civil - january 2023_在线真题试卷与模拟练习

Small Island Ltd. is a souvenir shop run by Sammy Yip in Hong Kong. Sammy saw a souvenir plaque for the remembrance of Magna Carta in the website of Bespoke Plaque Ltd., a supplier in Luton, England. Sammy thought it would be a good addition to his shop.

Small Island Ltd. placed an online order for 500 pieces of the Magna Carta souvenir
plaque for a total of GBP 100,000.00 (1 GBP = approximately HK$9.5). The terms
of the order stated that the price was inclusive of delivery charges. The interpretation of the terms shall be subject to English law.

Today, upon receipt of delivery, Sammy was surprised to find that the face plate of
all of the 500 plaques came off from the wooden shields. He would like to sue
Bespoke Plaque Ltd. in Hong Kong.

Please advise Sammy the procedural steps required to successfully commence proceedings in Hong Kong against Bespoke Plaque Ltd. Briefly explain your advice.
(5 marks)

Small Island Ltd. is a souvenir shop run by Sammy Yip in Hong Kong. Sammy
saw a souvenir plaque for the remembrance of Magna Carta in the website of
Bespoke Plaque Ltd., a supplier in Luton, England. Sammy thought it would be a
good addition to his shop.

Small Island Ltd. placed an online order for 500 pieces of the Magna Carta souvenir
plaque for a total of GBP 100,000.00 (1 GBP = approximately HK$9.5). The terms
of the order stated that the price was inclusive of delivery charges. The
interpretation of the terms shall be subject to English law.

Today, upon receipt of delivery, Sammy was surprised to find that the face plate of
all of the 500 plaques came off from the wooden shields. He would like to sue
Bespoke Plaque Ltd. in Hong Kong.

Assuming proceedings were successfully commenced against Bespoke
Plaque Ltd. in Hong Kong. Bespoke Plaque Ltd. would like to argue that
the Hong Kong court has no jurisdiction to hear the dispute. Please
advise Bespoke Plaque Ltd. as to how to enter appearance for the
proceedings to successfully raise such argument. Briefly explain your advice. (5 marks)

Small Island Ltd. is a souvenir shop run by Sammy Yip in Hong Kong. Sammy
saw a souvenir plaque for the remembrance of Magna Carta in the website of
Bespoke Plaque Ltd., a supplier in Luton, England. Sammy thought it would be a
good addition to his shop.

Small Island Ltd. placed an online order for 500 pieces of the Magna Carta souvenir
plaque for a total of GBP 100,000.00 (1 GBP = approximately HK$9.5). The terms
of the order stated that the price was inclusive of delivery charges. The
interpretation of the terms shall be subject to English law.

Today, upon receipt of delivery, Sammy was surprised to find that the face plate of
all of the 500 plaques came off from the wooden shields. He would like to sue
Bespoke Plaque Ltd. in Hong Kong.

If you act for Small Island Ltd., how would you argue against Bespoke
Plaque Ltd.’s stance that the Hong Kong court has no jurisdiction to hear
the dispute? Briefly explain your answer.
(5 marks)

Andy lives in Flat A, 8/F of Lucky Towers (Flat 8A). Beatrice lives in Flat A, 9/F
of Lucky Towers (Flat 9A), which is immediately above Flat 8A.

Since 6 months ago, Andy discovered damp water patches appearing on the ceiling
of his master bedroom. The paint soon fell off. He was adamant that the water must have come from Flat 9A. He sued Beatrice in the District Court for negligence
for failing to stop water from seeping into Flat 8A.

Pleadings have just closed. You are a solicitor working in the firm retained by
Beatrice to act for her in this case.
Beatrice thought that Andy’s claim is completely hopeless. Lucky Towers is a 60-
year old building with cracks all over the spalling on the external wall. Beatrice is
sure that she will prevail at trial. But she does not want to go to trial as this will be
expensive. She is minded to make an offer so that Andy would “walk away” from
the case without consequence (i.e. not needing to pay for her costs), or at most, to
pay Andy a token sum and his legal fees as an incentive.

(a) Advise Beatrice how she can effectively put forward her offer(s) along
the lines she has in mind. Briefly explain your answer. (6 marks)

Andy lives in Flat A, 8/F of Lucky Towers (Flat 8A). Beatrice lives in Flat A, 9/F
of Lucky Towers (Flat 9A), which is immediately above Flat 8A.
Since 6 months ago, Andy discovered damp water patches appearing on the ceiling
of his master bedroom. The paint soon fell off. He was adamant that the water must have come from Flat 9A. He sued Beatrice in the District Court for negligence
for failing to stop water from seeping into Flat 8A.

Pleadings have just closed. You are a solicitor working in the firm retained by
Beatrice to act for her in this case.
Beatrice thought that Andy’s claim is completely hopeless. Lucky Towers is a 60-
year old building with cracks all over the spalling on the external wall. Beatrice is
sure that she will prevail at trial. But she does not want to go to trial as this will be
expensive. She is minded to make an offer so that Andy would “walk away” from
the case without consequence (i.e. not needing to pay for her costs), or at most, to
pay Andy a token sum and his legal fees as an incentive.

The next Case Management Conference is approaching. Andy’s solicitors now
inform you that they will seek leave to adduce a report by Mr. Chan Tai Ming, a
famous commentator on YouTube about new residential properties in Hong Kong,
particularly about their quality and finishing. In the report, after visual inspection,
Mr. Chan Tai Ming concluded that the damp water patches on the ceiling of Flat
8A must have come from Flat 9A.

(b) Beatrice asks whether she should agree or disagree with Andy’s
application to adduce the report of Mr. Chan Tai Ming as expert
evidence. Briefly explain your answer.

Andy lives in Flat A, 8/F of Lucky Towers (Flat 8A). Beatrice lives in Flat A, 9/F
of Lucky Towers (Flat 9A), which is immediately above Flat 8A.

Since 6 months ago, Andy discovered damp water patches appearing on the ceiling
of his master bedroom. The paint soon fell off. He was adamant that the water must have come from Flat 9A. He sued Beatrice in the District Court for negligence
for failing to stop water from seeping into Flat 8A.

Pleadings have just closed. You are a solicitor working in the firm retained by
Beatrice to act for her in this case.
Beatrice thought that Andy’s claim is completely hopeless. Lucky Towers is a 60-
year old building with cracks all over the spalling on the external wall. Beatrice is
sure that she will prevail at trial. But she does not want to go to trial as this will be
expensive. She is minded to make an offer so that Andy would “walk away” from
the case without consequence (i.e. not needing to pay for her costs), or at most, to
pay Andy a token sum and his legal fees as an incentive.

The next Case Management Conference is approaching. Andy’s solicitors now
inform you that they will seek leave to adduce a report by Mr. Chan Tai Ming, a
famous commentator on YouTube about new residential properties in Hong Kong,
particularly about their quality and finishing. In the report, after visual inspection,
Mr. Chan Tai Ming concluded that the damp water patches on the ceiling of Flat
8A must have come from Flat 9A.

Assuming that Beatrice did object to Andy’s application, and the Court
did agree with Beatrice and disallowed the report to be part of the
evidence. Can, and if so how, Beatrice immediately get her legal costs
arising out of the objection? Briefly explain your reasoning.

Amy Busybody hosts a chat show on TV. One day, she commented that Belinda Elegante, a budding fashion designer in Hong Kong, copied her latest designs from
Baotao, an online sales platform in China, such that Belinda’s designs were not worth a try.

Belinda was furious and came to you for advice. She claimed that Amy’s comment
was utterly false. The comment had a devastating effect on her, as the sales for her
latest design already dropped 40% after the chat show was screened.

Assume that you then helped Belinda to commence proceedings against Amy, suing
her in defamation, and asking for damages totalling $5 million. Amy entered
appearance and defended the claim, on the basis that her comment was in fact true.

(a) According to Belinda, Amy’s defence is worthless because Amy never
pleaded from which designs seen on Baotao Belinda allegedly copied her
designs. She asks whether she can obtain a judgment against Amy
quickly without going through trial. Advise Belinda, and briefly explain
your answer.

Amy Busybody hosts a chat show on TV. One day, she commented that Belinda Elegante, a budding fashion designer in Hong Kong, copied her latest designs from
Baotao, an online sales platform in China, such that Belinda’s designs were not worth a try.

Belinda was furious and came to you for advice. She claimed that Amy’s comment
was utterly false. The comment had a devastating effect on her, as the sales for her
latest design already dropped 40% after the chat show was screened.

Assume that you then helped Belinda to commence proceedings against Amy, suing
her in defamation, and asking for damages totalling $5 million. Amy entered
appearance and defended the claim, on the basis that her comment was in fact true.

Assuming the case did progress to trial, which is going to commence next week
with 4 days reserved. The trial judge, in preparation of the case, found that the
Amy’s witness statement was 104-page long; and Belinda’s Beatrice’s witness
statement was 87-page long. Amy’s reply witness statement was at staggering 150-
page long. After reading through the witness statements, the trial judge thought
most of them were useless, and were practically attempts to trash each other. He is
now afraid that, if he simply allows the parties to conduct their respective cases as
they please, the trial would significantly exceed its allotted time.

(b) What can the trial judge do to ensure the trial can finish within the
allotted time? Briefly explain your answer.

In this question, ignore all relevant provisions of the Securities and Futures
Ordinance (Cap.571), if any.

Eton Chong was nicknamed “Stock Market Saint” by some local investors of the
Hong Kong stock market, because he frequently appeared on TV shows, gave
recommendations for stocks which, if followed, reaped quite handsome profits.

Last year, Eton Chong partnered with Flying Falcon Ltd. to promote an investment
fund called Saint Rewards Fund (the “Fund”). Eton Chong said that the Fund was
managed by experienced fund managers, and was favoured by various large
investment firms in the US and in China. He highly recommended people to invest
in the Fund for fast and sizeable returns.

Richard Wong was one of those people who invested in the Fund following Eton
Chong’s advice. He put in $2,500,000.00 of his money into the Fund. But in around
9 months, the Hong Kong stock market fell significantly as a result of the COVID-
19 pandemic. Upon investigation, Richard Wong discovered that the Fund was
actually managed by 5 fund managers who were just 25 years old. Flying Falcon
Ltd. was actually a company owned and controlled by Eton Chong. Therefore,
Richard Wong sued Eton Chong for negligent advice, and also misrepresentation.

Richard Wong’s solicitors were keen to preserve Eton Chong’s assets pending trial,
such that any favourable judgment would not be frustrated. After some discreet
enquiry, they found out that Eton Chong was liquefying his stock portfolio. They
thought it became urgent for Richard Wong to apply for a Mareva injuction to freeze
Eton Chong’s assets. But when Richard Wong’s solicitors approached a barrister,
the barrister advised that there were insufficient grounds to obtain a Mareva
injunction against Eton Chong on the present evidence.

(a) Explain why the barrister gave such an advice.

In this question, ignore all relevant provisions of the Securities and Futures
Ordinance (Cap.571), if any.

Eton Chong was nicknamed “Stock Market Saint” by some local investors of the
Hong Kong stock market, because he frequently appeared on TV shows, gave
recommendations for stocks which, if followed, reaped quite handsome profits.

Last year, Eton Chong partnered with Flying Falcon Ltd. to promote an investment
fund called Saint Rewards Fund (the “Fund”). Eton Chong said that the Fund was
managed by experienced fund managers, and was favoured by various large
investment firms in the US and in China. He highly recommended people to invest
in the Fund for fast and sizeable returns.

Richard Wong was one of those people who invested in the Fund following Eton
Chong’s advice. He put in $2,500,000.00 of his money into the Fund. But in around
9 months, the Hong Kong stock market fell significantly as a result of the COVID-
19 pandemic. Upon investigation, Richard Wong discovered that the Fund was
actually managed by 5 fund managers who were just 25 years old. Flying Falcon
Ltd. was actually a company owned and controlled by Eton Chong. Therefore,
Richard Wong sued Eton Chong for negligent advice, and also misrepresentation.

Richard Wong’s solicitors were keen to preserve Eton Chong’s assets pending trial,
such that any favourable judgment would not be frustrated. After some discreet
enquiry, they found out that Eton Chong was liquefying his stock portfolio. They
thought it became urgent for Richard Wong to apply for a Mareva injuction to freeze
Eton Chong’s assets. But when Richard Wong’s solicitors approached a barrister,
the barrister advised that there were insufficient grounds to obtain a Mareva
injunction against Eton Chong on the present evidence.

(b) What evidence would be needed to improve the merits of an application for a Mareva injunction against Eton Chong? Explain your answer.

After trial, the trial judge found in favour of Richard Wong (P). Part of the judgment read as follows:-

“145. I find the Defendant [i.e. Eton Chong] a thoroughly unreliable witness. I do
not believe his case as pleaded in his pleadings, nor the evidence in his witness
statement and the evidence he gave orally in court. In fact, I find him to be an outright liar.

146. I therefore give judgment in favour of the Plaintiff [i.e. Richard Wong] for
$2,500,000.00, plus interest at HSBC prime + 1% from the date of the Writ to the
date of this judgment. I also grant a costs order nisi that the Defendant do pay the
Plaintiff’s costs of this action, to be taxed if not agreed, together with a certificate for counsel.”

(c) Richard Wong says he really wants Eton Chong “to learn a heavy
lesson”. He asks you whether it is possible to maximise the penalising
effect of the judgment. Advise Richard Wong. Explain your answer.

Pao Ching (“Pao”) and Chan Sai Mei (“Chan”) are long term friends. Chan set up
a trading firm called Fidelity Trading Co Ltd. in Hong Kong (“Fidelity”), trading
electronics between China and Africa. In search for seeding fund, Chan approached
Pao. Pao and Fidelity signed a written agreement, by which Pao agreed to lend
$$7,000,000.00 to Fidelity, which was to be repaid in 2 years together with interest
at 10% per annum.

At the end of 2 years, Fidelity did not repay any of the $$7,000,000.00 or the interest
thereon. Pao would like to commence legal proceedings against Fidelity for the
return of the loan and interest.

Pao’s solicitors arranged their clerk to attend the registered office of Fidelity at Unit
B, 10/F, Long Success Building, Hunghom to serve the originating process on
Fidelity. When the clerk got to 10/F, he saw a person coming out of Unit B. He
approached that person at the corridor of 10/F, and asked whether he was a staff
member of Fidelity, to which the person said yes. Therefore, the clerk gave him
the originating process, and asked the staff member to acknowledge receipt. At the
corridor of 10/F, Long Success Building, the staff member signed on the receipt,
acknowledging that he received the originating process on behalf of Fidelity.

Fidelity never entered into appearance to defend Pao’s claim. Pao then obtained a
default judgment against Fidelity for $$7,000,000, together with interest at 10% per
annum, and costs of $$10,000.00.

(a) Fidelity recently issued a Summons to set aside the default judgment. As
Pao’s solicitor, what advice would you give to Pao as to his stance regarding the Summons? Explain your answer.

Pao Ching (“Pao”) and Chan Sai Mei (“Chan”) are long term friends. Chan set up
a trading firm called Fidelity Trading Co Ltd. in Hong Kong (“Fidelity”), trading
electronics between China and Africa. In search for seeding fund, Chan approached
Pao. Pao and Fidelity signed a written agreement, by which Pao agreed to lend
$$7,000,000.00 to Fidelity, which was to be repaid in 2 years together with interest
at 10% per annum.

At the end of 2 years, Fidelity did not repay any of the $$7,000,000.00 or the interest
thereon. Pao would like to commence legal proceedings against Fidelity for the
return of the loan and interest.

Pao’s solicitors arranged their clerk to attend the registered office of Fidelity at Unit
B, 10/F, Long Success Building, Hunghom to serve the originating process on
Fidelity. When the clerk got to 10/F, he saw a person coming out of Unit B. He
approached that person at the corridor of 10/F, and asked whether he was a staff
member of Fidelity, to which the person said yes. Therefore, the clerk gave him
the originating process, and asked the staff member to acknowledge receipt. At the
corridor of 10/F, Long Success Building, the staff member signed on the receipt,
acknowledging that he received the originating process on behalf of Fidelity.

Fidelity never entered into appearance to defend Pao’s claim. Pao then obtained a
default judgment against Fidelity for $$7,000,000, together with interest at 10% per
annum, and costs of $$10,000.00.

Assuming the default judgment was indeed set aside subsequently, and the
case proceeded to trial. In October 2022, the court gave judgment in favour
of Pao for $7,000,000.00, together with interest at 10% per annum and costs.

Upon investigation, the biggest asset Fidelity owned was a time deposit sitting
in its bank account with United Kyoto Bank in Japan. The time deposit would
mature in 6 months.

What information you would need in order to successfully enforce the judgment against the time deposit in Japan? How could you enforce against the time deposit, if it is possible at all? Explain your answer.
(10 marks)

Pao Ching (“Pao”) and Chan Sai Mei (“Chan”) are long term friends. Chan set up
a trading firm called Fidelity Trading Co Ltd. in Hong Kong (“Fidelity”), trading
electronics between China and Africa. In search for seeding fund, Chan approached
Pao. Pao and Fidelity signed a written agreement, by which Pao agreed to lend
$$7,000,000.00 to Fidelity, which was to be repaid in 2 years together with interest
at 10% per annum.

At the end of 2 years, Fidelity did not repay any of the $$7,000,000.00 or the interest
thereon. Pao would like to commence legal proceedings against Fidelity for the
return of the loan and interest.

Pao’s solicitors arranged their clerk to attend the registered office of Fidelity at Unit
B, 10/F, Long Success Building, Hunghom to serve the originating process on
Fidelity. When the clerk got to 10/F, he saw a person coming out of Unit B. He
approached that person at the corridor of 10/F, and asked whether he was a staff
member of Fidelity, to which the person said yes. Therefore, the clerk gave him
the originating process, and asked the staff member to acknowledge receipt. At the
corridor of 10/F, Long Success Building, the staff member signed on the receipt,
acknowledging that he received the originating process on behalf of Fidelity.

Fidelity never entered into appearance to defend Pao’s claim. Pao then obtained a
default judgment against Fidelity for $$7,000,000, together with interest at 10% per
annum, and costs of $$10,000.00.

Assuming the default judgment (b) was indeed set aside subsequently, and the
case proceeded to trial. In October 2022, the court gave judgment in favour
of Pao for $$7,000,000.00, together with interest at 10% per annum and costs.

Upon investigation, the biggest asset Fidelity owned was a time deposit sitting
in its bank account with United Kyoto Bank in Japan. The time deposit would
mature in 6 months.

Assume you now act for Fidelity. After judgment (as per (b) above) was
handed down, Chan came to you for advice for the first time in January 2023.
Chan told you that, in fact, Pao promised to waive the interest on the
$$7,000,000.00 some time before the expiry of the 2-year term of the loan
agreement. He raised this in his witness statement, but the court did not accept it as true.

Last week, Chan was approached by Pao’s ex-girlfriend, Zhan Zhao
(“Zhao”). Zhao showed Chan some WhatsApp messages between her and
Pao, in which Pao wrote that he waived the interest for the loan to Fidelity.
Zhao was willing to provide copies of the WhatsApp messages to Chan, as
she was furious about her break up with Pao.

What advice would you give to Chan/Fidelity? Explain your answer.