朱元帝 對 邱慧嫻

CACV 259/2013

香港特別行政區

高等法院上訴法庭

民事司法管轄權

民事上訴

民事上訴案件2013年第259號

（原本案件編號：區域法院民事訴訟2012年第2996號）

________________________

________________________

判案書

上訴法庭法官關淑馨頒發上訴法庭判案書：

1.  2012年12月5日，區域法院暫委法官葛倩兒循 《高等法院規則》 第14號命令，判原告人朱元帝索償得直，命令被告人邱慧嫻須支付原告人$130,000，另加利息和訟費。被告人向本庭上訴，2015年1月8日，本庭判被告人上訴得直，撤銷簡易判決的命令，給予被告人無條件許可就申索抗辯，並命令被告人在十天內向區域法院申請指示，以繼續進行該訴訟。本庭命令在區域法院申請簡易判決的訟費，歸納為該案的訟費，但被告人可獲上訴的訟費和申請上訴許可的訟費。本庭在1月15日頒發判案理由書 (載於[2015] 1 HKLRD 822) 。上訴時雙方都有律師代表。

2.  2015年2月3日，原告人親自行事，提交提出動議通知書，申請許可就本庭的判決向終審法院上訴。動議通知書附帶上訴的理由十頁，和13個附件 “EG1” 至 “EG13” 。

3.  民事上訴司法常務官在2月9日作出指示，除非任何一方在2月24日前提出要求口頭聆訊，法庭將以書面批核原告人的申請。

4.  3月16日，法庭收到原告人的書面陳詞，文件的日期是2015年2月3日，共20頁，帶有15個附件 “EG1” 至 “EG15” 。

5.  3月27日，被告人由代表大律師章培偉提交書面陳詞。

6.  《香港終審法院條例》 (第484章) 第22(1)(b) 條訂明，就上訴法庭在任何民事訟案或事項所作的判決而提出的上訴，必須是上訴法庭或終審法院，認為上訴所涉及的問題，具有重大廣泛的或關乎公眾的重要性，或因其他理由以致應交由終審法院裁決，則上訴法庭或終審法院，才會行使酌情權給予許可向終審法院上訴。

7.  原告人在他提交的十頁上訴理由和20頁書面陳詞，都沒有制定具體的問題，可以說是具有重大廣泛的或關乎公眾的重要性。他只是不斷地強調，上訴法庭的判決如何對他造成極不公平，而判詞將成為案例，造成影響深遠和錯誤教育，這就涉及重大的公眾利益。

8.  原告人明顯達不到第22(1)(b) 條的要求。

9.  上訴法庭只是裁定，本案的事實爭議，需要經過審訊程序和聽取證供，才可作出決定，故此發還區域法院審訊。循簡易程序申請出現的事實爭議該如何處理，早已有案例確立，終審法院毋需重新審視有關的法律原則。至於法律原則的具體運用，須視乎個案的情況而定，這並不涉及重大廣泛或關乎公眾重要性的問題。

10.  再者，本庭也不認為原告人提出的眾多上訴理由，有可予爭辯的理據，致使他打算提出的上訴會獲判得直。本庭不擬逐點駁斥原告人的理由，本庭只是提出一點，本庭考慮被告人給警方的供詞，作為簡易程序申請的文件證據之一，並無任何不當之處，也不涉及處理民事案件的法院，越權處理刑事案件。

11.  原告人就各方 (包括被告人、被告人的弟弟、警方、上訴法庭的法官) 作出了各種嚴重的指控，這些指控全無理據支持，本庭不予考慮。

12.  本庭也不認為有其他理由，以致上訴應交由終審法院裁決。根據 Chao Keh Lung v Don Xia (2004) 7 HKCFAR 260第9段，法庭只是在例外情況下，才會行使 「或因其他理由」 的酌情權。本庭不認為本案有任何例外的情況。

13.  基於上述理由，本庭行使酌情權，拒絕批准原告人向終審法院上訴。

14.  被告人要求獲得這申請的訟費，並以彌償基準評定。

15.  本庭認為原告人作為敗訴一方，應支付對方這次申請的訟費，但恰當的處理，訟費是按對訟當事人基準評定。本庭以整筆金額方式評定合理的訟費。被告人律師提交的訟費陳述書，訟費總數是$64,300，本庭下調為$46,300, 其中$30,000是大律師的費用。

16.  本庭作出暫准訟費命令，命令原告人支付被告人的訟費，評定為$46,300。如與訟任何一方在判案書7天內沒有書面申請要求更改訟費命令，暫准訟費命令即成為絕對的命令。

17.  本庭也命令被告人的訟費，須按 《法律援助規則》 評核。

CACV 259/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 259 OF 2013

(ON APPEAL FROM DCCJ NO. 2996 OF 2012)

________________________

________________________

________________________

REASONS FOR JUDGMENT

________________________

Hon Cheung JA :

1. The plaintiff obtained summary judgment from Deputy Judge Angela Kot for the sum of $130,000 against the defendant. Pursuant to leave granted by this Court, the defendant appealed. We allowed the appeal and granted the defendant unconditional leave to defend.

The plaintiff’s claim

2. The plaintiff’s claim as appeared in the statement of claim is a simple one.  He lent the defendant $132,713 on nine occasions between 17 November 2011 and 17 February 2012.

	Particulars of the Loans
	Date of Loan	Amount (HK$)
1)	17th November 2011	$25,000.00
2)	15th December 2011	$1,953.00
3)	16th December 2011	$25,000.00
4)	10th January 2012	$2,500.00
5)	11th January 2012	$1,500.00
6)	13th January 2012	$2,000.00
7)	13th January 2012	$24,760.00
8)	17th January 2012	$25,000.00
9)	17th February 2012	$25,000.00
		$132,713.00

3. There was part payment of $2,713 by the defendant leaving a balance of $130,000.  The defendant drew three cheques to settle the debt.  The cheques were dishonoured upon presentation.

4. In support of his application the plaintiff filed an affirmation verifying the claim.  He exhibited eight pay-in slips of deposits made by him into the defendant’s account in respect of eight of the loans.  One loan of $24,760 which was based on RMB 20,000 was lent by the plaintiff to the defendant in cash.

5. The plaintiff further said that the three cheques were given to him by the defendant several days after 17 February 2012.  On that occasion the defendant repaid him $2,713 and gave him the three cheques which he presented on 6 August 2012.

The defence

6. The defendant filed a defence and counterclaim in which she denied that she had borrowed $130,000 from the plaintiff.  She claimed that the plaintiff had committed an offence of fraud without specifying the details. She claimed that the $130,000 was her money.  This is what she pleaded about the three cheques :

‘ 4. The Defendant denies paragraph 3 of the Statement of Claim. The Defendant denies that the three cheques were drawn by the Defendant in settlement of the alleged loan of HK$130,000. The Defendant says that the Plaintiff committed an offence of fraud.

PARTICULARS OF FRAUD

(a)   In or about August 2011 the Defendant gave some HK$700,000 odd to the Plaintiff for investments.  The Defendant gave her account details to the Plaintiff so that he would deposit the returns from investments to the Defendant.  During the interim period, the Defendant also gave money to the Plaintiff upon his request.  All the sums pleaded by the Plaintiff in paragraph 2 of the Statement of Claim in fact belong to the Defendant.

(b)  In or about January 2012 the Plaintiff requested the Defendant to sign the cheques and with the amounts filled in whilst the payee and date were left blank.  The said cheques were kept inside a drawer at the joint-investment beauty parlour carried on by the Plaintiff and the Defendant, namely, Song Beauty and Health Centre at M/F, No. 25 Fu Shin Street, Tai Po, New Territories.  The Plaintiff kept the keys of the drawer.  The Plaintiff told the Defendant that he would phone the Defendant when he needed to use the cheques to purchase Chinese herbal medicine for the use of the joint-investment beauty parlour.

(c)   Unbeknown to the Defendant, the Plaintiff deposited the cheques in question in about August 2012 without the Defendant’s prior knowledge and consent.  The Plaintiff forged the cheques by filling in the dates and the name of the payee being the Plaintiff himself.  The cheques were not supported by any consideration.’

7. In opposing the application for summary judgment, the defendant filed two affirmations.  In the first affirmation she confirmed her defence.  She further claimed that the plaintiff had used another cheque belonging to her to repay $5,280 to a third party, Mr Chow, which was part of a loan of $50,000 the plaintiff owed to Mr Chow.  She claimed the plaintiff had used her cheques without consent. In her second affirmation, the defendant claimed that the plaintiff had persuaded her to invest $100,000 in a beauty parlour business.  Apart from the $700,000 she referred to in paragraph 4 of the defence, she had also given the plaintiff money at his request from time to time.  In total she had given him $1,117,882.  She also stated that the plaintiff had cheated her in respect of accommodations that the plaintiff had arranged for her to rent which eventually found her being evicted by the landlord.  She could not locate the plaintiff who had disappeared since July 2012.  She claimed that she had reported the theft of her six cheques, three being the cheques now sued upon by the plaintiff to the Police and she exhibited a statement she made to the Police.  The relevant part of the statement for the purpose of this appeal is paragraph 21 in which she said that she had discovered that there were five deposits to her bank account by persons whom she did not know.  The five deposits were by cheques :

Particulars
	Date of deposit	Payer	Amount
1)	16 November 2011	Fohrer Group Limited (‘Fohrer’)	$25,000
2)	14 December 2011	Ho Kit Ching Daisy	$1,953
3)	December 2011	Fohrer	$25,000
4)	16 January 2012	Fuhrerech Group Limited	$25,000
5)	16 February 2012	Fohrer	$25,000

8. These five payments match Items 1, 2, 3, 8 and 9 of the nine loans set out in paragraph 2 above.

The plaintiff’s response

9. The plaintiff filed a further affirmation in response to these two affirmations.  The plaintiff admitted that he and the defendant had entered into the business of beauty parlour in which the defendant invested $120,000 and not $100,000.  He went into details of the premises rented by the defendant.  He denied that he had borrowed from Mr Chow.  On the contrary, he claimed that he lent money to Mr Chow.  He denied that the defendant had lent him $700,000 or $1,117,882.  Apart from the beauty parlour business, he had never entered into any other business with the defendant. 

10. Contrary to the case pleaded in the statement of claim as verified by his first affirmation, the plaintiff gave a different version as to the circumstances in which he received the three cheques :

‘ 16. In fact, the 3 cheques as referred to in my previous Affirmation and marked exhibits “JYD-9”, “JYD-10” and “JYD-11” were personally delivered by the Defendant to me at her home on 17^th February 2012 shortly before I lent a sum of HK$25,000 to her. After our calculation, it was agreed by the Defendant that she was indebted to me a total sum of HK$130,000 after she had repaid a sum of HK$2,713 to me. Since the amount of loan was substantial, I requested the Defendant to give me some security by way of cheque so that I could deposit the same into the bank for payment upon demand was made by me to the Defendant. She promised and accordingly signed the said 3 cheques after verification of the actual indebtedness due by her to me. The amounts or figures stated in the said 3 cheques were written by the Defendant. The payee and the date of the said 3 cheques were left blank. After the Defendant gave the said 3 cheques, I accompanied her to go to Citic and deposited the final amount of HK$25,000 by way of cheque into her bank account on 17^th February 2012. As at 17^th February 2012, the Defendant was and is indebted to me a total sum of HK$130,000.’

11. The plaintiff denied that he had suggested to the defendant to sign any blank cheque.  He did not have the key to the drawer at the beauty centre.  Further, as the defendant was all along working and residing at the beauty centre, it was easy for her to sign cheques when she was asked to do so.  There was no reason why she had to put the blank cheques into the drawer of the beauty centre.  In any event, if money was required to buy Chinese herbal medicine for the use of the joint-investment as alleged, there was no valid reason why the joint venture corporation would not use its cheques instead of using personal cheques.

12. In respect of the defendant’s statement to the Police the plaintiff simply said that he ‘refuted all the unfounded complaints made by the defendant’ against him.

The Judge’s decision

13. In essence, the Judge granted summary judgment because she held that the defendant did not have a credible defence, particularly in respect of the cheques which by law are to be treated as cash and honoured unless there is some good reason to the contrary.

My view

14. It is well-established that the burden on the defendant in a summary judgment application is to show that he has a credible defence and he must condescend to give particulars of his defence.  However, this does not mean that once the plaintiff invokes the application and irrespective of the strength of his case, the defendant bears all the burden of showing that there are triable issues in the case.  This is because the starting point in a summary judgment application is that it should only be invoked when there is no defence to the claim.  This means that the plaintiff must in the first place demonstrate that the defendant has indeed no defence.  This requirement is further recognised in the procedural rules which mandate the plaintiff to state his belief in the verifying affidavit that there is no defence to the claim.  This requirement must be kept in proper perspective when assessment is made of the strength of the application, otherwise there is a danger that the attention will be focused solely on what the defendant has said without consideration at the same time of the basic premise of the plaintiff’s claim or its inherent strength and weakness.  In many summary judgment applications, the plaintiff will have no difficulties in demonstrating that there is no credible defence but this case is not one of them.  In my view, the defendant has shown that she has a credible defence to the plaintiff’s claim for which summary judgment is not suitable.

15. For a start, the plaintiff must demonstrate that he had indeed lent $130,000 to the defendant when this matter is expressly put in issue by the defendant.  While initially he had exhibited the pay-in slips to the defendant’s bank account of the nine loans, it now transpires that the money of five of the loans came from some other source and not the plaintiff.  What is more surprising is that when faced with this evidence, the plaintiff’s response is simply to put in a general statement stating that he refuted the allegations made against him without giving any particulars.  In my view this is not enough.  The plaintiff should explain why cheques belonging to third parties had been used and deposited into the defendant’s account, particularly when the defendant had stated that she had often, at the plaintiff’s instruction, effected transfer of funds between her two bank accounts, for purpose she was not aware of.  The bank statements disclosed by the defendant revealed that there were indeed withdrawals following deposits made into her account.  If the parties’ relationship was simply confined to the investment by the defendant of $120,000 in the plaintiff’s business, why would he lend money of an even greater amount to her?  The plaintiff has been reticent in responding to the defendant’s allegations.  The overall impression is that there is more to the parties’ transactions than meets the eye.

16. In the absence of a proper explanation by the plaintiff, a serious doubt is cast on the plaintiff’s case and hence a triable issue is raised whether he had indeed lent money to the defendant.  This point was not considered by the Judge.  This leads to a further doubt on whether the three cheques were properly supported by consideration.  This is more so when the plaintiff himself had given two different versions of the circumstances in which he received the three cheques from the defendant.

17. It is true that the defendant’s affirmations contained matters that may not appear to be relevant but the essence of her defence can be discerned from the morass of materials disclosed by her, namely, that she had not received the loans and the three cheques were not supported by consideration.

Conclusion

18. Accordingly we allowed the appeal and granted the defendant unconditional leave to defend.

New evidence

19. The defendant sought to adduce new evidence in the form of a further statement she made to the Police after the judgment had been given against her.  The Police made inquiry with her about the theft of a cheque of $1,953 drawn by Ms Ho and deposited to her account which was one of the five cheques by third parties that the defendant said had been deposited to her account.  We refused the application because the defendant has failed to show that the requirements on adducing fresh evidence have been satisfied.  The relevance of the statement is minimal, the defendant’s response to the inquiry was that she chose to remain silent.  The fact that there was an allegation of theft of the cheque does not carry the matter further.  Further, the matter concerning the cheque had already been dealt with by the defendant when she disclosed the existence of this cheque in her second affirmation. 

Hon Kwan JA :

20. I agree with the judgment of Cheung JA.

Hon Chu JA :

21. I agree with the judgment of Cheung JA.