XCHRX WONG YUEN SHUN KWONG WAH HONG LTD. v. SIU SIU KAM

HCA3205/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO.3205 OF 2000

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J U D G M E N T

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1. This is an appeal by the plaintiff against the order by the master, granting unconditional leave to the defendant in this action whereby the plaintiff sues the defendant in relation to a total sum of $750,000 which were said to have been paid by way of loan by the plaintiff to the defendant under three cheques, issued in 1999.

2. The defence of the defendant to the claim is that the payment made under the three cheques were not loans by the plaintiff company to the defendant, but in fact were the subject of what I would describe as "a somewhat complicated commercial transaction" whereby either the plaintiff company or Mr Wong of the plaintiff company (the Director who signed the cheques) invested into the various businesses that the defendant was running or was proposing to be set up or acquired.

3. I think in broad outline, the question for me is whether that dispute of fact is all moonshine or whether the allegation of the defendant is possible or probable. There is a lot of affidavit materials put in by the defendant. There is also pleadings put in by the defendant. I think it is plain that the case of the defendant presented is not perfect. There are lots of holes and there are a lot of minor problems, but the function of a summary judgment application is not to indulge in a mini trial. The court should only grant summary judgment (which is of course a final judgment) in cases where it is clear that there is no defence. Looking at the case broadly, I cannot say that the defence on the dispute of fact that the payments made were not by way of loans, is not a bona fide defence. It seems to me that the master was quite right and that the matter really ought to go to trial. Therefore, the appeal of the plaintiff is dismissed with costs to the defendant in any event.