ERIC CHAN & CO v. WONG KWOK WANG, WARREN

DCCJ1155/2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 1155 OF 2008

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D E C I S I O N

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1.  By this application, the defendant asked this court to grant him leave to appeal against the decision I made in this case on 4 October 2011.

2.  He raised a total of five points in his submissions today in order to get his leave to appeal. 

3.  The first point he raised is that this court did not take into consideration the presumption of undue influence given the fact that the relationship between the plaintiff and the defendant was on a solicitor-client basis.  This defence was never raised either in his defence or during the trial.  Therefore, this ground cannot stand. 

4.  The second point is that the first retainer had a conflict.  The defendant said that in the plaintiff’s affirmation the plaintiff affirmed that the defendant entered into a written retainer with Mr Ivan Ho, a senior partner of Messrs Au Yeung, Cheng, Ho & Tin (“ACHT”), in respect of the contemplated taxation action against Messrs Huen & Partners, action later commenced as HCMP2843/2004 (“the first retainer”).  However, the plaintiff changed his evidence in his witness statement, “The first retainer was signed by me, i.e. the plaintiff, and the defendant.”  The defendant said that basically the plaintiff relied on the first retainer as a foundation to build up his case against the defendant.   

5.  The defendant submitted that there is conflict or contradiction in the plaintiff’s evidence.  I do not agree.  The plaintiff is entitled to correct himself if he made any mistake.  The most important thing is whether the first retainer did exist or not.  It is undisputed by the defendant that the first retainer did exist.  That is the most important thing in this case.  If there is any conflict in the plaintiff’s evidence, it would not have the effect of destroying the existence of the first retainer.  This means that it is an immaterial conflict, if this is a conflict at all. 

6.  The third point raised by the defendant is that the analysis in paragraph 7 of the judgment is not correct.  I simply do not agree.  I cannot see any fault in the analysis contained in paragraph 7. 

7.  The fourth point is that this court did not make a correct analysis in paragraph 12 of the judgment.  I simply do not agree.

8.  The fifth point is that this court used three letters, namely the letters dated 21 January 2006, 30 June 2006 and 26 February 2007, from the plaintiff to adjudge against the credibility of the defendant because the defendant did not make any response.  The defendant said that he did make a response and he referred to two letters dated 3 December 2007 and 2 December 2007.  The letter 2 December 2007 reads:

“I refer to your letter dated 15 November 2007, which was received by me on 29 November 2007. Up to the present moment, your advice on Messrs Huen & Partners’ response relating to their assessment of Messrs Eric Chan & Co.’s bill of costs is still outstanding. With reference to the letter of Messrs Huen & Partners dated 30 July 2007, they said that Messrs Eric Chan & Co.’s bill of costs was being under consideration. Since the matter has been outstanding for over 4 months, please follow up the same with Messrs Huen & Partners immediately. I await your early reply. Yours faithfully, Wong Kwok Wang, Warren.”

The letter dated 3 December 2007:

“I refer to your letter dated 15 November 2007, which was received by me on 29 November 2007. Please be advised that your bill of costs has already been submitted to and is being considered by Messrs Huen & Partners. I will revert to you once I receive their response.”

9.  Both letters did not refer to the three letters dated 21 January 2006, 30 June 2006 and 26 February 2007.  So it is not correct for the defendant to say that these two letters respond to the said three letters.   

10.  Furthermore, by the said three letters, the plaintiff was pressing the defendant for payment.  In the two letters dated 2 December 2007 and 3 December 2007, the defendant never said anything to the effect that he did not owe any money to the plaintiff.  The said two letters referred to by the defendant simply cannot help him to build up his fifth point.

11.  By reason of the abovesaid matters, I dismiss the defendant’s application for leave to appeal. 

(Discussion re costs)

12.  Costs of this application be reserved.