LAI LOONG PIU v. WANG SIEW MEI, ALICE

DCCJ 615/2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 615 OF 2008

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JUDGMENT

1.  Lai, the Plaintiff, purchased and paid for a set of health equipment from Wang, the Defendant, in 2004.  Lai now claims for the return of the purchase price for non-delivery of the equipment.  Wang says that the equipment had been delivered to a third party for and on behalf of Lai as instructed.  Whether this was true becomes the major dispute in this case.

Background

2.  Lai and Kitty Lo have known each other for a long time.  However they had not been in contact for over a decade until about mid-2003.  Then Lo contacted Lai.  Lai was given to understand that Lo was in the business of sale of perfume (or aromatic products).  Since then, Lai and Lo had maintained contact and had social gatherings.

3.  In about June 2004, Lo introduced Lai to Wang.  Lai was given to understand that Wang was in the similar business as Lo’s.  Wang also sells health equipment.  One of such equipment was called the Quantum Xrriod Consciousness Interface System (“the equipment”).

4.  According to Lai, Wang explained that the equipment was a newly developed health condition vetting equipment that could detect disease in the human body though there might be no obvious symptoms.  Lai had come across a serious heart problem before, and after trial of the equipment became interested in acquiring it.

5.  The first set of the equipment was actually ordered by Lai’s company, through Lai, at the price of HK$150,000 from Wang’s company.  Terms of the purchase were written by hand on the confirmation of receipt of the purchase price dated 11 June 2004 signed by Wang.

6.  Among other things, it was stipulated that this was for the purchase of the equipment made in the United States of America together with the ancillary computer.  Delivery should take place in a month when the official invoice and/or receipt from the supplier would also be provided.

7.  The second set of the equipment was ordered by Lai personally from Wang personally at the discounted price of HK$145,000.  Unlike the case of the first set, the price for the second set was settled by Lai’s personal cheque in favour of Wang.  This happened on 12 August 2004.  A confirmation of receipt of the purchase price containing almost identical terms as the one before was signed, this time by Wang’s secretary.

8.  It was in October 2004 when the set of equipment that Lai purchased became available.  On 1 November 2004, Lai was asked to attend the office of Wang’s company for inspecting and taking delivery.  Lai went with Leung, his friend.  Wang was in fact not present at her office but Lo was.  At the end of the day, Lai did not take away the equipment.

9.  Since 19 November 2004, Lai, through his then solicitors, had complained about Wang’s failure to deliver the equipment and demanded delivery of the equipment in accordance with the parties’ agreed terms.

10.  In her solicitors’ letter dated 24 November 2004, Wang denied having agreed to the terms written on the confirmation of receipt of purchase price mentioned above, and suggested that the equipment was already delivered on 1 November 2004 to Lo for and on his behalf.

11.  The above background is not really in dispute.  In any event, considering the evidence, I find the above to be the facts.

The evidence

12.  In support of her case that Lo had acted for and on behalf Lai, Wang referred to an authorisation to Lo to handle a company registration on behalf of Lai in the Mainland in August 2004.  Lai did not deny that and explained that Lo was familiar with the necessary registration arrangement.  He did not fill in the standard authorisation form issued by the authority but he did sign it.

13.  If one studies the authorisation form closely, one would find that the handwritten entries in the form, which seemed to suggest very broad authority of Lo, did not really correspond with what were required to be filled in.  In any event, I do not find this single document to be of substantial value in suggesting that Lo was somehow Lai’s agent generally besides this instance of authorisation.

14.  The fact was that Lai did handle the orders for the equipment by himself.  Whether for the first order placed by Lai’s company or the second set of the equipment for himself, it was Lai who personally brought the respective cheques for payment and handed them over to Wang.

15.  Wang stated that it was on or about 11 October 2004 when Lai instructed her to hand over the equipment purchased for him to Lo.  The document shows that this was apparently the date when Wang received the equipment from her supplier.  However, in court, she was not able to say at all how Lai allegedly gave such instruction to her on such occasion.

16.  Wang stated that the first set of the equipment ordered by Lai’s company was also delivered to Lo in July 2004.  But if the arrangement had already been for Lo to take delivery of the equipment (even for and on behalf of Lai’s company), I wonder why Lai needed to give instruction to Wang in respect of the delivery of the second set of equipment to Lo in October 2004 as she also alleged.

17.  Regarding the first set of the equipment, according to Lai, his company encountered similar problems that he is now having with Wang.  Wang was said to be using the same excuse that Lo took delivery for Lai’s company.  Wang admitted that this was the subject matter of another set of legal proceedings that had been in abeyance since 2005.  Neither party gave any other details of the dispute in respect of the first set of the equipment ordered by Lai’s company and I propose to say no more.

18.  Wang’s evidence that Lai instructed her in as early as October 2004 to hand over the equipment to Lo for and on his behalf is also contradicted by Lo’s evidence.  According to Lo in court, the occasion on which she was allegedly instructed by Lai to take delivery of the equipment for him was when Lai came with Leung.  As far as the evidence can show, this could only be 1 November 2004 when they were at Wang’s office.

19.  According to the letter from Wang’s solicitors dated 24 November 2004, Lai came to her office on 1 November 2004 with Leung and Lo.  This is proved to be untrue.  There is no dispute that Wang was not present at the meeting at her office on that day but Lo was there.  According to Lai, he had not informed Lo of the appointment.  He was therefore surprised to see Lo there on that day.

20.  In court, Wang suggested that it was her secretary who arranged both Lo and Lai to attend the inspection of the equipment on that day.  In their letter dated 27 November 2004, Lai’s then solicitors put on record that upon being asked by Lai on that day why she was present, Lo replied that it was Wang who asked her to come to operate and to show the equipment to Lai.  In court, Lo also claimed that only she was familiar with the function and operation of the equipment.

21.  If Wang already had the express instruction from Lai, as she alleged, that she was supposed to hand over the equipment to Lo for and on behalf of Lai, I wonder why both Lo and Lai were required for the purpose of inspection and delivery.  I also wonder why Lai did not instruct Lo to attend the inspection and delivery for and on his behalf when he came to know about the availability of the equipment whether before or on 1 November 2004.  Had Lai already entrusted Lo with the inspection and taking delivery of the equipment, Lai would have had no reason to go, and not to mention to bring along Leung, when they would have had to rely on Lo for the inspection and delivery anyway.

22.  Lo said that the equipment was inspected and found to be in good order.  She asked Lai to sign to acknowledge receipt of the equipment.  However Lai allegedly asked her to sign it.  There is no dispute that the equipment was quite small in size and could have been taken away if it was in good order.  The fact was that Lai did not do so.  Lo sought to explain with reference to the need to teach Lai how to use the equipment.  I do not find such explanation to be convincing.

23.  According to Lai, Leung is a friend who is familiar with computer.  Therefore he asked Leung to come along.  He refused to take delivery of the equipment because it did not correspond with the terms of purchase.  Lai was referring to the terms of purchase evidenced by the confirmation of receipt of purchase price.

24.  Wang denied this.  Her case as stated in her solicitors’ letter is that the terms were added without her prior knowledge and it was her secretary who signed the confirmation.  She was not aware of such terms until she received the letter from Lai’s then solicitors in November 2004.

25.  I do not accept Wang’s case.  The terms written on the confirmation of receipt of the purchase price for the second set of the equipment for Lai personally were essentially the same as those on the confirmation for the first set of the equipment for Lai’s company.  That confirmation was signed by Wang in June 2004.    There is no evidence that Wang ever disputed the terms of purchase as stated in the first confirmation.  The confirmation for the second set for Lai that contained essentially the same terms as before should come as no surprise to Wang.

26.  In their letter dated 19 November 2004, Lai’s then solicitors put on record why Lai refused to take delivery of the equipment on 1 November 2004.  On 22 November 2004, Lai’s then solicitors also put on record of their telephone conversation with Wang that day.  It was recorded that Wang admitted that the equipment was not made in the United States.  It was only invented in the United States.  Wang would also need to check with the Hong Kong wholesaler of the equipment regarding the user’s manual or handbook and the authenticity of and licence to the software programmes.  In court, Wang also confirmed that the equipment was not made in the United States.

27.  Since the letter from Wang’s solicitors dated 24 November 2004, Lai’s then solicitors had apparently received telephone call from Wang’s office whereby suggestion was made on Wang’s behalf for the delivery of the equipment to Lai.  As pointed out in the reply by Lai’s then solicitors dated 27 November 2004, such suggestion did not sit well with Wang’s case as suggested in her solicitors’ letter that the sale and purchase of the equipment was already complete with delivery on 1 November 2004, be it to Lai or Lo.  Nothing further was heard from Wang through her solicitors since this letter.

Conclusion

28.  Seeing the witnesses testify and considering all the evidence, I believe in Lai but not Wang or Lo.

29.  I find that Wang agreed to sell and to deliver the equipment in accordance with the terms of purchase evidenced by the written confirmation of receipt of the purchase price.  I find that Lai did not take delivery of the equipment on 1 November 2004 upon discovering that it did not correspond to the terms of purchase.

30.  I find that Lai had not authorised Lo to take delivery of the equipment or instructed Wang to hand over the equipment to Lo on his behalf.  There was no delivery of the equipment in accordance with the terms of purchase on 1 November 2004.  There was never such delivery at all.  In the premises, I find that Lai is entitled to the return of the purchase price paid for his set of the equipment.

Order

31.  I give judgment in the sum of HK$145,000 against Wang.  Interest on the sum shall run at the judgment rate from the date of writ until full payment.  I also make a nisi order that Wang shall pay costs of this action.  Costs shall be taxed, if not agreed.  I certify the engagement of counsel.  In the absence of appointment within 14 days to argue costs, the costs order shall become absolute.

Representation: