Chan Woon Wah t/a Ngai Hing Decoration Company v. Wong Chi Ping

DCCJ 602/2019

[2024] HKDC 422

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 602 OF 2019

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BETWEEN

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JUDGMENT

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Introduction

1.This action is concerned with the renovation works carried out at the previous residence of the Defendant and her family, ie House 15, Phase 1C, Westwood Lotus, Palm Springs, Yuen Long, the New Territories (hereinafter the “House”).

2.The Defendant was all along legally represented. However, she filed a notice to act in person on 1 November 2023. Since then, the Defendant has not been keen on participating in these proceedings. She did not attend the pre-trial review on 8 January 2024; nor did she attend the present trial.

3.Despite the Defendant’s absence, the present trial (which was initially scheduled to be heard for 7 days) must proceed[1].

Undisputed Background

4.In around early 2016, the Defendant and her husband, namely 何柏基 (hereinafter “Mr Ho Senior”), purchased the House in their joint names for residential purposes.

5.The Plaintiff is a renovation contractor. He at all material times carried on a business of providing renovation services under the sole proprietorship and/or tradename of “Ngai Hing Decoration Company”.

6.The Plaintiff’s wife, namely Madame Lo Yuet Ho (hereinafter “Madame Lo”), used to be a good friend of the Defendant. Both were teachers at the material times.

7.The Plaintiff was engaged to renovate the House. It is not in dispute that he did carry out substantial renovation works.

8.In light of the personal relationship amongst the parties, the Plaintiff and the Defendant did not sign any written agreement. However, it is not in dispute that the parties did enter into some oral agreement(s) in relation to the renovation works. An important aspect of the parties’ dispute is what was orally agreed.

Summary of the Plaintiff’s Case

9.The Plaintiff alleges that in around February or March 2016, the Defendant approached him for carrying out the following renovation works at the House: (i) renovation of two bathrooms and one kitchen; (ii) floor refurbishment; and (iii) repainting of all interior walls. The Plaintiff agreed to carry out these works, and the parties agreed that the renovation fees must not exceed HK$300,000 (the “Initial Oral Agreement”)[2].

10.In around April 2016, the Plaintiff invited the Defendant to see his renovation works in another house (the “Sample House”) in the same residential estate (ie the Palm Springs). According to the Plaintiff, the Defendant was impressed, and she wanted to renovate the House in a similar style[3].

11.In the premises, the parties allegedly agreed that:-

(1) the Plaintiff should renovate the House with specification similar to the aforesaid Sample House (except that only one new aluminium window would be installed and that neither the teak floor nor the staircases would be replaced); and

(2) the renovation fees charged by the Plaintiff must not exceed HK$600,000.

(the “Revised Oral Agreement”)[4].

12.On 24 May 2016, the Plaintiff met the Defendant and Mr Ho Senior at the House. Having reviewed the list of work and costs prepared by the Plaintiff[5], the Defendant agreed that the total renovation costs be HK$572,242 (which, the Plaintiff says, was a fair rate charged on a friendly basis)[6].

13.On 30 June 2016, the Plaintiff provided an updated list of works and costs[7] to the Defendant. This updated list took into account some extra works that were carried out subsequently. The final amount was HK$573,807 (but round up to HK$573,800)[8].

14.During the period from 13 April 2016 to 2 July 2016, the Defendant paid an aggregate sum of HK$473,000 to the Plaintiff. The details are as follows:

Dates	Payments
13 April 2016	HK$50,000
14 April 2016	HK$50,000
25 April 2016	HK$50,000
26 April 2016	HK$50,000
11 May 2016	HK$100,000
26 May 2016	HK$120,000
1 July 2016	HK$50,000
2 July 2016	HK$3,000
Total:	HK$473,000

15.It is the Plaintiff’s case that the Defendant paid the said aggregate sum of HK$473,000 to him pursuant to the Revised Oral Agreement.

16.Since the total renovation fee is HK$573,800, there is an outstanding sum of HK$100,000 (ie HK$573,800 less HK$473,000)[9]. The Defendant failed and/or refused to pay this outstanding sum, despite repeatedly demands.

17.Hence, on 4 February 2019, the Plaintiff commenced the present action against the Defendant seeking recovery of said outstanding sum of HK$100,000.

Summary of the Defendant’s Case

The Original Action

18.The Defendant does not seriously dispute the fact that she entered into the Initial Oral Agreement with the Plaintiff[10]. The Defendant appears to suggest that the Initial Oral Agreement was the only agreement between the Plaintiff and herself[11]. She contends that the Revised Oral Agreement alleged by the Plaintiff did not exist[12].

19.The Defendant stresses that she only agreed to pay up to HK$300,000 for the entire renovation project in respect of the House as she needed to incur expenses for her cancer treatment[13]. The Defendant, her husband (ie Mr Ho Senior) and her son (ie 何煜文 (hereinafter “Mr Ho Junior”)) did expressly indicate to the Plaintiff that the renovation expenses must not exceed HK$300,000[14].

20.Whilst the Defendant admits that she and her Husband were invited to visit the Sample House, she alleges that she and her Husband did not like renovation works there at all. As such, she did not ask the Plaintiff to renovate the House in a style that was similar to the Sample House, and would not have entered into the Revised Oral Agreement alleged by the Plaintiff[15].

21.The Defendant also alleges that despite repeated demands, the Plaintiff unreasonably refused to provide a written quotation in respect of the renovation works. Without a written quotation, she did not agree, and would not have agreed, that the final renovation fee be HK$573,000[16].

22.However, the Defendant does not dispute the fact that she did pay an aggregate sum of HK$473,000 to the Plaintiff from 13 April 2016 to 2 July 2016 (see paragraph 14 above). The total payment of HK$473,000 exceeds the alleged ceiling of HK$300,000 under the Original Oral Agreement by HK$173,000. This is obviously inconsistent with the Defendant’s case.

23.Why would the Defendant pay the Plaintiff a sum of HK$473,000 when (i) she was so concerned that the costs of the renovation project must not exceed HK$300,000 and (ii) the Plaintiff unreasonably refused to provide a written quotation to justify the amount of renovation fees charged (which substantially exceeded HK$300,000)?

24.The Defendant’s explanations are as follows:-

(1) The sums of HK$120,000 and HK$3,000 paid to the Plaintiff on 26 May 2016 and 2 July 2016 were “conditional payment[s] only”, in that unless the Plaintiff “could provide her with a detailed quotation of the renovation works as soon as possible, the Defendant must have the refund”. The Plaintiff suggests that she made these “conditional payment[s]” in order to preserve her relationship with Madame Lo[17].

(2) As regards the payment of HK$50,000 made on 1 July 2016, the Plaintiff alleges that Madame Lo was the one who paid the sum to her and asked her to pay the same to the Plaintiff. Madame Lo did so because she wanted to calm down her husband, who was upset about the matter[18]. As will be elaborated below, these allegations were rejected by Deputy Adjudicator Anny Chak (as she then was) in the proceedings under SCTC 28854/2017. By the decision dated 1 March 2018 (the “SCTC Decision”)[19], the learned Deputy Adjudicator held that the Defendant borrowed the said sum of HK$50,000 from Madame Lo, and she was ordered to make repayment to Madame Lo.

The Counterclaims

25.Not only does the Defendant contend that the Plaintiff is not entitled to the alleged outstanding sum of HK$100,000[20], but she also pursues a counterclaim against the Plaintiff seeking refund of the alleged conditional payment of HK$173,000[21]. The basis of such counterclaim is that despite her alleged repeated requests, “there is no formal quotation of the renovation works”[22].

26.The Defendant further alleges that she and Mr Ho Senior were discontent with the Plaintiff’s renovation works in multiple respects. The Defendant says that the Plaintiff misled her. Her complaints are as follows:

(1) The Plaintiff made misrepresentation that the water pipes in the House were made of iron. He persuaded the Defendant to replace the original water pipes with new water pipes made of copper. However, he did not inform her that the pipes would be installed outside the House. After moving into the House, the Defendant was told by the management office that the original water pipes were made of iron but coated with zinc, which was rust resistant. Hence, the replacement exercise was unnecessary. In these premises, the Defendant counterclaims for damages of HK$35,000, which was the costs for installing the new water pipes (the “Copper Pipes Complaint”)[23].

(2) The Plaintiff persuaded the Defendant to replace the electricity wires in the House. However, he only replaced some of the electrical wires as the original electrical wires were still functioning. Despite repeated requests, the Plaintiff failed to procure the Electrical and Mechanical Service Department (“EMSD”) to issue a document named “WR1” to prove that the electrical installation works were completed. In these premises, the Defendant counterclaims for damages of HK$367,000, which includes the expenses for replacing the electrical wires in the House and the expenses for engaging experts to review the matter (the “Electrical Wires Complaint”)[24].

(3) The Plaintiff made representation to the Defendant that the five air-conditioners in the House were old and out of order, and he persuaded her to replace them. However, after moving into the House, the Defendant was told by the former owner that two of the air-conditioners were newly installed, and the remaining three air-conditioners were in good condition. In the premises, the Defendant counterclaims for damages of HK$15,287.00, which was the price of the five new air-conditioners (the “Air Conditioners Complaint”)[25].

27.The Defendant also accuses the Plaintiff of engaging a debt-chasing company to demand payment from her. The Plaintiff alleges that from October 2016 onwards, she and members of her family have been persistently subject to the nuisance, harassment and/or intimidation by the Plaintiff and its agents. Since she could not withstand the distress, she resigned from her former school in December 2016. In these premises, the Defendant counterclaims for damages of HK$1,399,350.49, being alleged loss of salary and loss of provident fund[26].

The Witnesses

Factual Witnesses

28.The Plaintiff has adduced factual evidence from (i) himself; and (ii) Madame Lo. They both testified in court.

29.The Defendant has filed witness statements made by (i) herself; (ii) Mr Ho Senior; and (iii) Mr Ho Junior. However, none of the witnesses appeared in court, and none of the witness statements was affirmed and/or adopted on oath. Whilst I have considered the contents of the witness statements on a de bene esse basis, I remind myself to exercise caution as the Plaintiff’s legal representatives had no opportunity to cross-examine the Defendant’s witnesses.

Expert Reports

30.Insofar as the counterclaim in relation to the Electrical Wires Complaint is concerned, the Defendant has put forward an expert report from Mr Hui Kee Hung to address (i) the question “whether the Plaintiff has replaced old wires/cables with new wires/cables for the whole House”; and (ii) the question of quantum.

31.As will be elaborated below, it is the Plaintiff’s case that he agreed with the Defendant that only part of the wires of the House should be replaced[27], and as such the Plaintiff’s expert, namely Mr Chan Ho Yin, only addresses the question of quantum.

32.I have also considered the contents of Mr Hui and Mr Chan’s expert reports on a de bene esse basis.

Legal Principles on Assessing Credibility

33.In Lee Fu Wing v Yan Paul Po Ting [2009] 5 HKLRD 513 at 524, DHCJ Au (as Au JA then was) set out the well-established approach on assessing credibility. In the course of assessing the credibility of a party’s case, the Court shall consider the following matters:

(1) whether the party’s case is inherently plausible or implausible;

(2) whether the party’s case is, in a material way, contradicted by other evidence (documentary or otherwise) which is undisputed or indisputable;

(3) where it is shown that a witness has been discredited over one or more matters to which he has given evidence using the above tests, this is relevant to the assessment of his overall credibility; and

(4) the demeanour of the witnesses.

34.In the context of adjudicating a dispute in relation to an alleged oral agreement or understanding, in Joint and Several Trustees of Yeung Wing Sing v Yeung Wing Sing & Anor [2021] HKCFI 2018, at para 26, Yvonne Cheng J pointed out that:

(1) contemporaneous written documents and documents which came into existence before the problems in question emerged are of the greatest importance in assessing credibility;

(2) in deciding whether to accept a witness’ account, importance should also be attached to the inherent likelihood or unlikelihood of an event having happened, or the apparent logic of events;

(3) regard should be had to the consistency of the witness’ evidence with undisputed or indisputable evidence, and the internal consistency of the witness’ evidence;

(4) care should be taken in drawing conclusions about truthfulness and reliability solely or mainly from the appearance of a witness or from the assessment of a witness’ character; and

(5) witnesses’ credibility should be tested by reference to the objective facts proved independently of their testimony, and regard should be had to their motives and to the overall probabilities.

35.The aforesaid approach is well-established: see eg Siu Miu Hua v Wu Ching Kuen [2024] HKCFI 232, para 84 (per Keith Yeung J); Hui Chi Ming v Koon Wing Yee [2023] HKCFI 93 at para 147; Salleh Abu Baker v Anway Ltd [2021] HKCFI 3407 at para 12 (per Recorder William Wong SC). I will apply the same in assessing the credibility of the parties’ case.

The Plaintiff’s Claims in the Original Action

36.I have carefully considered the contemporaneous documents, the inherent probabilities of the respective case advanced by the parties, the witness statements filed by the parties, the Plaintiff’s oral evidence at trial as well as the submissions from the Plaintiff’s counsel (which were advanced in a fair manner).

37.For the following reasons, I am firmly of the view that the Plaintiff’s case is preferable, and the Defendant’s case (which is wholly incredible) is liable to be rejected.

38.First:-

(1) The fact that Defendant paid the Plaintiff an aggregate “extra” sum of HK$173,000 shows that the parties had entered into the Revised Oral Agreement. Had the Revised Oral Agreement not been in in existence, the Defendant would have made payments (by three tranches) that substantially exceeded the ceiling stipulated by the Original Oral Agreement (ie HK$300,000).

(2) The Defendant’s explanations regarding the “extra” payments are incredible and affront to common sense. I reject these explanations.

(3) Had the Defendant (i) repeatedly emphasized that she was only prepared to pay HK$300,000 for the renovation project; and/or (ii) repeatedly sought a formal quotation from the Plaintiff but of no avail, she would not have made the “extra” payments of HK$173,000 at all.

(4) According to the Defendant’s case, the Plaintiff was not contractually entitled to these “extra” payments at all, and the Plaintiff was being uncooperative. It is inconceivable that the Defendant would make these “extra” payments, which substantially exceeded the ceiling stipulated by the Original Oral Agreement (ie HK$300,000) by no less than 50%.

(5) I am unable to accept the Defendant’s explanation that the “extra” payments were “conditional”, in that the Plaintiff was required to make refund if he were unable to put forward a quotation to justify the fees that he proposed to charge. This suggestion is artificial, unconvincing. It makes no commercial sense at all. I see no good reason why the Defendant did not await the Plaintiff to provide proof and justifications before making payments.

(6) I am also unable to accept the Defendant’s suggestion that she made “conditional” payments in advance because she wanted to preserve the relationship with Madame Lo. Whilst this bare allegation is simply lame and devoid of substance, the Defendant did not even come to Court to give evidence.

(7) I reject that the Defendant’s suggestion that Madame Lo was the one who orchestrated the payment of HK$50,000 on 1 July 2016 in order to pacify the Plaintiff[28]:-

(a) As mentioned, in the SCTC Decision dated 1 March 2018[29], Deputy Adjudicator Anny Chak (as she then was) held that the Defendant borrowed this sum from Madame Lo. There is no question that the SCTC Decision is a final judgment handed down by a competent tribunal. The Defendant alleges that the SCTC Decision was wrong. However, she did not seek to bring an appeal against the learned Adjudicator’s findings. Thus, it is not open to the Defendant to mount a collateral attack against the SCTC Decision, contending that the same was wrongly decided and that the learned Adjudicator was being misled[30]: see China North Industries Investment Ltd v Chum [2010] 5 HKLRD 1, paras 47-59 (per Stock JA (as he then was)).

(b) In any event, I have independently considered the evidence, including the Madame Lo’s response to the Defendant’s accusation that she fabricated evidence in the proceedings in the Small Claim Tribunal. With respect, I am of the view that the findings made by the learned Adjudicator were plainly correct. For instance, the learned Adjudicator pointed out that the Defendant’s allegations were contradicted by her own WhatsApp messages where she expressed her gratitude to Madame Lo. Further, the learned Adjudicator also pointed out that if the Defendant’s allegations were true, there was no reason why Madame Lo would provide her own bank account number to the Defendant via a WhatsApp message. It was obvious that the Madame Lo provided her bank account number to the Defendant so that the Defendant could make repayment to her via such bank account in the future. The Defendant has no answer to the learned Adjudicator’s analysis. I disagree that the learned Adjudicator was misled. Like the learned Adjudicator, I also prefer the evidence of Madame Lo. I also find that the payment of HK$50,000 on 1 July 2016 came from a loan, which the Defendant borrowed from Madame Lo.

(8) It is inherently improbable that the Defendant would borrow a sum of money for making a “conditional” payment in advance when there was allegedly no agreement between the parties regarding the additional works and the Plaintiff, despite repeated requests, allegedly failed to justify these additional works by way of putting forward a formal quotation. The Defendant’s case does not make sense.

(9) In my view, the more probable explanation is that the Defendant knew that she was contractually liable to make payments to the Plaintiff pursuant to the Revised Oral Agreement, but she was in financial difficulty. This was why she borrowed HK$50,000 from Madame Lo. As elaborated in paragraph immediately below, the fact that the Defendant had financial difficulty at the time was borne out and evidenced by her WhatsApp messages to the Plaintiff.

39.Second, the contemporaneous records in respect of the exchange between the parties support the Plaintiff’s case and flatly contradict the Defendant’s case. These contemporaneous records show that the Defendant’s complaints and contention are simply afterthoughts:

(1) As pointed out by the learned Adjudicator in the SCTC Decision[31] and as emphasized by Mr Brian Chok in his opening and closing submission, the records in respect of the parties’ contemporaneous exchange show that the Defendant did not request for a formal quotation until 12 July 2016[32].

(2) As of 12 July 2016, the Defendant had already paid the aggregate “extra” sum of HK$173,000 to the Plaintiff. As pointed out, the payments were made by 3 tranches on (i) 26 May 2016 (HK$120,000); (ii) 1 July 2016 (HK$50,000); and (iii) 2 July 2016 (HK$3,000).

(3) There is not a shred of document showing that the Defendant had requested for a formal quotation before the payments were made; nor is there any document showing that the payments were conditional upon a formal quotation being provided.

(4) Contrary to her stance in the present action, the Defendant was very apologetic in her WhatsApp message to the Plaintiff on 1 July 2016[33]. There, the Defendant stated that she would pay the Plaintiff HK$50,000 immediately and another sum of HK$3,000 the next day. As regards the balance, the Defendant stated that she had to wait for her relative(s) to transfer monies to her, and thereupon she would make further payment(s) to the Plaintiff. The Defendant specifically stated she should be able to make further payments to the Plaintiff in around August or September 2016.

(5) In the WhatsApp messages on 1 July 2016, the Defendant did not mention one single word suggesting that the renovation fee was agreed to be capped at HK$300,000. The Defendant only complained that the renovation fee was allegedly doubled and that there was an alleged budget of HK$300,000 in her subsequent WhatsApp message on 17 August 2016[34]. This was diametrically contradictory to her previous stance, which was apologetic.

(6) In the earlier WhatsApp messages on 25 May 2016[35], the Defendant’s tone was also very apologetic. She stated that she and her family could only pay a sum of HK$120,000 as they needed to incur expenses on purchasing furniture and electrical appliances. However, the Defendant promised the Plaintiff that she would pay the balance by instalments. The Defendant even thanked the Plaintiff for being understanding. Again, the Defendant did not mention one single word about the alleged contractual ceiling of HK$300,000; nor did she mention anything suggesting that the payment of HK$120,000 was subject an alleged condition that a formal quotation was to be provided. Not an iota of this WhatsApp message suggested that the Plaintiff overcharged the Defendant.

(7) In my view, the WhatsApp message on 25 May 2016 corroborates the Plaintiff’s case that on 24 May 2016, the parties agreed the initial renovation fee be HK$572,242[36]. It appears that after the meeting on 24 May 2016, the Defendant realized that her cash-flow was tight. This was why on the next day (ie 25 May 2016), the Defendant sent a WhatsApp message in an apologetic tone saying that she was only capable of paying HK$120,000 at the time.

(8) In a voice mail on 26 June 2016, the Plaintiff requested to meet the Defendant and her husband at the House, such that he could explain the adjustment to the renovation fee to them and the parties could sort out the revised figure[37]. It appears that the Plaintiff wished to explain the figures to the Defendant and her husband because some additional works were carried out after 24 May 2016, and hence additional fees were incurred. On 30 June 2016, the Defendant sent a text message to the Plaintiff indicating that she and her husband trusted the Defendant, and the Plaintiff could simply send her a screen capture or photo in respect of the document showing the revised figure. Hence, the Plaintiff sent photos of the updated list of works and costs[38] and the list of additional works[39] to the Defendant through WhatsApp on the same day (ie 30 June 2016).

(9) At the time, there were no voicemails or text messages showing that the Defendant and/or her husband disputed the figures put forward by the Plaintiff. Meanwhile, shortly after receiving the updated list of works and costs, the Defendant issued the aforesaid apologetic message on 1 July 2016[40] saying that she was only capable of paying a further sum of HK$50,000 and HK$3,000 at the time, but she would make further payments to the Plaintiff in August and September upon receiving some funds from her relative(s).

(10) This was a glaring admission of liabilities.

(11) It is dishonest for the Defendant to allege[41] that she and her husband were shocked when they learned that the Plaintiff proposed to charge HK$573,000 and that they immediately disputed the contents of the Plaintiff’s hand-written list of works/costs as well as the authenticity of the document.

(12) These allegations are flatly contradicted by all the contemporaneous messages and voice mails exchanged by the parties at the time, which show that the Defendant accepted the fee charged by the Plaintiff and that she was apologetic for being unable to make full payment to the Plaintiff.

(13) For completeness, I should also point out that the Defendant seeks to rely on[42] her earlier WhatsApp message on 22 May 2016[43]. In this message, the Defendant invited the Plaintiff to tell her how much she needed to pay in order to complete the project. In my view, this message does not avail the Defendant, and is neither here nor there. Whilst the Original Oral Agreement capped the renovation fee at HK$300,000, the Revised Oral Agreement capped the renovation at HK$600,000. In both scenarios, the Defendant might ask the Plaintiff for the exact amount of renovation fee that she was expected to pay. In other words, the WhatsApp message on 22 May 2016 is consistent with the Plaintiff’s case as much it is consistent with the Defendant’s case.

40.Third, I am of the view that it is wholly disingenuous for the Defendant to keep making a song and dance about the absence of formal quotation. This complaint has no substance at all, and cannot constitute a valid reason for not paying the outstanding renovation fee owed to the Plaintiff:

(1) As evidenced by the contemporaneous WhatsApp messages[44], the Plaintiff did provide the updated list of works/costs to the Defendant on 30 June 2016, and as mentioned I am of the view that the WhatsApp messages do support the Plaintiff’s case that the parties agreed the total renovation fee at a meeting that took place on 24 May 2016 after reviewing the initial list of works/costs.

(2) Whilst the initial list of works/costs[45] and the updated list of works/costs[46] were hand-written documents, they did succinctly set out the works carried out by the Plaintiff and the costs in respect of each of these works. It does not appear to me that the Defendant and Mr Ho Senior would have difficulty in understanding the contents of these documents.

(3) When the Plaintiff gave oral evidence, he was able to explain what the works mentioned in the initial lists and the updated lists were about with reference to the underlying receipts. Insofar as the works that were not supported by underlying receipts are concerned, the Plaintiff was able to explain why no underlying receipts or documents were available. Where the figures in the items of the lists were adjusted, the Plaintiff was able to explain how the revised figures came about.

(4) The Plaintiff is not a person who speaks eloquently. However, I am impressed by his evidence, which seems convincing to me. It strikes me that he is an honest and down-to-earth person, who is serious about his contractual duties. I believe that the Plaintiff did explain the details of the works to the Defendant and Mr Ho Senior in a satisfactory manner, and this was why the Defendant did not raise complain and mention about the need for a formal quotation until she changed her stance on 12 July 2016.

(5) In any event, upon the Defendant’s request and/or complaint, the Plaintiff did provide her with a formal invoice dated 25 July 2016[47]. This formal invoice was a typed-up document issued under the tradename of the Plaintiff’s sole proprietorship. The full details of the works carried out by the Plaintiff and the fees in respect of each category of works were set out in a table. When the Plaintiff gave oral evidence, he was able to explain how the figures appearing in the formal invoice reconciled with the figures that appeared in the initial list of works/costs and the updated list of works/costs that were provided to the Defendant earlier.

(6) In the circumstances, I am of the view that the Defendant as well as Mr Ho Senior must know and understand the works carried out by the Plaintiff. I fail to see how the Defendant could use her request for a formal quotation as an excuse to deprive the Plaintiff of his contractual entitlement (ie to be paid).

(7) All in all, the Defendant’s excuse is bad and unscrupulous.

41.Fourth:-

(1) As pointed out by Mr Brian Chok (for the Plaintiff) in his opening submissions and closing submissions, the alleged defective worked complained of in the Defendant’s counterclaims (such as rewiring of the electrical cables and replacing/‌installing new water wipes) exceeded the scope of works under the Original Oral Agreement.

(2) The Plaintiff is a renovation contractor. In the absence of the Defendant’s contractual commitment, the Plaintiff would not have carried out these “additional” works voluntarily out of the blue.

(3) In this connection, it is pertinent to refer to the contemporaneous text messages and voice mails exchanged between the Plaintiff and the Defendant via WhatsApp from 6 May 2016 to 3 June 2012[48]. There, the parties had extensive discussions in relation to a series of works that went beyond the scope of the Original Oral Agreement, such as works in relation to the canopies at all the rooms, works on the roof, works in relation to installation of glasses in the living and the rooms of the Defendant’s children, works in relation to installation of a new gate and a new entrance door and works in relation to the storage cabinet in the garage.

(4) Had the Original Oral Agreement been the only agreement, the parties would not have engaged in the discussions in question without seeking to agree on the fees in respect of the additional works to be performed. It appears to me that the reason why the parties did not do so was that at the time when the discussions took place, the parties had already reached the Revised Oral Agreement, under which the ceiling of renovation fee to be charged by the Plaintiff was capped at HK$600,000.

(5) In the premises, I am of the view that the Original Oral Agreement must have been superseded by the Revised Oral Agreement. This was why the Plaintiff was expected to carry out works that went beyond the original scope, and the parties did not seek to agree on the fees in respect of each of these “additional” works.

42.For the above reasons, I accept the Plaintiff’s case as pleaded, and I reject the Defendant’s case. I find that:-

(1) The Plaintiff and the Defendant did enter into the Revised Oral Agreement, and the Original Oral Agreement was superseded.

(2) The Defendant paid the aggregate sum of HK$473,000 to the Plaintiff pursuant to the Revised Oral Agreement.

(3) When the Defendant made the payments on (i) 26 May 2016 (HK$120,000); (ii) 1 July 2016 (HK$50,000); and (iii) 2 July 2016 (HK$3,000), the Defendant knew that she was contractually obliged to make these payments to the Plaintiff as the Plaintiff had carried out substantial works pursuant to the Revised Oral Agreement. These payments were not subject to any condition, and the parties had never agreed any condition.

(4) The Plaintiff satisfactory and reasonably explained the works that he carried out under the Revised Oral Agreement to the Defendant and Mr Ho Senior. These works were set out in the initial list of works/costs, the updated list of works/costs as well as the formal invoice.

(5) In the circumstances, before the Defendant changed her stance on 12 July 2006, she, in accordance with the Revised Oral Agreement, agreed to pay a total renovation fee of HK$573,000 to the Plaintiff. This was the amount of HK$572,242 as stated in the revised list of works/costs[49] plus the balance amount of HK$1,517 as stated in the hand-written list in respect of the additional works[50]. The aggregate amount was HK$573,807 but rounded up to HK$573,000.

(6) Since the Defendant has only paid HK$473,000 to the Plaintiff, the Defendant still owes the Plaintiff an outstanding sum of HK$100,000. She is liable to pay the same to the Plaintiff.

43.In the premises, I allow the Plaintiff’s claims in the original action.

The Defendant’s Counterclaims

Refund of HK$170,000

44.In light of the analysis and findings set out in paragraphs 36 to 42 above, I reject the Defendant’s case as well as her allegations in regard to the aggregate payment of HK$170,000. It follows that the Defendant’s counterclaim for refund of HK$170,000 must be dismissed.

Copper Pipes Complaint

45.As pointed out by Mr Chok in his opening submissions, there are no records showing the parties’ contemporaneous exchange on the matters in relation to the Copper Pipers Complaint, and the Defendant’s counterclaim under this head is only supported by her viva voce evidence.

46.Since the Defendant did not even attend the present trial to give evidence, there is no evidence in support her counterclaim in relation to the Copper Pipes Complaint. For this reason alone, such counterclaim should be dismissed.

47.In any event, I am of the view that the Defendant’s case is incredible. It is difficult to understand why the Defendant would, out of the blue, have a discussion with some unnamed person(s) from the management office of the residential estate on an unknown date as to what the old water pipes of her House were made of[51]. The Defendant is unable to provide any meaningful details or particulars in respect of this alleged conversation. The Defendant’s case is completely hollow, and it appears to me that the alleged conversation (which is very artificial) is a concoction.

48.On the contrary, it appears to me that Plaintiff’s case in relation to the Cooper Pipes Complaint is credible[52]. The Plaintiff suggests that the Defendant requested him to install one LPG water heater to be used for the entire House. To this end, it would be necessary to install new water pipes that were capable of carrying hot water to all the three floors of the House. In order to avoid installing pipes within the interior wall of the House, the Defendant decided to install pipes at the exterior wall of the House.

49.In my view, the Plaintiff’s explanation makes sense, and I do accept the same. All in all, I prefer the Plaintiff’s case to the Defendant’s case.

50.For all the above reasons, I dismiss the Defendant’s counterclaim in respect of the Coper Pipes Complaint. I am not persuaded that there was any negligence, breach of duties and/or wrongdoing on the part of the Plaintiff.

Electrical Wires Complaint

51.For the following reasons, I also dismiss the Defendant’s counterclaim in respect of the Electrical Wires Complaint. I reject the Defendant’s allegations that there was negligence, breach of duties and/or wrongdoing on the part of the Plaintiff.

52.First of all, without giving evidence in Court, the Defendant fails to prove that the Plaintiff made representations to persuade her to reinstall all the wires in the House. The WhatsApp messages and voice messages do not show that such representations were made.

53.Further, I reject the Defendant’s suggestion that the works carried out by the Plaintiff was sub-standard and/or dilapidated, such that it was necessary to conduct a complete re-wiring exercise. This matter concerned the safety of the Defendant and her family members. If the Defendants’ accusation were true, she and/or Mr Ho Senior would take steps to carry out the re-wiring exercise. However, the Defendant is unable to adduce any evidence showing that there was a complete re-wiring or that there was any real safety issue.

54.Whilst the Defendant’s allegations cannot withstand scrutiny, the Plaintiff’s case makes sense and is credible[53].

55.The Plaintiff suggests that whilst the Defendant wished to rewire all the electrical wires in the House, he soon discovered that some electric wires could not be replaced without removing the teak floor and stairs of the House. With a view to saving costs, the Defendant agreed not to replace the main power supply line as well as those wires that required removal of the teak floor and stairs. The Plaintiffs explanation seems credible to me, and I accept the same.

56.I also accept the Plaintiff’s evidence that as the parties’ relationship had turned sour, the electrician that he engaged[54] was not allowed to enter the House. As such, the Plaintiff was prevented by the Defendant from taking the necessary steps to obtain the WR1 document from the EMSD.

Air Conditioners Complaint

57.It is the Plaintiff’s case that he never told the Defendant that the five air-conditions were old and hence should be replaced. He was simply asked by the Defendant to receive the air-conditioners when they were being delivered. He then instructed his workers to install the conditioners for the Defendant[55].

58.There is no suggestion that the Plaintiff was the one who sold the five new air-conditioners to the Defendant or that the Plaintiff was a middleman who received commission. In the circumstances, I fail to see why the Plaintiff would wish to make representations to induce the Defendant to buy new air-conditioners. I do not believe that the Plaintiff made the alleged representation, and I accept the Plaintiff’s case and evidence.

59.I am also of the view that the Defendant’s case is incredible. It is hard to understand why she would, out of the blue, have a conversation with the previous owner of the House regarding the conditions of the old air-conditioners. There are no details or particulars in respect of the alleged conversation; nor is there any contemporaneous record showing that the alleged conversation took place at all. In any event, the Defendant did not come to Court to testify, and as such there is no evidence in support of her allegations.

60.More fundamentally, the Defendant’s counterclaim in relation to the Air-Conditioners Complaint is simply illogical. The Defendant and her family members had used and enjoyed the new air-conditioners after they moved into the House. I fail to see how the Defendant could hold the Plaintiff liable for the sum that she paid for purchasing these air-conditioners.

61.For the above reasons, I reject the Defendant’s case, and dismiss her counterclaim in respect of the Air-Conditioners Complaint.

Nuisance/Harassment/Intimidation

62.The heading in the relevant section of the Defendant’s Amended Defence and Counterclaim is titled “Nuisance caused to the Defendant”[56].

63.In Leung Tsang Hung v Incorporated Owners of Kwok Wing House (2007) 10 HKCFAR 480 at paras 13 and 14, Ribeiro PJ stated:-

“Private nuisance is a tort protecting property rights. It is concerned with the activities of the owner or occupier of the property within the boundaries of his land which may harm the interests of the owner or occupier of the land…” (para 13)

“A state of affairs which constitutes a public nuisance is one which endangers the lives, safety, health and property or comfort of the public; or obstructs the public in the exercise of enjoyment of any right that is common to members of the public.” (para 14)

64.It is the Defendant’s pleaded case[57] that “[s]ince 13 October 2016, while the Defendant was working at her formal school, she started receiving frequent calls from debt-chasing company which claimed working for the Plaintiff”. The Defendant alleges that the callers had intimidated her with fierce tones and vulgar language. They intimidated that they would come to school to harm and harass her. Meanwhile, Mr Ho Senior was also subject to alleged harassment in the same way.

65.I agree with Mr Brian Chok’s submissions that the Defendant has failed to plead a viable claim of nuisance. There is no plea suggesting that any property rights were infringed or interfered with; nor is there any plea suggesting that the acts of the Plaintiff and/or the debt-collecting agent (i) endangered the lives, safety, or health of the public; or (ii) infringed a right that was common to members of the public.

66.In the premise, even on the Plaintiff’s case, there could not be any private nuisance or public nuisance. The Plaintiff’s claim based on nuisance is plainly defective, and liable to be rejected.

67.Since there are pleas alleging that the Defendant and/or Mr Ho Senior were “harassed” and/or “intimidated”, it appears that the Defendant may also seek to rely on the cause(s) of action based on the tort of harassment and/or intimidation.

68.In Li Siu Lun v Chan Yuk Lam [2021] HKCFI 3254 at paras 40-41, Wilson Chan J pointed out that the tort of harassment had three elements:

(1) There was a course of conduct by a person, whether by words or action, directly or indirectly or through third party, sufficiently repetitive in nature as would cause, and which he ought reasonably to know would cause worry, emotional distress or annoyance to another person.

(2) The mental element required is reckless as to whether the victim would suffer injury from the conduct in question.

(3) The plaintiff must have suffered damage as a result of the harassment, and in this connection, anxiety would suffice, though the defendant must take the victim as he finds him.

69.In Law Ka Yan Thompson v Ho Kang Wing [2020] HKCFI 513 at paras 38-39, Wilson Chan J pointed out that in order to show that a tort of intimidation was committed, the plaintiff had to show (i) an unlawful threat; (ii) an intention to cause harm with the threat; and (iii) damage to the plaintiff. However, unlike the tort of harassment, it was unnecessary to show that there was repetition or a course of conduct.

70.For the following reasons, I am of the view that the Defendant has failed to show that the tort harassment and/or the tort of intimidation was committed, and her counterclaim against the Plaintiff must fail.

71.First of all, the Defendant has failed to show that she has suffered damage:

(1) For the reasons set out above, many of the allegations raised by the Defendant in the present proceedings are incredible and disingenuous. In light of this, I am sceptical about the Defendant’s bare assertion that she was distressed, worried and/or annoyed.

(2) There is no medical evidence or record showing that the Defendant suffered from psychiatric harm or emotional distress. Had the Defendant suffered psychiatry injury and/or emotional distress as a result of the actions taken by the debtors, she would have sought medical assistance from a psychiatrist or at least approached a counsellor. There is no evidence showing that this was done, and no explanation has been given. The Defendant did not even come to Court to give evidence. I fail to see how the element of damage can be proved.

(3) I am unimpressed by the Defendant’s allegation that she resigned from the teaching position because of the alleged harassment and/or intimidation of the debt collectors. In this connection, the Defendant made pleas suggesting that she received cancer treatment at the time[58], and there are indeed some WhatsApp messages showing that she attended hospital for treatment and/or check-up. In the circumstances, I am not satisfied that the Defendant has shown that there was a casual linkage between her resignation and the actions taken by the debt-collecting agent.

(4) All in all, I do not accept the Defendant’s case. I am not persuaded that the alleged loss of salary on the part of the Defendant was caused by the actions taken by the deb-collecting agent. I am not persuaded that the Defendant was genuinely distressed and/or annoyed. I am also not persuaded that the Defendant resigned from her teaching position as a result of the actions taken by the debtor collectors.

72.Second, I agree with Mr Chok’s submissions that the constituting mental element on the part of the Plaintiff and/or his debt-collecting agent has not been pleaded, and as such the Defendant has failed to make out a cause of action based on the tort of harassment and/or the tort of intimidation. The Plaintiff’s claim, as pleaded, is defective.

73.Third, insofar as the tort of harassment is concerned, I am not satisfied that there was a series of conduct on the part of the Plaintiff and/or his debt collecting agent that was sufficiently repetitive in nature that caused distress, worries and/or annoyance. In this connection:

(1) The Defendant’s witness statement contains a few exhibits that are said to be the transcripts of the recorded telephone conversations between the debt-collecting agents on the one hand and on the other hand the Defendant herself and her colleague during the period from October to December 2016[59]. The Defendant also alleges that her son, namely Mr Ho Junior, received phone call(s) from the debt-collecting agent in December 2016. However, there were only a few recorded telephone conversations, and it does not appear to me that the calls made by the debt-collecting agent were sufficiently repetitive. The transcript revealed that the debt collecting agents used vulgar languages here and there. However, it does not appear that the Defendant and her colleagues were genuinely threatened or distressed. Whilst the Defendant argued with the debt-collecting agent and rebutted their assertions, the Defendant’s colleagues even made cynical remarks to mock the debt-collecting agent. I doubted whether the Defendant, her family members and her colleagues were distressed and/or worried as alleged. Without hearing the evidence from the Defendant, Mr Ho Senior and Mr Ho Junior (who did not come to Court to testify), I do not accept the assertions raised in their witness statements (which were not affirmed on oath and not subject to cross-examination by the Plaintiff’s legal representatives).

(2) The Defendant has produced a few photographs, which allegedly show that on 14 and 15 October 2016 she received numerous missed calls and WhatsApp messages asking her to return calls[60]. It does not appear to be the case that someone repeatedly called the Defendant and/or repeatedly sent her messages over a lengthy period. There is no evidence showing that the Defendant returned the calls, and it is uncertain whether the person(s) who made the calls or sent the WhatsApp messages were the agents engaged by the Plaintiff. For the reasons mentioned hereinabove, I am most sceptical about the Defendant’s assertions, and without any evidence from her, I am unable to accept her case. Furthermore, I am not of the view that receiving a number of missed calls and messages urging the Defendant to return calls ipso facto constituted harassment in the circumstances of the present case.

(3) The Defendant alleges that from 27 March 2018 to 11 June 2018, the debt collectors engaged by the Plaintiff faxed 1228 demand notices to the school where she worked at the time. However, the purported fax records[61] produced by the Defendant are merely two homemade tables that purportedly set out the dates, times and numbers of notices received. As mentioned, I am sceptical about the Defendant’s assertions, and I am not satisfied that the said homemade tables are reliable evidence. As the Defendant did not even come to court to testify and there is no evidence from the Defendant’s colleagues at the school, I reject the Defendant’s assertions.

(4) The Defendant alleges that the debt-collecting agents approached Mr Ho Senior at the school where he worked from 14 to 16 February 2017, and subsequently in July 2017 the tyre of Mr Ho Senior’s vehicle was damaged. Neither the Defendant nor Mr Ho Senior testified in Court. I do not accept their bare assertions. As regards the alleged damage to Mr Ho Senior’s vehicle, there is no evidence showing that this had anything to do with the Plaintiff’s debt collecting agent.

(5) The Defendant also alleges that on 7 March 2017, the debt-collecting agent issued a letter that threatened the personal safety of the Defendant’s daughter. She produced a hand-written note. It stated that the Defendant and Mr Ho Senior, who were the parents of the Defendant’s daughters, were indebted. The note also stated that this was a final warning, and the scum(s) should bear the consequence(s). Without the evidence from the Defendant and Mr Ho Senior and without any corroborating evidence, I am unable to conclude that the said note or letter was authored by some debt collecting agents who were privy to the Plaintiff. I am also unable to conclude that the same was actually sent to and received by the Defendant and/or her family. As said, I am most sceptical about the Defendant’s allegations.

74.For the above reasons, I dismiss the Defendant’s counterclaim in respect of the alleged nuisance, harassment and/or intimidation.

Conclusion

75.I allow the Plaintiff’s claim in the original action, and enter judgment in favour of the Plaintiff accordingly. The Defendant shall pay the sum of HK$100,000 to the Plaintiff.

76.The Plaintiff is entitled to interest at 1% above prime rate on the said sum of HK$100,000 from 4 February 2019 (ie the date of the writ in this action) to the date of this judgment, and thereafter interest at judgment rate until payment in full.

77.I dismiss all the counterclaims brought by the Defendant in these proceedings.

78.There is no reason why costs shall not follow the event. I make a costs order nisi that the costs of these proceedings, including all costs reserved, be paid by the Defendant to the Plaintiff to be taxed if not agreed (with certificate for counsel). Any application to vary such costs order nisi shall be made within 14 days.

Other Matters

79.I thank Mr Brian Chok for his helpful assistance rendered to me.

Mr Brian Chok instructed by Chung & Kwan for the Plaintiff

The Defendant was not represented and did not appear