Kwong Kam-ming v. Ace Asian (HK) Ltd
Read the full judgment text of HCA 1/1979 on BabelCite. This High Court CFI judgment was delivered on 16 November 1979.
1. The facts agreed on the pleadings are:-
|
HCA000001/1979
----------------- Coram: Mr. Commissioner Gittins, Q.C. Date of Judgment: 16 November 1979 ----------------- JUDGMENT ----------------- 1. The facts agreed on the pleadings are:-
2. The Plaintiff's case is that on 28th October, 1978 YIM Ming told him of his profit position, that on 29th October, 1978 he told YIM Ming that he wished to terminate his account and to withdraw HK$27,000 being his original deposit and the profit. That on 30th October, 1978 YIM Ming told him that the Defendant would require a notice in writing and that he thereupon wrote in Chinese at the dictation of YIM Ming to the following effect -
That he signed this document and handed it to YIM Ming on 30th October, 1978. That YIM Ming said that the document was an informal notice and that he would give the Plaintiff a form for signature the following day. That YIM Ming failed to keep the appointment for the next day, 31st October, 1978, and since then the Plaintiff had made many unsuccessful attempts to contact YIM Ming by telephone at his home and at the Defendant's office. That on 8th November, 1978 the Plaintiff went to see his solicitors and on 10th November, 1978 the solicitors wrote to the Defendant setting out the Plaintiff's case and demanded the return of $27,000. 3. The Defendant's manager LAU Mei-kan gave evidence inter alia as follows:-
4. In cross-examination the witness was asked why the Defendant did not exercise its rights under the "N.B." appearing at the foot of each of the Variation Margin Call documents. This note gave the Defendant, upon the failure of the customer to pay in the additional deposit demanded, power to close the customer's account. His reply was that the Call dated 1st November, 1978 required the further margin by 3rd November, 1978, that of 2nd November, 1978 required further margin by 4th November, 1978, that of 3rd November, 1978 required further margin by 6th November, 1978 and so on. This was due to the price of gold falling sharply. 5. It seems to me that although by 3rd November, 1978 the price of gold required further margin, the non-payment by the Plaintiff of the first Call by that date warranted action by the Defendant to close the Plaintiff's account and was the appropriate and prudent action to be taken instead of allowing the loss to build up to $166,000 by the end of the month. 6. I am of the opinion that with the disappearance of YIM Ming and the receipt of the Plaintiff's solicitors' letter of 10th November, 1978, the Defendant showed a gross lack of concern with the Plaintiff's account by not selling the Plaintiff's purported holdings and taking positive steps to see him until 28th November, 1979 which resulted in the interview of 30th November, 1978. 7. The Plaintiff was cross-examined as to why he took no action to clear up his position with the Defendant when he received the several Variation Margin Call documents which showed he was getting into debt with the Defendant. His reply was that he expected to see YIM Ming and thought that for a few days after 30th October, 1978 the latter was too busy to see him, anyway he was confident that he had closed his account by the letter he had given YIM Ming on 30th October, 1978. Eventually he went to his solicitors on 8th November, 1978 and the letter of 10th November, 1978 sets out his case. 8. As to the meeting with LAU Mei-kan on 30th November, 1978 he said his purpose in going was to get back his $27,000. He said he related to Lau his dealings with YIM Ming and referred to his solicitors' letter of 10th November, 1978. He denied that Lau mentioned the 8 units of gold or that he gave Lau instructions to sell them. 9. The issues in this case are -
10. According to LAU Mei-kan's evidence a customer could close his account by saying to the Defendant's agent that he wished to do so, and that "it will be better if he sends a letter to our Company to close his account." The Plaintiff has testified that he did both these things on 29th October, 1978 and 30th October, 1978 respectively. I hold that YIM Ming had authority to receive these communications on behalf of the Defendant. I also hold that the written notice given by the Plaintiff satisfies the requirements of Clause 29 of the Customer's Agreement. 11. As to whether he did make these communications, his evidence that he did is uncontroverted. The only person who can contradict the Plaintiff is YIM Ming and he has not been called to give evidence. 12. In the circumstances, despite his inaction on the receipt of the Variation Margin Call documents of 1st, 2nd and 3rd November, 1978, which is to a large extent neutralised by his solicitors' letter of 10th November, 1978, I find that the Plaintiff gave oral and written notice of the termination of his account to the Defendant through its agent YIM Ming. I also find that he did not enter into any further transactions after giving notice on 30th October, 1978. 13. I give judgment for the Plaintiff on his claim and I dismiss the Defendant's counterclaim, both with costs.
Representation: Bruno D'Almada (S.F. Sun & Co.) for the Plaintiff. Wesley W.F. Wong (P.H. Sin & Co.) for the Defendant. |