POON LEUNG CHOI v. YUNG KWOK WING AND ANOTHER

HCA2324/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 2324 OF 2007

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J U D G M E N T

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1.  This matter has already come before me when the 2^nd defendant appealed against the order of Master Yuen given on 22 April this year and there is a written Ruling by me given on 30 June 2008 dealing with the 2^nd defendant’s appeal relating to the same order of Master Yuen as the 1^st defendant is now appealing against. 

2.  When the 2^nd defendant’s appeal was heard the 1^st defendant was present momentarily in court but that appeal by the 2^nd defendant did not concern him since at that stage he had not lodged any appeal against the master’s order.  As a result the 1^st defendant left the hearing halfway through after obtaining permission from the court to leave.  

3.  The 1^st defendant admits that he knew of the appeal by the 2^nd defendant and that appeal was against the order from the master which he now seeks to appeal.  His excuse for not bringing this appeal when the 2^nd defendant appealed the same order of Master Yuen was that he preferred to wait and see the outcome of the 2^nd defendant’s appeal.  That is not an acceptable reason for the delay and on that alone the extension of time for him to appeal the order of Master Yuen ought not to be granted to the 1^st defendant.  Even if the 1^st defendant was allowed an extension of time in view of the fact that he is acting in person, I find no merits in his proposed defence. 

4.  The defence now raised by the 1^st defendant is similar to that which was raised by the 2^nd defendant in the earlier appeal by the 2^nd defendant, namely that there was an oral agreement between the parties that the 7½ months loan period stated in the loan agreement was not in fact the time for the repayment of the loan.  In so saying the 1^st defendant seeks to rely on the date of 31 May 2000 stated in the loan agreement to be the date of repayment albeit that the loan agreement was dated 18 October 2002.  The 1^st defendant says that the year 2000 so stated in the loan agreement was not a typo and that the 7½ months stated to be the repayment period in the loan agreement did not actually apply.  The 1^st defendant also relies on the “other terms to be agreed” clause in the loan agreement. 

5.  In my view the purported defence now sought to be raised by the 1^st defendant contradicts the Parol evidence rule and any such evidence which the 1^st defendant attempts to adduce to contradict the stated terms in the loan agreement of the period of repayment being 7½ months would be inadmissible and not permitted to be adduced in evidence by the court.  There is therefore no merits in the 1^st defendant’s contention.  Accordingly the 1^st defendant’s application is dismissed and the order of Master Yuen made on 22 April 2008 insofar as it relates to the 1^st defendant is to stand in its entirety. 

6.  The costs of this application and the hearing today be to the plaintiff to be paid by the 1^st defendant in any event.