OR YIK CHING v. WONG KWOK HUNG

HCA 8553/1997

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO.A8553 of 1997

---------------------

----------------

JUDGMENT

----------------

1. This is an action for money due and owing. The Plaintiff is a brother-in-law of the Defendant, the Defendant being the elder brother of the Plaintiff's wife.

2. The Plaintiff has testified that on various occasions between February and October 1992, the Defendant had asked him directly for loans of money and he had agreed. The amounts lent were $50,000 in February 1992, $70,000 in March 1992, another $50,000 in August 1992 and $6,500 in October 1992.

3. The Plaintiff's testimony is supported by the following documentary evidence.

(1) There is a HSBC counter withdrawal voucher which shows that on 24 February 1992 a sum of $50,000 was withdrawn from the Plaintiff's account and transferred to the Defendant's account. The Plaintiff holds the original receipt which he has shown the Court.

(2) There is another HSBC counter withdrawal voucher which shows that on 5 March 1992 a sum of $55,000 was withdrawn from the Plaintiff's account and transferred to the Defendant's account. The Plaintiff holds an original receipt for $63,300 which he has shown the Court. The balance of $8,300 was explained by the Plaintiff as having been paid in cash which he had at hand at the time.

(3) There is a copy extract from a HSBC passbook which shows that on 20 August 1992 a sum of $50,000 was withdrawn from a joint account held in the names of the Plaintiff and his wife. There is also another receipt showing the deposit of $50,000 into the Defendant's account the same day.

(4) There is another copy extract from the same HSBC passbook which shows that on 1 October 1992 a sum of $6,500 was withdrawn from the joint account held in the names of the Plaintiff and his wife. There is also a bank advice showing the deposit of $6,500 into the Defendant's account the same day.

4. The Plaintiff has explained that he had not asked for an acknowledgment of receipt for these loans because of the trust he had in the Defendant as a relative to honour his promise to repay.

5. As to the amount of $6,700 being the difference between $70,000 and $63,300, the Plaintiff has testified that he had asked his wife in Canada to pay Wong Kwok On CAD$1,000 on the Defendant's request. There is however no evidence that the Plaintiff's wife had done so. Accordingly I do not find that there is any evidence that this amount had been paid by the Plaintiff to the Defendant.

6. The Defendant's case is that he had never asked the Plaintiff to lend him money, and that these amounts allegedly lent were money left by his mother with the Plaintiff and his wife to give to him.

7. I reject the Defendant's argument. The Defendant was not permitted to adduce oral evidence because he has failed to file and serve any witness statements. He has had ample opportunity to do so. Mr Registrar Betts' order in October 1997 gave him 6 weeks within which to file and serve statements. None were filed or served even though the Defendant was represented at the time. A year elapsed. In November 1998, Yeung J gave further time to the Defendant to file witness statements within 3 weeks. Again that was not done. So there was no evidence from the Defendant or his mother to support his case.

8. Nor was there even documentary evidence; for instance, bank statements or passbooks showing where the mother had withdrawn the sums; letters from the mother referring to these amounts supposedly given by her to the Defendant; etc. I should indicate that the issue is not whether the mother needed to be supported by the Plaintiff or not, although a great deal of cross-examination was devoted to this part of the case. The point is that there was no evidence showing when and how the mother had allegedly transferred this amount of money to the Plaintiff and/or his wife.

9. Further no explanation had been proffered by the Defendant as to why it was necessary for the mother to give money to the Defendant in such a roundabout fashion - since the Defendant had bank accounts in Hong Kong, the mother could simply have deposited the money into the Defendant's bank accounts.

10. Further, if these moneys had been kept by the Plaintiff for the Defendant's mother for transfer to the Defendant, one would have expected the mother to have retrieved the receipts as a record of what amounts had been so transferred. Instead, one sees that the original receipts have been retained by the Plaintiff.

11. All these factors have led me to the conclusion that the Plaintiff's testimony should be accepted.

12. I would therefore find in favour of the Plaintiff in the sums of $50,000 and $63,300 being the loans made in February and March 1992. I have earlier explained why there is no evidence relating to the balance of $6,700.00.

13. As to the last 2 loans, the Plaintiff has admitted that the loans had been made jointly by himself and his wife, but his wife has declined to join as Plaintiff or to give evidence against her brother the Defendant. He accepts that he can only be entitled to repayment of half of the sums lent being $25,000 and $3,750.

14. I will therefore give judgment in favour of the Plaintiff in the total sum of $142,050.00 together with interest at savings rate from July 1995 to date and hereafter at judgment rate until payment.

15. I have taken only the savings rate as it would appear that this was not a commercial transaction between businessmen. I have taken the date of July 1995 even though a loan is repayable on demand if there is no agreement as to date of repayment. This is because according to the Plaintiff's own evidence, he had agreed to the Defendant repaying in July 1995.

16. I also order that the costs of the action should be paid by the Defendant to the Plaintiff.