CLEMENT PUI YIU CHAN v. MA KA LAU

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1997, No. 242
(Civil)

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J U D G M E N T

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Nazareth, Atg CJHC:

1. This is an appeal against the decision of Pang J given on 31 October 1997 dismissing the appellant's appeal to him from a master's decision.

2. The appellant was the defendant in an action in the Court of First Instance. The claim against him was for a sum of $460,000 being the amount of a cheque drawn by the defendant on the Kwong On Bank in favour of the plaintiff. The Statement of Claim also set out some particulars of an agreement in the context of which the cheque was issued. However, the claim was made on the cheque which had been dishonoured.

3. The defence lodged by the solicitors, who then acted for the defendant, was simply that various paragraphs of the Statement of Claim were not admitted or denied. The plaintiff then applied for O14 summary judgment. This came before Master Kwan. The application was opposed. Affidavits were put in by both sides and, indeed, the parties appeared at the hearing before Master Kwan who in the event entered summary judgment on 1 August 1997. The defendant then appealed to the Court of First Instance. It was that appeal that came before Pang J who, as I have said, dismissed it with costs.

4. The defendant then appealed to this Court on 5 December 1997. In his notice of appeal he asks for an order that Pang J's order be set aside and that he, the defendant, be given access to original copies of two documents for handwriting examination. These documents are first Exhibit PYC-1, a document signed by the plaintiff and purporting to be signed by the defendant. It simply says this:

" April 14, 1993

It is hereby agreed that both signing parties of this document set up a fund of US$100,000.- as full and final amount for miscellaneous expenses in connection with the successful conclusion of a loan of US$50 million for the Central African Republic.

Mr Clement P.Y. Chan agrees [the plaintiff] agrees to pay US$60,000.- and Mr K.L. Ma [the defendant] agrees to pay the balance of US$40,000.- to set up the said fund.

Mr K.L. Ma has to keep Mr Clement P.Y. Chan fully informed and, in any case, at least once a week, on the developments of the loan application.

This agreement is dated in Hongkong on April 14, 1993."

The second document is Exhibit PYC-2 dated 10 September 1994 and it reads:

"This is to acknowledge receipt of Kwong On Bank Limited Cheque No.905324 for HK$460,000.00 dated 20th January 1995 (issued by) Mr Ma Ka Lau. The aforesaid amount is in repayment of the loan dated 15th April 1993 owing to Mr Chan Pui Yiu. In the event of (Mr Ma) failing to successfully raise the loan of US$50 million for Central African Republic, the aforesaid cheque must be honoured. Be afraid of no evidence, (we) hereby write to certify."

It has what purport to be the signatures of Mr Ma Ka Lau, Mr Yeung Ka Lung, a witness, and Mr Chan Pui Yiu. The defendant says that the signatures purporting to be his on both documents are forged.

5. As to the first document, PYC-1, the defendant has exhibited an identical copy MKL-1 which, he says, has upon it his genuine signature. But as mentioned, he says, the signature on PYC-1 exhibited by the plaintiff, is a forgery, as is that upon Exhibit PYC-2. As will be seen it has not been necessary and it is not necessary to rely upon either of these documents to dispose of these proceedings. If the documents are forgeries, then it is open to Mr Ma to pursue them in such manner as he thinks fit.

6. Having said that, I return to the defendant's notice of appeal. He goes on:

"And further take notice that the grounds of this appeal are that the title of the Plaintiff who negotiated the cheque in question, Exhibit 'PYC-3', is defective as he obtained such cheque by making false inducements to the Appellant, and with fraudulent issue of forged agreements, Exhibits 'PYC-1' and 'PYC-2' coupled with false affirmations, contrary to Section 30, Bills of Exchange Ordinance, Chapter 19, Laws of Hong Kong."

7. It is convenient at this point to say that the defendant has not pursued the point in relation to s.30 of the Bill of Exchange Ordinance and looking at its terms I, for my part, cannot see how it can assist him. He has not even begun to displace the presumption against him therein. However, the background to his grounds of appeal is set out in an affirmation which plainly he prepared himself. It appears to have been filed in the High Court in May 1997. In it he speaks of a joint venture agreement between him and the plaintiff who was the Honorary Consul for the Central African Republic. It was to enable a loan of US$50m to be raised for the Central African Republic. In the context of that the fund of US$100,000 was to be set up to meet the expenses of arranging the loan. As already indicated, US$40,000 of that was to be raised by the defendant and US$60,000 by the plaintiff, which the plaintiff in fact provided by a cheque for HK$463,800.

8. The affidavit runs to several pages of close typescript. I will only read paragraph 12 which sets out the circumstances in which the cheque was issued and delivered. It is that paragraph which is relied upon by Mr Stephen Kwan for the plaintiff. It reads thus:

"... the Plaintiff invited me and Annie MA Cheuk Yin (hereinafter referred to as ANNIE MA), my daughter and personal assistant, to meet him in his office on 10.9.199 and requested me to assist him by reviving the project loan for the Central African Republic. He also showed concern for his share of our JOINT-FUND. In fact, he did gave me a cheque, for the amount of HK$463,800.- as his share of our JOINT-FUND, some time after our signing of the agreement of 14.4.1993 (Exhibit marked 'MKL-1' ) . In the presence of ANNIE MA in the Plaintiff's office on 10.9.1994, I told the Plaintiff that I had full confidence to revive the project loan arrangements for the Central African Republic within 3 months provided that he had to issue a fresh letter of authorisation to the Fast Victory Limited and to behave properly and cooperate as a partner. I also told him that I could even refund his share of our JOINT-FUND to him provided he had to behave properly and cooperate closely with me as a partner to make the project loan successful. This he promised. I then instantly made out a Kwong On cheque (Exhibit snarled 'PYC-3') for the amount of HK$460,000.- and post-dated to 20.1.1935. This he accepted. I did not sign any agreement with the Plaintiff there and then. I did not meet a YEUNG KA LUNG there and then. The Plaintiff's 'September Agreement' (Exhibit marked 'PYC-2' is a false document. Also my signature on it is not my signature. ..."

9. Before us today, he has repeated those circumstances which he alleges attended the signing of the cheque. He added that in fact he subsequently realised that the meeting was simply a trap to get him to sign and deliver a cheque. He realised that, he says, when subsequent to that meeting the plaintiff ceased to communicate with him, failed to give him any information which he needed to provide bankers who might be persuaded to lend the funds. He also says his phone calls were not responded to, there was no cooperation, and the result was that he was unable to raise the funds. He has also suggested orally before us that he did inform the plaintiff at the time that the $460,000 would only be refunded if the funds could be successfully raised with the plaintiff's cooperation.

10. However all this may be, the claim, as I have said, is a claim upon a cheque. It is an unconditional cheque. The contention that there was some condition might weigh in some contractual relationship but the action is upon the cheque which is plainly unconditional. None of the claims the defendant makes as to forgery of the two documents, and as to what he says transpired in the meeting in any way affords him a defence to non-payment of the cheque. What he fails to realise is that a cheque in those circumstances is as good as money. This no doubt was also the view of the judge below. The appellant should have put in a bundle of documents. He failed to do so. In the event the plaintiff's solicitors have put in two bundles but despite trying, because it was for the defendant to obtain them and he did not leave them enough time to do so, they were not able to obtain the judge's reasons in time. However that may be, I can see nothing that would afford the defendant a defence nor any sort of defence that needs to be looked into. Plainly, there is no merit in the appeal and I would dismiss it.

Leong, J.A.:

11. I agree that there was no defence to the appellant on the payment of the cheque and the appeal should be dismissed.

Rogers, J.A.:

12. I agree. The Appellant gave a cheque. A cheque is to be treated like cash. It must be honoured only in exceptional circumstances is payment not to be enforced. Those circumstances include in particular fraud and total failure of consideration. Even if the documents alleged by the Defendant are forgeries, that still does not absolve the Defendant from liability to pay on this cheque. Mr. Ma, the Appellant, admitted he gave the cheque. He asserted that it was repayment of joint venture funds which was put into a partnership for joint venture by the Plaintiff.

13. In paragraph 12 of his affidavit, he said: "I also told him that I could even refund his share of our joint fund to him provided he had to behave properly and cooperate closely with me as a partner to make the project loan successful. This he promised. I then instantly made out a Kwong On cheque. (Exhibit marked "PYC-3") for the amount of HK$460,000.00 and postdated to 20th January 1995."

14. Even if the Plaintiff did not, as the Defendant said, behave properly and cooperate closely with him, that would only at best give the Defendant a right of action against the Plaintiff for breach of contract.

15. The Defendant before us said that the funds were to come from profit made out of a successful completion of a loan. But in paragraph 14 of his affidavit, he said: "Since the Plaintiff had breached his promise and had not behaved properly and cooperated closely with me a partner to make the project loan successful. I therefore did not deposit necessary funds into my Kwong On Bank account in due course to make good my postdated cheque."

16. That, to my mind, makes clear the reason why the cheque was not paid and that does not constitute a defence to the action brought upon it.

17. I can see no grounds for upsetting the judgment which had been entered below, despite the fact that we have seen no reasons for it.

Nazareth, Atg CJHC:

18. The appeal is accordingly dismissed.

[Having heard counsel and the defendant]

19. There will be an order that the defendant pay the plaintiff's costs of the appeal.