Wong Cheung Sum v. Chu Kong Highway Engineering Co. Ltd.

FAMV000014/2000

(Not for Circulation)
FAMV No. 14 of 2000

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 14 OF 2000 (CIVIL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACV No. 264 OF 1999)

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Appeal Committee: Mr Justice Litton PJ, Mr Justice Bokhary PJ and Mr Justice Silke NPJ

Date of Hearing: 30 June 2000

Date of Determination: 30 June 2000

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D E T E R M I N A T I O N

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Mr Justice Litton PJ :

1. This is the determination of the Appeal Committee.

2. The applicant seeks leave to appeal against summary judgment in the sum of $2,869,533.60, interest and costs. The liability arises from three dishonoured cheques drawn by the applicant. His application is made under s.22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484, on the ground that there is some question of great general or public importance which ought to be submitted to the Court for determination; alternatively the applicant says that the discretion of the Committee should otherwise be exercised in his favour. Leave to appeal was refused by the Court of Appeal on 23 March 2000. Hence the matter now before us.

3. The undisputed facts are these. The applicant and his wife have a 50% shareholding in a company called Multi-Best Co. Ltd ("Multi-Best"). The other 50% is owned by the applicant's sister-in-law (Madam Ko). The respondent company had business dealings with Multi-Best which resulted in Multi-Best owing the respondent $2,869,533.60 in June 1998. Following arrangements between the parties the respondent was given three cheques drawn by Multi-Best posted-dated to 17, 18 and 19 July 1998. The first 2 cheques were for $1m and the last for $869,533.60. They were deposited with the respondent's bank on 2 July 1998.

4. It is the respondent's case that on 13 or 14 July 1998 (a few days before the first cheque was due) the applicant and Madam Ko went to the respondent's office. They told the respondent's general manager Mr Feng that Multi-Best did not have enough funds to meet the three cheques. They asked for a few days' grace to which Mr Feng in principle agreed. So Mr Feng wrote to the bank on 16 July asking for the return of the three cheques : a copy of this letter (faxed to the bank) was exhibited. Those cheques were returned by the bank in the afternoon. Shortly thereafter the applicant went to the respondent's office and brought with him three other cheques drawn by himself. They were dated 21, 22 and 23 July 1998 for the same amounts as the Multi-Best cheques. When the applicant had satisfied himself that Multi-Best's cheques had been returned by the bank and marked "cancelled" he handed his cheques over to Mr Feng. These were the cheques which were subsequently dishonoured, on which summary judgment was entered.

5. On the face of it the applicant had no defence whatever to the respondent's claim. The applicant, in seeking leave to defend under Order 14 r. 3(1) of the Rules of the High Court, put forward a version of events which suggested that he had drawn the cheques and had then delivered them to Mr Feng under the threat of physical violence. The Master gave judgment against him but on appeal under Order 58 r. 1 to Godfrey JA (sitting as an additional judge of the Court of First Instance) his judgment was reversed : Godfrey JA described the applicant's version of events as "an extraordinary story" and said that he had "misgivings" about the applicant's defence : But he nevertheless gave the applicant unconditional leave to defend. On the respondent's appeal to the Court of Appeal, Godfrey JA's order was discharged and the Master's judgment restored.

6. The conclusion which the Court of Appeal reached unanimously was this : Not only was the applicant's story merely "extraordinary"; it was so implausible that there was no possibility of it being believed at a trial. The Court of Appeal arrived at this conclusion not only by considering the inherent improbability of the story but also by reference to the applicant's conduct at the relevant times. On the material before it the Court of Appeal was entitled to take that view.

7. The applicant seeks to support this application by suggesting that the Court of Appeal's judgment raises a question of great general and public importance, namely, the "true parameters of the law of duress". In our judgment it raises nothing of the kind.

8. This application is dismissed, with costs.

Representation:

Mr Au-Yeung Kwan (instructed by Messrs Quan & Co.) for the Applicant

Mr Joseph Fok SC (instructed by Messrs Liu, Chan & Lam) for the Respondent