LI YU v. HUI YAN SUI WILLIAM

HCA 993/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 993 OF 2009

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J U D G M E N T

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I.  Background

1.  In the present action, the Plaintiff claims against the Defendant for the total sum of HK$6,000,000.00 and interest thereon pursuant to 6 dishonoured cheques each in the sum of HK$1,000,000.00 drawn by the Defendant as drawer in favour of the Plaintiff as payee:

Cheque no.	Date	Amended Date	Date of presentation	Reason for dishonour
595689	5/4/07	--	(1) 18/5/07	(1) Refer to Drawer
			(2) 11/10/07	(2) Out of Date
595690	31/4/07	--	(1) 18/5/07	(1) Refer to Drawer
			(2) 11/10/07	(2) Refer to Drawer
585691	31/5/07	31/5/08	29/12/08	Out of Date
640851	31/6/07	31/6/08	29/12/08	Refer to Drawer
640852	31/7/07	31/7/08	10/12/08	Refer to Drawer
640853	31/8/07		19/2/08	Refer to Drawer

2.  The aforesaid cheques nos.595689, 595690, 595691, 640851, 6408452 and 640853 are respectively referred to below as the “1^st to 6^th Cheques” and collectively as the “Cheques”.

3.  Upon the Defendant giving notice of intention to defend, the Plaintiff applied by summons dated 10 July 2009 for summary judgment of her claim against the Defendant.  She filed 2 affirmations of her solicitor and her own affirmation in support of the application whilst the Defendant filed the affirmation of his solicitor and his own 2 affirmations in opposition.

4.  From the affirmation evidence before the court, the following matters do not appear to be in dispute for the purpose of the present application:

(a)   the Cheques were drawn by the Defendant and handed over to the Plaintiff;

(b)  at the request of the Plaintiff, the Defendant amended the dates on the 3^rd to 5^th Cheques in the manner set out in paragraph 1 above and he also initialed such amendments;

(c)  the Plaintiff presented the Cheques for payment on the dates set out in paragraph 1 above;

(d)  according to the list of shareholders of Innocom Technology Holdings, Inc (“ITH”), the Plaintiff and her husband were respectively the holders of 900,000 and 200,000 shares, and the Defendant was the holder of 23,107,430 shares;

(e)   the share price of ITH between January 2006 and February 2007 was generally at or above US$1.00 per share, but as from March 2007 it was below such value.

II.  Defendant’s affirmation evidence

5.  The Defendant claimed that the Cheques were “all delivered on conditions and those conditions have not been fulfilled.  Because of that, the Plaintiff was not entitled to present these cheques for payment.”

6.  The Defendant stated that in/about March 2007, the Plaintiff requested him to help sell a batch of 550,000 ITH shares owned by the Plaintiff at US$1.00 per share, and he agreed to find an investor for such shares.  The market price of ITH shares at that time was about US$0.64 per share, so the Plaintiff decided to wait until the share price rose to US$1.00 per share before any sale.  But in the meantime, the Plaintiff asked the Defendant to issue the 1^st to 3^rd Cheques to her “for part payment of the purchase price for the shares in the event of a successful sale to an investor, the delivery of which was conditional on successful sale of the shares having been put through”.  The Defendant agreed to and did issue the 1^st to 3^rd Cheques “on that condition” because as major shareholder of ITH he was confident in finding an investor for the shares and further because he expected the share price of ITH to rise shortly.

7.  In/about May 2007, the Plaintiff requested the Defendant to help sell another batch of 550,000 shares “on the same terms” and to issue the 4^th to 6^th Cheques as security for part payment of share price for this new lot in the event of a successful sale of this new lot of shares having been put through”.  The Defendant agreed to help find an investor for such shares and issued the 4^th to 6^th Cheques to the Plaintiff “on condition that the same could only be used for part payment in case of a successful sale of these shares”.

8.  The Defendant claimed that the Plaintiff well knew that the 1^st and 2^nd Cheques were delivered to her “on condition that an investor could be found and that before this condition was satisfied, she would not be entitled to present the cheques for payment”, yet without the Defendant’s knowledge, she presented the 1^st and 2^nd Cheques for payment.

9.  In the following year, the share price of ITH failed to reach US$1.00 per share, so the share sales were withheld pending the share price reaching a level acceptable to the Plaintiff.  The ITH share price continued to drop below US$0.50 per share, and with no investor found the 3^rd to 5^th Cheques became out of date.  The Plaintiff asked the Defendant to amend the dates of such Cheques in the manner set out in paragraph 1 above “for the purpose of presentation in case of any successful sale of those shares”.  The ITH share price failed to recover to a level acceptable to the Plaintiff in the following 6 months, and no investor was found.

10.  The Defendant claimed “[the] Plaintiff well knew that the [Cheques] were not to be presented for payment until the sale of her and her husband’s shares could be successfully put through”, ie when the aforesaid condition was fulfilled, and he was unaware that the Plaintiff had presented the 3^rd to 6^th Cheques for payment.

III.  Plaintiff’s affirmation evidence

11.  The Plaintiff denied the above allegation, and claimed he never intended to sell his 900,000 ITH shares and never authorised anyone to do so on his behalf or to find a buyer for him.  He said he was still in physical and legal possession of such shares, and had never signed any bought and sold notes or instruments of transfer.

12.  It was said that there was a dispute involving sum(s) over HK$10,000,000.00 between various companies controlled by the Defendant (including Chinarise Capital (International) Limited and Chinarise Capital (Hong Kong) Limited) and a company in which the Plaintiff had beneficial interest (ie Acura Company).  The Plaintiff claimed that the Defendant issued the Cheques on a single occasion as instalment payments of a partial sum which he agreed to pay to the Plaintiff, and upon acceptance of the Cheques the Plaintiff agreed that those companies controlled by the Defendant would not be sued over the aforesaid dispute.  Hence, the Plaintiff took the Cheques for value and in good faith.

13.  The Plaintiff explained that he did not present the Cheques for payment on their respective due dates because the Defendant repeatedly told her he did not have sufficient funds but promised to pay her soon.  The Plaintiff waited for the Defendant to tell her when he could present the Cheques for payment, but the Defendant failed to keep his promise, so the Plaintiff decided to present the Cheques for payment as he considered appropriate.

14.  The Plaintiff’s solicitors issued pre-action demand letters to the Defendant in late 2008 and early 2009.  On 15 January 2009, the Defendant’s solicitors replied to say inter alia that “for reasons best known to [the Plaintiff]” the Cheques were not supported by consideration and that she was not entitled to present the Cheques for payment in any event.

15.  I pause here to note that the Defendant denied he gave the Cheques to the Plaintiff on a single occasion, and he argued that the different serial numberings for the 1^st to 3^rd Cheques and the 4^th to 6^th Cheques showed that they were given to the Plaintiff on 2 occasions.

16.  The Defendant also denied the Plaintiff’s allegations set out in paragraph 12 above, and in the absence of any particularity in respect of such allegations, he said the Plaintiff failed to demonstrate that she obtained the Cheques for value and in good faith.

17.  The Defendant explained that Chinarise Capital (International) Limited, a subsidiary company of ITH, did enter into an agency agreement dated 1 September 2004 to engage Acura Company as its agent to solicit orders for the sale of mobile phone handsets and components, and that Chinarise Capital (Hong Kong) Limited, an investment vehicle company partly owned by the Defendant, was not involved in the business of Chinarise Capital (International) Limited and/or Acura Company or in any dispute with the Plaintiff or companies owned by her. If there were any such dispute, it should be resolved between the involved companies and there was no reason for the Defendant to settle the dispute with the Plaintiff when both of them were shareholders of the parent company ITH.

IV.  Law on summary judgment

18.  A plaintiff may invoke the procedure under Order 14 of the Rules of the High Court where there is no valid defence to his claim or otherwise a triable issue. The rationale is set out in Hong Kong Civil Procedure 2010 Vol.1, para.14/4/1 at p.190:

“The underlying policy of the summary procedure is to prevent a defendant from delaying the plaintiff from obtaining judgment in case in which the defendant clearly has no defence to the plaintiff's claim: Man Earn Ltd v. Wing Ting Fong [1996] 1 H.K.C. 225. “Order 14 proceedings for summary judgment when there is no defence to a claim are an important feature of the legal process.  It enables plaintiffs in cases where there is no defence to obtain expeditious summary judgment to avoid unnecessary delay.  When applied for, it is for the defendant to show that there is a triable issue or an arguable defence if he is to be allowed his day in court.  To deny him his day in court, if he shows a triable issue or an arguable defence, is indeed a fearful injustice.  On the other hand, if he has no defence and he obtains leave to defence, equally, there is injustice to the plaintiff” (per Mortimer J.A. in Manciple Ltd. v. Chan On Man [1995] 3 H.K.C. 459 at 466).  The machinery of O.14 works on the basis that if the plaintiff's application is properly constituted, he is prima facie entitled to judgment unless the defendant shows cause to the contrary or the application is dismissed.”

19.  In Ng Shou Chun v Hung Chun San [1994] 1 HKC 155, Godfrey J noted it was not appropriate to embark on a mini-trial of the action on affidavit evidence.  The court should ask itself the question whether what the defendant says is credible or believable.  If so, he must have leave to defend; if not, the plaintiff is entitled to summary judgment.

20.  Hong Kong Civil Procedure 2010 Vol.1, para.14/4/9 at pp.230-232 went on to say that:

“It is trite law that the mere assertion in an affidavit of a given situation does not, ipso facto, provide leave to defend, since the defendant must satisfy the court that he has a fair or reasonable probability of showing a real or bona fide defence, i.e. that his evidence is reasonably capable of belief ……  “There is a difficulty because the court cannot resolve issues of fact on affidavits.  However, there are some cases in which the defendant’s own case, although apparently it raises issues which, if found in his favour, would provide him with a defence, are so incredible or so contradicted by contemporaneous documents or circumstances that it becomes clear that his defence is a sham”: per Mortimer J.A. in Manciple Ltd. v. Chan On Man [1995] 2 H.K.C. 459 at 466.  Two tests are appropriate, namely “Is what the defendant says credible?” and “Is there a fair or reasonable probability of the defendant having a real or bona fide defence?”  Where an issue of fact is raised, the first question must be answered in the affirmative before considering the second.”

V.  Law on dishonoured cheques

21.  A bill of exchange is to be treated as cash and honoured unless there is some good reason to the contrary.  Only in exceptional circumstances will a court deprive a claimant of judgment on a claim based on a cheque (Fielding and Platt, Ltd v Najjar [1969] 2 All ER 150, 152 and Sun Wah Aluminium Windows & Curtain Wall Company Limited v Panyu Fantasy Film City Limited operated as Sammyland HCA3119/2002, Sakhrani J (unreported, 17 October 2003)).

22.  In Nova (Jersey) Knit Ltd v Kammgarn Spinnerei GmbH [1977] 2 All ER 463, a case cited by Mr Kwok, counsel for the Defendant, Lord Russell of Killowen said at pp.479-480 that: “……  The bill is itself a contract separate from the contract of sale.  Its purpose is not merely to serve as a negotiate instrument; it is to avoid postponement of the purchaser’s liability to the vendor himself, a postponement grounded on some allegation of failure in some respect by the vendor under the underlying contract, unless it be total …… failure of consideration ……” (followed in Hong Kong in C A Pacific Forex Limited v Lei Kuan Ieong CACV126/98 (unreported, 14 January 1999)).

23.  In S Y Chan Ltd v Choy Wai Bor [2001] 3 HKLRD 145, 149, a case cited by Mr Ching, solicitor for the Plaintiff, Mr Recorder Kwok SC said as follows:

 “A cheque is an unconditional order in writing, drawn and signed by the drawer, requiring the banker to pay on demand a sum certain in money to, or to the order of, a specified person or to bear: ss.3 and 73 of the Bills of Exchange Ordinance (Cap.19).  The drawer of a cheque, by drawing it, engages that, on due presentment, it shall be paid according to its tenor, and that if it is dishonoured he will compensate the holder, provided that the requisite proceedings on dishonour are duly taken, s.55(1)(a).  Extrinsic evidence is, in general, inadmissible to prove that the terms of the contract differed from those expressed in writing on the cheque: Chalmers and Guest on Bills of Exchange, Cheques and Promissory Notes (15^th ed.) para.384”.

VI.  Conditional delivery or delivery in escrow

24.  Mr Kwok argued that the Cheques were delivered by the Plaintiff to the Defendant in escrow pending the sale of the ITH shares owned by the Plaintiff and/or the handing over of the Cheques were conditional upon the aforesaid sales of the shares being put through before they could be presented for payment.  As a result of non-fulfillment of such condition, the Cheques were not effectively “delivered”.

25.  The starting point is section 21(2)(b) of the Bills of Exchange Ordinance Cap.19 (“Ordinance”) which provides inter alia that “[as] between immediate parties …… the delivery may be shown to be conditional or for a special purpose only, and not for the purpose of transferring the property in the bill”.

26.  This is plainly a very limited defence. As explained by the Court of Appeal in Lin Hsien Tseng v So Sin Mui Bonnie [2004] 4 HKC 532, 535, the defendant had to establish that the parties “intended that the ‘cheque’ should be held in escrow by the payee such that the document did not have the qualities of a cheque at all as it had not been delivered. Certainly it is not enough to refer to the oral testimony of conditions which have allegedly been imposed before the cheque can be presented for payment.  The question which has to be determined in this action is whether the cheque in question was delivered in escrow or whether an attempt was being made to orally attach conditions to the payment of the cheque”.

27.  Thus, the question here is whether the Cheques were delivered conditionally as mere escrow and not for the purpose of passing property in them.

28.  To answer this question, it is necessary to turn to the nature of the aforesaid condition in respect of the alleged sale of the 1^st and 2^nd lots of the ITH shares owned by the Plaintiff.  As summarised by Mr Kwok in the course of his oral submissions, the nub of the Defendant’s case on the nature of the aforesaid condition is as follows:

(a)   before the sale of the 1^st and/or 2^nd lots of such shares was effected or put through, the Plaintiff was not entitled to present any of the 1^st to 3^rd Cheques and/or the 4^th to 6^th Cheques for payment;

(b)  but after such sale of the 1^st and/or 2^nd lots of such shares was effected or put through, the Plaintiff was entitled to present the 1^st to 3^rd Cheques and/or the 4^th to 6^th Cheques for payment.

29.  Even on the Defendant’s case, since the Cheques were to take effect and have the qualities of a cheque upon fulfillment of the aforesaid condition, it cannot be said that the Cheques were delivered in mere escrow and not for the purpose of passing the property in them.  There can be no doubt that the aforesaid condition is an oral qualification of the nature of the Cheques, which were unconditional orders for payment on or after the dates specified thereon and not upon fulfillment of the aforesaid condition.  In short, the aforesaid condition introduced an impermissible contingency into the separate and distinct written contracts represented by the Cheques that contradicted and were in defeasance of such instruments.

30.  There is a long line of clear and abundant authority to say that such qualification is inadmissible under the parol evidence rule (see Great Sincere Trading Co Ltd v Swee Hong & Co [1968] HKLR 660, Suen Ho Sun v Kamenar International Ltd [1989] 1 HKC 135, Lin Hsien Tseng (supra), Po Yuen (To’s) Machine Fty Ltd v Chan Siu King CACV209/2002 (unreported, 19 November 2002), S Y Chan Ltd (supra), and Lam Tai Kwan v Lo Wai Kit [2007] 1 HKLRD 367).

31.  Mr Kwok did not quarrel with the legal propositions in the above authorities, but placed reliance on what he described as the “procedural” approach by Trainor J in contra-distinction to the “substantive law” in Ken Kee Securities Co v Wong Yin Cheong (No 1) [1973-1976] HKC 55. Mr Kwok was constrained to draw such a nice distinction because the reasoning of Trainor J, which H H Judge Z Li in Lee Man Ching Mandy v Chiu Hing DCCJ16461/2000 (unreported, 22 February 2001) described as being diametrically opposite to that in Great Sincere Trading Co Ltd (supra), was doubted by Mr Recorder Kwok SC in S Y Chan Ltd (supra) and considered to be no longer good law by H H Judge Lok in Mightfort Engineering (HK) Limited v Chester Construction Company Limited DCCJ1904/2005 (unreported, 15 November 2005) and by me in Wesco China Limited v Liu Fu Tien DCCJ 2460/2005 (unreported, 3 January 2007).

32.  Mr Kwok asked me to follow the “procedural” approach in the following passages in Ken Kee Securities Co at pp.60-61 and leave the issue of whether the Cheques were handed over to the Plaintiff as escrow, which he agreed was a question of fact, to trial:

“ Whether these cheques were handed over as escrows is a matter of fact and a proper issue to be tried.  The importance is this, that if the cheques were handed over in escrow then the cheques were not completed bills of exchange and could not be sued upon as such ……

……

 I am satisfied that there arises in this case the question of whether or not the delivery of the two cheques were conditional or not.  If it was conditional then the cheques were incomplete bill of exchange and could not be sued upon as such and, as I said earlier, this was a proper matter to be tried.  On this ground alone I could allow the appeal and grant unconditional leave to defend.”

33.  However, I am not persuaded that the above passages are of any assistance in the present case.  As explained by Mr Recorder Kwok SC in S Y Chan Ltd (supra) at pp.152-153, what was really sought to be done in Ken Kee Securities Co (supra) was to vary the conditions of payment of the subject cheques by oral agreement.  In light of the Great Sincere Trading Co Ltd and S Y Chan Ltd line of cases, such oral agreement would be inadmissible leaving no factual issue of whether the subject cheques were handed over as escrow to go to trial.  To put it another way, if the matter of “substantive law” is a non-starter, there is simply no foundation on which any “procedural approach” can latch.  To suggest otherwise will be to allow inadmissible qualifications to the cheque to take effect under the guise of “procedural approach” to circumvent the parol evidence rule that disallows qualifications that vary or contradict the written contract of the cheque.

34.  Mr Kwok next contended that notwithstanding the parol evidence rule against admissibility of oral qualifications, the situation here it was different because the Defendant’s case was supported by documentary evidence in relation to the shareholding of the Plaintiff and her husband in ITH and the share price movement for ITH shares between 2006 and 2008.

35.  Such argument reflects a misunderstanding of the parol evidence rule which aims to bind a party to his contract written on the cheque by excluding extrinsic evidence to prove a condition or qualification that was different from the written terms expressed in the cheque, and which is not confined to oral evidence (Chitty on Contracts 13^th ed Vol.1, para.12-096 at pp.864-865).  In any event, the aforesaid condition as asserted by the Defendant was essentially an oral one, and the background documentary evidence referred to in the above paragraph does not even begin to illustrate any intended sale of the ITH shares owned by the Plaintiff let alone any condition as suggested by the Defendant.

36.  There is no merit to the above contentions, and I am not satisfied that the Defendant has established any credible or arguable defence of conditional delivery of the Cheques or delivery of the Cheques in escrow.

VII.  Total failure of consideration

37.  Mr Kwok submitted that on the Defendant’s case, since the ITH shares owned by the Plaintiff were not sold, there was total failure of consideration amounting to a triable defence brought on the Cheques as between immediate parties.

38.  In his written submissions, Mr Kwok argued that it was crucial for the Plaintiff to prove there was good and sufficient consideration, but this she failed to do.  He also criticised the Plaintiff’s affirmation for failing to descend upon particulars and/or supporting documents as to the nature of the dispute and settlement referred to in paragraph 16 above, the terms of and parties to the settlement, the reason why the Defendant would have made partial payment for settlement of disputes between various companies, and the payment particulars of the balance of the settlement sum, if any.

39.  Mr Kwok further submitted that given the serious dispute of facts between the Plaintiff’s case that the Cheques were in partial payment for settlement of dispute by various companies related to the parties and the Defendant’s case that the Cheques were handed over to the Plaintiff on condition that they were not to be presented for payment before the sale of shares was put through, and further given the lack of particularity and documentary support in respect of the Plaintiff’s case, discovery of documents and cross-examination of witnesses at trial were required.  Hence, the Defendant was entitled to unconditional leave to defend or alternatively there was some other reason for trial under Order 14 rule 3 of the Rules of the High Court and the principles in Miles v Bull [1968] 3 All ER 632.

40.  In a case of simple contract, the person who sues on it must plead and prove consideration.  But it is clear that to this rule cheque is an exception and consideration is presumed until the contrary is shown (section 30 of the Ordinance).  Accordingly, the burden of showing there is a triable issue or arguable defence of total failure of consideration in respect of the Cheques rests with the Defendant.  Mr Kwok in his oral submissions at the hearing conceded as much notwithstanding his written submissions set out in paragraph 38 above.

41.  The Defendant’s stance was (a) a denial of the Plaintiff’s case and (b) the assertion of an oral understanding between the parties that the Cheques were for part payment of the price upon sale of 2 lots of ITH shares owned by the Plaintiff subject to the condition that they were not to be presented for payment before such sales were put through, and there being so such sale there was no consideration for the Cheques.  There was no documentary support in respect of such oral understanding.  As explained above, documents in relation to the shareholding and share price of ITH are merely background material and not contemporaneous documentary evidence of the alleged oral understanding.

42.  Having carefully considered the Defendant’s case, I am not persuaded that it is credible.  According to the Defendant, the Plaintiff only requested him to help sell 2 lots of ITH shares owned by the Plaintiff.  There was no suggestion that the Defendant would receive any commission or financial benefit for agreeing to help the Plaintiff sell the shares.  Indeed, the suggestion was otherwise because the Defendant said he agreed to help because he was the major shareholder of ITH and was confident in finding an investor.  However, an investor was yet to be found, and with the share price wallowing below US$1.00 per share the Plaintiff decided to withhold the sale until it rose to an acceptable level.

43.  Against such background, no reason was offered as to why the Plaintiff would have requested and, more importantly, why the Defendant would have agreed without demur to hand over the Cheques in the total sum of HK$6,000,000.00 to the Plaintiff as part payment of the price of the shares to be sold.  After all, the Plaintiff had not even committed to putting up the shares for sale given the weak share price, and there was no buyer on the horizon.  Furthermore, the Defendant was not the intended buyer with any potential liability for paying the purchase price of the shares.  He was only rendering gratuitous assistance to the Plaintiff with no financial interest in the eventual sale of the shares.

44.  In light of the above background, I am of the view that the Defendant’s case that the 1^st to 3^rd Cheques were “to secure priority to sell the shares for the Plaintiff” and that the 4^th to 6^th Cheques were “as security for part payment of share price” is quite incredible or unbelievable.  This is particularly so because the Defendant claimed that the Cheques were handed over to the Plaintiff on the basis of the aforesaid condition.  If the balance of the purchase price was to be paid presumably by the buyer when the sale of the 2 lots of ITH shares owned by the Plaintiff were effected, and the Cheques were not to be presented before such sales were put through, there is no credible or believable justification for the Defendant, who was not the intended buyer or person having financial interest in the intended transaction, to hand over the Cheques to the Plaintiff when there was no sale or buyer on the horizon, and none was offered by the Defendant.

45.  Of even more concern is the Defendant’s assertion that in the following year the ITH share price was still below US$1.00 and it continued to drop below US$0.50, consequently no investor was found and the Plaintiff would not contemplate any sale of his shares pending increase of the share price to an acceptable level.  Plainly there was no investor and no sale of the shares on the horizon at all. Yet, according to the Defendant, the Plaintiff requested and he agreed without demur to amend the dates of the 3^rd to 5^th Cheques from various dates in 2007 to dates in 2008.  Against the above background, the suggestion that such amendment was for the purpose of presentation in case of any successful sale is not credible or believable.

46.  In my view, the defence contentions have a sense of unreality that is not persuasive of any triable issue.  Mr Kwok referred to the letter from the Defendant’s solicitors dated 15 January 2009, which asserted that the Cheques were not supported by any consideration.  But such letter gave no credence to the Defendant’s case since no particulars were given apart from saying the failure of consideration was for reasons best known to the Plaintiff.

47.  It is trite that mere assertions in an affidavit of a given situation does not ipso facto mean leave to defend should be granted since the defendant must satisfy the court he has a fair and reasonable probability of showing a real and bona fide defence, ie that his evidence is reasonably capable of belief.  In my view, although the Defendant’s case apparently raises some issues, they are so incredible that the defence cannot be supported.  In this respect, Hong Kong Civil Procedure 2010 Vol.1, para.14/4/3 at p.228 states that ““[a] desire to investigate alleged obscurities and a hope that something will turn up on the investigation cannot, separately or together, amount to a sufficient reason for refusing to enter judgment for the plaintiff. You do not get leave to defend by putting forward a case that is all surmise and Micawberism” (per Megarry V.-C. in Lady Anne Tennant v. Associated Newspapers Group Ltd [1979] F.S.R. 298)”.

48.  In my view, the Defendant is unable to raise triable or arguable issues to rebut the presumption of consideration.  Further, Mr Kwok’s criticisms of the Plaintiff’s case do not carry the Defendant’s position any further.  It should be remembered that the Plaintiff sued on the Cheques and not on the underlying contract. Since consideration was presumed, there was in fact no prima facie need for the Plaintiff to particularise the circumstances as to how consideration was given.  In any event, it is trite that in law consideration for a promise may consist of either a benefit to the promisor or a deteriment to the promisee, and forbearance to sue a stranger to the cheque at the express or implied (eg under a settlement arrangement) request of the drawer may constitute good consideration.

49.  Mr Kwok submitted that the Plaintiff’s case was contradictory in that it referred to the Cheques being paid as instalments of a partial sum for the alleged settlement of dispute between various companies related to the parties and to the Cheques being accepted against the Plaintiff’s agreement that the Defendant’s companies would not be sued.  I am unable to discern any self-contradiction.  Plainly what was suggested was that the Cheques were part of an overall settlement that encompassed a promise moving from the Plaintiff to the effect that the Defendant’s companies would not be sued, such promise being valuable consideration for the Cheques.  Further, Mr Kwok’s complaint over the different serial numbering of the 1^st to 3^rd Cheques and the 4^th to 6^th Cheques also do not add credence to the Defendant’s allegations of why he would have issued and given the Cheques to the Plaintiff in the first place.

50.  In the circumstances, the Defendant is unable to raise a credible or believable argument, and there is no total failure of consideration.

VIII.  Delay in presentment of the Cheques

51.  Section 45 of the Ordinance provides as follows:

 “Subject to the provisions of this Ordinance, a bill must be duly presented for payment.  If it is not so presented, the drawer …… shall be discharged.  A bill is duly presented for payment which is presented in accordance with the following rules-

……

(b) where the bill is payable on demand, then, subject to the provisions of this Ordinance, presentment must be made within a reasonable time after its issue in order to render the drawer liable, ……  In determining what is a reasonable time, regard shall be had to the nature of the bill, the usage of trade with respect to similar bills, and the facts of the particular case;

……”

52.  Section 47 of the Ordinance provides as follows:

“(1) A bill is dishonoured for non-payment-

(a)   when it is duly presented for payment and payment is refused or cannot be obtained; or

(b)  when presentment is excused and the bill is overdue and unpaid.

(2)   Subject to the provisions of this Ordinance, when a bill is dishonoured by non-payment, an immediate right of recourse against the drawer …… accrues to the holder.”

53.  Mr Kwok argued that the Plaintiff failed to present the Cheques for payment within a reasonable time after issue, so they were not “duly presented” within the meaning of section 45 of the Ordinance, and accordingly there was no dishonour of the Cheques for non-payment giving rise to any right of recourse against the Defendant under section 47 of the Ordinance.

54.  Section 45(b) of the Ordinance indicates the matters to be taken into account in determining what is a reasonable time.  Such question has been said to be either one of mixed law and fact or solely one of fact (Chalmers and Guest on Bills of Exchange, Cheques and Promissory Notes 17^th ed, para.6-049 at p.375).  However, there is simply no factual affirmation evidence on such issue (eg on “the usage of trade with respect to similar bills”).  Indeed, there was no assertion as to what would have been a reasonable time, and it was pursuant to enquiry by the court that Mr Kwok orally submitted at the hearing that it might be a week or a month after the due dates of the Cheques, but he did not give any reason why such period(s) would be regarded as reasonable.

55.  I note that in respect of all Cheques except for the 3^rd Cheque, the reason for dishonour on first presentment was “Refer to Drawer”, which is a euphemism that there are insufficient funds in the drawer’s account and the cheque is rejected for that reason (Thong Ko Sine v Wilkinson & ors CACV30/1988 (unreported, 10 June 1988)).  This suggests that but for such reason given for the dishonour, ie there were insufficient funds in the Defendant’s bank account, the drawee would have honoured the 1^st to 2^nd and 4^th to 6^th Cheques.  It can hardly be said that the presentment of such cheques was outside reasonable time.  No triable and arguable issue has been raised on such line or argument.

56.  However, Mr Kwok had something more to say on the 1^st and 2^nd Cheques.  He argued that the Plaintiff by electing to present the 1^st and 2^nd Cheques for a second time some time after their dishonour on first presentment for the reason of “Refer to Drawer” (which second presentment was outside reasonable time after the issue of the 1^st and 2^nd Cheques as evidenced by the reason for dishonour of “Out of Date”), the Plaintiff lost the right of recourse against the Defendant as drawer.  Mr Kwok abandoned reliance on section 42 of the Ordinance in support of such contention (since such provision dealt with acceptance of a bill on due presentment) and confirmed he had no authority in support of what he described as his bold submission.

57.  I have no doubt that upon dishonour for non-payment on the first presentment of the 1^st and 2^nd Cheques, section 47(2) of the Ordinance gave the Plaintiff as holder an immediate right of recourse against the Defendant as drawer.  I do not see how a second presentment with a view to see whether at that later stage there would be sufficient funds in the Defendant’s account to honour the 1^st and 2^nd Cheques amounted to any unequivocal conduct on the part of the Plaintiff to abandon reliance on the first dishonour of such cheques to support any allegation of election.  After all, the Plaintiff was not paid even up to the time of the second presentment. There is no merit to this argument.

58.  Mr Kwok then went on to argue that even on the Plaintiff’s own case, given the reason for dishonour for the 3^rd Cheque was “Out of Date”, the presentment of the 3^rd Cheque was not within reasonable time after its issue.  However, the Plaintiff explained that he did not present the Cheques promptly on their due dates because the Defendant repeatedly told the Plaintiff that he did not have funds and he also promised the Plaintiff he would pay soon.  The Plaintiff said that when eventually the Defendant failed to keep his promise, he presented the Cheques for payment.  I note that the amendment of the various dates in 2007 on the 3^rd to 5^th Cheques to various dates in 2008 is not inconsistent with such contentions.  In such circumstances on the Plaintiff’s case, the Defendant could not be heard to complain of any alleged delay in presenting the Cheques for payment.  In any event, the Defendant had not condescended into any factual particulars in his affirmation evidence as to what amounted to reasonable time in this case.

IX.  Conclusion

59.  In the circumstances, the Defendant failed to establish any arguable defence or triable issue.  I therefore grant judgment in favour of the Plaintiff against the Defendant in the sum of HK$6,000,000.00 with interest thereon as follows:

(a)   interest on HK$1,000,000.00 under the 1^st Cheque from 18 May 2007 until the date of judgment herein at the rate of 1% per annum above the prime rate of the Hongkong and Shanghai Banking Corporation Limited (“Rate”);

(b)  interest on HK$1,000,000.00 under the 2^nd Cheque from 18 May 2007 until the date of judgment herein at the Rate;

(c)  interest on HK$1,000,000.00 under the 3^rd Cheque from 29 December 2008 until the date of judgment herein at the Rate;

(d)  interest on HK$1,000,000.00 under the 4^th Cheque from 29 December 2008 until the date of judgment herein at the Rate;

(e)   interest on HK$1,000,000.00 under the 5^th Cheque from 10 December 2008 until the date of judgment herein at the Rate;

(f)    interest on HK$1,000,000.00 under the 6^th Cheque from 19 February 2008 until the date of judgment herein at the Rate,

and thereafter at judgment rate until payment.

60.  The aforesaid pre-judgment interest is granted pursuant to section 57(a)(ii) of the Ordinance.  As regards the interest rate, Komala Deccof & SA and others v Perusahaan Pertambangan Minyak Dan Gas Bumi Negara (Pertamina) [1984] HKLR 219 held that in a commercial setting, the rate of interest payable should reflect the general rate at which a successful party would have to borrow money to take the place of that which was withheld and the rate of 1% above prime rate is adopted as a rule of thumb.  There being no other evidence to show some other rate to be more appropriate, I adopt such rate.

61.  At the hearing before me, both Mr Ching and Mr Kwok agreed that if I were to grant summary judgment, the Plaintiff would be entitled to costs of the Order 14 summons dated 10 July 2009 and costs of the action. I therefore make a final costs order to such effect.  For the avoidance of doubt, the aforesaid costs order shall include all reserved costs, if any.

X.  Summary assessment of costs

62.  Although both parties agreed it would be appropriate to proceed by way of summary assessment of costs, and paragraph 8 of Practice Direction 14.3 provides that the statement of costs should be lodged and served on any party against whom summary assessment is sought with the skeleton argument for the substantive application, no statement of costs was lodged by either party together with the written skeleton submissions.

63.  At the hearing before me, I made the following directions which are pertinent to the final costs order above:

(a)   the Plaintiff do within 7 days from the handing down of this Judgment lodge and serve the statement of costs for the purpose of summary assessment pursuant to Practice Direction 14.3;

(b)  within 5 days thereafter, the Defendant do lodge and serve succinct summary of objections of not more than half a page;

(c)  parties do jointly make arrangements to attend the Listing Clerk within 10 days from the date of the hearing before me to fix another hearing before me in chambers (not open to the public) not to be heard before 8 November 2009 with 30 minutes reserved for summary assessment of costs.