TANG PING KONG v. CHOW CHI LIT SIMON

DCCJ 4660 / 2004

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. DCCJ 4660 OF 2004

D E C I S I O N

1. This is an appeal by the Defendant against the decision of Mr. Registrar Yu made on 14 February 2005 by which judgment was entered for the Plaintiff’s application for summary judgment under Order 14 of the Rules of the District Court.

2. The claim arises out of 4 loans, a total of $120,000 (“the 4 Loans”); and 3 cheques (“the 3 Cheques”) issued to the Plaintiff as creditor by the Defendant as debtor but were eventually countermanded on 19 August 2004.  The 3 Cheques, for a total amount of $100,000.00, according to the Plaintiff were post-dated cheques purported to be repayment for part of the 4 Loans, $40,000, $10,000 and $70,000 taken out by the Defendant on 5 December 2003, 31 December 2003 and 18 March 2004 respectively.  In fact there was an undated cheque for $20,000 to make up full payment of the 4 Loans.  But as the undated cheque had not been presented to bank for payment, the Plaintiff relies on the 3 Cheques only in this application. 

3. Mr. Wong for the Plaintiff, submits that a bill of exchange in the form of a cheque is as good as cash and there is no defence for it not be honoured except for some good reasons.  He further submits that the defence as pleaded by the Defendant in his Amended Defence could not make out a triable case on the claim.  The Amended Defence basically does not put up a denial to the claim but only asks for proof of the loans.

4. Mr. Wong Further submits that the Defendant filed an affirmation on 21 February 2005, 3 days before hearing of the appeal.  He says the time lapse was by no means sufficient for them to take instructions or to make a reply.  They are thereby prejudiced.  He also points out to the court that the content of the affirmation filed by the Defendant is very confusing and the facts stated therein have not been pleaded in the Amended Defence.  He objects to the admission of the said affirmation by the court.

5. The Defendant who appears in person informs the court that he has no legal training and therefore does not know how to follow the rules.  He says that he needed time to collect document from the bank and therefore could not file the affirmation earlier.

6. He admits in court that he owed the Plaintiff money in the sum of $130,000 and says he would pay the sum to the Plaintiff by end of March 2005.  He admits that he signed the 3 Cheques, but he says that the 3 Cheques were not purported to repay the said loans.  He says the 3 Cheques were a security or a condition for the loan of $40,000 taken out on 5 December 2003.  And the loan of $70,000 taken out on 18 March 2004 was supported by another post-dated cheque not produced.  He asks the court not to grant a summary judgment because the facts pleaded in the statement of claim are not truthful.  He also says that the loans were made out to him at an interest rate too high.

7. After hearing parties, I refuse the affirmation of the Defendant to be admitted as fresh evidence at this stage because there is no formal application for the production of it and it was only filed 3 days prior to the hearing and allowed no time for the Plaintiff to make a reply.  A further reason for my disallowing the said affirmation is that what is deposed therein has not been pleaded in the Amended Defence.  In the court the Defendant makes an attempt to raise an issue of illegality for the loan of $40,000 because they were made at an exorbitant interest rate.  First it was not stated clearly with particulars in his affirmation, secondly this has not been pleaded in the Amended Defence.  I do not allow this to become evidence. 

8. In the circumstances, I would only consider the Defendant’s case in the light of his Amended Defence.  I see no defence in it.  I accept the affirmation of the Plaintiff.  I am satisfied the 4 Loans were made out and the 3 Cheques were issued as he has affirmed to say.

Conclusion

9. For aforesaid reasons, I am not satisfied that the Defendant has proved an arguable case for trial on his liability arising from the 3 Cheques and the 4 Loans totaling $120,000.  I see no reasons for the order of Mr. Registrar Yu to be faulted.  The appeal is therefore dismissed.  I enter judgment for the Plaintiff for a sum of $120,000.00 with interest thereon at the rate of 8.069% per annum from 3.9.2004 to 14.2.2005 and thereafter at judgment rate until payment.  I also order the Defendant to pay costs, to be taxed if not agreed.