SONG FU HSIUNG v. WONG LAI KWAN AND ANOTHER

DCCJ 4273/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 4273 OF 2011

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D E C I S I O N

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1. This is the plaintiff’s application for leave to appeal against my decision to rule in favour of the defendant on her interpleader application.

2. Mr Tang, counsel for the plaintiff, submitted that:

(a)   the defendant failed to show that her professed expectation to be sued by the claimant was genuine and had a real foundation; and

(b)  the defendant failed to show that she did not collude with the claimant.

3. In considering whether to grant leave to appeal, I am to consider whether the plaintiff has a reasonable prospect of success on appeal or whether there is any other reason that leave should be granted. 

4. Mr Tang submitted that the defendant and the claimant have put forward insufficient evidence to show that the claimant’s claim is a genuine one.  Mr Tang said the defendant ought to have put in more evidence in relation to the source of the money and documents evidencing the transaction between the claimant and the defendant and the demand by the claimant of the money from the defendant after the money was frozen.

5. In my view, I do not see much more is to be expected on the part of the defendant to do in adducing evidence to prove the transaction.  There is a contract between the claimant and the alleged buyer produced to show that the money would be transferred from the relevant HSBC account to the defendant’s account and there is evidence from the claimant that he instructed the defendant to remit the money to his PRC account.

6. There is nothing unusual in relation to this transaction as a remittance agent.  There is clearly a prima facie claim against the defendant should the defendant refuse to pay the money to the claimant upon demand.  In my view, sufficient evidence has been adduced to lay the foundation that the defendant will be facing a claim against her by the claimant and hence there are conflicting claims faced by the defendant in relation to the same sum of money.

7. Mr Tang asked me to draw an inference that there is a collusion between the defendant and the claimant from the evidence.  As I have mentioned in my written decision, the allegation of collusion is not particularized anywhere in the plaintiff’s materials and I do not see I can readily draw such an inference based on the present evidence. 

8. The plaintiff relied heavily on the fact that the defendant ought to have put in more evidence in relation to the source of the money. As I said, the case of the defendant and the claimant was that the money was agreed by the claimant and the alleged buyer to transfer from a local Hong Kong bank account to the defendant’s account.  There is simply no basis to assume that there would be evidence held by the defendant showing more detail about the source of the money.

9. And the fact that the claimant does not put in more evidence at this stage in relation to the buyer does not show any collusion on the part of the defendant in that it is in the end the defendant’s application for an interpleader application and there is no obligation on the part of the claimant to adduce evidence in support of the application.

10. It would be better if the defendant mentioned the claimant’s claim earlier at the injunction hearing.  However, as the defendant asserted no interest on the money, the fact that she did not mention the claim does not necessarily mean that the claim is not a genuine one, in view of the fact that what the defendant has done was only giving an indication that she has nothing to say at the hearing. 

11. In the premises, I do not see there is a reasonable prospect of success on the proposed appeal against my decision and also I can see no other reason to grant leave to appeal and therefore the application for leave is refused.

12. Costs should follow the event.  Costs of this application be to the defendant and the claimant.

13. Costs of the defendant be summarily assessed at HK$21,000, payable forthwith.

14. Costs of the claimant be summarily assessed at HK$15,885, payable forthwith.