Ho Kai Ming v. American Express International Banking Corporation

HCA001505/1979

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Coram: Liu, J. in Court.

Date of Judgment: 19th February, 1981

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JUDGMENT

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1. At the end of August, 1978, the plaintiff paid cash for his purchase of 63 travellers' cheques issued by the Bank of America. Soon thereafter on the 8th September, again on payment of cash, he acquired 72 travellers' cheques from the defendant, which is hereafter called "American Express". In each case, the travellers' cheques were all in the denomination of US$100 each. Therefore, there were 63 travellers' cheques from Bank of America and 72 travellers' cheques from American Express. The payment so made by the plaintiff was no small amount of cash.

2. On or about the 8th or 9th September, the plaintiff left Hong Kong for Seoul, Korea. He stopped for some time in Seoul serving as a tour leader for a group of friends, and virtually at the end of the Korean tour, he resumed his journey to Tokyo. He stayed in Tokyo for one day and flew back to Seoul. By this time, his group of friends had departed and returned to Hong Kong. It was on his way from the Seoul Airport to the hotel in a taxi, it was said that the plaintiff lost all his travellers' cheques, 135 in all.

3. The plaintiff returned to Seoul on the 15th September, and he landed in Hong Kong on the 16th September. It was a Saturday. His arrival was too late to catch the working hours of American Express. Sunday, American Express was not open for business. The following Monday was a public holiday. The plaintiff succeeded in making a report to American Express on the 19th. He filled in a Claim Form, which is Exh. P5. The precise time of his completion of the Claim Form is unclear, but he was told to return for an interview on the 26th September, which he did. He was interviewed by Mr. Pearce, the Chief Special Agent for American Express in Hong Kong assisted by Miss Florence Wong, his then secretary who acted as an interpreter. The interview was inconclusive, to no satisfaction of American Express or of the plaintiff.

4. By arrangement, the plaintiff was to return on the 9th October. The appointment was not kept, but the plaintiff presented himself to the offices of American Express in October when Mr. Pearce was absent from Hong Kong.

5. Finally on the 20th November, a second interview was held. There was some dispute as to whether the second interview took place in the offices of American Express in St. George's Building. There seemed also to be a dispute as to the number of interviews. These disagreements are peripheral.

6. I have listened to the evidence with care, and I find the circumstances related by the defendant as repeated in testimony by Mr. Pearce corroborated by Miss Florence Wong extraordinary. These extraordinary circumstances are alarming and mostly defy reasonable explanations.

7. The plaintiff had not enjoyed highly lucrative employment prior to his purchase of the travellers' cheques against payment of cash, in all to the tune of $64,000. This amount was said to have been the result of frugality. With such alleged savings, the plaintiff did not see fit to make a bank deposit if only for gaining interest in the interim. His conduct, if true, was eccentric. According to the plaintiff, this no mean amount of cash which represented his entire savings was kept for safe-keeping purposes in his home. At the same time, he maintained two bank accounts; in one of which he operated with a credit balance in the region of $100, and in another a more substantial credit balance of just ten times and over. It is inexplicable why such huge sum of cash could have been, by the plaintiff's election, kept at his own home without putting it to good use. Yet, all of it was committed without much hesitation to a dubious scheme undertaken apparently on impulse and after casual communication.

8. According to the plaintiff, the purchase of the travellers' cheques, 135 in all, in denomination of US$100 each, was with a view to acquiring watches in Tokyo for the purpose of resale in Hong Kong. The plaintiff did not choose to resort to a non-negotiable bankdraft. The alleged business transaction involved substantial commitment, and yet no evidence was given by the plaintiff as to any prior arrangements conducive to commercial success, so much so that when he landed in Tokyo, he was only to be disappointed by the absence of his friend and had to make a speedy retreat to Seoul for his tour ticket back to Hong Kong. The plaintiff was in unbelievable haste, and he was quite unwilling to allow further time for the possibility of completing a $64,000 transaction.

9. The plaintiff had been to the same hotel in Seoul on a number of occasions. When he arrived in Seoul, he took a taxi to the hotel. When he returned to Seoul from Tokyo on that fateful day, he took another taxi to the hotel. He did not appear to have experienced any inconvenience in his instructions to the taxi-driver, but not many days after the alleged loss of travellers' cheques, he seemed to be suffering from some inability, for reasons best known to himself, of assisting American Express as to the accurate name of the hotel in Seoul. It would be fair to point out that the plaintiff alleged that he gave the name of the hotel to American Express, but the evidence of both Mr. Pearce and Miss Florence Wong was to the contrary. What must not be overlooked is that the plaintiff was then a tour leader, not for the first time visiting Seoul. All the circumstances are indeed baffling, to say the least. The plaintiff may be more readily forgiven for not being able to recount the address of the hotel in which he took occupancy, but he gave the impression to Miss Florence Wong in the course of the conversation that he was well-acquainted with Seoul.

10. During the first interview with Mr. Pearce in the presence of Miss Florence, the plaintiff failed to disclose the loss of the Bank of America travellers' cheques. At the second interview, when the plaintiff was being asked as to whether he lost any Bank of America travellers' cheques in the same alleged incident, a deliberate attempt to mislead was made. According to Mr. Pearce and Miss Florence Wong, upon being confronted with a copy Claim Form which the plaintiff had signed for Bank of America, which is Exh. P2, plaintiff looked surprised with his head bent in silence. Again it would only be fair to say that the plaintiff denied such evidence given by Mr. Pearce and Miss Florence Wong, though he conceded that Mr. Pearce did brand him as a liar.

11. The plaintiff further told the court and, for that matter, Mr. Pearce in the presence of Miss Florence Wong at the interviews that he lost travellers' cheques, US$160 cash, an address-book but not his passport. In his evidence, the plaintiff at first maintained that he kept his passport either in his jacket-pocket or his travelling-bag. There was some confusion in his evidence at one stage, but ultimately it transpired with some degree of clarity that there was a distinction between a man's handbag that he carried and a travelling-bag in which his personal belongings and clothings were contained. When he was referred to sub-paragraph 3 of p.4 of his affirmation filed on the 22nd September, 1979, he conceded that he kept his passport in his travelling-bag. Upon being reminded that a traveller would unlikely pass Customs and Immigration without a passport if in fact, it had been checked-in together with a travelling-bag and carried in the hold of the aircraft, the plaintiff sought to clarify his position. I am not prepared to draw any sinister motive out of this confusion but am quite prepared to accept the ultimate explanation of the plaintiff's that in fact after having passed through Customs and Immigration he kept his passport in his travelling-bag. As pointed out by Mr. Pearce, even that situation must be unusual when the plaintiff was keeping his travellers' cheques in the handbag which according to the plaintiff would and did accompany him at all times. In normal circumstances, it is only to be expected that a man's passport, with precaution taken such as that in this case, would also accompany him and be carried on his person. Be that as it may, these events were not responsible for the alleged loss which led to the claim of the plaintiff's against American Express for compensation or reimbursement.

12. Having made the report to American Express, the plaintiff showed little enthusiasm. He did not keep his appointment which certainly was again unusual and described by Mr. Pearce as being obstructive. It is inconceivable that a man, raising a claim against American Express in the amount of US$7,200, could have been careless or unconcerned enough to miss an appointment. Whatever the plaintiff did or failed to do, very little explanation was offered in these proceedings. It is also not a matter of any real significance.

13. Counsel relied heavily on the sudden emergence of all the 135 travellers' cheques in the February, 1980. The writ in this case was issued on the 12th April, 1979. After the attitude on both sides was clear, the plaintiff had the misfortune of having himself arrested and convicted for credit card frauds in Japan in May, 1980. His convictions of offences not very dissimilar with handing of travellers' cheques would certainly reflect on his character. It would add more suspicion to the circumstances I have recounted.

14. Against this background of grave suspicion, the plaintiff filed his claim against American Express. He claimed to have lost all 135 travellers' cheques including the 72, subject-matter of the claim in these proceedings against American Express, in a taxi from the airport to the hotel in Seoul. He told the court that having found the travellers' cheques missing, he did not seek the assistance of personnel in the hotel but wandered virtually aimlessly in the hope of finding a police post or station. He walked unguided for some time, and he was met not entirely without success. He stumbled on what he described as police post, manned by one gentleman apparently Japanese. He took him to be the policeman. He, the plaintiff, endeavoured to make a report. On account of alleoed language difficulty and, at times so alleged the plaintiff, of the absence of the serial numbers of the travellers' cheques, communication in the so-called police post was unfruitful. The plaintiff agreed in evidence that there was no effective report. It need be remembered that the plaintiff did not even see fit to take a taxi for his search of the police post or station. After his unsuccessful attempt to make a report to an establishment which he described as a police post manned by one man, no further step was taken. On his return to the hotel, he also did not report to the hotel nor to the hotel security. Again, he did not seek assistance from the staff or the management. It never occurred to him to contact American Express or the police by telephone, nor did it dawn on him that he could take a taxi either to the police station or American Express; nor also did it then occur to him that he could be conveyed by taxi or private hired car to an accredited representative of Her Majesty's Government in Seoul. This particular possibility did not seem to have eluded him on the subsequent occasion when he allegedly lost the passport in May.

15. He was a tour leader. It was not his first visit to Seoul. He had previous experience with that city, and taxi facilities were not unknown to the plaintiff. The plaintiff testified that he was excited and confused and that he ought to be forgiven for having overlooked all these possibilities that might have been taken advantage of.

16. On a bare allegation of loss, the plaintiff bases his claim against American Express, and it was on this very bare assertion that the plaintiff sought to establish the alleged loss in these proceedings. I am far from being convinced, and indeed I am not being satisfied that the plaintiff's evidence in these circumstances should be given any credence. He is a man, in my view, completely lacking in credibility. He did not impress me as a man of integrity. With these circumstances and the allegations of the plaintiff, the Chief Special Anent Mr. Pearce of American Express, like this court, was left in a state of utter dissatisfaction. The cautious and vigilant disposition of this officer, accentuated by the incredible versions offered by the plaintiff, was responsible for his advice to American Express that the claim is not genuine. I am in complete agreement with the conclusion reached by this officer who ought to be congratulated for having the courage of his conviction in advising a world-wide institution, such as American Express, to oppose, as far as the defendant is concerned, what cannot be a very significant claim. This officer's high principle with which his duty was performed his served to prevent the perpetration of a fraud. I have had opportunities of observing demeanour of Miss Florence Wong and Mr. Pearce as well as that of the plaintiff. Mr. Pearce explained part of his evidence which might possibly have been inaccurately recorded, when he told the court, as recorded, that he could not swear to the fact whether or not he ascertained from the plaintiff if he understood. Mr. Pearce's evidence was not wholly free from errors, e.g. when he testified to the plaintiff's income of US$145 per month as information fed to him by Miss Florence Wong, a contradiction to an assertion made by him on affidavit. These matters are peripheral, trivial and insignificant, but I have taken them into consideration. In general, insofar as the evidence of the plaintiff conflicts with that given by Mr. Pearce as corroborated by that of Miss Florence Wong, I have no hesitation whatsoever in accepting the evidence given on behalf of the defendant. The plaintiff has decidedly failed, in my judgment, to establish the alleged loss of any of the 72 travellers' cheques.

17. That is sufficient to dispose of this action, but it was conceded that the plaintiff failed to report the alleged loss in Seoul. I do not accept his reasons for taking no further steps. If in fact he had lost the travellers' cheques, subject-matter of this claim, he evidently failed to notify the defendant or its overseas establishments immediately.

18. The plaintiff, for reasons given in this case, has given false information to American Express, in particular in his non-disclosure at the first interview and the early part of the second interview of the alleged loss of the 63 travellers' cheques of Bank of America. If indeed, the plaintiff had lost any of these 72 travellers' cheques of American Express, he would still have been disqualified by reason of his breaches of conditions, subject to which the travellers' cheques were issued. In consequence of my findings, it remains for me to dismiss the action of the plaintiff. Displeasure of the court as to the manner in which the proceedings were prosecuted and the evidence led, which was built on nothing more than a tissue of lies, must be reflected in a more stringent order for costs. The order I make is:

19. Action dismissed with costs to defendant on a common fund basis.

Representation:

Plaintiff in person.

Mr. Barretto instructed by Deacons for Defendant.