WONG WENG WA VINCENT v. NG WAI MAN

DCCJ1893/2002

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 1893 OF 2002

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JUDGMENT

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1.This is a claim by the plaintiff for the repayment of 2 sums of money received by the defendant from the plaintiff.

Relationship between the Parties

2.The defendant was married to a Mr. Wong Wing Yee George who is an elder brother of the plaintiff. Three children were born to the marriage of the defendant and her husband in 1982, 1983 and 1990 respectively. In February 1996 George Wong left his matrimonial home in Macau and has never contacted the defendant and their children since.

3.Apparently George Wong had, for reasons of his own, stayed away from his family. According to the plaintiff, George Wong had kept a cheque account with his bank and there were immigration records showing his departure from and arrival in Hong Kong.

Plaintiff's Account of the Events

4.The defendant's husband came from a relatively large family with 8 brothers and sisters. After the demise of the defendant's in-laws, a substantial estate was left in 3 equal shares between the plaintiff and his 2 brothers including George Wong. The administration of the estate of the in-laws has not yet been completed and the plaintiff was the executor of the estate of the mother.

5.Company Registry records showed George Wong had approximately 15% of the shareholding of the family business of Wing Hop Yuen Enterprises Limited in 2002.

6.The defendant resided in Macau while the plaintiff is a resident of Australia. The communications between the plaintiff and the defendant were by means of telephone calls or letter writing.

7.According to the plaintiff the defendant approached him sometime in the summer of 2000 to hint she would be in need of finance for the education of her two daughters in America. After discussing with the defendant over the phone and in a personal visit to the defendant's home in Macau, the plaintiff agreed to make a loan of HK$250,000 to the defendant to finance her daughters' education.

8.The plaintiff gave instruction for a loan agreement to be drafted by a firm of solicitors for execution by the defendant. As the defendant refused to sign the loan agreement, the advancement of the loan was aborted.

9.In December 2000, the defendant again approached the plaintiff for the loan. In the plaintiff's explanation, in order to give face to the defendant, he no longer insisted the defendant on signing a formal loan agreement. Rather an acknowledgement receipt was required from the defendant to acknowledge the receipt of the money.

10.The plaintiff agreed the defendant had asked him to take the money out of the share of her husband. But as far as the plaintiff is concerned, the defendant's husband is still alive. A staff of the bank had once contacted the plaintiff in respect of a cheque issued by the defendant's husband and the police had also confirmed there were records of George Wong leaving and returning to Hong Kong through the immigration checkpoints. Though his elder brother George had chosen to stay away from his wife and his children, he had no right to deal with George's money without his consent. He had further advised the defendant to obtain a formal court order for maintenance payment from George's share.

11.On 16/1/2001 the defendant signed an acknowledgement receipt in respect of the sum of HK$125,000 paid to her by the plaintiff. On 23/10/01 the defendant signed the 2nd acknowledgement note to acknowledge the receipt of HK$100,000 from the plaintiff.

Defendant's Account of the Events

12.The defendant gave evidence to say she did not ask the plaintiff for the 2 sums of money of her own volition. She intended all along to raise her 2 daughters on her own. She brought along US$10,000 with her when she took her 2 daughters to the States for schooling. But when she took her 2 daughters to the States she was told by Eva Wong, the elder sister of the plaintiff and the younger sister of George Wong, that the plaintiff ought to be holding some money belonging to George Wong. It was Eva Wong's suggestion to her that she should ask for a share of the entitlement of the defendant's husband to finance the children's education.

13.Eva also promised to talk to the plaintiff about taking the money out of George Wong's share. When Eva told her that the plaintiff had agreed to taking the money out of George Wong's account, the defendant contacted the plaintiff for the arrangement to collect the money.

14.When she contacted the plaintiff for the money, she was told to go to a solicitors' office to sign a loan agreement. At first she agreed to sign the loan agreement because she regarded the loan as a loan from her husband.

15. Later she informed Eva Wong of the need of signing a loan agreement. After seeking the advice of Eva Wong she refused to sign the loan agreement.

16.When the defendant asked the solicitors for a copy of the loan agreement, she came to realize it was only an acknowledgement receipt; hence she was prepared to sign the acknowledgement receipt. The defendant further insisted the plaintiff had told her that it was unnecessary for her to repay the money to him as the plaintiff still had the money of the defendant's husband.

Defence Witness' Account of the Events

17.Eva Wong gave evidence in court to say she had spoken to the plaintiff suggesting help should be given to the defendant's children. Eva recalled she had helped the plaintiff to locate the whereabouts of two of their brothers in France to forward to each of them a dividend of roughly HK$800,000 in respect of their shares in the family business of Wing Hop Yuen.

18.On 12 April 2000 she wrote to the plaintiff to comment that the defendant ought to be entitled to a portion of the finance of George Wong since the defendant was entitled to go to court to seek financial relief. To her knowledge George Wong owned 15% of the shareholding of the family business Wing Hop Yuen. George Wong should correspondingly be entitled to a share of the dividend of Wing Hop Yuen.

19.She recalled the plaintiff had wished to have Victoria, the defendant's elder daughter, signing the loan agreement. However since Victoria was only 18 ages old at the time, the proposal was dropped. She had asked the plaintiff to take the money out of George's account in order to fund the education of the defendant's daughter but was told by the plaintiff that there were technical problems and that the plaintiff could not touch George's money.

The Exchange of Correspondence between the Parties

20.On 25/7/00 the defendant in her fax message addressed to the plaintiff stated amongst other things,

" I need to sign a loan receipt before I could obtain the money..... Wong Wing Yee has his money with the Wong's family. Eventually I would require him to repay the money to you..... Please make arrangement for me to come to Hong Kong to collect the money."

21.On 25/7/00 the plaintiff wrote to the defendant requested the defendant to provide the details of her children's education expenses to the solicitors of the plaintiff. In this letter the plaintiff stated the terms of the loan should be:-

(i)	the loan was for the first year education expenses of the defendant's 2 daughters;
(ii)	it would be an interest free loan which was repayable in 5 years time; and
(iii)	it is unnecessary to provide a guarantee.

22.On 29/7/00 the defendant replied to the plaintiff and said,

" ..... We are aware it is not easy to obtain this interest free loan. Solicitors' office! Signing of loan receipt! Going to court! Don't you think I am aware that loans have to be repaid? Your grace of granting us interest free is suffocating us........

Act according to your conscience, if there are money, dividend or rental belonging to Wing Yee which are with you, you must help. If Wing Yee does not have money in Wong's family, please don't give us a helping hand. You must understand this, that you don't owe us anything, it is your elder brother who is owing us all these.

....

Generous giving would be praised. Mean and acrid giving would be meaningless.

...... if you can mail us the money, do so. Don't ask us to go through hell. If you cannot mail us the money, then let fate decide for us."

23.On 10/12/00 the daughter of the defendant wrote to the plaintiff's solicitors to provide a breakdown of the expenses for the first year of their schooling at Pasadena City College.

24.On 18/5/01 the defendant wrote to the plaintiff and asked the plaintiff to rent out the premises in Guangzhou, the rental collected could be deposited with the plaintiff for further loans to the children for their education, and to repay the plaintiff the sum owed to him on the last occasion.

Court's Findings

25.The non-disputed facts between the parties were : the defendant had received the 2 sums of money of HK$125,000 and HK$100,000 from the plaintiff on 16/1/01 and 23/10/01 respectively, acknowledgement receipts were signed by the defendant on both occasions.

26.The issues in dispute were: (a) whether the two sums were meant to be personal loans from the plaintiff; or (c) whether they were advancements of money made to the children of George from the account of George held by the plaintiff.

27.It was clear from the recount of the events given by the 3 parties involved in the negotiations in respect of these 2 payments, the plaintiff had always been unwilling to touch the share of George's financial entitlement on account of the fact that George is still alive. The defendant on the other hand was desirous of obtaining payments from the plaintiff out of George's financial entitlement rather than procuring a personal loan from the plaintiff.

28.It is correct for the plaintiff, as an executor of the will, to have concern about his power to deal the entitlement of George Wong without the consent of George Wong or an order of the court for maintenance payment.

29.The defendant was adamant of the fact that she never intended to obtain personal loans from the plaintiff. However, it remains to be seen from the various letters exchanged between herself and the plaintiff, both before the granting of the 2 loans and after the granting of the 1st loan, that she had all along acknowledged the sum to be a loan from the plaintiff which would be repaid.

30.I accept there was no change of mind on the part of the plaintiff in making the personal loan to the defendant. I further accept that at the time when the defendant received the 2 sums of money from the plaintiff, she was fully aware of the fact that the 2 sums were advanced to her as 2 five-years interest free loans by the plaintiff for the purpose of providing the first year education fees of her children. This fact-finding is consistent with what was stated in the defendant's letter of 18/5/01 in which she acknowledged she had the obligation to repay the plaintiff the sums owed to him. The defendant's recollection of the events blurred in the course of time on account of her pride and her illusion that she would be entitled to a share of her husband's property without a formal order from the court.

31.The 2 loans were made consequential upon the whole course of events and the plaintiff is not entitled to go back on his offer on the terms contained in his letter of 25/7/00 since the defendant had acted on his word to enter into financial commitment with the school.

32.The letter of the plaintiff of 25/7/00 stated that the loans were to be repaid in 5 years time. As the 1st loan of HK$125,000 was made on 16/1/01 while the 2nd loan of HK$100,000 was made on 23/10/01. The two loans were not due until 16/1/06 and 23/10/06. The plaintiff's claim failed as the loans were not yet due for repayment.

33.Assuming for a moment that there was lack of consensus ( which was not the fact findings of this court ) between the plaintiff and defendant about the source of the loan, whether it was to be paid from the plaintiff's personal account or from that of the account of the defendant's husband held by the plaintiff on behalf of the defendant's husband; it would certainly be inequitable for the plaintiff to go back on his words and promise that the loans were to be 5 years interest free loans. The defendant had acted on the plaintiff's promise to loan the money on the terms specified in the plaintiff's letter of 25/7/00 before she finalized the education arrangement of her children in the States, incurring financial commitments with the school. She had also acted on the request of the plaintiff in arranging for the daughters to supply the details of the breakdown of the daughters' education expenses to the plaintiff's solicitors. The loan from Eva Wong was simply a buffer to tide the daughters over the period when the defendant's daughters were short of financial funding.

34.As I accept the plaintiff's proposal to have been accepted by the defendant and the agreement was binding between both parties on the terms proposed by the plaintiff on 25/7/00, I find it unnecessary for me to analyze the relationship between the parties by way of promissory estoppel. Nor had the parties presented any argument on the issue of promissory estoppel.

Court Order

35.The plaintiff is non-suited and his claim is dismissed as the loans were not yet due for repayment.

Order for Costs

36.Cost order nisi of this action is awarded to the defendant.