EASY ONE FINANCE LTD v. KWOK WAI YEE AND ANOTHER

DCCJ 3566/2017 & DCCJ 3567/2017

(Heard Together)

[2019] HKDC 133

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 3566 OF 2017

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IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 3567 OF 2017

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DECISION

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INTRODUCTION

1.  By summonses dated 29 September 2017, the plaintiff applied for judgments to be entered against the defendants in both actions pursuant to O 14 r 1 and O 83A r 4 of the Rules of the District Court.

2.  The plaintiff is a licensed money lender under the Money Lenders Ordinance (Cap 163) (“the Ordinance”).

3.  Madam Kwok Wai Yee (“Madam Kwok”) is the 1^st defendant in DCCJ 3566/2017 (“the 1^st Action”) and the 2^nd defendant in DCCJ 3567/2017 (“the 2^nd Action”). 

4.  Madam Kwok is the mother of the other defendant in both actions, Ho Ka Man (“Ho”). 

5.  In the 1^st Action, the plaintiff makes its claim against Madam Kwok as the borrower and Ho as the guarantor, whereas in the 2^nd Action, the plaintiff makes its claim against Ho as the borrower and Madam Kwok as the guarantor. 

6.  As the events in the 2^nd Action took place before those in the 1^st Action, I set out the plaintiff’s case in the 2^nd Action first.

THE PLAINTIFF’S CASE IN THE 2^nd ACTION

7.  Pursuant to a personal loan agreement dated 9 November 2016 between the plaintiff as the lender and Ho as the borrower, the plaintiff agreed to extend a loan in the principal sum of $500,000 at the interest rate of 27% per annum.

8.  The loan agreement provides that interest on the loan shall accrue on the contractual interest rate of 27% per annum both before and after judgment. In the event of default, the plaintiff shall be entitled to claim all outstanding sums, whether in respect of principal or interest at contractual interest as calculated, and to claim against Ho in respect of all costs (including legal costs) incurred for enforcement of the agreement on a full indemnity basis.

9.  Meanwhile, Madam Kwok signed a guarantee dated 9 November 2016 to guarantee the due and punctual payment of all moneys, obligations and liabilities due or owing by Ho to the plaintiff notwithstanding any dispute between the plaintiff and Ho.

10.  Clause 4.2 of the guarantee expressly provided, inter alia, that demands may be made under the guarantee from time to time and may be enforced irrespective of whether any steps or proceedings are or will be taken against Ho or any other person to recover the indebtedness claimed under the guarantee.

11.  Clause 12.1 of the guarantee provided that Madam Kwok shall reimburse the plaintiff on a full indemnity basis on all costs, charges and expense incurred by the plaintiff in enforcing any of the plaintiff’s rights under the guarantee.

12.  Pursuant to the loan agreement, the plaintiff advanced a sum of $500,000 to Ho on 9 November 2016.

13.  According to the repayment schedule, the loan shall be repaid by Ho by 6 monthly instalments with the 1^st instalment on 9 December 2016 and thereafter on the 9^th day of each calendar month with the amount for the 1^st to 5^th instalments be $11,250 each and the amount for the 6^th instalment be $511,250.

14.  In breach of agreement, Ho never made any repayment of the loan or interest thereon to the plaintiff.

THE PLAINTIFF’S CASE IN THE 1^st ACTION

15.  On 20 December 2016, Madam Kwok attended the plaintiff’s office to apply for a loan in the principal sum of $700,000.  After the loan application was approved, the plaintiff as the lender and Madam Kwok as the borrower entered into a loan agreement dated 20 December 2016 (“20 December Agreement”) whereby the plaintiff agreed to extend a loan in the sum of $700,000 at the interest rate of 24% per annum. 

16.  On 21 December 2016, Madam Kwok attended the plaintiff’s office again to sign a memorandum of agreement (“the Memorandum”) pursuant to section 18(2) of the Ordinance and other documents. 

17.  Seeing that Madam Kwok was one of the registered owners of a property at Nan Fung Plaza, Tseung Kwan O, New Territories (“the Nan Fung Property”), the plaintiff instructed its then solicitors, Messrs Au, Thong & Tsang (“ATT”) to prepare another loan agreement (“21 December Agreement”) with a view to securing the repayment of the loan by registering the same against the Nan Fung Property.  As the 21 December Agreement was not a mortgage, however, the plaintiff did not succeed in registering it against the Nan Fung Property.

18.  The 20 December Agreement and the 21 December Agreement both provided that interest on the loan shall accrue on the contractual interest rate of 24% per annum before and after judgment.  In the event of default, the plaintiff shall be entitled to claim all outstanding sums, whether in respect of principal or interest at contractual interest as calculated, and to claim against Madam Kwok in respect of all costs (including legal costs) incurred for enforcement of the agreement on a full indemnity basis.

19.  Meanwhile, Ho signed a guarantee dated 21 December 2016 to guarantee the due and punctual payment of all moneys, obligations and liabilities due or owing by Madam Kwok to the plaintiff on the same terms as those contained in the guarantee signed by Madam Kwok in the 2^nd Action. 

20.  On 21 December 2016, the plaintiff advanced a sum of $700,000 by way of 4 cheques issued to Madam Kwok.  The cheques were deposited into a bank account held in the joint names of Madam Kwok and Ho. 

21.  According to the repayment schedule, the loan shall be repaid by Madam Kwok by 6 monthly instalments with the 1^st instalment on 21 January 2017 and thereafter on the 21^st day of each calendar month with the amount for the 1^st to 5^th instalments be $14,000 each and the amount for the 6^th instalment be $714,000.

22.  Madam Kwok never made any repayment of the loan or interest thereon to the plaintiff. 

THE PRESENT APPLICATIONS

23.  In both actions, the Writ of Summons indorsed with a Statement of Claim was issued on 8 August 2017. 

24.  Ho has acknowledged service of the Writs of Summons in both actions and stated that he does not intend to contest the proceedings. 

25.  Madam Kwok, on the other hand, contests both sets of the proceedings. Her case will be discussed in further detail below.

26.  On 29 September 2017, the plaintiff issued the present summonses to seek summary judgments to be entered against Madam Kwok under O 14 r 1, and judgments in default of notice of intention to defend to be entered against Ho under O 83A r 4. 

27.  In support of its application in the 1^st Action, the plaintiff has filed the following affirmations:-

(1)   Affirmation of Fung Kam Shing Barry (“Barry Fung”);

(2)   Affirmation of Kwok Ming Ho Alan (“Alan Kwok”);

(3)   Affirmation of Stephanie (“Stephanie”); and

(4)   Affirmation of Chan Hoi Hin Calvin (“Calvin Chan”).

28.  In support of its application in the 2^nd Action, the plaintiff has filed the following affirmations:-

(1)   Affirmation of Barry Fung;

(2)   Affirmation of Alan Kwok; and

(3)   Affirmation of Stephanie.

29.  According to the plaintiff’s evidence, as at 21 July 2017:-

(1)   the total outstanding indebtedness in the 1^st Action was $713,347.94 with daily interest on the principal sum of $700,000 to be accrued at the rate of $460.27 per day from 22 July 2017 until full payment; and

(2)   the total outstanding indebtedness in the 2^nd Action was $526,630.13 with daily interest on the principal sum of $500,000 to be accrued at the rate of $369.86 per day from 22 July 2017 until full payment.

MADAM KWOK’S CASE

30.  Madam Kwok has not filed a defence in either action.  To oppose the plaintiff’s summonses, however, Madam Kwok has in each action filed an affirmation on 24 November 2017 and the following matters having been raised in both affirmations.  

31.  According to Madam Kwok, she and her husband are illiterate and have never received any formal education.  They worked as hawkers selling fish in the market.  Although they can write and sign their names in Chinese and converse in Cantonese, they cannot read or write the Chinese language or any other languages. 

32.  Madam Kwok has 4 children.  Ho is the eldest son.  The other sons are Ho Ka Lung (“Lung”), Ho Ka Chun (“Chun”) and her daughter is Ho Ching Yan (“Yan”).  Due to her and her husband’s illiteracy, they have wholeheartedly relied on and trusted their children, especially Ho, for their knowledge, advice and support. 

33.  The Nan Fung Property is registered in the joint names of Madam Kwok, Lung and Chun.  In addition to the Nan Fung Property, Madam Kwok’s family has also purchased another property at Residence Oasis, Tseung Kwan O, New Territories (“Oasis Property”), which is registered under the joint names of Madam Kwok, her husband and Ho.  Madam Kwok, her husband, Lung and Chun reside in the Oasis Property (Yan has married and does not live with them), while Ho’s own family live in the Nan Fung Property. 

34.  According to Madam Kwok, in or around late 2015, Ho told her that there were serious water seepage problems at the Nan Fung Property and notice had been given by the Food and Environmental Hygiene Department (“FEHD”) that urgent action was required to handle the seepage.  Ho further told her that under certain new law, on behalf of the registered owners Madam Kwok had to sign some documents to confirm her ownership of the Nan Fung Property in order to deal with FEHD.  Madam Kwok believed what Ho said and asked him to handle the problem accordingly.

35.  Over the course of 2016 to 2017, Ho had brought to her several documents to sign.  On other occasions, he had brought her to places which appeared to be commercial or lawyers’ offices to sign documents. 

36.  As she could not read or write Chinese, she did not understand the contents of any documents presented to her.  As she trusted Ho, she signed wherever he instructed her to place her signature.  Little did Madam Kwok know that the alleged water seepage problem was part of Ho’s fraudulent scheme to induce her to sign various loan agreements and guarantees from different finance companies, including the plaintiff. 

37.  In May 2017, Madam Kwok’s family was shocked to receive a letter from a finance company called Fulling Limited (“Fulling”), requesting their confirmation for audit purposes that she and her husband (together with Ho) owed Fulling an alleged loan in the principal sum of $8,500,000 (“the Fulling transaction”). 

38.  On 30 May 2017, Ho called Yan and her husband and confessed to have taken out various loans by forging the signatures of Madam Kwok and her husband, and by using a false power of attorney in their names.  Subsequently, Lung found from Ho’s car copies of various loan agreements, including the 20 December Agreement and the repayment schedule in the 1^st Action, that bore the signatures of Madam Kwok, her husband and Chun.  According to Madam Kwok, she “had never known and/or been made aware of and/or had ever seen and/or signed on the said recovered documents”.

39.  Since around the end of May 2017, Madam Kwok has not been able to contact Ho, who has been hiding somewhere.  No one can find him unless he takes the initiative to do so.

40.  On 2 June 2017, Madam Kwok’s husband and Lung made a report to the police concerning Ho’s forgery in the Fulling transaction. 

41.  Fulling has commenced High Court Action HCA 1794/2017 against Madam Kwok, her husband and Ho for the recovery of the alleged loan of $8,500,000. In that action, Madam Kwok and her husband rely on the defence of forgery and undue influence and they have also issued third-party proceedings against Ho and one Brian Chan, the solicitor who allegedly prepared the power of attorney.

42.  Based on her affirmations, Madam Kwok’s case appears to be that she was misled by Ho into signing the plaintiff’s documents under the false belief that they were related to the seepage problem at the Nan Fung Property. Alternatively, her signatures on the relevant documents were forged by Ho as in the Fulling transaction.  

SUMMARY JUDGMENT – APPLICABLE PRINCIPLES

43.  There is no dispute between the parties as to the principles that are applicable to an application for summary judgment.  In Menfond Electronic Art & Computer Design Co Ltd v Wong Wang Tat Victor [2013] 2 HKC 259 at §61, DHCJ Lisa Wong SC (as she then was) summarised the principles as follows:-

(1)   It is for the defendant to show that there is an arguable defence or triable issue.  In doing so, the defendant must condescend to particulars.  The mere assertion in an affidavit of a given situation by the defendant does not, ipso facto, ground leave to defend. 

(2)   The defendant must satisfy the court that his evidence is capable of being believed and that on the basis of such evidence, there is a fair or reasonable probability of the defendant having a real or bona fide defence. 

(3)   In deciding whether there is a fair or reasonable probability of the defendant having a real or bona fide defence, the court does not isolate each factual issue and consider whether it is possible that the defendant’s story on that issue is credible.  Rather, the court must look at the whole situation. 

(4)   In assessing the credibility of the defendant’s factual case, while the court will not embark on a mini-trial on affidavit evidence, the court is not obliged to suspend its critical faculties and assume that the defendant’s evidence is accurate.  If having regard to inherent plausibility, inconsistency with contemporaneous documents and other compelling evidence, the defence is not credible, the court must say so.  If the defendant’s defence is incredible in any material respect, it cannot be said that there is a fair or reasonable probability that the defendant has a real or bona fide defence.

ANALYSIS – THE 1^st ACTION

44.  In addition to the matters summarised above, Madam Kwok has also specifically deposed the following as her defence in the 1^st Action:-

“25. … I confirm that although [Ho] had brought me to various places to sign several documents, I have never been greeted by or made known to a ‘Mr Alan Kwok’. From my understanding, I have never even attended the Plaintiff’s office, whether on 20 December 2016 as alleged or otherwise. Consequently, none of the Plaintiff’s solicitor and/or agents could ever have explained to me the contents and effect of any documents which I have apparently and allegedly signed, and I was never given the opportunity and/or received any independent legal advice. Neither was a copy of the Purported Loan Agreement and/or the purported Repayment Schedule and/or the purported memorandum … had ever been provided to me by the Plaintiff or anyone else…Further, I have never received any statements in relation to the Plaintiff’s Purported Loan.

26. Given the suspicious circumstances under which my signature made its way to the various lending agreements, including but not limited to the Purported Loan Agreement, and since I have never even attended the Plaintiff’s office before my legal advisers have advised and I verily believe that the Plaintiff probably have had actual and/or constructive knowledge of [Ho’s] forgery of my signature or undue influence over/misrepresentation to me in obtaining my signature for, amongst other things, the Alleged Plaintiff’s Loan.

…

29.   In these circumstances, contrary to Fung’s Affirmation, I believe that I do have a good defence against the Plaintiff’s claim; for I have never intended nor was informed about my entering into the Alleged Plaintiff’s Loan and/or any lending agreement(s).  My signatures on the Purported Loan Agreement and/or the purported Memorandum and/or the purported Repayment Schedule could have been forged by [Ho].  Even if the same were signed by me, I had signed under [Ho’s] inducement, misrepresentation and/or undue influence, for which the Plaintiff have [sic] actual and/or constructive knowledge of.”

45.  Ms Deanna Law, counsel for the plaintiff, criticised Madam Kwok’s evidence in number of respects.  First, it is argued that Madam Kwok’s allegations are all bare assertions.  It is also argued that Madam Kwok’s case is couched in ambiguous terms such as she had “never been made aware” or “informed” that she had attended the plaintiff’s office, and the plaintiff “probably had actual and/or constructive knowledge” of Ho’s forgery of her signature and or undue influence and/or misrepresentation.  Ms Law submitted that this scattergun approach demonstrated that Madam Kwok’s allegations are unbelievable. 

46.  Thirdly, Ms Law argued that Madam Kwok’s allegations are contradicted by the evidence, on oath, of the plaintiff’s representatives as well as a clerk of ATT, being a firm of solicitors.  In particular, it is said that contrary to Madam Kwok’s allegations that she had never attended the plaintiff’s office, she never met anyone from the plaintiff and she was not explained the contents of the loan documents:-

(1)   Alan Kwok affirmed that on 20 December 2016, he was working in the plaintiff’s office as usual and that Madam Kwok did attend his office to make the application of the loan by signing the 20 December 2016 Agreement and that before the signing, he explained the terms of the agreement to her and she signed on it voluntarily.

(2)   Stephanie, a director of the plaintiff, also affirmed that Alan Kwok did explain to Madam Kwok the terms of the 20 December Agreement which she signed at the end of the meeting on that day, as this was the plaintiff’s standard policy. 

(3)   Stephanie further affirmed that on 21 December 2016, Madam Kwok in fact attended the plaintiff’s office for a second time to sign the Memorandum and other documents, the contents of which were explained to her before execution. Madam Kwok executed the 21 December Agreement at the office of ATT, and that Madam Kwok was accompanied by the plaintiff’s Leung Kwok Fai to ATT.  At ATT, one Calvin Chan interpreted the 21 December Agreement to Madam Kwok and explained its legal effect and asked her to sign on an acknowledgment relating to independent legal advice.  Madam Kwok further executed an Acknowledgment of Receipt of the loan of $700,000 at ATT. 

(4)   Calvin Chan of ATT also affirmed that on 21 December 2016, Madam Kwok did attend ATT’s office with Leung Kwok Fai for the execution of documents.  He described that it was his usual practice to have a separate meeting with the person for execution of the documents and to explain the contents of the documents.  Due to the lapse of time, however, he does not recall every detail during the execution of the documents by Madam Kwok but there is no reason he would not have followed his usual practice.  Lastly, he confirmed that at the meeting with Madam Kwok on that day, no other person was present at the meeting except Leung Kwok Fai.

47.  Ms Law argued that it is inconceivable that several representatives of the plaintiff and ATT would collude together and lie on oath to suggest that they witnessed Madam Kwok’s attendance of the plaintiff’s office and ATT’s office to sign the various documents.  In particular, it was argued that as ATT is not a party to these proceedings and there is no evidence that ATT has any vested interest in the matters, there is no conceivable reason for Calvin Chan to lie. 

48.  Having considered Madam Kwok’s affirmations in detail, I agree with Ms Law’s submissions to the extent that Madam Kwok’s case is presented in a highly ambiguous manner.  In both actions, Madam Kwok appears to rely on a mix of forgery, undue influence and misrepresentation/non est factum as her defence to the plaintiff’s claim.  However, it is difficult to discern from her evidence what primary and alternative cases she is seeking to put forward.  Further, in the context of a loan transaction, the defence of undue influence is usually engaged by a surety who seeks to avoid a transaction in which he has no interest.  In the 1^st Action, it is unclear on what basis Madam Kwok alleges that she, as a primary borrower, entered into the loan transaction under undue influence and how the plaintiff had actual or constructive knowledge of the alleged undue influence.  

49.  At the hearing, Ms Yvonne Fong, counsel for Madam Kwok, conceded that in preparing the affirmations, Madam Kwok had conflated her defences in the two actions.  Ms Fong clarified that Madam Kwok’s primary case in the 1^st Action is that her signatures were procured by Ho’s misrepresentation and/or she signed the documents believing that they were related to the water seepage problem.  Alternatively, it was said that given Ho had made the confession to Yan and her husband, Madam Kwok’s signatures on the loan documents could have been forged by Ho. 

Non est factum/misrepresentation

50.  A party who seeks to rely on non est factum as a defence must prove that the transaction with which the document he signed was concerned is fundamentally different in substance from the transaction which he understood it to be, and that he had acted with reasonable care when he signed the document: Saunders v Anglia Building Society [1971] AC 1004.  Where a person signs a document in a language he does not understand, he is necessarily negligent unless he has been actively misled as to its nature: Kincheng Banking Corporation v Kao Yu Kuei [1986] HKC 212 per Huggins VP at 215.   

51.  There can be no dispute that the defence of non est factum is only allowed in exceptional circumstances and there is a heavy burden of proof on the person who seeks to invoke this defence: Re Leung Lai Hing Cindy (unreported, HCB 6777/2015, 3 April 2017) per Ng J at §12.  In Lloyds Bank plc v Waterhouse [1993] 2 FLR 97, the defendant provided a guarantee for the bank as security of a loan raised by his son on the purchase of a property.  It was alleged that he was doing no more than guaranteeing enough money to enable his son to buy the farm, and his position would be protected by the sale of the land if that proved necessary. The guarantee he signed was in fact an “all monies” guarantee. The English Court of Appeal found that the defence of non est factum was established (Woolf LJ dissenting on this issue) on the following grounds:-

(1)   he was under a disability, namely, he was an illiterate person;

(2)   the document which he had signed was fundamentally different from the document he thought he was signing, the all monies guarantee was different within the concept of non est factum from the guarantee restricted to money borrowed for the purchase of land; and

(3)   he was not careless in that he had not failed to take proper precaution to ascertain the significance of the document he was signing. He had made exhaustive enquiries of the bank’s representatives.  The court further held that the answers he received to his enquiries amounted to negligent misrepresentation.

52.  In the present case, Ms Fong argued that the relevant loan documents (including the 20 December Agreement and 21 December Agreement) are void on the ground of non est factum because Madam Kwok, being illiterate, was under a disability and she signed the documents on the erroneous understanding that they were related to the water seepage problem at the Nan Fung Property.

53.  Ms Law criticised Madam Kwok for failing to provide any particulars in respect of how Ho had allegedly misrepresented to Madam Kwok as to the nature of the documents.  In response, Ms Fong argued that this was not a valid criticism as Madam Kwok has no clear recollection of where Ho had taken her and what documents she had signed on each occasion, and hence it was not possible for her to provide any details. 

54.  In my view, even if I accepted Madam Kwok’s case that she was illiterate and she misunderstood the loan documents as being related to the water seepage problem, her evidence does not give rise to an arguable defence of non est factum because there is not a shred of evidence that she had exercised reasonable care when she signed any of the documents that Ho had given to her. The loan agreements and the repayment schedule contained references to various sums of money (which Madam Kwok must have understood as they were expressed in numerical figures).  If Madam Kwok’s understanding was that the documents were to confirm her ownership of the Nan Fung Property, one would expect her to have at least asked what those sums or figures related to.  There is no evidence that she had done so.

55.  Further, contrary to the situation in Lloyds Bank plc v Waterhouse, there is no suggestion, let alone evidence, that it was the plaintiff who misled Madam Kwok.  Thus, even if there was any misunderstanding or lack of understanding on her part of the nature of the loan documents, it was the result of her failure to obtain a clear idea of their contents before she signed them and she is precluded from relying on non est factum as a defence.

56.  Ms Fong had also strenuously argued that Madam Kwok was never explained the meaning and effect of the loan documents.  But this argument missed the point because the plaintiff was under no duty to read or explain the documents to Madam Kwok in the first place: Kincheng Banking Corporation v Kao Yu Kuei per Huggins VP at 215.

57.  As to the alleged misrepresentation by Ho, in order to set aside the loan transaction, Madam Kwok would need to show that Ho was an agent of the plaintiff acting within the scope of his authority, or that the plaintiff had notice of the misrepresentation: Chitty on Contracts (33^rd ed.) §7-025.  There is no suggestion that Ho was an agent of the plaintiff. There is also nothing to show that the plaintiff was party to, or even aware of, any misrepresentation.  It follows that Madam Kwok’s allegation of misrepresentation cannot be a defence to the plaintiff’s claim.

58.  In conclusion, I do not think Madam Kwok has raised an arguable defence of non est factum or misrepresentation.

Forgery

59.  In the event that Madam Kwok’s case on non est factum and misrepresentation does not succeed, Ms Fong urged the court to take into account Ho’s admission of forgery and wrongful conduct in the Fulling transaction and infer that Madam Kwok’s signature in the loan documents were, or could have been, forged by Ho.  

60.  Ms Law in response urged the court to reject Madam Kwok’s case on forgery because her evidence was self-serving and irrelevant for the following reasons:-

(1)   According to Madam Kwok, Lung had told her that Ho had surrendered himself to the police and confessed to the forgery of her and her husband’s signatures, as well as the undue influence and misrepresentations that he had made on Madam Kwok.  Yet Lung did not make any affirmation in support of his mother’s allegations in these actions, even though one would expect that there would be no difficulty for him to do so. 

(2)   Although Madam Kwok exhibited the transcript of the alleged telephone conversation amongst Ho, Yan and Yan’s husband, it is striking that the audio recording (assuming there is one) is not exhibited and neither Yan nor Yan’s husband had filed any affirmation in these actions, despite that they are in the best position to explain to the court the circumstances of the alleged call.  It is highly questionable whether the alleged call existed.

(3)   In any event, even if such a telephone conversation did take place, the transcript shows that Ho’s confession was only related to his forgery of his parents’ signatures on the power of attorney in the Fulling transaction, and there was no mention of the present loan transactions with the plaintiff. 

(4)   Likewise, the police statements made by Madam Kwok’s husband and Lung were only concerned with the Fulling transaction, and they had nothing to do with the plaintiff’s loans.

61.  At the hearing, Ms Fong sought to explain that Lung, Yan and Yan’s husband did not make any affirmations in these proceedings because Madam Kwok wanted to save costs.  I do not find this explanation convincing as Madam Kwok is a joint owner of at least two properties and she has engaged solicitors and Ms Fong, counsel of considerable seniority, to represent her in these proceedings.  It cannot be said that she is lack of financial means.  As for why the audio recording of the alleged telephone conversation was not exhibited, Ms Fong did not provide any explanation. 

62.  Having considered Madam Kwok’s evidence, I think Ms Law’s criticisms were fairly made.  After all, an allegation of forgeryis a serious allegation and it is trite that the more serious the allegation, the less likely it is that the event occurred and the party who alleges forgery will bear the burden of proving by cogent and compelling evidence: Billion Wealth Group Limited v Strategic Media International Ltd (unreported, HCMP 2586/2009, 3 May 2010) per Fok J (as he then was) at §40.

63.  However, I have not overlooked the fact that this is an application for summary judgment and the relevant test is whether Madam Kwok’s evidence is believable, not whether it will be believed at trial. Ultimately, whether Madam Kwok had signed the loan documents is a question of fact.  In the absence of contemporaneous documents that are either undisputed or indisputable (as in the case of Billion Wealth), the court is essentially being asked to decide which of the two competing versions of events is more credible solely on the basis of the affidavit evidence.  This would be tantamount to conducting a mini trial on affidavits and I decline to do so.

64.  Having broadly assessed the parties’ evidence, I am of the view that this is a case where there are good grounds for believing that Madam Kwok’s defence of forgery is so shadowy that I am prepared very nearly to give judgment for the plaintiff.  According to the established legal principles,  a court in such circumstances should  grant a defendant leave to defend by imposing a condition requiring the defendant to pay the full amount claimed or a part thereof into court as a condition to defend: Hong Kong Civil Procedure 2019 §14/4/16.

65.  In determining an appropriate sum to be ordered to be paid as a condition to defend, a court should consider all the circumstances, which include a consideration of the defendant’s financial circumstances.  The court should also not impose a condition where, for example, the payment into court of such a sum of money as would make fulfilment of the condition impossible, and that impossibility was known or should have been known to the court by reason of the evidence placed before it such as it would be a wrong exercise of discretion to grant the defendant leave to defend on condition that he should pay into court a sum which he would never be able to pay.  The burden however is on the defendant to adduce sufficient and proper evidence as to his means: Hong Kong Civil Procedure 2019 §14/4/16A.

66.  In this case, Madam Kwok has not adduced any evidence as to her means in the event that the court was to impose a condition of requiring her to make a payment into court.  I have considered all the circumstances of the case, in particular the fact that the loan amount of $700,000 was undisputedly paid into the joint account of Madam Kwok and Ho, and that Madam Kwok is an owner of at least two properties, I am satisfied that she should pay a sum of $700,000 as a condition to defend and I will so order.

ANALYSIS – THE 2^nd ACTION

67.  In her affirmation filed in the 2^nd Action, Madam Kwok has deposed the following as her defence to the plaintiff’s claim under the guarantee:-

“27. I confirm that I had never seen, let alone signed the Purported Guarantee (and the Warning Notice). Even if I had seen them, which I deny, I could never have understood the true contents and/or nature of this document as the gift of the documents, including the terms of the Purported Guarantee is entirely in English, which I could never understand.

28. Furthermore, my legal advisers advised and I verily believe that under my signatory, the entry beside ‘in the presence of’ is left blank. Even if I had signed on the Purported Guarantee and the Warning Notice, I had never been explained their contents by anybody, and there was nobody of any of the Plaintiff and/or his solicitors and/or his agents who had witnessed my signing, and that I was never given the opportunity and/or received any independent legal advice. Neither was a copy of the Purported Guarantee (and Warning Notice) ever been provided to me by the Plaintiff or anyone else.

29. Additionally, I was never provided with a copy of the Purported Loan Agreements and the terms of such had never been explained to me in execution of the Purported Guarantee …

30. Given the suspicious circumstances under which my signature made its way to the various lending agreements, including but not limited to the Purported Guarantee (and the Warning Notice), and since I have never even attended the Plaintiff’s office before, my legal advisers have advised and I verily believe that the Plaintiff probably have had actual and/or constructive knowledge of [Ho’s] forgery of my signature or undue influence over / misrepresentation to me in obtaining my signature for, amongst other things, to act as a purported guarantor for the Alleged Plaintiff’s Loan.

…

33. In these circumstances, contrary to Fung’s Affirmation, I believe that I do have a good defence against the Plaintiff’s claim; for I have never intended nor was informed about my entering into the Purported Guarantee for the alleged Plaintiff’s Loan and/or any lending agreement(s).  My signatures on the Purported Guarantee (and Warning Notice) could have been forged by [Ho].  Even if the same were signed by me, I had signed under [Ho’s] inducement, misrepresentation and/or undue influence, for which the Plaintiff have [sic] actual and/or constructive knowledge of.”

68.  Again, Madam Kwok’s evidence is couched in terms of elements of undue influence, forgery, non est factum or misrepresentation.  At the hearing, Ms Fong clarified that her client’s primary defence in the 2^nd Action is undue influence, followed by non est factum or misrepresentation, with forgery as her alternative defence. 

Undue influence

69.  The legal principles on undue influence are well established and they have been discussed extensively in cases such as Royal Bank of Scotland plc v Etridge (No. 2) [2002] AC 773; and Li Sau Ying v Bank of China (Hong Kong) Ltd (2004) 7 HKCFAR 579.  Applying those principles, it is necessary to consider the following questions:-

(1)   Has the defendant proved to the satisfaction of the court that the transactions were affected by the undue influence?

(2)   If yes, did the plaintiff know of the presence of undue influence and was put on inquiry accordingly?

(3)   If the plaintiff was put on inquiry, did it take reasonable steps to establish that the transaction was not procured by undue influence?

See Etridge (supra) per Lord Hobhouse at §101.

70.  Question (1) will be considered with reference to the classification of undue influence cases.  Traditionally, there are two types of undue influence cases, actual undue influence (Class 1) and presumed undue influence (Class 2). 

71.  In Class 1 cases, the complainant is required to prove that the wrongdoer exerted undue influence.  In Class 2 cases, the complainant only has to show there was a relationship of trust and confidence with the wrongdoer of such a nature that it is fair to presume the wrongdoer exerted undue influence, and the burden would then shift to the other party to prove that the impugned transaction was entered into freely.  Class 2 is divided into 2A, in which certain relationships as a matter of law would raise the presumption of undue influence, and 2B, in which the complainant has to prove the de facto existence of a relationship by which he reposed trust and confidence in the wrongdoer: Sun Hung Kai Investment Services Ltd v Quality Prince Ltd (unreported, CACV 278/2009, 14 May 2010) per Kwan JA at §18. 

72.  It is accepted by Ms Fong that Madam Kwok’s relationship with Ho falls within Class 2B, such that her client has to prove that she had reposed trust and confidence in Ho.  In support of her client’s case, Ms Fong referred to Madam Kwok’s evidence that she is illiterate, and both of her properties are held in the joint names of her children, including Ho.

73.  The question as to whether Madam Kwok and Ho shared a relationship of trust and confidence and whether Ho had abused his influence on his mother is one of fact which can only be determined upon trial.  However, assuming for present purposes that I accept Madam Kwok’s case that she reposed trust and confidence in Ho, it remains for her to demonstrate that Ho was acting as the plaintiff’s agent or that the plaintiff had actual notice of the undue influence, or the transaction was not readily explicable by the parties’ relationship such that the plaintiff was put on inquiry: Chitty on Contracts (33^rd ed.) §8-092; Etridge (supra) per Lord Nicholls at §21; Bank of China (Hong Kong) Ltd v Wong King Sing [2002] 1 HKLRD 358 per Recorder Ma SC (as he then was) at §§47-48.

74.  Here, Madam Kwok has not suggested that Ho was the plaintiff’s agent. Moreover, other than bare assertions, there is no evidence whatsoever as to how the plaintiff had actual and/or constructive notice of the undue influence.  It is not even suggested that the plaintiff should have been aware that the transaction was inexplicable unless it had been procured by improprieties such as undue influence or misrepresentation.

75.  Thus, even if Madam Kwok’s evidence on Ho’s undue influence were accepted in its entirety, this could not lead to the conclusion that the plaintiff was aware that Ho had exercised undue influence over Madam Kwok or she did not sign the guarantee of her own volition. Therefore, there is no evidential basis to support the allegation that the plaintiff had actual or constructive knowledge of the alleged undue such that it was put on inquiry. 

76.  In conclusion, I do not think Madam Kwok has raised an arguable defence of undue influence in the 2^nd Action. 

Non est factum/misrepresentation

77.  Madam Kwok’s case of non est factum and misrepresentation in the 2^nd Action is essentially the same as that in the 1^st Action.  For the same reasons as discussed above, this court rejects her defence of non est factum and misrepresentation.

Forgery

78.  Again, Madam Kwok’s case of forgery here is the same as that in the 1^st Action.  For the same reasons as discussed above, I am of the view that Madam Kwok’s defence is shadowy and leave to defend should only be granted on condition of a payment into court.  Having considered all the circumstances of the case, I am satisfied that Madam Kwok should pay a sum of $500,000 as a condition to defend and I will so order.

APPLICATIONS UNDER O 83A r 4

79.  As mentioned above, Ho has acknowledged service of the Writs of Summons in both actions and stated that he does not intend to contest the proceedings.

80.  Having considered the materials before me, including the original loan agreements and guarantees for the subject transactions, I am satisfied that the plaintiff has complied with the requirements under O 83A r4 and judgment should be entered against Ho in both actions.  It goes without saying that if Madam Kwok is eventually held to be liable in any of these two actions, her liability would be joint and several with that of Ho in the relevant action(s).

CONCLUSIONS AND ORDERS

1^st Action – DCCJ 3566/2017

81.  In respect of the plaintiff’s applications in the 1^st Action, ie  DCCJ 3566/2017, I make the following orders:-

(1)   unless the 1^st defendant pays $700,000 into court within 28 days from the date of the handing down of this judgment, the plaintiff may enter judgment against the 1^st defendant for the amount claimed in the statement of claim with interest and costs, which costs are to be taxed on an indemnity basis if not agreed;

(2)   if the aforesaid sum of $700,000 is so paid into court, the 1^st defendant may defend the action by serving her defence within 7 days of the payment into court;

(3)   on a nisi basis, the costs of and occasioned by the plaintiff’s application for summary judgment be costs in the cause, with certificate for counsel;

(4)   the 2^nd defendant do pay the plaintiff the sum of $713,347.94 together with daily interest on the principal sum of $700,000 at the rate of $460.27 (ie 24% per annum) from 22 July 2017 until full payment; and

(5)   costs of the plaintiff’s application pursuant to O 83A r  4 be paid by the 2^nd defendant to the plaintiff on an indemnity basis, to be taxed if not agreed.

2^nd Action – DCCJ 3567/2017

82.  In respect of the plaintiff’s applications in the 2^nd Action, ie  DCCJ 3567/2017, I make the following orders:-

(1)   unless the 2^nd defendant pays $500,000 into court within 28 days from the date of the handing down of this judgment, the plaintiff may enter judgment against the 2^nd defendant for the amount claimed in the statement of claim with interest and costs, which costs are to be taxed on an indemnity basis if not agreed;

(2)   if the aforesaid sum of $500,000 is so paid into court, the 2^nd defendant may defend the action by serving her defence within 7 days of the payment into court;

(3)   on a nisi basis, the costs of and occasioned by the plaintiff’s application for summary judgment be costs in the cause, with certificate for counsel;

(4)   the 1^st defendant do pay the plaintiff the sum of $526,630.13 together with daily interest on the principal sum of $500,000 at the rate of $369.86 (ie 27% per annum) from 22 July 2017 until full payment; and

(5)   costs of the plaintiff’s application pursuant to O 83A r  4 be paid by the 1^st defendant to the plaintiff on an indemnity basis, to be taxed if not agreed.