Marina Bay Sands Pte. Ltd v. Li Chi Yan
Read the full judgment text of HCA 997/2017 on BabelCite. This High Court CFI judgment was delivered on 13 November 2017.
1. This is an application for summary judgment by a licensed casino to recover a debt due under a credit agreement or a dishonoured cheque. The defendant disputes the identity of the creditor and raised the defence of non est factum as regards the credit agreement
Cites 5 cases
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HCA 997/2017 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE ACTION NO 997 OF 2017 ____________
Before: Hon Au-Yeung J in Chambers Date of Hearing: 26 October 2017 Date of Judgment: 13 November 2017 _______________ J U D G M E N T _______________ Introduction 1.This is an application for summary judgment by a licensed casino to recover a debt due under a credit agreement or a dishonoured cheque. The defendant disputes the identity of the creditor and raised the defence of non est factum as regards the credit agreement Undisputed facts 2.The Plaintiff is a licensed casino in Singapore. The defendant is a Hong Kong permanent resident and was a patron of the Plaintiff at the material time. 3.The credit relationship between the Plaintiff and the Defendant and the advancement of credit were evidenced by the following documents:
4.A number of partial payments was made to reduce the original balance of SGD800,000 represented by the Markers to SGD478,927. 5.On 16 March 2016, the Plaintiff completed the blank cheque. The cheque was dishonoured upon presentation for payment on 30 March 2016 for the reason of "awaiting drawer's confirmation". 6.The Plaintiff seeks to recover the following sums in the alternative:
The parties’ respective case 7.The Plaintiff’s case is simple, being premised on the Credit Agreement and the Markers, alternatively the Cheque. 8.The Defendant claims not to know English. He challenges the enforceability of the credit and the identity of his creditor. 9.He claims that his creditors were junkets called Mr Dai Deming (“Mr Dai”), his boss, Mr Chan Lo Shang (“Mr Chan”) who was Mr Dai’s boss and Mr Jimmy Wai (“Mr Wai”). One or more of them would accompany him to the Plaintiff’s casino in Singapore and lent him money. 10.Each time at the Plaintiff’s casino, the Defendant was asked to sign some documents in English which he understood was a requirement before he would be allowed to turn over the cards of the banker at the baccarat table (“the Requirement”). 11.In July 2015, the time when the subject transactions took place, it was Mr Dai who went with the Defendant to the Plaintiff’s casino. He agreed to pay 20% of his winnings to Mr Dai if he won and repay Mr Dai by 10 instalments if he lost, at an agreed exchange rate of SGD1 to HK$6. 12.The Defendant lost SGD800,000 in this trip. He had repaid a total of HK$2.4 million and the balance debt is HK$2,400,000. 13.The defences are therefore:
14.The Defendant said nothing about the dishonoured Cheque. Legal principles 15.There is no dispute on the principles governing the grant of summary judgment. It is for the defendant to show a triable issue which is believable, and not that it is to be believed: Ng Shou Chun v Hung Chun San [1994] 1 HKC 155, p4, Godfrey JA. Whether the defendant’s assertions are believable is a question to be answered not by taking those assertions in isolation by rather by taking them in the context of so much of the background as is either undisputed or beyond reasonable dispute: Re Safe Rich Industries Ltd, CACV 81/1994, p5, Bokhary JA (as he then was). 16.If the defence asserted is less than probably but more than shadowy, unconditional leave should be granted; where shadowy, then it may be appropriate to grant conditional leave: Tong Nai Kan v Francis Cheung King Fung [1999] HKCU 357, at p5, per Stock J (as he then was). 17.The court will not embark on a mini-trial on the basis of affidavit evidence. Defence A: non est factum 18.The defendant claims not to know English. He was told that if he did not sign the documents, he would not be allowed to uncover the cards. 19.An adult with full capacity will be bound by a document signed by him. Negligence or careless on his part would exclude the defence of non est factum: Chitty on Contracts, 32nd ed, Vol 1, §3-054. 20.Mr Wong (with Mr Chong), counsel for the Defendant, accepts that he has an uphill fight on this defence. 21.The Defendant is of full age and capacity. He admits that he was given documents to sign by the staff of the Plaintiff. He was told of the Requirement by Mr Dai but there was no evidence that Mr Dai was the agent of the Plaintiff. Mr Wong has confirmed in his oral and written submission that the junkets were of the Defendant and not of the Plaintiff. 22.Notwithstanding the small font size, the Application for Credit and the Credit Agreement had Chinese characters like貸款申請/借貸 and figures clearly printed on them. Although the Markers were not in Chinese, they clearly bore figures of varying amounts. Chips of the stated amounts were given to the Defendant on credit. 23.The Defendant was a seasoned gambler who had gambled in other casinos before, including a sister casino of the Plaintiff in Las Vegas. He knew he was gambling with chips the money for which was borrowed. However, there was no evidence that he had checked or asked why different figures were stated on all those documents. 24.Mr Wong has not shown authority in support of the proposition that the Plaintiff had a duty to explain the contents of the Credit Agreement or the Markers to the Defendant. 25.The Defendant could hardly show that he was not careless or negligent. The defence of non est factum is not available to him. Defence B: enforceability of the credit 26.Gaming credit is enforceable if the loan agreement was valid under its governing law: Wong Hon v Sheraton Desert Inn Corporation [1995] 3 HKC 331. 27.The Plaintiff has filed an affirmation by a Singaporean legal expert which shows that gaming credit provided by the Plaintiff as a licensed casino is an enforceable contract under the Casino Control Act of Singapore. The enforceability of gaming credit granted by the Plaintiff has been judicially recognized by the Court of Appeal in Singapore in the past. 28.There is no legal expert evidence from the Defendant to contradict the Plaintiff’s evidence on Singaporean law. Nor is there evidence to show that the 3 junkets were the Plaintiff’s agents. In fact, Mr Wong has in his oral and written submission confirmed that the junkets were of the Defendant. This line of defence is simply unarguable. Defence C: identity of the true creditor 29.The strongest piece of evidence of the Defendant is that he had made repayments to Mr Dai or his sister between July and December 2015 and there were bank documents in support. One of those payments was for HK$480,000 transferred by the Defendant to Mr Dai’s sister on 30 July 2015, just a few days after the Defendant had gambled at the Plaintiff’s casino. 30.The Plaintiff denies that it had any gaming promoter. It asserted that Mr Wai was a marketing employee of its holding company Las Vegas Sands whereas Mr Chan was its patron and Mr Dai Las Vegas Sands’ patron. The Plaintiff had received repayments made on behalf of the Defendant through third parties (including Mr Chan) and a cashier order. 31.The Plaintiff’s version in the preceding paragraph only appeared in its affirmations in reply although the Defendant has never sought leave to file further affirmation in response. 32.However, even on the Plaintiff’s own evidence, the Defendant has never repaid the Plaintiff directly and yet the balance due has been reduced by about half. The documents showing purported repayments by third parties were the Plaintiff’s internal documents. One of the third parties was purportedly Mr Chan; but none of the third parties were Mr Dai. And yet, “coincidentally”, the Plaintiff received the cashier order for HK$500,000 from an unknown source on the same day (18 December 2015) that the Defendant transferred $480,000 to Mr Dai. 33.The defence as to identity of the creditor is more than shadowy. The Dishonoured Cheque 34.The Cheque, being supported by consideration, is enforceable even if the underlying transaction may not be enforceable, as long as the same is not illegal: Melco Crown Gaming (Macau) Limited v Huang Haichao, CACV 153/2013, CA, 7 August 2015, §9, Barma JA. 35.There is no evidence to show that the underlying transaction was illegal. The Defendant was completely silent as to how his personal cheque came into the Plaintiff’s possession. Even if there is any issue concerning the enforceability of the Credit Agreement, the Defendant still has no defence to the claim under the Cheque. Conclusion 36.I order as follows:
37.The evidence concerning the Cheque was limited but the bulk of the defence has failed. I order, on a nisi basis, that 75% of the costs should follow the event and be to the Plaintiff, summarily assessed at HK$112,500. 38.I thank Mr Law, Mr Wong and Mr Chong for their assistance.
Mr Vincent Law (Solicitor Advocate) of Mayer Brown JSM, for the plaintiff Mr Timothy Y H Wong and Mr Gilbert H W Chong, instructed by Chan, Evans, Chung & To, for the defendant | |||||||||||||||||||||
Cases cited in this judgment