SZETO MING AND ANOTHER v. LI MAN KEE GAILEY

DCCJ1991/2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 1991 OF 2008

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BETWEEN

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D E C I S I O N

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1.  The defendant applies for leave to appeal out of time of my judgment of 10 August 2010. Her application was made on 15 September 2010, eight days after the deadline for lodging an application for leave to appeal.

2.  Miss Lee informed the court today she was not in Hong Kong at the time when the judgment was handed down for she was attending her son’s wedding in Canada and did not return to Hong Kong until 19 August 2010.  She also told me about her mother’s domestic problem involving her domestic helper being required to leave Hong Kong due to visa problem, and Miss Lee had to look after her mother’s two dogs.

3.  On the basis that the defendant’s delay in lodging an application for leave to appeal was eight days, it cannot be considered as an inordinate delay, and considering the defendant is acting in person and has been acting in person at the trial, I am prepared to entertain her application for leave to appeal out of time in spite of the delay.

4.  The defendant raised a number of points as her grounds of appeal.  Her appeal is the discrepancies in my findings of fact.  She based her grounds of appeal on her own memory of the evidence at the trial and referring to paragraphs 38 to 39 of my judgment. 

5.  The first point of Miss Lee’s challenge on my findings is the date of payment of the $6,000 dividend.  She claimed that Towngas had not declared the dividend amount until after the 11 October 2002 repayment of the loan. 

6.  The second point raised on the same area of findings at paragraph 36 of my judgment is my finding that the $206,000 to be insufficient to pay for both the repurchase of 20,000 shares and repayment of $6,000 as interest on the cash loan.  Miss Lee alleged that she did not specify to the 2nd plaintiff that she should buy 20,000 Towngas shares.  She said she had only told her to repurchase the shares with the $206,000 repayment sum.

7.  First of all, I must emphasise that because Miss Lee did not refer to a specific area in the transcript of the evidence at trial in her challenge of my finding of facts, her references are not on a particular part of the witnesses’ evidence at the trial but a recollection by Miss Lee of what was said at the trial.  My findings on paragraph 38 was based on my earlier finding in paragraphs 29 to 37 on the issue of whether the $206,000 payment on 6 October 2002 represented settlement of the cash loan.  The evidence was not in dispute. The defendant gave to the 2nd plaintiff on 6 October 2002 a post-dated cheque for the sum of $206,000 together with a note which can be found at page 100 of the bundle that specified the cheque repayment was for the repayment of cash loan of $200,000 with $6,000 interest at 1 per cent per annum. 

8.  My findings in paragraphs 29 to 37 was that based on the instruction specified on this note of 6 October 2002, the defendant had appropriated this repayment of that sum to the cash loan, and this payment and appropriation was completed and exercised on 6 October.  The appropriation of the loan repayment was further completed when the Plaintiff presented the cheque to the bank and cashed it on 11 October 2002.

9.  It follows therefore even though there was a change of mind on the part of the defendant after 11 October 2002, requesting the 2nd plaintiff to apply the repayment of loan to purchase the shares instead, this change of mind, whether communicated to the 2nd plaintiff or not, is no longer effective because the appropriation was exercised on 6 October which was completed on 11 October when the cheque was cashed.  This reasoning was set out in my findings on paragraphs 39 and 40.  The date of Towngas declaring the dividend amount or knowledge of the defendant and the 2nd plaintiff of the dividend amount is irrelevant. 

10.  In paragraph 40, I further set out the reasons that led me to conclude that the 15 October 2002 ‘agreement’ never took place.  The defendant claimed there was a telephone call to the 2nd plaintiff, telling her to use the $206,000 she repaid on 6 October to repurchase the shares.  She claimed she did not specify the share amount.  Therefore, she argued the plaintiffs could have purchased any number of shares even though it may not amount to 20,000 shares.

11.  This, I find to be an argument raised round the evidence.  It is subject to interpretation, even if what she said is correct, whether there was an instruction on 15 October to buy back the shares means buying back 20,000 shares or buy as many shares as possible with the money.  In any event, I have found that the telephone conversation of 15 October did not take place.

12.  In paragraph 40, I have also set out other factors in support of the defendant’s knowledge that the $206,000 was not used in repurchasing the Towngas shares borrowed.  The example given was that payment for dividends declared by Towngas was made by the defendant to the plaintiffs on 26 October 2002, on 29 May 2003 and the payment of $200,000 specifying it was for repurchase of the shares on 9 July 2006, etc.  Those are undisputed evidence in support of my findings that the defendant had knowledge that the $206,000 was not applied for the repurchase of the Towngas shares.

13.  Based on the grounds raised by the defendant today, having considered fully the reasons she gave in challenging my finding of facts, and the conclusion I have reached in my judgment.  I cannot find any merit in the defendant’s appeal.  I do not think she will succeed in the appeal.  For this reason, leave is refused with costs to be taxed if not agreed.

(Discussion re certificate for counsel)

14.  Since the defendant is unrepresented, I am not going to grant certificate for counsel even though I cannot say that counsel’s presence has not been of assistance.