Lee Yang Timber (A Firm) v. Chau Kai Keung t/a Mount Hilton Construction & Equipment Co
Read the full judgment text of HCA 2205/1982 on BabelCite. This High Court CFI judgment.
1. By his specially endorsed writ issued on the 18th March 1982, the Plaintiff claims the sum of $66,108 with interest and costs against the Defendant. The sum of $66,108 represents the outstanding balance of the purchase price of $86,108 in respect of the alleged sale to the Defendant, Mr. Chau Kai Keung, described as trading as Mount Hilton Construction and Equipment Company ("MHCE") of 836 pieces of plywood timber allegedly delivered to the Defendant between the 25th and 26th November 1981 pu
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HCA002205/1982 IN THE HIGH COURT OF JUSTICE BETWEEN
___________ Coram: Hon. Clough, J. Date: 5th October, 1983. ______________ J U D G M E N T ______________ 1. By his specially endorsed writ issued on the 18th March 1982, the Plaintiff claims the sum of $66,108 with interest and costs against the Defendant. The sum of $66,108 represents the outstanding balance of the purchase price of $86,108 in respect of the alleged sale to the Defendant, Mr. Chau Kai Keung, described as trading as Mount Hilton Construction and Equipment Company ("MHCE") of 836 pieces of plywood timber allegedly delivered to the Defendant between the 25th and 26th November 1981 pursuant to an oral agreement made on or about the 7th October 1981 between Mr. Lai Kin Chung ("Mr. Lai"), the sale proprietor of the Plaintiff on the one part and the Defendant ...(illegible) other part. 2. There was an interval of about 5 months between the Sonding of the specially endorsed writ addressed to the Defendant by position the 20th March 1982 and the filing of his Defence on the 26th August 1982. During this interval the Plaintiff obtained judgment on the 22nd April 1982 for the relief claimed in the Writ and Statement of Claim in default notice of intention to defend and the Defendant was arrested under a writ of fieri facias as a judgment debtor on the 16th June 1982. He claimed that this was the first he knew about this action and succeeded in getting the default judgment set aside on the 10th August 1982 by Mr. Registrar Betts who gave him leave to defend. 3. In the course of the proceedings to set aside the default judgment both Mr. Lai and the Defendant made affirmations revealing the conflict later reflected in the pleadings and the Defendant relied on an affirmation of a Mr. Lau Tung Shing ("Mr. Lau") who said he was the Managing Director of a limited company called Mount Hilton (H.K.) Enterprises Limited ("MHEL") which had ordered the relevant goods, issued two cheques for $10,000 in purported part payment and now admitted its laibility for the goods which had not been settled due to financial difficulty. MHEL in fact was incorporated in June 1980 and was the subject of a winding-up order on the 26th April 1982 by which time it had liabilities of about $2.8 million. 4. By his Defence filed on the 26th August 1982, the Defendant denied knowing or having any business transaction with the Plaintiff. He contends that the real customer of the Plaintiff was the limited company (MHEL) and that it is the Defendant's belief that the Plaintiff's claim is the result of confusion caused by the similarity of the Defendant's company's name and MHEL. 5. By its Reply filed on the 23rd September 1982, the Plaintiff firm denies the allegations in the Defence and asser's that Mr. Lai was introduced to the Defendant on the 20th August 1981. When the Defendant wanted to buy plywood and that, after negotiations, the above mentioned oral agreement was reached on the 7th October 1981 and Mr. Lai and the defendant agreed that 20% of the purchase price would be paid on receipt of the goods by the Defendant and the balance by a post-dated cheque. 6. After pleading failure by the Defendant to make any payment after delivery of the goods, the Plaintiff pleads that two payments of $10,000 were made by cheques to Mr. Lai at the Defendant's premises. The first of these cheques is alleged to have been issued by MHEL and given to him on or about the 29th December 1981 by one of the staff. The second cheque is also alleged to have been issued by MHEL and to have been given to Mr. Lai on or about the 18th January 1982. 7. By paragraph 7 of the Plaintiff's Reply it is pleaded that at all material times the Plaintiff dealt only with the Defendant and never with MHEL. It is contended that the Defendant ordered the goods, they were delivered to him, and the alleged similarity of the names of the two companies has not led to any confusion on the part of the Plaintiff. 8. No mention is made in any of the pleadings or in any of the affidavits referred to above to Mr. Ip Wai Choi ("Mr. Ip") who turned out at the trial to be an important figure in the events which resulted in these proceedings. He was subpoenaed by the Defendant, but at the trial the Defendant did not call him as a witness and the Plaintiff elected to do so. 9. The onus is on the Plaintiff to prove on the balance of probabilities the liability of the Defendant under the alleged oral contract between the Plaintiff and the Defendant. It is common ground between the parties that there was a contract for the sale of the plywood by the Plaintiff who allowed the goods to be collected from his storage agent but received only $20,000, being part of the purchase price of $86,108, so that he is still owed the sum of $66,108 by whoever is the purchaser. The substance of the Defence is that the Defendant was not the purchaser, he never ordered the plywood, it was ordered and accepted by the limited company MHEL. On the pleadings the crucial question is, "Did the Defendant order the plywood as alleged by the Plaintiff?". No issue of agency was raised on the pleadings. 10. The principal witness for the Plaintiff was its sole proprietor Mr. Lai. Three witnesses were called to support his evidence on various matters. They were, (1) Mr. Wong Wo Cheung ("Mr. Wong") who introduced the Defendant to Mr. Lai, (2) Miss Lui Suk Hang ("Miss Lui"), the clerk of Mr. Lai and (3) Mr. Ip who trades in building materials under the name of Hung Ngai Co. ("Home Nice"). 11. The substance of Mr. Lai's case as put forward by him in evidence in chief was as follows. He is a merchant. In around mid August 1981 his friend Mr. Wong telephoned him in the morning and told him he would introduce the Defendant to him in the afternoon for business dealing. The Defendant, whom Mr. Lai identified in court, came alone to the Plaintiff's office and introduced himself. They exchanged cards. The Plaintiff produced the card (Exhibit P1) which he said the Defendant gave him. The card bears the name "Chau Chfk Hoo" (and not the Defendant's name "Chau Kai Keung") described in the card as "GENERAL MANAGER". Below the name and description, there appear the full names of MHEL and MHCE in capital letters followed by one address in Des Voeux Road, a cable and Post Office box address and telephone numbers. All this information appears in Romanized lettering, but there are Chinese characters on the right-hand side of the card which Mr. Lai said under cross-examination he understood to mean "Mount Hilton Trading Limited Company" and "Mount Hilton Construction Material Company". 12. Mr. Lai said that the Defendant told him he was the "director manager of the Mount Hilton Company". They waited for about 10 minutes for Mr. Wong. At this time Miss Lui was in the office. Mr. Lai and the Defendant then went to Argyle Street to inspect stocks of Mr. Lai's plywood stored there. There were about 7,000 pieces. The Defendant offered to buy the lot, paying 20% cash and the balance by a cheque post-dated for one month, but Mr. Lai would not agree because he had had no previous dealings with the Defendant. 13. In early October 1981, according to Mr. Lai, the Defendant telephoned him at his office about plywood and they reached agreement for the sale of 19 crates of plywood each containing about 44 pieces, comprising a total of 836 pieces, being the plywood, the subject of these proceedings. Terms of payment were again suggested by the Defendant, as at the August meeting, as a 20% deposit and the balance by a cheque post-dated for one month. The Defendant said he had no space at his construction site and would inform Mr. Lai when space was available. 14. Mr. Lai said that in late October 1981, Mr. Ip inquired if Mr. Lai had plywood in stock. He wanted about 800 pieces odd. No time or place for delivery was mentioned. About ten odd days later, in mid November, Mr. Lai telephoned Mr. Ip about the delivery of the plywood and Mr. Ip told him to hand the goods to Mount Hilton Company. 15. Mr. Lai's evidence in chief was to the effect that he then told Mr. Ip that he also knew Mount Hilton Company and one of the partners was called Chau Kai Keung. Mr. Lai suggested that if the business came from the same company it would be better for him to deal with it directly because he knew Chau Kai Keung directly. He accordingly refused Mr. Ip's order because of the same company's name. 16. Asked by his Counsel if he did not want to accept both the orders he replied that his stock at the time was not sufficient for that. He added that at that time he had had business transactions with Mr. Ip involving the payment of money. Mr. Lai was, he said, a merchant with small capital. He did not want his capital held up and he would be in financial difficulty if he sold all his goods out and failed to receive payment. 17. Mr. Lai said that after refusing Mr. Ip's order, because he knew Mr. Ip had joined the Hong Kong Credit Bureau, he asked Mr. Ip to ".......... make enquiry about this Mount Hilton Company, if it had been sued before." He added that subsequent to checking he formed the view that he could do business with the Defendant of the Mount Hilton Company. 18. Around the 24th November 1981, Mr. Lai said, the Defendant telephoned him and told him to deliver the goods the next day and to issue a delivery order dated the 25th November 1981. Because it was Mr. Lai's first transaction with the Defendant, Mr. Lai telephoned him and asked him "........ in which company's name was he doing the business with me", to which the Defendant replied, "Mount Hilton Company". 19. Accordingly, Mr. Lai said, he instructed Miss Lui to issue a delivery order (Exhibit P2) and to write down the company's address from his company's address book and he said that he had obtained the address from the card (Exhibit P1), given him by the Defendant at their first meeting in August. Mr. Lai said that the signature and date "24/11/81" on Exhibit P2 was the acknowledgment of the delivery order on the duplicate copy. 20. Mr. Lai then explained the machinery of delivery, allegedly to the Defendant, as evidenced by three delivery receipts (Exhibits P3, P4 and P5), given to the Plaintiff's storage agents, Reliance Industrial Corporation Limited ("Reliance") and dated 25th (Exhibits P3 & P4) and 26th November (Exhibit P5). He could not identify the illegible signatures on Exhibits P3 and P4 and said that the signature "Chan Kwai" on Exhibit P5 must be that of a member of the staff of Mount Hilton Company. Mr. Lai said that after delivery of the goods, he told Miss Lui to issue an invoice of which he produced a copy (Exhibit P6) to Mount Hilton Company. When he received no payment, he instructed Miss Lui to press for payment on the telephone and by going to the Mount Hilton Company's office. He himself made telephone calls to press for payment but failed to contact the Defendant. 21. In mid December 1981, Mr. Lai said, Mr. Lau, whom he described as an employee of Mount Hilton Company, telephoned him and said he wanted to continue to place plywood orders. Mr. Lai said he told Mr. Lau that he did not know him and did not want to do business with him because Mount Hilton Company still owed him $86,108 and payment had not been made. 22. Mr. Lai went on to say that in late December, 1981 he went direct to the Mount Hilton Company to ask for payment. He looked for the Defendant who was not in. The office on the second floor of On Wah Building, No. 76-78 Des Voeux Road had a sign-board outside with the inscription "Mount Hilton Construction Materials Company". He noticed another sign-board, but did not pay attention to it. 23. Mr. Lai said he asked an employee if the Defendant was in, but could not find him. On this occasion, one of the staff gave him a cheque (a copy of which is Exhibit P7) dated the 6th January 1982 for $10,000. At the time he did not notice who issued the cheque and he paid it in. 24. Again, in mid January 1982, he said, he went to the Defendant's place and was given a post-dated cheque after having a quarrel. He produced a copy of the cheque (Exhibit P8) dated the 20th January 1982 and a copy of a receipt (Exhibit P9) bearing the same date. He said that the cheque was given to him by an employee after he threatened to make a report to the police. He explained that he had issued a receipt in favour of the limited company MHEL because when he demanded payment in the absence of the Defendant and threatened to report to the police a member of the staff agreed to give him money under the name of another company. He signed the receipt and gave it to an employee for the sake of convenience so that the companies could compare accounts. Mr. Lai said that subsequently he telephoned Mount Hilton Company almost everyday to recover the balance of the debt, but he could not contact the Defendant. Eventually his former solicitors sent a letter before action dated the 9th March 1982 (Exhibit P10) to MHCE and he obtained through his former solicitors a copy of the Defendant's application dated the 12th January 1981 for registration of his "Company" MHCE which he produced (Exhibit P11). Mr. Lai maintained that he only knew one person, namely the Defendant, and dealt with him directly. 25. I will deal with various aspects of the evidence of Mr. Lai under cross-examination and re-examination at a later stage, but I mention now that although clearly foreshadowed in the Defence and in the affirmations of the Defendant and Mr. Lau, it was never put to Mr. Lai in cross-examination that the evidence of the Defendant and Mr. Lau would be to the effect that no telephone calls took place between the Defendant and Mr. Lai making a contract for the purchase of plywood and that it was Mr. Lau who had, in fact, ordered the goods on behalf of MHEL. As Mr. Lai had not had an opportunity of dealing with these important matters when under cross-examination, I subsequently gave his counsel the opportunity to recall Mr. Lai to deal with them under further cross-examination. He elected not to do so. 26. Mr. Wong, the Plaintiff's second witness, confirmed that he had known the Defendant and Mr. Lai. Mr. Lai had told him that he had plywood for sale and had asked him to look for buyers. 27. Mr. Wong said he had approached the Defendant and told him about the goods but that they might be a bit defective and had suggested a prior inspection. The Defendant had said he would accept the goods and agreed to inspect them, so Mr. Wong had arranged for the Defendant and Mr. Lau to meet at 2.30 p.m. that afternoon at the Plaintiff's office. 28. The Defendant had agreed to go but Mr. Wong himself was late. He said that on arrival at the Plaintiff's office the Plaintiff was not there nor was the Defendant and a female employee told him that her boss had gone out. Subsequently, because he was concerned about his commission, he had telephoned both the Plaintiff and the Defendant to find out if the goods had been sold but both of them had told him that after the inspection there had been no sale. 29. Miss Lui, Mr. Lai's clerk and receptionist, said in chief that she had met the Defendant in mid August 1981 at Mr. Lai's office when he came looking for Mr. Lai. She had heard the Defendant's name when she overheard Mr. Wong telling Mr. Lai on the telephone that he would introduce the Defendant to Mr. Lai. She identified the Defendant in Court and said he had stayed in Mr. Lai's office for about 10 minutes. She said that on the 24th November 1981 she had, on Mr. Lai's instructions, prepared the delivery order and taken it to Mount Hilton Company. She looked for the Defendant but could not find him and therefore gave it to a female member of the staff who signed it. Miss Lui retained the duplicate (Exhibit P2). 30. The fourth witness for the Plaintiff, Mr. Ip, said in chief that he knew Mr. Lai and had had dealings with him before. MHEL had been a customer of his since early 1981 and he had made many contracts with that company. He had had contacts with directors of MHEL, initially a Mr. Ng, later with a Mr. Ho and eventually with Mr. Lau (Lau Tung Shing). He had never come across the Defendant and his invoices were always issued to MHEL. 31. Asked if he ever knew there was a company bearing the name of MHCE Mr. Ip said he came to know about "a Mount Hilton Company" in late 1981 when he had a telephone communication with Mr. Lai who had a business dealing with him. The conversation, he said, had occurred after Mr. Ip had been approached for plywood by Messrs. Lau, Ho and Ng. Mr. Ip enquired of other suppliers and Mr. Lai had what he wanted so he asked him to reserve it. After some time Mr. Lai rang to ask Mr. Ip when he wanted the plywood and Mr. Ip told him he had to wait for the company to give him the delivery address and at that time he mentioned the name of MHEL. 32. According to Mr. Ip, Mr. Lai then said there was another company called "Mount Hilton Company". Mr. Ip thereupon mentioned the surnames of the people "namely Messrs. Ng, Ho and Lau" in MHEL whom he contacted, but Mr. Lai said he did not know them and that he had been contacted by a Mr. Chau. That was all that Mr. Lai said on that occasion. After that Mr. Lai and Mr. Ip had many telephone conversations about this matter, almost daily, until the conclusion of the matter. The gist of the conversations was that Mr. Lai wanted to know something about Mr. Chau's Mount Hilton Company and asked Mr. Ip to check the financial position of Mr. Chau's company. He also wanted to find out if "that business transaction" would be done by Mr. Lai or by Mr. Ip's "Home Nice" directly. 33. Eventually, according to Mr. Ip, he told Mr. Lai to do the transaction directly himself because Mr. Lai had contacted Mr. Chau before and Mr. Ip did not want to "..... bear the consequence as a result of any laibility arising out of his business, i.e. Mr. Lai, in case the other company owed him any money, because I was the one to check for him." 34. Mr. Ip said that before this incident he did not check MHCE. Later he told Mr. Lai that the limited company still owed him over $200,000 so he should give a second thought to doing business with anyone connected with it. As regards his own dealings in relation to this particular transaction with MHEL, Messrs. Ho, Ng and Lau had not told him under what company's name they would do business on this occasion. He did not in fact do any business with them over the Plaintiff's plywood because the matter was then left to be dealt with directly by the Plaintiff. 35. The principal witnesses for the Defence were the Defendant himself and Mr. Lau. The Defence also called two police officers, namely Chief Inspector Chow Kam To and Detective Constable 9237 Cheung Wai. Detective Constable 9237 had recorded a statement made by Mr. Lai to the police on the 22nd February 1982 and Chief Inspector Chow was called to make formal production of that statement and its English translation (Exhibit D1 and D1a) which had been in his custody. 36. The case for the Defendant as stated in his evidence in chief was to the following effect. 37. MHEL was incorporated in June 1980 when he and Messrs. Ho Yiu Wah and Ng King Kei were its directors. In October 1982, Messrs. Lau Tung Shing ("Mr. Lau") and Lau Kai Hong became managing directors. "In principle" there was a division of labour among the directors but the division was flexible. When they were busy, they helped each other. There was a regular weekly meeting. 38. The Defendant was responsible for business in electronic watches in the local market, Mr. Ng was responsible for iron work and Mr. Ho for building material and plywood. At a later stage when Mr. Lau Tung Shing ("Mr. Lau") joined the company, he was responsible for building material and plywood. Mr. Lau Kai Hong assisted Mr. Ng. 39. As to his alleged meeting with Mr. Lai in August 1981, the Defendant said Mr. Wong had been known to him since between August and September 1981. He was a broker and door to door salesman through whom he had had dealings on behalf of MHEL. Between August and September 1981 Mr. Wong, acting as a go-between, introduced him to Mr. Lai's company and told him they had plywood in stock. Mr. Wong made a telephone call from the Defendant's office and arranged with Mr. Lai for the Defendant to go with Mr. Wong at 2.30 to 3.00 p.m. to inspect the plywood. 40. In the event, the Defendant said, he was not free to keep the appointment when the time came and Mr. Ho sent Mr. Chau Chfk Hoo instead. The latter was a manager and door to door salesman. He returned and reported to the company that the plywood was old and not new as alleged by Mr. Lai. The company wanted new plywood and so the transaction fell through. 41. The defendant denied the contention of Mr. Lai and Miss Lui that he had gone to the Plaintiff's office and then on to inspect Mr. Lai's plywood. He also said that he had met Miss Lui prior to the proceedings and between November and December 1981 she had been to the Mount Hilton Office on two occasions to collect debts and one of the staff had introduced him to her as "Boss Chau". 42. He denied that he had made a contract with the Plaintiff in October by telephone for the purchase of 836 pieces of plywood and added that he was not involved in this particular job which had been handled by Mr. Lau. He also denied that he had instructed Mr. Lai to write "Mount Hilton Company" on the delivery note or had a conversation with him at the relevant time. He added that Mr. Lai had written those words on his own initiative. 43. The Defendant also said that he first encountered Mr. Lai when he went to the office of MHEL on two or three occasions to collect debts. According to him, Mr. Lau introduced Mr. Lai to the Defendant in the office at some time between November and December 1981, but the Defendant did not himself deal with Mr. Lai. 44. As to his firm MHCE, the Defendant said he was its sole proprietor and it was formed in about January 1981. No business was done by the firm because throughout it was "still under preparation". It had no business transactions. 45. He said the firm had a room of its own inside the premises of MHEL. It employed no one directly, but the Defendant asked two "employees" of MHEL, namely Chau Chfk Hoo and Mr. Ip Pang to act as his door to door salesman on a commission basis. 46. The other directors of MHEL were, he said, unaware of his application to register his business at the time he made the application. They raised objections when he put up his firm's sign-board and they learned that he was starting a firm of his own. Eventually, about ten to twenty days after he had registered the firm, a compromise was reached between the Defendant and Messrs. Ho and Ng that he should not do any business conflicting with MHEL's business. After Mr. Lau joined MHEL and there were new shareholders it was decided that the Defendant's firm should stop business completely. The Defendant admitted opening a bank account in the firm's name, but said that he had not printed any letter-heads and envelopesin the name of his firm. 47. Mr. Lau's version, in chief, of the relevant events, was that he became a shareholder and director of MHEL in October 1981. At that time the Defendant was also a director. There were three other directors. Mr. Lau's and Mr. Ho's duties were buying and selling building materials, including plywood. The Defendant's duties related to electronic watches. He said that Mr. Ng and Mr. Lau Kiu Hoi were responsible for iron. 48. When he joined MHEL, Mr. Lau said, they had an accounts clerk and a female clerk. There were several part-time door to door salesmen, but after he joined the company all the part-time door to door salesmen were fired. There were four of them, namely Chau Chfk Hoo, Ip Pang, Ho Ying and a fourth salesman called Leung whose full name he could not remember. They were all dismissed at the end of September before he was actually working in the company. Mr. Lau was aware that they each held the title of Manager and he considered "we" should take up the job "ourselves", so they were dismissed. 49. As to the Defendant's firm MHCE, Mr. Lau said he knew about it and the Defendant's proprietorship of it when Mr. Lau joined MHEL. The Defendant was then told by the directors not to deal in building materials in the future. 50. Mr. Lau said he knew Mr. Ip, having been introduced to him in October 1981 by Messrs. Ho and Ng at dinner in a restaurant. Subsequently he had dealings with Mr. Ip but they were not successful. He said that he had wanted to buy about a thousand pieces of plywood of ordinary quality from Mr. Ip. He wanted either "No.1 Glue" or the lower grade "No.2 Glue", but it had to be new. He made inquiry of Mr. Ip by telephone. Mr. Ip did not have the plywood, but said he would do his best to find the source for him and it was he who introduced him to the Plaintiff firm, telling him they had plywood available, giving him a telephone number and telling him to contact Lee Yang himself. 51. Mr. Lau went on to say that he telephoned the Plaintiff company and told Mr. Lai, who answered him, that Mr. Ip had told Mr. Lau that the Plaintiff firm had plywood in stock and that Mr. Lau had been "introduced to contact Mr. Lai". Mr. Lai then told Mr. Lau that he knew that because Mr. Ip had already informed him by telephone. When Mr. Lai told Mr. Lau that he had between 800 to 1,000 pieces of plywood in stock Mr. Lau said he wanted it all. Terms of payment were agreed at that time and Mr. Lai allowed them 30 days credit on the whole price of $80,000 odd. 52. Mr. Lau said that afterwards, a female employee of Mr. Lai's company brought a bill of lading to his company's office so that they could go to Mr. Lai's barge to collect the goods. Mr. Lau said he could not remember the date of delivery. He first said it was in November, and then in mid November. He said the delivery date was mentioned in the conversation which was also in November, but again he could not remember the precise date. 53. Mr. Lau further said that prior to the sending of the delivery order he had again had telephone contact with Mr. Lai, but they did not meet. Mr. Lau had asked for more plywood, but Mr. Lai said he did not have any for the time being. 54. Mr. Lau was, he said, in the office when the delivery order was sent to his company. Normally the lady working at the reception counter received delivery orders before they were given to "us" for inspection and in this case the lady in question had been informed in advance of its being delivered. 55. As to the delivery of the plywood, he said he knew that the plywood was received and collected on two separate dates, but he could not remember the relevant quantities and dates, nor could he remember which transportation company was instructed to take delivery. After the bill of lading was sent to them, the transportation was, he said, handed over to another director, Mr. Ng, because Mr. Lau was not familiar with transportation work. 56. To the best of Mr. Lau's knowledge the other directors knew about the transaction because they saw each other and almost every week or once in several days they had meals together and discussed matters. 57. Dealing with the part payments made by MHEL, Mr. Lau said that on one of the occasions when a cheque for $10,000 was collected by the Plaintiff firm he was present and it was he who handed the cheque personally to the person who collected it. After 1982 only he and Mr. Lau Kei Hoi were authorized to sign cheques on behalf of MHEL. Both cheques (of which Exhibits P7 and P8 were copies) were signed by them. 58. He said that on the 6th January 1982 when the first cheque was issued, he was not present in the office but an employee told him that it was collected by a female. One the second occasion when a cheque was issued, he was in the office and met the collector who was a lady from the Plaintiff firm. 59. Later however, when giving further evidence in chief about the receipt (Exhibit P9) dated the 20th January 1982, Mr. Lau said that on the second occasion when a cheque was collected the cheque was not given to the debt collector by himself, but it was given by a female employee of MHEL. As regards the receipt (Exhibit P9), Mr. Lau first said that at the time he gave his cheque to the debt collector that person gave the receipt to him. Subsequently in chief he said the receipt was only given to a female employee of MHEL one or two days later. 60. As to his encounters with Mr. Lai, Mr. Lau said that he first encountered him in January 1982 in the office of MHEL when he came to collect his debt. This was after the issue of the first cheque (Exhibit P7) and before the issue of the second cheque (Exhibit P8). There was a second encounter at some time between January and February, but he could not remember the exact date or whether it was before or after the issue of the second cheque (Exhibit P8) because after that encounter they met several times and had telephone contacts. The purpose of Mr. Lai's visit was to collect the debt. He asked Mr. Lau to pay the debt but he was unsuccessful. 61. When Mr. Lau paid his visits, Mr. Lau said, directors such as the Defendant, Mr. Ho and Mr. Ng were present. He could not remember particular occasions, but at least two of them were present on one of Mr. Lai's visits. Mr. Lau was involved in most of the conversations Almost every director who had met him greeted him and the Defendant was one of those persons and he greeted Mr. Lai "possibly on at least two occasions", but he could not remember clearly. 62. Mr. Lau confirmed that there was a subsequent occasion when he was in the police station in the vicinity of Mr. Lai when the police were investigating dishonoured cheques. There were other creditors apart from Mr. Lai. 63. Although the Defendant resigned as a director of MHEL in December 1981, Mr. Lau said he continued to meet him. Between January and February 1982, Mr. Lau said, he asked the Defendant to remain there to give him assistance in handling some accounts which he was not clear about. After the lunar new year, the Defendant did not come back any more. 64. As to the Plaintiff's previous solicitors' letter before action dated the 9th March 1983 (Exhibit P10), Mr. Lau said he did not see the letter in March 1982, but he was told by a female employee of MHEL that a letter had been received from the Plaintiff's solicitors. After he had been to the police station he seldom returned to the office of MHEL and so did not bother to look at the letter. 65. DC9237 attached to C.I.D. Western Police Station said that he recorded Mr. Lai's statement (Exhibit D1) on the 22nd February 1982. The statement was dictated to him word for word and, apart from questions to clarify any matter or ascertain times, the officer wrote down what Mr. Lai said to him after he had made a report. DC9237 said that he made a record of all Mr. Lai said. 66. All the principal witnesses for both parties were cross-examined at length. When I had heard and considered all the evidence adduced at the trial I regret that the only witness I considered to be credible on any material issue in this case was DC9237 Cheung Wai. 67. As regards Mr. Lai, before the trial he had given two accounts of the events leading up to these proceedings. The first account was the statement (Exhibit D1) which he gave to DC9237 on the 22nd February 1982. 68. In that statement there is no reference to the Defendant at all. The substance of the events recorded in the statement is as follows. 69. At the end of October 1981, Mr. Ip of Hung Ngai Co. ("Home Nice") placed an order by telephone with Mr. Lai for 836 pieces of plywood. The place of delivery was not mentioned. Fifteen days later Mr. Lai telephoned Mr. Ip about delivery and, when told there was no site space for the goods at that time, Mr. Lai informed Mr. Ip he would reserve the goods for him if he needed them, but otherwise he would not do so. Mr. Ip replied that he would ask "Mount Hilton Co." whether it needed the goods or not. 70. On the morning of the 24th November 1981, Mr. Ip telephoned Mr. Lai and told him "Mount Hilton Co." needed 836 pieces of plywood. Mr. Lai told Mr. Ip that Mr. Lai's company had never done business with "Mount Hilton Co." and Mr. Ip said "......... that 'Mount Hilton Co.' still owed $200,000 odd dollars to 'Hung Ngai Co.' and the invoice should be best made out to 'Mount Hilton Co'." 71. The statement continues "Originally I didn't want to transact with 'Mount Hilton Co.'. But I was well acquainted with IP Wai-choi and trusted IP Wai-choi. Therefore, I promised him, IP Wai Choi. Also, in the afternoon of the same day, my company wrote out a bill of lading to 'Mount Hilton Co.' and 'Mount Hilton Co.' got it and sent people to take delivery at barge, Kwun Tong." 72. The statement refers to the documentation of the Plaintiff's storage agents regarding deliveries on the 25th and 26th November 1981 of 836 pieces of plywood valued at $86,108 and then records that "Around 15.12.81. Mr. LAU of 'Mount Hilton Co.' phoned to me and asked me to send the goods to his company again. But I said to Mr. Lau. I am not well acquainted with you and also the goods payment of $86,108 last time has not been settled yet. Therefore I refused." 73. The statement goes on to record that Mr. Lai asked his employee to go to "Mount Hilton Co." to ask for payment but in vain until on the 30th December 1981 the employee received a post-dated cheque for $10,000. Mr. Lai is recorded as saying that he went to the premises of "Mount Hilton Co." five times to ask for payment and on the 12th January 1982 he received a post-dated cheque for $10,000 and - "At the same time, I said to Mr. LAU that if payment was not settled by 1.2.82, I would report to police." 74. The narrative ends with "Afterwards I could not find Mr. LAU of 'Mount Hilton Co.' so far. Therefore, I reported to the Western District Police Station to-day." 75. Asked under cross-examination if he agreed that his statement represented a true account of what happened, Mr. Lai said that when he reported to the police, he only said he wanted to chase "Mount Hilton Co." for payment and that it was not correct that he had a contract with "Mount Hilton" only because of Mr. Ip's introduction. 76. Mr. Lai said that the passage in the statment, "Originally, I didn't want to transact with 'Mount Hilton Co.' But I was well acquainted with IP Wai Choi and trusted IP Wai Choi. Therefore, I promised him, IP Wai Choi" should be "Therefore I promised Ip that I would make out invoice to 'Mount Hilton Co.'." He added that although this was not in the statement, he was only questioned and the officer wrote down what he said but missed this part. 77. As to his having said in the statement that in the afternoon of the same day his company wrote out a bill of lading to "Mount Hilton", that bill of lading was not sent out. 78. It was put to him that he was saying in evidence that the deal with "Mount Hilton" through Mr. Ip was called off whereas in his statement to the police, he had said the deal went through, to which he replied that he said a lot of things to the police and it was difficult to record all he said on one sheet. 79. It was put to him that he has said in chief that after trying unsuccessfully to locate the Defendant for payment he had ultimately reported to the police, but in his statement he never mentioned the Defendant at all, to which he replied that he had only answered "yes" and "no" when questioned in the police station. He added that at the time he had learned from the police that "Lau" had been detained but he did not know, even at the trial, the full name of that person. Pressed again about his having failed to mention the Defendant (whom he now said was the only person with whom he had intended to deal and whom he had tried to locate) to the police, he said this was because in the police station he was asked if the person detained was the one and was told it was Lau, so he said something in relation to that person. 80. It was put to him that when he made his statement to the police he was after Lau and not the Defendant but he insisted that when he reported to the police he intended to look for the Defendant because he owed him money. 81. He said that, although he had told the police in the statement that if payment was not settled by the 1st February 1982, he would report to the police, he did not then know the names of the employees and no introductions were made. When reminded that he had told the police that he had come to them that day to report because he could not find "Mr. Lau of Mount Hilton Co.", he replied that he did not know Mr. Lau's position in the company and referred to the earlier passage in his statement where he had said that he did not know Mr. Lau when the latter rang to make a further order. He insisted that at the police station the police had only asked him if he knew "that person" and had told him his name was "Lau". 82. Under re-examination Mr. Lai was again taken through several passages of the statement. He asserted that in some passages of the statement he meant to refer to the limited company and in others to the Mount Hilton Co. which he associated with the Defendant. 83. He was asked by his counsel the meaning of his reference in the statement to Mount Hilton Co. owing $200,000 to Home Nice and he replied -
84. As to the passage in Mr. Lai's statement where he had said that originally he did not want to transact with 'Mount Hilton Co.', Mr. Lai said in re-examination that Mr. Ip had told him that 'Mount Hilton Limited' owed him $200,000 so to do business with 'Mount Hilton Co.' was out of the question. As to his saying in the statement that he trusted Mr. Ip and therefore promised him, he said -
85. As to his having mentioned in the statement that he had "promised" Mr. Ip, Mr. Lai sought to explain in re-examination that -
86. DC9237 Cheung Wai when cross-examined about the recording of the statement admitted that he had no good recollection of it and that he had taken many statements since. He did not recall if Mr. Lau was there at the time that the statement was recorded from Mr. Lai. It was put to him that he had told Mr. Lai that, as all Mr. Lai was concerned with was the recovery of money owed by Mount Hilton, Mr. Lai did not have to go into detail of what happened. DC9237 denied this allegation and said that his practice was to ask the one who makes the report what case he wants to report and what are the details of the case so that a record can be made. 87. He recalled that Mr. Lai's complaint related to a deception case. When asked if it had occurred to him to find out the person involved, he replied that after the taking of the statement, he would have to report to a duty inspector who would read the statement and, if he considered it necessary to look for a certain person, he would do that. It was for the inspector to decide and to give instructions. 88. I had no hesitation in preferring the evidence of DC9237, a disinterested person as far as these proceedings are concerned, regarding the circumstances under which Mr. Lai's statement was recorded on the 22nd February 1982. DC9237 appeared to me to be an honest witness who was to be believed when he said that in the course of his duties and following his normal practice, he simply recorded the Plaintiff's complaint and asked questions when it was necessary to clarify matters or times and not otherwise. On the other hand, I considered that Mr. Lai was being thoroughly devious during his cross-examination and re-examination when seeking to explain away the circumstances under which he had made his statement to the Detective Constable. In particular I disbelieved him when he asserted under cross-examination that he had only answered "yes" and "no" when questioned in the police station and he was, in my view, manifestly embroidering his evidence when at the end of his re-examination he asserted that he had, in fact, mentioned the Defendant's name in the police station. 89. Counsel for the Plaintiff submitted that it was only natural for the Detective Constable to deny the Plaintiff's allegation regarding the circumstances under which the statement was taken. He also submitted that it was so improbable that any sensible business man should deal with Mount Hilton Co. at the request of a third party, knowing that the company was a bad debtor to the extent of $200,000 to that third party and that the statement could not be regarded as a reliable record of Mr. Lai's complaint. I bore these arguments carefully in mind, but, having seen and heard both Mr. Lai and DC9237 in the witness box, I concluded that Detective Constable 9237 had only carried out his normal duties in the usual way when recording the complaint of Mr. Lai and that it was a faithful record of what Mr. Lai had said to him. 90. The statement was the first complaint made to any authority by Mr. Lai. It was made before his previous solicitors had searched the business registry for evidence of the Defendant's business. It made no reference to the Defendant at all. It referred to a "Mount Hilton Co." which he associated with Mr. Lau and which he referred to as owing $200,000 to Mr. Ip. In my judgment the overwhelming inference from the contents of the statement is that Mr. Lai was referring to one company called "Mount Hilton Co." and regarding Mr. Lau as a person in authority in that company which had defaulted in making payment of the balance of its debt to him after making part payment of $20,000. 91. Furthermore the tenour of the statement is to the effect that Mr. Lai would never have found himself in the predicament he was in but for the fact that Mr. Ip, whom he knew and trusted, had persuaded him to deal direct with the company instead of Mr. Ip who had dropped out as the middleman and caused Mr. Lai to make a bad deal directly with the company. The clear inference to be drawn from the statement is that the "Mount Hilton Co." which owed Mr. Ip $200,000 also owed Mr. Lai $66,108. 92. The statement is so manifestly inconsistent with the Plaintiff's present claim and there being, in my judgment, no credible explanation for it except that at the time it was made Mr. Lai was regarding Mr. Lau's limited company as his creditor, the effect of the statement on Mr. Lai's credibility in my mind is very damaging. 93. On the 5th August 1982, Mr. Lai gave his second account of the relevant events when he made his affirmation in reply to the affirmations of the Defendant and Mr. Lau in connection with the application by the Defendant to set aside the default judgment and obtain leave to defend. His evidence in that affirmation, as at the trial, is in complete conflict with his initial statement to the police on the 22nd February 1982. 94. In paragraph 4 of Mr. Lai's affirmation, he stated that on the 20th August 1981, "The Defendant went up to my office with the said Mr. Wong on that date and informed me that he wanted to order some plywood". On the other hand it was common ground at the trial that Mr. Wong did not, in fact, accompany the relevant Mr. Chau to the office of Mr. Lai on that date. 95. In paragraph 8 of the affirmation Mr. Lai stated that on the 29th December, 1981 he had gone to the Defendant's place of business and obtained a cheque for $10,000 issued by MHEL. This is consistent with his evidence at the trial but in conflict with his assertion in his statement to the police on the 22nd February 1982 when he said, "Until 30.12.81, the employee of the company received a post-dated cheque of $10,000 from 'Mount Hilton Co.', and then transferred the cheque into the account of my company." 96. In paragraph 11 of the affirmation he said, "I have never known this Mr. Lau Tung Shing", whereas in his statement to the police, he referred to Mr. Lau in several contexts including the assertion that because he could not find Mr. Lau he had reported to the police. In evidence at the trial he sought to explain this apparent discrepancy by saying that he did not know the name of Mr. Lau until the police told it to him at the time when the statement was recorded and informed him that he frequented the premises of the Mount Hilton Co. 97. When Mr. Lai gave evidence at the trial, he was giving his third version of the events leading to these proceedings but only his second version of his relationship with Mr. Ip. Under cross-examination he claimed to know the distinction between a limited company and a firm and that it did not occur to him that the two companies mentioned on the visiting card given to him in August at his office were the same, but he said that when he received the card (Exhibit P1) he did not pay attention to "how many companies" were printed on it. 98. Cross-examined about his reasons for refusing to deal with Mr. Ip, he showed a degree of ambivalence. He first said he thought the Mount Hilton Co. known to himself and to Mr. Ip were the same company and that he mentioned this to Mr. Ip as well as telling him that he refused the transaction because he did not know the other party well. Later under cross-examination he told the Court that he had assumed that the "Mount Hilton" owing Mr. Ip $200,000 was not Mr. Lau's "Mount Hilton" and had not inquired further. Then again it was put to him that he knew the distinction between the two companies on the first conversation with Mr. Ip in late October and he replied, "Because I did not know if his Mount Hilton was mine, even up to now." 99. Mr. Lai was clearly not an articulate witness nor was he a well educated man. I bore this and the problems of interpretation in mind in his favour when considering his evidence, but by the time he had been re-examined I felt the gravest doubt about his credibility in this particular case. He showed a capacity to embroider his evidence progressively in a manner which was not in my judgment consistent with truthful evidence. Thus he was pressed at one time under cross-examination when it was put to him that Mr. Ip did mention the name of his Mount Hilton Co. to him. Mr. Lai replied, "He only said softly 'Mount Hilton Co.'". On the other hand when under re-examination and particularly when explaining away his statement to the police, he said on a number of occasions that Mr. Ip had referred to the Mount Hilton Limited Company. 100. In paragraph 7 of his affirmation made on the 5th August 1982, Mr. Lai had said that he had put down "Mount Hilton Co." on the invoice (Exhibit P6) as a short form for "Mount Hilton Construction Equipment Company" (MHCE). Later when he gave evidence in chief he told the court that he had written down the words "Mount Hilton Co." on the delivery order in November 1981 because the Defendant had told him to do so on the previous day. He was cross-examined about this and informed the court that he had written down "Mount Hilton Co." on the delivery order (Exhibit P2) because he did not think the name important and he already knew the Defendant. 101. Finally when he was under re-examination and being asked about his reference in his statement to the police to his having made out a bill of lading to "Mount Hilton Co." on the afternoon of the 24th November 1981 he gave the following answer -
102. As I have already mentioned above, he also volunteered the information for the first time in re-examination that he had, in fact, mentioned the Defendant's name to the police at the police station when he made his statement. 103. Looking for credible evidence to support Mr. Lai, I was unable to find any. Mr. Wong's evidence related to the alleged August meeting of the Defendant with Mr. Lai. However, it was quite clear that whilst he had arranged the meeting, as the Defendant indeed admitted, he was not in a position to say, as he admitted under cross-examination, who actually went to keep the appointment at the Plaintiff's office. 104. I felt unable to attach any significant weight to the evidence of Miss Lui, Mr. Lai's receptionist and clerk. She claimed to be able to identify the Defendant as being the person who came to Mr. Lai's office in August 1981 as a result of the meeting arranged by Mr. Wong. Under cross-examination she admitted that he went passed her in the office and straight to Mr. Lai's room. She was making out invoices at the time and was attending to her work when Mr. Lai and the Defendant came out about 10 minutes later and Mr. Lai told her they were going to Kowloon to inspect plywood and they then left. 105. She had not been asked to recollect these matters until February 1982. That was at least five months later and, given the limited opportunity of identifying the visitor in August 1981, I considered it to be unlikely that Miss Lui made a reliable identification of the Defendant at the trial partigularly as she admitted that she had seen him on the 9th February 1983 on the first day of the trial. 106. Although she said nothing about it when she gave her evidence in chief, it emerged in cross-examination that she claimed to recall a telephone call from the Defendant to Mr. Lai on the 24th November 1981. On the other hand she could not recall a telephone call from Mr. Ip on that date and when it was put to her that the alleged call from the Defendant on the 24th November 1981 did not happen, she replied, "I cannot remember". I concluded that she was doing her best for her employer in giving evidence, but that she really had no accurate recollection of any material matters in this case. 107. Mr. Ip was a much more articulate witness than Mr. Lai. If his evidence is to be believed, he originally asked Mr. Lai to reserve the plywood for him so that he could purchase it and sell it on to the limited company, but backed out gracefully from the transaction when he discovered that a Mr. Chau of another "Mount Hilton Co.", albeit connected with the limited company, had ordered the same timber. He thereby would have given up his profit on re-sale as a middleman to the limited company. Not only did he give up his interest in the transaction, but he was good enough to warn Mr. Lai afterwards that the limited company MHEL still owed him over $200,000 and so he should give a second thought to doing business with anyone connected with it. 108. However, although Mr. Ip was a much more articulate witness than Mr. Lai, I do not think he was any more reliable and I had the gravest misgivings about his veracity. 109. It must have been clear to him as an intelligent business man that if he had completed the transaction as he originally intended and bought the plywood from the Plaintiff, the risk would have been upon him if he sold on to MHEL who were already heavily indebted to him. It was clearly in his interest under the circumstances not to go on with the transaction himself. On his own evidence in chief there were numerous telephone conversations in which he alleged that Mr. Lai was asking him to find out something about "Mr. Chau's Mount Hilton Co." and at the same time wanting to know if the transaction was to be done by Mr. Lai or by Home Nice directly. 110. As Mr. Lai had got it into his head that Mr. Chau was connected with the "Mount Hilton Co." and, on Mr. Ip's evidence, was keen to do business with that company, the way was clearly open to Mr. Ip to get out of any commitment to MHEL. 111. When Mr. Ip said in chief that he told Mr. Lai to do the business transaction directly himself because he had contacted Mr. Chau before and Mr. Ip did not want to bear the consequence as a result of any liability arising out of the business he was, in my judgment, clearly intending to escape himself from a dangerous transaction. 112. On his own evidence in chief, he later told Mr. Lai that the limited company (i.e. MHEL) still owed him $200,000 and so he should give second thought to doing business "with anyone connected with it". On the other hand, the evidence of Mr. Lai in chief was that he asked Mr. Ip to make inquiry about the "Mount Hilton Co." which Mr. Lai knew through Mr. Chau and to find out if it had been sued before and concluded from the answer he received that he could do business with the Defendant of the Mount Hilton Co. 113. Mr. Lai had elaborated on this evidence under cross-examination when he said that when Mr. Ip called back and gave the result of his inquiry he said "I know one Mount Hilton and that company owed me over $200,000" and that Mr. Ip suggested that Mr. Lai could do business directly with Mr. Lai's "Mount Hilton" that Mr. Lai knew himself. On this very important matter, there is a fundamental conflict between the evidence of Mr. Ip and Mr. Lai because Mr. Ip, in effect, was saying that he warned Mr. Lai against doing business with the Mount Hilton Co. in any shape or form and Mr. Lai is saying that Mr. Ip suggested to him that he should do business with the Mount Hilton Co. that he knew through Mr. Chau, thereby leaving him to assume that the Mount Hilton Co. that owed Mr. Ip $200,000 was not the Mount Hilton Co. known to Mr. Ip. 114. According to Mr. Ip, Mr. Lai had told him about the particulars of the timber and of his contact with a "Mr. Chau" and about an inspection with Mr. Chau, albeit without reference to any firm order or contract. However, his evidence was equally clear that he had himself undertaken to Messrs. Lau, Ng and Ho to acquire the relevant timber and pass it on to them for the limited company. Although he told the court that he thought there was only one transaction, he thought the timber was required by the same group of people, but it was not clear under what company's name they would purchase it. 115. According to him he reported back to Mr. Ng or Mr. Ho of the limited company to the effect that Mr. Lai would be dealing with the transaction directly because he had contacted a Mr. Chau. He said in re-examination that the person he spoke to fully understood. Whilst his evidence therefore supports the Plaintiff's contention that a Mr. Chau had required the timber it equally supports the contention of the defence that the limited company required the timber but it does not assist in identifying the actual purchaser. 116. After careful consideration of the evidence of Mr. Lai and Mr. Ip, I was left with the uneasy feeling that neither of them had told the court the truth. This uneasiness was aggravated by the fact that as early as the 22nd February 1982, Mr. Lai had gone to the police and blamed Mr. Ip for breach of trust in connection with this matter in persuading him that "the invoice should be best made out to 'Mount Hilton Co.'" which was the way in which Mr. Ip said in evidence that Mr. Lai had described the company he knew to Mr. Ip. 117. The Defendant and Mr. Lau were cross-examined at considerable length with skill and pertinacity by counsel for the Plaintiff. By the time they had concluded their evidence, numerous inconsistencies and discrepancies had arisen in their evidence and I did not consider either of them to be reliable witnesses. However, I was unable to find any matter in their evidence which justified me in giving credence to the evidence adduced on behalf of the Plaintiff in respect of any material issue. 118. When assessing the credibility of Mr. Lai and Miss Lui regarding the alleged visit of the Defendant to the office of Mr. Lai in August 1981, I bore in mind the fact that the Defendant had not adduced any documentary evidence to support his contention that a Mr. Chau Chfk Hoo had visited the office on that date and not him. The absence of any records relating to this gentleman was, I agree, very material. I also bore in mind the fact that it was odd that a salesman who earned only commission for the introduction of clients should have been sent by Mr. Ho, a director of the limited company, to make the inspection. 119. However, apart from the fact that Mr. Lai had not seen fit to even mention the Defendant to the police when he made his first complaint in this case, I did not consider it likely that if the Defendant (who was in fact the proprietor of MHCE and a director of MHEL) had been a confidence trickster in conspiracy with the directors of the limited company he would have had himself introduced to Mr. Lai by Mr. Wong as Mr. Chau Kai Keung and would then have presented a card to Mr. Lai very soon afterwards bearing the name Chau Chfk Hoo without any indication that it was an alias. I also consider it unlikely that the Defendant, if he were a confidence trickster, would introduce himself to Mr. Lai as "the director manager" of the Mount Hilton Company and at the same time present him with a card describing the bearer as "General Manager". Furthermore the card clearly related the person named on it to both the limited company and the firm and would alert any person of average intelligence to the fact that there were two distinct legal entities referred to. 120. The evidential burden of proof on this issue, namely whether the Defendant had visited Mr. Lai in his office in August 1981 is upon the Plaintiff and, having considered all the evidence, I find that the Plaintiff has not adduced sufficient credible evidence to discharge that onus on the balance of probability. 121. As regards the crucial question whether the Defendant has been proved by the Plaintiff on the balance of probability to have ordered the plywood in early October and on or about the 24th November 1981, it was contended by counsel for the Plaintiff that on the Defendant's own evidence, he had supported the Plaintiff's case because the allegation by the Plaintiff that the Defendant had given the order in October had not been in dispute until Mr. Lau gave evidence regarding his alleged order in November and the Defendant had himself said in evidence that Mr. Lau had told him he had placed an order in October. 122. I was unable to accept this contention. The allegation of an order by the Defendant in October was disputed by the Defence in that there was a general denial that the Defendant had given any order at all. Furthermore it was also pleaded in the Defence that the goods had been ordered by the limited company and in paragraph 2 of his affirmation made on the 29th June 1982, Mr. Lau had alleged that the limited company had ordered the goods on or about the 26th November 1981. 123. As regards the evidence of the Defendant in relation to the order in October, he said under cross-examination that it was "in October 1981" that Mr. Lau told him that he had had communication with Mr. Lai of Lee Yang Company relating to a plywood transaction. My understanding of this evidence is that the Defendant was saying that he had been told about the transaction in October 1981. Bearing in mind that the Defendant when giving evidence was manifestly inaccurate in his recollection of dates on numerous occasions I do not consider that any reasonable tribunal could fairly attach any significant weight to the Defendant's reference to October 1981. 124. There being no other matter in the evidence adduced on behalf of the Defendant which enables me to give credence to the evidence adduced on behalf of the Plaintiff on the central issue in this case, I conclude that whilst I have every sympathy with Mr. Lai for his financial loss, the Plaintiff has adduced insufficient credible evidence to satisfy me that he has proved on the balance of probabilities that the Defendant ordered the plywood in early October or on the 24th November 1981 or at all. 125. Accordingly, on the 12th September 1983, I gave judgment for the Defendant in this action and gave liberty to the Defendant to obtain payment out of the sum of $71,734.20 which had been paid into Court by him on the 18th June 1982. I suspended the order for payment out for three clear days to enable the Plaintiff, who wants to appeal, to apply to the Court of Appeal to set it aside if so advised.
Representation: Mr. K. John Cheung instructed by M/s Lawrence T.S. Ong & Co. for the Plaintiff Mr. Ronald Tang instructed by M/s W.S. Lo & Co. for the Defendant. |