Chan Chiu Hung v. Hau Ping and Another
Read the full judgment text of DCCJ 10298/1968 on BabelCite. This District Court judgment was delivered on 25 January 1969.
1. This is an Action upon a dishonoured cheque dated 22nd October 1966, and drawn in the sum of $2,000 by one HAU Ping to whom I will, for convenience, refer as "the defendant", in favour of and endorsed by one CHAN Wai Choi, and of which the plaintiff is now the holder. CHAN Wai Choi is also joined as a defendant to this claim, but failed to lodge the defence ordered on the first hearing and has since taken no active part in the case, which is unfortunate, for his evidence might have been most
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DCCJ010298/1968 IN THE DISTRICT COURT OF HONG KONG HOLDEN AT KOWLOON CIVIL JURISDICTION Action No. 10298 of 1968 -----------------
----------------- Coram: Judge Cons. Date of Judgment: 25 January 1969 ----------------- JUDGMENT ----------------- 1. This is an Action upon a dishonoured cheque dated 22nd October 1966, and drawn in the sum of $2,000 by one HAU Ping to whom I will, for convenience, refer as "the defendant", in favour of and endorsed by one CHAN Wai Choi, and of which the plaintiff is now the holder. CHAN Wai Choi is also joined as a defendant to this claim, but failed to lodge the defence ordered on the first hearing and has since taken no active part in the case, which is unfortunate, for his evidence might have been most helpful. As it was, only the plaintiff and the defendant gave evidence, which was in such direct conflict that I reserved judgment in the hope that a further consideration would enable me to find some fact or inference which would definitely establish which of them was telling the truth. This I have been unable to discover, but going through their respective stories in detail, I have come to the conclusion that that of the plaintiff is comfortably more credible. It is logical and consistent. The defendant was introduced to him by a friend as a man in need of $2,000 which he expected to be able to repay within twelve days; having no knowledge of the defendant he ensured by the manner of making the cheque and its endorsement that the defendant would also be responsible for the repayment. His reasons for not charging interest even though he is a professional money-lender are quite satisfactory; the extra weeks' grace, the excuse of the riots in 1967, fit into a normal pattern; it is understandable that he should not trouble to present the cheque for payment himself when the friend had already told him the defendant's account was not in funds to meet it; likewise that he should continuously press the friend for payment, for it was after all he who introduced the matter. 2. The defendant's story on the other hand is not really a story at all, but rather a series of unexplained incidents. He drew the cheque in favour of CHAN Wai Choi, but he does not say exactly when nor why; at that time, he was badly in need of money, but I do not know if CHAN Wai Choi was in a position to remedy that defect. He does not seem to be so in February, 1967, but of course, the circumstances might have been different at the time the cheque was drawn. Then there was no suggestion how or why the cheque passed from CHAN Wai Choi to the plaintiff. I appreciate that this might present difficulty to the defendant. But it would not seem unreasonable to have expected the defendant to make enquiries from CHAN Wai Choi when they discussed the disposition of the cheque in November, 1968. Again, no explanation is given for the mention between them at that time of a cheque which one would have thought would have been forgotten early in 1967. This mention also gives the lie to the impression which I felt the defendant wished to convey in examination in chief that the plaintiff's writ came to him as a complete surprise. 3. There is one portion of his evidence, however, to which I must refer, and that is when he said that he received notice of dishonour from CHAN Wai Choi round about the 25th October, 1966. If true, this naturally refutes the plaintiff's claim that he retained the cheque until at least the end of October that year. It is difficult to think of a reason why the defendant should have fabricated this, if it be not true. It may be, perhaps, a mistake; it may perhaps arise from a misunderstanding of what is meant by the word "dishonour". I do not know. But in any event I do not think the puzzle that arises is sufficient to outweigh the far greater credibility of the plaintiff's evidence. For these reasons, I accept all I am told by the plaintiff. I reject whatever was said in conflict by the defendant. 4. I deliberately express no opinion upon the evidence of any settlement between the defendant and CHAN Wai Choi, for CHAN Wai Choi has not been here to give his account and the matter may possibly be a subject of some other Action. But even if it be true I regret that it avails the defendant nothing in this Action. Had the settlement taken place during the period between the end of October, 1966 and the 25th of January, 1967, the position would have been different. But it did not. On the 3rd February, 1967, CHAN Wai Choi was not the holder of the cheque, and there can have been no discharge whatever by payment (Sec.59). Section 36 which deals with the negotiation of overdue and dishonoured bills and to which my attention was drawn on his behalf is of equally little help. The cheque was last negotiated to the plaintiff on or about the 25th January, that is only three months after its date of maturity, which does not seem to be unreasonable length of time (subcection 2). The negation was also for value, the release of the promissory note to CHAN Wai Choi. And furthermore, there is no evidence of any defect in title at the time of dishonour on 18th January or any other possible dishonouring (subsection 5). 5. Judgment is therefore entered for the plaintiff in the sum claimed and costs.
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