EL VINCE LTD v. WU WEN SHENG

CACV 216/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 216 OF 2004

(ON APPEAL FROM HCA 14607 OF 1999)

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REASONS  FOR  DECISION

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Hon Rogers VP:

1. I agree with the judgment of Tang JA.

Hon Le Pichon JA:

2. I agree with the judgment of Tang JA.

Hon Tang JA:

3. On 21 August 1997, the plaintiff paid $2,000,000 by cheque to the defendant.

4. The issue at trial was whether that was a loan to the defendant (“plaintiff’s case”) or it was a part repayment of $4,000,000 which was paid by the defendant to the plaintiff on 14 August 1997 (“defendant’s case”).

5. The plaintiff called only one witness, namely, Madam Wong, who had no personal knowledge of the alleged loan.  The learned judge found her to be “neither a credible nor reliable witness”.

6. Madam Wong’s brother, Wong Jen Tai, who allegedly had personal knowledge of the loan was not called although counsel then appearing for the plaintiff had indicated in his opening that he would be called.

7. On the other hand, the defendant gave evidence.  He also called a witness.

8. The judge dismissed the plaintiff’s claim.

9. In the appeal, Ms Lorinda Lau, counsel for the plaintiff submitted that the judge erred because he held that the burden of proof was on the plaintiff.  She submitted that since the receipt of $2,000,000 was admitted the burden had shifted to the defendant.  In support, she cited Mak Ka Hing v. Pang Ming Chung, CACV 215/2002, a decision of this court and Seldon v. Davidson [1968] 1 WLR 1083, a decision of the English Court of Appeal.

10. However, neither decision supports her contention.  It is clear that it is only when there is a clear admission of the payment of the money and no suggestion that it was paid in settlement of an existing debt, or that it was given in return for cash, or anything of that sort, that the burden of proof is shifted to the defendant.  See per Willmer LJ in Seldon at p.1088F and Le Pichon JA in Mak Ka Hing at paragraph 23.

11. Here, it was the defendant’s pleaded case that $2,000,000 was a part repayment of $4,000,000 paid by the defendant to the plaintiff.

12. Ms Lau also attacked the findings of fact made by the judge.  But, as she recognised, she has a heavy burden.  Far from satisfying us that the judge was plainly wrong, we are of the view the judge was entitled to disbelieve Madam Wong and find that the plaintiff’s claim based on a debt had not been proved. 

13. For the above reasons, the appeal was dismissed with costs.