Fung Kwai Ping v. Yan Chung Wong

HCA002362/1978

BETWEEN

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Coram: Hon. Liu J.

Date: 22 December 1982

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J U D G M E N T

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1. This is a claim against the defendant for a half share in the proceeds of sale of a taxi in the sum of $110,000 and a half share in the profits of that very taxi from the date of the making of an alleged agreement to be later described. There is an alternative claim for payment of a sum of $15,000 allegedly lent by the plaintiff to the defendant. Lastly the plaintiff claims against the defendant for interests and costs of the action.

2. It is common ground that as early as 1962 the plaintiff and the defendant met when they were attending as patients an eye clinic. Thereafter the parties became acquainted. The defendant was a driver, starting with pale pai and subsequently he was driving a taxi. In 1963, the plaintiff had an eye operation which was fairly successful. In 1965, the plaintiff married one Mr. Young and together they started a small business in the form of a snack shop catering for the needs of factory workers. Business prospered from 1965 to 1969, and the court was told that the shop closed doom in 1971.

3. As far as the defendant is concerned, he himself was married in 1967 but strange as it may seem, his marriage was never disclosed and unknown to the plaintiff. After the marriage of the plaintiff, the defendant was a taxi driver. It is also common ground that the plaintiff was visited by the defendant from time to time after her marriage in 1965. The frequency of such visits was hotly contested but according to the plaintiff, during the period of the 1967 riot in Hong Kong, the defendant often visited the plaintiff and at the defendant's request, the plaintiff rendered him financial assistance. Thereafter, so claimed the plaintiff, the defendant kept up with his regular visits and at his request, loans of small suns ranging presumably from $300 to $400 were from time to time given by the plaintiff to the defendant. These loans were purportedly granted to enable the defendant to acquire a taxi. There was not much distinction drawn in these proceedings between the taxi and the taxi licence but according to the plaintiff, the purchase price was represented by the defendant to be in the region of $30,000 and the plaintiff's subsidy was sought to the extent of half of that amount i.e. $15,000. To the request of the defendant, the plaintiff acceded. Consequently, so the plaintiff maintained, in the years 1967 and 1968 prior to the signing of the piece of white cloth in the Kam Lung Restaurant a total of $15,000 was advanced to the defendant in the form of small loans.

4. The plaintiff told the court that it was in 1969 that she began to demand repayment of her $15,000 from the defendant. The plaintiff explained that by that time she had had two children and eras understandably desirous of acquiring permanent accommodation. Repayment was thereupon requested from the defendant with a view to setting up a permanent family home for herself and her two children.

5. The year of 1969 was perhaps one of the matters of confusion which occurred not infrequently in the course of the plaintiff's evidence. She said of another time that it was 1971 or perhaps the beginning of 1972 when the demand was made. The plaintiff told the court that the defendant was always putting it off for various excuses, one of which was that he was then paying for instalments of a flat. The anxiety of the plaintiff cans such that finally she was driven to secure the assistance of one Mr. Heung, a long-standing customer of her snack shop. The plaintiff explained to Mr. Heung, according to her evidence, that she had made loans to the extent of $15,000 to the defendant. The plaintiff confided to Mr. Heung her reluctance to disclose any of these loans to her husband for fear that she could offer no reasonable explanation to her spouse. A meeting was arranged, so ran the evidence of the plaintiff, in the Kam Lung Restaurant between the plaintiff and the defendant with Mr. Heung as a willing witness. As far as Mr. Heung was concerned, the incentive for his participation vans virtually a gratuitous meal.

6. The plaintiff testified that at this meeting in the Kam Lung Restaurant, at her request, the defendant signed a piece of white cloth with Chinese characters to the effect "that he totally has borrowed from me $15,000; that you have no money to pay for the time being and you are willing to give me one half of the income of the taxi together with the taxi licence; fearing words of mouth are of no proof, this is written down as evidence and witnessed by Heung Shek Chuen". The plaintiff also described how the amounts lent had been kept on a piece of paper, which was destroyed after the signing of the piece of white cloth. The plaintiff signed the document, so did the defendant, as did Mr. Heung. Again according to the plaintiff, in 1977 the defendant disclosed to the plaintiff that the taxi in question had been sold for $220,000, and thereupon she pressed the defendant for repayment. The plaintiff complained that sometime after her constant demand for repayment, not only did the defendant stop visiting her but the defendant absented himself from his usual place of residence and had in fact moved away.

7. The plaintiff further told the court that from 1969 to 1977 she had demanded her share of the profits from the defendant, but that the defendant had put up his usual excuses that the plaintiff was being supported by her husband and he himself was in need of financing from these taxi profits. At one time the plaintiff said that the defendant declined to divulge the profits of the taxi, and at another time she modified her evidence by saying that the defendant might well have informed her of the taxi profits but that she could no longer remember if in fact he did.

8. On the 2nd of May 1978, the plaintiff approached the Legal Rid Department with a view to seeking legal aid in an intended action against the defendant. The plaintiff maintained that during her first visit to the Legal Hid Department, she showed the piece of white cloth signed in the Kam Lung Restaurant to member or members, anyhow to the staff of the Department. On her way back home, she felt drowsy and she vomitted ; so did her daughter at the time ten years old. According to the plaintiff, she vomitted into one of the plastic bags she carried in which the piece of white cloth was also kept. Unwittingly the white cloth was lost when the plastic bag eras discarded.

9. She came before Mr. North of the Legal Aid Department on 17th May 1978, on which date she was granted legal aid or information supplied. There wire two attendance notes taken down by Mr. North, which had been produced as exhibits its "P1" and "P2". Whilst Mr. Heung Shek Chuen claimed before this court as being illiterate, he was recorded by Mr. North as having read over the document to Madam rung in 1969 in the Kam Lung Restaurant. There was no reference to the piece of white cloth in any of the attendance notes. Mr. North explained that he did not recall any specific mention of a piece of white cloth but he was led to believe that a piece of white cloth once existed. He conceded that only the word "document" was used in his records.

10. Coming to the defendant's version, he denied that he visited the plaintiff more than on rare occasions in any year. He estimated it to be about three tunes a year. He told the court that he was financially more comfortable than the plaintiff and that in his conversion from a taxi driver to a taxi owner, the teams offered were so agreeable that no borrowing from the plaintiff or anyone else except the banks was necessary. He expressly denied that he had ever borrowed any money from the plaintiff. He explained to the court that the plaintiff and himself fell out in consequence of her request for a $20,000 loan. He told the court that the plaintiff had made herself a nuisance so much so that from refusing to accept her calls, he was ultimately driven to avoid the plaintiff altogether. Various witnesses were called on his behalf to explain the terms for taking over a taxi at about his time for the purpose of illustrating that no more than a $3,000 down payment was needed plus a daily $39 contribution spreading over a period of 30 months.

11. This is essentially a case of credibility. The plaintiff's evidence was not free from discrepancies and at times contradictions, but basically the dispute was well - defined and within a very narrow compass. It is the plaintiff's case that all her leans to the defendant for whatever purpose, in whatever sum anal at whatever time were calculated: on an account stated at the kam Lung Restaurant in either 1969 or 1971 or the beginning of 1972, whereby the defendant acknowledged his total indebtedness to be in the sum of $15,000. On this occasion, the defendant further agreed to let the plaintiff into a half share of his taxi, licence as well as profits.

12. The defence is a categorical denial. The defendant claimed that he had never been to kam Lung Restaurant nor, in fact, was he sure of its location. The defendant explained that he had no earthly reason to borrow as he had no necessity for any loan at the material time. It was submitted on behalf of the defendant that if in fact the friendship had fallen apart with the plaintiff close to his heels as creditor, it would have been inconceivable for the defendant to reveal to the plaintiff the sale of his taxi at $220,000 in 1977. But in fact according to the defendant, the proceeds came to $222,000. It ass suggested that Mr. Heung Shek Chuen, the witness to the signing of the piece of white cloth was somehow influenced by his relationship with the plaintiff's husband. It was also suggested at one time that the plaintiff had sued the defendant out of spite.

13. Mr. Heung gave evidence, and I have had an opportunity to observe his demeanour. He seemed timid and reserved. He certainly did not live up to his expectation on more aspects than one. The only real important piece of evidence that fell from the lips of this witness was that he was present in the Kam Lung Restaurant when the plaintiff and the defendant both signed a statement in relation to a taxi. Mr. Heung also corroborated the plaintiff's evidence that she was anxious to obtain from the defendant some form of I. O. U. as written proof.

14. It is not to be overlooked that both "P1" and "P2", the attendance notes, taken by Mr. North on the 17th May 1978 or thereabout, contained inaccuracies, for example, the reference to a document rather than to a piece of white cloth and the ability of Mr. Heung to read. I do not place any reliance on these attendance rote which at best merely recorded accusations so readily made to the Legal Aid Department with a view to soliciting the granting of legal aid.

15. This is, as I have said, no more than a matter of credibility. It is almost unbelievable that the plaintiff would, out of spite, go to such lengths in fabricating so carefully pieced together a story spanning over a number of years, involving a series of events and transactions against the defendant. The minute details into which the plaintiff's version went, though not without inconsistencies, are hardly the indicia of falsehood from a woman of her background. Her account of the piece of paper with recorded figures of loans and her reconstruction of the written terms were not, among other things, altogether very perfect. I have taken into consideration all these matters, but I accept her evidence that loans ware made to the defendant from time to time, right down to the meeting in the Kam Lung Restaurant either in 1969, 1971 or 1972 I would put to doom as 1969 merely by reason of the fact that the same year was related to the Legal Aid Department in 1978 when the memory of the plaintiff and Mr. Heung was apparently then more fresh. I accept that at that meeting a document in the form of a piece of white cloth was signed by the defendant and the plaintiff as witnessed by Mr. Heung, whereby the defendant agreed to allow the plaintiff to have and to enjoy a half share of his taxi including its licence and profits. I also accept the evidence of Mr. Heung that he was asked by Madam Fung, the plaintiff to assist so that some written proof of her loans to the defendant might be obtained and that he was present and he himself signed as a witness. I further find that the cloth was lost inadvertently in the manner related by the plaintiff. I come ultimately to the conclusion that the claim of the plaintiff against the defendant is proved on the balance of probabilities.

16. I am not impressed by the demeanour of the defendant nor his denial of the loan, the piece of white cloth and his presence at the kam Lung Restaurant. Just as he would have this court believe that there was no loan, no meeting and no white cloth, whether or not he truly needed fund for financing his purchase of a taxi cannot be decisive. Whatever was his aim or motive, the real issue is whether the defendant obtained these loans for a purpose told to the plaintiff and acknowledged his indebtedness finally. His explanation for changing his residence in order to shun the plaintiff as given to the court is equally unconvincing. There is no reason for me to doubt the testimony of Mr. Wong Yau Ming who saw the defendant visiting the plaintiff 10 odd times in a little over a year. The defendant must have been a more frequent visitor than he was perpared to admit. His alleged ignorance of the restaurant location is suspect. The cause advanced by him for the severance of a 16 years' bond since 1962 was tenuous. It was claimed that the rejection of the plaintiff 's request for a $20,000 loan in 1978 was the reason for the rift. $20,000 was no mean sum, and there was nothing to suggest that the defendant s refusal was being unreasonable; yet his refusal was said to have brought about such catastrophic consequence of turning a friend into a menace. The plaintiff constantly pestered him by telephone. The defendant's mood was affected; he was driven to gambling; his wife lent him. It is difficult to accept that the cause of these upheavals was little more than a denial to a needy friend. The drastic measures taken by the defendant were wholly incommensurate with the alleged nuisance of the plaintiff who was said to have been aggrieved merely on account of the defendant's ungenerosity. Even on the defendant's version, there seems to be more to it than what appears on the surface, particularly when theca is no admission of any impropriety in relationship.

17. The plaintiff should have judgment in the sum of $110,000 being half of the proceeds of the sale disclosed to her by the defendant. The defendant's figure of $222,000 may very well not be the net proceeds. The plaintiff is to have interests on $110,000 at, to do the best I can, 10% per annum from the date of the writ to the date of judgment and from the date of judgment until actual payment.

18. As for the plaintiff's share of taxi profits to which she is definitely entitled, such claim will have to be assessed by the Registrar. The figures given by the defendant cannot be said to be wholly satisfactory, and the defendant did not seem to have his attention explicitly drawn to the claim in question. I have found the agreement on a piece of white cloth to have been entered into some time in 1969. In the circumstances, there be judgment for the plaintiff in the sum of $110,000 together with interests as indicated and costs, such costs to be taxed in accordance with Legal Aid Regulations. Limitation was no longer pursued. I further order that the plaintiff's claim for her share in the taxi profits from 1969 to the day of sale of the taxi in about September 1977 to be referred to the Registrar for assessment.

Representation:

Mr. Frankie Leung instructed by Messrs. Haldane Midgley & Co. for the Plaintiff

Ms. Jane Fong instructed by Messrs. Ronald Ho & Co. for the Defendant