LI OI WAH v. LAU HOI HING

DCCJ 4031/2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 4031 OF 2008

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DECISION

1.  This is the Defendant’s appeal against the decision of Master R. Lai made on 3 March, 2009.

2.  The Plaintiff’s case is that in 1995 she lent $700,000 to the defendant with interest at 2% per month.  By February 2007 he repaid $700,000 to her, but he failed to pay interest on the loan, which had accumulated up to $392,900.  In March 2007 she agreed to accept $150,000 for the interest.  However the defendant only paid $75,000 to her.  By this action she claims for the outstanding sum of $75,000.

3.  The Defendant does not dispute that he paid a total sum of $700,000 to her.  His case is that the sum of $700,000 was paid to her for and on behalf of a Mr. Wang Kah Sze (“Mr. Wang”).  He also paid the sum of $75,000 to Mr. Wang at Mr. Wang’s request.  In short, he never owed the Plaintiff any money.

4.  On 6 March 2007, the Plaintiff wrote to the Defendant the following letter:-

“TO： 劉海慶律師行

劉律師：

您好！

關於：追討借款港幣70萬元而拖欠未付利息一事

於1995年1-5月份您經王家駟先生先後向我借款共港幣70萬元，當時雙方約定借款按月息2%付利息，既：您每月需付利息HK$14,000.-給我，自此您一直按雙方約定的利息每月依期付給我，直至付到2002/9月份。（其後拖欠未再付相關利息詳情請見下述。）

而該笔借款：港幣70萬元，您已分多次還款併於2007/2/28日才還清，但有關利息迄今未付清：

A． 從2002年10月起至2003年4月您未再付利息給我，共拖欠7個月利息未付，（HK14,000.-       x 7個月）合共拖欠利息： HK$98,000.- （未計从2002/10月拖欠迄今的利息）；

B． 自2003年5月份開始您分期償還借款本金HK$700,000.元（詳見2003/3月份已給您的：還款備忘錄三份）。您分期還款情況及欠付的相關利息如下：

……………………………

您拖欠的這筆欠付借款利息合計的HK$392,900…………，已拖欠多時，為此，請您務必在一周內 …………全數清還給我…………”

5.  According to the defendant’s affirmation, after receipt of this letter, he met Mr. Wang on 10 March 2007.  He said he only agreed to assist Mr. Wang to repay the said sum of $700,000.  Mr. Wang should directly deal with the Plaintiff about the matter relating to the interest.  However, Mr. Wang once again requested him to assist him to repay money to the Plaintiff.  At first he refused.  Subsequently Mr. Wang said he could discuss with the Plaintiff to reduce the amount.  He did not agree to assist Mr. Wang; he only agreed to consider assisting him.  Subsequently on 14 March 2007, Mr. Wang wrote him a letter informing him that he had negotiated with the Plaintiff and the Plaintiff had agreed to accept $150,000 being the full and final settlement of the interest that Mr. Wang owed her.  Then he met Mr. Wang.  As a good and long time friend of Mr. Wang, he only agreed to assist him to pay half of the interest and would pay him $75,000 by 12 instalments.  He further agreed that if his financial position became better after paying him $75,000, he would give him a further sum of $35,000 as gift.

6.  In this letter (dated 6 March, 2007), the Plaintiff claimed that the Defendant borrowed $700,000 from her through Mr. Wang, that he had to pay her a monthly interest of $14,000 and that he had not paid the interest in the total sum of $98,000, for the period from October 2002 to April, 2003.  The Defendant did not contact the Plaintiff directly, and say that the allegations were simply untrue, but merely talked to Mr. Wang about this matter.  This is simply incredible.

7.  On 16 April 2008, the Defendant received the following note from Mr. Wang:-

“TO:  H.H. LAU AND CO.

劉律師：

您好！

有關第13期利息付款HK$6,250.00，於2008年4月15日已到期，但迄今仍未收到閣下之付款，請即辦理!!!

                                                            王家駟/李愛華
                                                                 2008/4/16”

After receiving the above note, he called Mr. Wang, stating that he never agreed to pay after the 13^th instalment.  He never said to the Plaintiff that he never owed her any money, or that he was only helping Mr. Wang out.  In short he never communicated with the Plaintiff, and denied the claims made by her, namely, that he had borrowed money from her.  This is incredible.  He could write and had written to the Plaintiff before this time.  On 29 August, 2006 he wrote to the Plaintiff the following letter:

“                                                              

                                                              29/8/2006     

李小姐，

多謝你的包容，現再付上期票二張。我朋友欠我的一筆大數二個月內會付清。到時餘款將會清還。

不用担心。”

(underlines added)

In this letter the Defendant said that the balance would be repaid and that she did not have to worry.  This indicates clearly that there was remaining money he had to repay to the Plaintiff.  The documents unfolded in this case clearly showed that he was the borrower of money from the Plaintiff, and not Mr. Wang.  He was not repaying money for Mr. Wang.  He was repaying the money for himself.  The decision of the learned Master R. Lai is clearly correct.  Accordingly, I dismiss the Defendant’s appeal.

Costs

8.  I make an order nisi for costs, to be made absolute in 14 days’ time, that the Defendants is to pay the Plaintiff the costs of this application, to be taxed, if not agreed.  No Certificate for Counsel.