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HCA 4/2005
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
HIGH COURT ACTION NO 4 OF 2005
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BETWEEN
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LAM YUK WING |
Plaintiff |
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and
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YU LAI WA |
Defendant
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| Before: Deputy High Court Judge Marlene Ng in Court |
| Dates of Hearing : 8-10 and 13-17 January, 26-27 June and 8 September 2014 |
| Date of Handing Down Judgment : 30 December 2015 |
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J U D G M E N T
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I. INTRODUCTION
1. This litigation concerned disputes arising from the personal and financial relationships between the plaintiff (“P”) and the defendant (“D”).
2. P’s camp P and his wife separated in 1998 and divorced in 2002. P met D in late 1998; they became lovers but separated in 2003. P’s father (“Father”) and mother (“Mother”) used to live at the ground floor unit (“G/F Unit”) at 53 Hang Ha Po Village, Lam Tsuen, Taipo (“House”). P lived above the G/F Unit (“1/F Unit”), and owned agricultural land at Lot 1127 in Demarcation District No 7, Taipo (“Land”). P’s 2nd and 4th elder sisters are Lam Kwun Tai (“2nd Sister”) and Lam Yuk Ping (“4th Sister”). Lam Chun Cheong (“Lam”), Mak Chi Kin (“Mak”) and Lai Kam Tong (“Lai”) were P’s friends. Lam, deputy village head of Lam Tsuen, Taipo (“Village”), used to operate a restaurant at 鳳凰路 in Shenzhen, Mainland China (“SZ”). Lai used to own a fast food shop in Taipo. Mak and P were construction sub-contractors, and since August 1998 they worked on a government project and used to go together to SZ for pleasure. Lam, Mak and Lai came to know D through P.
3. D’s camp D lived in SZ but without SZ household registration before she came to Hong Kong (“HK”) pursuant to a one-way permit issued in June 2001. D married a Hong Kong man in 1991; they separated for 5-7 years and divorced in late 2001 or early 2002. I find D married Wong Kwok Ho (“Wong”) in 2007 (not in October 2003 as P alleged). D owned 2 properties in SZ (ie 羅湖區東曉路泰和花園7棟604室 (“1st SZ Flat”, which was later sold) and 羅湖區鳳凰路海龍華苑天高閣33樓A 室 (“2nd SZ Flat”)) and 1 property in HK (ie Block B, Flat 2404, Tak Bo Garden, No 2 Ngau Tau Kok Road, Kowloon Bay (“HK Flat”)). Wong’s brother Wong Kwok Kuen worked as a cook (“Wong Brother”). Huang Siu Wa (“Huang”), a beautician, worked for a massage/beauty parlour (“Parlour”) or leisure centre (体閑中心) known as 鳳凰休閑中心 (with subsequent name-change to 羅湖區姿麗雅美容美髮中心) (“Leisure Centre”) that occupied 深圳市羅湖區華麗路1002號麗斯大廈五樓 (“5/F”) from 1999 until end of 2000. Ng Wai Man Raymond (“Ng”) was a practising solicitor and partner of Fung, Wong, Ng and Lam (“FWNL”).
II. PARTIES’ RESPECTIVE CASE
4. P’s case P claimed that out of love/affection he gave D HK$4,000/month (for living expenses or household money (“LE/HM”)) (later varied to RMB4,500/month for inter alia mortgage payments (“Mtge Payments”) of the 2nd SZ Flat), HK$230,000 in cash/equipment (for D to open the Leisure Centre), and HK$50,000 (for D to settle the Leisure Centre’s rent/expenses when business deteriorated). D stayed briefly at P’s home when she came to HK before moving to a sublet suite (分租套房) in Kowloon that P rented for HK$2,000/month. P and D later broke up, and P signed 3 documents under duress (1) to stop D’s threat, nuisance, harassment and disturbance against him, his family/friends and other villagers (collectively, “Harassment”) and/or (2) to get D to leave the House:
(a) At/about end of 2001, D forced P to sign an IOU that promised to pay D HK$6,000/month for 30 years for alleged repayment of sums P owed D (ie the In-between or 3rd IOU in paragraphs 63 and 76 below) by threatening to make harassing/nuisance telephone calls to the Father and Mother (“Parents”) and P’s family/friends (“Tel Calls”).
(b) In/about 2003, P contributed HK$80,000 for D’s purchase of the HK Flat. In/about mid-June 2003, P discovered D cohabited with Wong, so he ceased to pay LE/HM to D. In September 2003, D assaulted P and made the Tel Calls to him. D (i) stayed at the House from 19 to 27 May 2004 and refused to leave despite police intervention, (ii) made the Harassment, and (iii) wrongfully demanded P to pay her LE/HM of HK$6,000/month and compensation for her alleged business loss. On 25 May 2004, P was forced to write/sign an “agreement” as D dictated (ie the 5th IOU in paragraph 140 below).
(c) By refusing to leave the House, D forced P to attend FWNL’s office in Central (“Office”) on 25 May 2004 to sign another IOU in Ng’s presence that promised to compensate D for her alleged business loss (ie the 6th IOU in paragraph 167 below). D left the House only after the 4th Sister paid her HK$103,200 on 27 May 2004. Later, P paid a further sum of HK$4,300 to D as a result of D’s threats.
Further, there was no consideration for the 3 IOUs as P was not a partner in the Leisure Centre business (“Business”) and did not owe P any business debt. P sought declaration that the above 3 IOUs were null, void and of no legal effect, order for restitution of the sums of HK$103,200 and HK$4,300, and injunction to restrain D from making the Harassment and from entering within 200 m of his home at the House.
5. D’s case D claimed the Leisure Centre was initially a venture by P, D and Mak with capital investment of RMB1,500,000 (later revised to RMB1,770,000), but P only contributed RMB230,000 in cash (later took back HK$20,000). D acquired the 2nd SZ Flat with her own resources. When the Business deteriorated, D made further investment on P’s promise to repay all sums she had expended for P and Mak and to be liable for corresponding business loss. Although P later gave RMB50,000 for the Business, he took back RMB30,000 and failed to pay RMB1,000,000 as promised. The Business was eventually sold for RMB430,000 which was used to reduce the Business’ outstanding debts.
6. When D came to HK, she stayed at the House for a while before leaving to stay occasionally in a partitioned room (板間房) in Kowloon that P rented for storing the Leisure Centre’s equipment. Creditors came to dun the Leisure Centre and D paid RMB390,000 to settle the debts. P gave D the In-between IOU that promised to (a) pay D HK$6,000/month over 30 years, (b) pay D a lump sum of HK$9,200, and (c) convey to D 5,000 sq ft out of 10,000 sq ft of the Land (“Half Land”). P made some irregular repayments but failed to convey the Half Land to D. Later D bought the HK Flat with her own resources. D claimed that on 25 May 2004 (i) by the 5th IOU P agreed on the amount of indebtedness due to D and the terms of repayment, and (ii) P attended the Office to sign the 6th IOU, but P only paid HK$103,000 and HK$4,300 pursuant thereto. D later commenced legal action against P in Mainland China (“PRC Action”), and she succeeded in her claim. D denied P’s claim, and counterclaimed for specific performance that P shall assign the Half Land (or alternatively payment of a sum representing its net worth) and repay the outstanding sum of HK$823,700, or alternatively payment of HK$1,756,799.54 with costs in the sum of RMB18,780 pursuant to judgments in the PRC Action.
III. ISSUES
7. The core issues in dispute were:
(a) |
whether P was a partner ofthe Business andthereby indebted to D; |
(b) |
whether paymentsfrom P to D were (i) to repay P’s business debt to Dor (ii) due to his affection for (and later duress by) D; |
(c) |
whether D made the Harassment before, during and after the incident at the House in May 2004 (“5/04 Incident”); |
(d) |
whether D committed acts of duress by making the Harassment, making illegitimatedemands for payment and/or refusing to leave the House during 19-27 May 2004; |
(e) |
whether the In-between (and/or 3rd) IOU, 5th IOU and 6th IOU were (i) valid and effective or (ii) null/void and unenforceable by reason of duress and/or lack of consideration; |
(f) |
whether D was liable to repay the sums of HK$103,200 and HK$4,300 to P; |
(g) |
if P or D were successful, whether he or she would be entitled to the remedies sought. |
IV. WITNESSES
8. There were 9 factual witnesses. D did not call a former Leisure Centre employee Cheung Wing Fong (“Ms Cheung”). Mr Wong, counsel for P, urged this court to conclude “her evidence did not support the cause of D”,[1] but he did not identify any specific inference adverse to D’s case that I ought to draw. But even if it were proper to infer P was not a partner of the Business, I would still have to evaluate the totality of the evidence and ask what weight should be given to such inference in circumstances where this court did not have the opportunity to assess Ms Cheung’s credibility whilst other factual witnesses gave evidence on such issue. In the end, I find myself unable to place much weight on any adverse inference that might be drawn from omission to call her as witness.
9. This case fell to be decided essentially on the facts, so questions of credibility/reliability loomed large. In assessing witnesses’ credibility, I bear in mind not only their demeanour in court but also the intrinsic value of their evidence upon considering the totality of their evidence against the chronology of events, the available documentary evidence and the inferences based on inherent probabilities and/or undisputed facts.[2] I am unimpressed by P and his witnesses. There were points of weakness in their evidence, and they contradicted one another or their own written evidence.
10. The 4th Sister made no secret of the fact she was a witness with a mission designed to repel D’s assertions. She had a forceful character and a deep-seated resentment against D whom she saw as a schemer out to extort money/property.[3] She also held P in disdain for bringing home his “玩女人” troubles. Her evidence was coloured by a permeating theme of anger/dislike towards D, and her partiality inevitably detracted from her objectivity/ reliability as a whole. I gained the impression the 4th Sister (if not dishonest) had deluded herself into believing her own version of events, and I find her to be an unreliable witness with hopeless conflict between the gist/detail of her statement/oral evidence and the picture presented by other witnesses.
11. P gave evidence with a resigned air. In my view, he was more mortified than aggrieved by the 5/04 Incident (which exposed his failed business venture and consequent financial embarrassment), and he suffered loss of face within his family/Village as a result of being dunned by his business creditor who happened to be his ex-girlfriendand whom the 4th Sister detested. In my view, there was a degree of reconstruction in P’s evidence in which he deluded himself into a state of denial of D’s case and belief in his own version of events, which I find unpersuasive. In my view, P’s readiness to depart from the truth and to call as witnesses the 4th Sister and his friends who, he knew, either in his support or in resentment of D would give evidence to perpetuate his unreliable case meant I had not been able to place reliance on P as a witness of truth.
12. Mak, Lam and Lai fell into the category of P’s loyal supporters. Certain aspects of their recollection were vague as to details/specifics. I am driven to conclude there were unreliable shortcomings in their evidence, and in certain respects they had persuaded themselves loyalty to P required them to support his unreliable case. The evidence of Mak, Lam and Lai contradicted that of D and Wong Brother, and I have found myself compelled to resolve those conflicts against the former witnesses.
13. D made no attempt to pretend she was anything but a businesswoman with means of her own. She testified in a confident manner, and appeared to relish the opportunity to present her story to the court. She responded readily to cross-examination, and I do not find her frustration at being challenged on what she saw as obvious truths argumentative. The differences between her statement/oral evidence were largely attributable to legitimate addition of corroborative detail in response to searching cross-examination. Whilst there were occasions where her recollection was faulty or she was unsure about dates or sequence of events, they were not so startling as to give me concern about the quality of her evidence on critical matters. I find D’s rather unfriendly attitude towards the 4th Sister and some of P’s witnesses was borne out of her pride that rebelled against being looked down upon and her sense that they were acting unreasonably against her. In my view, D was on the whole a reliable witness.
14. Wong Brother was honest/open in giving his evidence, and I do not accept he was unduly willing to follow D’s lead. He was D’s friend and is now her brother-in-law, but I do not discern his evidence was affected in any significant degree by such relationship. Wong Brother impressed me as a helpful/relaxed witness, and I detected no defensiveness/partiality. His evidence was broadly consistent with that of D, and unshaken under cross-examination. In my view, Wong Brother was on the whole a credible witness.
15. Huang’s evidence was attacked on basis that as a former employee at the Leisure Centre her loyalty to D overrode her honesty. I have taken into account her former employment, but I do not find any moment of unease that her alleged loyalty to D adversely affected the reliability of her evidence. Ng was a particularly careful/helpful witness who gave evidence in a straightforward/articulate fashion. There was evident desire to assist the court. I consider Ng did his honest best to tell the truth. Even though P claimed Ng was D’s rather than his solicitor, I am still convinced Ng’s evidence could be accepted without hesitation.
V. MISCELLANEOUS MATTERS
16. First, both Mr Wong and Mr Cheung (and Mr Chan with him), counsel for D, agreed the rulings/judgments in the PRC Action were not final and conclusive decisions upon the merits of the claim that would raise issue estoppel or res judicata. Thus, D’s alternative counterclaim for enforcement of the judgment in 民事裁定書 ((2013)深中法涉外終字第112號) dated 17 March 2014 (“Appeal Judgment”) [4] for HK$1,756,799.54 with costs in the sum of RMB18,780 could not be supported. Secondly, the Appeal Judgment was handed down during the trial in the present action, and was adduced de bene esse due to P’s objection. But such development must be relevant for giving this court a complete picture of the PRC Action, and since (as Mr Wong conceded) there was no prejudice to P, I admit the Appeal Judgment as documentary evidence herein.
17. Thirdly, in the absence of any valuation evidence, Mr Cheung confirmed D would not claim damages representing the net worth of the Half Land in lieu of specific performance. Fourthly, references to RMB and HK$ in this Judgment in relation to past events were practically interchangeable since the exchange rate difference at the material time was minimal. Fifthly, P alleged the Revised Agreement between P and D dated 17 September 1999 in paragraph 42 below was fake/tampered. The cogency of the evidence relied upon for establishing such assertion must be assessed by examining the particular factual matrix and by applying the standard of the balance of probabilities but flexibly taking into account that the more serious the allegation the less likely it is that the event occurred and hence the stronger should be the evidence before the court concludes that the allegation is established.[5]
VI. LEGAL PRINCIPLES: HARASSMENT AND NUISANCE
18. Lok J recently in Lin Man Yuan v Kin Ming Holdings International Limited & anor[6] summarised the conflicting authorities and agreed with A Chan J in Lau Tat Wai v Yip Lai Kuen Jacky[7] that the tort of harassment exists in Hong Kong. I respectfully agree with A Chan and Lok JJ. On such basis, the elements of the tort of harassment explained by A Chan J in Lau Tat Wai and summarised by Lok J in paragraph 222 in Lin Man Yuan are as follows:
“(i) ‘harassment’ means a course of conduct by a person, whether by words or action, directly or through third parties, sufficiently repetitive in nature as would cause, and which he ought reasonably to know would cause worry, emotional distress or annoyance to another person [at §62];
(ii) the mental element required is reckless as to whether the victim would suffer injury from the defendant’s conduct [at §65]; and
(iii) the plaintiff must have suffered damage as a result of the harrassment; anxiety would suffice, though the defendant must take the victim as he finds him; financial loss is also recoverable [at §§66-69].”
VII. LEGAL PRINCIPLES: DURESS
19. A contract which has been entered as a result of duress may be avoided by the party who was threatened, and the burden is on the claimant to persuasively make out the allegation of duress on the evidence:
“A relevant operative threat may be a threat to the victim’s person (or spouse or near relative), or to his property, or a wrongful and illegitimate threat to his economic interests. The basis of the defence of duress is that it deprives the victim of any practical choice other than to enter into the contract. This being the case, two questions arise: first, whether the pressure or threat is legitimate, and secondly, the effect on the victim.”[8]
20. As regards the first question, the emphasis of modern authorities has been on whether the party in question has been induced to enter into the contract by pressure or threat and if so whether that pressure or threat has exceeded what is legitimate.[9] As to the second question, Mr Wong relied on the “but for” causation test in cases on economic duress.[10] In MIR v MIR, [11] Fok JA (as he then was) held that the test for causation for duress to the person is as set out in Barton v Armstrong & ors,[12] ie if the threats were a reason (not the reason, nor the predominant reason nor the clinching reason) for the claimant to have entered into the transaction complained of, then the claimant is entitled to relief even though he might well have entered into the transaction if the threats had not been uttered to induce him to do so, and the burden is on the respondent to prove the threats and unlawful pressure did not in fact contribute to the claimant’s decision to enter into the transaction.[13] Fok JA (as he then was) went on to say at p 229 that “the availability of a reasonable alternative, including the availability of independent advice, will not be relevant in the case of duress to the person where the victim need only show that the threat was ‘a’ cause of the contract”.
21. As regards economic duress, G Lam J in Zebra Industries (Orogenesis Nova) Ltd v Wah Tong Paper Products Group Ltd followed the guidance in the authorities below:[14]
“81.In DSDN Subsea Ltd v Petroleum Geo-services ASA [2000] BLR 530, Dyson J stated:
‘The ingredients of actionable duress are that there must be pressure, (a) whose practical effect is that there is compulsion on, or a lack of practical choice for, the victim, (b) which is illegitimate, and (c) which is a significant cause inducing the claimant to enter into the contract: …… In determining whether there has been illegitimate pressure, the court takes into account a range of factors. These include whether there has been an actual or threatened breach of contract; whether the person allegedly exerting the pressure has acted in good or bad faith; whether the victim had any realistic practical alternative but to submit to the pressure; whether the victim protested at the time; and whether he affirmed and sought to rely on the contract. These are all relevant factors. Illegitimate pressure must be distinguished from the rough and tumble of the pressures of normal commercial bargaining.’
This statement of the law was applied by Dyson J again in Carillion Construction Ltd v Felix (UK) Ltd (2000) 74 Con LR 144, §24.”
22. A contract under duress is voidable. Consequently, a person who has entered into a contract under duress may either affirm or avoid such contract after the duress has ceased; and if he has voluntarily acted under it with a full knowledge of all the circumstances he may be held bound on the ground of ratification, or if, after escaping from the duress, he takes no steps to set aside the transaction, he may be found to have affirmed it.[15] As Fok JA (as he then was) said in MIR at p 230, much will depend on the nature of the contract and the obligations that arise to be performed under it.
VIII. LEGAL PRINCIPLES: CONSIDERATION AND MONEY HAD AND RECIEVED
23. Lord Wright in Fibrosa Spolka Akcyjna v Fairbairn Lawson Combe Barbour, Limited held that recovery of money paid is available on the ground of total failure of consideration where “the consideration, if entire, has entirely failed, or where, if it is severable, it has entirely failed as to the severable residue”.[16] Failure of consideration is often a ground for recovery of contractual payment as an aspect of the theory of unjust enrichment as the basis of restitutionary claims,[17] but in Roxborough & ors v Rothmans of Pall Mall Australia Ltd it appeared that a non-contractual restitutionary claim can arise in respect of payment under the contract on “failure of consideration”, ie the payment was made on a basis/condition or for a purpose that was not fulfilled.[18] This view has drawn criticism as being damaging to the law of contract,[19] but after the trial herein the UK Supreme Court recently relied on Roxborough & ors in Barnes v Eastenders Cash and Carry Plc.[20] In view of my findings below, I need not delve further into this area of the law.
IX. D’s BUSINESSES
24. I find when P came to know D in late 1998 D operated various family-run businesses[21] that enabled her to purchase the 1st SZ, 2nd SZ and HK Flats and to invest in the Business between 1998 and 2003. I do not believe D (then 28 years old) had accumulated sufficient savings to be unemployed by late 1998. Mr Wong suggested D should have been able to salvage the failed Business had she been the successful businesswoman she claimed herself to be, but I find the Business failed largely because of the Curfew in paragraph 54 below, its poor location[22] and lack of cashflow, which could not have been overcome by entrepreneurial skills.
X. GETTING TO KNOW D
25. Circumstances I accept Sam Chan (restaurant owner in SZ, “Chan”) knew P (his frequent customer) was looking for a business partner to open/operate a Parlour in SZ.[23] Through casual chats with D (who often took her clients to Chan’s restaurant) on the pricey charges and apparent profitability of Parlours, Chan thought D might be interested and introduced P to her. P told D the Parlours at 羅湖商業城 were very profitable, but D was non-committal even though she formed a good impression of him. When Mak joined them at karaoke after dinner, P told D Mak was also interested in going into business.
26. Time I accept P and D probably met in late 1998, ie about 9 months before it was decided in August 1999 to open a Parlour in SZ,[24] which was consistent with Mak’s statement evidence that they met around Christmas in 1998. I do not agree P and D met at a SZ karaoke pub in September 1998 and P waited for 3 months before he introduced D to Mak when Mak had a girlfriend in SZ and P/Mak often went to SZ for pleasure.
XI. 1ST SZ FLAT
27. P claimed (a) he soon became intimate with D and gave her HK$4,000/month for LE/HM and HK$100,000 odd for purchase of the 1st SZ Flat, and (b) after she moved into the 1st SZ Flat in early 1999 he visited her about 1-2 times a week. But I prefer D’s case that P did not pay her any LE/HM or contribution for the 1st SZ Flat (except for some wallpaper bought in HK). I find D took time to observe P (who did not tell her he had a wife and daughter), and they only started to date in 1999 when they decided to open the Leisure Centre. P confessed he had no idea about D’s finances and could only weakly assert “[D]……冇嘢做唔……代表[D]冇錢去買樓，……[P]冇去考慮呢個問題。……係，兩回事”. I find D, who was financially independent, bought the 1st SZ Flat with her own savings/income.
XII. DECISION TO OPEN LEISURE CENTRE
28. P’s case P claimed he/Mak had gone into business with D, but when D decided to open a Parlour in SZ and told P the capital outlay was about RMB500,000-RMB700,000 and the entire 5/F was rented for such purpose, he gave her HK$200,000 in cash by several instalments, and a water heater for the Leisure Centre and 4 mobile telephones to be used as gifts (bought in HK for HK$30,000). Mak claimed (a) he saw D (with P) about once a month, (b) D urged him to promote her Parlour amongst his friends, but (c) D never mentioned P invested in her Parlour.
29. Findings I prefer D’s case that soon after they met P told D he saw big profits in opening a Parlour and persuaded her to be his business partner by saying his light work duties in HK would allow him to come often to SZ to look after such business. Later Mak also expressed interest. I find that although P wanted to set up the Parlour business as soon as possible, D preferred prudent market study, so P, D and Mak (“Three”) (but more often P and D) checked out other Parlours and explored shop locations.
30. I accept P eventually found the 5/F just a street away from Lam’s restaurant (which P thought was a good location since many HK people lived at 黄貝嶺村).[25] I believe at that time Lam had more contact with P and D than he would have let this court believe.[26] I find when the Three went to the 5/F in August 1999, (a) a decision was made to open the Leisure Centre, (b) capital contribution was agreed to be in 3 equal shares, and (c) P wrote down on a piece of paper the Three were “甲、乙、丙三方” with equal shares (“Initial Agreement”). They did not discuss further that day as each of them was in a hurry to leave, and P went to pay the initial deposit for renting the 5/F. Mak did not bring money with him, so P and D each contributed RMB10,000. I disagree D decided to carry on the Business of such scale (with 800 sq m shop space, variety of services and 116 employees when it opened for business) on her own given her relative youth and past experience with family-run businesses. P was 11 years her senior, and as will be evident from the findings below, even though P/Mak had not been involved in Parlours before, they could/did make useful contributions.
31. I accept the Three orally agreed (a) P would manage/supervise renovations, repairs and maintenance, (b) Mak would handle price lists, advertisements, work guidelines, staff recruitment etc, (c) P and D would handle agreements/licences (but D would deal with the authorities), and (d) the Three would manage the business accounts.[27] P/Mak had some experience in decoration work, and P as construction sub-contractor would be familiar with work progress and cost control. Mak’s elder sister (“Mak’s Sister”), who used to be in the beauty services industry, gave advice, and Mak gave opinion on renovations and told his girlfriend’s younger sister to work for the Leisure Centre.[28]
32. I find P/Mak handled the 5/F renovations which led to the initial estimation of capital outlay of about RMB1,500,000. Given the scale of the Business, it would not have been RMB500,000-RMB700,000. It was initially understood the Three would be equal partners and D would work full-time at the Leisure Centre for RMB8,000/month, but P later told D he needed to discuss with Mak about capital, and afterwards Mak told D he had worked out with P his business share and capital contribution for his ⅓ share of the Business (“Third Share”), and he asked D to follow up with P. As will be evident in paragraph 43 below, P later told D he would take up responsibility for capital investment and loss/profit for ⅔ shares of the Business (inclusive of the Third Share) (“Two Shares”).
33. I accept the total capital contribution was later revised to RMB1,770,000 (which sum was paid up and disbursed for the 5/F renovations and for setting up the Business), but P only paid RMB230,000[29] in cash for his Two Shares vis-à-vis D who paid RMB1,540,000 (including advance payment for P). My findings in relation to the Third Share are set out in paragraphs 43-48 below. I accept D’s explanations in footnote 31 below for loss of the Business’ accounting documents, and further find D (who ran several family-run businesses) had a good head for money amounts and sufficient commercial shrewdness to be conscious of what sums were due to her.
XIII. RENOVATIONS OF 5/F
34. P admitted he/D selected, priced and bought renovation raw materials, and he also followed up on the quality of the renovation works. In my view, from September 1999 to January 2000, P must have slacked off work in HK in order to visit SZ 3 times a week (mostly day-time visits) to help with the renovations because he had an interest/share in the Business, and not merely because he cared for and wished to marry D. As for Mak, P claimed he suggested over dinner in SZ in late 1999 that Mak should have a look at the 5/F and give his opinion on the renovations, and he was sure he accompanied Mak to the 5/F where Mak gave some comments. But Mak testified P telephoned to ask him to go to the 5/F to give suggestions on the renovations, and as he happened to be in SZ at the time and knew how to get there, he went to view the renovation works and to make some comments. Such different accounts spoke of their unreliability, and I find Mak was more involved in the Business than he/P would have let this court believe.
XIV. LICENCES FOR LEISURE CENTRE
35. Mr Wong suggested (but I disagree) P/Mak had no interest in the Business as they were not the licence-holders and/or tenants.
36. 營業執照 I accept it was inconvenient to involve P in formal agreements/licences as he did not have a PRC identity card and he intended to slack off work in HK to help run the Leisure Centre, so D would sign agreements and apply for licences (if she could). Although in principle persons without SZ household registration could not hold 營業執照, still it was arranged for D to sign the initial tenancy agreements for the 5/F (“Initial TAs”) in September 1999 because they could give it a try to apply for 營業執照 otherwise they could always 借牌.[30] After an unsuccessful application, D came to know 劉志偉 (“Lau”) who held a 個體工商户營業執照 issued to him as 經營者 by 深圳市工商行政管理局羅湖分局 with 執照有效期 from 27 May 1999 to 27 May 2003, and Lau agreed to 借牌 for a monthly fee of RMB700 (without liability for debts/losses of the Leisure Centre). I accept the written agreement with Lau was lost/discarded after so many years.[31]
37. D produced 2 營業執照 in Lau’s name with the 5/F as 經營場所 issued on 15 January[32] and 23 October 2001.[33]工商行政管理局 allowed change of 字號名稱 and 經營場所, so when Lau’s 營業執照 was first issued in May 1999 the initial 字號名稱 was not 鳳凰休閑中心, 羅湖區姿麗雅美容美髮中心 or 羅湖區寶島美容美髮腳部按摩中心,[34] and the initial 經營場所 was in 湖背村. After P and D 借牌 from Lau, 字號名稱 and 經營場所 on Lau’s 營業執照 were changed to 鳳凰休閑中心 and the 5/F. After the Curfew was imposed they nominated a name-change to 羅湖區姿麗雅美容美髮中心, and later their subcontractor 張生偉 (“Cheung”) nominated 羅湖區寶島美容美髮腳部按摩中心 as 字號名稱. But the Business could not open any business bank account in the names of the partners, so the capital contributions were kept in a safe at the 1st SZ Flat before they were disbursed for the Leisure Centre.
38. I accept D’s explanation for 營業執照. After all, if the Leisure Centre did not 借牌, it would have been closed down by 工商行政管理局for carrying on business without licence when the 5/F was raided in 2000.[35] I find nothing curious about the silence in D’s pleadings on the background evidence as to 借牌.
39. 黃頁社區康復站 Lau’s 營業執照 did not include body massage services. By a 合同 dated 19 November 1999 between 羅湖區黃貝街道殘疾人聯合會 as 甲方 and D as 乙方, it was agreed “乙方自行籌集資金經營管理康復站，康復站的經營地點設在[the 5/F]。……其經營範圍主要是: 殘疾人的康復、訓練、保健、按摩”. D entered into such agreement because inter alia (a) it was thought 殘疾人康復牌 issued by 黄貝派出所 for RMB4,000/month might obviate the need for 按摩牌 that cost RMB600,000,[36] and (b) it was inconvenient for P to do so. In my view, this did not amount to any alteration of business plan.
XV. TENANCY AGREEMENTS FOR 5/F
40. There were 2 tenancy agreements for 379.2 and 413 sq m of the 5/F from 17 September 1999 to 30 September 2004. D signed the Initial TAs on 17 September 1999 as it was inconvenient for P to do so. Since the Leisure Centre had to 借牌 from Lau, the landlord subsequently required Lau as the named tenant to sign replacement tenancy agreements with other key terms unchanged (“Replacement TAs”). D produced Replacement TA 房屋租賃合同書 (黃貝No.A0026367) dated 30 November 2000 for 413 sq m of the 5/F with 補充條款 of the same date signed by the landlord, Lau and D that referred to the replacement of Initial TA no.0007653 and to D (being the original tenant) “承諾為[Lau]經營負連帶保證責任”. The Initial TA no.0007653 was substituted by Replacement TA 房屋租賃合同書 No.3007653 for 379.2 sq m of the 5/F signed by Lau as the named tenant. In my view, the Replacement TAs demonstrated divorce between the named tenant and business owners, [37] so the fact D signed the Initial TAs did not prove she was the sole owner of the Leisure Centre.
XVI. BUSINESS ARRANGEMENTS AND 1ST IOU
41. P’s case P denied he/Mak went into business with D in any way and/or he signed the Revised Agreement or 1st IOU in paragraphs 42 and 44 below.
42. D’s case D said that on 17 September 1999 P gave her a revised business agreement (“Revised Agreement”) as follows:
“協議:
……
甲方[P]與乙方[D]商議，在[the 5/F]共同開辦鳳凰休閑城，有關條款如下:
一、 休閑城股份共3叁份，甲方佔貳份，乙方佔壹份，雙方按此比例投資及分紅。
二、 甲方負責休閑城的客源和財務，乙方負責員工內部管理、對外關係和廣告推廣。
三、 休閑城經營的事項，應由雙方共同協商決定。
本協議經簽字後立即生效。
甲方: [signature] |
乙方: [signature] |
| |
一九九九年九月十七日” |
43. P told D “……[P]分俾[Mak]得架喇，[D]同[P]之間兩個人搞掂”, “[P]口講話「到時[P]同[Mak]之間，[P and Mak]會計喇，[D]唔使理喇」”, “……但係[P]口頭就係咁講，[P]同[Mak]兩份，「不嬲都係[P]同[Mak]一齊」……”, “……[D]唔想篤穿[P]想佔多一份呢個企圖，但係[D]感覺到[P]係想要兩份，[D]佔一份，因為……[P]覺得呢盤生意係包賺，所以……[P]喺個協議上面，[P]就寫[P]要兩份，而[D]佔一份”. This echoed what Mak told D, ie he had worked out his business share and capital contribution with P for the Third Share, and he asked D to follow up with P, so by this time when P took up the Two Shares (including Mak’s Third Share) Mak was no longer a business partner vis-à-vis D, and P and D signed the Revised Agreement on such basis. But P/Mak did not tell D about the internal dealings as between themselves in respect of the Third Share, so even though D felt (感覺到) P wished to have the Two Shares, she did not have firm/precise idea how the Third Share was actually shared by P/Mak.
44. D claimed “[she]感覺到[Mak]係[P]嘅助手嚟架喇” since Mak as P’s privy was still involved in business decision-making. D said “因為[P]係一個比較冇主見嘅人嚟嘅，所以與其講，[D]問[Mak]，其實就係問[P]，而[P]佢要問番[Mak]，係咁嘅情況” and “[D]係同[P]夾份，而[P]佢係冇主見嘅人，[P]次次都要帶埋[Mak]一齊，……所以[P]咩嘢都要聽[Mak]嘅……”. In fact, P and D often resolved business issues with Mak (and at times with others, eg Mak’s Sister, as well) by “你一言我一語” discussion. D also claimed she advanced capital contribution of RMB1,770,000 x ⅔ - RMB230,000 + RMB20,000[38] = RMB970,000 for the Two Shares, so before the Leisure Centre opened for business in December 1999 D asked P for a written IOU. P told D “…… 即$1,000,000齊頭寫畀[D]，跟住[P]話到時賺咗，褪番畀[D]囉”, and“[P]就有講過話喺幾月幾號之前畀番$1,000,000，就好簡單，幾行字嘅啫，冇話太過深入嘅” (“1st IOU”).
45. Findings P disputed admissibility of the copy Revised Agreement (“Copy RA”) on the basis there was no formal discovery by way of a list of documents, and the Revised Agreement was fabricated and his signature thereon forged. Notwithstanding the admissibility issue, the authenticity issue was already canvassed in witnesses statements, oral testimony and other documents (all of which were admissible evidence), and court was called upon to determine the business arrangements between the parties. In any event, there was no surprise about the Copy RA since P and D referred to it in both the present action and PRC Action.[39]
46. Putting aside for the moment the admissibility issue, I accept D’s explanations on the evolution of business arrangements from the Three’s equal shareholding to P taking up capital contribution and profit/loss for the Two Shares vis-à-vis D (leaving P to work out how to share the Third Share with Mak as between themselves). I find it unsurprising that in the end Mak (who only knew D through P) preferred to work out his business commitments with P, but (even though D felt P wanted the Two Shares for himself) there was insufficient evidence for me to conclude definitively what Mak’s share/interest in the Third Share vis-à-vis P was (as distinct from P’s responsibility for the Third Share vis-à-vis D).
47. Mr Wong suggested (but I disagree) there was no credible reason for D to trust P, for Mak to adopt a “camouflage” of active involvement in the Business, or for D to pretend to consult Mak when Mak was a mere front for P. But these arguments ignored the aforesaid evolution of business arrangements by which P/Mak kept their internal arrangements for the Third Share private except that Mak continued to be involved in the Business as P’s privy (with possible share/interest in the Third Share vis-à-vis P). Anyway, D primarily relied on P’s express acknowledgment of business debt in the 5th and 6th IOUs so the Revised Agreement was at best background evidence, and D did plead P’s interest in the Leisure Centre and also averred P was liable to repay D’s advance payment for the Two Shares (including Mak’s Third Share).[40] I also see nothing sinister in P not paying up his full share of capital contribution before the Leisure Centre commenced business,[41] in the paucity of support documents,[42] or in the absence of the original/copy 1st IOU (made many years ago and superseded by subsequent IOUs) at trial.
48. So quite apart from the Copy RA, there was ample reliable evidence for this court to accept D’s account of the business arrangements. But Mr Wong argued the forged/fabricated Revised Agreement spoke ill of D’s honesty, which argument squarely raised the authenticity issue that could not be brushed aside as a mere pleading/discovery point. Mr Wong urged me to follow 深圳市羅湖區人民法院 in finding “對[D]提交的證據3 [ie the Copy RA], [D]未提交原件予以核對，[P]不予確認，本院對其真實性不予確認”, but under common law these considerations were factors to be weighed according to the principles explained in paragraph 17 above. After considering all the circumstances including the absence of the originals against the contextual background and standard of proof to be met, I accept D’s account and find both P and D signed the Revised Agreement, and the Copy RA was a copy thereof.
XVII. LEISURE CENTRE COMMENCING BUSINESS
49. The Leisure Centre opened for business on 8 December 1999. P visited D mostly at the 5/F about 1-3 times a week. I find Purged his friends/ colleagues to patronise the Leisure Centre of which he was a major business partner. I further find Mak’s Sister helped in setting up the beauty services, which explained why Mak brought her and her husband to visit the Leisure Centre just before its opening, and Mak urged his family/friends to patronise the Leisure Centre. In my view, P/Mak had more business liaison/contact with D over the Leisure Centre than they would have let this court believe.
XVIII. 2ND SZ FLAT
50. In May 2000, D purchased the 2nd SZ Flat located near to the Leisure Centre for RMB767,763. The initial deposit was RMB237,763, and D secured a mortgage loan of RMB530,000. The monthly Mtge Payment was about RMB4,300. P claimed he feared D would become financially over-burdened, but when D went ahead with the purchase he gave her HK$4,500-HK$5,000/month to pay the Mtge Payment and management fees. I find P did not give D any financial help since D was financially healthy: (a) P admitted D had some savings, (b) D had income from her family-run businesses, and (c) D could well afford capital for the Business.
XIX. OPERATING THE LEISURE CENTRE
51. D was always at the 5/F. I find P as business partner knew the Leisure Centre provided inter alia massage/beauty/slimming services, and (as Huang said) P would be there several times a week. As P must have known the Business was of some scale, his allegation that he only knew there was just more than 10 employees was a poor attempt to downplay his role in the Leisure Centre. P said he would “執頭執尾” at the Leisure Centre, but I prefer D’s case that whilst she was responsible for day-time operations, P (and/or his privy Mak) would oversee night-time operations if they were at the Leisure Centre. I find P was involved in human resources and general management, and I accept Huang’s evidence (a) it was P who interviewed/ hired her, collected the employment deposit of RMB300 from her, and returned such deposit to her when she left by the end of 2000, and (b) the “bosses” of the Leisure Centre were P and D whom the employees addressed as 林老板 and 華姐 respectively. As explained in paragraph 31 above, the Three would also manage the account books of the Business. One of them (including Mak as P’s privy and/or possibly pursuant to his internal arrangements with P for the Third Share) would cross-check the cashier’s calculation of business turnover at the end of each shift, and the cash would be stored in the safe at the 5/F.
52. I accept the profits for the first 2 months were used for water leakage repairs (on top of which D paid a further sum of RMB63,000). Subsequent profits were divided as to ⅓ for D and ⅔ for P (leaving P to deal with Mak as per their internal understanding for the Third Share), but in reality P often used up such profits (including D’s share) by taking cash (ie RMB3,000-RMB6,000 at a time) from the till[43] to entertain friends and regular customers and to invest in stock market. D became concerned, especially when profits dwindled after the Curfew was imposed, which (in my view) explained why, as Huang also recalled, D frequently argued with P over money.
XX. MEETING THE FATHER
53. In 2000 the Father was robbed near Dongmen, SZ, and D went to his help at P’s request. When the 4th Sister went to SZ to pick up the Father, the 4th Sister was so unfriendly that D felt she was looked down upon. D frankly admitted the Father hinted to her P had a wife, but when she questioned P he firmly told her he only cohabited. I find it was in late 2001 when D discovered P’s divorce papers that she believed he was married.
XXI. BUSINESS CHANGE
54. Curfew The Business continued to earn profits until June 2000 when a business curfew barred entertainment establishments from carrying on business from 2:00am-8:00am (“Curfew”), which was a blow to the Leisure Centre as its business peaked at night. P took steps to monitor the Leisure Centre’s business downturn,[44] and upon advice from Mak’s Sister P/Mak proposed to concentrate on beauty/slimming services. Comforted by P’s assurance he would soon pay RMB1,000,000, D acceded to such proposal and made capital investment of RMB520,000 to buy equipment, revamp the Leisure Centre, and promote the services.[45] Mak suggested a more feminine business name “姿麗雅” to which P, D and Mak’s Sister agreed, so 字號名稱 on 營業執照 was changed to 羅湖區姿麗雅美容美髮中心.
55. Fine imposed on D 行政處罰決定書 dated 26 September 2000 stated “[D]於2000年3月8月至2000年8月30日在[the 5/F],未經工商政管理部門核准登記頒發營業執照,擅自以鳳凰休閑中心的名義,從事全身推拿按摩、腳部按摩等經營活動”. D was fined RMB5,000, which fine was (in my view) due to controversy over 按摩牌 and the Curfew.
56. The Leisure Centre had to satisfy requirements by inter alia 工商局on licence matters and 派出所 on Curfew matters. The Leisure Centre “必須要攞齊咁多個牌，……你超過少少嘅範圍，佢就斷定你做呢個項目係無牌……”, and it transpired 工商局 considered 殘疾人康復牌 did not allow “異性按摩，即係正常嘅按摩”. So if the Leisure Centre (which did not have按摩牌) carried on business after 2:00 am, it would be in breach of the Curfew and it would be trading without licence for massage services.
57. I accept P was anxious to earn income to cover the Leisure Centre’s operating cost of RMB83,000/month, so he instructed the employees to carry on business after 2:00 am. When工商局, 派出所 and 居委辦事處 carried out a joint operation in August 2000, “[P]連招牌燈都打開晒，……，就政府啲人員巡查就睇到” and the above 2 breaches were exposed. But “……因為每個月畀咗4,000鈫畀辦事處[for 殘疾人康復牌]，辦事處同派出所嘅關係比較好”, so 派出所 did not take action over breach of the Curfew, but D had to go to 工商局 to make a statement and eventually a fine was imposed for breach of the licensing requirements. I accept D did not tell the authorities P was her business partner for fear it might cause trouble for him (HK resident) and/or it might lead to more frequent future inspections/raids. I further accept D believed the Leisure Centre would have escaped the authorities’ attention if it did not carry on business after 2:00 am, so she considered breach of the Curfew (for which she blamed P and quarreled with him) to be the ultimate cause of the fine. I disagree this incident/fine showed D was the proprietor of the Leisure Centre.
XXII. BUSINESS DOWNTURN
58. As business deteriorated, the Leisure Centre was in arrears of rent/wages. P suggested a barbecue trip to 大梅沙 in August 2000 to boost staff morale, and I find he promised to pay RMB1,000,000 which eventually did not materialise. I accept (a) in September 2000 76 employees went on strike, besieged D at the Leisure Centre and refused to let her leave, (b) they took away some television sets and removed the safe at the 5/F so many business documents (including account ledgers) were lost, and (c) D had to borrow RMB360,000 to settle some wages/rent in arrears.
59. I do not agree that (a) in/about 2001 the Leisure Centre had ceased operation and D was waiting to sell it, (b) D feared the proposed sale would be hindered if the landlord tried to recover possession of the 5/F, and so (c) D asked P for money to pay the outstanding rent and P borrowed HK$50,000 from the bank for her. I note (i) HK$50,000 was not even enough to pay the existing month’s rent with 1 month’s rent in arrears for the 5/F and would not have forestalled recovery action, and (ii) P could not even afford HK$50,000 from his own monies. I find P took back RMB30,000 about a month later for some alleged urgent need, but he assured D he would be responsible for his share of the Leisure Centre’s business loss.
60. Rather, I accept (a) in about June 2001 many creditors came to the Leisure Centre to demand payment, (b) D found out P had borrowed about RMB390,000 and named her as guarantor without her prior consent, (c) P (who made losses in the stock market) asked her to advance payment to the creditors with promise to repay, and (d) D sold the 1st SZ Flat for RMB290,000 for such purpose and paid the remaining RMB100,000 from her savings. Mr Wong complained of the paucity of documents, but D was then in a sudden/difficult position, and as will be evident in paragraph 71 below, she lost some papers when P left 2 bags of her belongings in the taxi when helping her move house in HK.
XXIII. CLOSING DOWN THE BUSINESS
61. I find 深圳市工商行政管理局 finally closed down the Leisure Centre. Cheung was introduced as “工商局內部嘅人”, and after some quarrels P and D “……就決定都係畀[Cheung]開囉，就承包租金兩萬鈫”. So in October 2001 字號名稱 on 營業執照 was changed to 羅湖區寶島美容美髮腳部按摩中心 as nominated by Cheung, but he eventually absconded. At the beginning of 2002, P and D sold the Business for RMB430,000 which proceeds were used to cover some business loss. D had to sell her 桂林米粉店 to pay RMB100,000 to creditors. By 2 停租申請書 dated 5 February 2002, the tenancy of the 5/F was terminated on the basis that “承租人場地轉讓 ……”[46] I find it improbable D did not tell P about business loss/debts when she looked to him to pay his share of capital investment and business loss.
XXIV. D COMING IN HK
62. P and D were both “炮仗頸”, but their frequent quarrels were not serious and up till then they still loved each other. D trusted P when he told her he had separated from his former cohabitee. When they developed a mutual wish to be married, D looked for her husband and they divorced in late 2001 or early 2002. In June 2001, as the Business turned for the worse, D was granted a one-way permit to HK. She lived with P at the 1/F Unit and P gave her a set of keys, but she often returned to SZ for the Leisure Centre.
XXV. 2nd IOU AND “IN-BETWEEN” IOU
63. I find that shortly after June 2001 P wrote an unsigned IOU to promise repayment of RMB390,000 within a week (“2nd IOU”). Later “[P]話[P]$390,000還唔到喇，咁不如一次過兩張[ie 1st and 2nd IOUs]合併喇，就係第三張[IOU]嘅前身”. Such unsigned IOU provided P would (a) pay D HK$6,000/month for 30 years, (b) pay D a lump sum of HK$9,200, and (c) convey to D the Half Land (“In-Between IOU”).[47]P paid the sum of HK$9,200, but for the other terms P told D “唔好喇，等我考慮清楚先” to which D agreed, and this eventually led to the 3rd IOU whereupon the In-Between IOU was destroyed.
64. In my view, the 1st, 2nd and In-between IOUs dispelled any suggestion the money affairs between P and D were not business-like. I do not believe P gave D LE/HM, D blamed P for not giving her sufficient LE/HM or those IOUs were for payment of LE/HM. If (as P alleged) P and D wished to be married and he regularly paid her HK$4,500/month (later increased to HK$6,000/month), why would D require written promise of what P always did faithfully and willingly?There was also no satisfactory reason why written assurance of LE/HM (if required) in anticipation of marriage would be limited to 30 years and not throughout their married life. I find the 1st, 2nd and In-between IOUs were for business debts due to D.
XXVI. LEAVING 1/F UNIT
65. Mr Wong suggested (but I disagree) D was disappointed P’s family did not welcome her so she resorted to 保証書in paragraph 67 below to persuade them to accept her, and D found it hard to move out to live at sublet suites and felt D did not give her sufficient LE/HM.
66. D’s relationship with P’s family The 4th Sister claimed (a) the Mother (who disliked D’s cohabitation with P) complained to her D had keys to the 1/F Unit, (b) the Father told her he so disliked D he wanted her to persuade P to stop being with D, and (c) P planned to take D away because he knew the Parents disliked D, but these assertions did not sit well with the 4th Sister’s own account of the Father’s attitude in paragraph 68(a) below or with P’s evidence that during D’s stay at the 1/F Unit (i) D was good to the Father who allowed her to remain at the House, and (ii) the Parents did not have a bad impression of D who had no problem living with them. I prefer D’s evidence that she had a cordial relationship with the Father who wanted the Mother and 4th Sister to accept her, but P did not get on too well with the Father and 4th Sister (who strongly disliked D) who together ruled the roost in the Lam family.
67. Leaving the House There was no dispute P signed 保証書:
“我本人[D]現保證將來如同[P]結婚林家的所有財產與[D]無關,不屬於[D]而[D]只是一個住客不拥有任何物業財產,特此保證,決不反悔!
注明: 此保證書出於本人心甘情願而無任何強迫手段,具法律效力。
保證人: [D’s signature] 2001.12 [illegible – but single digit]”
68. The 4th Sister claimed (a) D wrote 保証書 to assure the Parents she and P were in love, so the Father told the 4th Sister “繼後香燈、三代單傳” and P liked D, and he urged her to give them a chance (but she was skeptical) and to convince the Mother to accept D (but she only agreed to ask the Mother to keep a weather eye on D), (b) the Father asked the 4th Sister to keep 保証書 as she would survive him, and so (c) the Parents allowed D to remain at the 1/F Unit until P eventually took D away due to lifestyle conflict between the two generations. But P gave a different account as to how/when 保証書 came to be made. P claimed the Parents thought P and D should not cohabit when P was still divorcing his wife, so they asked P to take D away which he did a few weeks later. P claimed he later learnt when D was staying at the sublet suite in Mongkok that he rented for her (whilst he continued to reside at the 1/F Unit), on one occasion she returned to the 1/F Unit (where she stored equipment from the Leisure Centre) and gave 保証書 to the Father to persuade P’s family to let her return to live at the 1/F Unit.
69. Such different accounts rendered P’s case on 保証書 unreliable, especially when P said under cross-examination that his impression of the relationship between D and the Parents at that time “……唔會點樣特別好, 但係亦唔會點樣差既,即係冇乜特別啦”. Had D been greedy, she would not have signed 保証書 and/or moved out of the House, and instead she could have married P (who was then willing to marry her) after her divorce and have children so as to lay claim to P’s assets as wife/mother. The 4th Sister said during the 5/04 Incident D scolded her “最衰是[4th Sister] ，怕[D]生個仔同[the 4th Sister]爭身家，不准[D]同[P]結婚，累[D]落了兩次仔”. This showed the 4th Sister was jealously protective over the Lam family assets, but D did not use marriage/children to engineer her interest, which went some way to support D’s case which I prefer.
70. I accept (a) at first D was surprised when the Father asked her to sign 保証書 but she realised it was the 4th Sister’s idea when she saw the draft in the 4th Sister’s handwriting, (b) D prided herself on being financially independent, and was aggrieved the 4th Sister would so look down on her, (c) D just copied/signed 保証書 since she had no qualms about the assurance therein (as she did not have to live off P or his family) and she was too proud to shrink away from it, but (d) she told P that evening they should move out of the House so the 4th Sister would not look down upon her any more. P supported her and they left for the partitioned room in Mongkok,[48] where she stayed when she was in HK (but she lived at the 2nd SZ Flat when she returned to SZ). D was moved by P’s willingness to stand by her, so she urged him to spend time at the 1/F Unit and continue to look after the Parents.
71. Loss of D’s belongings In the course of moving to the partitioned room in Mongkok, P inadvertently left 2 bags of D’s belongings containing cash, clothes/shoes, business documents and other items in the boot of the taxi. D was angry with P’s carelessness. She quarreled with him and angrily demanded compensation of HK$20,000. But she was just “炮仗頸”, and they soon reconciliated. I see no reason to doubt D brought business documents to HK since the Business was a partnership with P, and the Leisure Centre’s equipment was brought to HK for re-sale or re-use.
XXVII. 3RD IOU
72. D said the 3rd IOU was superseded by a subsequent IOU, so neither party (for different reasons) relied on the 3rd IOU, but the 3rd IOU explained how the agreed indebtedness due to D came about.
73. I do not agree P “continued” to pay D HK$4,500-HK$5,000/ month and “increased” it to HK$6,000/month to cover the monthly rent of the sublet suite. D had income from her advertising/family-run businesses, her property speculation and “……做啲嗰啲小額擔保嗰啲牌照，幫人哋辦牌照賺錢”, and did not need LE/HM from P. P could not satisfactorily explain why some LE/HM was deposited into D’s bank account when they lived together at the 1/F Unit and saw each other every week even after she moved out. In my view, such bank deposits were more consistent with a need to have proper record of debt repayments.
74. P claimed they frequently quarreled as D complained the amount of LE/HM was insufficient (possibly due to higher living standards in HK), and as a result she made the Tel Calls to disturb his family. He said D demanded him to “攤牌” before her elder sister to “應承供養[D]6,000 鈫一個月，三十年” and to pay HK$20,000 compensation for having lost her belongings, failing which D would make the Tel Calls to disturb P’s family/friends and to cause trouble at his workplace, and she also demanded him to sign an IOU because his promise to give her LE/HM meant he was indebted to her. P claimed when he argued with D about this, she said “「你唔寫？唔寫我就打電話架喇」，即係呢啲恐嚇性嘅說話囉”, and she even telephoned his home to scold the Father to demonstrate her threat. P said D either made a Tel Call to the 4th Sister or was about to call the 4th Sister when P stopped her and agreed to write the IOU, and he wrote/ signed the 3rd IOU at the sublet suite in Mongkok because (a) he was bothered by D’s Tel Calls and hoped she would not cause further trouble, and (b) “[D]逼[P]寫，[D]讀，要[P]寫，[P]有寫到嘅”.
75. I reject P’s case which on balance had a sense of unreality:
(a) As a businesswoman familiar with contractual rights and obligations, D would have known promise of LE/HM based on love/affection between cohabitees would not have grounded any enforceable debt, and I am unable to see how going before D’s elder sister to “攤牌” would help.
(b) P claimed he faithfully paid D HK$6,000/month as LE/HM but D complained the amount was not enough. P did not satisfactorily explain why D merely demanded payment of HK$6,000/month for 30 years and not any higher monthly amount.
(c) P claimed he intended to maintain/marry D who also wished to marry him. It beggared belief that D with marriage on her mind would make the Tel Calls to disturb P and his family. When pressed on this point, all P could say was he did not know why D behaved so.
(d) There was also no satisfactory explanation why D (who was about 30 years old) required payment of LE/HM for 30 years when upon marriage to P she could expect support (if P was financially able) throughout their married life. But on the other hand P was 11 years her senior, so it was unclear whether he would still be able to pay LE/HM in 30 years. These common sense considerations made P’s case on D’s alleged choice of 30 years suspect.
(e) I find it improbable that D would eagerly force P to sign the 3rd IOU by her Harassment and Tel Calls when it must be within contemplation she would have to continue such nuisance/ disturbance for 30 years to ensure full payment of the promised LE/HM by P who was said to be “unwilling”.
(f) D could not have telephoned or even attempted to telephone the 4th Sister to harass her. The 4th Sister gave evidence that D never contacted her in 2001-2003 because D did not know her telephone numbers at all until 24 May 2004 when D found the numbers on a sticker at the G/F Unit.
(g) P claimed that soon after he signed the 3rd IOU D apologised and told him she had thrown it away because it was unnecessary as long as they were truly in love. If so, there was no convincing reason for D to threaten/harass P and his family and to force him to write the 3rd IOU at her dictation just shortly before that.
(h) P claimed he subsequently persuaded the Parents to allow D to return to 1/F Unit, which did not sit well with the 4th Sister’s evidence that D continued to make the Tel Calls to the Parents to disturb/harass them, to curse the Father and to ask why he was not dead yet etc. If D’s objective was to be accepted by P’s family, these acts would not have endeared her to them.
76. On balance, I prefer D’s case that in September 2001 P (who was unable to make full repayment under the 1st, 2nd and In-between IOUs) initiated discussions at the partitioned room in Mongkok for another IOU. P could only afford to repay HK$6,000/month,[49] so they agreed to a haircut to reduce P’s total debt to RMB2,160,000, and P voluntarily (without any Harassment/Tel Calls/duress) gave D the unsigned 3rd IOU that provided (a) P would pay D HK$6,000/month for 15 years and (b) D would convey the Land to D within 1 month of such IOU (“3rd IOU”). I find it was P who proposed to convey the Land to D as part of the repayment terms, and to have the 3rd IOU notarised in SZ (where the debt was incurred). Attempts to do so at 羅湖公證處 and 深圳市公證處 failed since the 3rd IOU dealt with land in HK, so they agreed to vary the 3rd IOU for P to repay RMB2,160,000 by HK$6,000/month over 30 years. D gave a breakdown of the negotiated/ agreed debt of RMB2,160,000 as follows:
“1770,000 ÷ 3 x 2 |
= 1,180,000 (100萬借據) + 390,000 ([P]拿30萬) + (63,000 (維修) + 520,000 ([D]塑支轉讓) + 360,000 (人工) + 5,000 (罰錢) + 170,000 ([P]說155,000)) |
|
= 1,180,000 + 390,000 + 300,000 + 1,118,000 ÷ 3 x 2) |
|
= 1,180,000 + 390,000 + 300,000 + 745,333.32 |
|
= 2,615,333.32 – 300,000 – 155,000 |
|
= 2,160,333.32 |
 不理[D]的蝕錢([Curfew]後的蝕錢約60萬) – 3萬多 x 1年半 |
 拿3000 – 6000 約9個月約50萬 |
 轉讓舖人工[D]出資17萬[P]不同意只同意155,000” |
77. D said P refused to take into account , and :
|
|
P refused to take into account business loss of about RMB600,000 after the Curfew was imposed because he claimed “宵禁令，[P]早就叫[Defendant]頂，蝕錢[D]嘅事”. |
|
|
P disagreed he took RMB3,000-RMB6,000 from the till of the Leisure Centre every now and then such that he took RMB500,000 in/about 9 months. At first P acknowledged RMB300,000, but ultimately he refused because under the 1st IOU his outstanding capital contributionfor the Business was agreed at RMB1,000,000, so if Dcalculatedit on the basis of RMB1770,000 x ⅔ = RMB1,180,000 P would not admit any sum under . |
|
|
D had to settle arrears of wages when the majority of the Leisure Centre employees gradually left or were laid off (and by September 2001 D had already incurred RMB170,000). P refused to take D’s advance into account because “[P]嘅意思就話一早叫[D]頂讓……”, but D saidwith the Curfew“……都冇人頂鋪，一路拖，……[P]唔負責個人工，[P]講係講負責$155,000，但係到最屘嗰陣時[P]都仲係唔負責……” |
78. As to the amounts that were taken into account, D explained:
(a) |
RMB1,180,000 |
P’s share of the total investment was RMB1,770,000 x ⅔ = RMB1,180,000, which was agreed as RMB1,000,000 under the 1st IOU (adjusted by ignoring in the breakdown); |
(b) |
RMB390,000 |
P borrowed RMB390,000 from creditors which D repaid as evidenced by the 2nd IOU; |
(c) |
RMB300,000 |
P at first acknowledged he had taken RMB300,000 from the Leisure Centre, but in the end he refused to admit this sum; |
(d) |
RMB63,000 |
D incurred RMB63,000 for repairs for water leakage; |
(e) |
RMB520,000 |
D incurred RMB520,000 in purchasing beauty/slimming equipment/products upon revision ofthe Leisure Centre’s scope of services after the Curfew was imposed; |
(f) |
RMB360,000 |
D incurred RMB360,000 by paying arrears of wages when the employees went on strike; |
(g) |
RMB5,000 |
D was fined RMB5,000 by深圳市工商行政管理局; |
(h) |
RMB170,000 |
P disagreed with the sum of RMB170,000 but at first he acknowledged D had incurred a sum of RMB155,000 under . |
Since D incurred the sums in (d)-(h) above for the Leisure Centre, P was responsible for RMB1,118,000 x ⅔ = RMB745,333.32. But P eventually refused to recognise , and , so the agreed amount P owed D was about RMB2,160,333.32.
79. I accept D’s explanation on how the agreed debt came about as a result of negotiations/quarrels/concessions. Despite the loss of business papers, I accept D’s breakdown as she had a good head for money amounts and a good sense of what was owed to her. P made immediate repayment of HK$6,000 on 12 September 2001 by deposit into D’s bank account with The Kwantung Provincial Bank (later Bank of China) (“BOC Account”). I find (a) P owed D RMB2,160,000, (b) D did not threaten/harass/disturb P and/or the Parents or force P to sign the 3rd IOU at her dictation, (c) the quarrels between P and D over money were not about LE/HM but about the business debt P owed D in respect of the Business, and (d) D did not telephone the Father to vent her frustration by using bad words.
XVIII. RETURNING TO 1/F UNIT AND 4TH IOU
80. At some stage D returned to live at the 1/F Unit. P said it might be early 2002 (statement evidence) or end of 2002 (oral evidence).[50] P claimed he heard from the Parents that during D’s stay at the House (for about half a year) she spoke ferociously in foul language during telephone conversations with potential buyers and/or employees of the Licence Centre, so the Father eventually told P not to associate with D and to take her away, and P moved D to a sublet suite in Yaumatei. But in my view, even if D returned to the 1/F Unit at the end of 2001 or in early 2002, P could not have exhibited such poor behavior for half a year because the Business was already sold (and the remaining employees dismissed and paid off) at the beginning of 2002 (probably in January 2002) because the tenancy agreements for the 5/F were terminated on 5 February 2002 on the ground of “承租人場地轉讓”. D could not have returned to the 1/F Unit at the end of 2002 (by which time the Business had been sold for almost a year).
81. I prefer D’s case that her relationship with the Father was cordial when she moved back to the 1/F Unit. Although I am unable to say exactly when D returned to the 1/F Unit, she was there by late 2001. On 18 December 2001, D inadvertently discovered P’s divorce papers and some photographs she believed evidenced his sexual liaisons with other women. She scolded P who in shame-rage kicked/beat her, so in anger she moved to the partitioned room in Yaumatei that was used to store equipment/goods from the Leisure Centre, and retaliated by reporting to the police about P losing her belongings when she moved out of the 1/F Unit for the first time. Afterwards P was contrite and made up to D by depositing 2 sums of HK$10,000 each into the BOC Account on 30-31 January 2002 as compensation for loss of her belongings. So despite the above incident P and D remained together, but they did not marry even when they obtained their respective divorce in late 2001 or in 2002, and I accept in the course of 2002 D gradually lost her romantic feelings for P.[51]
82. I find that on 2 February 2002 P told D he would revise the 3rd IOU by conveying the Half Land near the graves (“Graves HL”) to her, and he would retain the Half Land that could be built upon (“Built HL”). D disagreed but eventually gave in to such proposal because she could not force P to deal with the Land in the way she wanted. So D tore up the 3rd IOU and accepted P’s new IOU (“4th IOU”), ie P would (a) convey the Graves HL to D but retain the Built HL, (b) pay RMB200,000 to D within 1 month of signing the 4th IOU, and (c) pay her RMB6,000/month in accordance with the 3rd IOU (ie 177 instalments). Thereafter, P repaid the following sums (totalling HK$49,700) by deposit into the BOC Account under the 4th IOU:
4 February 2002
|
HK$6,000
|
2 May 2003
|
HK$6,000
|
4 April 2002
|
HK$6,000
|
2 June 2003
|
HK$6,000
|
2 October 2002
|
HK$4,200
|
29 July 2003
|
HK$6,000
|
2 December 2002
|
HK$6,000
|
12 August 2003
|
HK$6,000
|
31 March 2003
|
HK$3,500
|
|
|
But P did not make regular monthly payments or pay the lump sum of RMB200,000, and he delayed conveyance of the Graves HL to D. I reject P’s denial of the 4th IOU. I also disagree the above payments were merely LE/HM and/or D often complained P did not give her sufficient LE/HM.
XXIX. HK FLAT
83. P claimed that by the end of 2002 they still wish to be married, and talked of buying a “平價舊樓”, but he was not involved in choosing the HK Flat because D told him if he gave her HK$80,000 (which he did) she would buy a flat and pay the balance price and renovation costs, so he had no idea whether the HK Flat was mortgaged when D purchased it in 2003. But I prefer D’s evidence that in 2002 she gradually lost her romantic feelings for P, and she was offended by his threat of refusing to repay her (when he ceased to make repayment for a few months after December 2002) if she did not marry him. P bought the HK Flat with her own resources on 1 March 2003 for HK$585,000.00 (without any mortgage), and after they separated in May 2003 she moved into the HK Flat without P. Since D could pay over HK$500,000 for the HK Flat without mortgage, I do not believe she had to ask D for HK$80,000. When contrasted with P’s close involvement in setting up the Leisure Centre (which was their joint enterprise), his non-involvement in choosing/buying the HK Flat did not sit well with a loving relationship with keen wish for marriage to set up home together. I disagree P “continued” to pay HK$6,000/month to D in May/June 2003.
XXX. INCIDENT AT HK FLAT
84. P claimed he found out D cohabited with another man (later known to be Wong) when he visited the HK Flat in early June 2003, so he stopped giving D LE/HM after mid-June 2003, and he asked D to return the keys to the 1/F Unit. P further claimed D harassed him by making the Tel Calls 2-3 times a week to demand for LE/HM, and when he refused she made the Tel Calls to his workplace at Taipo. But I have found they separated in May (not June) 2003, but be that as it may, P still made 3 HK$6,000 payments to D on 2 June, 29 July and 12 August 2003, and he could not satisfactorily explain why he still allegedly paid LE/HM to D in July/August 2003 when he knew by June 2003 D had a new lover.
85. I find D continued to be financially independent after June 2003 because (a) Wong was not earning a lot at that time and (b) she had income from her stock-trading and the elderly home she and her sister opened at Tak Bo Mall. She did not need LE/HM from P, and I do not believe she would make the Tel Calls to seek LE/HM and/or insist P must maintain her for 30 years when she had a new lover, but I accept she continued to chase P for repayment of the agreed debt under the 4th IOU.
86. P claimed when he went to the HK Flat in/about September 2003, D ran out of the HK Flat to beat him with her hands. When he went inside the flat to confront Wong, D followed him. There was a quarrel, and when P refused D’s demand for LE/HM, she beat/pinched herself (自殘) to make a false report to the police that P attacked her. P said D continued to make the Tel Calls to him, his workplace and his family/ friends to cause nuisance and to put pressure on him to give her LE/HM by using foul language and/or maliciously cursing him and his family.
87. But I prefer D’s case that on 5 September 2003 P threatened/ disturbed her at the HK Flat by hitting the metal gate and (when she opened the door) rushing inside to press her neck, beat her and tell her to die whilst Wong tried to conciliate between them. A report was made to the police, and D gave a cautioned statement stating inter alia (a) since 1999 P and D dated and invested in a business, (b) D broke up with P in May 2003 because P did not repay monies he owed D for a long time, and (c) P caused nuisance to D who continued to press for repayment. In my view, the fact it was a cautioned statement was of no moment because (i) police investigations were not yet completed at that time, (ii) D squarely denied any attack on P, (iii) there was no evidence she was prosecuted and (iv) D said (which I accept) she gave a further statement to the police on 25 September 2003 to confirm she did not wish to pursue against P because her injury was minor, all of which did not sit well with the suggestion D was the “attacker”.
88. I find P ceased payments to D after 12 August 2003, and when D chased P to no avail, she sought an appointment with a free legal advice service, which was how she met Ng.
XXXI. 5/04 INCIDENT
89. P claimed D continued to chase him for LE/HM when she came to the House on 19 May 2004, but when P refused her demands she made up a claim for business debt due to her, made the Harassment and Threats in paragraph 94 below against P, his family and other villagers, and refused to leave the House until P gave her the 5th and 6th IOUs, and the 4th Sister gave her some money. I set out below some overview findings.
90. First, I find it quite improbable D chased P for LE/HM when she was financially sound[52] and she had an intimate relationship with Wong, and she would even present herself (big with Wong’s baby) at the House where P/Parents lived to demand P for LE/HM for many future years. In my view, D’s demand was for business debt (ie RMB2,160,000 under the 3rd/4th IOU less some minor repayments) and not an ex-lover’s spat for LE/HM.
91. Secondly, I find D did not plan to stay at the House but for an unexpected development. P was mortified that his business creditor (who happened to be his ex-girlfriend then obviously pregnant with another man’s child) came to dun him, which exposed his financial embarrassment to inter alia the Father and 4th Sister with whom he did not get along too well, and in a fit of shame-rage he destroyed the 4th IOU (ie D’s precious written proof of P’s business debt due to her). This led to D’s determined insistence on a replacement IOU as well as angry quarrels and loud disputes, especially in face of P’s persistent recalcitrance that was fueled by the 4th Sister’s derision that he brought “玩女人” problems upon himself. I disagree that D carried out the Harassment, made the Threats, squatted at the House and/or refused to leave in order to press P to accede to her demands, to make the 5th and 6th IOUs, and to pay her money.
92. Thirdly, Mr Wong suggested P did not have any practical alternative but to accede to D’s demands. But there was nothing wrong for D to go to the House to ask P for repayment under the 4th IOU if her demand did not go beyond what was normal/legitimate. I accept D did demand for a replacement IOU and also for repayment of the business debt due to her, but such demand was the “rough and tumble of the pressures of commercial bargaining” which did not reach the threshold of illegitimacy to constitute duress. Further, D did not have the upper hand because P (not having the wherewithal to make full/prompt repayment) successfully bargained for debt haircut, extended repayment period and payment in kind (eg conveyance of the Half Land). Anyway, the 5th and 6th IOUs were long on promises of future payments and/or future conveyance of the Half Land, so pressing for such IOUs by duress appeared quite futile as P could resile from such IOUs when D left the House and ceased her Harassment/Threats there (which must happen sometime in the next 15 years). Indeed, P commenced the present action to resile from inter alia the 5th IOU about 2 months after it was made. Likewise, the fact D left/returned to the House several times during the 5/04 Incident also highlighted the implausibility of D’s alleged refusal to leave the House unless P gave D the 5th and 6th IOUs and paid her a sum of HK$103,200.
93. Fourthly, I disagree D orchestrated the 5/04 Incident to maximise the impact of her unreasonable conduct by timing her loud criticisms of P in the presence of family/friends in early morning or late night and/or by using foul language as a deliberate tool of intimidation. In my view, unless P returned to the House during the day (and I bear in mind the 4th Sister said P was not often at the House/Village because he lost face and found it difficult to face his family and fellow villagers), their discussions/quarrels would necessarily take place in the early morning before he left for work or at night after he returned from work. I do not believe D put up an act as P alleged when he was genuinely indebted to her under the 4th IOU and/or D (then heavily pregnant) would so strain/exert herself by “……破口大罵喇，……係用盡全力咁嚟嗌嘅，聲嘶力竭咁嗌……”, banging furniture/glass bottles/objects on the floor of the 1/F Unit to make loud noises and throwing things around[53] (collectively, “Noise”) not for an instant but continuously for a whole week.
94. Fifthly, P claimed D “破口大罵” from the balcony of the 1/F Unit (“Balcony”) to make vile/malicious threats against P and his family (“Threats”).[54] But in 2004 D was in a stable relationship with Wong (and she married him in 2007), and he was the father of her baby. D clearly loved her baby as evident in her letter to P dated 16 September 2005 by which time her baby was born.[55] I do not believe D would make the Threats by persistently/ wantonly cursing her own baby (as P and his witnesses alleged) that it would be killed even before it was born and it would then turn into “猛” ghost.
95. Sixthly, it was suggested the Harassment/Threats/Noise disturbed the peace in the Village and caused P to suffer loss of face. As explained in paragraph 91 above, P suffered mortification/shame, and the Parents thereby suffered embarrassment. P had trouble facing his family who berated him for the awkwardness of being dunned (which I find P knew to be for a business debt that he was unable to repay), and the 4th Sister would not have minced words in giving him a piece of her own mind on what she perceived as his “玩女人” troubles. P’s humiliation led to heated quarrels with D which in turn led to police intervention. Against the backdrop of such drama, gossip would be rife in a village of close-knit neighbours/ relatives, which would only serve to feed P’s chagrin/discomfiture. But in my view, P’s wounded pride and embarrassment did not mean D made the Harassment/Threats/Noise and the alleged duress.
96. Seventhly, Mr Wong relied on a letter from the police to P’s solicitors dated 11 September 2009 (“Police Letter”) which set out the “gist” of various reports recorded by Tai Po Police Station (“TP Station”). For the asterisked records in the Police Letter, “[on] 10th March 2005, a letter was received from [P] concerning this case and others he was involved in: his letter was dated 22nd September 2004. P disagreed with some of the details recorded here and wished his own version of events to be noted. His letter is filed at encl (8) ion TPPD LM 102/04 in NTP 52/2 II”. P’s letter dated 22 September 2004 was not disclosed, and given P’s unspecified attempts to resile from the asterisked records and some fundamental inconsistencies/ errors in the records as explained below, I cannot place much reliance on the Police Letter. I turn to the sequence of events in respect of the 5/04 Incident.
XXXII. 19 MAY 2004 (1ST DAY)
97. After speaking with Ng about P’s debt, D wished to check whether P still resided at the 1/F Unit and to talk to the Father about the situation. D was confident P would not use force against her as she was pregnant and she let him off over the incident at the HK Flat, but if he did, she would call the police or leave. With Wong’s reminder of “……唔好太過計較，身體要緊呀” on her mind, D went alone to the G/F Unit around dinner time on 19 May 2004. The Father let her in, and I find she told him P owed her RMB2,160,000. As she explained how it happened, P returned home. P claimed Lai accompanied him home to persuade D to go to Taipo Market but left when D insisted on discussing matters at home. But Lai did not refer to such visit; instead he claimed that on his first visit to the House he went with P and D to Taipo Market,[56] and a few days later he paid a second visit to the House and left shortly afterwards. In my view, such inconsistencies rendered both accounts unreliable.
98. P claimed when he refused D’s demand for LE/HM, D asserted for the first time he had the Two Shares in the Business, and said “[D]冇再講家用，[D]直情就係話個經營[P]有份，[Mak]有份，[Mak]嘅錢算喺[P]嘅身上，即係變咗[P]係要計兩份嘅，$1,770,000裡面要兩份，就要[P]去承擔，就已經冇再講家用呢樣嘢喇”, and D required him to write “一張咁嘅叫做借據嘅嘢”. P alleged this was just an excuse to ask him for money, but in my view the references to capital outlay of RMB1,770,000, P taking up the Two Shares (including the Third Share), and D’s demand for business debt were consistent with D’s case.
99. P claimed he called the police because D made the Threats and refused to leave, but when the police came she was calm and said she would leave in the morning, so P agreed to let her stay for the night if she promised to be quiet. P further said after the police left D began to shout again and even threw a bowl at the television set, so he called the police again at about 2:00 am, but D calmed down by the time the police left, so P returned to the 1/F Unit whilst D remained at the G/F Unit.
100. I disagree D suddenly broke into a frenzy of Harassment/ Threats when P refused her demand for LE/LM (which, according to P, had been his consistent stance since mid-2003). I find D became agitated when P in mortification and shame-rage rushed over to seize and tear up the 4th IOU when she took it out to show the Father, and P stomped on the torn pieces to say “喺唔還呀，吹呀”. D quarreled fiercely with P over such destruction and strongly demanded for a replacement IOU. She was so angry/agitated that she slumped on the sofa and said she wanted to call the police, so P (who was also quite worked up) did so. When the police came, they said “你哋唔好嘈喇，[P]要呢，就告[D]騷擾，要呢，就告[P]刑毀”. D stayed on that evening to demand for a replacement IOU, so P reported to the police, but when the police came P/Father promised to discuss with D and let her stay the night. I disagree with Mr Wong’s suggestion that this incident did not happen because the description in D’s witness evidence concerned a different time period. I note paragraphs 31-34 of D’s witness statement broadly canvassed how the 5th IOU came about without specificity as to what happened on each day of the 5/04 Incident. I also have no concern over D’s pleadings since destruction of the 4th IOU was at best background evidence for the 5th and 6th IOUs.
101. I am unable to place much reliance on the following asterisked record in the Police Letter:
Date |
Time(hours) |
Gist |
19 MAY 2004 |
2324 |
[P] was involved in a dispute with his ex-girlfriend [D] at [the House]. The dispute was over a demand from [D] for [P] to return her money. Both parties willing to settle the case.
There was a second dispute in the early hours of the next morning which was also reported to Police and this was again settled – the case were consolidated under one reference. |
P did not make clear what “details” of such record were incorrect, but it stated the dispute concerned D’s demand against P “to return her money” and not to pay her money (ie LE/HM), and “[both] parties willing to settle the case” suggested P was willing to discuss with D and let her stay the night.
XXXIII. 20 MAY 2004 (2ND DAY)
102. Early morning The 4th Sister in her witness statement claimed that at/about 4:00 am D telephoned to scold her and to say P should repay her, and at/about 4:30 am the 4th Sister went to the G/F Unit where D said her partnership business with P was well-documented whereupon the 4th Sister suggested D should sue P. When the Father got up, D made the Threats and scolded the 4th Sister “……不准[D]同[P]結婚……”, and the 4th Sister retorted they could marry without her consent. The 4th Sister claimed she left the House at/about 5:00 am. But I prefer D’s case that (a) D greeted the 4th Sister, told her P (who owed D money) had torn up the 4th IOU and asked her to “主持公道”, and (b) D “……鬧[P]「你做啲咁嘅行為，即係太過份」。鬧啲即係情緒語言，即係冇鬧……傷害人哋嘅嘢，[D]覺得嗰樣嘢對[D’s]件事係冇幫助……”
103. I find the 4th Sister’s account unreliable. Her statement evidence contradicted her oral testimony that D never mentioned any business debt until 24 May 2004, and I find she made up her evidence as she went along. Since D was obviously pregnant and referred to her partnership business with P, I do not believe the 4th Sister (who fiercely disliked D) simply assumed without making enquiries with P that D was still P’s girlfriend, P and D did not carry on business together, and D made up the excuse of a business debt to extort money. Further, as explained in paragraph 94 above, I do not believe D made the Threats by strenuously exerting herself and cursing her unborn baby.
104. Morning P claimed that at about 7:00 am D came to the 1/F Unit to demand LE/HM of HK$6,000/month and compensation for her business loss, and when he refused she shouted and refused to leave even when the 2nd and 4th Sisters came to the House in the morning to reason with her. But this did not sit well with P’s evidence that “[D]……就已經冇再講家用呢樣嘢喇”, and the 4th Sister’s evidence that she remained at the G/F Unit without going to the 1/F Unit to pacify/reason with D.
105. It was P’s case that (a) D made the Threats/Noise at the 1/F Unit, which scared/annoyed the Parents who were quite frail/deaf, (b) the 4th Sister called the police and went with P/police to the 1/F Unit where D claimed (but P disputed) P owed her money and she had boxes of IOUs under the bed, (c) the 4th Sister showed the police the scratches/debris D made by throwing a bowl at the television set and 3 oranges at the wall the night before, (d) the police told D to be quiet but when they left D started the Noise/Threats again, and (e) he telephoned Lam who went to the House and tried in vain to persuade D (who was shouting/yelling the Threats from the 1/F Unit) to leave.
106. I have found D did not make the Harassment/Threats/Noise by strenuously exerting herself and/or cursing her unborn baby. D was understandably frustrated over P’s refusal to provide a replacement for the destroyed 4th IOU, which led to loud quarrels during which D frankly admitted she might have used impetuous words (but not intimidating Threats/curses). I find P in his shame-rage was a party to such angry quarrels, and as will be evident from the findings below, I do not find Lam to be a reliable witness despite his purported support for P’s case. I also disagree the involvement of Lai/Lam suggested the dispute concerned LE/HM. In my view, “[P]係一個比較冇主見嘅人嚟嘅”, so he asked Lai/ Lam to help him deal with the unpleasantness of being dunned by his creditor who was his ex-girlfriend (and with whom Lai/Lam were acquainted), which had no bearing on the nature of the debt P owed D.
107. I prefer D’s case that the Father went to the 1/F Unit with a bowl of congee and an orange for her (which made sense since D was pregnant and passed the night without food), but when P found out the Father tried to be “和事佬” he got into a frenzy of anger and swept away the bowl of congee and threw the orange against the wall. D too became agitated/angry, and she stood up to point her finger at P and to protest against his behaviour. But when P came over to seize her hand, she lost balance, fell on the hard sofa and cried out. The Father came between them and a report was made. The police came to tell both P and D to calm down. After the ambulancemen checked D’s condition, she did not need further medical attention. I do not believe D made a fuss with further Threats/Noise after the police left.
108. Afternoon In the afternoon (a) the water/electricity mains for the whole House were turned off, and (b) the Parents left to stay with the 2nd Sister in Taipo and P left to stay with Lam. P claimed that after his discussion with Lam it was decided to leave the House temporarily, and Lam also suggested “不如[P]畀個電話問下律師意見好喎”, so P contacted solicitor Mr Li Kwok Wing (“Mr Li”) for advice on a legal means to resolve the situation. P claimed (a) he telephoned Mr Li who told him to seek free legal consultation at the Fanling District Office, and he went there at/about 2:00 pm to make an appointment, (b) D kept telephoning to tell him she had turned on electrical appliances and water taps at the 1/F Unit so P would have to pay expensive utilities/repair bills, and (c) P telephoned to tell Lam he was about to go to Fanling concerning “an injunction” and to ask him to turn off the electricity/water mains at the House (which Lam did).
109. In my view, D’s insistence on a replacement IOU for the business debt P owed to her and the consequent police visits were embarrassing for P vis-à-vis his family/Village, and turning off the water/ electricity mains was a tactical decision concocted by P/Lam to make it uncomfortable for D (who was heavily pregnant) to remain at the House, but the lack of electricity/water for the whole House meant the Parents and P had to stay away too. I do not believe D threatened to turn on water taps and electrical appliances, and even on P’s case she never carried out such alleged threat even though she had opportunity to do so on that day or in the following few days.
110. I prefer D’s evidence that after the police/ambulancemen left she slept on the sofa and when she woke up there was no water, electricity or food. She had not eaten for many hours, so she left the House to have some food[57] and to buy ointment for her mosquito bites. D stayed the night at a McDonalds shop crying over the unfairness of her situation, and felt so helpless/aggrieved that when Wong called she told him she hated all men and switched off her mobile telephone. In my view, D’s voluntary departure from the House spoke loudly that she did not harass/threaten/force P to give the 5th and 6th IOUs by refusing to leave the House.
111. In my view, Mr Wong tried to downplay P’s admission that a solicitor advised him about “an injunction” as a legal means to resolve the matter by saying such legal advice merely concerned D’s Harassment/ Threats and not the 5th and/or 6th IOUs. But even on P’s own case, by 19-20 May 2004 he already knew D made the Harassment/Threats/Noise to press for compensation for business loss and/or repayment of business debt (ie subject matter of the 5th and 6th IOUs), and I cannot see how P’s awareness of a “legal means” to, say, prohibit D from making the Harassment/Threats/ Noise at the House would become irrelevant/spent when the 5th and 6th IOUs were allegedly made a few days later as a result of the same conduct. I find P knew before he made the 5th and 6th IOUs he could seek injunctive relief against D or at least he knew he could further consult a lawyer on seeking injunctive relief.
112. P disagreed with some aspects of the following asterisked records in the Police Letter without condescending into the specifics:
Date |
Time(hours) |
Gist |
20 MAY 2004 |
0922 |
[P] was involved in a dispute with his ex-girlfriend [D] at [the House]. [D] had gone there the previous evening to collect some money. She had been allowed to stay overnight by [P] but now refused to leave. Both parties were willing to settle the matter.
Police attended the scene again a few hours later following another dispute and again both parties agreed to settle the case. |
20 MAY 2004 |
1929 |
[P] revealed that his ex-girlfriend [D] who was pregnant with his child request money from him. This led to a series of disputes. He further alleged that his ex-girlfriend threatened to harm his family. Both parties were warned and the enquiry was curtailed. |
Bearing in mind the glaring error that D was pregnant with P’s child, I find I am unable to place too much weight on such records. Nevertheless, the police did note both P and D were warned by the police and both of them were willing to settle the matter, which spoke more of mutual quarrel rather than one-sided threat/harassment by D.
XXXIV. 21 MAY 2004 (3RD DAY)
113. P/Lam said at about 8:00 am - 9:00 am Lam accompanied P back to the 1/F Unit. I do not accept D demanded for LE/HM or was reluctant to let P go to work unless he agreed to pay her LE/HM and compensation for her business loss. I prefer D’s case that she returned to the House at about 7:00 am to wait for P. When P/Lam came up to the House, Lam urged them to go to the 1/F Unit. Lam gave evidence that (a) D demanded P for an IOU for his share of business loss in respect of the Business of which P, D and Mak had shares but P took up responsibility for the Two Shares since Mak did not pay capital contribution for the Third Share, (b) D appeared aggrieved over P’s conduct in relation to business matters, and (c) Lam “一方面安撫[D]的情緒，另一方面「提示」[P]想想，如何處理這所謂債項。[Lam]叫[D]找同第三個所謂投資人[ie Mak]當面對質”. This was consistent with D’s case. I find Lam assured D “「得喇，我幫妳調停，我幫妳搞掂」”, and told her to wait for his telephone call, therefore D did not object when P went to work. The Parents returned to the G/F Unit in the afternoon and remained there, so presumably the water/ electricity mains were turned back on.
114. In my view, Lam’s assurance was a turning point for P and D to consider negotiations/terms for resolving the matter, which exploded the 4th Sister’s claim there was no chance of negotiations as D scolded them whenever they came within her orbit. I find D placed her faith in Lam’s assurance because when P went to work she also left for the HK Flat to eat/ bathe, which assertion I find credible since D (who was heavily pregnant and suffered from mosquito bites) spent the previous day at the House (with no water/electricity for bathing/cooking) and the previous night at McDonalds. I accept when D returned to the HK Flat she was in such a bad mood that she did not contact Wong. She waited in vain for Lam’s telephone call, and P did not take her calls. But Lam’s inaction was unsurprising. He gave evidence that in the morning he suggested P and D should discuss the matter because he wanted to leave the House and not become involved. Anyway, D’s departure from the House spoke loudly against the suggestion that whilst P was at work D deliberately squatted at the House to harass his family and fellow villagers and to force the 5th and 6th IOUs. It was telling there were no reports to the police on 21 May 2004 even though there were reports before/after that date. I find there was no quarrel to excite any report to the police because D was not at the House that day.
XXXV. 22 MAY 2004 (4TH DAY)
115. The 4th Sister claimed she was against paying any money to D, but after discussing with the 2nd Sister she told P to consider paying D off because she assumed D was asking for LE/HM of, say, about HK$30,000 or so. I disagree because the 4th Sister herself said D told her on 19-20 May 2004 her demand was for partnership business debt that P owed her with a lot of IOUs. If she explored with P the idea of paying D off (as she alleged), P would have told her D demanded him to meet business obligations/loss for the Two Shares (including the Third Share). In my view, the 4th Sister’s alleged belief that D’s demand was for LE/HM was a poor attempt to sidestep a difficult matter under cross-examination.
116. Taipo Market I find D was worried despite Lam’s assurance, and on 22 May 2004 she returned to the 1/F Unit. D was expecting Lam to help her, so I do not think she made any Harassment/Threats/Noise to disturb P’s family and fellow villagers. D was at the House when P returned from work. I agree P telephoned to ask Lai to come over, but I reject Lai’s claim that he thought P and D had a money dispute over LE/HM like their previous quarrels. In my view, P and D were all along squabbling about business debt and not LE/HM. When Lai arrived at the House, he saw both P and D were quarrelling over money matters, which was consistent with mutual argument rather than one-sided Harassment/Threats. I find D complained to Lai that P wrongfully tore up the 4th IOU, and she agreed to Lai’s suggestion to go to Taipo Market for some food/discussion, so P drove them there in his own car, which in my view showed D’s willingness to leave the House and their mutual willingness to negotiate.
117. I accept that at the restaurant in Taipo Market D continued to complain about P’s destruction of the 4th IOU and his refusal to repay the business debt owed to her. Lai left first, but P and D continued their discussion. P said he could not afford to make full repayment, so D asked him to convey the Land to her. P said even though the Land was registered in his name, “「笪地又唔係我嘅，咁妳咪同我老竇傾囉」”, so he drove D back to the House to talk to the Father. P’s willingness to bring D back to the House exploded his allegations that D committed such severe Harassment/ Threats/Noise in the past few days that he wanted her to leave the House and he was disturbed because she refused to do so. I find P returned D to the House because their negotiations for repayment of the business debt P owed D hinged on the Father’s blessing for the proposed conveyance of the Land.
118. Police visits The Police Letter recorded 3 reports to the police that evening:
Date |
Time(hours) |
Gist |
22 MAY 2004 |
2105 |
[The 4thSister] was involved in a dispute with his brother’s ex-girlfriend [D] at [the House]. The dispute was over a demand from [the 4thSister] for [D] to return the money. Both parties later calm down and agreed to discuss the money aspect with informant’s brother later before police leave scene. |
23 MAY 2004 |
0104 & 0225 |
Police attended to enquire and revealed that [P] complained that he and his ex-girlfriend disputed over money affairs and he could not sleep because of his ex-girlfriend’s noise. Both agreed to settle before police leave scene.
Police attended the scene again about one hour later following another report of dispute. Both parties agreed to settle the case before the police leave scene. |
119. I reject the 4th Sister’s evidence that (a) P went to the 1/F Unit in the evening intending to ask D what she wanted in order to leave the House, (b) D was unwilling to discuss terms and scolded P loudly in foul language, (c) they called the police again and when the 4th Sister went to the 1/F Unit with the police she saw another woman with D, and (e) D calmed down but after the police left she continued to make the Harassment/Threats/Noise. In my view, since P and D willingly went with Lai to Taipo Market to discuss their differences, there was no need for P to go to the 1/F Unit later in the evening to ask D to name her terms for leaving the House, or for D to cause nuisance (especially when she wanted the Father’s blessing for conveyance of the Land as part of the repayment arrangements).
120. I prefer D’s evidence that back at the House P and D discussed with the Father about the Land in a cordial atmosphere. But P was anxious to put an end to his humiliation, so when the Father said he had to think about it he angrily flung out of the House to go drinking. I find it convincing in a village setting for the Father (who conveyed the Land to P in the first place) to be consulted on the intended conveyance of the Land to an outsider, which also explained why the Father needed time to think it over. I find the Father told D the 4th Sister would return to the House that evening so D had better go up to the 1/F Unit and ask someone to bring food for her. D went to the 1/F Unit and telephoned to ask her helper to bring food/soup for her. D stayed the night at the 1/F Unit pending the Father’s reply. This explained why the 4th Sister saw another woman (ie D’s helper) at the 1/F Unit. I find this was the first evening D had food brought to her at the House.
121. I accept D had a fierce quarrel that evening with the 4th Sister who called her “狐狸精呀各樣，好難聽”. The police came again and told them to calm down. This was unsurprising as the Father was likely to have mentioned to the 4th Sister (when she returned to the House that evening) about the proposed conveyance of the Land to D, and the 4th Sister became angry over what she perceived as D’s scheme to extort their family asset albeit registered in P’s name. I am unable to place much weight on the Police Letter about this visit as it was obviously erroneous in stating the dispute concerned “a demand from [the 4th Sister] for [D] to return the money”.
122. I find P returned late at night with alcohol/beer on his breath, and they quarreled again over the torn 4th IOU and D’s request for a replacement. The police came again and told them to stop their quarrel. D went back to sleep, but a while later P “發酒癲，入咗嚟摸[D]……，[D]咁大個肚，[P]都仲要同[D]咩嘢”, so D shouted for her helper and the police came again. The Father was tired of their antics, but D said “「…… 我真係使好多錢，我已經退無可退」”. I am doubtful of the reliability of the records in the Police Letter, and find the reality was that both P and D quarreled over the business debt P owed to D, but they eventually calmed down and agreed to have a mutual discussion.
XXXVI. 23 MAY 2004 (5TH DAY)
123. Locking 1/F Unit The 4th Sister claimed she thought D would leave the House if she locked the door to the 1/F Unit. A report was made and the police came to the House. When D went downstairs to meet the police, the 4th Sister slipped into the 1/F Unit to lock the door from within. D ran back to shout/yell and to kick the door, but when she went downstairs the 4th Sister locked the door and returned to the G/F Unit. D still refused to leave and threatened to pee and poop on the staircase. The 4th Sister returned to her own home, and later learnt D returned to the 1/F Unit to shout her Threats after she had her keys brought to her. But P gave a different account by saying the 4th Sister locked the 1/F Unit when D went downstairs to pick up her meal, and when D discovered the door to the 1/F Unit was locked she kicked up a fuss by shouting at the staircase so the police was called to the House. Such differences rendered both accounts unreliable. Further, the veracity of the 4th Sister’s account relied heavily on her belief that D did not have the keys to the 1/F Unit, but such belief was belied by evidence from the Mother, P and also the 4th Sister herself that they knew D had such keys.[58]
124. I accept D stayed at the House all day on 23 May 2004 to wait for the Father’s reply as to conveyance of the Land. As seen above, although the parties’ negotiations were speckled with heated disputes, there was no determined refusal by D to leave the House. Rather, it was the 4th Sister who (a) fiercely disliked D, (b) did not want to give any money to D and (c) wanted D out of their hair, which explained why she took matters into her own hands. But P (who truly owed D money) and the Father (to whom D made her request for conveyance of the Land) knew there had to be negotiations for a realistic solution. I prefer D’s frank admission she had no idea who locked the door to the 1/F Unit, but since she had the keys to the 1/F Unit it was pointless for her to (and she did not) kick up any fuss.
125. I also accept (a) the Father later told D the 4th Sister would return soon so he asked D to go to the 1/F Unit to avoid her, (b) he brought D a bowl of rice in the afternoon, (c) P asked D’s elder sister to come to the House on 23 May 2004, and D quarreled with her elder sister whom she thought had a “relationship” with P, so a report was made and the police came at about 2:00 pm, (e) the police asked both P and D to proceed by way of a civil claim and they agreed. The Police Letter recorded as follows:
Date |
Time(hours) |
Gist |
23 MAY 2004 |
1448 |
[P] was involved in a dispute with his ex-girlfriend [D] at [the House]. The dispute was over a demand from [D] for [P] to return her money (over 1 million HKD). She was advised to take civil action. |
Such asterisked record meant P disagreed with some aspects, but he did not say which parts were disagreed. But the police noted D demanded “return her money (over 1 million HKD)”, which exploded the 4th Sister’s suggestion that she thought the demand was for LE/HM of a modest sum.
126. Mak P did not (as Lam suggested on 20 May 2004) invite Mak over until 23 May 2004 even though (on P’s case) there was no one better to refute D’s allegations about P’s/Mak’s involvement in the Business. P tried to brush this aside by saying he seldom liaised with Mak by then, but he had no trouble contacting Mak on 23 May 2004. In my view, P dragged his feet because he knew what D said about the Two Shares was true, and his overture to Mak on 23 May 2004 was half-hearted and in the end Mak did not go to the House at all.
127. I do not believe Mak when he said (a) P asked him for help because D was throwing things about at the House and/or (b) he had no idea P had taken up the Third Share vis-à-vis D, but at least he admitted P told him over the telephone D was chasing P for money due to business loss and claiming Mak had a share in the Business. In my view, any suggestion that D’s demand was for LE/HM was an unreliable attempt to justify the Harassment/Threats/Noise/duress for undermining the 5th and 6th IOUs.
128. P said after the police left the House he went to TP Station and asked Mak to divert there. Mak claimed (a) when he arrived at the TP Station he heard the police telling P and others nothing could be done as D was not a trespasser, (b) he learnt from P that D demanded money for business loss over the Leisure Centre and an amount was mentioned, but (c) since it was just one person’s word against that of another he did not wish to be involved and declined to go to the House. In my view, P only approached Mak because Lam made the suggestion, but Mak declined to go to the House and P did not press him because they knew there was truth in D’s demands so they shied away from confrontation with her. Whilst I do not accept P’s/ Mak’s above evidence insofar as it contradicted D’s case, at least Mak confirmed D’s demand was for a business debt (and not LE/HM).
129. Leaving the House I find D further discussed with the Father who said he needed more time to think over the matter, and D asked them for a replacement IOU. D left the House with her helper that evening because her mobile telephone broke down, and she had to get money from ATM to buy a mobile telephone. This was borne out by the entry in the passbook for her account with the Hongkong and Shanghai Bank (“HSBC Account”) on 23 May 2004 for “ATM” withdrawal of HK$2,000. This objective evidence provided strong support for D’s case that she voluntarily left the House on 23 May 2004 (just 2 days before the 5th and 6th IOUs), and dealt a severe blow to P’s case that she harassed/threatened him, his family and fellow villagers by refusing to leave the House.
XXXVII. 24 MAY 2004 (6TH DAY)
130. I accept D’s account of how the Draft in paragraph 141 below and the 5th IOU were made/signed. They were not written at D’s dictation nor made under duress due to the Harassment/Threats/Noise and D’s refusal to leave the House, which were not even “a” reason for P to enter into such IOU. Rather, D made significant concessions to accommodate P’s impecuniosities. Had P pretended to make/sign the 5th IOU under duress, there was little reason why D did not press for more significant upfront payment and/or immediate conveyance of the Half Land. As D said, “有冇人咁傻，威逼威逼十五年咁耐呀？十五年仲每個月$4,300，即係[D]要威逼[P]百幾次咁多，人都癲喇，[P]根本就係想賴貓，每一次簽借據、每一次減，每一次簽借據、每一次減”. I find the 5th IOU was the result of voluntary bargaining/agreement, and P made/signed it freely and willingly as he was truly indebted to D.
131. Preliminary discussions The 4th Sister said P told her in the evening of 24 May 2004 D was willing to put forward terms for discussion, so Lam went to tell D they would discuss with her. When the 4th Sister was questioned on how D notified them she was willing to discuss terms, she brushed this aside as an unimportant detail. However, I find it significant that P was unable to offer any credible reason for D’s about face after 5 days of determined Harassment/Threats/Noise and refusal to discuss terms. I prefer D’s case that she discussed with the Father by telephone on the night of 23 May 2004 and during the day on 24 May 2004, and she also telephoned to ask P to give her a replacement IOU. The Father told D it was impossible for P to repay over RMB2,000,000 saying “「妳減啲，百零萬就還到囉」”, and he also relented over conveyance of the Land saying “話算喇，[the Father]話--即係費事搞到家嘈屋閉，[the Father]話「欠妳嘅，咁就還番畀妳，唔好講喇。」”, so in the early hours of 25 May 2004 and in tandem with the 5th IOU the Father gave the following written declaration witnessed by the 4th Sister (“Father’s Declaration”):
“聲明
本人[the Father],身份證號碼xxxxxxx(x)在此聲明:保証於地段DD7 Lot1127上沒有任何權益,所有擁有權屬於兒子[P]身份證號碼xxxxxxx(x),[the Father]本人決不參與任何事宜。
[signature]
[the Father] (身份證號碼xxxxxxx(x))
25/5/2004
見証人 [4th Sister] (xxxxxxx(x))”
I find it was pursuant to such understanding that P asked D to come over to the House to discuss terms to resolve the matter, so D went alone to the G/F Unit at about 6:00 pm on 24 May 2004.
132. P claimed that in the evening of 24 May 2004 he asked Lam/Lai to go to the House to reason with D. Lai said P telephoned to tell him D was still causing trouble and refusing to leave the House, and to ask him to go there to persuade D to leave. When Lai arrived he saw D shouting/yelling at the 1/F Unit, threatening to kill P’s whole family and then herself, and throwing objects from the 1/F Unit to the ground floor, and the police was outside on the ground floor and about to leave. I reject such evidence. First, if D were making the Harassment/Threats/Noise and throwing things from height, I do not understand why the police would make ready to leave and not put a stop to D’s antics. Secondly, there was no record of such police visit in the Police Letter although the records therein went up to 22 June 2004. Thirdly, D had no reason to throw tantrums because even on the 4th Sister’s evidence D was by then willing to discuss terms with them. But interestingly Lai said (a) “……[D]鬧[P]欠[D]錢,說[P]和[D]做生意虧本, 要[D]還錢,好像是百多萬”, (b) when P denied having gone into business with D she retorted he did have a share, and (c) P and D had an argument with D demanding P to sign an IOU. Such evidence plainly exploded P’s case (and the 4th Sister’s evidence) that until P wrote the Draft and/or 5th IOU it was thought P merely demanded for LE/HM.
133. Witnesses I find (a) when P telephoned to tell D to come over to the House to discuss/conclude terms D suggested (and P agreed) to have witnesses for the replacement IOU, (b) when D arrived she discussed briefly with the Father, (c) D wanted the 2 village heads to be the witnesses but the elderly village head declined and “其實[P]同[Lam, ie deputy village head]講話可能要幫[P]簽份嘢，係夜晚黑嘅較早嗰段時間嘅，……即係唔係話八、九點嗰段時間，係較早前少少嘅”, but “……[Lam]話嗰晚唔得喎，[Lam]有事要返大陸喎，……咁[P]先至搵咗[Lai]嘅……”, (d) Lai arrived and then Lam turned up at 9:00 pm -10:00 pm, and (e) P asked Lai and the 4th Sister to be his witnesses. On the other hand, Wong was at work and D asked Wong Brother to be her witness. Wong Brother said D telephoned at about 6:00 pm - 7:00 pm to tell him she was negotiating with P over a business debt he owed to her and expecting an agreement to be reached, and to ask him to be her witness. Wong Brother agreed after giving the matter some thought.
134. Mr Wong submitted the money dispute could not have been business-related since the 5th IOU was made in the presence of family/ friends who were there to oversee resolution of the Harassment/Threats/ Noise made by P’s ex-girlfriend D, and the making of the 5th IOU from about 6:00 pm on 24 May 2004 to the early hours on 25 May 2004 spoke of severe pressure imposed on P. Such submissions did not sit well with my findings that the IOUs were for business debt. In my view, both parties arranged for witnesses because they expected to resolve their money dispute that night by signing a replacement IOU premised on discussions that started in Taipo Market on 22 May 2004 which led to the preliminary understanding on 24 May 2004. Moreover, having family/friends as witnesses did not necessarily mean the 5th IOU was about personal matters. Anyway, the timing of the 5th IOU was dictated not by D but by the Father making up his mind over conveyance of the Land and P inviting D over to discuss/finalise terms.
135. Discussion by P’s camp Lam said he did not wish to become involved in P’s money dispute with his ex-girlfriend, and he wanted to leave as soon as possible, so when he, P, Lai and the 4th Sister (“Four”) discussed how to resolve the matter, he suggested P should pretend to sign whatever D proposed and not bother to bargain/negotiate with D. Lam said once they decided on such plan he went with P to see D, and then they went to discuss with D. Lam did not know or bother about what amount D sought because he expected P would later resile from what he would sign under pretence.
136. P claimed that at the G/F Unit P, Lai and Lam(unsure whether the 4th Sister was involved) discussed how to remove D from the House, and they decided to “……假意答應[D]的要求”, “……即係話簽咗先喇”, “……整走[D]先，至於其實簽乜未知嘅，都係個所謂嘅債務喇，凈係知係咁多㗎咋”. P said “[D]嗰陣時係講過嘅，一百四十幾萬咁樣嘅，有講過嘅”, but even though he thought it unreasonable, “[P]冇理由到時仲傾緊合唔合理，當時已經係講就係話點樣去處理呢個問題……”
137. The 4th Sister said (a) the Four did not discuss/form any plan at the G/F Unit, (b) P knew the purpose of going to the 1/F Unit was to find out the amount D wanted, (c) she was against giving money to D but agreed to discuss with D in order to get her out of the House which she would not have done had the dispute been about business matters. This did not sit well with the accounts given by P and Lam that D demanded for repayment of business debt due to her,[59] and they firmed up the action plan for P to pretend to agree/sign whatever D requested before they went to see D.
138. As for Lai, he said he did not even enter the G/F Unit but met P and the 4th Sister at the ground floor. Secondly, Lai gave confusing evidence as to when he went to the 1/F Unit: he said P and D were at the 1/F Unit when he went there and then the 4th Sister came up, but when pressed he was unsure whether he went there before the 4th Sister, and still later he said he went there with P and 4th Sister. Thirdly, Lai initially said he went straight up to the 1/F Unit after he arrived, later he said he could not recall whether he had a discussion with P and the 4th Sister first, and still later he said he stayed on the ground floor outside the House for 8-10 minutes with P and the 4th Sister before the three of them went together to the 1/F Unit. Like the 4th Sister, Lai also claimed they went to the 1/F Unit to understand the situation without any plan to sign any IOU under pretence.
139. In my view, the Four made up their evidence as they went along which resulted in florid contradictions. I reject any alleged plan for P to pretend to accede to D’s demand for payment and/or to sign any IOU that D might request in order to stop the Harassment/Threats/Noise and to get D to leave the House with a view to resile from such IOU afterwards.
140. 5th IOU P claimed D prepared the contents of the 5th IOU beforehand and made him write it at her dictation, and although he disagreed with the terms he signed it because he wanted D to leave the House. But I prefer D’s evidence that at about 11:00 pm the Father told them to up to the 1/F Unit. The Father said P, who was then a pizza delivery worker, was “好兜踎”, and asked D for a haircut to the debt P owed her. Then Wong Brother arrived, and P and D went downstairs to open the metal gate for him. I agree with Wong Brother that apart from P and D there were 3 men (the Father, Lam and Lai) and 1 woman (the 4th Sister) at the 1/F Unit. I find D had to make concessions during the negotiations because (a) she had lost the 4th IOU, (b) P insisted he was impecunious, and (c) P’s family said P would walk away from the negotiations if she did not agree. In my view, such IOU was the result of several hours of voluntary negotiations, and eventually P signed it freely and willingly (“5th IOU”):
“協議
本人[P]，身份證号碼號碼xxxxxxx(x)於1999年尾與[D], 身份證號碼xxxxxxx(x), 在深圳鳳凰路麗斯大厦五樓經營美容休閑城，至2002年尾結業，本人共欠下[D]壹佰肆拾叁萬壹仟貳佰元正，分期欠[P’s initials]付款如下:
拾萬叁仟貳佰元正 |
27/5/04前交還 |
叁萬元正 |
3/7/04前交還 |
貳萬仟元正 |
3/8/04前交還 |
餘下款項月供$4300,共15年攤還,由6/2004至5/2019,另加農地5000呎,雙方同意呎價為$100,地點: DD7 Lot 1127 Memorial No 436129。
每月五號前必需交予[D],如斷供二期,則必須一次過付清以上款項。
木人謹誠發誓,以上所作為事實之全部,並無虛言,並無任何恐嚇、威逼成份,出于自身願意。本人願意。
見證人: |
[Lai’s signature] |
ID No xxxxxxx(x) |
欠款人[D] [signature]
ID xxxxxxx(x)
25/5/2004” |
見證人: |
[4thSister’s signature] |
ID No xxxxxxx(x) |
見證人: |
[Wong Brother’s signature] |
ID No xxxxxxx(x) |
141. There was a draft before P wrote/signed the 5th IOU (“Draft”):
“協議
本人[P]，身份證号碼號碼xxxxxxx(x),於1999年尾,與[D], 身份證號碼xxxxxxx(x), 在深圳鳳凰路麗斯大厦五樓經營美容休閑城，至2002年尾結業，本人共欠下[D]143 萬1仟2佰元，分期付款如下:
| [illegible] |
10萬3仟2 |
|
| 壹 貳 |
壹 叁 |
$103,200.0 |
27/5/04前交 |
| 叁 肆 |
四 |
$30,000 |
3/7/04前交 |
| 伍 陸 |
|
$24,000 |
3/8/04前交 |
| 柒 捌 |
餘下款項月供$4300,共1517年,由6/042004至5/192019另加農地5000呎,∠估計雙方同意呎價$100,[illegible]地點 DD7 Lot 1127→ Memorial No 436129。 |
| 玖 拾 |
每月五號前,必須交予[D],如斷供∠二期,則必須一次過付清。
木人謹誠發誓,以上所作之為事實之全部,並無虛言,並無任何恐嚇、威逼成分,出于自身願意。本人願意。” |
[plain font in P’s handwriting and italics in D’s handwriting]
142. HK$1,431,200 I agree with Wong Brother that the discussions centred on P’s inability to repay, but despite some disagreements there were no serious quarrels or heated arguments. I find P and his family pressed for reduction of the agreed debt of RMB2,160,000 under the 3rd/4th IOU, which was eventually whittled down to HK$1,431,200 (ie reduction of over HK$700,000). In the course of the negotiations, D used calculator/pen/paper to work out the reduction, saying he had not taken so much money from the Leisure Centre, he had made some repayments over the years, and he had spent money on meals etc. D cried and protested, but “佢哋屋企軟硬兼施，[the Father]就軟嘅，佢哋就硬嘅，軟硬兼施咁樣逼[D]減價嘅，係掉轉嚟，唔係[D]逼[P]，係佢哋逼[D]減價，…… 而[D]就冇辦法，而[P]就話「就係咁多，妳要唔要？唔要，妳就攬住廢紙過世。」”. Later P offered to repay in HK$, which D took as a small token of sincerity since HK$ was a little stronger than RMB at that time. Finally, she gave in because the 4th IOU was destroyed and she was anxious to secure a firm written commitment from P. I do not see any need for the parties to expressly recite the original debt of RMB2,160,000 in the homemade 5th IOU when they agreed to reduce it to HK$1,431,200.
143. Wong Brother corroborated D’s account that she finally agreed to reduce the debt to about HK$1,400,000 odd, and that the Father promised to urge P to repay as soon as possible. Mr Wong submitted that an uneventful atmosphere (as suggested by Wong Brother) would not have precluded P’s case that he pretended to sign the 5th IOU to get D to leave the House, but in my view this was belied by the unreliable inconsistencies in the Four’s evidence as to what happened at the 1/F Unit.
144. P claimed as a result of heated bargaining and loud (but not ferocious) quarrels he and his family whittled down the business debt he allegedly owed D to HK$1,431,200, but this did not sit well with his own evidence that the Four had agreed on anaction plan to accede to D’s demands under pretence (and Lam even said there was no need/point to bargain with D). In my view, the negotiations over the debt amount and terms of repayment could only mean they were no pretence, and I find P (and his family) voluntarily negotiated with D for a mutually acceptable haircut to the debt due to D.
145. The 4th Sister claimed that (a) throughout 19-24 May 2004 up until P started to write the Draft at D’s dictation D only said P owed “woman” money without mention of any business debt, so she assumed D’s demand was a few months of unpaid LE/HM or some money for the birth of D’s baby, (b) it was only when D dictated the 5/F address of the Leisure Centre and the amount of HK$1,431,200 that she realised D changed her demand to one for repayment of business debt for the Business, but she felt “…… [D]就係攞唔到家用，[D]就監硬安一樣嘢嚟講” to extort money from her family, (c) P and D quarreled angrily over this as P wrote the Draft at D’s dictation,[60] but she did not help P because “你死你事，你自己搞這個女人”. But these assertions wholly contradicted the evidence of P, Mak and Lam that D claimed for business debt from early on in the 5/04 Incident, and indeed the 4th Sister’s own statement evidence confirmed D told her on 19 May 2004 “[D]的生意是同[P]合伙的, 一切有單有據”. The 4th Sister’s evidence also did not sit well with Lam’s evidence that the atmosphere was unremarkable without any ferocious quarrel, and also with Lai’s evidence that by the time P wrote the Draft there was no strong quarrel/bargaining by him. But more importantly, if the plan was to “敷衍” D by signing the 5th IOU under pretence, there was little point in negotiations/quarrels with D over the contents of the 5th IOU including the money amounts therein. The 4th Sister tried to explain this away by suggesting she and P wanted D to think they were serious in persuading her to leave the House. In my view, this was a belated afterthought. I find the 4th Sister’s evidence unreliable, and hold that the 5th IOU was the result of free and willing bargain/ agreement between P and D.
146. The matter was compounded by Lai’s evidence (which I reject) that they heard noises as they went up to the 1/F Unit, and D was agitatedly throwing things around and shouting “要生要死，要殺全家”. None of P, Lam and the 4th Sister mentioned this, and since D was prepared to talk terms by that time I find no reason for her to throw tantrums. Lai went on to say the Leisure Centre’s business loss was the theme of loud/noisy quarrels between P and D at the 1/F Unit, and D was even more agitated than when he saw her previously during the 5/04 Incident: (a) D claimed the Business which P/Mak had interest was initially profitable but later suffered loss for which P was liable for HK$1,000,000 (with no particulars given), (b) D required P to sign IOU for LE/HM that P promised but did not pay as well as compensation for such business loss, and (c) P and D quarreled over these matters with P strongly denying D’s demands and saying he only gave money to help D (his then girlfriend) operate her Leisure Centre. I reject such evidence as I have found (i) P had interest/share in the Business, (ii) P owed D RMB2,160,000 under the 3rd/4th IOU, and (iii) D’s demands were for such business debt and not LE/HM. Lam confessed by this time D was “平靜” and willing to discuss terms, which plainly demonstrated Lai’s unreliable attempt to “overegg the pudding” to support P.
147. Lai’s evidence gave rise to even more concern when he went on to say he went with P and the 4th Sister to the first floor staircase landing outside the 1/F Unit to discuss for about 15-20 minutes on whether or not P should agree to D’s demand to get her to leave the House. He said since they could not think of any other solution, someone (Lai could not remember who) suggested (and they all agreed) P should pretend to sign the IOU D sought and think of the next step after D departed. Lai went on to say that when they returned to the 1/F Unit, although P still “激動講過埋怨說話”, the atmosphere was generally calm (平靜) with some arguments over the repayment terms by the time P started to write the Draft at D’s dictation. When P asked D to state the amount she wanted, D told him the business debt for the Leisure Centre was HK$1,431,200. D explained how this sum was arrived at (which was inconsistent with P’s and the 4th Sister’s evidence that no particulars were given), but P did not bargain over such sum because signing the 5th IOU was just a pretence and D would not leave if he disagreed.
148. I reject Lai’s account. First, P, Lam and the 4th Sister did not mention any discussion on strategy at the first floor staircase landing outside the 1/F Unit. Secondly, Lai’s evidence was self-contradictory: he claimed no money amount was referred to until D mentioned HK$1,431,200 (with explanation how this sum was arrived at) when they returned to the 1/F Unit after discussion at the staircase landing, but he also said when they went up to the 1/F Unit D told them P had to repay to her about HK$1,000,000 odd (with no details given). In fact, Lai knew P demanded repayment of business debt from the discussions between P and D at Taipo Market. Thirdly, Lai’s allegation that P simply acceded to the sum of HK$1,431,200 without quarrel/bargaining contradicted the assertions of strenuous dispute by P and the 4th Sister.
149. Lam also gave a different account. He said the attitude of P and D were unremarkable with no fierce quarrel, scolding and/or intimidating words, which did not sit well with the accounts by P and the 4th Sister or with Lai’s evidence that D threw tantrums as they went up to the 1/F Unit. Lam said at the 1/F Unit P and D stepped aside to have a discussion so he did not overhear what they said. Lam’s account (with little specificity) was so wholly different from that of P, Lai and the 4th Sister that it bore the hallmarks of a witness trying to distance himself from any involvement in the incident, and indeed Lam confessed that was his intention. On balance, I reject the evidence of P and his witnesses on what happened at the 1/F Unit.
150. Writing the Draft and 5th IOU The 4th Sister claimed that at the 1/F Unit P asked D what she wanted in order to leave, and after scolding them for a while D asked P to bring out pen/paper (which he did). P said D required an IOU so he asked her to write it, but D insisted he should write at her dictation, which he eventually complied as he was “任人魚肉”. P, the 4th Sister and Lai claimed that as P wrote the top half of the Draft he threw down his pen many times and said “咁都得”, then D became impatient with P whom she thought wrote too reluctantly/slowly and who did not know 大寫, so she seized the Draft to write 大寫, to make corrections and to write the bottom part for P to copy into the 5th IOU (which P did).
151. But I prefer D’s account (as corroborated by Wong Brother) on how the Draft and 5th IOU came to be written. P took out pen/paper, and D wrote “協議” thereon. Even though the 5th IOU was in substance an IOU with obligations to be performed by P and not D, I am unsurprised P and D as lay persons viewed the negotiated terms as “協議”. I further find D intended to write the 5th IOU herself, but P took her pen and started to write as they negotiated/discussed. Despite some disagreements, there were no real quarrels or heated arguments. I accept that after P wrote the top part of the Draft, he showed it to D and asked whether she had anything to add/correct. D asked P to write in 大寫 but P did not know how, so D wrote on the far left margin for P’s reference. The 4th Sister thought (and probably wrote) 大寫 for 4 was “” (which character was adopted in the 5th IOU). D then wrote the bottom part of the Draft, and reminded P to make instalment repayments before the 5th day of each month. I accept it was agreed after discussion that acceleration of payment would be triggered by default in paying 2 instalments. P then copied the Draft into the 5th IOU, and initialled over the clerical error “欠”.
152. Half Land I prefer D’s case that conveyance of the Half Land was included as a term of repayment because P was financially unable to repay his debt in full and the Father gave his blessing for such conveyance. D wanted the entire Land but P refused. I disagree the absence of particulars as to the precise location of the Half Land showed the 5th IOU was designed to let D have the upper hand over P. In fact, this only served to increase D’s difficulties in compelling conveyance of the Half Land to her, and indeed P opposed specific performance on this ground in the present action.
153. As explained in footnote 47 above, D became aware of the Land when she first stayed at the House after coming to HK, and P told her the Land was his. P claimed D knew the lot number of the Land before 24 May 2004 because he showed to her 執照 (land registration record) issued to the Father by the District Office, which document later disappeared and which P thought D took away. On such basis, P said he did not have 執照 to hand when he wrote the lot and memorial numbers at D’s dictation.
154. But I do not accept D took away 執照. After all, D said (and the 4th Sister agreed) she did not hold anything in her hand when the Draft and 5th IOU were written, and Lai said this seemed to be the case. I do not believe D recited the lot and memorial numbers by heart to dictate to D. I prefer D’s evidence that when the 4th Sister read the Draft, she scolded P for not specifying the Half Land, so P went to get “土地證” to write down the memorial number. Indeed, the 4th Sister agreed P knew the details of the Land so it might be (but she was not sure) P who wrote those details himself. Such findings undermined P’s assertion that he wrote the Draft and 5th IOU at D’s dictation, which allegation I believe was made up to bolster his case on the alleged duress.
155. Lai said there were dispute/quarrel between P and D over the unit value of the Half Land during to and fro negotiations. I accept D thought HK$100 per sq ft was too high, but P thought it should be higher (which would reduce the amount of cash repayment under the 5th IOU). In reality the Land was not worth much since (according to the 4th Sister) it had no proper access, and I find P knew this but had to put up the Half Land because he did not have much money. I find D finally agreed to HK$100 per sq ft as she felt she did not have sufficient bargaining power without the 4th IOU. In my view, such quarrel/debate over the unit value of the Half Land undermined P’s case as it reflected genuine negotiations/agreement (as further reflected in the alteration of such unit value from “估計” to “雙方同意” in the Draft).
156. 3 lump sum payments The 5th IOU provided for inter alia 3 lump sum payments of HK$103,200 on/before 27 May 2004, HK$30,000 on/before 3 July 2004 and HK$24,000 on/before 3 August 2004. P and the 4th Sister claimed that since P wrote as D dictated so there was no discussion about these payments except “[D]話驚[P]早死，畀咗最後嗰兩年錢先。嗰兩年嘅錢就係$4,300乘兩年嘅錢，就等於103,200鈫”, but “……[P]當然係唔肯喇”. But I find it was P who proposed those payments because P would have expected D would require some upfront cash repayment given his default under the earlier IOUs, and only P would know how much money he could financially afford to pay on what day. I prefer D’s case that once she agreed to the debt haircut to reduce the debt to HK$1,431,200, she did not bother to argue or ascertain why P proposed these 3 lump sum payments for fear that further dispute might cause P to retract from the understanding about conveyance of the Half Land to her.
157. Instalment payments I prefer D’s case (as corroborated by Wong Brother’s evidence) that (a) P claimed he did not have much savings and after taking into account personal expenses he could only afford to repay HK$4,300/month, and (b) D considered HK$4,300/month was too little, “即係[D]仲要畀[P]夭十五年，[D]會好難接受咁樣”, and feared it would be worth even less in 15 years. But upon recalling some of P’s previous repayments to her were about HK$3,500 or HK$4,200, D feared the more she bargained the worse it would be for her, and she finally agreed to HK$4,300/month to be repaid over 15 years. When she read the Draft, she noticed D wrote 17 instead of 15 years, and she reminded him to correct this otherwise there would be overpayment.
158. P and the 4th Sister claimed the monthly payments of HK$4,300 were for the Mtge Payments of the 2nd SZ Flat, “……[D]話「如果你唔係應承同我供嗰層樓嘅，我就唔會--唔會買㗎喇，咁而家你咪一鑊翹起我嘅啫。」咁樣”, “……咁[the 4th Sister]咪話[P] ……「你何來要--要畀家用佢㗎？」”, but D retorted “「妳細佬應承過養我一世㗎」”. P said it was D who dictated the repayment period of 15 years, “其實嚟嚟去去都係一百四十幾萬化出嚟嘅啫，[P]既然去得同[D]搞呢份協議，細節嘅嘢[P]都無謂去問喇”. But such contentions were belied by Lai’s evidence that it was P who suggested payment by instalments because he could not pay the full sum in one go, and the sum of HK$4,300/month seemed to be result of negotiations between P and D, and they both discussed the repayment period to arrive at 15 years. Lai said there were some quarrels between P and D about this but it was not serious.
159. In my view, neither the agreed debt of HK$1,431,200 nor the monthly instalment of HK$4,300 concerned LE/HM. Rather, they were the reduced debt after negotiated haircut and the instalment payments for part payment of such reduced debt to accommodate P’s impecuniosities. I reject P’s case in this respect as well as the 4th Sister’s claim that she refused D’s request for her to assume responsibility for the instalment payments if P defaulted. I note none of P, Lai and Lam referred to this at all.
160. Declaration of voluntariness In my view, P did not object to the declaration of voluntariness at the bottom part of the Draft otherwise he would not have copied it into the 5th IOU. Mr Wong submitted such declaration was self-serving and displayed a style similar to that found in 保証書 D gave in 2001. But in paragraphs 67-70 above I have found 保証書 was not created by D although she copied/signed it. I find on balance P freely and willingly agreed to the declaration of voluntariness D wrote in the Draft.
161. Aftermath P copied the 5th IOU from the Draft. P wrote his identity card number and signed the 5th IOU, and he asked Lai and the 4th Sister to sign as witnesses. I do not accept the 4th Sister signed because “無奈”, “不願被迫” and “送慍神”. Wong Brother also signed as witness. D did not sign the 5th IOU. I disagree this demonstrated D had the upper hand over P, and prefer D’s explanation that she was aggrieved by the severe debt haircut and she would not recognise P’s witnesses as she felt the 4th Sister was biased in pushing for the debt haircut whilst Lai always spoke up for P. In any event, as Ng explained for the 6th IOU, there was no legal need for D to sign the 5th IOU. Further, I cannot see how D had the upper hand when the 5th IOU provided for a significant debt haircut, an extended repayment period and conveyance of agricultural land in lieu of cash repayment.
162. At the 1/F Unit, the 4th Sister asked whether P would be able to make the first payment of HK$103,200 under the 5th IOU on/before 27 May 2004. P said he had no money, and the 4th Sister said she would pay for him. I do not believe the 4th Sister said so just to “敷衍” D. The matter concluded in the early morning on 25 May 2004. D took away the original and left the Draft on the table (rather than threw it into the rubbish bin). P guided Wong Brother out of the Village after he declined P’s polite offer of night snack and beer.
XXXVIII. 25 MAY 2004 (7th DAY)
163. Ng’s retainer P claimed D had second thoughts after the 5th IOU was signed, and she required him to sign a confirmatory IOU before a solicitor and to pay her HK$103,200 before she would leave the House, and although he agreed “但心意卻是不甘心情願”. P further claimed he went alone to see Ng at the Office in the afternoon on 25 May 2004 whilst D remained at the House.
164. I prefer D’s evidence that given P’s failure to comply with previous IOUs, D indicated (and there was mutual expectation) even before the 5th IOU was made that the replacement IOU should be witnessed by a solicitor. Mr Wong submitted this was an afterthought as the parties could not have made telephone enquiries for solicitor fee-quotes when the 5th IOU was made in the early hours of 25 May 2004. I disagree. As I have found, when D went to the House at about 6:00 pm on 24 May 2004 both the elderly village head and Lam declined to be witnesses for the IOU to be signed, so it was unsurprising that D wanted the IOU to be witnessed by a trustworthy/ respected person such as a solicitor. I find P had no objection, and it was not too late in the day to make preliminary telephone enquiries for fee-quotes. I do not see why such agreed arrangement had to be expressly specified in the homemade 5th IOU, and even if it were an afterthought (but I disagree), D said (and Ng confirmed) the purpose was to ensure the IOU would be legally binding/enforceable. It was not any act of harassment/duress.
165. I prefer D’s case that in the morning on 25 May 2004 she telephoned/explained to Ng “「我上次見過你嘅，話嗰個人唔肯還錢，咁就跟住搵到佢喇，即係佢要補番張畀我。」咁[D]同[Ng]講囉，想搵[Ng]做見證咁樣”. Ng explained that the contents of the IOU had to be accurate and the borrower had to give the IOU voluntarily. He asked for P to confirm the contents of the IOU so he could prepare the documentation. D then let P speak with Ng to fix an appointment, and “[P]有講[P]係同[D]已經達成咗協議架喇，[P]之前已經簽咗個協議喺度架喇，…… 因為[P]話[D]仍然係擔心嗰個協議就冇乜法律效力，所以就希望喺律師面前再簽一次，[P]話[P]同意呢樣，[P]會喺律師面前簽多次，所以就叫[Ng]幫[P]哋準備嗰張借據嘅”. Ng then asked and P confirmed some contents of the 5th IOU. Ng also requested P to give him a copy of the 5th IOU.
166. Ng’s evidence (which I accept) showed P was willing to make an IOU before a solicitor, and I do not believe P pretended to sign the 6th IOU to get D to leave the House. In fact, D left the House with P that morning, ie P went to the Office to sign the 6th IOU and D returned to Tak Bo Mall. D (who kept the 5th IOU) did not go to the Office with P, but Ng received a copy of the 5th IOU by fax. There was no fax machine at the House, so D must have left the House to fax the 5th IOU to Ng. I prefer D’s case that after they left the House P telephoned to ask her to fax a copy of the 5th IOU to the Office which she did. This exploded P’s allegation that D refused to leave until 27 May 2004 in order to force P to go to the Office to sign the 6th IOU and to pay her HK$103,200.
167. 6th IOU P went alone to the Office around noon on 25 May 2004. Before that Ng amended the typed version of the 5th IOU that he caused to be prepared, and he discussed the amended draft with P. Then Ng finalised the IOU and witnessed (and signed against) P’s signature thereon (“6th IOU”), and P left with a photocopy of the signed 6th IOU as follows:
“借據
本人，[P] (身份證號碼 xxxxxxx(x))，於一九九九年尾與[D] (身份證號碼 xxxxxxx(x))，在中國深圳鳳凰路麗新大厦五樓經營美容休閒城，至二零零二年尾結業，本人共欠下[D]壹佰拾叁萬壹仟貳佰元正(“欠債”)，本人將以下列方式歸還:
(1) 將DD7 LOT1127內的五千呎土地，於16/06/2004前無償轉讓給[D]，以償還港幣五拾萬元的債項(即呎價一佰元)。如不能如期轉讓，則必須一次過付清欠債餘額。
(2) 部份欠債分期交還如下:
港幣拾萬叁仟貳佰元正 |
27/05/2004前交還 |
港幣叁萬元正 |
03/07/2004前交還 |
港幣貳萬仟元正 |
03/08/2004前交還 |
如不能如期交還，則必須一次過付清欠債餘額。
餘下欠債，共分十五年按月攤還，由二零零四年六月至二零一九年五月，每月五號前付港幣仟叁佰元予[D]，如斷供二期，則必須一次過付清欠債餘額。
本人謹誠發誓，以上所作為事實之全部,並無虛言,並無任何恐嚇、威逼成份,出于自身願意。本人願意。
2004年5月25日
欠款人: [P’s signature]
見證人: [Ng’s signature and name chop]”
168. I prefer Ng’s evidence that throughout the meeting he chatted pleasantly with P who did not appear to be unwilling or under difficulty. I do not agree P was upset when Ng told him D would not come to the Office and/or P had a serious quarrel with D over the telephone but she still refused to come to the Office. Even on P’s case, since P claimed he went to the Office to sign the 6th IOU because D refused to leave the House, he would not have expected her to leave the House to go at the Office. In fact, I have found D had left the House with P, so he must have known D would not go to the Office. After commencement of the present action, on learning that D did not turn up at the Office the 4th Sister berated P for being stupid in signing the 6th IOU, and I find P’s alleged telephone conversation with D to be an unreliable afterthought.
169. It was common ground Ng asked P whether he was willing to sign the 6th IOU. According to P, “[P]當時嘅回覆就係[P]係唔願意簽，但係[P]唔簽唔得，[P]冇辦法唔簽……但係[P]冇再解釋原因”. P admitted Ng seemed to have told him to think it over, but he replied there was no need because “咁[P]都表示咗唔簽唔得喇，咁咪進行囉”, so (a) Ng read the 6th IOU to P and “問過[P’s]意見，[P]係不置可否”, and (b) P’s attitude was “是但喇咁樣……因為[P]都…… 冇晒精神，亦都心不在焉喇，目的只係想快啲完成件事……冇再去仔細斟酌啲咩嘢嘅”.
170. I prefer Ng’s evidence that “其實[P]有啲意見嘅，[P]就話[D]麻煩，……當時……[P]畀[Ng]印象就係話「簽咗份協議咪得囉，點解仲要再要簽多--又要去搵個律師再簽多張--多次咁麻煩。」”, but when he asked P again whether he would agree to sign the 6th IOU, apart from being a bit annoyed, P did not express any unwillingness. In my view, since Ng took special care to ensure P gave the 6th IOU willingly, I do not believe he would have allowed P to sign the 6th IOU had P told him the matters in the above paragraph. Ng disagreed P told him “「我唔願意，但係冇辦法」”, and I accept his evidence. I also see nothing sinister in Ng jotting down a few keywords for his telephone conversations with P and D and in not making attendance note for the meeting. After all, Ng did not discern any disagreement, and he was busy discussing with P and finalising the 6th IOU.
171. Amendments: overview There were some differences between the 5th and 6th IOUs. P claimed he did not suggest any amendments and when Ng told him there were some amendments“……[P]係不置可否，因為[P]都心不在焉喇 ……”. Mr Wong criticised Ng for slanting his amendments in favour of D and for failing to give equal/fair treatment for P and D when it was Ng’s impression that he was instructed by both P and D. But as will be explained below, I find both Ng and P contributed to the amendments, and I disagree Ng (who took special care to ascertain whether P agreed with the amendments) was biased.
172. A running theme that underlined Mr Wong’s complaints about the amendments was the absence of D’s prior consent to such amendments before P signed the 6th IOU. I am not with him on such argument. Ng recalled he had read the contents of the 6th IOU and his suggested amendments to D who agreed with them. Although Ng could not recall at what stage he did so, it did not mean there was definitely no prior consent by D. Even if it was done afterwards, D clearly ratified and agreed with Ng’s amendments (which amendments P also agreed before he signed the 6th IOU), and all along D regarded the 6th IOU as binding and made no attempt whatsoever to resile from the same.
173. Further, the amendments incorporated in the 6th IOU did not alter the substance of the 5th IOU and was well within the skill/services expected of a solicitor commissioned to prepare and witness the execution of the confirmatory IOU to ensure its legal vitality. Ng said P and D asked him to witness P’s signature of the IOU,
“佢哋梗係希望嗰份文件係比原本嗰份更加完善，……喺法律上執行起上嚟更加有效，可以執行得到嘅，咁……所以就[Ng]就用[Ng]嘅法律知識，去睇過嗰份協議之後，[Ng]覺得有啲地方係有缺陷嘅，[Ng]就盡量去修補咗佢，希望令到嗰份借據係可以喺法律上可以執行嘅，而... ……而[Ng]呢個諗法呢，[Ng]應該係喺當時係有同[P]解釋過，…… 我亦都係唔記得咗係咪喺當時呢，亦都喺電話亦都同[D]解釋過。”
In my view, no criticism could be made in respect of Ng’s professional approach, and he did not discern any reluctance on the part of P. On the contrary, I find P was cooperative and willing to sign the 6th IOU. P admitted Ng prepared the 6th IOU after discussion with him, and he knew by signing the 6th IOU he was confirming the contents therein.
174. Amendment: “協議” vs “借據” Ng took the initiative to change “協議” to “借據” as the latter description was more accurate. He explained the 5th IOU was in substance an IOU to be performed (and signed) by the debtor rather than an agreement with mutual obligations, and in fact D did not sign the 5th IOU. I agree “借據” reflected the true nature of the 5th and 6th IOUs, and I further agree with Ng that D did not have to sign the 6th IOU.
175. Amendments: miscellaneous Ng suggested adding “(欠債)” after HK$1,431,200 on the 6th IOU, numbering the paragraphs, and adding “本人將以下列方式歸還” in the 4th line because “[Ng]覺得……原本嗰個排列係比較混亂嘅，所以[Ng]覺得應該逐樣講番清楚嘅”.
176. Amendments: Half Land Ng collated the provisions concerning the Half Land under paragraph (1) of the 6th IOU. Ng felt the 5th IOU was unclear as to when the Half Land was to be conveyed to D, so he suggested to P “「你最低限度畀個日子究竟幾時轉喇，你冇日子嘅話，咁呢個協議執行唔到架喎。」”. I do not agree “……[P]係冇意見，[P]當時已經係心不在焉”, and prefer Ng’s evidence that P gave the date of 16 June 2004 (as a date convenient to him for conveyance of the Half Land), and Ng inserted such date in the 6th IOU with P’s consent.
177. It was common ground (a) Ng explained to P the need for an accurate description of the location of the Half Land to be conveyed to D, (b) Ng suggested that a surveyor be engaged to measure/identify the correct location, and (c) P tried to telephone a surveyor to make enquiries but could not find him. Again, I reject P’s claim “咁[P]當時[P]都係--係冇晒意識嘅，[P]係因為好--好混亂呀，……”, and prefer Ng’s evidence that he suggested P (as owner of the Land) should sort this out first, but P declined and told Ng to proceed on the provision in the 5th IOU. Ng said “印象係[P]只要應承畀5000呎地就可以喇，而5000呎係佔嗰笪地嘅一半，[P]唔介意係嗰半喺邊度，總之係嗰笪地嘅一半”.
178. In my view, P’s specification of the deadline of 16 June 2004 and his attempt to make enquiries with a surveyor lent support to D’s case that P signed the 6th IOU freely and willingly. Had he pretended to sign under duress to remove D from the House, there was no need/point for him to further dress up the terms of repayment. P’s interaction with Ng over such amendments spoke loudly of voluntary signing of the 6th IOU. I also disagree such amendments were unfair and/or it was strange for Ng not to clarify with D on these matters before he signed the 6th IOU. Rather, Ng leaned in P’s favour by advising him to think carefully about the location of the Half Land to be conveyed (as it was his land) and when to effect the conveyance (as it should be on a date that suited him). There was no need to consult D because P finally chose to stand on the terms of the 5th IOU and as creditor she would have wanted to have the Half Land conveyed to her as soon as possible. Moreover, I disagree P had to sign the 6th IOU that day because D refused to leave the House until it was signed.
179. Amendments: default acceleration provision Ng added “部分欠債分期交還如下” and also “如不能如期交還，則必須一次過付清欠債餘款” in paragraph (2) of the 6th IOU because he thought such default acceleration clause should apply to both lump sum and instalment payments. I accept he discussed/explained such amendments with/to P who agreed with the same.
180. Spent duress? Mr Cheung submitted that if P had been subjected to duress (which was denied), it was no longer operative by the time he signed the 6th IOU. I note D was not at the Office at the material time, and P’s conversations with Ng at the Office showed he signed the 6th IOU out of his own free will. Whilst I see the force of Mr Cheung’s arguments, my primary finding was P did not make/sign the 6th IOU under duress due to D’s alleged Harassment/Threats/Noise and/or alleged refusal to leave the House. In my view, the 6th IOU was the result of voluntary negotiations between P and D from which P secured a sizable debt haircut and a long repayment period, and he voluntarily agreed to those terms.
181. Stamping and registration The 6th IOU was stamped on 10 June 2004 and registered at the Land Registry on the following day. This was not done by FWNL, but shortly afterwards D sent a copy of the registered 6th IOU to P. There was no need for the parties to agreeto the registration of the 6th IOU, the purpose of which was to give notice to third parties who might deal with the Land, and this could be done by either P or D. Also it did not alter the voluntary nature of the 6th IOU.
XXXIX. 27 MAY 2004
182. Payment of HK$103,200 26 May 2004 was a public holiday. There was no dispute that on 27 May 2004 D authorised someone to collect the original 6th IOU from FWNL, that the 4th Sister deposited HK$103,000 into the HSBC Account, and that P later repaid such sum to the 4th Sister. I have found D had left the House on 25 May 2004, so I reject P’s case that immediately after her bank deposit the 4th Sister demanded D to leave the House and P confirmed D’s departure at/about 12:00 noon. I find the 4th Sister paid HK$103,200 on P’s behalf pursuant to the 5th and 6th IOUs, and she did so out of goodwill towards P (who was in financial difficulty) and not under duress to “送慍神” (ie to get D to leave the House and cease her Harassment/Threats/Noise against the Parents and other villagers), which was why P eventually repaid such sum to D.
183. D’s declaration D signed the following declaration (“D’s Declaration”), but there was dispute as to when it was made:
“本人[D],身份證號碼xxxxxxx(x)謹此聲明:
若[P], 身份證號碼xxxxxxx(x)確切履行協議上的聲明(即[P]於25/5/04在馮黃伍林律師行所簽的聲明),[D]本人或其朋友不能騷擾[P]本人、及其親戚朋友,工作地方及居住地方,要求償還款項,否則上述之協議聲明將會作廢。
見證人[the 4th Sister] xxxxxxx(x) |
[D’s signature]
2004.5.25” |
184. I have found D left the House in the morning on 25 May 2004, so P could not have asked and/or D could not have signed D’s Declaration at the House in the evening on 25 May 2004 (as P alleged), which went a long way to support D’s case that D’s Declaration was made on 27 May 2004 when the 4th Sister asked her to return to the House to discuss an important matter. I find that at that time (a) D knew P had signed the 6th IOU but she had not seen it yet, (b) the 4th Sister demanded D to sign D’s Declaration otherwise the matter would end up in drawn-out litigation and she would not be paid, (c) D felt very aggrieved but had no fear of the contents of D’s Declaration as she did not and would not harass/disturb P and/or his family/friends, (d) but D feared P would “賴皮” (as he did for previous IOUs) and she did not want to give P any excuse to do so, (e) so D signed D’s Declaration and the 4th Sister said “「妳嗰日發生，妳寫25號嘅」”, (g) D made a report to the police so they came to check the House in order to avoid “佢哋屈[D]話嚟佢屋企整爛晒啲嘢”, and (h) after the police left D placed the keys of the 1/F Unit on table and left too. I disagree that D’s Declaration showed D previously harassed and/or employed pressure on P and his family/friends. I also need not speculate on the 4th Sister’s motive in requiring such declaration, no matter whether it was to pave the way for resiling from the 5th and 6th IOUs or otherwise.
185. Father’s declaration P claimed that in the evening on 25 May 2004 D became worried the Father might disagree with the arrangements in relation to the Half Land, so she asked for the Father’s Declaration otherwise she would not leave the House. P further claimed he had to explain to the Father why the Father’s Declaration was required, and the Father agreed to make such declaration. ButI have found D was not at the House that evening, so the Father could not have been part of the alleged “pretence” to get D to leave. Anyway, the Father had already given his blessing for conveyance of the Land (eventually negotiated down to the Half Land) before the 5th IOU was signed. I find the Father’s Declaration was signed in early hours of 25 May 2004 and not as an afterthought later that evening.
XL. AFTER 27 MAY 2004
186. HK$4,300 Given my findings, I reject P’s claim that 4 days later on 31 May 2004 “[P]仍被事情的恐懼所困擾, [P]抵受不了給[D]港幣4,300元”. But even on P’s case, his plan of action was to take steps to resile from the 5th and 6th IOUs he signed under pretence once he “escaped” from the Harassment/Threats/Noise. By that time D had signed D’s Declaration and left the House for 6 days, and P also knew he could consult lawyers for legal means to resolve the matter. I do not accept P was under any duress or any operative duress, and his voluntary payment was made to comply with the terms of the 5th and 6th IOUs.
187. Tel Calls? The Police Letter recorded another report at 8:54 pm on 22 June 2004 that “[P] alleged that he always received phone calls from his ex-girlfriend [D] over a money dispute. Our officers contacted [P] further but he told us that he had not received any more calls since July and that he didn’t want to pursue the matter any more – he refused to provide a further statement”. P did not detail which aspects of this asterisked record he did not agree/accept, so I find myself unable to place any useful weight on the same. But I accept P and D had telephone communications in June 2004 with P wishing to keep the Built HL for himself and to convey the Graves HL to D and D disputing such proposal, but such communications ceased when P refused to make any further payment to D after several heated arguments.
188. The 4th Sister claimed D continued to make the Tel Calls to her using foul language and making vile threats, so she changed her mobile telephone number and switched off her home telephone at night. P claimed D continued to harass him and his family/friends and to make the Tel Calls to his workplace to ask for LE/HM. In view of my findings above, I reject such allegations. In fact, D pursued legal remedies for P’s default under the 5th and 6th IOUs, ie her solicitors filed her counterclaim in the present action in September 2004, and she engaged PRC lawyers to commence the PRC Action in December 2008. In my view, there was no reason for D to put herself under forensic risk by making any Harassment/Threat/Tel Call when her legal counterclaim or claim was still sub judice.
189. Other harassment? P claimed (a) some friends received the Tel Calls and reported to the police, (b) D used violence against others and harassed/threatened her own mother and elder sister for money, and (c) when D looked for him in vain at the Village she engaged triad members to do so. But P did not give particulars of such bare assertions, and given his unreliability as witness I find myself unable to place weight on them.
190. Letter by P’s solicitors On 18 November 2008, P’s solicitors wrote to D’s solicitors to complain that (a) P received Tel Calls and phone messages with offensive contents from D, (b) D had gone to P’s workplace to make a scene, and (c) D had gone to the workplace of P’s friends and made “tremendous nuisance to them which has affected their work”, and to ask D to desist from such unreasonable conduct. D denied she harassed P and/or his friends. I accept P and D were in contact with each other in 2008, but it was for settlement negotiations that ultimately failed. D complained that P’s invitation to her to discuss settlement and his initiative to repay HK$1,000 in cash and HK$10,000 by deposit into the BOC Account on 26 May 2008 were just P’s underhanded litigation strategy to manufacture contact/dialogue between them to provide purported basis for the allegations in the above letter. I do not believe when D pursued legal remedy by her counterclaim in the present action and alternative remedy by settlement negotiations and/or when she was on the brink of pursuing further legal remedy against P by the PRC Action, she would continue to harass P and his family/friends. The above letter claimed “there are witnesses and evidence indicating that [D] has used abusive and offensive language in those phone calls and messages, and visit”, but P did not identify such “witnesses” or call them to give evidence and/or condescend upon the particulars of any specific incidents.
191. D’s letter to P D was held in custody in Mainland China in 2005, but denied she committed any offence of smuggling. She claimed she brought agilawood (沉香) into Mainland China as cure for her employee’s eczema condition (濕疹), and “當時[D]係畀呢班緝私局屈嘅”. Whilst in custody she wrote to P on 16 September 2005 for his help:
“……你可否幫我兩件事，你幫咗，我照計返錢俾你，息口計高點都無所謂。你先存點錢入來俾我買日用品，仲有就係一定要幫我請個律師搞取保候審，我只係帶咗約14公斤沉香過關俾羅湖海關緝私局拉咗。我一定要快點出去，我嘅兒子細個仔需要我，……… 你一定要幫我揾一個負責任的律師，請佢來揾我，我一定寫一張欠條俾佢，你幫我用咗幾多錢，浪費你幾多時間，照計埋，我一定還返俾你。……”
192. At that time, D was still thinking of arranging “搞取保候審”, so she was not a convicted felon, and she testified to her innocence and eventual vindication. I do not understand the logic in Mr Wong’s suggestion that successful businesswomen would not engage in illegal activities and/or end up in prison. It was next suggested that even on her own case D could have sued P under the 5th and 6th IOUs or asked Wong to demand repayment from P on her behalf. But one should not lose sight of D’s helplessness at the time, and her desperation for release from custody to look after her baby son. I accept it was only natural for her to beg for charity with offer of high interest for money loan rather than to demand for contractual repayment, especially when P had already commenced the present action and (whether rightly or wrongly) would not have taken kindly to any demand for repayment. Such letter spoke of D’s love/concern for her baby and did not contradict her case.
XLI. PRC ACTION
193. P initially complained D commenced/pursued the PRC Action without proper notice to him. But this complaint became irrelevant when at the retrial of the PRC Action P (with legal representation) raised contentions similar to those he put forward in the present action, and he testified and called witnesses. 深圳市羅湖區人民法院granted judgment in favour of D by 民事判決 ((2012)深羅法民二重審字第4號) dated 8 July 2013 (“Retrial Judgment”), and ordered P to pay the sum of HK$1,312,700 and “逾期付款違約金港幣444099.54 元……” to D with costs. P lodged (but did not pursue) his appeal against the Retrial Judgment to 廣東省深圳市中級人民法院, and by the Appeal Judgment dated 17 March 2014 such appeal was dismissed with costs.
194. In view of the findings in this Judgment, it is unnecessary to draw support from the findings in the Retrial Judgment which in any event did not amount to any issue estoppel or res judicata. But I am comforted that on the same subject matter 深圳市羅湖區人民法院 (as upheld by廣東省深圳市中級人民法院) also concluded that (a) P and D carried on the Business at the 5/F, (b) P owed D business debt in respect of the Business, (c) they quarreled over such business debt in 2004 with police intervention, (d) “[Ng]在見證[P]簽署[6th IOU]前亦按照當地法律規定的程序與[P]就[6th IOU]內容進行了核對，因此，[P]在簽署[6th IOU]時，應當對[6th IOU]內容了解且作出了理性的判斷”, (e) “……[P]作為一個完全民事行為能力人，通過自己獨立的行為行使民事權利、履行民事義務，對自己的行為應當是審慎，其兩次就同一事實在[D]脅迫的情況下在兩份內容相同的《借據》上均簽字確認的行為，違背了社會中的普通人所普通接受或者體察的社會生活經驗，有悖常理”, and (f) the 6th IOU “……為雙方當事人的真實意思表示，……合法有效，雙方均應嚴格按約履行。現[P]未能按照其所其所出具的[6th IOU]的承諾向[D]如期支付雙方經營期間的結欠款項，已經構成違約，……”
XLII. REMEDIES
195. I dismiss P’s claim. P was D’s business partner in respect of the Business, and there was consideration to support the In-between, 3rd, 5th and 6th IOUs which P entered into freely and willingly without duress. There was no Harassment/Threat/Noise and/or Tel Calls that reached the threshold of actionable nuisance or harassment.
196. D counterclaimed for specific performance of the 5th and 6th IOUs (placing stronger emphasis on the 6th IOU). Mr Cheung submitted specific performance would be an appropriate remedy because land is a unique commodity and damages are often not an adequate remedy.[61] But in Snell’s Equity, it was said:[62]
“(g) Uncertain obligations. Even where a contract is sufficiently certain to be valid at law, it may nonetheless be too imprecise for the court to be prepared to order specific performance. This is because the terms of the order (which should reflect the terms of the obligation) should be sufficiently clear for a defendant to know what must be done in order to comply with the order in order to avoid being exposed to the quasicriminal procedure of punishment for contempt of court. The question of certainty must be decided on the assumption that the court might have to enforce the order according to its terms ……”
197. Here, the uncertainty concerned which portion of the Land was the Half Land referred to in the 5th and 6th IOUs. It was quite clear from P’s discussion with Ng that the precise location of the Half Land had not been identified (eg whether it was the Graves HL, Built HL or any other part of the Land) except it comprised 5,000 sq ft of the Land. In my view, even though the 5th and 6th IOUs were valid at law, the Half Land was insufficiently identifiable to ground any order for specific performance for conveyance of such land. But more fundamentally, the 6th IOU expressly stipulated “將[the Half Land]，於16/06/2004前無償轉讓給[D]，以償還港幣五拾萬元的債項(即呎價一佰元)。如不能如期轉讓，則必須一次過付清欠債餘額”. Since conveyance of the Half Land was not effected on/before the prescribed deadline, D’s such obligation was converted into an obligation to pay the unpaid balance of the sum of HK$500,000, and there could not be specific performance of the provision for conveyance of the Half Land.
198. The 6th IOU provided for an agreed debt of HK$1,431,200, and P subsequently repaid a total sum of HK$103,200 + HK$4,300 + HK$1,000 + HK$10,000 = HK$118,500. I therefore grant judgment for D against P under D’s counterclaim in the sum of HK$1,312,700 with interest thereon at 8% pa from the date of the Writ of Summons to the date of judgment here in and thereafter at judgment rate until payment. There is no reason why costs should not follow event, and I grant a costs order nisi that P shall pay D costs of the action (including the counterclaim) on party and party basis with all costs reserved if any to be taxed if not agreed. Whilst I am sure Mr Chan was of assistance to Mr Cheung, I am not persuaded this case merited two counsel for D.
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(Marlene Ng)
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Deputy High Court Judge |
Mr Brian Wong, instructed by Edward Lau, Wong & Lou, for the plaintiff
Mr Cheung Yiu Leung and Mr Chan Hei Cheung, instructed by Ho Tse Wai, Philip Li & Partners, for the defendant
[1] see legal principles in DBS Bank (Hong Kong) Limited v Sit Pan Jit HCA382/2009 (unreported, 2 April 2015) paras 33-35 and Tjang Siu Thu v Profield Construction Engineering Limited & anor CACV156/2013 (unreported, 27 May 2015) para 33
[2] see Star Glory Investment Ltd v Kai Tua (H.K.) Technology Ltd & ors HCA3523/2002 (unreported, 13 August 2005) para 12 (see also Esquire (Electronics) Ltd v Hong Kong and Shanghai Banking Corp Ltd [2007] 3 HKLRD 439, 494, and Big Island Construction (HK) Ltd v Wu Yi Development Co Ltd & anor HCA 1957/2005, HCA 714/2007, HCA 886/2007 and HCA 1364/2008, Poon J (as he then was) (unreported, 28 July 2011) paras 16-21)
[3] the 4th Sister said “[D]係令到[P]妻離女散嘅人，[the 4th Sister]點會對[D]有好感呢？拎住條鎖匙[to the 1/F Unit]喺度自出自入咁樣，扮晒自己--好似係[D’s]屋企咁樣樣，[the 4th Sister]點會對[D]有好感呢？”
[4] which dismissed P’s appeal against the retrial judgment in民事判決 ((2012)深羅法民二重審字第4號) dated 8 July 2013 of the PRC Action
[5] see In re H & ors (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 56, 5863 (and also Nina Kung v Wang Din Shin (2005) 8 HKCFAR 387, 440-441 and News Cleaning Services Company Limited v Watson Environment Management Limited HCA2244/2009, G Lam J (unreported, 14 June 2013) paras 39-45)
[6] HCA216/2008 (unreported, 3 June 2015)
[7] [2013] 3 HKC 361, 367
[8] see Chitty on Contracts 32nded Vol 1 para 8-003 at p 751 and H v N CACV261/2010 (unreported, 16 November 2011) para 45
[9] see Universe Tankships Inc of Monrovia v International Transport Workers Federation & ors [1983] AC 366, 384 and 400 per Lord Diplock and Lord Scarman (dissenting), Dimskal Shipping Co SA v International Transport Workers Federation [1992] 2 AC 152, 166 and Chitty on Contracts paras 8-004 – 8-006 at pp 751-753 (see also Pao On v Lau Yiu Long [1980] AC 614 and Lord Goff at p 166 in Dimskal Shipping Co SA who agreed with McHugh JA in Crescendo Management Pty Ltd v Westpac Banking Corporation 1988) 19 NSWLR 40, 45-46 that the overbearing or compulsion of the will test was unhelpful)
[10] see Huyton SA v Peter Cremer GmbH & Co [1999] 1 Lloyd’s Rep 620 and Kolmar Group AG v Traxpo Enterprises PVT Ltd [2010] 2 Lloyd’s Rep 653 (see also Chitty on Contracts para 8-028 at pp 764-765)
[11] [2013] HKC 213, 229
[12] [1976] AC 104, 118-119 and 121
[13] at p 120
[14] HCMP436/2013 (unreported, 31 August 2015)
[15] see Chitty on Contracts para 8-054 at p 780
[16] [1943] AC 32, 64-65
[17] see Chitty on Contracts paras 29-012 – 29-013 at pp 2101-2102
[18] (2001) 185 ALR 335, 363-364
[19] Jaffey, Failure of Consideration: Roxborough v Rothmans (2003) 66 Modern Law Review 284 (not referred to by either counsel)
[20] [2015] AC 1 (see Chitty on Contracts para 29-061 at pp 2139-2141)
[21] (a) when D worked for 深圳市企業評價協會 in 1993-1996 she started and later continued a sideline advertising company, and (b) D employed her sisters/cousins to run her 桂林米粉店, estate agency business, 茶餐廳 and 麗江村便利店, but she eventually sold 桂林米粉店 to cover some business loss when the Leisure Centre closed down in early 2002
[22] see footnote 25 below
[23] I note P’s friends were also into business, eg Lam owned a restaurant in SZ and Lai had a fast food shop in Taipo, and I find although P/Mak had not been involved in Parlours before, they frequented entertainment establishments in SZ andmust have been attracted by the Parlours’ perceived lucrative turnover/return, so they wished to explore such business opportunity by looking for a business partner in SZ
[24] see paragraph 30 below
[25] D only realised with hindsight (a) the 5/F was unsuitable as it was too high above street level and too far away without chauffeur transport (which defects were aggravated by lack of promotion push),and (b) only leisure centres at 羅湖商業城 earned significant profits
[26] Lam’s statement evidence asserted he met D in early 1999 and P and D often dined at his restaurant, but in his oral testimony he tried to play down his contact with P and D in SZ by sayinghis restaurant probably closed down by the end of 1998 or early 1999
[27] see paragraph 51 below
[28] see footnote 44 below
[29] D claimed (and I accept) P took back RMB20,000 before D signed the Initial TAsin paragraph 36 below in September 1999, and D later paid RMB50,000 but took back RMB30,000 (see paragraph 59 below)
[30] ie borrow 營業執照 issued in the name of a person with SZ household registration
[31] (a) it might have been lost when the Leisure Centre’s employees went on strike and removed the safe at the 5/F where business documents were kept (see paragraph 58 below), (b) D moved house several times over the years so things/documents might have been lost in the course of doing so (see paragraph 71 below), and (c) after D came to HK goods/equipment of the Leisure Centre were stored in a partitioned room in Kowloon, but the room was very small so many things were thrown away (see paragraphs70 and 81 below)
[32] with 羅湖區姿麗雅美容美髮中心 as 字號名稱 and “理髮，美容(不包括整容業)。(經營方式: 服務)” as 經營範圍及方式
[33] with 羅湖區寶島美容美髮腳部按摩中心 as 字號名稱 and “腳部按摩，理髮，美容(不包括整容業)。(經營方式: 服務)” as 經營範圍及方式
[34] see paragraph 61 below
[35] see paragraphs 55-57 below
[36] but it later transpired that such assumption was incorrect (see paragraph 56 below)
[37] the landlord’s focus was on “(五樓)” – see notices of payment, invoices and receipts issued to the named tenant (“喻麗華(五樓)” prior to 30 November 2000 and “劉志偉(五樓)” after that date) and notation thereon that “從12月份起法人變更為[Lau]”
[38] D claimed (and I accept) P took back RMB20,000 before D signed the Initial TAson 17 September 1999
[39] (a) D produced the Copy RA to 深圳市羅湖區人民法院 at the trial of her claim against P in the PRC Action, (b) P in his application to 廣東省深圳市中級人民法院 for retrial denied the authenticity of the Copy RA, (c) P challenged the authenticity of the Revised Agreement and Copy RA in his witness statement dated 19 October 2011 (adopted as P’s evidence at trial), (d) the Copy RA was exhibited to D’s 2nd affirmation filed on 17 November 2011 in support of D’s summons filed on 6 September 2011, (e) P made a statement to the police on 13 January 2012 stating (i) he had never seen the Copy RA, (ii) the signature thereon was not his, and (iii) his solicitors had explained to the court he did not sign the Revised Agreement, and (f) D produced the Copy RA to 深圳市羅湖區人民法院 at the retrial of the PRC Action, but P denied its authenticity
[40] see paragraph 9(d) of the Re-Amended Defence and Counterclaim
[41] after all, (a) P and D started to date after they decided to open the Leisure Centre and D was considerate enough not to “篤穿[P]想佔多一份呢個企圖”, (b) P readily acknowledged his commitment by the Revised Agreement, and by the time the Initial TAs were signed, the renovations of the 5/F were underway and 借牌 arrangements were made, D was already committed to the Leisure Centre venture, (c) P willingly gave the 1st IOU with a promised repayment date, and was even prepared to round up the outstanding amount to RMB1,000,000, and (d) at that time, both P and D expected the Leisure Centre to make handsome profits from which they would recoup their capital contribution
[42] I accept D’s explanations that the Leisure Centre did have accounts/ledgers,but they were no longer available for the reasons given in footnote31 above
[43] which P acknowledged by signing on the account ledgers, but such ledgers were lost when the employees went on strike and removed the safe at the 5/F (see paragraph 58 below)
[44] (a) Mak asked his girlfriend’s younger sister to be cashier at the Leisure Centre to help with financial matters, (b)P arranged for his friend 雷明 check the Leisure Centre’s business turnover and report to him, (c) Ho Din (何倩), who worked at the Leisure Centre and was the girlfriend of P’s colleague Ah Dong (阿東), also reported the Leisure Centre’s situation to P, and (d) P increased his visits to the Leisure Centre to 3-5 times a week
[45] P agreed some changes were made to the operation/décor of the Leisure Centre,and there was slimming equipment at the 5/F
[46] references to “至2002年尾結業” in the 5th/6th IOUs are a mutual error by P and D
[47] P admitted D first knew about the Land when she stayed at the House and helped topick fruits from the mango trees (which served as divide for the Half Land near to the graves and the Half Land which could be built upon), and P told D the Land was his
[48] that was rented mainly for storing equipment from the Leisure Centre since the 4th Sister had remarked upon storage of such equipment at the 1/FUnit
[49] because P had to pay the Mtge Payments for his home, hire purchase payments for his car and financial support for the Parents
[50] paragraph 2 of the Amended Statement of Claimaverred it was about end of 2001
[51] (a) D disliked P’s bad temper, (b) they had many quarrels over P’s failure to keep his promises to repay under the IOUs, (c) there was D’s discovery some months before of P’s other women, and (d)D found out P had a girlfriend in Zhuhai, Mainland China, and “[P]同 …… [D’s]呢個家姐關係唔清唔楚” (the 4th Sister said D quarreled with her elder sister over this during the 5/04 Incident – see paragraph 125 below)
[52] I note also that D’s BOC Account showed regular transactions and healthy balance throughout 2003-2004
[53] P alleged D threw a bowl at the television set and oranges against the wall
[54] P made the Threats byreciting P’s wrongs, asserting P “爭女人錢唔還”, maliciously cursing P’s whole family in foul language and saying they would die horribly (eg “……又話要放火燒屋，斬死[P’s]屋企人，諸如此類嘅說話囉”), and claiming she would “著住紅衫、紅褲呀，殺[P]全家，然後3樓跳落嚟呀，跟住自殺呀，類似咁嘅說話喇，如果[P]係唔應承嘅話” and “[D]最多就是死在這裡,[D]已事先著住紅衫，紅鞋，加上一屍兩命，會好猛的” etc
[55] see paragraphs 191-192 below
[56] see paragraphs116-117 below
[57] D did not ask her helper to bring food for herfor the first few days of the 5/04 Incident
[58] see footnote 3 and paragraphs 62, 66 and 84 above
[59] as regards D’s demand for repayment of business debt, P said it was about HK$1,400,000, Lai said it was HK$1,000,000 odd, and Mak also said an amount was mentioned
[60] the 4th Sister said “[D]講話要欠幾多錢就話嗰盤生意，咁[P]話「嗰盤生意關我咩嘢事呀？妳賺幾多、蝕幾多，妳都冇同我講過嘅。」……「咁我點知妳嗰盤生意係做啲乜嘢嘢吖」，咁[D]就話[P]「咩嘢？你分錢嗰時就哈哈哈。」……”, “[P]就話「何來有生意呀？係妳自己一手一腳搞嘅，我畀錢妳就--即係畀妳嘅啫。」咁樣”
[61] see Tony Investments Ltd v Fung Sun Kwan [2006] 1 HKLRD 835, 854-855
[62] 33rd ed (2015) para 17-022 at pp 448-449
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