TSANG YIU CHEONG AND ANOTHER v. CHAN HIN WONG t/a THREE STAR TOURIST BUS CO AND ANOTHER

DCCJ 5043/2002

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 5043 OF 2002

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REASONS FOR DECISION

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The Plaintiffs claims against the Defendants for wages. The Defence denied that the Plaintiffs wages were unpaid and counterclaimed that loans were advanced to the 1st Plaintiff and 2nd Plaintiff and that the 2nd Plaintiff misappropriated monies belonging to the Defendants.

2. The Defence had been re-amended 4 times. There were discovery of documents and interrogatories and some witness statements filed.

3. The Defendants applied for summary judgment in respect of their counterclaims.

4. The Defence of the 1st Plaintiff in respect of the counterclaim is just that he had used his credit card to draw cash in favour of the Defendants or to defray expenses of the Defendants. The amounts set out in counterclaim represented repayment by the Defendants. His duty as driver did not involve payment of business expenses. Petrol expenses were paid by the 2nd Plaintiff. His Defence is therefore shadowy.

5. As for the 2nd Plaintiff the items claimed by the Defendants, in answer to the Further and Better Particulars served by the Defendants the 2nd Plaintiff just said that she could not recall.

6. She was the accounts clerk of the Defendants she must be in a position to give an answer to the request for Further and Better Particulars. It was only after the O14 application that the 2nd Plaintiff recollected some items and located some receipts and invoices. Yet those alleged repayments do not match with the alleged payments on behalf of the Defendants.

7. She was also not able to recall why large sums exceeding HK$10,000 were transferred to her own account. Given the nature of her work the Defendant's business in which she was involved did not involve sums in excess of a few thousand dollars.

8. The largest amount involved was the Spring dinner, a total of HK$20,500 was repaid into her account but there was no receipt nor credit card statement to support her allegation.

9. As the Plaintiffs alleged that their salaries were not paid, it is difficult to understand why she would have continued to pay expenses on behalf of the Defendants.

10. These are matters which cannot be determined by pleadings or an affidavit. However due to the inconsistencies I am of the view that the Defence to counterclaim is shadowy. I therefore gave conditional leave to defend.