MA SHIU TAI v. YIP TAI NING

1983 No. 11554

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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JUDGMET

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1. This is a claim for money lent, alternatively, by late amendment, for money had and received. The sum claimed is HK$1,462,311.96. It is made up of the balance of an advance of $1.35 M. together with interest and incidental bank charges. The foundation for the claim was a transaction which took place on the 24th January 1980 which is evidenced by the following document signed by the defendant, Mr. YIP Tai-ning In translation it reads as follows:

"Acknowledge receipt from Mr. MA Shiu-tai a counter cheque drawn on the Wing Hang Bank in the sum of HK$1,350,000 in investing in the site in Edmonton China Town bought by Brian Yip being of 1/3 rights therein. It is hereby declared that Mr. Ma is entitled to decide within 3 months whether to take up such right. If Mr. Ma decides to relinquish the original idea of investment, I shall have no objection to refund the above sum of money together with the bank's charges on the mortgage and the interests accrued thereon. Apart from this memorandum I append herewith a cheque MC 179613 drawn on the United Chinese Bank in the sum of HK$1.35 M. as a natural proof.

Dated 24th January 1980                                                                             "

2. Contemporaneously, or soon after the payment of the sum of $1.35 M. by the plaintiff to the defendant which is not in issue in this case, that sum was transferred by banker's draft by the. defendant, or a company in which the defendant had an interest, to a firm of Canadian lawyers, being part (so I have been told by the defendant and I accept) of a larger sum expressed in Canadian dollars. It is not averred in the Defence nor has it been asserted by the defendant in evidence that the plaintiff authorized the use of his money for that purpose, that is to say, for transmission to the firm of Canadian lawyers. Rather is it pleaded at paragraph 4 sub-paragraph (i) of the Defence that the money was to be held to the plaintiff's order against some further opportunity to invest, and it is pleaded also that an agreement was reached subsequently which took account of earlier dealings between the plaintiff, the defendant and a certain Mr. Ho. Those alleged dealings are set out in paragraph 2 of the Defence. This is what was pleaded as a defendant's case:

"With the knowledge and consent of the plaintiff and the said Ho Kai Kwong the defendant set off the sum of C$240,000 he advanced the plaintiff and the said Ho Kai Kwong as pleaded in paragraph 2(8) hereof from the said fund."

3. That was a reference to an earlier averment in the Defence to the effect that in some speculative land purchase and proposed development the defendant and Mr. Ho had acted as partners through a nominee company and the defendant had advanced Mr. Ho's share in the investment, thus leaving Mr. Ho indebted to the defendant in the sum of C$4240,000 or thereabouts. So, what was being said by the defendant on the pleadings was that the sum of HK$1.35 M. had been, in effect, paid by the plaintiff to the defendant; that it was intended for some future investment;that the plaintiff had an opportunity to withdraw from that investment within 3 months from the date of the payment, and that if he did the whole sum would become repayable together with accrued interest charges; that subsequently an agreement. was made between the plaintiff and the defendant and Mr. Ho to the effect that the defendant would be permitted to set off against the advance of $1.35 M. for the Canadian $240,000 he had advanced into the joint venture on Mr. Ho's behalf. And the Defence goes on to plead that since prior to that event the defendant had, as is conceded by the plaintiff, repaid some HK$400,000 out of the $1.35 M., there was a balance owing to the defendant rather than anything owing by the plaintiff to the defendant.

4. The defendant has appeared in person, having parted company with his Hong Kong solicitors some time earlier this year, I think in June, and was consequently at a disadvantage. But I would like to say that the Court has had every assistance from Miss Yuen, who has appeared for the plaintiff in this action and who, if I may say so, in accordance with the best traditions of the Bar, has presented her case with the utmost fairness and has not hesitated to lend assistance to Mr. Yip wherever it has been possible without, of course, detracting from her duty to her own client. Miss Yuen submitted that on the state of the pleadings before me the fact of  payment to the defendant being admitted, and justification for its non-repayment lying with the defendant, it was for the defendant to begin. I took the same view as Miss Yuen when that application was made but subsequently I have had some misgivings as to my ruling because the question of quantum was unresolved on the pleadings. However having heard further argument from Miss Yuen I am reassured that my original decision was not wrong because it appears to me that what is being claimed here is in effect a sum owing under contract not properly described as damages, and since the allegation that the amount is due and owing under contract is not traversed in the Defence it must be deemed to be admitted. If it had been damages, of course, the contrary presumption would have arisen, namely, that it was denied and there would have been an issue on the pleadings still resting with the plaintiff. As it is, as I say, and having heard further argument I am confirmed in my original view that here the evidential burden did rest upon the defendant so that he should begin. I may say that Mr. Yip not only did not oppose the application but said that he preferred to begin. I ought to say also, at this stage, that during the course of this hearing Mr. Yip, the defendant, renewed an application which he made originally before me last week to have this case stood out of the list so that he might seek the opportunity of considering further documents in the case and perhaps to take the opportunity also of speaking to his son in Canada who is intimately involved in these matters. I did not allow that application. One basis for the application was that I gave leave to the plaintiff to amend his reply and defence to counterclaim as late as the 15th October this year. It seemed to me then, as it still seems to me now, that the amendments to that pleading did not raise any new issue of fact such as might embarrass Mr. Yip in presenting his case. Consequently I refused his application last week and I refused it when it was renewed yesterday, except that I allowed Mr. Yip overnight to have the opportunity of speaking to his son in Canada, which he managed to do, and also to look again at some of the documents with the result that he was able to put before me certain hearsay notices which I have taken fully into account. I also considered, I may say, that Mr. Yip's other reasons for seeking an adjournment seemed to me to be altogether too speculative and too vague to be acceded to.

5. Mr. Yip gave evidence himself and, in what I considered to be a bold throw, called Mr. Ho who was here, I imagine, to give evidence for the plaintiff. The corner-stone of his case collapsed when it emerged in cross-examination that far from it being the case that the Canadian $240,000, which :was put into the joint venture between the company with which he is connected, Ip Investments, and Mr. Ho, had been provided by him, in fact it had been provided by the plaintiff in the form of a loan to Mr. Ho, supported or secured by a promissory note, and so that which was pleaded in paragraph 4(2) was unsupported. That Mr. Ma, the plaintiff, having already put in Canadian $240,000 in the way of a loan to Mr. Ho would have been prepared to remit bulk of the sum which he advanced to Mr. Yip on the 24th January 1980 is incredible. Mr. Yip did tell me that there was a meeting in the Jockey Club, either in the summer of 1982 or the summer of 1983, but he thinks probably 1982, when Mr. Ho said in effect that he could forget about repaying what was left of the sum paid to him by Mr. Ma, and that Mr. Ma was present at that meeting and did not demur. Mr. Ho, his own witness, would not accept that that was the case, and Mr. Ma, when he gave evidence subsequently, denied that it was the case. I think there must be some misunderstanding about it and I am not satisfied that there ever was any agreement on the part of the plaintiff releasing Mr. Yip from his obligation to repay the sum as evidenced in the document which I have read out. In so far as the burden did rest upon Mr. Yip he has failed to discharge it. Mr. Ma has told me that in about March 1980 he told Mr. Yip at a meeting when Mr. Ho was also present, which took place at a dinner in the Pearl Restaurant, that he did not wish to continue with the suggested investment in Canada and that he wished to have his money returned to him. Mr. Ma also told me that some months later he wrote a very restrained letter which he handed to Mr. Yip asking for his money back and that letter, or a copy of it, has been produced before me. I have to say I accept Mr. Ma's evidence about that letter in so far as there is a conflict over it. I cannot believe that that letter, or the copy of it, has been forged for the purposes of litigation or for any other purpose. If the letter was written, I think it must be the case that it was delivered, and if it was delivered by hand then Mr. Yip must have seen it.

6. In the event, the plaintiff succeeds in his claim. I am satisfied on the evidence that the interest charges pleaded in the Statement of Claim have been incurred and also the other charges. Consequently there will be judgment for the sum claimed for the plaintiff with costs. The counterclaim is dismissed.