核心 legal issue 在於被告是否具有 arguable defence 以抗拒 summary judgment。爭議點包括：(1) Loan Agreement 是否受 Co-operation Agreement 條款限制；(2) 被告能否以 non est factum 或 misrepresentation 作為抗辯；(3) 相關支票及手寫還款筆記的法律效力。
判決理由
法官認為 Co-operation Agreement 僅提供額外 security，並不影響 Loan Agreement 的還款義務。關於 non est factum，法官引用 Saunders v Anglia Building Society 確立，若簽署人未盡力了解文件一般效力而簽署，則不能以此抗辯。鑑於被告曾任上市公司主席，其聲稱被誤導的說法缺乏證據且不具說服力，其抗辯被視為 frivolous and practically moonshine。
引用案例與條文
引用 Saunders v Anglia Building Society [1971] AC 1004，用於判定 non est factum 的適用門檻，即簽署人必須提供清晰且積極的證據證明其被誤導，而非僅僅是不閱讀文件。
裁決與命令
法官批准原告的 summary judgment 申請，裁定被告敗訴。命令如下：(1) 被告須支付本金 920 萬港元；(2) 支付利息共 2,138,104.56 港元，以及從起訴書日期起至判決日為止 2% 的利息；(3) 頒發 costs order nisi 給原告。
判決啟示
法官提醒原告未能根據 Practice Direction 5.4 提交 statement of costs，警告未來若不遵守此程序，法院可能會採取制裁措施（sanctions），例如不允許支付出席聆訊的費用或全球性削減 costs。
由此
A A
HCA 2120/2008
B B
C
IN THE HIGH COURT OF THE C
HONG KONG SPECIAL ADMINISTRATIVE REGION
D D
COURT OF FIRST INSTANCE
E
ACTION NO. 2120 OF 2008 E
_________________________
F F
BETWEEN
G G
GRAND VICTORY DEVELOPMENT LIMITED Plaintiff
H And H
KE JUNXIANG (柯俊翔) Defendant
I I
_________________________
J J
Coram : Before Master Levy in Chambers
K Date of Paper Disposal : 22 May 2009 K
Date of Judgment : 22 May 2009
L L
M _______________ M
JUDGMENT
N N
_______________
O O
INTRODUCTION
P P
Q 1. The Plaintiff, Grand Victory (“GV”), applies for summary Q
judgment pursuant to Order14 of the Rules of High Court against Mr. Ke.
R R
S 2. GV claims against Mr. Ke for the principal amount of HK$9.2 S
million (“the Loan”) together with accrued interests under a facility
T T
agreement dated 8 August 2007 written in English signed between the
U U
V V
由此 - 2 -
A A
parties (“the Loan Agreement”). The principal amount was to be repaid
B
within 6 months, which would have been on 8 February 2008. B
C C
DEFENCE/DISPUTES
D D
3. In resisting the claim, Mr. Ke had filed a Defence while he was
E E
still acting in person; and an affirmation in opposition to the application,
F filed by his legal representatives. Both these documents were prepared in F
simplified Chinese.
G G
H 4. According to the Defence and the Affirmation in opposition, Mr. H
Ke’s defence can be summarised as follows:
I I
J (i) The repayment of the Loan was subject to a Co-operation J
Agreement (“the Co-operation Agreement”) entered on the
K K
same day of the Loan Agreement between the same parties;
L L
(ii) As GV has been in breach of the Co-operation Agreement, he
M M
has no obligation to repay the Loan;
N N
(iii) The Loan Agreement is in English. Mr. Ke alleged that he was
O O
neither advised to obtain independent legal advice nor
P explained the content of the documents in English before he was P
asked to sign them. He did not understand the nature of the
Q Q
documents;
R R
(iv) The representative of GV had misrepresented to him that the
S S
two English documents he was asked to sign on 8 August 2007
T T
were in connection with a security in respect of a Hong Kong
U U
V V
由此 - 3 -
A A
incorporated company called Sino Bridge in which Mr. Ke
B
owned 60% shareholding. B
C C
(v) The two cheques in the sums of HK$300,000 and HK$180,000
D pleaded in paragraph 7 of the Amended Statement of Claim D
(“ASOC”) were for payment of the introduction fees to a Mr.
E E
Suen for the execution of the Co-operation Agreement.
F F
(vi) The handwritten note in Chinese containing proposed
G G
repayment schedule (“QR-3”) pleaded in paragraph 10 of the
H ASOC was neither written nor signed by him. H
I I
DISCUSSION
J J
(i) Whether the Loan Agreement was subject to the terms of the
K K
Co-operation Agreement?
L L
5. On 8 August 2007, the following documents were executed:
M M
N (a) The Loan Agreement; N
O O
(b) The Co-operation Agreement;
P P
(c) Mr. Ke’s handwritten instructions in Chinese to GV to
Q Q
drawdown the Loan. He drew down the Loan by instructing GV
R to apply the Loan by effecting payments in the following R
manner:
S S
i. HK$7.2 million to a Hong Kong incorporated company
T T
called Lolliman;
U U
V V
由此 - 4 -
A A
ii. HK$1.4 million to the account of a Mr. Ngai, who
B
introduced Mr. Ke to GV; B
iii. Cash HK$600,000 to Mr. Ke himself.
C C
D (d) Notice of Drawing (in English) signed by Mr. Ke confirming D
the payments in the manner stated in (c) above.
E E
F 6. After having read all the above documents, I am unable to F
accept, for the following reasons, the submission by Mr. Ke’s solicitors that
G G
the repayment of the Loan was subject to the Co-operation Agreement:
H H
(1) The terms of the Co-operation Agreement only impose
I I
separation obligations on the parties in respect of the
J development of some land in PRC, which land was purported to J
be beneficially owned by Mr. Ke through corporate entities.
K K
The purpose of this agreement was signed with a view to obtain
L profits for both parties from the land development. L
M M
(2) Clause 1 of the Co-operation Agreement is in fact a
N confirmation of clause 8.1 of the Loan Agreement, which N
obliged Mr. Ke to provide security for the Loan by, inter alia,
O O
executing charges on the shares of Sino Bridge;
P P
(3) Clause 4 of the Co-operation Agreement provided that the profit
Q Q
derived from the land development was to be paid in
R satisfaction of the Loan and its interest. This term actually R
reinforces GV’s assertion stated in the Affirmation of Li Hiu
S S
Ming in support of the application that the Co-operation
T T
U U
V V
由此 - 5 -
A A
Agreement has the additional benefit of providing further
B
security for the Loan. B
C C
(4) There is overwhelming evidence that the Loan was drawn down.
D The instructions for the payment of $7.2 million to Lolliman D
further corroborates GV’s case that the purpose of the Loan
E E
Agreement was to enable Mr. Ke to get rid of the bankruptcy
F petition presented by Lolliman. Mr. Ke’s assertion that he did F
not draw down the loan cannot be accepted.
G G
H (5) In any event, Mr. Ke’s defence that GV’s has failed its H
obligations under the Co-operation Agreement is not valid
I I
because as there is abundance of evidence showing that Mr. Ke
J (or to be more precise, his corporate vehicle) no longer, well J
before the Co-operation Agreement, owned the subject PRC
K K
land. The performance of the Co-operation Agreement was
L impossible. L
M M
(ii) The Defence of Non Est Facturm and Misrepresentation
N N
7. A plea of Non Est Facturm cannot be available to anyone who
O O
was content to sign without taking the trouble to find out at least the general
P effect of the document. (See Saunders v Anglia Building Society [1971] P
AC1004, HL at 1016B-d) Further, such plea requires clear and positive
Q Q
evidence before it can be established (Saunders at p.1019B).
R R
8. Mr. Ke has adduced no evidence to advance such plea apart
S S
from the bare assertion stated above.
T T
U U
V V
由此 - 6 -
A A
9. As Mr. Ke has been the chairman of a listed company in Hong
B
Kong, I think his assertion of being misled looks highly improbable, and the B
intended plea appears to be hollow.
C C
D 10. As to his other allegations of misrepresentation, I agree with D
counsel that Mr. Ke has failed to condescend on any particulars. Similarly, I
E E
am not satisfied that Mr. Ke has an arguable defence.
F F
(iii) The Cheques and the Settlement Note
G G
H 11. The Cheques and the Settlement Note in my view are H
contemporaneous documents clearly confirming Mr. Ke’s liability under the
I I
Loan Agreement. Mr. Ke’s allegations that the said payments by cheques
J was for paying the middle-man appear to be fanciful as the middle-man is J
Mr. Ngai, not Mr. Suen, who being the director of Lolliman had an direct
K K
interest to see Mr. Ke obtaining sufficient funds to repay Lolliman.
L L
12. Further, Mr. Ke’ denial of being the author of the handwritten
M M
note, being a bare assertion, looks bad and does not appear to be truthful.
N N
CONCLUSION & ORDER
O O
P 13. I am satisfied on the evidence and the Defence having been P
filed that Mr. Ke’s defence is frivolous and practically moonshine. I
Q Q
therefore grant the application in favour of GV.
R R
14. As there is no dispute in the loan amount and the outstanding
S S
interests, I enter final judgment and grant the following orders:
T T
U U
V V
由此 - 7 -
A A
(a) Judgment in the sum of HK$9.2 million;
B B
(b) Interest in the total sum of HK$2,138,104.56; and interest on
C C
HK$9.2 million at 2% from the date of writ until judgment,
D thereafter a judgment rate until full payment; D
E E
(c) Costs order nisi in favour of the Plaintiff, together with a
F certificate for counsel, which costs shall be, in the event of a F
dispute, summarily assessed in lieu of taxation.
G G
H 15. In this case, the Plaintiff has failed to lodge a statement of costs H
together with the skeleton submission in accordance with Practice Direction
I I
5.4. In the future, should a receiving party fail to adhere to this practice, the
J court may impose sanctions by, for example, disallowing costs for attending J
the hearing for summary assessment, or globally reducing costs of the
K K
receiving party.
L L
16. Upon the nisi costs order becoming absolute, the parties shall
M M
fix a ½ hour hearing before me for summary assessment of costs. A
N receiving party shall lodge and serve a statement of costs 7 days before the N
hearing, and a statement of objections shall be similarly lodged and served 3
O O
days before the hearing.
P P
Q Q
R (K. Levy) R
Master of the High Court
S S
Mr. J. Au-weng, instructed by Messrs. D.S. Cheung & Co. for Plaintiff.
T T
Messrs. Chong & Partners for Defendant.
U U
V V
GRAND VICTORY DEVELOPMENT LTD v. KE JUNXIANG
### 案件基本資料
- 案件名稱：Grand Victory Development Limited v Ke Junxiang (柯俊翔)
- 法院：高等法院原訟法庭 (CFI)
- 法官：Master Levy
- 判決日期：2009年5月22日
### 案情摘要
原告 Grand Victory (GV) 申請 summary judgment，追討被告柯俊翔根據 2007 年 8 月 8 日 Loan Agreement 借入的 920 萬港元本金及利息。被告承認簽署文件，但辯稱還款受另一份 Co-operation Agreement 約束，且指稱自己不明白英文合約內容，被誤導簽署，並否認部分還款計劃筆記為其所寫。
### 核心法律爭議
核心 legal issue 在於被告是否具有 arguable defence 以抗拒 summary judgment。爭議點包括：(1) Loan Agreement 是否受 Co-operation Agreement 條款限制；(2) 被告能否以 non est factum 或 misrepresentation 作為抗辯；(3) 相關支票及手寫還款筆記的法律效力。
### 判決理由
法官認為 Co-operation Agreement 僅提供額外 security，並不影響 Loan Agreement 的還款義務。關於 non est factum，法官引用 Saunders v Anglia Building Society 確立，若簽署人未盡力了解文件一般效力而簽署，則不能以此抗辯。鑑於被告曾任上市公司主席，其聲稱被誤導的說法缺乏證據且不具說服力，其抗辯被視為 frivolous and practically moonshine。
### 引用案例與條文
引用 Saunders v Anglia Building Society [1971] AC 1004，用於判定 non est factum 的適用門檻，即簽署人必須提供清晰且積極的證據證明其被誤導，而非僅僅是不閱讀文件。
### 裁決與命令
法官批准原告的 summary judgment 申請，裁定被告敗訴。命令如下：(1) 被告須支付本金 920 萬港元；(2) 支付利息共 2,138,104.56 港元，以及從起訴書日期起至判決日為止 2% 的利息；(3) 頒發 costs order nisi 給原告。
### 判決啟示
法官提醒原告未能根據 Practice Direction 5.4 提交 statement of costs，警告未來若不遵守此程序，法院可能會採取制裁措施（sanctions），例如不允許支付出席聆訊的費用或全球性削減 costs。
---
### 免責聲明
本摘要由人工智能自動生成，內容可能存在錯誤或遺漏，僅供參考，不構成法律意見。如需法律建議，請諮詢合資格律師。### Case Details
- Case Name: Grand Victory Development Limited v Ke Junxiang
- Court: Court of First Instance (CFI)
- Judge: Master Levy
- Date of Judgment: 22 May 2009
### Factual Background
The Plaintiff (GV) applied for summary judgment to recover a principal loan of HK$9.2 million plus interest from the Defendant, Mr. Ke, based on a Loan Agreement dated 8 August 2007. Mr. Ke contested the claim, arguing that repayment was contingent upon a separate Co-operation Agreement, that he did not understand the English documents he signed, and that he was misled regarding the nature of the agreements.
### Key Legal Issues
The primary legal issue was whether the Defendant had an arguable defence to resist summary judgment. Key disputes included whether the Loan Agreement was subject to the Co-operation Agreement, and whether the pleas of non est factum and misrepresentation were sustainable given the Defendant's professional background.
### Ratio Decidendi
The judge found the Co-operation Agreement served as additional security rather than a condition for repayment. Regarding non est factum, the judge applied the principle that a party cannot rely on this plea if they signed without taking trouble to understand the document's general effect. Given the Defendant's status as a former chairman of a listed company, his claims of being misled were deemed improbable and lacked evidence.
### Key Precedents & Statutes
Saunders v Anglia Building Society [1971] AC 1004 was cited to establish that a plea of non est factum requires clear and positive evidence and is unavailable to those who sign documents carelessly.
### Decision & Orders
The application for summary judgment was granted. The court ordered the Defendant to pay: (1) the principal sum of HK$9.2 million; (2) accrued interest of HK$2,138,104.56 plus 2% interest from the date of the writ; and (3) a costs order nisi in favour of the Plaintiff.
### Key Takeaways
The judge noted the Plaintiff's failure to lodge a statement of costs per Practice Direction 5.4, warning that future non-compliance could lead to sanctions, such as the disallowance of hearing costs or a global reduction in costs.
---
### Disclaimer
This summary is AI-generated and may contain errors or omissions. It is for reference only and does not constitute legal advice. Please consult a qualified lawyer for professional legal advice.
由此
A A
HCA 2120/2008
B B
C
IN THE HIGH COURT OF THE C
HONG KONG SPECIAL ADMINISTRATIVE REGION
D D
COURT OF FIRST INSTANCE
E
ACTION NO. 2120 OF 2008 E
_________________________
F F
BETWEEN
G G
GRAND VICTORY DEVELOPMENT LIMITED Plaintiff
H And H
KE JUNXIANG (柯俊翔) Defendant
I I
_________________________
J J
Coram : Before Master Levy in Chambers
K Date of Paper Disposal : 22 May 2009 K
Date of Judgment : 22 May 2009
L L
M _______________ M
JUDGMENT
N N
_______________
O O
INTRODUCTION
P P
Q 1. The Plaintiff, Grand Victory (“GV”), applies for summary Q
judgment pursuant to Order14 of the Rules of High Court against Mr. Ke.
R R
S 2. GV claims against Mr. Ke for the principal amount of HK$9.2 S
million (“the Loan”) together with accrued interests under a facility
T T
agreement dated 8 August 2007 written in English signed between the
U U
V V
由此 - 2 -
A A
parties (“the Loan Agreement”). The principal amount was to be repaid
B
within 6 months, which would have been on 8 February 2008. B
C C
DEFENCE/DISPUTES
D D
3. In resisting the claim, Mr. Ke had filed a Defence while he was
E E
still acting in person; and an affirmation in opposition to the application,
F filed by his legal representatives. Both these documents were prepared in F
simplified Chinese.
G G
H 4. According to the Defence and the Affirmation in opposition, Mr. H
Ke’s defence can be summarised as follows:
I I
J (i) The repayment of the Loan was subject to a Co-operation J
Agreement (“the Co-operation Agreement”) entered on the
K K
same day of the Loan Agreement between the same parties;
L L
(ii) As GV has been in breach of the Co-operation Agreement, he
M M
has no obligation to repay the Loan;
N N
(iii) The Loan Agreement is in English. Mr. Ke alleged that he was
O O
neither advised to obtain independent legal advice nor
P explained the content of the documents in English before he was P
asked to sign them. He did not understand the nature of the
Q Q
documents;
R R
(iv) The representative of GV had misrepresented to him that the
S S
two English documents he was asked to sign on 8 August 2007
T T
were in connection with a security in respect of a Hong Kong
U U
V V
由此 - 3 -
A A
incorporated company called Sino Bridge in which Mr. Ke
B
owned 60% shareholding. B
C C
(v) The two cheques in the sums of HK$300,000 and HK$180,000
D pleaded in paragraph 7 of the Amended Statement of Claim D
(“ASOC”) were for payment of the introduction fees to a Mr.
E E
Suen for the execution of the Co-operation Agreement.
F F
(vi) The handwritten note in Chinese containing proposed
G G
repayment schedule (“QR-3”) pleaded in paragraph 10 of the
H ASOC was neither written nor signed by him. H
I I
DISCUSSION
J J
(i) Whether the Loan Agreement was subject to the terms of the
K K
Co-operation Agreement?
L L
5. On 8 August 2007, the following documents were executed:
M M
N (a) The Loan Agreement; N
O O
(b) The Co-operation Agreement;
P P
(c) Mr. Ke’s handwritten instructions in Chinese to GV to
Q Q
drawdown the Loan. He drew down the Loan by instructing GV
R to apply the Loan by effecting payments in the following R
manner:
S S
i. HK$7.2 million to a Hong Kong incorporated company
T T
called Lolliman;
U U
V V
由此 - 4 -
A A
ii. HK$1.4 million to the account of a Mr. Ngai, who
B
introduced Mr. Ke to GV; B
iii. Cash HK$600,000 to Mr. Ke himself.
C C
D (d) Notice of Drawing (in English) signed by Mr. Ke confirming D
the payments in the manner stated in (c) above.
E E
F 6. After having read all the above documents, I am unable to F
accept, for the following reasons, the submission by Mr. Ke’s solicitors that
G G
the repayment of the Loan was subject to the Co-operation Agreement:
H H
(1) The terms of the Co-operation Agreement only impose
I I
separation obligations on the parties in respect of the
J development of some land in PRC, which land was purported to J
be beneficially owned by Mr. Ke through corporate entities.
K K
The purpose of this agreement was signed with a view to obtain
L profits for both parties from the land development. L
M M
(2) Clause 1 of the Co-operation Agreement is in fact a
N confirmation of clause 8.1 of the Loan Agreement, which N
obliged Mr. Ke to provide security for the Loan by, inter alia,
O O
executing charges on the shares of Sino Bridge;
P P
(3) Clause 4 of the Co-operation Agreement provided that the profit
Q Q
derived from the land development was to be paid in
R satisfaction of the Loan and its interest. This term actually R
reinforces GV’s assertion stated in the Affirmation of Li Hiu
S S
Ming in support of the application that the Co-operation
T T
U U
V V
由此 - 5 -
A A
Agreement has the additional benefit of providing further
B
security for the Loan. B
C C
(4) There is overwhelming evidence that the Loan was drawn down.
D The instructions for the payment of $7.2 million to Lolliman D
further corroborates GV’s case that the purpose of the Loan
E E
Agreement was to enable Mr. Ke to get rid of the bankruptcy
F petition presented by Lolliman. Mr. Ke’s assertion that he did F
not draw down the loan cannot be accepted.
G G
H (5) In any event, Mr. Ke’s defence that GV’s has failed its H
obligations under the Co-operation Agreement is not valid
I I
because as there is abundance of evidence showing that Mr. Ke
J (or to be more precise, his corporate vehicle) no longer, well J
before the Co-operation Agreement, owned the subject PRC
K K
land. The performance of the Co-operation Agreement was
L impossible. L
M M
(ii) The Defence of Non Est Facturm and Misrepresentation
N N
7. A plea of Non Est Facturm cannot be available to anyone who
O O
was content to sign without taking the trouble to find out at least the general
P effect of the document. (See Saunders v Anglia Building Society [1971] P
AC1004, HL at 1016B-d) Further, such plea requires clear and positive
Q Q
evidence before it can be established (Saunders at p.1019B).
R R
8. Mr. Ke has adduced no evidence to advance such plea apart
S S
from the bare assertion stated above.
T T
U U
V V
由此 - 6 -
A A
9. As Mr. Ke has been the chairman of a listed company in Hong
B
Kong, I think his assertion of being misled looks highly improbable, and the B
intended plea appears to be hollow.
C C
D 10. As to his other allegations of misrepresentation, I agree with D
counsel that Mr. Ke has failed to condescend on any particulars. Similarly, I
E E
am not satisfied that Mr. Ke has an arguable defence.
F F
(iii) The Cheques and the Settlement Note
G G
H 11. The Cheques and the Settlement Note in my view are H
contemporaneous documents clearly confirming Mr. Ke’s liability under the
I I
Loan Agreement. Mr. Ke’s allegations that the said payments by cheques
J was for paying the middle-man appear to be fanciful as the middle-man is J
Mr. Ngai, not Mr. Suen, who being the director of Lolliman had an direct
K K
interest to see Mr. Ke obtaining sufficient funds to repay Lolliman.
L L
12. Further, Mr. Ke’ denial of being the author of the handwritten
M M
note, being a bare assertion, looks bad and does not appear to be truthful.
N N
CONCLUSION & ORDER
O O
P 13. I am satisfied on the evidence and the Defence having been P
filed that Mr. Ke’s defence is frivolous and practically moonshine. I
Q Q
therefore grant the application in favour of GV.
R R
14. As there is no dispute in the loan amount and the outstanding
S S
interests, I enter final judgment and grant the following orders:
T T
U U
V V
由此 - 7 -
A A
(a) Judgment in the sum of HK$9.2 million;
B B
(b) Interest in the total sum of HK$2,138,104.56; and interest on
C C
HK$9.2 million at 2% from the date of writ until judgment,
D thereafter a judgment rate until full payment; D
E E
(c) Costs order nisi in favour of the Plaintiff, together with a
F certificate for counsel, which costs shall be, in the event of a F
dispute, summarily assessed in lieu of taxation.
G G
H 15. In this case, the Plaintiff has failed to lodge a statement of costs H
together with the skeleton submission in accordance with Practice Direction
I I
5.4. In the future, should a receiving party fail to adhere to this practice, the
J court may impose sanctions by, for example, disallowing costs for attending J
the hearing for summary assessment, or globally reducing costs of the
K K
receiving party.
L L
16. Upon the nisi costs order becoming absolute, the parties shall
M M
fix a ½ hour hearing before me for summary assessment of costs. A
N receiving party shall lodge and serve a statement of costs 7 days before the N
hearing, and a statement of objections shall be similarly lodged and served 3
O O
days before the hearing.
P P
Q Q
R (K. Levy) R
Master of the High Court
S S
Mr. J. Au-weng, instructed by Messrs. D.S. Cheung & Co. for Plaintiff.
T T
Messrs. Chong & Partners for Defendant.
U U
V V