LOUIS PAO v. KO KAI FAN AND ANOTHER

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R E A S O N S

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Nazareth, J.A. (giving the judgment of the Court):

1. This is an appeal against the judgment of His Honour Judge Wesley Wong given on the 30th November 1990. Having heard all that the appellant/plaintiff, who was not represented, had to say, we dismissed the appeal without calling upon Mr. Selwyn So for the respondents/defendants. As then indicated, we now hand down our reasons.

2. The plaintiff, Louis Pao, is a teacher of ballroom and similar dancing, and sole proprietor of his dance studio known as Louispartners 0004, in Kowloon.

3. In 1988, by means of his own personally drawn-up particulars and grounds of claim, he commenced Action No. 775 of 1988 in the District Court, against one of his sudents, the 1st defendant ("Miss Ko") and the 2nd defendant her mother. His claim in his own words was for:

"tuition fee $5,800.00, the amount of one of defendant's co-learners had paid, plus half yearly compound interest of 2.8% p.m. ... as stipulated in the 'Special Learner's Promises' she signed which is clearly express (sic) as a kind of IOU ...

From 5-6-83 to 5-3-88, tuition and
Interest ...		$25,436.06
Filing fee etc		$376.00
	Total	$25,812.06

...

GROUNDS FOR THE CLAIM ARE (EXHIBITS TO BE PRODUCED IN COURT IF NECESSARY)

((1)) I O U & 12 PROMISES SIGNED: Plaintiff is a professional dance teacher, an official examiner of NYSTD and NCTDO. His pupil got highly commended pass from F.A.T.D. (Australia & New Zealand); Honours pass I.S.T.D. (London) (EXH. 1) Defendant entered into professional training for English style L-A and American style 13 ballroom dancing. Instead of paying tuition fee $34,800.00 ($28,800 for dancing; $6,000 for useful and professional English). Defendant signed an I.O.U. and 12 promises. (annexed EXH. 2).

((2)) Plaintiff is now demanding only part of the tuition fee $34,800.00.--- which is only $5,800, the amount of one of Defendant's co-learner had paid (term by term) before Defendant left.(EXH. 3; the first sheet only is annexed at the end). They learned the same thing, at the same time, same place. (In fact, I am entitled to claim the full amount of $34,800.00)

((3)) Defendant can find no excuse whatsoever (A) Defendant is supposed to pay $34,800.00. Automatically (without being demanded) as soon as she stopped coming, or pay $34,800.00 anytime the Plaintiff demands, irrespective of whether or not Defendant has taken any lesson. (annexed EXH. 2, promises 2 and 8). But Defendant refused to pay the greatly reduced amount of only $5,800 even after repeated request (see EXH. 5)

(B) Plaintiff may allow Defendant to act as an assistant teacher, etc; to pay 5off the tuition fee "after" 1440 hours of practising (see annexed EXH. 2, Promise No. 2) Unfortunately she stopped coming. If she should continue to come, only 4 hours daily mostly during spare time for certain number of hours, she should be able to achieve her aims without paying anything. (C) Defendant No. 2, Au-Yeung Wah is the mother of Defendant No. 1 Ko Wai-Fan, and also guarantor guaranteeing that she will be wholly responsible for the promises signed. They signed the document on the same day, at the same place and same time."

4. The defendants resisted the claim upon grounds to which I shall return so far as may be necessary.

5. Ultimately the Judge, after a two-day hearing on 7th and 8th November 1990, dismissed the claim with costs on 30th November 1990. The plaintiff now appeals against that decision. Before addressing his grounds of appeal it is of assistance to turn first to the background and facts.

6. Miss Ko who had earlier already commenced taking lessons from the plaintiff, on 16th September 1982 signed one of the plaintiff's printed bilingual forms entitled "Special Learners Promises". Just over a month later she signed a second such form. Since a translation of the duly completed part of the form on the reverse in Chinese was provided only in relation to the second form, it is the text of that second form in its completed state that we set out:

"I, Ko Wai Fan, the undersigned, solemnly, sincerely, and honestly promise Louis and his main Dance Studios (hereafter called the 'Studios') the following 12 promises: (1) Finish taking overleaf stated special lessons before the 24th Oct, 1984. For every lesson, I promise to practice carefully alone or with other pupils three hours as directed by the studios. (2) I understand that the tuition fee for the 870 special lessons mentioned above are thirty four thousand eight hundred HK dollars (H.K. $34,800.00). (The studios may change some of the lessons mentioned above to any other kind of lessons. The tuition fee will be computed according to the studios' official rate). And I promise to pay the said tuition fee anytime the studios demand. The studios can also ask me to pay the said tuition fee in the following eight ways anytime the studios want me to: 1. After 1440 hours of practice, act as assistant at H.K. $10.00 per hour. 2. Typing, at H.K. $10.00 per hour.3. Go for errands, at H.K. $10.00 per hour. 4. Making enquiry, at H.K. $10.00 per hour. 5. Reception, at H.K. $10.00 per hour. 6. Pose for dance pictures, at H.K. $10.00 per hour. 7. Party assistant, at H.K. $10.00 per hour. 8. Office work, at H.K. $10.00 per hour. (3) I promise to learn whatever the studios want me to. I understand that when I can dance one round/group, (as arranged by the studios), man's steps only, (or lady's steps only), of any dance is considered as five lessons. Some of the dances are listed in the studios' private list and can be inspected on demand. (4) Not to do anything harmful to the studios. (5) I fully understand that this is a kind of I.O.U. (6) Always notify the studios my latest addresse(s) and telephone number(s). (7) Receive from the studios a card with words 'Promises kept by Ko Wai Fan' at the end of each month (8) If I cannot get the card mentioned in No. (7) above, I will pay into the studios' bank. account 'Louisn partners 0004 City Bank 00599875' or any other account chosen by the studio the full amount of tuition fee/debt in cash within three days irrespective of whether or not I have taken any lesson. Failing this, I must pay not only the full amount of tuition fee/debt, but half-yearly compound interest at the highest rate as lawfully, charged an^y pe^rson/shop/company This is effective for an unlimited number of years. And besides, I must pay every cent the studios spent to make me keep my promises. The studios can also use any method to make me keep my promises. (9) I promise to pay in terms of gold computed at the rate of three thousand H.K. dollars per ounce if the studios so demand. (10) If I borrow any money from the studios I also promise to repay in the way mentioned in Nos. (8) and (9) above. (11) I promise to keep the rules and regulations made by the studios from time to time. (12) I shall be held responsible for the above promises for an unlimited number of years.

    A Chinese translation of the above is printed below. In the event of dispute over the texts, the English text shall prevail.

[The Chinese text which follows here is not reproduced]

(signed: Chinese seal)"

On the reverse of this second form there was a manuscript_. endorsement in Chinese which was translated in the following way:

"    EXPLANATORY NOTES OF THE ORIGINAL TEXT

870 special lessons (A) (for) studying and passing of the book 'Calling all Beginners' by BBC London; or similar book chosen by this studio; (B) (for) the Latin-American course prescribed by the various English style dancing associations, until the membership examination passed; (C) (for) the 13 dances prescribed by the various American style dancing associations, until the membership examination passed; and (D) (for) the 2 English and American dance books used by this studio for teaching and learning, until able to read and understand.

    This document can be cancelled if more proper document is available in the future. But this must get the consent of both parties."

Below that were appended photocopies of the identity cards of the 1st and 2nd defendants.

7. Only the Chinese text of the 1st form was completed; regrettably no translation was provided but from the submissions of the plaintiff it emerged that the amount of the tuition fees promised in it was $6,000.

8. The two forms came to be referred to as the 1st IOU and the 2nd IOU. We have found it convenient to continue to refer to them in that way.



9. The plaintiff gave evidence at the trial of the action and was cross-examined by the defendants?solicitor, and in turn Miss Ko gave evidence and was cross-examined by the plaintiff. No witnesses were called and some documents and records complete the evidence. From the evidence and the submissions it emerges that the plaintiff did not have any records of the number of lessons taken by Miss Ko. He maintained, as he continues to do, that such was unnecessary; he was suing not on the 1st IOU but on the second which committed the defendants to payment of $38,800.00 "tuition fees/debt" and in addition to "half-yearly - compound interest at the highest rate as lawfully charged by any person, shop, company" in terms of the 2nd IOU. In regard to the latter he produced a document from a finance company from which he had borrowed showing an interest rate of 2.9% per month. He was claiming, he said, only $5,800.00 being part of the tuition fee which a fellow student of Miss Ko's, a Mr. Fung had actually paid, notwithstanding the absence of any record of the lessons received by him The plaintiff produced copies of receipts issued to Mr. Fung and maintained that Miss Ko had received many more lessons and therefore was at least liable to pay $5,800, a mere 14% he repeatedly stressed, of the $34,800. she had promised to pay. In promise No. 12 of the second IOU she had promised to pay, and she had to keep her promise

10. Miss Ko for her part testified that as a result of an advertisement about learning dancing and becoming an assistant instructor without payment of fees, she took a dancing course with the plaintiff. She first learned basic steps for which she paid $500. While doing so she was told to sign the 1st IOU and later also signed the 2nd IOU. After the 1st IOU she learned "something special". After the 2nd IOU was signed although she continued to attend six days a week, such dancing lessons as she had, consisted of being present at those for a Mr. Fung and being his partner.

11. It is not in dispute that Mr. Fung was one of the four special lesson students, the other three being Miss Ko and two other girls, Miss Ng and Miss Li. Mr. Fung paid the bulk of his fees in cash, but nonetheless appeared to have also signed in respect of the balance a first and second IOU like the other three special students.

12. To revert to Miss Ko's evidence, she said Mr. Fung did not turn up every day and so she only had lessons when he turned up or she had to partner or instruct other students. She spent all her time teaching or, when there were no students, the plaintiff asked her to sit and read the newspaper, or "stick footsteps", boil milk for tea or run advertising errands. She had not much to do and no salary. So she left.

13. She had only signed the IOU's because the plaintiff said he would help her to sit the examination and get good results; further that if she could continue to help him teach and spend four hours a day she would not have to pay tuition fees for the time being.

14. Before addressing the plaintiff's grounds of appeal it is necessary to refer to one other matter. In 1986, before proceeding against Miss Ko, the plaintiff took similar action against Miss Ng, one of the other special students. In her defence Miss Ng pleaded misrepresentation by the plaintiff and failure to teach properly; in addition she counterclaimed for work done. Judgment was given in favour of Miss Ng and the plaintiff appealed. Another division of this Court set aside the judgment and ordered a hearing de novo because the factual issues had not beenproperly addressed. On the re-hearing judgment was entered for the plaintiff.

15. At the hearing of this action before Judge Wong, the plaintiff sought to rely upon the judgments in that action but was not permitted to do so. Again at the hearing of this appeal, although it was pointed out to him that he could not rely upon the findings and observations in that action, he persisted in his attempts to do so.

16. The plaintiff's holding grounds of appeal were that the Judge was "totally ignorant of the situations, everything topsy-turvy, Judgment entirely wrong". Detailed grounds, it was stated, would be filed after receipt of the Judge's Notes. In the event they were incorporated in a somewhat diffuse form in six pages at the end of his appeal bundles.

17. The first matter the plaintiff pursued was an allegation of criminal irregularity he made against the defendant's solicitor, whom he named. He specified eight irregularities ranging from improperly changing "18" to "8" years as the age of Miss Ko in one of the defendants' documents for the purpose of a defence of infancy, to recalling the defendant's original bundle of documents to avoid irregularities being discovered; deletion of the title of the defendant's bundles; concealment of the original pagination of the bundles;-omission or deletion of reference to 1440 hours of lessons received by Miss Ko; references to an IOU without clarifying that it was the 1st IOU so as to confuse the Judge; slipping documents supplied by the plaintiff "quietly" into the bundle of documents; and omitting or removing "870" from the photocopy used of the reverse of the 2nd IOU to conceal it or confuse the Judge.

18. Upon those allegations of irregularity he demanded that the defendants' solicitor be detained and punished. Furthermore he alleges that those "criminal irregularities" subjected him to unfair delay, loss of time and energy, sleepless nights, and risk of liability for costs in this action; for all of those he submits an itemised claim for some $1.92 million. Upon being told that this Court was concerned only with the decision of the court below, and could not entertain this new claim, he persistently demanded that, as a court of justice, this Court advise him how he should proceed to enforce that claim. We are satisfied that these allegations of "criminal irregularities" are absurd and totally unfounded.

19. The plaintiff then turned to his general ground that the "Judge was totally ignorant of the situation, things topsy-turvy, Judgment entirely wrong". His main submission was concerned with the rejection of his claim for $5,800 which the Judge dealt with in the following way at page 7 of his judgment:

" From the schedule of payment by Mr. Fung (p. 4 of the bundle) he first paid on 21st August 1982. In other words he had started his course ever before the 1st Defendant started going to the studio.

                Besides, looking at the respective dates of the 'promise' signed by those 4 special students, they signed on different dates and the number of lessons they undertook to learn were different and their respective dates for completing the lessons, were different. The Plaintiff explained that-was due to the fact that their techniques and experience were different and some needed more lessons and some less. If this were true then it is unlikely they could have taken lessons together may be except for the oral lessons he gave about examinations.

                Had Miss Li and Miss Ng completed their lessons as scheduled they could have completed their respective lessons before the 1st Defendant had signed her 1st 'promise'.

         Since the Plaintiff alleges that $5,800.00 is the amount she should pay, it is for him to prove that that amount of tuition fees had been incurred by her. In view of their different dancing techniques, the different number of lessons they have to take and the different dates in which they had signed their 'promises' it is unlikely that they could have taken their lessons together. The Plaintiff has therefore failed to prove the amount he claimed was justified. In the premises the Plaintiff's claim against both defendants must fail.

         I have considered the evidence of both the Plaintiff and the 1st Defendant, on balance I prefer the evidence of the 1st Defendant. She admitted she had taken some lessons. Since there is no record as to how many lessons she had taken I am not able to say what amount of tuition fee she had incurred."

20. It must be mentioned at this point that as the plaintiff did not have records of the lessons taken by Miss Ko, he sought to overcome the deficiency on the basis that she had the same lessons as Mr. Fung and that she was therefore liable for the substantially fewer lessons than Mr. Fung's total at the time she left, in respect of which he was claiming against her.

21. The plaintiff attacked the Judge's conclusion that it is unlikely that the lessons could have been taken together. He says that his method of the four special students taking their lessons together, with the other three following Mr. Fung was most effective and in addition simp1e and easy for the students. The 1st defendant did As to the theory, it was all taught at one time. As to the date of the signing of the 2nd IOU, under which he claims, that is irrelevant; the special students would progress from ordinary lessons under the 1st IOU to special lessons under the 2nd IOU when ready and that would not be tied to the date of signing. Moreover, he complained, although paying lip-service to the plaintiff's claim being under the 2nd IOU, the Judge had in mind earlier ordinary lessons.

22. In advancing those submissions, the plaintiff in terms of the facts he relied upon, went beyond the evidence presented at the trial, including his own. Notwithstanding that, we are not persuaded that the Judge improperly disregarded or relied upon any evidence, or that he could not reasonably have come to the conclusion he did. On the contrary he correctly identified the central issue at page 6 of the judgment as not being simply a matter of reliance upon the recital of the debt in the IOU (either IOU regardless in the present context), but of establishing the debt or liability upon which the plaintiff claimed. He did so in the following way:

"Since the Plaintiff's claim is only $5,800.00 he is in fact not claiming under the special learner's promise. He is claiming for the lessons he had taught the Defendant. To this he will have to prove how many lessons he had taught her and at how much per lesson. He did not keep any record as to that. To support his case he repeatedly said that he had 4 special students i.e. Mr. Fung, the 1st Defendant, Miss Li and Miss Ng. He taught the four together. Mr. Fung was the one who paid him so Mr. Fung did not have to go to the studio to assist him every day and he could go there any time he liked. The $5,800.00 was the amount Mr. Fung paid him up to the time the 1st Defendant left the studio, so she had to pay the same amount."

He then referred to the different dates or, which the four special students signed the special promises (or "IOUs;"), ranging from 15th November 1981 in the case of Miss-`Ng.to 27th April 1984 in the case of Mr. Fung. Furthermore-; notonly could Mr. Fung attend at any time he liked, but he did not do so more than 3 or 4 times a week at the most against the 6 times a week that Miss Ko did.

23. Small wonder therefore, that the Judge came to the conclusion that he did, i.e. that the plaintiff had failed to prove the number of hours of lessons Miss Ko had taken; and therefore had failed to prove the debt.

24. The burden of the plaintiff's submissions to us was put to the Judge. Where not expressed the Judge's rejection of them is implicit; and such rejection can readily be seen to have been right. The plaintiff's preferred method of teaching does not in the circumstances lead to the conclusion that all the lessons had by Mr. Fung must have been had by Miss Ko. Even if the lessons on theory were all taken together, it does not follow that the dancing lessons, which on the evidence appear comprise the bulk of the lessons, were also all taken together. In the circumstances, the wide ranging dates of signing of the IOUs point to the unlikelihood of all the lessons having taken together, rather than to the contrary as contended for by the plaintiff. And finally, it is by no means clear that the Judge mistakenly had in mind the 1st IOU in coming to his conclusions or that this would be fatal to them, given the express reference in his judgment to the claim being under the 2nd IOU.

25. Quite apart from the foregoing, it is implicit that the Judge accepted Miss Ko's evidence; implicit from his judgment generally and from his express preference of it as opposed to that of the plaintiff. It follows from Miss Ko's evidence that the plaintiff failed to perform his part of the contract underlying the 2nd IOU which the Judge addressed in the issues he framed, and accordingly that even upon the existence of such a contract the plaintiff would fail.

26. For all these reasons we had no hesitation in dismissing the appeal.

27. We would add that looking at the pleadings, in particular the many substantial defences taken by the defendants, and beyond at the sort of substantial issues within the contemplation of rule 25 of the District Court Civil Procedure (General) Rules (Cap. 336-A14), it is apparent that the plaintiff had other serious obstacles to overcome. For instance, on Miss Ko's evidence, which we repeat was accepted, the lessons that should have been provided, were not provided. Plainly, the action should not have been brought, nor, a fortiori, the appeal launched,given the Judge's acceptance of Miss Ko's evidence and the wholly disproportionate costs relative to the minor amount claimed. For the latter reasons we think the plaintiff should pay the defendants costs on a common fund basis. We accordingly make an order nisi to that effect and that the defendants' own costs be taxed in accordance with the Legal Aid Regulations.