Tsang Kin Chuen v. Tsang Chuen Chee
Read the full judgment text of DCCJ 4126/1968 on BabelCite. This District Court judgment was delivered on 19 September 1968.
1. The plaintiff sues for $2,900 as the balance due on 2 cheques dated 19th and 22nd May, 1967 for sums of $1,700 and $2,000.
|
DCCJ004126/1968 IN THE DISTRICT COURT OF HONG KONG HOLDEN AT VICTORIA CIVIL JURISDICTION ACTION NO. 4126 OF 1968 -----------------
----------------- Coram: J.T. Williams, D.J. in Court. Date of Judgment: 19 September 1968 ----------------- JUDGMENT ----------------- 1. The plaintiff sues for $2,900 as the balance due on 2 cheques dated 19th and 22nd May, 1967 for sums of $1,700 and $2,000. 2. The defendant admits drawing the cheques and their dishonour. He alleges they were issued to secure loans of $1,700 and $2,000 from the plaintiff at interest of 4% per month. He alleges that the plaintiff is an unregistered money lender and he called one witness. 3. The defendant began and when he closed his case the plaintiff gave no evidence, but submitted that the defendant had failed to establish a prima facie case that the plaintiff was in the business of money lending, and even if the plaintiff were a money lender there was no evidence that he was unlicensed. 4. The evidence of the defendant and his witness D.W.2, Mr. FAN that the interest was 4% per month was not challenged in any way. Apart from those two loans the defendant says that in 1966 he had received a post dated cheque from a customer on which he had obtained a loan at 4% per month from plaintiff. The cheque was honoured and the plaintiff was repaid. 5. The defendant also states that he did not receive the full amount of $1,700 and $2,000 shown in the cheques, but was paid those sums less 4% which the plaintiff deducted as an advance payment of interest. The three loans referred to by the defendant were clearly high interest money lending transactions. I have to consider whether they are sufficient to establish a case that the plaintiff is in the money lending business. 6. In Premar Ltd. v. Shaw Brothers(1) the plaintiffs, a hire-finance company, were involved in lending transactions outside the scope of that business. It was held that plaintiff was in business of money-lending, but that decision was based on 57 transactions (p.585 F/G). 7. In LITCHFIELD v. DREYFUS(2) the plaintiff loaned to friends and acquaintances at lower rates than they would get elsewhere on about ten occasions and accepted substantial securities. It was held that he was not a money-lender but simply a man who was obliging friends. It was not merely the small number of transactions which influenced the decision but their nature. 8. In FAGOT v. FINE(3), Bankes J. stated:-
9. In Edgelow v. MacElwee(4), McCardie J. in his judgment referred to a number of authorities in considering whether a solicitor was carrying on the business of money-lending. He says at p. 738:-
The Learned Judge went on to say,
10. S.6 of the Money Lenders Ordinance, Cap. 163 is the same as S.6 of the Act which McCardie J. was considering. In that case the solicitor had lent money over a period of 5 years and in one period of 2 years issued 17 writs to recover sums he had loaned. It was held that he was in the business of money-lending. 11. It appears from the decided cases that the defendant, in order to prove that the plaintiff is a money-lender, must show a system and business of money-lending by reference to a sufficient number of transactions which also have the kind of continuity one would expect in a business. The number of specific transactions proved are three loans to the defendant. D.W.2, Mr. Fan, said he frequently obtained loans at similar rates from the plaintiff for other individuals. However, the defendant's solicitor did not ask on how many occasions D.W.2 had obtained such loans nor elicit the names of the borrowers nor the amounts involved. His evidence was simply a general unsupported allegation. 12. I feel that the defendant has not established a prima facie case against the plaintiff of conducting a money-lending business. It follows that the issue as to whether plaintiff is licensed as a money-lender does not arise.
13. Similar observations apply to the loan of $2,000, and the total monthly interest charged on the two loans by the plaintiff was $148. I am satisfied on the evidence of the defendant and his witness that interest of $148 was paid each month for 9 months, apart from the initial deduction of $148 when the loans were made. The 10 payments of interest by the defendant amounted to $1,480 and I feel that a fair sum to have paid by way of interest would have been $480. 14. I therefore treat these 2 lending transactions as re-opened and order that $1,000 of the interest paid by the defendant should be treated as part payment of the loan. 15. The amount therefore outstanding on the 2 cheques will be $1,900 and not $2,900 as claimed. 16. Transactions as harsh as those I have just considered have a strong tendency to end in litigation when the borrower begins to resist the squeeze. A more just and equitable attitude on the plaintiff's part may well have rendered litigation unnecessary. For that reason I will not award costs. 17. Judgment for the plaintiff for $1,900. No order as to costs.
Representation: Mr. E. Woo (Woo & Woo) for plaintiff Mr. Patrick Woo instructed by T.M. Chow & Co. for defendant (1) 1964 2 A.E.R. 583. (2) 75 L.J. (1906) K.B. p.447. (3) 105 L.T.R. (1911) K.B. 583 at 584. (4) 87 L.J.R., K.B. (1917) p.738. | ||||||||||||||||||||||||||||||||||||