DESERT PALACE, INC. t/a CAESARS PALACE v. YIP HON FAT, JIMSON

1992 No. A2335

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. Las Vegas in the State of Nevada attracts gamblers from all over the world. The Plaintiff is a well-known casino in Las Vegas. It has many Asian customers and quite coincidentally, two of them from Hong Kong with similar names were playing the tables on the night of 5th/6th February 1992. If a title were needed for this case, it would be "The case of the 2 Mr. Yip Hon's".

2. The Plaintiff brings this action against the Defendant seeking the return of US$210,000.00 which it says was paid to the Defendant by mistake.

3. The facts are fairly straightforward.

4. The Defendant had been a customer (if that be the right term) of the Plaintiffs since 1991 and in February 1992, he returned to try out his scheme to win at Baccarat.

5. On the evidence placed before me, I am quite satisfied that on 6th February 1992, a Mr. Yip Hon deposited chips to the value of US$210,000.00 with the Plaintiffs' cashier. The cashier, Thelma Joseph, who received this deposit mistakenly entered it onto the computerized account of the Defendant - Yip Hon Fat, Jimson.

6. The Defendant, in fact, deposited US$10,000.00 in cash together with 3 bank drafts totalling US$90,000.00.

7. The Defendant played Baccarat. He says he won a substantial sum of money. The Plaintiffs keep a careful track of players and the computer record of the Plaintiffs, which I accept, indicated that in fact he lost about US$32,000.00.

8. When the Defendant ceased playing, he went to the cashier's cage to settle up. The computer screen showed that his account had been credited with the US$210,000.00 deposited, as I have found, by Mr. Yip Hon. The Defendant did not have a receipt for the $210,000.00 which had been given to Yip Hon. The cashier, Ms. Alzina, was told either by the Defendant or by Mr. Leong, an employee of the Plaintiffs, that the Defendant had lost the receipt.

9. Unfortunately, Ms. Alzina made a serious error. She took out the hard copy of Yip Hon's receipt which had Yip Hon's signature thereon and gave it to the Defendant to sign. As it already had Yip Hon's signature thereon, the Defendant was given the opportunity, and I am satisfied that he took it, of copying Yip Hon's signature and obtaining the benefit of Yip Hon's credit.

10. The Defendant denies forging Yip Hon's signature, but the evidence including that of Mr. Westwood, a handwriting expert, whose evidence I accept, makes it clear that the 2 Yip Hon's signatures on the receipt were written by different people. Mr. Westwood was not able to say on the samples available to him that it was the Defendant who wrote the second and questioned Yip Hon signature, but based on all of the surrounding evidence which I have heard, I have no hesitation in concluding that it was the Defendant who so signed.

11. Ms. Alzina then gave the Defendant the 3 bank drafts and cash in the amount of US$178,000.00 made up as follows :-

Original cash deposit Erroneous deposit Travel expenses

$10,000.00 $210,000.00 $8,000.00 ------------ US$228,000.00

12. From that sum, she deducted US$50,000.00 owed by the Defendant to the Plaintiffs and evidenced by "markers" or IOU's signed by the Defendant. The actual cash sum paid to the Defendant was thus US$178,000.00 which the Defendant took in cash and immediately took a car to the airport to fly home to Hong Kong.

13. The Plaintiffs contend that this sum was only paid to the Defendant because of the mistaken belief that he was in fact entitled to the deposit of US$210,000.00, i.e. that it was his money.

14. The Defendant appeared in person and he elected to give evidence before me on affirmation and he was cross-examined by Mr. Bleach on behalf of the Plaintiffs. In essence, his evidence was that contrary to the Plaintiffs' computer records he won a substantial sum of money and thus was entitled to the cash which he took away with him. I reject his evidence that he won anything. I am quite satisfied that he lost a substantial sum in the region of US$32,000.00. The Defendant asserted that he had himself deposited chips to the value of US$210,000.00 with the Plaintiffs. I reject this evidence. He did no such thing. Further, if he had won, I find it inconceivable that he did not say so in emphatic terms when he received in March 1992 a letter before action from Deacons on behalf of the Plaintiffs. He ignored this letter and I reject his explanation for not replying. I accept that cultural differences are frequently at play, but when a casino says to a gambler that he lost when, in fact, he won, I would expect that gambler, regardless of race or religion, to protest with vehemence.

15. The Defendant relied upon the mistaken credit as evidence that the Plaintiffs' records and computer systems were unreliable. A computer can only be as good as the person who inserts the information into it, and in this case I am quite satisfied that a genuine mistake was made in crediting Yip Hon's deposit to the Defendant's account. All that the Defendant did thereafter was mere opportunism which has now come back to haunt him.

16. Ms. Alzina's evidence was taken by deposition in America pursuant to an order of Master Jones. She was cross-examined by Hong Kong counsel then representing the Defendant and I have read this cross- examination. Her evidence was videotaped, but neither party, in the end, saw any reason why I should watch the hour long video. I accept Ms. Alzina's evidence and have relied upon it in coming to my conclusions of fact.

17. Mr. Leong was employed by the Plaintiff in Hong Kong to assist the Plaintiffs in attracting customers from Hong Kong. He told me that Yip Hon was an established customer of 20 years or more long before he became employed by the Plaintiffs. He confirmed his witness statement and I accept his evidence as accurate and truthful. At the relevant time, he was actually at the casino and he accompanied the Defendant to the cashier's cage and was told by the Defendant that he had lost the receipt for US$210,000.00. This was after Mr. Leong had told the Defendant of the state of his account.

18. Gail Martinez was the supervisor on duty and it was she who received the Defendant's cash and bank drafts. She also recognized the signature of Thelma Joseph on certain documents.

19. Thelma Joseph was the cashier who unfortunately credited Yip Hon's US$210,000.00 to the account of the Defendant. She was due to give evidence but at the last moment she refused to come to Hong Kong. I granted an application that her evidence be admitted under the Civil Evidence Ordinance and the Rules of the Supreme Court. I recognized that the Defendant would not be able to cross-examine her, but I concluded that the interests of justice dictated granting the application. I have treated her evidence with caution but in the light of it and all the surrounding circumstances, I am quite satisfied that I can rely upon it.

20. It is not without significance that when Mr. Yip Hon himself attended to settle up he was paid his US$210,000.00 It is inconceivable that the Plaintiffs would have done that had they not been satisfied that he was the true owner of that fund.

21. Helen Stetson holds a senior position at the casino and she gave evidence before me. She explained how the Plaintiffs keep a record of gamblers' positions. She told me that there are casino employees at the tables who keep a record of the progress of gamblers and they enter that into or cause it to be entered into the computer records. She told me that these records are not intended to be more than a "good faith estimate" of the true position, but that it was quite inconceivable that the Defendant was a net winner. I accept her evidence and I accept the record which shows that the Defendant lost about US$32,000.00.

22. Despite the fact that a human error was made in relation to the deposit of US$210,000.00, I am satisfied, on the evidence I have received, that I can rely upon the computer records which were generated in the normal course of the Plaintiffs' business.

23. In my judgment, the evidence is overwhelmingly in support of the Plaintiffs case. The Defendant's version is unbelievable. There is no doubt in my mind but that a genuine mistake was made and that the Defendant has tried his best ever since to take advantage of it.

24. What of the law? I am satisfied that the law is correctly set out by Goff J. (as he then was) in Barclays Bank v. Simms [1980] I Q.B. 677 where it was held that :-

"Money paid under a mistake of fact was prima facie recoverable provided that the payer did not intend the payee. to have the money in any event, the money was not paid for good consideration, and the payee had not in good faith changed his position."

(See also The Law of Restitution by Goff & Jones, 4th edn., pp. 107-123 and Bullen & Leake, 13th edn., pp. 654-659)

25. The Plaintiffs have brought this claim fairly and squarely within the principles above-cited and it follows therefore that they are entitled to judgment for US$210,000.00.

26. The Plaintiffs also claim interest on that sum at a commercial rate. I think it reasonable to award interest from 1st April 1992 (by which date any person acting in good faith would have repaid the money) at one percentage point over the prime rate for 3 months US dollar deposits until judgment and thereafter at the judgment debt rate.

Costs

27. Having heard counsel and the Defendant, I decline to award indemnity costs but I propose to make an order that the Defendant do pay the Plaintiffs costs on a common fund basis.