Chen Simon Guomin v Chan Choi Har Ivy [2025] 5 HKC 1002, [2025] HKCA 730 (Jeff Yau)
Jeff Yau represented the 3rd and 4th defendants in Chen Simon Guomin v Chan Choi Har Ivy [2025] 5 HKC 1002, [2025] HKCA 730.
The plaintiff claimed against the defendants in the Court of First Instance to enforce a loan agreement and three guarantees (Guarantees), with the plaintiff as the lender, the 1st (D1) and 2nd (D2) defendants as the borrowers, and, inter alia, the 3rd (D3) and 4th (D4) defendants as guarantors. Both D3 and D4, the only defendants at trial, were Hong Kong solicitors. D3 and D4’s defence was that the loan agreement and the Guarantees were sham arrangements and no money was in fact advanced to D1 and D2 (Sham Defence), and that they were unenforceable since they were in contrary to the Money Lender Ordinance (Cap 163) (MLO Defences). D3 and D4 appeared in person at trial. At the first day of trial, the judge discussed with D3 and D4 and asked them to consider carefully their position regarding the Sham Defence. D3 and D4 handed up a typed document they signed abandoning the Sham Defence, confirming that their only defence was the MLO Defences. The judge then discussed with the parties whether the trial could be conducted without hearing evidence from the witnesses. D3 and D4 informed the court that they would not give oral evidence but they wished to cross-examine the plaintiff regarding the carrying on of the business of a money lender. After exchanges with the parties and having confirmed with D3 and D4 that they were not disputing the plaintiff’s factual case, the judge ruled that oral evidence was not necessary and disallowed D3 and D4 to cross-examine the plaintiff for the above purposes. The judge, in his judgment, held D3 and D4 jointly and severally liable to pay the plaintiff the outstanding principal under the loan agreement with interest. The judge proceeded on the basis that D3 and D4 had abandoned the Sham Defence and the plaintiff’s factual case was undisputed, and that the burden of proving the plaintiff was a money lender was on D3 and D4, and they failed to prove so since they had not pleaded any material facts nor adduced any evidence in support, hence the MLO was not applicable. D3 and D4 appealed to the Court of Appeal, contending that they did not have a fair trial, that the judge failed to give them explanation, advice, assistance and guidance on procedural and substantive aspects of the case, and had put undue pressure on them causing them to abandon the Sham Defence, and denied them of the right to cross-examine the plaintiff.
Held, unanimously, dismissing the appeal, that:
(1) A judge’s approach to a trial with self-represented litigants necessarily turned on the own facts and circumstances of each case. There was no hard and fast rule. The trial judge should assess the particular needs of the unrepresented party and his ability to grasp the relevant concepts. Blair v Maynard (1984) 324 SE 2d 391; Kenny v Ritter (2009) 52 MVR 360 ; [2009] SASC 139; Jones v National Coal Board [1957] 2 QB 55 ; [1957] 2 All ER 155 ; [1957] 2 WLR 760; In re R [1995] 1 WLR 184 ; [1994] 2 FCR 1251 ; [1995] 1 FLR 123 ; and In re G (Children: Fair Hearing) [2019] EWCA Civ 126 ; [2019] 1 FLR 1357 ; [2019] 4 WLR 36 considered (para 37).
(2) In the present case, the judge below had not unjustifiably put any undue pressure on D3 and D4 to abandon the Sham Defence. On an objective assessment of the transcript, the judge’s handling of the situation was exemplary and completely proper. D3 and D4 were aware that the Sham Defence was a central part of their pleaded case and the implications of running that defence. The judge’s ‘warning’ was not unjustified or disproportionate. It was contrary to common sense to suppose D3 and D4, both being experienced solicitors, would not have some basic understanding of the procedural and substantive aspect of their case. The terms of the document prepared by D3 and D4 were clear; they unequivocally and unambiguously abandoned the Sham Defence (paras 44, 47-50).
(3) The judge below did not bar D3 and D4 from pursuing the defence that the plaintiff was an unlicensed money lender. The judge only disallowed cross-examination of the plaintiff. As no material facts in support of this allegation had been pleaded and the defendants had the burden of proving this allegation, it was right to disallow the defendants to cross-examine the plaintiff to conduct a roving inquiry and fish for evidence to support an unparticularized allegation. Chan Miu Chu Zoe v Choi Chiu Yuk [2014] HKCU 477, (HCA 698/2012, Registrar KW Lung, 21 February 2014, unreported) considered (paras 59-60).
(4) The judge had not failed to properly discharge his duty by failing to explain to D3 and D4 the implications of not disputing the plaintiff’s factual case. From the judge’s exchanges with the D4, D3 and D4 were not ignorant of the implications of not disputing the plaintiff’s factual case. D3 and D4’s confirmation was clear, equivocal and unambiguous (paras 66-72).
[The above is excerpted from the headnote to the report in HKC.]
