Wong Kwok Wing v. Wong Sau Hing

Case No.CACV 23/1983

Court

Court of Appeal

Date—

Judge—

Case Document

100%Judiciary

CACV000023/1983

IN THE COURT OF APPEAL

Civil Appeal No.23 of 1983

BETWEEN

WONG KWOK WING

Plaintiff
(Respondent)

and

WONG SAU RING

Defendant
(Appellant)

_____________

Coram: Hon. Leonard, V-P., Cons & Fuad, JJ.A.

Date of hearing: 7th July, 1983

Date of handing down of Judgment: 20th July, 1983.

_________________________

REASONS FOR JUDGMENT

_________________________

Leonard, V-P.:

1. We dismissed this appeal and promised to give reasons in writing. In the Court below the plaintiff (respondent) was unrepresented, a fact which created considerable difficulties for the trial judge. Furthermore although the plaintiff had, in theory at least, been represented until very shortly before the hearing he had been ill-served in that the Statement of Claim had been sloppily drawn. However the plaintiff's contentions might readily be deduced from it. By it he claimed a declaration that a document signed by him on or about 15th December 1973 at the office of K.B. Chau & Co. was null and void. The reasons which the Statement of Claim gave for it being void were that it was executed at the request of his 2nd wife or mistress (the defendant/ appellant) and that she had represented to him that it would be to the effect that if he should predecease her his interest in the premises should pass to her. It claimed that the contents of the document had not been interpreted to him and that he had signed it in reliance upon her request and representation that it would transfer his interest to her upon his death. The defence denied the request and representations, alleged that the document was a proper assignment of the plaintiff's title in the premises, that it had been executed "in consideration of money and valuables amounting to $29,029.12", averred that it was duly interpreted to him and denied the sufficiency of the pleading.

2. There was a lengthy Counterclaim into which it is unnecessary to go since it claimed repayment of $79,000 allegedly paid in connection with a separate matter and damages for assault and no evidence was led by the defendant in respect of either matter.

3. The defendant who was legally represented throughout had made no interlocutory application to strike out the Statement of Claim but at the outset of the trial Counsel for the defendant objected to what he termed "imperfections" in the Statement of Claim. The record reads:

"No claim that' Assignment is voidable only void. But if only misrepresentation voidable not void. After discussion with Counsel Court Rules :-

	1.	Will hear plaintiff.
	2.	Cannot sensibly explain differences to plaintiff.
	3.	Will treat all pleas re voidability as open on Statement of Claim.
	4.	Will treat all corresponding defences as open to defendant."

Clearly the trial judge had the advantage of seeing and hearing the plaintiff and was in a position to gauge his intelligence and degree of education. From his evidence it appears that neither was high. In the course of his judgment the judge "notes the action first came on for trial on 15th December 1982 before Kempster J. when both parties were represented by Counsel. It was then adjourned generally with leave being given to the plaintiff to file a reply to the Counterclaim out of time and within 14 days. Nothing was filed. On the first day of the restored hearing, it appeared that the plaintiff was unable to retain the services of Counsel and solicitors and had thereafter to conduct the case in person." The trial judge was in a difficult position for he was faced with an unrepresented plaintiff whose former solicitors had done little to prepare the case for trial. (This is shown by the fact that no transcript of a tape recorded conversation between the parties, which was to afford most important evidence, had been made nor was any official translation of it ever prepared.) The trial judge's unenviable task was to elicit from this uneducated plaintiff his account of the transaction with little more than the exhibits to assist him in determining the issues involved. He has set out the facts he found with admirable brevity and clarity and there is no need for us to repeat his account of them at any length. The following matters however are worthy of highlighting.

4. The plaintiff's evidence was uncontradicted. In part it may appear to contain inconsistencies but we have no shorthand note and are dependent on the judge's own note taken at a time when he was conducting what he accurately describes as being "tantamount to a blind examination in chief". There was evidence to support his findings of fact and we are therefore bound by them.

5. It is sufficient to note the following of them:

	(1)	Both parties contributed to the purchase of the flat in question in 1970 so that there could be no question of the plaintiff holding his undivided half share in trust for the defendant.
	(2)	The defendant felt threatened when the plaintiff's first wife came to Hong Kong in 1973. At her request he made a statutory declaration as to the existence and date of their marriage which like his first marriage was in accordance with Chinese custom.
	(3)	She wanted security in the flat but only after his death.

	(4)	She went first to her solicitors K.B. Chau & Co. to instruct them ostensibly on their joint behalf.
	(5)	She never paid the plaintiff anything for his half interest and there was no truth in a receipt to that effect contained in the impugned document.
	(6)	She was responsible for the form in which the document was couched.
	(7)	When a summary explanation was given to him and the figure mentioned as having been paid to him he was diverted by someone who referred to the document as being a formality because they were husband and wife.

	(8)	"He signed in the misconceived conviction'' (induced by her) "that the document did no more than achieve what he wished and intended to achieve namely security for the defendant in the flat after his death".
	(9)	When his relationship with her wilted in 1977 his mind reverted to this document and he saw solicitors who caused a search to be made which revealed that she was registered as sole owner. He then pressed her to restore his name to the Register.

(10)

She then went to her then solicitors ,K.B. Chau & Co. (who had drawn the impugned document). They drew a will dated 6th March 1979 in which she specifically devised the flat to him and her son (who was not in fact his son although he had taken him in as a member of the family) as joint tenants. This she showed to him. It reassured him temporarily. The very next day at the same solicitors' office she executed another will dated 7th March 1979 revoking the will of the 6th March 1979 and devising the flat' to the son alone, a fact she did not disclose to her husband. These documents as the trial judge found "showed her capacity for planned deliberate deception. This conduct was plainly intended to deter him from taking steps to undo the consequences of her earlier deception".

	(11)	The tape recording to which we have referred was of a conversation which took place between the parties on the 8th April 1981. As we have said his former solicitors had done nothing about getting a transcript of this tape but it was produced by the plaintiff in the course of his evidence on the second day of the trial. The trial judge directed that the parties should hear the tape, which was, of course, in Chinese and unintelligible to the judge, on the morning of the third day. After it had been heard by the parties it was agreed that to avoid delay it should be translated by a clerk from the defendant's solicitors firm and checked by the Court Interpreter. The translation was ready on the morning of the fourth day, the third day having been taken up by' cross-examination of the plaintiff on matters relating for the most part to the Counterclaim.
	(12)	The tape contained admissions by the defendant that she had in fact not paid anything to the plaintiff in respect of the transaction. She blamed the ''lawyer" for the form the document had taken. Generally speaking it clearly reveals her duplicity. When the transcript of it had been made available to the judge on the morning of the 4th day of the trial she staged a tantrum intervening angrily with her Counsel and interrupting the conduct of the Court with outbursts. The following passage appears in the judge's note:

"Chan (Counsel for defendant) On instructions I am not going to ask any further questions.

	Ct.	1. Not any questions about the will?
	A.	No.
	Ct.	2. Not any questions about payment of the money -$29,029?
	A.	No."

Thereupon the plaintiff's case closed and the appellant elected to call no evidence.

6. The trial judge held that the plea of non est factum was sufficiently raised in the Statement of Claim and was made out and that if it had been necessary he would have held the transaction voidable on the ground of fraud.

7. The argument of the appellant's Counsel on the appeal turned essentially on the two questions. Was non est factum adequately pleaded and if it was, was it made out?

8. He suggested that it could not be said to be raised because the plea was of misrepresentation. As a result, he suggested, the defendant had come to Court unprepared to meet that plea of non est factum. To us it appears that the first point is met firstly by the plea-that in signing the document the plaintiff acted in reliance upon the request and representation that the document would transfer the plaintiff's interest only upon the plaintiff's death should the plaintiff predecease the defendant. If the plaintiff acted in reliance on that suggestion or representation (call it what you will) he must have acted on the assumption that the document was other than it was on its face. It is met secondly by the claim that the document, was void for if, as Counsel recognized, the plaintiff's contention had been that the plaintiff knew of the document's contents and signed it because of a representation as to the effect of its contents it would be voidable only. The pleading. was loose but we think 'it was sufficient. We do not think that the defendant can at any time have been misled by its.: ., imperfection because she specifically pleaded that:-

"4	(a)	....
	(b)	The said document is a proper assignment of the Plaintiff's legal title in the said premises from the Plaintiff to the Defendant.
	(c)	The said assignment was executed by the Plaintiff in consideration of money and valuables amounting to $29,029.12 paid to the Plaintiff by the Defendant."

The remaining question-whether the plea was made out is to be determined with reference to the criteria laid down in Gallie v. Lee.⁽¹⁾

9. There can be no doubt but that the PLAINTIFF was, as the trial judge pointed out particularly vulnerable because of his illiteracy in English. We regard the case as falling within the class which Lord Wilberforce termed the "residue of difficult cases". As he said:

"There are still illiterate or senile persons who cannot read or apprehend a legal document; there are still persons who may be tricked into putting their signature on a piece of paper which has legal consequences totally different from anything they intended. Certainly the first class may in some cases, even without the plea, be able to obtain relief, either because no third party has become involved or if he has, with the assistance of equitable doctrines... " [emphasis added]. Later he says "But accepting all that has been said by learned judges as to the necessity of confining the plea within narrow limits, to eliminate it altogether would, in my opinion, deprive the Courts of what may be, doubtless on sufficiently rare occasions, an instrument of justice."

This case appears to us to exemplify most strikingly one of those sufficiently rare occasions. The trial judge had no hesitation in concluding that the document "was totally false", that "the differences between his document and one apt to bring about the sole purpose which the plaintiff intended to achieve, and thought he had achieved ... can properly be described as 'fundamental', 'radical', 'essential' and 'going to the whole consideration' in the sense that those cases are used in the speeches in that case." We can see no reason to differ for "it is the lack of consent that matters, not the means by which this result was brought about" (per Lord Wilberforce at page 1026). Of the lack of consent the trial judge was clearly convinced as a question of fact.

10. It is to be noted that t the facts in the instant case differ radically from those in Gallie v. Lee.^.(1) There Mrs. Gallie although aged was by no means illiterate vis-a-vis the document she signed although she was without her spectacles. She intended to alienate the property affected by the document in question. An innocent third party was involved against whom she had no equities. Here there was no intention to alienate the property and no third parties were involved so that the case does not fall within the categories outlined by Pearson L.J. at page 1035-6 of the report.

11. While we have dismissed the appeal on this point we entertain some doubt as to whether fraud was pleaded with sufficient particularity. There is however, no need in the circumstances to express a concluded opinion. Having dismissed the appeal we make an order nisi under 0.42 r.5A that the respondent shall have the costs of the appeal and a legal aid taxation.

12. Finally, we would note that we had placed before us a bundle consisting of over 400 pages. Over 300 pages had no relevance to the questions for decision. Had the appellant been successful this quite disgraceful extravagance would have. been the subject of a special order as to costs.

(P.F.X. Leonard)

Vice-President

(D. Cons)

Justice of Appeal

(K.T. Fuad)

Justice of Appeal

(1) [1971] A .C. 1004.

Representation:

Mr. Warren Chan (Rowland Sum & Co.) for Appellant/Defendant.

Miss Barbara Kaplan (Liu, Chan & Lam) assigned by Director of Legal Aid for Respondent/Plaintiff.