YANG WELL INTERNATIONAL CO LTD v. FIRECORE TECHNOLOGY LTD

HCA 2285 and 2286/2024

(Heard together)

[2026] HKCFI 1814

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 2285 OF 2024

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IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 2286 OF 2024

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________________________

(Heard together)

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DECISION

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INTRODUCTION

1.  Before the Court are 2 actions (“HCA 2285” and “HCA 2286”, collectively “Actions”)  brought respectively by Yang Well International Co, Ltd (“Yang Well”)  and Fasco International Ltd (“Fasco”)  (collectively “Ps”)  for orders placed with D for electrical components (“Goods”)  which on Ps’ case D failed to deliver despite Ps’ payments to D.

2.  This is my decision on Ps’ summonses filed on 27 August 2025 for the following:

(a)  summary judgment be entered against D for the sums of (i)  US$800,000 and US$222,093 in HCA 2285; (ii)  US$619,268.32, US$1,319,402.68 and US$346,206.50 in HCA 2286 (“Judgment Sums”), or such sums as the Court shall find;

(b)  alternatively to the above, final interlocutory judgment be entered against D with damages to be assessed;

(c)  interest on the Judgment Sums at the prevailing HSBC best lending rate plus 1% from the date of the Writs to the date of the judgment;

(d)  interest on the Judgment Sums at judgment rate from the date of the judgment until payment; and

(e)  the costs of the Actions, including the costs of the applications, be to P

(“Summonses”).

3.  D also issued two summonses dated 8 September 2025 in the Actions seeking security for D’s costs up to and including the stage of the next Case Management Conference in the sums of HK$1,376,985 for both Actions (or such sum as the Court considers appropriate)  (“D’s Summonses”). 

4.  In support of the Summonses in the Actions, Ps filed the 1^st and 2^nd Affirmations of Enjoji Yoichi (“Mr Yoichi”)  dated 21 August 2025 and 6 January 2026 respectively.  D filed the 2^nd Affirmation of Leung Man Ko (“Mr Leung”)  dated 12 December 2025 in opposition to the Summonses in the Actions.

5.  In support of D’s Summonses for security for costs in the Actions, D filed the Affirmations of Ching King Tat dated 8 September 2025 and Mr Leung dated 8 December 2025.  Ps filed the 2^nd Affirmation of Hoi Kin Long in opposition dated 9 October 2025 in the Actions.

BACKGROUND

6.  This case is a dispute as to the identities of Ps which D contracted with.  Ps are at all material times companies incorporated in Belize, carrying on business as a supplier of various electrical components.  Ps and Yang Well Trading Co, Ltd (“Yang Well Trading”)  are part of the “Yang Well Group” of which Mr Yoichi is the Chief Executive Officer.

7.  D is a company incorporated in Hong Kong. 

Transaction with Yang Well

8.  On 12 December 2017, Yang Well was incorporated under the laws of Belize.

9.  On 5 October 2021, Yang Well placed 5 purchase orders (“POs”)  with D for the Goods at the total price of US$800,000 to be delivered to the order of Yang Well in the Chennai Port of India (“Agreement 1”).  D’s position is that the POs were not placed by Yang Well, but by a company bearing the same name allegedly incorporated in Taiwan (“TW Yang Well”).  Ps’ case is that TW Yang Well does not exist. 

10.  On 20 October 2021, Yang Well transferred US$200,000 from its bank account to D pursuant to Agreement 1.  D’s case is that this was made pursuant to an agreement between D and TW Yang Well.  On 19 November 2021, Yang Well transferred US$600,000 from its bank account to D pursuant to Agreement 1.  D’s case is that this was made pursuant to an agreement between D and TW Yang Well.

11.  On 14 July 2022, Tina of D represented to Mr Yoichi of Ps that in order for the Goods to be delivered, Yang Well was required to pay to D a custom tax of US$80,000.  D disputes Tina’s authority to represent it.

12.  On 18 July 2022, Yang Well arranged for transfer of US$80,000 from Fasco’s bank account to D for payment of the custom tax.  D’s position is that it received the US$80,000 for relevant costs for goods delivered to TW Yang Well and/or another Hong Kong company bearing the same name as Fasco (“HK Fasco”)  ie P in the related proceedings HCA 2286/2024, pursuant to an agreement entered between HK Fasco and D on 23 October 2018.

13.  On 25 April 2023, Tina represented to Mr Yoichi that in order for the Goods to be delivered, Yang Well was required to pay a further custom tax of US$117,808 and freight charges of US$24,285. D disputes Tina’s authority to represent it.

14.  On 8 May 2023, Yang Well transferred US$142,093 from its bank account to D for the further custom tax and freight charges.  D’s position is that it received the US$142,093 for relevant costs for goods delivered to TW Yang Well and/or HK Fasco pursuant to an agreement entered between HK Fasco and D on 23 October 2018.

15.  On 14 June 2023, Ms Yin of Yang Well Trading sent an email to Mr Leung of D to follow up on the purchase orders placed by P and Fasco.  Ms Yin’s email attached the WeChat conversation between Mr Yoichi and Tina.

16.  By a letter dated 7 October 2024, Yang Well’s solicitors Messrs Tanner De Witt issued a letter of demand to D, accepting D’s repudiation of Agreement 1 and demanding the return of the sum of US$942,093.

Transaction with Fasco

17.  On 11 October 2017, Fasco was incorporated under the laws of Belize. 

18.  On 7 October 2021, Fasco placed 5 purchase orders (“211007 POs”)  with D for the Goods at the total price of US$800,000 to be delivered to the order of Fasco in the Chennai Port of India.  D’s position is that the 211007 POs were not placed by Fasco but by HK Fasco.

19.  On 25 November 2021, Fasco transferred US$640,000 from its bank account to D in respect of the 211007 POs.  D’s case is that this was made pursuant to an agreement between D and HK Fasco.

20.  On 2 December 2021, Fasco transferred US$160,000 from its bank account to D in respect of the 211007 POs.  D’s case is that this was made pursuant to an agreement between D and HK Fasco. 

21.  On 5 July 2022, Fasco placed a purchase order (“220705 PO”)  with D for the Goods at the total price of US$1,143,400 to be delivered to the order of P in the Chennai Port of India.  D’s position is that the 220705 PO was not placed by Fasco, but by HK Fasco.

22.  Between 7 and 11 July 2022, Fasco proposed to D and D accepted that:

(a)  the amount to be paid in respect of the 220705 PO be reduced to US$1,043,400; and

(b)  of the sum of US$1,043,400, US$619,268.32 was to be offset against two following sums previously paid by Fasco which had been retained by D:

(i)  US$533,018.32 on 24 October 2018; and

(ii)  US$86,250 on 29 November 2019.

23.  D disputes the existence of this arrangement. 

24.  On 8 July 2022, Fasco sent a notice of cancellation of order to D for the cancellation of an order previously made by Fasco in 2018 (“2018 Order”).  Fasco transferred US$99,279.78 from its account to D being the liquidated damages for the cancellation of the 2018 Order.

25.  On 14 July 2022, Fasco transferred US$424,131.68 from its bank account to D in respect of the 220705 PO. D’s case is that this was made pursuant to an agreement between D and HK Fasco.

26.  On 14 July 2022, Tina represented to Mr Yoichi that Fasco was required to pay to D custom tax and miscellaneous costs of US$187,331.50 for the 211007 POs and 220705 PO.  D disputes Tina’s authority to represent it.

27.  On 18 July 2022, Fasco transferred US$187,331.50 from its bank account to D for the custom tax and miscellaneous costs.  D’s position is that it received the US$187,331.50 for relevant costs for goods delivered to HK Fasco and/or another Taiwanese company bearing the same name as TW Yang Well pursuant to an agreement entered between HK Fasco and D on 23 October 2018.

28.  On 29 July 2022, Fasco placed a purchase order (“220729 PO”)  with D for the Goods at the total price of US$95,271 to be delivered to the order of Fasco in the Chennai Port of India.  D’s position is that the 220729 PO was not placed by Fasco, but by HK Fasco.

29.  The 211007 POs, 220705 PO, and 220729 PO issued by Fasco are collectively referred to as “Agreement 2”. 

30.  On 8 August 2022, Fasco transferred US$95,271 from its bank account to D in respect of the 220729 PO.  D’s case is that this was made pursuant to an agreement between D and HK Fasco. 

31.  On 14 June 2023, Ms Yin of Yang Well Trading sent an email to Mr Leung of D to follow up on the purchase orders placed by Ps.  Ms Yin’s email attached the WeChat conversation between Mr Yoichi and Tina. 

32.  Between 20 to 26 September 2023, Mr Lee Jun represented to Mr Yoichi that Fasco was required to pay to D further custom tax of US$158,875.  D disputes Mr Lee Jun’s authority to represent it. 

33.  On 26 September 2023, Fasco transferred US$158,875 from its bank account to D for the further custom tax.  D’s position is that it received the US$158,875 for relevant costs for goods delivered to HK Fasco and/or TW Yang Well pursuant to an agreement entered between HK Fasco and D on 23 October 2018. 

34.  By a letter dated 7 October 2024, Fasco’s solicitors Messrs Tanner De Witt issued a letter of demand to D, accepting D’s repudiation of Agreement 2 and demanding the return of the sum of US$ $2,464,877.50.

D’s Defence

35.  D denies that there was any contractual relationship with Ps.  D only contracted with the following parties without involving Ps:

(a)  For Agreement 1, orders were sent to or placed by TW Yang Well, a company incorporated in Taiwan with its address at No 76 Chung Hsiao E Road, Sec 1, Taipei, Taiwan. 

(b)  For Agreement 2, orders were sent to or placed by HK Fasco, a Hong Kong company.

Regarding TW Yang Well:

(a)  The letterheads on the correspondence and/or POs issued and/or placed by Mr Yoichi through TW Yang Well or HK Fasco bore the designations “YANG WELL INTERNATIONAL CO, LTD” or ‘FASCO INTERNATIONAL LTD”

(b)  In the POs, the following key contact particulars of TW Yang Well were given: 6F-4, No 76 Chung Hsiao E Road, Sec 1, Taipei, Taiwan.  Tel: 886-2-2393-9922, 2392-6181 /Fax: 8862-2351-4418.  Email: yangwell@ms16.hinet.net

(c)  “886” is the international dialling code for the Taiwan region.  The sub-code “2” is the area code for Taipei.

Regarding HK Fasco:

(a)  The 211007 POs, 220705 PO, and 220729 PO show that it shares the same address as TW Yang Well.

(b)  It had a Hong Kong telephone number (as well as a Taiwan number).

(c)  It had the same email address of yangwell@ms16.hinet.net

Legal principles – summary judgment

36.  I bear in mind that in an Order 14 application, the court should not conduct a mini trial on affidavits.  The approach is to ask the following:- (i)  whether the plaintiff has established a prima facie sustainable case on their claim; and if so, (ii)  whether the defendant has discharged their burden to show there are triable issues.

37.  In considering whether there are triable issues, the court will not take the alleged defence at face value but to test it against inherent probability, contemporaneous documents, parties’ contemporaneous conduct, as well as matters which are undisputed or beyond reasonable dispute.

38.  The defendant bears the burden to show, by condescending upon particulars, that they have a fair or reasonable opportunity of showing a fair or bona fide defence.  In assessing the credibility of the factual evidence, the focus is on whether it is capable of being believed, and not whether it is to be believed.

See Hong Kong Civil Procedure 2026 (Vol 1), at §§14/4/1 and 14/4/4.

DISCUSSION

(i)   Whether P has established a prima facie sustainable case on its claim

39.  I have carefully reviewed the SOCs for both Actions, the 1^st and 2^nd Affirmations of Mr Yoichi, and the documents underlying Ps’ “Summary of Claimed Amounts”, which is reproduced below.  Further details have been added after my review of the purchase orders and evidence of payment by Ps.

	Payment date	Item	Amount (US$)	Basis of Payment	P	Proof of payment
1.	20.10.2021 19.11.2021	Yang Well POs	800,000	5 POs dated 5.10.2021	Yang Well	Swift transfer from Yang Well dated 20.10.2021 of US$200,000 Swift transfer from Yang Well dated 19.11.2021 of US$600,000
2.	25.11.2021 2.12.2021	Fasco 211007 POs	800,000	5 POs dated 7.10.2021	Fasco	CTBC Bank Co, Ltd’s Debit advice dated 25.11.2021 Description: P/I No 2021-Q-1006/1007/1008/ 1009 CTBC Bank Co, Ltd’s Debit advice dated 2.12.2021 Description: P/I No 2021-Q-1010
3.	14.7.2022	Fasco 220705 PO	1,043,400	PO dated 5 July 2022 with original purchase price of US$1,143,400	Fasco	Original purchase price of US$1,143,400 adjusted to US$1,043,400; US$619,268.32 deducted by way of offset, resulting in net payment of US$424,131.68 CTBC Bank Co, Ltd’s Debit advice dated 14.7.2022 Description: 9A PCB Assembly 300,000 PC
4.	18.7.2022	Custom tax and packaging material fee and document fee		WeChat messages of 14.7.2022	Fasco Yang Well	CTBC Bank Co, Ltd’s Debit advice dated 18.7.2022 Description: Tax, Packing fee, Document US$80,000 attributable to Yang Well; US$187,331.50 attributable to Fasco*
5.	8.8.2022	Fasco 220729 PO	95,271	PO dated 29.7.2022	Fasco	CTBC Bank Co, Ltd’s Debit advice dated 8.8.2022 Description: PO No YWHK 220729
6.	8.5.2023	Further tax	117,808	WeChat message of  25.04.2023	Yang Well	Swift transfer from Yang Well dated 8.5.2023 of US$117,808
7.	8.5.2023	Freight charges	24,285	WeChat message of 25.04.2023	Yang Well	Swift transfer from Yang Well dated 8.5.2023 of US$24,285
8.	26.9.2023	Further tax	158,875	WeChat message of 20.9.2023	Fasco	CTBC Bank Co, Ltd’s Debit advice dated 26.9.2023 Description: Tax*

* These constitute the Additional Fees of US$346,206.50 paid by Fasco. 

40.  The details of item 3: Fasco’s 220705 PO dated 5 July 2022 are as follows. 

41.  Mr Yoichi’s 1^st Affirmation at §16 addresses the sum of US$1,043,400, of which US$619,268.32 was to be offset against two sums previously paid by Fasco which had been retained by D, with Fasco only having to pay a sum of US$424,131.68 to D.  According to Fasco, the two sums to be offset were:

(a)  US$533,018.32 paid on 24 October 2018 pursuant to Fasco’s previous 2018 Order, which was subsequently cancelled; and

(b)  US$86,250 paid on 29 November 2019 in relation to an intended purchase order no PO2019/202 which was ultimately not placed.  The CTBC Bank Co, Ltd outward remittance debit advice dated 29 November 2019 had hand written notes as to how the US$97,812.50 transferred to D was made up: US$86,250 was for PO2019/202 and US$11,562.50 was for PO2019/201.

42.  The origin of this offset can be seen in Mr Yoichi’s WeChat message to Tina of 7 July 2022 in which Mr Yoichi informs Tina that Fasco needed to cancel the order for 8A parts placed on 24 October 2018 as Fasco’s customer was unable to use the product, and payment of US$533,018.32 was made on 24 October 2018.  A 15% penalty on the order price (US$533,018.32)  would be charged for the cancellation (US$79,952.75), as well as packaging material costs of US$ 1,217.28 and PCB costs of US$17,062.50, in total US$98,232.53. 

43.  On 8 July 2022, Mr Yoichi informed Tina that Fasco had already paid the penalty for the cancellation of the order.  The actual payment on 8 July 2022 was slightly more than that (US$99,279.78)  (CTBC Bank Co, Ltd outward remittance debit advice with description “liquidate [sic] damage”).

44.  The calculation of this discount can be seen from Mr Yoichi’s WeChat message to Tina of 10 July 2022.  This sets out the unit price of 300,000 sets of PCBs at $3.478 which is US$1,043,400 in total.  The discount of US$619,268.32 is stated and the amount to be paid is US$424,131,68.  Mr Yoichi stated that he would transfer US$424,131,68 within 10 days of confirmation that it was acceptable to offset. 

45.  On 11 July 2022, Tina replied to Mr Yoichi that she would contact him once there was a decision from Tina’s supervisor.  On the same day, Tina confirmed that her supervisor was agreeable to Mr Yoichi’s suggestion. 

46.  Mr Lau submitted that agreement to offset was not clear, and referred me to the WeChat messages of Mr Yoichi dated 11 July 2022 regarding D’s acceptance of Mr Yoichi’s proposal.  However, these messages were sent before Tina’s on the same date at 18:35 which confirmed that Tina’s supervisor had agreed to Mr Yoichi’s proposal. 

47.  I accept that D agreed to the offset of US$619,268.32 against the sum of US$1,043,400, with P only having to pay a sum of US$424,131.68 to D.  This is reflected in subsequent WeChat messages between Mr Yoichi and Tina: in the WeChat message dated 14 July 2022, Mr Yoichi informed Tina that he had wired US$424,131.68 to D. 

48.  Tina responded on the same day confirming that she had received it, but Mr Yoichi needed to pay a further 10% customs tax, packaging and document fees, totalling US$267,331.50. Of this, US$80,000 was for Yang Well (10% of US$800,000)  and the balance of US$187,331.50 was for Fasco.  When Tina was calculating the tax payable in her WeChat message to Mr Yoichi of 14 July 2022, it clearly shows that D agreed to reduce the purchase price to US$1,043,400 as stated in her WeChat message, and to the offset of US$619,268.32, as Tina acknowledged receipt of US$424,131.68 without complaint.  D has not adduced any evidence that it attempted to chase P in relation to item 3. 

49.  In summary, despite Ps’ payments as indicated in the Summary of Claimed Amounts which, subject to small discrepancies, are admitted by D to have been made (see §64 below), D failed to deliver the Goods.  I am satisfied that Ps have established a prima facie sustainable case for their claims. 

(ii)   Whether D has discharged its burden to show there are triable issues

50.  According to D, the identity of the parties to a contract is a “fundamental” matter: Homburg Houtimport BV v Agrosin Private Ltd [2004] 1 AC 715 per Lord Millett at §175.

51.  In Re: Tomei Shoji (Hong Kong)  Ltd HCCW 413/2008 (unreported judgment of Kwan J, 9 July 2009), the company resisted a winding-up petition on the grounds that the company had never contracted with the petitioner, and only its parent company did.  The Court held that a bona fide dispute on substantial grounds was raised. 

52.  D submitted that it is seriously arguable that D have never contracted with Ps:

(a)  There was no standalone written contract between Ps and D;

(b)  Ps’ claim is made on the basis of the purchase orders. However, (a)  there is nothing on the face of the purchase orders placed by either “Fasco International Ltd” or “Yang Well International Co, Ltd” which shows that the transacting parties were Belize entities. No Belize addresses, contact points, or phone numbers were offered at all; (b)  instead, the purchase orders all referred to a Taiwan address, a Taiwan telephone and fax number and an email address belonging to a Taiwan email service provider;

(c)  The exchanges contemporaneous to the time of the transaction also support D’s contention that D was not dealing with Belize entities at all material times. Particularly:- (a)  D’s quotations were issued to (1)  “Fasco International Ltd” located at “Rm 1702, Sino Center, 582-592 Nathan Rd, Kln, Hong Kong” and (2)  “Yang Well International Co” located also at “Rm 1702, Sino Center, 585-592 Nathan Rd, Kln, Hong Kong”  – none of these referred to Belize addresses; (b)  in an email dated 11 October 2018, Ms Yin suggested that “Fasco HK uses the address shown below…” (Fasco 香港使用的地址如下…)  – which points to the fact that the contracting counterparty was Fasco HK instead of Fasco Belize; (c)  Ms Yin signed off her email dated 16 January 2020 by stating that she represented “洋 怡 貿 易 有 限 公 司”, with a Taiwanese address and Taiwanese telephone number;

(d)  That the contracting counterparty could not have been Ps is also supported by the objective evidence: (a)  the evidence shows that the contracting counterparty had been using the name “洋怡國際有限公司”, but Yang Well Belize did not have any Chinese official name; (b)  Mr Yoichi had admitted that he did own a Taiwanese company, albeit in the name of “洋怡貿易有限公司” (which is different from TW Yang Well); and (c)  the company search records show that HK Fasco did exist, and was owned by Japanese individual;

(e)  In fact, when the first demand letter was issued by Ps, Ps’ solicitors purported to act for “洋怡貿易有限公司”, and not “洋怡國際有限公司” which was now said to be the name of Yang Well Belize; and

(f)  Last but not least, D’s case is also consistent with commercial sense. Where D was based in Hong Kong, it would be extremely difficult and inconvenient for D to pursue Yang Well Belize and/or Fasco Belize in Central America. D’s case that it never intended to transact with these entities thus accords with commercial sense.

DISCUSSION

53.  I first start with the principles of construction.  In Zhang Jizhi v Hong Kong TV International Media Group Ltd [2022] HKCFI 308 at §196, Marlene Ng J referred to Homburg Houtimport BV & ors, in which the House of Lords were concerned with the issue of identity of the parties to certain bills of lading. Lord Millett at page 794 said as follows:

“175. The identity of the parties to a contract is fundamental. It is not simply a term or condition of the contract. It goes to the very existence of the contract itself. If it is uncertain, there is no contract. Like the nature and amount of the consideration and the intention to create legal relations it is a question of fact and may be established by evidence. Such evidence is admissible even where the contract is in writing, at least so long as it does not contradict its express terms, and possibly even where it does: see Young v Schuler (1883)  11 QBD 651; Chitty on Contracts, 28^th ed (1999), Vol 1, para 12-112, p 633 ……” (emphasis added).

54.  Where there is “ambiguity as to admit evidence of intention” (ie where the identity of the contracting party has been inadequately or ambiguously described in the written contract, and extrinsic evidence is admissible for ascertaining the identity of such contracting party), the guidance in Fung Ping Shan v Tong Shun [1918] AC 403 is to start with the indicia of identity afforded by the written contract. This is consistent with Lord Millett’s observations in Homburg Houtimport BV & ors at page 794 which made clear that whilst the exercise of ascertaining the identity of the parties may require interpretation/construction, it is not of the same order as the process of construing the detailed terms and conditions of the contract; rather it was to construe the “factual evidence of the identity of the party” (ie the indicia of identity as referred to in Fung Ping Shan)  in the contract: Zhang Jizhi per Marlene Ng J at §210.

55.  D’s pleaded case in HCA 2285 is that it contracted with a company incorporated in Taiwan (at §5(a), (c), (g)  of the Defence for HCA 2285; §4(a), (c), (g)  of the Defence for HCA 2286). It recognises there is an agreement (at §8 of the Defence for HCA2285; §9 of the Defence for HCA2286)  but this is with a different contractual party.  Since 2018, D has had a business relationship with TW Yang Well and Fasco HK (§5(a)  of Defence in HCA2285; §4(c)  of Defence in HCA 2286).  According to D, it dealt with Mr Yoichi and in the course of D’s dealing with the business relationship with Mr Yoichi, Mr Yoichi caused TW Yang Well and/or HK Fasco to correspond and/or enter into contracts with D (§5(c)  of Defence in HCA 2285; §4(c)  of Defence in HCA 2286). 

56.  For Agreement 1, on the face of the POs, they were issued by “Yang Well International Co, Ltd” and chopped “Yang Well International Co, Ltd”.  The contact particulars of “Yang Well International Co, Ltd were given as: 6F-4, No 76 Chung Hsiao E. Road, Sec 1, Taipei, Taiwan.  Tel: 886-2-2393-9922, 2392-6181 /Fax: 8862-2351-4418.  Email: yangwell@ms16.hinet.net.

57.  For Agreement 2, on the face of the purchase orders, they were issued by “Fasco International Ltd” with the same contact particulars as on the “Yang Well International Co, Ltd”.

58.  It is D’s case that they were contracting with TW Yang Well, a Taiwanese company and/or HK Fasco, a Hong Kong company.  However, on the face of the purchase orders, there is no evidence that this is the case.  TW Yang Well does not even exist.  I refer to the Ministry of Economic Affairs search of the business registration in Taiwan.  A Companies Registry and business registration search of businesses with the name “Yang Well” in Hong Kong also came up with nothing.  It does not exist in Hong Kong.  However, a Taiwanese company, Yang Well Trading Co, Ltd, exists and is a part of Ps’ corporate group.  However, this name did not appear on the purchase orders for Agreements 1 and 2 and is not a company that D said it had a contractual relationship with.  The contact details of Yang Well Trading Co Ltd were on the purchase orders for Agreements 1 and 2, as shown on Yin Shu Fen’s business card. 

59.  HK Fasco exists but does not have any connection with Ps.  As indicated in the Companies Registry search, the address of its registered office (Unit 501, 5/F, Ho Lik Centre, 64-68, Sha Tsui Road, Tsuen Wan, New Territories)  had no connection with Ps.  It is different from the Sino Center Nathan Rd, Kowloon address which appeared on D’s quotations to Ps.  The director of HK Fasco is Mr Hiroto Takahashi, which is not said to have any dealings with D. 

60.  D’s case is that it dealt with Mr Yoichi and in the course of D’s dealing with the business relationship with Mr Yoichi, Mr Yoichi caused TW Yang Well and/or HK Fasco to correspond and/or enter into contracts with D. 

61.  As indicated in the register of directors for Yang Well, the sole director is Mr Yoichi. 

62.  Job International Ltd was indicated in the Particulars of Members of the Annual Return of HK Fasco.  This company is based in Osaka, Japan, and its products (cycling, soccer, toys)  were in a different line of business to Ps, and had no connection with electrical components. 

63.  Regarding the Sino Center Nathan Rd, Kowloon address, that was the address of Fasco’s registered agent Power Point Trust (Belize)  Ltd.  Power Point Secretary provides secretarial services to Ps.  No evidence has been adduced by D to show those were the contact details of HK Fasco.  

64.  It is also noted that Ps made payment to D of the following sums which were not disputed by D:

(a)  US$199,962.30 and US$599,962.30 (§25 of 2^nd Affirmation of Mr Leung in HCA 2285; §8 in Defence for 2285 of 2024), and further sums of US$80,000 and US$142,093 for custom tax and freight charges (§10 in Defence for HCA 2285)  in respect of Agreement 1; and

(b)  US$639,998.07, US$159,998.07, US$424,129.76 and US$95,269.08 (§9 in Defence for HCA 2286), and further sums of US$187,331.50 and US$158,875 for custom tax and miscellaneous costs (§11 in Defence for HCA 2286)  in respect of Agreement 2. 

65.  D did not dispute payment but D’s defence is they were for goods delivered to HK Fasco and/or TW Yang Well.  Effectively, it is D’s case that Ps made payment on behalf of HK Fasco and/or TW Yang Well.  However, no links and/or an agency relationship have been shown by D between Ps and HK Fasco and/or TW Yang Well. As stated above, TW Yang Well does not exist and HK Fasco does not have any connection to Ps. 

66.  Mr Lau referred to the Homburg Houtimport BV & ors case as authority for the proposition that the identity of the parties is a “fundamental matter.” In that case, at issue was whether the bill of lading contained on its front a box with the printed head “signature” in which were the typed words “as agent for [CPS] (the carrier)” and the rubber stamp of CPS’s port agents – were the shipowner’s or charterer’s bill.  In Homburg Houtimport BV & ors, both options of whether they were the shipowner’s or charterer’s bill existed. In this case, TW Yang Well was not an option as they did not exist.  Although HK Fasco exists, its director is Mr Hiroto Takahashi, which is not said to have any dealings with D.  D’s case is that it dealt with Mr Yoichi, and Mr Yoichi caused TW Yang Well and/or HK Fasco to correspond and/or enter into contracts with D.

67.  In Re: Tomei Shoji (Hong Kong)  Ltd, Tomei Shoji (Hong Kong)  Ltd (“Company”)  opposed the winding up petition on the ground it was not the entity that had contracted with the petitioner for the goods sold and delivered for which the debt was incurred.  It was contended that this was a case of mistaken identity and that the purchaser in the transactions in question was not the Company (which was incorporated in Hong Kong)  but its parent company by the same name of Tomei Shoji Ltd which was incorporated in the BVI (“TSBVI”).  Kwan J (as she then was)  held that the Company had established a bona fide dispute on substantial grounds and demonstrated that its case is believable.  She observed that there were sufficient countervailing considerations that the purchaser might not be the same entity that had a course of dealings with the petitioner between July 2000 and September 2002.

68.  I accept Ms Au’s submissions that Re: Tomei Shoji (Hong Kong)  Ltd can be distinguished from this case.

69.  First, the company by the same name of TSBVI existed.  In this case, TW Yang Well does not exist and Mr Yoichi has no involvement in HK Fasco.

70.  Second, there was a close connection between the companies: the evidence showed that it was not in dispute that between July 2000 and September 2002 the Company did business with the petitioner, but it was the Company’s case that the entity to which goods were supplied after September 2002 was not the Company but was TSBVI.  In this case, there is no connection between Yang Well and TW Yang Well (which does not exist), and Fasco and HK Fasco.  HK Fasco is not even in the same line of business as Fasco.

71.  Third, the Company adduced evidence that demonstrated that its case was believable.  For example, Kwan J (as she then was)  observed that separate bank accounts were opened by TSBVI in September 2002 and January 2004, and bank statements in 2003, 2006 and 2007 showed that payment for the goods supplied by the petitioner was made from the accounts of TSBVI.  The bank accounts of the Company’s account in 2004, 2007 and 2008 showed that the account had been dormant.  Kwan J (as she then was)  viewed this as significant, as the bank statements of TSBVI showed that for a long time, it had been payment for the goods ordered from the petitioner.  In this case, payment was made directly by Ps to D.

72.  Mr Lau also referred me to Wai Chun Holdings Group Ltd v Yip Kam Kuen [2023] HKDC 1241, in which a defence of “incorrect” plaintiff was found by DDJ George Lam to be sufficiently arguable for the purposes of resisting summary judgment.

73.  In Wai Chun Holdings Group Ltd, the owner of the plaintiff, Mr Lam Ching Kui (“Lam”), had two companies which bore closely similar names: (a)  the listed company - Wai Chun Group Holdings Limited (偉俊集團控股有限公司)  (Stock code: 1013); and (2)  the private company - Wai Chun Holdings Group Limited (偉俊控股集團有限公司)  (ie the plaintiff).  The plaintiff sued on a written loan agreement allegedly made between the plaintiff as the lender and the defendant as the borrower for HK$1,000,000, which the defendant had failed to repay.  However, the loan agreement stated the ‘lender’ to be the 1013 Company. The plaintiff’s case was this was a clerical mistake as the cheque was drawn by the plaintiff, and the company chop on the loan agreement was also the plaintiff’s chop and not the 1013 Company’s chop.  The defendant’s contention was that the plaintiff was suing on a written agreement to which it is not stated as a party, and there was no rectification on the name of the party.

74.  DDJ George Lam allowed the defendant’s appeal of the Master’s order granting summary judgment.  He observed that as the name of the lender on the loan agreement was not the plaintiff, judgment could not be entered under Order 14. As the name of the lender stated in the loan agreement was not the plaintiff (but the listed company), DDJ George Lam held that the plaintiff had failed to raise a prima facie case.

75.  Furthermore, there was no basis for the court to have found that it was a typographical error for the following reasons:

(a)  it was stated clearly in the loan agreement that the lender was the listed company. If it were a typo, it was no ordinary kind of typo in misspelling or missing words or letters. Rather, it clearly stated and matched with the name of another entity, namely the listed company. The name of the listed company was mentioned twice in the loan agreement, both in the party clause and in the signature clause. It lessened or precluded the chance of any “typographical error” in the name of the party;

(b)  the loan agreement was only stamped with the plaintiff’s company round chop. As the signature clause for Party A contained the words “The representative”, the combined effect of the plaintiff’s mere stamping of the round chop was that the plaintiff was signing as the representative of Party A, the listed company;

(c)  there was no restriction in the loan agreement that when Party A issued the cheque to the defendant, Party A had to be the drawer of the cheque. In other words, there can be no decisive view on whether there was an error in the party clause or an error in the body of the agreement in failing to describe the cheque as having actually been drawn by a related company (the plaintiff); and

(d)  given Lam’s position in both the plaintiff and the listed company, it would have been a day-to-day exercise for him to decide which company, the listed company or the private company, should enter into certain transactions. Both companies were active.

76.  In my view, Wai Chun Holdings Group Ltd can be distinguished from this case:

(a)  TW Yang Well is not active – it does not exist, and HK Fasco has no connection with Ps, Mr Yoichi and/or the case.

(b)  The true contracting parties, which are Ps, actually exist.

(c)  Unlike the loan agreement which clearly stated the listed entity as the contractual party instead of the plaintiff, Ps are clearly stated in the purchase orders/Agreements 1 and 2 as the contracting parties.  There is no mention of Ps being a Taiwanese and Hong Kong company respectively.

(d)  Regarding the source of funds, there was payment by the plaintiff but it was not stated in the loan agreement as the contracting party.  In this case, Ps are stated in the purchase orders as the contracting parties, and payments were made from Ps’ bank accounts.  Given that D admits receiving payments from Yang Well’s OCBC bank account and Fasco’s CTBC bank account, which are objectively shown to be accounts opened in the names of Yang Well and Fasco respectively, and not any other entity, any argument that D received payment pursuant to alleged agreements with TW Yang Well and HK Fasco cannot succeed.  No agency is pleaded, and Ps could not have made payments on behalf of a non-existent entity (TW Yang Well), or an entity that it had no connection with (HK Fasco).  

77.  I do not think there is a triable issue given that D’s defence is that it has contracted with (i)  an non-existent entity (TW Yang Well); and (ii)  an entity that has no connection with Mr Yoichi and/or the facts of the case (HK Fasco).  

78.  Regarding the contemporaneous correspondence at the time of the transaction in which D’s quotations were issued to (1)  “Fasco International Ltd” located at “Rm 1702, Sino Center, 582-592 Nathan Rd, Kln, Hong Kong” and (2)  “Yang Well International Co” located also at “Rm 1702, Sino Center, 585-592 Nathan Rd, Kln, Hong Kong”, what is important on the purchase orders (issued by Ps)  and D’s quotations is the names of the contracting parties and they were correct. 

79.  I have dealt with the Sino Center Kowloon address above, which is the address of Ps’ registered agent Power Point Trust (Belize)  Ltd.  Power Point Secretary provides secretarial services to Ps. Even on D’s case, the purchase orders were issued and/or placed by Mr Yoichi, whose companies D intended to contract with.  I also refer to Ms Yin’s email to Ms Yang dated 11 October 2018 which stated that the Sino Center address which was used by Fasco in Hong Kong was for reference only, and documents were not to be sent there or contact by phone.  This email was sent before the parties entered into Agreements 1 and 2. 

80.  I accept Ms Au’s submission that this email informed D that Fasco used that Hong Kong address (but requested D not to send documents or to contact Fasco there)  as opposed to being evidence that HK Fasco used that particular address, and that the contracting counterparty was HK Fasco. 

81.  As to Ms Yin, who is an employee of Yang Well Trading Co, Ltd and does not hold any position with Ps (§27(b)  of 1^st Affirmation of Mr Yoichi in HCA 2285; §32(b)  of 1^st Affirmation of Mr Yoichi in HCA 2286), she signed off her email dated 16 January 2020 by stating that she represented “洋 怡 貿 易 有 限 公 司”, with a Taiwanese address and Taiwanese telephone number.  However, it is not D’s case that it entered into contracts with Yang Well Trading Co, Ltd, which is a part of Ps’ corporate group.  It is D’s case that they entered into Agreement 1 with TW Yang Well. Yang Well Trading Co Ltd did not appear on the purchase orders in Agreements 1 and 2. 

82.  Regarding D’s submissions that the contracting counterparty could not have been Ps as the contracting counterparty had been using the name “洋怡國際有限公司” but Yang Well did not have any Chinese official name, I do not think this is of any significance.  D’s alleged contracting counterparty TW Yang Well does not exist.  Although Yang Well does not have a foreign character name registered with the Registrar of International Business Companies in Belize, it does from time to time use the Chinese name “洋怡國際有限公司” to communicate with its Chinese counterparties (§27(f)  of 1^st Affirmation of Mr Yoichi for HCA 2285).  

83.  Furthermore, Mr Yoichi’s ownership of a Taiwanese company in the name of “洋怡貿易有限公司” is irrelevant.  As D recognised, this is different from D’s case that it contracted with TW Yang Well which does not exist.

84.  I have dealt with HK Fasco above which exists but has no connection with Mr Yoichi or this case. It is irrelevant that HK Fasco is also owned by a Japanese individual as on D’s case, it was Mr Yoichi that caused TW Yang Well and/or HK Fasco to correspond with and/or enter into contracts with D. 

85.  Regarding the first demand letter issued by Ps, D submitted that Ps’ solicitors purported to act for “洋怡貿易有限公司”, and not “洋怡國際有限公司” which was now said to be the name of Yang Well. Ps have clarified at §4.10 of the Reply (in HCA 2285)  and §18 of the 2^nd Affirmation of Mr Yoichi (in HCA 2285)  that the Chinese name in Messrs Tanner De Witt’s letter dated 7 October 2024 contained a typo and should be read as “洋怡國際有限公司”. 

86.  I note there is no evidence on record that D replied to Messrs Tanner De Witt’s demand letter dated 7 October 2024 which accepted D’s repudiation of Agreement 1 and demanded the return of the sum of US$942,093, and Messrs Tanner De Witt’s demand letter dated 7 October 2024 which accepted D’s repudiation of Agreement 2 and demanded the return of the sum of US$ $2,464,877.50.   

87.  D submitted that as D was based in Hong Kong, it would be extremely difficult and inconvenient for D to pursue Yang Well Belize and/or Fasco Belize in Central America. D’s case that it never intended to transact with these entities thus accords with commercial sense. 

88.  Despite this bare assertion in the 2^nd Affirmation of Mr Leung (§16 in HCA 2285), D’s subjective intention, belief, or personal understanding are inadmissible and irrelevant. 

89.  Subjective intention is only relevant in exceptional circumstances, specifically in a claim for mistake.  If the identity of the contracting party is material or important to the other party, then one could end up with a case of unilateral or mutual mistake on identity, in which event the legal result may well be that there is no contract concluded between the parties as their minds do not meet: Lai Wo Heung v Cheung Kong Fur Pty Co Ltd [2004] 1 HKLRD 959 per A Cheung J (as he then was)  at 965. 

90.  As the author of Misrepresentation, Mistake and Non-Disclosure (7^th ed, 2025)  observed at §14-06:

“The subjective (mis)understanding of the party seeking relief does indeed have to be examined very carefully, for the reason that we have already discussed: to see what his real intentions were about his contractual counterparty: with whom did he think he was dealing, and with whom did he therefore intend to form the contract? But, in addition, a further question has to be asked: how did the other party (objectively)  understand him?”

91.  As noted by Ms Au, D has not pleaded mistake.  In the case of  Agreements 1 and 2 being void due to mistake, D would be required to return the monies paid by Ps. 

92.  In any event, TW Yang Well does not even exist and HK Fasco has no connection with Ps and Mr Yoichi.  On D’s case, what was important was the role of Mr Yoichi: “Mr Enjoji [Yoichi] would thus cause TW Yang Well and/or HK Fasco to correspond with and/or enter into contracts with [D].  Therefore, since then, [D] had a business relationship with TW Yang Well and HK Fasco.”  (§12 of 2^nd Affirmation of Mr Leung in HCA 2285).

93.  Finally, D submitted that there are other factual disputes concerning Tina and/or Mr Jun Lee’s authority and/or breach of the alleged 20181023 Agreement.  I do not think these disputes raise a triable issue.  I deal with them below. 

94.  In various emails between 14 June 2023 and 30 June 2023 between Ms Yin and Mr Leung (D’s director), Ms Yin referred to instructions given by Tina regarding the purchase orders with D. At no point did Mr Leung refute Tina’s authority which it does now. 

95.  For example, in Ms Yin’s email to Mr Leung dated 14 June 2023, Ms Yin referred to D contacting Ps and that further shipping arrangements would be handled by Tina. On 22 June 2023, Mr Leung asked Ms Yin to provide the purchase orders issued by Yang Well and Fasco from January 2018 to March 2023, and D was reviewing the incoming payments.  On 30 June 2023, Mr Leung wrote to Ms Yin stating that based on a comparison of the 16 purchase orders and payment details, some purchase orders were missing, and attached a list of payments and mark ups shown in purple for Ms Yin’s review.  Mr Leung also asked for the remittance date for the 220705 PO (in the sum of US$1,143,400). 

96.  Ms Yin replied to Mr Leung by email dated 30 June 2023 stating that the orders marked in purple in the comparison table had not been placed. Regarding the 220705 PO that stated $1,143,400, only $424,131.68 needed to be transferred and referred to Tina’s WeChat messages attached. 

97.  These emails show that D knew at all times that Ps were corresponding with Tina.  Mr Leung of D never disputed Tina’s authority to represent D.  

98.  Regarding the authority of Mr Lee Jun, although Mr Leung’s 2^nd Affirmation (in HCA 2285 at §§28-31)  dealt with Tina’s alleged lack of authority, no such evidence has been provided by D as to Mr Lee Jun.  D only raises a bare assertion of the lack of authority of Mr Lee Jun at §10 of its Defence (in HCA 2286).  This defence is rejected.

99.  Regarding the breach of the 20181023 Agreement, it is D’s case (at §10 of the Defence in HCA 2285; §11 of the Defence in HCA 2286)  that:

(a)  HK Fasco has repudiated the 20181023 Agreement concerning such payment by unilaterally sending a notice of cancellation of order dated 8 July 2018 to D;

(b)  D had duly performed its obligations by delivering the goods in relation to the 20181023 Agreement to Chennai Port in or around November 2018.  The goods were returned to Shenzhen as a result of P’s failure to perform its obligations under the 20181023 Agreement; and

(c)  In the circumstances, HK Fasco is not entitled to set off its obligation to pay D under the Agreement by the sums of US$553,018.32 and US$86,250. 

100.  No explanation as to why this was pleaded in HCA 2285 as it does not concern Yang Well.  Given that I accepted item 3 of the “Summary of Claimed Amounts” table provided by Ps, this defence is rejected.  There is no triable issue.  I refer to §§40-48 above. 

101.  In conclusion, there are no triable issues raised by D.  Summary judgment shall be granted. 

102.  Given that I have ordered summary judgment, D’s Summonses for security for costs shall be dismissed.  

DISPOSITION

103.  I formally make an order in terms of §1 of the Summonses, save for the phrase “or such other sums as the Court shall find” be deleted in §1(a), and “being the aggregate of the sums stated in paragraph 1(a)  and 1(b)  above” be deleted in §1(c).  Interest shall only be ordered on the Judgment Sums as set out in §1(a)  of the Summonses.  D’s Summonses shall be dismissed. 

104.  I order that the costs of the Actions, including the costs of the Summonses and D’s Summonses, be paid by D to P, with certificate for counsel, to be summarily assessed.  

105.  For the purposes of the summary assessment of costs, I direct that:-

(a)  P do lodge its Statement of Costs within 3 days of the date hereof;

(b)  D do lodge its List of Objections to P’s Statement of Costs within 4 days thereafter; and

(c)  Assessment of costs shall be conducted on the papers.

106.  I thank Ms Au and Mr Lau for their helpful submissions.