Far East Bank Ltd v. Lui Yat Lun and Another

HCA004212/1982

BETWEEN

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Coram: Hon. Power, J.

Date of Hearing: 3 &11 April 1984

Date of Delivery of Judgment: 4 May 1984

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JUDGMENT

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1. In this matter the Plaintiff Far East Bank Limited sued the 2nd Defendant Cheng Kit Yue for recovery of a loan in the sum of $250,000 made to her on the 12th May 1981. The 1st Defendant Lui Yat Lun had guaranteed this loan by way of a continuing guarantee dated the 19th May 1981 and that Defendant was sued on this guarantee.

2. On the 15th April 1983 Judgment was entered against both Defendants in the sum of $160,495.20 being the balance then owing under the said loan and guarantee together with daily interest at the rate of $73.60 as from the 25th November 1982. A stay of execution was ordered on condition that the 1st and 2nd Defendants pay the sum of the Judgment with interest by monthly instalments of $2,500 payable on the 1st day of each calendar month starting on the 1st March 1983. It was provided that if default was made the Plaintiff was at liberty to issue execution.

3. On the 14th March 1984 Master Barnett order that the Defendants attend to be orally examined before me under O.49B of the Rules of the Supreme Court as the Defendants had failed to make any payment and the judgment debt remained wholly unsatisfied.

4. Each of the Defendants filed an affidavit, The 2nd Defendant in her affidavit said that she was married with three children aged 23, 25 and 26 who did not live with her and that she lived with her uncle aged 79 and her husband, Tang Hoi, aged 51, who was a taxi driver earning $2,500 per month. She said that her husband contributed $1,500 per month to the household expenses and that she was employed as an accounts clerk with Industrial and Commercial Godown Limited at a basic salary of $1,050 per month with an allowance of $900 per month. She said that she also received a gratuity from her employer and that her total income for the months April 1983 to March 1984 was $27,380. She said that she had no savings. She detailed total monthly expenses, which appeared to include the expenses for the whole household, except for food, of $3,365,60.

5. The basic figure for household expanses can be arrived at by deducting from this figure the amounts for "Travelling Expenses" of $100, "Meals" of $690, and "Miscellaneous" of $250, These total $1,040. This deduction produces a figure of $2,325.60. Her husband contributes $1,500 towards the household expenses and if this figure is deducted from $2,325.60 a balance of $825.60 is left. This must be met by the 2nd Defendant. She must also, of course, meet the expenses of $1,040, which I have detailed above, and there when added to the amount of $825.60 produce an amount to $1,865,60. Her total monthly income can be obtained by dividing the figure of $27,380 by 12. This gives a figure of $2,281.66. After the amount of her expenses, namely $1,865.60 is deducted for this amount, she is left with the figure of $416.06. It seems to me proper that she be ordered to pay an amount of $400 per month towards the payment of the Judgment Debt.

6. The 1st Defendant said that he was a Clark to Messrs. Howell & Lo, Solicitors earning $1,500 per mouth. Let me say at the very outset that I considered this evidence suspect. This Defendant would have the court believe that he, a mature and experienced solicitors' clerk, is able to earn only $1,500 per month. He said he was married with 6 children and that he resided with his family paying rent of $401 per month. He said that each month he had debts of $1,200 to be paid and that his wife earned $1,800 per month, and that his elder daughter earned $2,000 per month working as a waitress.One cannot help but contrast the amounts earned by his wife and his 21 year old daughter, who works as a waitress, with the amount which he says he earns. He set out total family expenses of $5,028 which had to be met, he said, from the joint monthly income of $5,300.

7. He said he had 3 bank accounts which in total contain a little over $300.

8. Under cross-examination he said that he has been working for Howell & Lo, solicitors, since June 1982 and that prior to that he had been, for eight years, with Stanley Sun & Co. He said that he had been a solicitor's clerk for more than 10 years. He produced his visiting card which bore not only his name but also a paging number. He said, however, that he had now stopped using her pager and the only reason he had a pager was because he had been given it as a gift by a friend. He said that he never got any commission for bringing in clients and that he had never heard of that practice. He said that when he had worked for Stanley Sun & Co. he had earned $2,000 a month. It was put to the witness in cross-examination that he had told the Plaintiff Bank that he earned $6,500 per month. He denied that he had ever said this.

9. Mr. Leung who appeared for the Plaintiff sought an adjournment so that he could produce bank records. Mr. Woo who appeared for the 1st Defendant had no objection to this application and the matter was therefore adjourned.

10. Upon the resumed date, Mr. Leung read an affirmation of one Neville Cheng annexed to which was a photocopy of a document which was described as the "Personal Particulars of Lui Yat Lun and Cheng Kit Yue" and a photocopy of a "Bank Internal Record Card". The "Bank Internal Record Card'' stated "Mr. Lui is reported to have a monthly income of around $6,500". The "Personal Particulars" document recorded that Mr. Lui Yat Lun was the guarantor and that he was employed by S.F. Sun & Co. as an interpreter earning $6,500 per month with ten years of service. Mr. Woo for the 1st Defendant said that he had no objection to this evidence except as regards the information in the documents which indicated that the 1st Defendant darned $6,500. He said that he did not object to the admissibility of that evidence but asked the Court to make its assessment with regard thereto upon the basis of credibility bearing in mind the denial of the 1st Defendant when that fact was put to him. Mr. Woo was, it seems, asking the Court to reject the documentary evidence and to accept, upon the basis that it was more believable, that given by his client.

11. Mr. Woo having conceded that the documents were admissible, there was no argument addressed to me on that subject. The documents were, it would appear, tended under s.20 of the Evidence Ordinance which provides that a copy of an entry in a banker's book shall be received as prima facie entry of the matters recorded therein provided that:

12. The particulars required by proviso (a) above were not sworn to in a specific way. However, Mr. Neville Cheng, who made the affirmation, had said in an earlier affirmation that he was the Assistant Manager of the Far East Bank Limited, the Plaintiff, and he affirmed that the documents were photocopies of bank records, the originals of which could not be found. Further the documents themselves give every appearance of being bank records. Mr. Woo, as I have said, did not seek to argue that the facts established failed to satisfy proviso (a). Again there was no specific statement to satisfy the requirements of proviso (b). However, Mr. Cheng said that these were photocopies and again there was no argument to suggest that this statement was not sufficient to satisfy that requirement. There being no objection thereto, I accepted the documents as prima facie evidence of the facts recorded therein.

13. Having done so I had prima facie evidence of the fact that in 1981, when the loan was made, the 1st Defendant was working for S.F. Sun & Co. as an interpreter earning $6,500 per month. Mr. Woo asked me to reject this prima facie evidence and to accept the evidence of the 1st Defendant himself who said that he was earning $2,000 a month when employed by Stanley Sun & Co. I considered the evidence of the Defendant in this regard to be suspect and unworthy of credit and I have no hesitation in rejecting it and accepting as correct the statement that he was earning $6,500 per month in 1981.

14. I am nonetheless left without any direct evidence, except that of the 1st Defendant himself, as to his earnings at the present time. He says that his earnings have now dropped form $2,000 per month to $1,500. Again I have no hesitation in rejecting that evidence. I am satisfied, given the evidence I accept, that it in proper to infer that the 1st Defendant is presently in receipt of a salary of not less than 6,500 per month. If that figure is used along with the other figures provided by the 1st Defendant himself, he is left each month with an excess of over $4,000. In the circumstances I consider that the proper order to make under O.49B r.1B(2)(a) is that he makes payments in satisfaction of the judgment by instalments in the sum of $3,000 per month, the first payment should be made on or before the 1st May 1983 and payments to be made on or before the 1st day of each month thereafter.

15. The Defendants are ordered to pay the Plaintiff's costs of this application to be taxed.

Representation:

Mr. R. Leung (Henry C.K. Tang & Co.) for Plaintiff.

Mr. R. Wu (Tang & So.) for 1st Defendant.

Mr. M. O'Haire of O'Cock & Day for 2nd Defendant.