LO SHING KIN v. SY CHIN MONG STEPHEN

HCA 2392/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 2392 OF 2009

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D E C I S I O N

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1.  This application has, in my view, no merit.

2.  The compromise agreement was reached in November 2008, nearly three months after the plaintiff sought to exercise the buy-back provision, both sides having instructed solicitors.

3.  An integral part of that compromise was the handing over of a cheque by the defendant drawn by him in the sum of HK$40 million.  It was post-dated 30 September 2009, 10 months ahead.  It represented for the plaintiff a considerable discount on the figure he originally sought, ie the return of his outlay of HK$120 million.

4.  As the deadline approached, the defendant proposed other options to satisfy his liability under the cheque.  He even tried to argue that the plaintiff had agreed to accept a property in part satisfaction.

5.  He sought, in my view, to take advantage of the plaintiff’s forbearance.  Nothing the defendant proposed had any substance.  He instructed his bank to stop the cheque a few days before its date for presentation.  A cheque is an unconditional promise in writing to pay the specified sum.  The defendant broke that promise.  He had tried to delay and avoid his liability for some time.

6.  I do not need to rehearse my findings in this short statement of my rejection of this application in principle.  The defence ultimately put forward in the pleaded defence, in which it first saw the light of day, dated 10 January 2010, some 16 or 17 months after the plaintiff’s request for the return of his money, is, in my view, a contrived, manufactured and cynical further attempt to extricate himself from a situation entirely of his own making in which he displayed a total lack of bona fides.  I have added that only in view of my initial statement, my opening statement, that the application has, in my view, no merit.

7.  The only concession I am now making, without dispute by the plaintiff’s counsel, is to suspend execution for 28 days, only on condition that the judgment sum, including interest, is paid into court, and I make that decision solely for the defendant’s professional benefit.  It is not open to review by me.  So to the extent that I am entitled to, I indicate that there will be no countenancing by me of any attempt to extend that 28-day period, and as indicated earlier, the defendant must pay for this breathing space, and therefore he will pay the plaintiff’s costs of this application, including a certificate for one counsel.