Chi Chiu Yueh v. Tan Ying Te

DCCJ016059/2000

DCCJ 16059/2000

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 16059 OF 2000

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Coram: H.H. Judge Andrew Cheung in Court

Dates of Hearing: 18 and 19 September 2001

Date of Handing Down Judgment: 21 September 2001

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J U D G M E N T

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1.In this action, the Plaintiff sues the Defendant for the repayment of an alleged loan in the sum of $500,000 which she says she lent to the Defendant on 2nd June 1999. In his pleading, the Defendant denies the alleged loan, and says that the money was paid to him in exchange for its Renminbi equivalent (RMB591,500) which the Plaintiff had already received from the Defendant on 31st May 1997.

Plaintiff's evidence

2.The Plaintiff said in evidence that she became acquainted with the Defendant whilst they were both studying in the same secondary school in Fujian, the Mainland, back in 1976. The Plaintiff came to live in Hong Kong in 1978, and by chance she met the Defendant on the street in 1983. By then the Defendant had also become a local resident. They kept in contact and by 1996 they were good friends and saw each other very often.

3.On 30th May 1997, the Defendant visited the Plaintiff at her home and showed her a feasibility study report of a lunchbox manufacturing project in Henan, the Mainland. He told the Plaintiff that he was investing in this project, and he was short of capital in the region of $500,000. He therefore asked the Plaintiff to lend him the money. The Plaintiff had a quick look at the report, and understood from the Defendant as well as the report that the capital investment was expected to be recouped from the profits to be made within a year. The Plaintiff considered the project a good one and agreed to lend the Defendant the money. In cross-examination, the Plaintiff explained that by then she had known the Defendant for a long time, and considered him an honest and trustworthy person, running a decent factory business in Kwai Chung and another factory business in Henan. They were also good friends. Therefore the Plaintiff agreed to lend the Defendant the money. She had not read carefully the feasibility study report or asked any detailed questions in relation to it before deciding to lend the Defendant the money, because after all she was just being asked to lend the money, but not to invest in the project herself.

4.It was pointed out to the Plaintiff during cross-examination that in her witness statement, she said the Defendant asked her to lend him the money so as to facilitate the Defendant to prepare a feasibility study report on the intended project. The Plaintiff explained that she could not fully understand the contents of the witness statement which was written in English. She agreed that it had been interpreted to her prior to her signing the same, and at the time she did not notice any discrepancy between what was written in the witness statement and what she told the court in the witness box. She said she told her lawyers the same story, who prepared the witness statement for her to sign and on whom she trusted.

5.According to the Plaintiff, she was a person of means. She obviously could afford lending the money to the Defendant which she said she did on 2nd June 1997. She explained in cross-examination that the money was only lent to the Defendant on 2nd June because she had to wait for the maturity of a fixed term deposit. She said the Defendant gave her his bank account number in a Chinese bank (Po Sang Bank Limited) on 30th May, and she transferred and deposited the sum of $500,000 into the Defendant's account via her own bank (Nanyang Commercial Bank Limited), an associated Chinese bank through which a direct deposit by transfer could be made into a bank account maintained with Po Sang Bank Limited. She then telephoned the Defendant informing him of the deposit. The Defendant told her he would come to her place after work.

6.In the late afternoon of 2nd June, the two met at the Plaintiff's home. The Plaintiff showed the Defendant the bank pay-in slip evidencing the deposit of the money. Thereupon the Defendant took the pay-in slip and wrote something on the back. He then showed it to the Plaintiff. The Plaintiff had a quick look at what had been written and realised that the Defendant had written her an IOU on the back of the pay-in slip. The Defendant also told the Plaintiff that he would repay the money in one year's time with interest and asked the Plaintiff to check the one-year fixed term deposit rate from the banks. The Plaintiff said the IOU was unnecessary because if she did not trust the Defendant she would not have lent him the money in the first place. She tore the pay-in slip into halves. But the Defendant insisted in giving her an IOU, so he took back the two halves of the pay-in slip, placed them on the table, fit the two halves together and pressed them against the table with his hand, and wrote two double lines as well as his signature across the tear.

7.The Plaintiff explained in cross-examination that according to her understanding, the double lines and the signature written across the tear were meant to re-validate the IOU which had been torn into halves by her and thus had become void. She disagreed with the suggestion put to her during cross-examination that the signature was in fact written before the paper was torn, judging from the perfect appearance of the signature across the tear.

8.According to the Plaintiff, the Defendant then gave her back the torn pay-in slip and she simply put it in a drawer. She said she kept it because she thought the Defendant might like to have it back when he repaid the money, it being an IOU written by the Defendant. The Plaintiff also pointed out in evidence that the Defendant also wrote his signature on the front of the pay-in slip. But she did not know when the Defendant wrote this signature.

9.The IOU reads as follows (as per the certified English translation):

10.According to the Plaintiff, she had since visited Henan twice. During the second visit which took place in October 1997, when she asked the Defendant if she could pay a visit to his lunchbox factory, the Defendant told him that the factory had been moved to another province. She said she then suspected that the Defendant was lying to her. Anyhow, according to the Plaintiff, one year passed, and she began asking the Defendant for repayment of the loan in June 1998. Further, several months before, i.e. in February 1998, the Plaintiff had lent another sum of RMB40,000 to the Defendant (which is not a subject matter of the present action). She explained that although by then she was not trusting the Defendant as she did before, because the Defendant repeatedly begged her for a loan (of RMB100,000), so reluctantly she lent him RMB40,000. Since the Plaintiff started asking for the repayment of the loan of $500,000, the Defendant, whilst admitting that the money was due and owing, put forward excuses and did not repay the money. When he was pressed further by the Plaintiff, he did not take the Plaintiff's telephone call anymore.

11.Towards the end of 1998, the Plaintiff asked a common friend, a Mr. Ng Wai Qing, who had accompanied her to Henan in October 1997 and learned about the loan of $500,000, to contact the Defendant and help her to obtain the repayment of the loan from the Defendant, but Mr. Ng's efforts were eventually to no avail. At one stage, she was told by Mr. Ng that the Defendant wanted to make a partial repayment first and repay the balance by instalments, and that the Defendant wanted the Plaintiff not to sue him.

12.In late March 1999, the Plaintiff went to see lawyers, and on 24th May 1999 an action was commenced in the High Court (which was subsequently transferred to this court and became the present action). The lawyers had written two letters before action to the Defendant who did not reply to the letters, before they commenced the proceedings on behalf of the Plaintiff.

13.After the Plaintiff consulted lawyers, her lawyers noticed that in the IOU, $500,000.00 was mistakenly written as $50.00, as the Chinese character "萬" meaning "ten thousand" was either innocently or deliberately missed out from the Chinese wording used for describing the amount borrowed. It should be added here that whilst the certified translation suggests that the amount borrowed was written in Arabic numbers, in the original Chinese IOU the amount was written in words, and in the Chinese way of counting numbers, the missing out of the character "萬" would result in the figure or amount in question being changed from $50 to $500,000. (An analogous situation in English is where the word "thousand" is missed out from "five hundred thousand", which will result in the number being changed from 500,000 to 500.) The Plaintiff was rather confused or unclear as to whether it was she or her lawyer who taped the two halves of the pay-in slip together.

14.The Plaintiff explained in cross-examination that although the other loan of RMB40,000 is still outstanding, she had been told by her lawyers that in order to recover that separate loan she had to go to the Small Claims Tribunal to commence proceedings. She thought that it was inconvenient, that the amount involved was relatively small, and that the claim might not be straightforward as the loan was made through a friend in the Mainland, and so she did not pursue after the Defendant for the recovery of this loan.

15.According to the Plaintiff, after the commencement of proceedings, the Defendant's mother called her on 20th July 1999, saying that she was coming to Causeway Bay where the Plaintiff lived to make partial repayment of money to her on behalf of her son. She asked the Plaintiff to meet her at the Causeway Bay MTR station. The Plaintiff refused the offer, telling the Defendant's mother that as she was not familiar with the details of the dealings between the Plaintiff and the Defendant, it would be better for her to ask her son to come to see her personally. The Plaintiff explained further that she did not know whether the Defendant's mother was offering to make partial repayment in relation to the loan of $500,000 or the other loan of RMB40,000, and indeed she did not know how much money the Defendant's mother was offering to repay. So when the Defendant mother arrived at the Causeway Bay MTR station and called the Plaintiff to meet her there, the Plaintiff again refused. The Plaintiff said to her that if her son really wanted to make repayment, he should sign an instalment repayment agreement and do it through her lawyers. That same night, the Defendant called her and enquired whether his mother had passed to her the money. The Plaintiff told him what had happened, and asked him to come to see her personally. The Defendant replied that he was busy and would call back later. However since then, although the Plaintiff tried to contact the Defendant again, all her efforts were in vain, and she lost contact with the Defendant who did not repay her the loan of $500,000 or any part thereof.

16.The Plaintiff further explained in cross-examination that the reason why she refused the Defendant's mother's offer to make partial repayment was that she understood (from what Mr. Ng had told her) that the mother's offer, made on behalf of her son, was conditional upon the Plaintiff's agreeing to the Defendant's repaying the rest of the money by instalments and the Plaintiff's not suing him. She thought that this should be dealt with between her and the Defendant directly, and through her lawyers.

17.The Plaintiff disagreed with the suggestion made to her during cross-examination that the sum of $500,000 she transferred into the Defendant's account was in fact part of a currency exchange arrangement between the Plaintiff and the Defendant or that she had (through a representative) already received the Renminbi equivalent from the Defendant (through his representative) in Shenzhen, the Mainland, before she deposited the sum of $500,000 into the Defendant's account. She also disagreed with the suggestion that the IOU written by the Defendant on the back of the bank pay-in slip was in respect of a sum of $50 borrowed by the Defendant from the Plaintiff when they met on 2nd June 1997. She disagreed that the same was written by the Defendant after he had joked to her as to whether she would require an IOU for such a small amount of loan. The Plaintiff further disagreed with the suggestion made to her during cross-examination that in around February 1999 she told the Defendant over the telephone that she was having a divorce and she was unable to account for the sum of $500,000 to her husband, which she had deposited into the Defendant's account. The Plaintiff disagreed that the Defendant had never admitted to her that he owed her $500,000. As regards the loan of RMB40,000, the Plaintiff disagreed with the suggestion that the Defendant borrowed the money from her to help a friend or that the Defendant had already repaid the money to her in cash approximately 20 days after it was borrowed. In cross-examination, it was also suggested to the Plaintiff that she owed Mr. Ng $700,000 and he had been pressing her for repayment. The Plaintiff denied this allegation. The Plaintiff also maintained that the Defendant's mother did call her.

Mr. Ng Wai Qing's evidence

18.The Plaintiff called Mr. Ng Wai Qing to give evidence. Mr. Ng was and is a resident in Fujian, where both the Plaintiff and the Defendant originated. He became acquainted with the Plaintiff in 1996. In October 1997, the Plaintiff told him that she was going to invest in Henan, and since he was more familiar with the affairs in the Mainland, the Plaintiff asked him to accompany her to go to Henan. So he went. During their visit to Henan, they met the Defendant to whom Mr. Ng was introduced by the Plaintiff as a fellow clansman. The Plaintiff asked the Defendant if she could pay a visit to his (lunchbox) factory but the Defendant told her that the factory had been moved to Wuhan. Mr. Ng said the Plaintiff told him that this was unlikely to be true and she had suspicions regarding the true reason for the Defendant's borrowing of the sum of $500,000 from her. This was how he learned about the loan of $500,000 between the parties.

19.In the second part of 1998, he learned from the Plaintiff that the parties were having a dispute over the repayment of the loan and the Plaintiff asked him to go after the Defendant to urge him to repay the loan. In cross-examination, Mr. Ng explained that his role was really that of a mediator. Mr. Ng said thereafter whenever he travelled to or through Hong Kong, he contacted both parties in relation to the matter, but it was not on every occasion that he could successfully contact the Defendant. Mr. Ng said in cross-examination that in fact the Defendant had also asked him to help out in the matter.

20.In cross-examination, Mr. Ng admitted that none of these appeared in his signed witness statement which only referred to two telephone conversations in 1999. Mr. Ng explained that the witness statement was incomplete in the sense that it did not contain everything that he knew about this case.

21.According to Mr. Ng, on 7th July 1999, the Defendant called him in the Mainland. The Defendant told him over the telephone that he owed the Plaintiff $500,000, that the Plaintiff was suing him, that he had difficulty with his business and therefore with the repayment, and that he would like Mr. Ng to relate to the Plaintiff on his behalf his wish to make a partial repayment first and pay the remainder by instalments later, as well as his request that the Plaintiff stop suing him. The message was duly related by Mr. Ng to the Plaintiff.

22.On 8th September 1999, Mr. Ng visited Hong Kong and stayed in the Plaintiff's place. He telephoned the Defendant who basically told him that although he wanted to settle the matter with the Plaintiff by the payment of an initial sum to be followed by instalment payments so as to avoid going to court, the Plaintiff was not willing to settle with him in that way. Mr. Ng explained to the Defendant that it was expensive to go to court. The Defendant agreed but said the Plaintiff would not settle with him.

23.Mr. Ng disagreed with the suggestion made to him during cross-examination that he had lent the Plaintiff a sum of around $700,000, or that he came to court to tell a story in order to help a friend, i.e. the Plaintiff. He also disagreed with the suggestion that although the Defendant did telephone him, the Defendant never admitted to him that he owed the Plaintiff any money. Mr. Ng maintained that he did.

24.A large part of the evidence of Mr. Ng (and indeed part of the evidence of the Plaintiff) related to arguably without prejudice negotiations between the parties. When such evidence was led, no objection was raised on behalf of the Defendant. In fact both the Plaintiff and Mr. Ng were cross-examined on these negotiations. No objection based on privilege was ever raised by anybody at this trial. Whatever privilege, if any, that may have been attached to these negotiations must be taken to have been waived by the parties.

Defendant gave and called no evidence

25.The Defendant did not give any evidence at trial nor did he call anyone to give evidence on his behalf, although he had filed and served two witness statements of himself and another one of his mother. In those circumstances, what was said in those witness statements does not form part of the evidence before me. Needless to say, what was pleaded in the Defence as well as the Further and Better Particulars of the Defence does not form part of the evidence before me either.

Findings of fact

26.This case turns on whether the Plaintiff has lent a sum of $500,000 to the Defendant. It is not disputed that on 2nd June 1997 the Plaintiff did deposit into the Defendant's bank account the sum of $500,000. It is not in dispute either that after this deposit, the Defendant never paid the Plaintiff the sum of $500,000 or its equivalent in whatever currency. It was suggested to the Plaintiff during cross-examination that in fact she had received the equivalent of the sum of $500,000 in Renminbi a few days prior to the deposit. The Plaintiff denied it.

27.In my judgment, a good and convenient starting point is the bank pay-in slip and the IOU written at the back of the slip. On the face of it, it was an IOU for $50. It was suggested to the Plaintiff during cross-examination that this was indeed the case, and the Defendant only wrote this out to the Plaintiff after he had joked to the Plaintiff whether she would require an IOU for such a small amount of loan (i.e. $50). As I said above, the Plaintiff disagreed with this suggestion. I find the suggestion wholly incredible. It is plain to me that the IOU was written for a loan of $500,000. It was written on the back of a bank pay-in slip evidencing the deposit of a sum of $500,000 into the Defendant's bank account. The IOU was written by the Defendant. It referred specifically to using the "the time of the bank as the date". I have no difficulty in understanding this, particularly after reading the original Chinese wording, as meaning that the date of the loan was to be taken as that printed on the bank pay-in slip, i.e. 2nd June 1997. Further, judging from the original Chinese wording used, the IOU was written in a very business-like and serious manner, and the words used were crisp. The amount of the loan was written in words not numbers, connoting a degree of seriousness about the actual amount borrowed. The identity card number of the borrower was clearly set out, and depending on whether one counts the name written next to the word "Borrower" as a signature, the Defendant wrote his signature on the front and back of the bank pay-in slip two or three times. And the fact that the IOU was handwritten personally by the Defendant was highlighted by the Defendant's specifically writing after his name or signature the words "in my own hand-writing".

28.In my judgment, all these point plainly to the conclusion that this was an IOU written by the Defendant to acknowledge his borrowing of a sum of $500,000 as evidenced by the pay-in slip from the Plaintiff. The suggestion (and I note that no evidence was called to back it up) that the IOU was written jokingly to acknowledge the borrowing of a sum of $50 is totally unbelievable. I am fully satisfied on the evidence before me that the IOU written on the back of the bank pay-in slip was written by the Defendant to acknowledge the loan of $500,000 he had borrowed from the Plaintiff. On balance, I also take the view that the character "萬" was missed out by the Defendant accidentally. It should be remembered that according to the Plaintiff, it was the Defendant who on his own initiative wrote the IOU, which the Plaintiff considered as quite unnecessary. Had the Defendant already formed the intention at the time to deny the loan, he need not have written the IOU or any IOU in the first place. There would have been no need for him to deliberately leave out the character "萬" from the IOU.

29.This is quite sufficient to dispose of the present case, particularly when no evidence was called by the Defendant to explain away the IOU. However, I would also deal with the evidence of the Plaintiff and Mr. Ng for the sake of completeness. Having carefully observed their demeanour in court and considered the contents of their evidence, and having taken into account the various "discrepancies" or "inconsistencies" in evidence pointed out by Mr. Francis, solicitor for the Defendant, in his final submission, I have come to the firm conclusion that the Plaintiff and Mr. Ng were honest and reliable witnesses.

30.I do not consider the Plaintiff as "evasive" in giving evidence. Rather I think she was a little bit anxious to tell the court what had happened, and her anxiety, coupled with quite understandably the pressure of litigation and giving evidence in court, caused her from time to time to give an answer before she really understood the question put to her. The difficulty was increased because the trial was conducted in English, questions and answers had to be translated, and she speaks the punti dialect with a Fujian (Minnan) accent. In fact, I find the Plaintiff to be a very straightforward person, and as I said, I find her to be an honest witness.

31.The so-called discrepancies and contradictions mentioned by Mr. Francis were all relatively minor or peripheral, such as whether the Defendant said he needed the loan to carry out the project or he needed the money to commission a feasibility study report in relation to the project, whether the Plaintiff knew precisely what the Defendant had written down on the back of the bank pay-in slip, whether she tore the bank pay-in slip first before the Defendant wrote his signature across the tear, whether she had actually put the bank pay-in slip in her drawer for almost two years without looking at it again before she took it out and gave it to her lawyers, whether it was she or her lawyer who taped the torn halves together, whether she had told Mr. Ng about the bank pay-in slip before she went to see her lawyers, whether it was just her "trust" on the Defendant which caused her to lend the substantial amount of money to the Defendant, whether the Defendant or his mother had asked the Plaintiff not to sue the Defendant when the Plaintiff had already commenced proceedings against the Defendant, and why did she continue to lend the Defendant money in February 1998 when she already had suspicion over him after the October 1997 trip. The Plaintiff was cross-examined on these matters, and I accept her evidence and explanations.

32.I accept that the witness statement was incorrect in relation to the feasibility study report and I draw the inference that the mistake was due to a misunderstanding between the Plaintiff and her lawyers regarding the facts, and the mistake was not spotted by the Plaintiff when the witness statement was interpreted to her before she signed it.

33.I accept the Plaintiff's evidence that since she trusted the Defendant and did not consider it necessary to obtain an IOU from the Defendant, she did not read the contents of the IOU but instead simply kept it in her drawer until one day when she decided to go to lawyers for help to recover the loan. She kept the torn IOU because she thought when the Defendant made repayment he might ask for it back from her, given that the Defendant was quite serious with the IOU in the first place.

34.As regards the sequence of the Defendant's writing a signature on the back of the bank pay-in slip, it was suggested to the Plaintiff during cross-examination that the signature of the Defendant written across the standard terms printed on the back of the pay-in slip was written by the Defendant before the pay-in slip was torn, for otherwise the signature would not and could not have been written in such a perfect manner. I accept the Plaintiff's evidence. I consider that quite to the contrary, it would have been quite a coincidence for the piece of paper to have been torn precisely across the whole length of the Defendant's signature, assuming that it was written before the paper was torn.

35.I do not consider the Plaintiff as having been dishonest in her evidence relating to who taped the torn pay-in slip. She said it was her lawyer during evidence-in-chief on the first day of the trial. On the second day, during cross-examination, she voluntarily corrected herself by saying that on reflection, it was probably she who taped the torn pay-in slip. I do not consider this as a change of story. Rather I think the Plaintiff was trying hard to recollect what had actually happened and tell the court the truth as best as she could.

36.And as to whether she had told Mr. Ng about the bank pay-in slip before she went to see her lawyers with the bank pay-in slip, again I do not consider that the Plaintiff changed her story during the course of her evidence as suggested by Mr. Francis. Judging from her answer given in the punti dialect, I am of the view that the confusion or misunderstanding arose due to her imprecise use of words without careful regard to the temporal sense which the words used connoted. In any event judging from the Plaintiff's evidence and story as a whole, quite obviously the Plaintiff was saying throughout that she only told Mr. Ng about the bank pay-in slip and the missing character "萬" after she consulted lawyers who pointed out to her that the character was missing from the IOU.

37.Regarding why she would have so readily agreed to lend the Defendant the substantial sum of $500,000, I have no reason to doubt the Plaintiff's evidence that back in 1997, the two were good friends, they having known each other since schooldays for over 20 years. She simply trusted him. As to why she was still prepared to lend the Defendant a sum of RMB40,000 in February 1998 when she was already suspecting the Defendant's real reason for borrowing $500,000 from her, I accept that this was done because of the continued begging by the Defendant. I also note that by then the time for repayment of the $500,000 had not yet arrived. I do not find this subsequent loan which was much smaller in amount to be surprising, given the relationship and friendship between the two even up to that point in time.

38.As to whether the Defendant or her mother had asked the Plaintiff not to sue the Defendant when the Plaintiff had already commenced proceedings against the Defendant, again I think this has more to do with the words the Plaintiff used than anything else. Having listened to the original punti wording used by the Plaintiff in her answers given during examination, I take the view that the Plaintiff was simply being imprecise when she related to the court the Defendant's request, and conclude that what she meant to say was that the Defendant asked her to stop suing her. But the punti words she used in evidence were imprecise and this gave rise to the confusion particularly after interpretation into the English language. I do not consider this as affecting the credibility of the Plaintiff's evidence relating to what went between the Plaintiff and the Defendant or her mother after the Defendant's failure to repay the loan within one year as promised.

39.In any event, I do not consider any of these matters, whether viewed individually or collectively, as really crucial or important to the case of the Plaintiff, which is basically that she has lent the Defendant $500,000 which he has not repaid; nor do I consider that these matters materially affect the credibility of the Plaintiff as a witness.

40.As regards the suggestion made to the Plaintiff during cross-examination that the sum of $500,000 was paid to the Defendant as part of a currency exchange arrangement between the two, I have no reason whatsoever not to accept the Plaintiff's answer when she disagreed with the suggestion. The Defendant did not give any evidence to back up the suggestion, and there was no documentary evidence whatsoever to back it up either.

41.As for Mr. Ng's evidence, I find Mr. Ng to have been wholly honest and reliable as a witness. His account of what had happened was clear and straightforward. He knows both parties and so far as I can see he has no reason or motive to lie. Both he and the Plaintiff denied that he had lent $700,000 to the Plaintiff. I accept their evidence. I accept Mr. Ng's evidence that he basically played the role of a mediator, but given the facts that this was a simple loan which had not been repaid, what he could have suggested to the Defendant by way of mediation would be very limited, and would not be very much different from his asking the Defendant to make repayment. He could have suggested payment by instalments, he could have made suggestions on the number of instalments, the amount of the instalments, the payment schedule and so forth, but apart from these, as a mediator there was not much he could have done particularly when the Defendant had admitted to him that the money was indeed due and owing, which I accept. As regards the contents of his witness statement which merely focused on the two telephone conversations, I accept Mr. Ng's explanation that the witness statement was simply incomplete. Having considered Mr. Ng's evidence and demeanour as a whole, I accept that what he said that was not contained in his witness statement did in fact happen, although for some innocent reason it was not mentioned in the witness statement. I have come to the conclusion that this does not affect Mr. Ng's credibility at all.

42.Finally I should also note that the Defendant never replied to the two letters before action written by the Plaintiff's solicitors to him, which would be quite surprising if he had never borrowed the money in question from the Plaintiff, particularly in the light of the story he pleaded in his Defence. And I also note that the Defendant has chosen not to give evidence at trial. Of course the burden of proof lied with the Plaintiff. But if what the Defendant pleaded in his Defence was true, and therefore the Plaintiff and Mr. Ng were telling a big lie to this court, it would be very difficult to understand why the Defendant and perhaps I should add his mother did not come forward and tell this court the true story, particularly when they had already prepared signed witness statements. No explanation whatsoever was given. Although the Defendant was not obliged to offer any explanation, let alone to give evidence or call any evidence, his not doing so may of course be taken into account.

43.At the end of the day, I am left with nothing to explain away the IOU. But not only that, since I accept the evidence of both the Plaintiff and Mr. Ng, there is indeed ample evidence before me in support of the Plaintiff's case. Based on the civil burden and standard of proof, I find that the Plaintiff's case against the Defendant as wholly proven.

Conclusion

44.In conclusion, I give judgment to the Plaintiff against the Defendant for the sum of $500,000 together with interest thereon at the rate of 8% per annum (which I consider to be fair and reasonable in the circumstances of this case) from the date of the writ, i.e. 24th May 1999, to the date hereof and thereafter at the judgment rate until full payment.

45.I make an order nisi as to costs that the Defendant pay the Plaintiff the costs of this action to be taxed if not agreed. I also grant a certificate for counsel. Unless any party applies within 14 days from the date hereof to vary this order nisi, the same will become absolute upon the expiry of the 14-day period.

Representation:

Mr. Simon Lui, instructed by Messrs. Au Yeung, Cheng, Ho & Tin, for the Plaintiff.

Mr. Paul Francis of Messrs. Paul Kwong & Co., for the Defendant.