PACIFIC ACE FINANCE LTD v. DELAY, GILDA H. AND ANOTHER

DCCJ 3298 & 3299/2018
(Heard together)

[2024] HKDC 1735

DCCJ 3298/2018

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 3298 OF 2018

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AND

DCCJ 3299/2018

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 3299 OF 2018

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(HEARD TOGETHER)

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DECISION

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I.  INTRODUCTION

1.  Ms Delay is the 1^st defendant in DCCJ No 3298 of 2018 (“DCCJ 3298”) and the 2^nd defendant in DCCJ No 3299 of 2018 (“DCCJ 3299”). In each of the actions, Ms Delay filed a summons on 6 September 2024 (a Friday) returnable on the PTR to take place on 9 September 2024 (the following Monday), to seek an order under 47B(1) of the District Court Ordinance and O 24 r 7A that the Director of Immigration produce:-

(1)  The travel record of the 2^nd defendant in DCCJ 3298 since April 2015 and her “current address and contact (excluding her employer’s) if she is working in Hong Kong but inclusive of the Philippines address and contact”; and

(2)  The travel record of the 1^st defendant in DCCJ 3299 since April 2015 and her “current address and contact (excluding her employer’s) if she is working in Hong Kong but inclusive of the Philippines address and contact”.

2.  At the PTR, I gave directions for filing affirmations, and I heard the substantive argument today.

3.  At the hearing, Ms Delay informed the Court that she served the summons in each action on the Director of Immigration in person by hand on 7 September 2024. She also informed the Court that she served her affirmation in person by hand as well. However, there is no written acknowledgment of receipt of any of the documents. Nor has the Director written to the Court (as he would usually do) as to what position he would take.

4.  Given that Ms Delay acts in person, I am prepared to consider the merits of the summonses themselves on the basis that the Director of Immigration has been properly served and would take a neutral stance. Only if I am satisfied that Ms Delay’s summonses should be allowed, then I may have to consider whether to hear the Director of Immigration on the matter.

5.  In determining whether to allow a late application, I have to consider:-

(1)  Length of delay;

(2)  Reason for the delay;

(3)  Prejudice caused by the delay; and

(4)  Merits of the application themselves.

II.  DELAY

6.  The trial shall commence on 9 December 2024 with 9 days reserved. Ms Delay’s applications are quite near the trial. So, the delay is considerable.

III.  REASONS FOR DELAY

7.  Ms Delay’s explanation for her delay is that she received information from a person she did not identify that the 2^nd defendant in DCCJ 3298 left Hong Kong on 4 May 2015 and so it was impossible for her to sign on the promissory note on 4 May 2024 as alleged thereon, which promissory note is relied upon by the plaintiff for its claim in DCCJ 3298 (see below). In respect of the 1^st defendant in DCCJ 3299, Ms Delay says that because the 1^st defendant is related to the 2^nd defendant, it is also necessary to obtain the information concerning the 1^st defendant in DCCJ 3299.

8.  I do not accept the explanation, because she did not identify the person who informed her about the 2^nd defendant’s whereabouts on 3 May 2015, and also because there is no explanation why that person could not have told her about this earlier. In any event, this explanation is not applicable for DCCJ 3299 at all – the only explanation for the delay is DCCJ 3299 is that the 1^st defendant in DCCJ 3299 is related to the 2^nd defendant in DCCJ 3298. It is simply no explanation, let alone any valid explanation, for DCCJ 3299.

IV.  PREJUDICE CAUSED BY THE DELAY

9.  The documents sought are documents from the Director of Immigration and there could not be any realistic challenge to the accuracy of the contents thereof. It thus appears to me that there would not be much disruption caused to the trial, even if the documents are relevant.

10.  However, the most important question is whether the documents are relevant at all.

V.  RELEVANCE

11.  In DCCJ 3298, the plaintiff’s claim is that:-

(1)  The plaintiff is a licensed money lender.

(2)  On 4 May 2015, Ms Delay and the 2^nd defendant therein, as borrowers borrowing money from the plaintiff, made and delivered a promissory note to the plaintiff, whereby they promised to repay a loan of HK$13,000 by 6 instalments of HK$2,479 per month on 10 June 2015 and thereafter on the 10^th day of each succeeding month.

12.  Similarly, in DCCJ 3299, the plaintiff’s claim is that on 28 March 2015, Ms Delay and the 1^st defendant therein, as borrowers borrowing money from the plaintiff, made and delivered a promissory note to the plaintiff, whereby they promised to repay a loan of HK$10,000 by 4 instalments of HK$2,750 per month on 5 May 2015 and thereafter on the 5^th day of each succeeding month.

13.  There is no dispute that for each loan, some repayment had been made, but then the borrowers defaulted.

14.  Ms Delay’s defences are essentially the same in both actions. I only need to set out the defence relevant to the present purposes[1]:-

(1)  The loan in DCCJ 3298 is a loan lent solely to her but not the 2^nd defendant, whether as a joint borrower or a separate borrower.

(2)  The loan in DCCJ 3299 is a loan lent solely to the 1^st defendant therein but not to her, whether as a joint borrower or a separate borrower.

(3)  The plaintiff did not explain to the alleged non-borrowers (the 2^nd defendant in DCCJ 3298 and her in DCCJ 3299) why they had to sign the relevant documents as a joint borrower.

(4)  Further, the 2^nd defendant did not sign the promissory note in DCCJ 3298 on 4 May 2015  but on 3 May 2015, and Ms Delay did not sign the promissory note in DCCJ 3299 on 25 March 2015 but on 15 March 2015. So, the notes are forged or the dates therein are false contrary to section 71 of the Crimes Ordinance (Cap 200).

(5)  According to Ms Delay, the plaintiff’s intention was to secure the otherwise unsecured loans. I take this to mean that the plaintiff would be able to pursue the alleged non-borrower in the event that the borrower defaults in repayment, like a surety or a guarantor with primary liability.

(6)  Ms Delay calls (1) – (5) above a “Debt-Trapping Scam and Forgery”.

15.  For this defence, Ms Delay does not mount a case that the 2^nd defendant in DCCJ 3298 and the 1^st defendant in DCCJ 3299 were fictitious. Nor does she mount a case that the 2^nd defendant in DCCJ 3298 or the 1^st defendant in DCCJ 3299 did not sign or did not agree to the promissory note. The only dispute she raises is about the dates when the 2^nd defendant in DCCJ 3298 and Ms Delay herself signed the respective promissory notes. However, I fail to see how the alleged discrepancy of the dates could constitute any valid and relevant defence, when it is not Ms Delay’s case that the signatories did not agree to the contents of the promissory note.

16.  So, I do not see how the travel records of the 2^nd defendant in DCCJ 3298 and a fortiori the 1^st defendant in DCCJ 3299 are relevant (who, according to Ms Delay’s case, did sign the promissory note on 25 March 2015). Nor can I see how their addresses and contacts, whether in Hong Kong or in the Philippines, are relevant. Ms Delay’s argument that such information would testify against the plaintiff is totally unmeritorious.

17.  Ms Delay also made submissions that the addresses and contacts would help her to find the 2^nd defendant in DCCJ 3298 and the 1^st defendant in DCCJ 3299 so that she could ask them to testify at trial. If this were really her intention, then clearly, a discovery application is not the right course to take.

VI.  CONCLUSION

18.  In the premises, I dismiss Ms Delay’s summonses. Ms Delay shall pay the plaintiff the costs of the summonses forthwith, summarily assessed at HK$6,000 in each action (thus, in total, HK$12,000), already factored in the discount applied due to the plaintiff’s failure to lodge and serve the statement of costs in a timely manner as required by PD 14.3.