WU CHIU KUEN v. CHU SHUI CHING

1991, No. A4081

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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J U D G M E N T

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1. This is a claim by the plaintiff against the Defendant for a half share in the winnings of a Mark Six ticket which came out in a Lottery on 3rd April, 1990. The plaintiff claims that he and the defendant contributed equally towards the buying of four Mark Six tickets one of which won a First Prize and six Third Prizes, with a total winning of $1,118,000 and that he was entitled to $559,000.

2. The plaintiff was a casual worker or messenger at the Chuen Shek Mahjong Amusement Company in Castle Peak Road. It was a place where people would go to play mahjong and was commonly called a Mahjong School. The plaintiff's work consisted of doing odd jobs in the Mahjong School and running errands for patrons. Most of the time, he would run these errands on the instructions of his superiors and supervisors, but occasionally, he would receive instructions directly from regular patrons whom he had befriended. Whenever he went out, he would either seek the permission of his supervisors or notify them first.

3. The defendant was a regular patron of this Mahjong School and went there two or three times a week. In April 1990, he had known the plaintiff for about 1½ years. It is the plaintiff's case that in the past, on as many as 30 occasions the two had shared in the buying of Mark Six tickets. Sometimes, he kept the tickets and at other times the defendant did. When the tickets were kept by the defendant, the plaintiff sometimes wrote down the number if he had the time. But when the tickets were kept by the plaintiff, the defendant did not copy down any numbers. They had never won before. On 3rd April, 1990, at around 4 p.m., the defendant went to the Mahjong School to play mahjong. He was playing at Table 1 near the entrance. The plaintiff said that while playing mahjong, the defendant called him to the table, took out a few $10 notes from the drawer, gave them to him and asked him to share in the buying of Mark Six tickets for the Lottery that evening. He also heard the defendant say that he (the plaintiff) could either buy computer quick-pick tickets or choose whatever numbers he liked. The plaintiff did not count the money at that stage but merely said that the defendant could leave the matter to him. He then left the Mahjong School and went to the Off-course Betting Centre in Castle Peak Road. He approached Counter No.9 and bought two computer quick-pick tickets of $10 each, one computer quick-pick multi-bet ticket and another multi-bet ticket with seven numbers of his own choice, namely 12, 20, 23, 30, 31, 35 and 41. Each multi-bet ticket cost $14. For these four tickets, he paid $48 using the notes given to him by the defendant (which he found out to be $30) and $20 of his own money. Each of them therefore had contributed $24. After he had bought these tickets, he tried to copy down the numbers on the back of a blank Mark Six ticket at a closed counter. After he had copied down some of the numbers, he realised that he had to go back to the Mahjong School for dinner at 5 p.m. and so he stopped copying down the other numbers. When he returned to the Mahjong School, he handed the four tickets to the defendant together with, he said, the change of $6 and told the defendant to keep the tickets well. According to him, the defendant said: "All right. If the tickets win, you just wait for the sharing of money."

4. Later in the evening, the plaintiff rang up the Jockey Club and found out that the multi-bet ticket which he selected had won a First Prize with a winning of $990,000 odd. At that stage he did not know it had also won six Third Prizes. He said he was very happy and could not get to sleep the whole night. Early next morning, he went to a nearby Police Post and wanted to report this to the Police. He said he did that because he did not know where the defendant lived and he feared that the defendant might not share the winnings with him. He subsequently spoke to the Police Officer at the Post but was told that it was still early, that he should wait until the Jockey Club opened and that the defendant might be looking for him there. So the plaintiff went to the Jockey Club. He told the Manager there that he had shared the winning ticket with another and he gave his particulars. The Manager told him to wait. Later, the defendant arrived with his wife and son at the Jockey Club. The plaintiff said that the defendant offered to pay him $100,000 but he refused to accept claiming for half of the winnings. A dispute ensued. The plaintiff dialled 999 and called for the police. They then went together to the Happy Valley Police Station. However, the officer there, he said, abused him. So he left the Police Station.

5. Thereafter, the plaintiff tried to look for the defendant who did not go to that Mahjong School any more. He said he managed to find the supervisor of the Mahjong School and the three persons who had played at the same table with the defendant on 3rd April, 1990 and they agreed to be his witnesses. He also went to the Legal Aid Department and sought assistance to pursue his claim against the defendant. He said he was advised by the Legal Aid Department to get these witnesses to make statutory declarations regarding the events on that day. In the event, they all did at different times and at different City District Offices.

6. Some time in October, 1990, while he was at work, the plaintiff received a telephone call from a friend telling him that the defendant was then playing mahjong in a Mahjong School near Temple Street. He went there immediately and located the defendant. He asked the defendant to go to have tea in a nearby cafe. There he demanded for the money. An unpleasant exchange followed. In the spur of the moment, he said, he picked up a bloomstick and hit the defendant with it. It was put to him that in fact he went there with a friend and armed with a hammer and that he blackmailed and injured the defendant. The plaintiff denied this. But in any event, the matter was reported to the Police. He was arrested, charged with assault and later fined $1,000. Having failed to obtain any money from the defendant, he commenced this action.

7. At the trial, the plaintiff called as witnesses the four persons I have mentioned earlier. PW2 was another regular patron of the Mahjong School. He said he could remember the incident on 3rd April, 1990 because three days after that, he was asked by the plaintiff to recall what happened. He said on that day, at around 4 p.m., he was playing mahjong at the same table as the defendant. While playing, he saw the defendant called the plaintiff to come over and told the plaintiff to buy Mark Six tickets by contributing equal shares and by either buying computer quick-pick tickets or filling in the numbers himself. He heard the plaintiff say : "All right, let me make the decision". The defendant opened his drawer and took out several $10 notes and gave them to the plaintiff who then walked away. PW2 then played for another while and changed to another table. He said he had previously seen two to three similar occasions. But when cross-examined, he contradicted himself as to how many such occasions involved the plaintiff and the defendant. He thought it was $30 that the defendant gave to the plaintiff. He said this because he had then just called a table whereupon the defendant paid him and he had given the defendant the change and therefore he guessed that that was the amount of money the defendant had in his drawer. He said he did not hear any mention about how many tickets were to be bought and how the two were to share in buying tickets.

8. PW3 was the supervisor of the Mahjong School. He said that at the material time, he was standing at the counter near the table at which the defendant was playing mahjong. He saw the defendant take out several $10 notes from his drawer and give them to the plaintiff saying : let's share in buying Mark Six tickets. He had the deepest impression of this but could not remember anything else. He said the plaintiff asked for his permission to go out and left. When the plaintiff returned, PW3 said he saw him handing back several coins and some tickets to the defendant. He contradicted PW2 in that he said after someone had called a table, no change was given to the defendant. He also said that when the plaintiff returned, it was the same four players and nobody had changed to another table.

9. PW4 was an employee of the Mahjong School and worked as a substitute player when there were not sufficient players for a table. He was one of the players at the defendant's table on 3rd April, 1990. He confirmed what was said by PW2 and PW3 regarding the buying of tickets. He said he did not see the plaintiff return because he had moved away after the arrival of another patron. He further said that on five to six previous occasions, he saw the plaintiff and the defendant share in buying tickets and on one occasion, he even saw the plaintiff handing some lost tickets to the defendant. He said he had also bought tickets with the defendant but he was unable to give any details.

10. PW5 was also a patron to the Mahjong School. She said she was one of the players at the same table as the defendant on 3rd April, 1990. She claimed that she heard the defendant say to the plaintiff : "let's share to buy Mark Six; if the tickets win, we would share the winnings". She said she saw the defendant took two to three $10 notes from the drawer and gave them to the plaintiff. When the latter returned, he handed several coins to the defendant. This witness emphasized however that apart from these, she was not clear about any other thing. It was about one week after the event that the plaintiff told her he had shared tickets with the defendant and had won but the defendant had refused to share the winnings. She was asked to be a witness. She admitted she had some difficulty in hearing.

11. These four witnesses had been cross-examined extensively. Counsel for the plaintiff urged upon me to consider them as truthful and reliable witnesses. He submitted that they were independent - two of them, i.e. PW2 and PW5 were patrons and the other 2, i.e. PW3 and PW4 were no longer colleagues of the plaintiff. Having considered their evidence carefully, I must say I have to view their evidence with some caution. First, they all admitted having heard after the incident at one time or another the plaintiff say that he had shared some Mark Six tickets with the defendant and had won but the defendant had refused to share the winnings and disappeared. They heard the plaintiff saying these to others and heard others talking about it. This must have been a hot subject for discussion at the Mahjong School with the plaintiff repeating it from time to time. It is true that their evidence contained some discrepancies and inconsistencies. But I am satisfied that none of these 4 witnesses had deliberately lied. However, I am not free from doubt that they were "independent" in the sense that they had not been subconciously affected in their recollection of the incident by what the plaintiff had been telling them subsequently. Second, the environment in the Mahjong School is certainly quite different from that in which friends and relatives play mahjong on social occasions. In a Mahjong School, patrons come and go. They play with people they may not even know. They play a few rounds or even a few hands. They leave when they have lost all their money and stay on for a while longer if they win. They have to play by some strict rules of the game. Under these circumstances, they would naturally concentrate on their own game and mind their own business. They would pay little attention to what is said or done by others which does not concern themselves. Needless to say, the whole place would be rather noisy with the shuffling of mahjong tiles. That being the case, it may not be all that easy to notice what is said or done during the game, let alone recalling it a few days later. For these reasons, I would approach the evidence of these witnesses with some circumspection.

12. The defendant also gave evidence. He was a retired clerk in a solicitor's firm. He used to play mahjong in that Mahjong School for three to four times a week in order to pass the time. He had been a regular patron for one to two years. He knew the plaintiff and had on previous occasions asked the plaintiff to go and buy things, such as bread or Mark Six tickets, for him and if the plaintiff was not available, some other messengers in the Mahjong School would do that for him. He said that whenever he asked the plaintiff to buy Mark Six tickets for him, he would give him a small piece of paper with the numbers written thereon and ask him to fill in the particulars. He would tell the plaintiff the type and number of tickets to buy and based on these he would pay the plaintiff the amount of money required. As an incentive, he said, he would tell the plaintiff that if the tickets won, he would buy him tea or give him a share or give him a certain amount of money. He said he had asked the plaintiff to buy tickets for eight to ten times before. On 3rd April, 1990 he did go to that Mahjoing School to play mahjong, but he could not remember with whom he had played. It was possible that he had played with PW2, PW4 and PW5 on that day. He recalled that while he was shuffling the Mahjong tiles, he asked the plaintiff to come over and to buy Mark Six tickets for him. He said he gave him a small piece of paper with 7 numbers written thereon and asked him to buy a multi-bet ticket with these numbers, one other computer quick-pick multi-bet ticket, and 2 other ordinary computer quick-pick tickets. He said he took a pile of $10 notes from his shirt pocket and gave them to the plaintiff. According to him, after the plaintiff had counted the notes, the plaintiff said there were $50 and left. The defendant said that he thought of the seven numbers himself while he was having tea earlier that day before going to play mahjong and he wrote the numbers on a small piece of paper torn from the corner of a newspaper. He further said that after 45 minutes, the plaintiff returned and gave him 4 Mark Six tickets and the small piece of paper. When the plaintiff was about to return the change of $2 to him, he said there was no need and that the plaintiff could keep the change as tips. He could not remember whether on that occasion he had said anything to the plaintiff about what would happen if the tickets came out. However, he was sure he did not say : let's share in buying Mark Six tickets. He said he had never shared with the plaintiff.

13. In the evening, he found out that he had won. And so on the next day, he went to the Jockey Club to collect the winnings but saw the plaintiff and another man there. He offered to pay the plaintiff $10,000 as tea money but the plaintiff refused to accept, saying : "I buy the tickets for you. I should get a half share." They had an argument and at the end, the plaintiff made a report to the Police. Both were then taken to the Police Station. He said the Police advised.him not to go to that Mahjong School any more to avoid further trouble. He could not get the winnings on the next day because it was a public holiday and he finally collected them on a later date.

14. Some time in October, while he was playing mahjong at another Mahjong School in Temple Street, the plaintiff and another man approached him fiercely and asked him to come out to have a chat. At first, he refused. But the plaintiff showed him a hammer tugged at the waist. He was frightened and so he went down with them to a nearby cafe. He said inside the cafe, the plaintiff demanded $50,000 from him but he offered $5,000 because all his money had been distributed. When the plaintiff asked to have that sum, he said he did not have the money then but would send a cheque by post to the plaintiff's address. The plaintiff then asked to go to his home to get cash and when he said he did not have so much cash at home, the plaintiff took out the hammer and hit him with it. As a result he was injured. He said that this was a deliberate attempt by the plaintiff to try to extract from him money to which the plaintiff was not entitled.

15. A lot of the evidence are clearly in dispute. But both parties accept that

(1)    on 3rd April, 1990, at the Mahjong School, the defendant asked the plaintiff to buy some Mark Six tickets and gave him some money;

(2)    the plaintiff did go and buy the 4 tickets and handed them to the defendant;

(3)    on 4th April, 1990, the plaintiff first went to the Police in the early morning, then went to the Jockey Club and finally reported the matter to the Happy Valley Police Station;

(4)    at the end of April, 1990, the plaintiff sought the assistance of the Legal Aid Department and he asked these four witnesses to support him, and

(5)    in October, 1990, the plaintiff demanded money from the defendant and when this failed to get anything, he assaulted the defendant with a hammer.

16. The main issue I have to decide is whether the plaintiff and the defendant had agreed to share in the buying of the four Mark Six tickets both contributing equally for these tickets. The plaintiff said they did. The burden is on the plaintiff to satisfy me on a balance of probabilities that this was the case. From the preceding paragraph, it is quite clear that his behaviour after the incident was to say the least rather unusual. In my view, there can only be three possible situations. First, there was indeed such an agreement in which case, the plaintiff is entitled to a share of the winnings. He has a legitimate interest in the tickets and must therefore succeed. Second, there was no such agreement and the plaintiff was merely trying to get as much money as possible out of the defendant by lawful or unlawful means in which case the plaintiff must fail. Third, there was no such agreement but the defendant had made a gratuitous promise to the plaintiff to share the winnings, if any, with him. This somehow gave the plaintiff a reasonable expectation that he would get a substantial share in the winnings. In such a case, he would also fail because there was no consideration for the defendant's gratuitous promise. It is not the plaintiff's case that going out to buy the tickets was a consideration for a share in the winnings. I have to analyse the evidence, particularly the plaintiff's behaviour, in the light of these 3 possible situations.

17. I start with exhibit P1. This is the blank Mark Six ticket on the back of which the plaintiff alleged he had written down the numbers of some of the tickets purchased by him. It is significant to note that between the afternoon of 3rd April and the morning of 4th April when the two met at the Jockey Club, there was no communication between the plaintiff and the defendant. How could the plaintiff have known that one of the tickets he had purchased had won? The only answer to this question is that the plaintiff must have copied the numbers down before he handed the tickets to the defendant, otherwise he could not have checked the numbers and found out that one of the tickets had come out. It follows that, notwithstanding the many criticisms by counsel for the defendant, these numbers could only have been copied down by the plaintiff contemporaneously and not at a subsequent time. Why then would the plaintiff have copied down these numbers after he had purchased the tickets? In my view, this can only be consistent with the plaintiff either having a legitimate interest in the tickets or a reasonable expectation that he could share in the winnings. If he had neither of these, he would not have bothered to copy the numbers down and it is unlikely that not knowing whether the tickets would win, he would have copied down the numbers in the hope that in case the defendant won, he could use this to extract money from him. I have not lost sight of the fact that the plaintiff had not copied down the numbers of all of the four tickets but only a few including the winning numbers. He explained that he was then in a hurry to return to the Mahjong School to have his evening meal and that if he was late, he would have missed his meal. One may think that taking down all the numbers should not take very long and that this explanation is not entirely convincing. This is certainly a factor I have to bear in mind when assessing his overall credibility. But the fact that the plaintiff had copied down only some but not all of the numbers can, in my view, be regarded as something in his favour. For, if he had already planned or intended to take advantage of the situation to extract money from the defendant when he purchased the tickets, there is absolutely no reason why he would not have copied down all the numbers.

18. The plaintiff's report to the Police Post early in the morning of 4th April is another important consideration. This is certainly not the type of behaviour one would expect of a person who knows well he is not entitled to anything and yet wants to make a bogus claim. The police would be the last place a dishonest claimant would like to go to. Was he not afraid that the police might make enquiries and find out the truth? Yet that was the first place the plaintiff went to on the following day. His reason was that he feared that the defendant would not give him a share and that he did not have the defendant's address. Counsel for the defendant attacked this as a sign of lack of trust which must exist in a joint venture as alleged by the plaintiff. Given the plaintiff's position in the Mahjong School and his background, one may think that his fears could have been genuine. In my view, his reporting to the police is more consistent with the behaviour of a person having either a legitimate interest or at least a reasonable expectation in getting a share in the winnings. And of these two possibilities, I am inclined to prefer the first. This is because if the plaintiff had merely a reasonable expectation as a result of the defendant's gratuitous promise, it is more likely that he would wait until he had an opportunity to approach the defendant and after the defendant had refused to honour such promise.

19. Next I would consider what happened at the Jockey Club. The plaintiff's version differs from that of the defendant. He said the defendant offered to pay him $100,000 but this was less than his entitlement and so he refused to accept. The defendant on the other hand said he offered the plaintiff $10,000 as tea money but the latter rejected it. It is of course not easy to resolve this factual dispute. But if it was indeed the case that the plaintiff had refused to accept the $100,000, then it can be an indication that he might have a genuine belief that he had a legitimate claim to a share more substantial than $100,000. If he had merely a reasonable expectation, one would expect that perhaps he would be content with $100,000 at least for the time being. After all, I do not believe his income could be very much and this sum represented many many times his monthly salary. Quite on the contrary, he not only had a quarrel with the defendant, but even dialled 999 for the police. As I said earlier the Police Station would no doubt be the place he would avoid if he could if he did not think he had a legitimate interest or claim.

20. Then there was the plaintiff's application for Legal Aid as early as the end of April 1990 and his effort in getting four witnesses to testify on his behalf. I accept that this is not unequivocal and is equally consistent with having a legitimate claim as with a groundless claim.

21. I now come to the incident in October, 1990. I must say at once that I am not impressed by the plaintiff evidence on this aspect. He was obviously trying very hard to protect his friend, be it Wo Chai or Tai Chai, who went with him to locate the defendant. He was also trying to give himself an excuse in attacking the defendant in the cafe. I believe that he was anxious to look for the defendant and when he got information about where the defendant was, he went with his friend and armed with a stick or hammer. When he could not get the defendant into paying what he wanted, he was overtaken by fury and assaulted the defendant. This was of course a very silly thing to do for which he was charged, convicted and fined. But I must say that this type of conduct is, in my view, more consistent with a person with a firm belief that he had a genuine grievance and a legitimate claim or reasonable expectation than a blackmailer.

22. There is one thing which strikes me as rather puzzling. Neither the plaintiff nor any of his witnesses was able to tell me the details of the alleged joint venture in the buying of Mark Six tickets. None of them could tell me what was said when the defendant asked the plaintiff to buy tickets regarding : how many tickets they were to buy, what type of tickets they were to buy, how much the two of them were to contribute and how much each of them was to share if they won. There was evidence that the defendant had said : let's share in buying; if the tickets win, we will share, or words to that effect. He was seen to have given some money to the plaintiff, but it was not clear how much was given. The plaintiff admitted that he did not know how much or even count the money when it was given to him. According to the plaintiff, he was asked by the defendant to buy computer quick-pick tickets or to select the numbers. If there had been a joint venture, one would expect that there could be a better arrangement or clearer terms than what was alleged to be the case here. I must say this has caused me some concern. On the other hand, I think I must have regard to the realities of life. Like horse-racing, Mark Six Lotteries have become one of the most popular pastimes in Hong Kong. People from all walks of life buy Mark Six tickets regularly. Millions of dollars are poured into the Lottery Pool twice a week. The Lotteries have become a part of the way of life in Hong Kong. The plaintiff and the defendant are not highly intellectual persons or professional people. Like many other people, they do not usually organize their pastime hobbies as businessmen or lawyers. This is particularly the case when they come to buy and share Mark Six tickets. When people buy these tickets, they certainly hope to win. But I do not think any person would expect to win. There are even people who buy Mark Six tickets just for the sake of buying them and either forget to check the winning numbers or do not bother to do so. That is why some of the prizes are still waiting to be claimed. All these may account for the lack of clear and firm arrangements in the buying and sharing of tickets in this case or indeed in many other cases. Arrangements of this sort are very often informal and even loose at times. What is important is that the persons involved have acted on the informal arrangements and conducted in such a way that it is clear from all the circumstances that they have agreed and intended to buy the tickets together and share the winnings, if any, together. In my view, unless the parties' arrangements coupled with their conduct pursuant to such arrangements are so uncertain that a reasonable man cannot conclude that they have agreed and intended to buy and share the tickets together, I think the court should give effect to such an agreement.

23. Having heard all the evidence and watched the demeanour of all the witnesses including the plaintiff and the defendant, I must say I do not find their evidence to be entirely satisfactory. There are clearly exaggerations on some matters and evasiveness on other matters. The plaintiff was repetitive and grudging while the defendant was surprisingly detailed in respect of some conversations and yet could not remember other matters. I would however give allowance for their background and emotional involvements in this matter. The crucial issue here is whether the plaintiff and the defendant had, on 3rd April, share in the buying of the four Mark of proof is clearly on the plaintiff. After a careful consideration of all the evidence, I take the view that the series of conduct of the plaintiff at the material time and after the incident, are more consistent with a person having a legitimate interest and that if he did not have any share in the tickets, he would not have behaved the way he did in afterwards. I am therefore more inclined to accept the plaintiff's version of what happened at the Mahjong School in the afternoon of 3rd April, 1990. I find, on a balance of probabilities, that there had been pervious occasions when the plaintiff and the defendant had shared in the buying of Mark Six tickets, that on that day, the defendant asked the plaintiff to do the same and gave the plaintiff $30.00 telling him to buy either computer quick-pick tickets or tickets of his own selection, that both the plaintiff and the defendant intended to share in the buying of Mark Six tickets leaving the plaintiff to make the decision, that the plaintiff then bought the four tickets in question and contributed $24 towards the total stake of $48 and that one of the tickets won the First and Third Prizes. It is true that the arrangement at the Mahjong School was rather informal, but it is also clear that both of them intended to share and acting on this arrangement, the plaintiff contributed his share and bought the tickets. I am satisfied that the plaintiff had an equal half share in the tickets including the winning ticket and is therefore entitled to share equally in the total winnings. I would give judgment for the plaintiff in the sum of $559,000.00. There will be interest on this sum at 10% p.a. from 6th April, 1990, the day on which the defendant received the winning until the day of judgment and thereafter at judgment rate until payment. The plaintiff is also entitled to the costs of this action to be taxed if not agreed. The plaintiff's own costs will be taxed in accordance with the Legal Aid Regulations.

24. Lastly, I must say that this is not an easy case and I am indeed grateful to both counsel for their assistance. I should however add that this case is decided on its peculiar facts and I should not be taken as creating any precedent or seen to be encouraging a flood of frivolous and vexatious claims of a similar nature.