XCHRX Troopers Securities Ltd. v. Tamang Sureshkumar Steven

DCCJ14015/2001

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 14015 OF 2001

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J U D G M E N T

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1. The Plaintiff takes out this summons for judgment under Order 14 of the Rules of the District Court.

2. The Plaintiff's claim in this action arises from a promissory note (hereinafter referred to as "note") dated 14 March 2000 under which the Defendant agreed to pay a sum of $114,631.67 to the Plaintiff by 15 equal monthly instalments of $7,000 each and the 16th instalment of $9,631.67.

3. At the time of signing the note, the Defendant had given the Plaintiff 16 post-dated cheques for payment of the amount as agreed. Except for the first four instalments the cheques were honoured, the Defendant was unable since the 5th instalment onwards to honour any of the remaining cheques.

4. The Plaintiff's case is that on or about 25 February 2000, the Defendant opened a trading account with the Plaintiff. Between 25 February and 1 March 2000, the Defendant gave instructions to the Plaintiff to place orders for the purchases of a number of different types of shares, namely HSBC shares, CSL shares and PCCW shares. The Defendant had sold the HSBC shares for a small profit. However, for the other two types of shares, the prices had gone down and as the Defendant failed to make payment for these shares before the deadline for payment, the Plaintiff sold off the shares, resulting in a debit balance of $106,147.15 in the Defendant's account.

5. The Defendant promised the Plaintiff that he would repay the said sum of money to them but failed to do so. The Plaintiff's own witness, Mr Kwong, in his affirmation states that he chased the Defendant for the repayment and had warned him that the claimant would call the police and take legal action against him. Eventually, the Defendant agreed to pay back the said sum by instalments.

6. On or about 13 March 2000, the Defendant came up to the Plaintiff's office and after negotiation, the Defendant agreed to repay the said sum, plus interest, amounting to $114,631.67 and signed a note to confirm the same. At the same time, the Defendant wrote out 16 post-dated cheques to make for the payment. However, after the first four cheques were honoured upon presentation on their respective due dates, the Defendant failed to honour the remaining cheques at all. Therefore, the outstanding sum still due and owing to the Plaintiff is $86,631.67.

7. The Defendant in his affirmation states that he decided to buy the CSL and PCCW shares after the Plaintiff's broker, Mr Kwong, assured him of good profit and no downside risk. However, after two or three days later, he received a call from Mr Kwong informing him that the Plaintiff had sold the shares at a loss and demanded from him to make payment for the loss. For the week that followed, the Plaintiff threatened him by saying that they would call the police and inform his boss about the matter. The Defendant went up to the Plaintiff's office to see them and the Plaintiff had asked him to sign the note by threatening him that they would take over his flat, make him lose his job, and send him back to his home country if he failed to do so. The Defendant saw no option but to sign the note and to write out the post-dated cheques as demanded by the Plaintiff.

8. Subsequently, the Defendant paid off the instalment up to the fourth one and thereafter he decided to stop paying the Plaintiff because he thought that they had been very unfair to him.

9. During the hearing in Chambers before me, the Defendant said that except for the transaction concerning the HSBC shares, he had no knowledge about the other two shares' transactions which was contrary to what he stated in his affirmation in that he said that he decided to buy those shares, albeit with assurances from the Plaintiff for good profit.

10. In Mass International Limited v Hillis Industries Limited & Another (CACV No. 192 of 1995), the court held that in an Order 14 application, triable issues must be shown and the court must be satisfied that there was a real or bona fide defence. The test for an Order 14 application was not whether the assertions were to be believed but whether those assertions were believable in the light of the evidence placed before the court. On the other hand, the court must not embark on a mini trial on affidavit.

11. Basically, the Defendant alleged that he was under duress to sign the note, but based on what he said about what the Plaintiffs had done to him - such as calling the police, informing his boss, taking over his flat, making him lose his job and send him back to his home country, etc - taking all these to the highest, in my view, do not constitute duress. Again, in the light of what he said in his affirmation and in court about the share transactions in dispute, that on the one hand he said he decided to buy, but on the other, he said that he had no knowledge about them. This is in complete contradiction with each other and cannot be resolved. Such assertions are unbelievable in the light of the evidence before the court.

12. I therefore find no triable issue in this application and I am not satisfied that there is a real or bona fide defence.

13. Judgment entered for the Plaintiff for the sum of $86,631.67.

14. Interest from the date of writ of summons until judgment at 10.86 per cent per annum and thereafter at judgment rate until payment.

(Costs submission)

15. Costs to the Plaintiff to be taxed if not agreed.