WYNN LAS VEGAS, LLC v. MONG HENRY

cacv 198/2009

in the high court of the

hong kong special administrative region

court of appeal

civil appeal no. 198 of 2009

(on appeal from HCA NO. 190 of 2009)

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J U D G M E N T

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Hon Rogers VP:

1.  This is an appeal from a judgment given by Deputy High Court Judge Carlson on 5 August 2009 following a hearing on 29 July 2009.

2.  The judge went into admirable detail about the case and, in my view, probably far more than the strength of the defendant’s case deserved.

3.  The case is quite a simple one.  It is a claim by the plaintiff for US$3 million, which sum was lent to the defendant for the purpose of gambling.  Very simply, the statement of claim sets out that there was a Credit Agreement which the defendant had signed on 2 August 2007 and then the statement of claim relies upon the fact that, on 6 August 2008, the defendant made a request to increase his credit line to US$3 million.  That was granted and he signed a marker and, as a result, he was given US$3 million credit.

4.  There is no dispute about that.  There is no dispute about the fact, in fact he specifically says, in paragraph 13 of his third affirmation, that he lost the entirety of that US$3 million.

5.  There is no need to go into the history of how that came about.  The fact is he lost a lot of money in Macau and this was what might colloquially be called a “double or quits” operation.  He was flown over to Las Vegas with the prospect that either he would make back that money that he had lost in Macau or he would double his losses.  As it happened, he doubled his losses.

6.  Mr Lau, who has appeared today, has said everything he possibly could, but has really not raised any defence to the claim.  The only thing that he has tried to say this morning which, in my view, is doomed to failure from the start, is that on his third affirmation, the defendant has tried to raise a question as to the existence of whether there was a later Credit Agreement signed on 5 August 2008.

7.  What the defendant said in his affidavit was that he was asked to sign two documents, one for check-in and the other was “likely” a Credit Agreement that had been prepared beforehand.  That does not establish the existence of any such document.  What the judge below said is that he thought that this was just a stalling exercise, because what the defendant was trying to do, or in fact what he had done, was to take out a summons in front of the Master to be heard a few days after the hearing of the Order 14 application and what he was attempting to do was to put off the evil day by applying for discovery, despite the fact that the plaintiff had, through its solicitors, said that there was no such agreement.

8.  In my view, there is absolutely nothing in this case.  This exercise of coming to the Court of Appeal was, in my view, simply another element of the same stalling exercise.  It was an attempt, probably, to put off the day when the money had to be paid.

9.  In those circumstances, I will hear counsel not only as to the question of costs, but as to whether those costs should be on a higher scale.

Hon Stone J:

10.  I entirely agree with the judgment of the Vice-President.  The only additional observation I would make is that I am surprised it was seen fit to prosecute this appeal, which demonstrably has no merit whatever.