millennium Hong Kong Hotel[24], G Lam JA observed, at §26:

“26. … Whilst the lack of legal representation may justify making allowances in making case management decisions and in conducting hearings, it will generally not justify applying a lower standard of compliance with rules or orders of the court: Barton v Wright Hassall LLP [2018] 1 WLR 1119, §18.”

69.  Despite her lack of legal training, the Defendant had diligently prepared the May Submissions, the Appeal Documents and the Appeal Submissions with admirable legal knowledge. She was able to cite extensively authorities, ordinances and even the Hong Kong Civil Procedure in support of her arguments. At the hearing below, even that the May Submissions have not been admitted into as evidence, the learned Master has very fairly considered it as her submissions despite the Plaintiff’s objection. There is absolutely no basis at all for the Defendant to have suggested that she has not been treated fairly by the learned Master because she was acting in person.

70.  Under Part IV[25], the Defendant set out various factual disputes and contended that they were triable issues which should be determined at trial. There, the Defendant was not putting in new evidence for the purpose of raising factual disputes. Rather, she was advancing new arguments based on materials already before the Court. In my judgment, they are not new evidence and even if so they would have failed to satisfy the first condition in Ladd v Marshall. In any event, all those points raised have been repeated in the Defendant’s written and oral submissions and would be considered by this Court for the purpose of the appeal anyway.

71.  Lastly, it is to be pointed out that in Part III of the New Affirmation[26], the Defendant sought to challenge the summary assessment of costs on the general ground that the learned Master has failed to considered her objections. However, the Defendant’s Notice of Appeal did not identify the costs order as being under appeal, nor was it mentioned at all in the Appeal Documents. In my judgment, the Defendant is not entitled to challenge the learned Master’s assessment of costs in this appeal.

72.  For all of the above reasons, the Defendant’s application to adduce new evidence on appeal is dismissed.

73.  I shall now deal with the subject matter of the appeal.

74.  Since the issue of misrepresentation was raised not only as a defence but also the basis for her counterclaim, I would deal with both of the Defendant’s appeals against the summary judgment and the striking out of her counterclaim in my discussion below on the issue of misrepresentation. It would therefore be convenient for me to set out the applicable principles to both applications first.

APPLICABLE PRINCIPLES

75.  The applicable principles to summary judgment application are trite. The defendant must show that there are triable issues. He has to satisfy the court that he has a “real or bona fide defence” or “a fair probability or reasonable grounds that a bona fide defence exists”. If he makes an allegation, it must be credible or believable in the light of the evidence placed before the court: Hong Kong Civil Procedure 2026, Volume 1, §14/4/9.

76.  In assessing whether there are triable issues, the Court will not take the alleged defence at its face value but test it against the evidence disclosed in the affidavit including the contemporaneous documents or whether the defence is inconsistent with the defence previously put forward. The Court will also consider the inherent probability of the defence. The Court will not embark on a mini-trial on affidavits: Hong Kong Civil Procedure 2026, Volume 1, §14/4/9A.

77.  As to the legal principles applicable to a striking out, Mr Recorder Manzoni SC had summarized them in Polyline Development Limited (in liquidation) v Ching Lin Chuen & Others[27] at §10:

“10. As a matter of general principle, it is trite that:

(1) a strikeout application will only be successful in a plain and obvious case. The claim must be obviously unsustainable, the pleadings unarguably bad and it must be impossible, not just improbable, for the claim to succeed before the court will strike it out.

(2) However, plain is not the same as simple, and obvious is not the same as short. If, on a careful reading of the statement of claim, however complicated, it can be seen that there is no cause of action or the claim will obviously not succeed, then it will be struck out despite the apparent complexity.

(3) There should be no trial upon affidavit and disputed facts should be taken in favour of the party sought to be struck out. Where the legal viability of a cause of action is sensitive to the facts, an order to strikeout should not be made. However, the court should remain vigilant to ensure that its processes are not abused by the prosecution of hopeless claims.

(4) The court should not decide difficult points of law in striking out proceedings.

(5) It is for the party seeking to strikeout the pleading to demonstrate that the case is a plain and obvious one in which the other party’s claim is bound to fail…”

DISCUSSION

(1) Validity of the Agreement

78.  In the ADCC under the section concerning the enforceability of the Agreement, it was pleaded that the contents of the Agreement was neither explained to or agreed by her and was thereby unenforceable. She further raised that the date of the e-signing was 17 January 2022 whereas the date of the Agreement was 29 January 2022, the application should be made under the AML Project and she had never entered into any agreement with the 3 co-applicants.

79.  Subsequently in her 1^st Affirmation, the Defendant repeated the aforesaid and further contended that her e-signature contained in the Agreement was “copied-and-pasted” from the MNDA by the Plaintiff.

80.  I find that the Defendant’s assertions and in particular that the serious allegation that the e-signature was copied-and-pasted by the Plaintiff from the MNDA wholly incredible and contrived.

81.  Firstly, it does not take a handwriting expert to see that the two signatures of the Defendant’s in the MNDA and the Agreement were entirely different. Further, there was the contemporaneous record generated by Adobe Sign that the e-mail enclosing the Agreement was viewed by the Defendant (pollyng_hk@ymail.com) at “2022-01-15 5:54:37AM GMT – IP address: 14.0.228.23” and e-signed by her (pollyng_hk@ymail.com) at “2022-01-16 4:00:01 PM GMT – Time Source: server- IP address: 119.247.58.17”. The Defendant simply failed to explain all these. I also find that the challenge on the e-signature was an afterthought for it was not raised in her original or amended defence and counterclaim.

82.  Secondly, the Defendant has paid a sum of CAD 23,073.30 which was her 1^st Payment of 30% of the Consultancy Fee under the Agreement[28]. If the Defendant had not signed the Agreement and had only agreed to the MNDA, there is no explanation why she would have agreed to pay that specific amount to the Plaintiff.

83.  Thirdly, it is undeniable that the Defendant had participated in the Program as one of the Feeling members such that the LOS was eventually issued. It is therefore beyond a doubt that she had agreed to engage the Plaintiff for the purpose of participating in the Program and her application for PR Visa.

84.  Fourthly, when Mak chased the Defendant for settling the DO Costs in January, the Defendant never denied her liability to pay the Plaintiff or the validity of the Agreement. Rather, she responded by first saying that she needed to check her payment record and eventually asking time to pay by end of February.

85.  For all of the reasons above, I find that the Defendant has failed to raise any defence or triable issue on the e-signature appearing on the Agreement because it was e-signed by her.

86.  As to the contention that the contents of the Agreement were not explained to or agreed by the Defendant, I quoted the authoritative judgment of the Court of Final Appeal in Ming Shiu Chung & Ors v Ming Shiu Sum & Ors [29]:

“84 … Reliance is universally placed on signatures appended to documents by persons of full age and understanding as signing the signatory’s assent or adherence to what that document states. Where such a person has signed a document which purports to have legal effect, the law has never regarded it as enough to show that he signed without knowing its contents for the document to be disavowed. It is an everyday occurrence that people sign documents without reading the small (or even the large) print and therefore sign without actually knowing the terms (or all the terms) of the document signed. But they are held to the documents which they have chosen to sign unless there is shown to be a recognized legal basis for concluding that their apparent consent has been in some way vitiated or that reliance on that document by some other person falls into some category of unconscionable conduct justifying relief in equity.”

87.  By reason of my finding that the Defendant had e-signed the Agreement, there is no arguable defence or triable issue on the validity of the Agreement.

88.  Lastly, the Agreement was for rendering of services by the Plaintiff to the Defendant. The fact that the LOS was applied for and obtained together with other co-applicants has no bearing on its validity.

(2) Misrepresentation

89.  The issue of misrepresentation was raised as a defence as well as the basis of her counterclaim. If the Defendant’s case of misrepresentation cannot survive the lower threshold for resisting a striking out, it would have failed to raise any arguable defence in opposing the summary judgment application.

90.  The alleged misrepresentations are two-fold: one is on the timeframe relating to startup visa application and the other about the AML Project. They were said to have been made at the Webinar and in the leaflets of the Plaintiff. Although the Defendant did not pinpoint at which part during the Webinar were those alleged misrepresentations made[30], she produced 2 leaflets of the Plaintiff containing the timeframes for applications under the Program. In the PowerPoint slides played at the Webinar, there were also information about the said timeframes. It is the Defendant’s case that but for the misrepresentations, she would not have agreed to pay the Plaintiff (as she denied having entered into the Agreement with the Plaintiff).

91.  Although I agree with Mr Kwok that the Defendant has failed to condescend upon particulars of misrepresentation alleged, I find that she had made her case sufficiently clear on what the alleged misrepresentations were for the present purpose. Whatever statement the Plaintiff might have precisely made as alleged, one cannot dispute that insofar as the timeframes relating to PR Visa applications are concerned, those cannot be of present facts but as to a future state of affairs. The crucial question to ask is whether it is an actionable misrepresentation as a matter of law even if proved. If it is not, the counterclaim must be struck out and also no arguable defence raised to resist the summary judgment application.

(a) Whether the misrepresentation is actionable

92.  In Yang Dandan v Hong Kong Resort Company Ltd [31], the plaintiff claimed that she relied on a written misrepresentation in a floor plan brochure concerning the sale of units in a residential development which was under planning. The trial judge held that there was no actionable misrepresentation. The Court of Appeal affirmed the decision and Kwan JA held, at §§63-65 and 67:

“Statement of future intention

63. The Amalfi Description (“Mid-rise Residential Development Area Under Planning”) is not a statement of present fact but of future intention. It concerned a development under planning and not yet materialised. A statement of future intention is not an actionable misrepresentation.

64. If the representor does not have the belief or plan for his future conduct at the time he speaks, he is not telling the truth about his present state of mind and his representation can be characterised as a fraudulent representation of fact and hence actionable (Misrepresentation, Mistake and Non-Disclosure by Cartwright at §3-42). But that is not the situation here as the plaintiff’s counsel had disavowed reliance on fraudulent misrepresentation at the trial.

65. An honest statement of future fact or intention is simply a prediction or a promise, not a representation. “A statement as to a future state of affairs can in itself neither be true nor false at the time it is made, since the future cannot be foretold.” (Bank Leumi Le Israel B.M. v British National Insurance Co Ltd [1988] 1 Lloyd’s Rep 71, cited in Misrepresentation, Mistake and Non-Disclosure by Cartwright at §3-43). And if one party wishes to hold the other liable in the event that the prediction is not borne out by the facts as the future finds them or if the promise is not kept, the remedy at law is not in pre-contractual misrepresentation (Misrepresentation, Mistake and Non-Disclosure by Cartwright at §3-43).

…

67. Here one considers whether the plaintiff was in the circumstances entitled to rely on the statement in the Amalfi Description. The applicable law is as stated in the relevant paragraphs in Raiffeisen Zentralbank set out earlier. It is to be judged objectively according to the impact of the statement on a reasonable person in the position of the representee. The court considers what a reasonable person would have understood from the words used by looking at the nature and content of the statement, the context in which it was made, the characteristics of the maker and the person to whom it was made, and the relationship between them. Where the statement is accompanied by a qualification or explanation, this may indicate to a reasonable person that the representor was not assuming responsibility for the accuracy or completeness of the statement or was saying no reliance can be placed on it.” (emphasis added)

93.  In China Jianxin Credit Services Ltd v Chian Wah Yan Healthcare Ltd[32], Mr Recorder Abraham Chan SC said at §§19-22:

“19. In considering whether an alleged misrepresentation is actionable, the circumstances of the agreement and the parties’ dealings have to be considered as a whole. The core question is whether the representee was entitled to take the statement seriously and rely on it in deciding wither to enter into the contract. That question has often been considered from the vantagepoint of the totemic “reasonable man”. The qualities and particular vantagepoint of the “reasonable man” in a given case depend on its circumstances and context. [the learned Recorder then cited §67 of Kwan JA (misstated to be Lam VP’s) in Yang Dandan v Hong Kong Resort Company Ltd]

20. The test of reasonableness focuses on matters of substance, not form. An apparent statement of fact may, in substance, be no more than an unactionable expression of opinion. On the other hand, a person who states as his opinion something which he does not actually believe may be taken to have made a false statement of fact, the falsity here being in the indication that the person truly held the opinion in question.

21. While what counts as a non-actionable statement of opinion must depend on the overall circumstances, as a matter of general principle it is trite that the more vague and less objectively verifiable a statement, the more likely it is to be a mere matter of opinion that cannot be reasonably relied upon in deciding whether to enter into a disputed contract.

22. Further, to be actionable the representation must have played a “real and significant part” in inducing the representee to act upon it, though the representee does not have to prove that the representation was the sole reason why he acted upon it. The representee must prove that the representation did more than merely encourage him to act upon it or to confirm that he was right to act upon it. If the representee makes his own inquiries about whether the representation is true, he may be held to have relied on his inquiries in deciding to enter the contract rather than on the representation: see China Alarm Holdings Acquisition LLC v ING Alexander Yim Leung (unrep., HCA 503/2012, 24 March 2016) at §§134 and 137.”

94.  In our present case, there are clear disclaimer and qualifying statement at the bottom of the Plaintiff’s promotional leaflets and the PowerPoint slides played at the Webinar which are as follows:

(1) “The Canada Start-Up Visa Program Timeline 加拿大初創企業家簽證計劃時程表” that set out the respective timeframe for the application:[33]

“*The range of all processing times are referring to the estimate of a substantial portion of normal cases.

*AIMS has not made any representations, warranties or guarantees with respect to the outcome of the visa application, nor as to the timeframe for the review and submission of the visa application and the timeframe for the review and decision by the government and their agents. The service performed shall be on a best effort basis.”

(2) “Canada Entrepreneur Programme (Start-Up Visa)”[34] [and its Chinese version “加拿大企業家移民計劃 (初創企業家簽證)] [35]:

“Processing time: Approx. 12-16 months*

*Estimated time by Aims”

(3) At the beginning of the PowerPoint slides:

“免責聲明

AIMS提供的資訊僅供參考

有關詳盡的條款與細則

閣下應參閱官方網站資料”[36]

95.  In my judgment, the disclaimer and the qualifying statement that it is only estimated time by the Plaintiff are so clear that a reasonable reader even with lesser commercial and education background could not possibly regard the timeframe as any definitive statement of fact. The Defendant is an educated person though she clarified that she is not a qualified accountant as the Plaintiff claimed. With the clear qualifying statements and claimers in the leaflets, it is only reasonable and necessary for her to verify the accuracy and truth in any information therein before she could act on the same. From the evidence before the Court, it is clear that the Defendant did not make any enquiries on her own about the timeframe suggested by the Plaintiff in those leaflets.

96.  By reason of the above, I find that a reasonable person could not have relied on the timeframe set out in the leaflets as a definite statement of fact in light of these qualifying statements which are so clear. I therefore find that there was no actionable misrepresentation. On this ground alone, the Defendant’s counterclaim is plainly and obviously unarguable and should be struck out.

(b) Contractual estoppel

97.  Mr Kwok also relied on the doctrine of contractual estoppel to defeat the Defendant’s claim of misrepresentation. He relied on Clause 2.3 and part of Clause 13.1 of the Agreement which provide as follows:

“2.3 AIMS has not made any representations, warranties or guarantees with respect to the outcome of the application of the Program, nor as to the timeframe for the review and submission of the Program and the timeframe for the review and decision by the government and their agents. The service performed shall be on a best effort basis

13.1 “Each party acknowledged that … it has not relied upon any oral or written representation made to it by the other or its employees or agents and has made its own independent investigations into all matters relevant to it”

98.  In Ng Yuk Pui Kellt v Ng Lai Ling Winnie[37], one of the issues before the Court of Final Appeal was whether the doctrine of contractual estoppel is confined to dealings arising the contract or whether it extends to other aspects of their relationship which have nothing to do with the contract.[38] At §§25-27, Ribeiro PJ considered various leading authorities on contractual estoppel:

“25. Thus, in the leading case of Peekay Intermark Ltd v Australia and New Zealand Banking Group Ltd,[39] Moore-Bick LJ explained the doctrine’s operation by reference to what was agreed between the contractual parties:

“There is no reason in principle why parties to a contract should not agree that a certain state of affairs should form the basis for the transaction, whether it be the case or not. For example, it may be desirable to settle a disagreement as to an existing state of affairs in order to establish a clear basis for the contract itself and its subsequent performance. Where parties express an agreement of that kind in a contractual document neither can subsequently deny the existence of the facts and matters upon which they have agreed, at least so far as concerns those aspects of their relationship to which the agreement was directed. The contract itself gives rise to an estoppel: see Colchester Borough Council v Smith [1991] Ch 448, affirmed on appeal [1992] Ch 421.”[40]

26. And in Springwell Navigation Corp v JP Morgan Chase Bank,[41] another leading authority, Aikens LJ stated:

“... I will try and analyse the matter from principle. If A and B enter into a contract then, unless there is some principle of law or statute to the contrary, they are entitled to agree what they like. Unless Lowe v Lombank is authority to the contrary [which was held not to be the case], there is no legal principle that states that parties cannot agree to assume that a certain state of affairs is the case at the time the contract is concluded or has been so in the past, even if that is not the case, so that the contract is made upon the basis that the present or past facts are as stated and agreed by the parties.”[42]

He added:

“Like Moore-Bick LJ in Peekay I see commercial utility in such clauses being enforceable, so that parties know precisely the basis on which they are entering into their contractual relationship.”[43]

27. Finally, we should mention First Tower Trustees Ltd v CDS (Superstores International) Ltd,[44] in which Lewison LJ stated:

“It is now firmly established at this level in the judicial hierarchy that parties can bind themselves by contract to accept a particular state of affairs even if they know that state of affairs to be untrue. This is a particular form of estoppel which has been given the label ‘contractual estoppel’. Unlike most forms of estoppel it requires no proof of reliance other than entry into the contract itself. Thus as a matter of contract parties can bind themselves at common law to a fictional state of affairs in which no representations have been made or, if made, have not been relied on.”

99.  I wish also to cite another paragraph in Peekay Intermark Ltd which has direct application to our present case. At §57, Moore-Bick LJ observed:

“57. It is common to include in certain kinds of contracts an express acknowledgment by each of the parties that they have not been induced to enter the contract by any representations other than those contained in the contract itself. The effectiveness of a clause of that kind may be challenged on the grounds that the contract as a whole, including the clause in question, can be avoided if in fact one or other party was induced to enter into by representation. However, I can see no reason in principle why it should not be possible for parties to an agreement to give up any right to assert that they were induced to enter into by misrepresentation, provided that they make their intention clear, or why a clause, if properly drafted, should not give rise to a contractual estoppel of the kind recognised in Colchester Borough Council v Smith….” (emphasis added)

100.  Applying the above principles, I find that the clear provisions under Clauses 2.3 and 13.1 of the Agreement gave rise to a contractual estoppel. The effect of the clauses is that the Defendant is precluded from asserting that she was induced to enter into the Agreement by misrepresentation.

101.  Lastly, I will add that the Defendant’s case of alleged misrepresentation in relation the AML Project was extremely vague and without any particulars. If the Defendant was saying that the Plaintiff has made misrepresentation that her application under the Program would only be made with the AML Project as the startup business idea, I find it to be plainly without merit and unarguable.

102.  At the Webinar, Mak introduced 3 potential business ideas which could be used in applications to be made under the Program and the AML Project was one of them. Having watched the video of the Webinar, I note that Mak did expressly say that clients were welcome to introduce their own business ideas to support their applications. In the circumstances, there is absolutely no evidence to suggest that such alleged misrepresentation has been made by the Plaintiff. It also defies common sense to suggest that the Defendant would not have agreed to retain the Plaintiff as her agent in her application under the Program if it was not made under the AML Project.

103.  In the circumstances, there is no triable issue or arguable defence arising from the AML Project as alleged by the Defendant or at all.

(3) Illegality

104.  As discussed above, foreign law needs to be proved as a fact by way of expert evidence which the Defendant has failed to adduce. In the absence of any evidence in support, her case that the Agreement was illegal by reason of the Plaintiff’s lack of necessary licence in Canada and therefore unenforceable is nothing but a bare assertion. I find that the Defendant has failed to raise any arguable defence or any triable issue based on illegality.

105.  In any event, I find that there is in fact no place for any defence of illegality based on the Plaintiff’s non-qualification as immigration consultant in Canada.

106.  Under the Agreement, Clause 2.1 defines the scope of service to be rendered by the Plaintiff. Clause 2.2 provides that those services can be directly executed in the whole or in part by the Plaintiff, its affiliates, associated companies and its service providers. In other words, it has already been agreed that some or even all of the work could be performed by other entities but not the Plaintiff. In the circumstances, I do not find that the Defendant has made out a case that the Agreement would be tainted by illegality simply because the Plaintiff was not licensed with CICC as alleged.

(4) DO Costs

107.  The Defendant’s defence to the claim for DO Costs was that she did not understand the nature and necessity of the DO Costs. This is plainly unarguable.

108.  In the PowerPoint slides played at the Webinar, there was a diagram showing the costs under 2 different Service Packages in addition to the Plaintiff’s Consultancy Fee of CAD 85,000.[45]: Group A is CAD 160,000 under which the LOS would be issued by YEDI; and Group B is CAD 50,000 with the LOS issued by 3 named Incubators. When presented at the Webinar, Mak orally explained the differences between the 2 packages.

109.  By WhatsApp on 23 January 2024, Mak sent the said diagram shown in Webinar and 2 invoices to the Defendant followed by the following exchanges:

“Mak: I thought we already received a designated organization fee from you and just found out we haven’t. So sorry for bringing that out again. [emoji]

Mak: Of course I will count you in Group B. According to the promotion you received, you will get HK$38,000 credits.

Defendant: Ok

Mak: Thanks for your understanding. I just wasn’t paying too much attention on the collection of the fee [emoji]

Defendant: 因真係太耐要搵也要點時間

Mak: And as you can see, I won’t ask for payment if things are not ready

Mak: But it is ready to go now…. Finally [emoji]

Defendant: Okok

Mak: Thanks again

Mak: I don’t want to surprise you about the due date, so may I ask you what day is comfortable with you?

Defendant: would you mind due on 20? Feb

Defendant: also I want to double check

Defendant: also the balance is Cad 73837.7?

Mak: I am talking about the designated organisation fee, not AIMS consultancy fee.

Mak: this is AMS’s Consultancy Fee which is due after your got the LOS.

Mak: now, we are about to settle the designated organisation for issuing the LOS, so their fee is due.

Defendant: on or before 28 Feb

Defendant: Thanks

Mak: I thought we already received it from you and just found out we haven’t.

Mak: can I talk to you over the phone for that?

Mak: I am okay for that, but need to confirm something.

Defendant: because I remember I pay and then attend the class for two week

Mak: that’s why I want to confirm with you about that.

Defendant: but if I double check if no, would you mind paying on or before 28 Feb [emoji] I am available at 10 pm

Mak: I can but would like to have put it in writing.

Defendant: yes thanks for your help”

110.  The contemporaneous record above shows beyond a doubt that the Defendant was fully aware of her liability to pay the DO Costs. In the premises, the Defendant’s contention that she did not understand the nature and necessity of the DO Costs is plainly unbelievable.

111.  I agree with Mr Kwok that the Plaintiff is entitled to the DO Costs claim. The relevant provision under the Agreement for the Fee and Cost is Clause 4. Clause 4.1 provides for the amounts charged for the Consultancy Fee and Introduction Fee. Clause 4.2 set out that the said fees are to be settled by way of 3 payments. The provisions relied upon by the Plaintiff for the DO Costs Claim are Clause 4.3 and Clause 3.1.3 which provide as follows:

“4.3 The above fee is only for consultancy service pertaining to a single assignment and does not cover expenses for items such as the Program’s application fee, notarization fee, translation charges, visa, bank charges by the remitting bank and the receiving bank for wire transfer of payment, transportation, hotel accommodation, company/business incorporation, apartment leasing, courier, other incidental charges/fees, et cetera which may be incurred by [the Defendant].”

“3.1.3. The [Defendant] agrees to pay all fees and payments, on a timely basis as set forth in the Agreement and related Agreements, and which are required by the Program”

112.  In my judgment, the Defendant fails to raise any defence or triable issue to the Plaintiff’s claim for DO Costs.

CONCLUSION

113.  By reason of all of the above, the Defendant’s appeals against the decisions of the learned Master granting summary judgment and striking out her counterclaim are dismissed.

COSTS

114.  At the conclusion of the hearing, both Mr Kwok and the Defendant agreed that costs should follow the event and be summarily assessed by this Court. I therefore make an order nisi that costs of the appeal, including costs of and occasioned by the Defendant’s application to adduce new evidence, be paid by the Defendant with certificate for counsel. I make it clear that the order nisi only applies to the granting of certificate for counsel as the Defendant has not been given the opportunity to argue on the matter. I therefore make the following directions:

(1) The Plaintiff’s solicitors shall lodge and serve a Statement of Costs within 14 days hereof;

(2) The Defendant shall lodge and serve a submission setting out her objections to any item of costs and the granting of certificate for counsel if she so wishes within 14 days thereafter;

(3) The Defendant’s submission is not to exceed three pages on A4 paper, printed in font size of not less than 14 and in line spacing of not less than 1.5; any non-compliant submission will not be read by the court;

(4) Unless otherwise directed by the Court, the summary assessment of the Plaintiff’s costs shall be by way of paper disposal.