Tsang Shui Ching Patrick v. Leung Yee May Anita and Another

HCA004475/1998

HCA 4475/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 4475 OF 1998

Coram: Hon. Sakhrani J in Chambers

Date of Hearing: 18 May 2001

Date of Judgment: 18 May 2001

___________________

J U D G M E N T

___________________

1. This is an appeal by the 1st defendant from the order of Master Yuen made on 21 December 2000 whereby she ordered, inter alia, that the 1st defendant do serve on the plaintiff and file with the court her answer to the plaintiff's interrogatories filed on 6 July 2000 within 21 days from the date thereof.

2. The claim in this action by the plaintiff against the defendants is as guarantors of a loan advanced to Yat Ho International Limited ("Yat Ho") in the sum of $1,500,000 with a fixed interest rate of $49,500 per month. The plaintiff has obtained judgment in default against the 2nd defendant. Yat Ho has been wound-up. The 1st and 2nd defendants together with the husband of the 1st defendant, a barrister, were the directors of Yat Ho. The 2nd defendant together with the husband of the 1s defendant were the shareholders of Yat Ho.

3. The defences raised by the 1st defendant are first, that she was asked to sign on the document which she did not know was a guarantee. In essence, the defence of non est factum is raised. The second defence raised is that the plaintiff has been repaid in full. It is alleged that $1 m was repaid to the plaintiff in June 1994 and $550,000 in cash in July 1994. The third defence raised is that the plaintiff was an unlicensed money lender. All of these are matters in issue in the action. The plaintiff also denies that he ever received $550,000 in cash in July 1994 or at any other time.

4. Witness statements have already been mutually exchanged and the parties know exactly who the witnesses at trial will be. Apart from herself, the 1st defendant intends to call two other witnesses in support of the assertion that $550,000 was paid in cash to the plaintiff in July 1994. One such witness is Ng Kwok Wah who says that he was a part-time chauffeur of the 2nd defendant at the material time and that he witnessed the payment of the $550,000 to the plaintiff. He also says that the 2nd defendant asked him to drive the plaintiff off by car which he did after he had received the $550,000. The plaintiff denies that the 2nd defendant had a car or indeed had a chauffeur.

5. The interrogatories that have been served and the subject of this appeal are six interrogatories. These are as follows :

"(1) What was your highest level of education attained?

(2) Had you consulted the other director and member of Yat Ho and your husband, namely Yu Chiu Cheuk Raymond, before

(a)signing the minutes of meetings of the Board of Directors of Yat Ho on 8 April 1994?

(b) going with the 2nd defendant to the office of Messrs Fairbairn Catley Low and Kong ("Fairbairn") on 8 April 1994?

(c) signing the loan agreement and the Deed of Guarantee at the office of Fairbairn?

(3) Were you present on the occasion in July 1994 during which HK$550,000 was allegedly given by the 2nd defendant to the plaintiff?

(4) What was the exact date in July 1994 on which the 2nd defendant allegedly gave HK$550,000 in cash to the plaintiff?

(5)(a) Did the cash of HK$550,000 allegedly given to the plaintiff on that occasion in July 1994 belonged to the 2nd defendant or Yat Ho or some other persons?

(b) If the cash belonged to some other persons(s), please specify such person(s).

(6)(a) What was the registration number and the brand of the car of the 2nd defendant as in July 1994?

(b) Under whose name was the car registered?"

6. It is clear law that questions which go merely to the credit of the witness cannot be put as interrogatories to a party (Allhusen v Labouchere [1878] 3 QB 694). In my view, interrogatories (1) and (2) are clearly questions which go merely to the credibility of the 1st defendant. It is in issue whether or not the 1st defendant knew that she was signing a guarantee. Interrogatories (1) and (2) are designed to discredit the 1st defendant. As they go merely to credit, I do not think interrogatories (1) and (2) are proper interrogatories.

7. As to interrogatory (3), I agree with counsel for the plaintiff that it is not clear from the witness statement of the 1st defendant as to whether or not she was present at the time when it is alleged that $550,000 was given by the 2nd defendant to the plaintiff. Mr Chan, counsel for the 1st defendant, says that it is implicit from her witness statement that she was present but I think it should be expressly stated. I see nothing objectionable about interrogatory (3) and the 1st defendant should answer that.

8. Strictly speaking, interrogatory (4) is a matter in respect of which the plaintiff could have served a request for further and better particulars. Para 9(c) of the amended defence of the 1st defendant pleads that in or about July 1994 the said sum of $550,000 was paid by the 2nd defendant to the plaintiff. Further and better particulars of the exact date could have been sought. However, I regard this as a technical objection and in the exercise of my discretion, I would allow the plaintiff to pursue this interrogatory. Interrogatory (4) should be answered in my view.

9. Interrogatory (5) is, in my view, irrelevant as it does not relate to any matter in issue in the action. Whether the $550,000 belonged to the 2nd defendant or not is irrelevant to the issues in the action. I do not think that interrogatory (5) is a proper interrogatory.

10. As I have said, it is in issue whether or not the 2nd defendant repaid the $550,000 in cash to the plaintiff as alleged. Interrogatories as to time, place and circumstances of an alleged payment have been allowed (26/4/31 Hong Kong White Book). I accept the submission of counsel for the plaintiff that all the circumstances that go to prove or disprove the truth of the fact of the payment are matters in respect of which it is proper to interrogate (See also Faulder v Stuart [1805] 11 Ves 296, reported in 32 ER 1102 and Hills v Wates [1874] LR 9 CP 688). The reason why the plaintiff wishes to know the registration number of the car of the 2nd defendant is to enable it to make enquiries with the Transport Department as to the owner of that car. The plaintiff wishes to seek information to initiate such investigations with the Transport Department. It seems to me that is proper to ask what the registration number of the car of the 2nd defendant was so that the plaintiff could pursue their enquiries. As is stated in 26/4/7 of the Hong Kong White Book :

"......interrogatories are admissible which go to support the applicant's case or to impeach or destroy the opponent's case."

In my view, it is proper to interrogate as to the registration number but not the brand of the car. I do not regard the interrogatory under para 6(b) as being necessary as the answer to para 6(a) would be sufficient for the plaintiff to carry out their investigations.

11. So, in my judgment interrogatories (1) and (2) are disallowed. Interrogatory (5) is disallowed. Interrogatory 6(b) is disallowed. And what is allowed are interrogatories 3, 4 and 6(a) but only in so far as it relates to the registration number. The order of Master Yuen will be varied in the manner that I have indicated. I am not prepared to make an unless order. The master did not consider it fit to make an unless order and I agree with the view of the master and decline to make an unless order.

Representation:

Mr Wallace Cheung instructed by Messrs S H Tam & Co, for the plaintiff

Mr Kenneth Chan instructed by Messrs Kitty So & Tong, for the 1st Defendant