Las Vegas Hilton Corporation v. Lo Yuk Leung

HCA008739/1997

1997, No. A8739

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

Coram: The Hon Mr Justice Findlay, in Chambers

Date of hearing: 12 and 13 January 1998

Date of handing down of judgment: 19 January 1998

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JUDGMENT

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Background

1. This is an application by the plaintiff, under Order 14, for judgment against the defendant in the sum of US$2.74 million, with interest and costs.

2. In July 1996, the defendant gambled at the plaintiff's casino in Las Vegas, Nevada. He lost US$2.74 million. The plaintiff has commenced proceedings in Hong Kong to recover this sum. The defendant does not want to pay his debt. He says that he has arguable defences that entitle him to refuse to pay. He has, as he is obliged to do, put up these defences. There are several of them. They may be summarised as -

i) the plaintiff does not rely on any valid and enforceable "credit instrument" as it is required to do under the law of Nevada;

ii) the law of Nevada that allows casinos immediate access to the courts, but requires gamblers to first have recourse to the Nevada State Gambling Control Board, is unconstitutional;

iii) in the factual circumstances of these case, it would be contrary to public policy to allow the plaintiff to recover.

3. The first defence is advanced both as a matter of pleading and as a matter of substantive Nevada law. As a matter of Nevada law, Mr Huggins says that there is substantial conflict on the evidence as to this law that can be resolved only at trial.

4. On the issue in the second defence, Mr Huggins says that there is again a substantial dispute as to the foreign law, and this can be resolved only by a trial.

5. As to the third defence, Mr Huggins submits that the matter is difficult, and is inappropriate for decision in a summary manner.

The Approach

6. Mr Huggins drew my attention to the case of Man Earn v. Wing Ting Fong [1996] 1 HKC 225. I accept, of course, that the policy of the summary procedure is to prevent a defendant from delaying a plaintiff from obtaining judgment only when the defendant clearly has no defence to the claim, but the plaintiff is entitled to have the defence properly examined before the court concludes that it is arguable. A superficial consideration is not sufficient. It is easy for a defendant to create the appearance of a good defence, and it would frustrate the policy of the summary procedure if the judge were to take the defences raised at their face value. As Bingham, LJ said in Crown House Engineering v. Amec Projects Ltd. (1990) 6 Const LJ 141, at 154 - "Where the point at issue is at heart a short one the court will recognize the fact and act accordingly no matter how bulky its outer garments.".

The Nevada Law

7. The parties are agreed that the enforceability of the plaintiff's claim depends a Nevada statute called the "Recovery of Gaming Debts by Licensees" (the statute). Without this statute, and before 1 June 1983, gaming debts were irrecoverable in Nevada. The relevant provisions of the statute for present purposes are -

"A credit instrument accepted on or after June 1, 1983, and the debt that the credit instrument represents are valid and may be enforced by legal process.

A licensee . . . may accept an incomplete credit instrument which:

(a) Is signed by a patron; and

(b) States the amount of the debt in figures,

and may complete the instrument as is necessary for the instrument to be presented for payment.

A licensee . . .

. . .

(c) May accept a credit instrument either before, at the time, or after the patron incurs the debt. The credit instrument and the debt that the credit instrument represents are enforceable without regard to whether the credit instrument was accepted before, at the time or after the debt is incurred.

. . . The failure of a person to comply with the provisions of this section or the regulations of the commission does not invalidate a credit instrument or affect the ability to enforce the credit instrument or the debt that the credit instrument represents."

8. In another relevant law of Nevada, a "credit instrument" is defined as -

". . . a writing which evidences a gaming debt owed to a person who holds a nonrestricted license at the time the debt is created . . ."

The Pleading of the Credit Instrument

9. The plaintiff's statement of claim pleads that -

"1.The Plaintiff is a company incorporated with limited liability according to the Laws of the State of Nevada in the United States of America trading in the name of Las Vegas Hilton and having its registered office at 3000 Paradise Road, Las Vegas, Nevada 89109, United States of America. The Plaintiff carries on, inter alia, the business of a casino, and is licensed to operate, as such under the Laws of the State of Nevada.

2. On or about 21 July 1996, the Plaintiff entered into a credit agreement with the Defendant ("the Agreement").

3. The Agreement provided, inter alia, that the Plaintiff would provide to the Defendant a credit line of US$3,000,000 ("the Credit Line") for the purpose of gaming at the Plaintiff's gaming tables.

4. Between 20 July 1996 and 25 July 1996, the Defendant was a patron at the Plaintiff's hotel and casino and he made use of the Credit Line granted by the Plaintiff pursuant to the Agreement by signing markers to obtain chips for the purpose of gaming at the Plaintiff's gaming tables.

5 .At the conclusion of the period pleaded in paragraph 4 above, the outstanding balance due and owing by the Defendant to the Plaintiff was US$2,740,000 which, pursuant to the Agreement, is payable in full in 180 days i.e. latest by 22 January 1997.

6. By virtue of the provisions of Section 463.368 of the Nevada Revised Statues on Licensing and Control of Gaming, the credit advances made by the Plaintiff to the Defendant in the manner pleaded above are enforceable and recoverable by legal process.

7. Further, or in the alternative, the balance outstanding evidences a debt due from the Defendant to the Plaintiff in the aggregate sum of US$2,740,000."

10. As can be seen, there is no express allegation here of either the credit agreement or the markers being a "credit instrument". In my view, however, it is not necessary that the plaintiff should use these words when describing the instrument on which it relies. It is sufficient if one can see from the pleading that a particular document alleged is that relied upon for the purpose of the statute. Clearly, the plaintiff does not rely upon the credit agreement; it is not alleged that this was signed by the defendant and does not suggest that it states the amount of the debt. This document is alleged only to state the credit granted by the plaintiff to the defendant. The markers, on the other hand, are alleged to have been signed by the defendant, and, by implication, that these markers stated the amount of the debt - if they did not, the defendant could hardly have used them to obtain chips for gaming. This, and the specific reference to the statute, is, in my judgment sufficient to show that the defendant is relying on the markers for the purposes of that statute.

11. Mr Huggins raises another pleading point. He says that only the holder of a nonrestricted licence can take advantage of the statute, and the plaintiff does not allege that it is the holder of such a licence. It is true that the plaintiff alleges only that the plaintiff "carries on, inter alia, the business of a casino, and is licensed to operate, as such under the Laws of the State of Nevada", but it makes, as I have said, specific reference to the statute as the basis on which it is entitled to recover. This must imply that it alleges that it holds such a licence as entitles it to recover under this law.

Conflicts of Evidence on the Nevada Law regarding Credit Instruments

12. I do not accept that there is any substantial and real conflict of evidence on whether the markers constitute credit instruments for the purposes of the statute. It is true that Mr Michael Gessford, the defendant's expert, who is a Californian attorney, although he has appeared in some Nevada cases of an unspecified type, suggests at one stage that a credit instrument cannot be evidence a gaming debt before the gaming takes place, but later he says that the markers "could be credit instruments assuming that the plaintiff had a nonrestrictive [sic] license as required by statute at the relevant time . . . and that the plaintiff can prove that the defendant did in fact sign the markers." The plaintiff says that it did have a nonrestricted license and that the defendant did sign the markers. The defendant does not say that he did not sign them. Insofar as Mr Gessford does suggest that there cannot be a valid credit instrument before the debt is incurred, this cuts directly across the express words of the statute - "The credit instrument . . . [is] enforceable without regard to whether the credit instrument was accepted before, at the time or after the debt is incurred".

13. Mr Gessford also says that the "most significant" point "is that the plaintiff has failed to produce any credit instrument . . . evidencing a gaming debt of US$2,740,000, the amount claimed by the plaintiff in this lawsuit". The only possible interpretation of this evidence is that Mr Gessford is saying that, if there is a credit instrument signed by a gambler and stating a debt of US$1 million, but the gambler pays back US$.5 million, the casino cannot rely on the credit instrument to recover the balance of US$.5 million. This has only to be stated to be rejected. It is not a sensible point. Mr Gessford makes one further point. This is difficult to understand, but it seems to be that, because the markers authorised completion of any missing amount, there is some issue to be determined by judicial decision. I do not see what possible relevance this point has to the case before me. There is no suggestion in this case that the markers had any missing amount, or that any missing amount was completed.

14. The plaintiff has filed evidence from Mr Anthony Cabot. He is an attorney in the State of Nevada. He has a great deal of experience of the gaming laws of Nevada. Regarding Mr Gessford's evidence, he makes the points I have mentioned above. If there is any real conflict of evidence on Nevada law, this is easily resolved on the evidence I have before me. Nothing is to be gained by having these witnesses give oral evidence. There is no question of credibility here. The witnesses are giving their views on the relevant foreign law. Mr Cabot speaks as an undoubted expert of that foreign law. Mr Gessford is not an expert on the law of Nevada. In these circumstances, I have no hesitation in accepting what Mr Cabot says, especially when it is clear for all to see that the possible conflicting view of Mr Gessford is demonstrably wrong.

The Unconstitutionality Defence

15. In this respect, the defendant's evidence is that of Mr Gessford. He says that -

"[The statute] allows casinos with nonrestricted licences to commence Court proceedings to enforce credit instruments by legal process. If, however, a patron wishes to recover his winnings and this is disputed by the casino, that patron must first go before the Nevada State Gambling Control Board to enforce the collection of the debt from the casino and, if unsuccessful, go to the Court to seek judicial review of the Board's decision. In addition, the patron is burdened by having to pay the costs of these proceedings. This is covered in NRS Sections 463.362 to 463.3668. It therefore appears that there is an arbitrary and unfair distinction between the rights of casinos to collect and the similar rights of patrons. A meritorious argument is that this distinction violates the "due process and equal protection clauses" of the United States Constitution. The relevant provision of the United States Constitution is Amendment XIV, Section 1 passed by Congress on 13th June 1866 (ratified on 9th July 1868) which states that:-

'No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.'

It is respectfully submitted that a issue requiring judicial determination is whether the Nevada statutes in question violate the Equal Protection Clause of the 14th Amendment of the United States Constitution. The statutes produce inequitable results because they allow parties to the same transaction different abilities to enforce a similar claim. Licensees may immediately seek enforcement in court with the power of the government behind the ruling, while the patron only has the ability to seek redress in an administrative proceeding that has no legally binding effect. If Nevada is going to give a right to one party (ie. the licencee [sic]) to a transaction it is unfair and perhaps unconstitutional to deny that right to the other party (ie. the patron) to the transaction. It is respectfully submitted that this is an issue that must be decided by the Court before judgment can properly be rendered."

16. So, Mr Gessford thinks that for the statute to give a right to one party to a transaction but deny it to the other "is unfair and perhaps unconstitutional". Mr Anthony Cabot, the plaintiff's expert, who is, as I have said, a Nevada attorney with a great deal of experience in the area of Nevada law with which I am concerned, says positively that the statute is not unconstitutional. He says "the distinction between a patron and a licensee is constitutionally affirmed based on its rational and legitimate government purpose". He is supported in this view by a decision of the Nevada courts. Mr Huggins argues strongly that this decision was misrepresented by Mr Cabot as "a judicial determination". Mr Huggins says it was not "a judicial determination" because a decision on the point was not necessary. It may well be so that the decision on the point was unnecessary, but I am not concerned here to categorise the decision as part of the ratio or as obiter. The fact of the matter is that the Nevada court said "the Court will decide the constitutional issue", and did so, holding that the laws "are constitutional and the Petitioner's challenge to those enactments is denied". Mr Gessford has been unable to advance any decision, since the statute was enacted long ago in 1983, to the contrary, and he, himself, is unable to say any more than that the statute is "perhaps unconstitutional".

17. It appears that there is no decision of a Federal court on this matter. Hearing oral evidence on the issue will not change that. I would hear from Mr Cabot and Mr Gessford, and their evidence would be what I have before me now. Again, there will be no question of credibility. Accordingly, I am in as good a position as I will ever be to decide this issue. On the one side I have Mr Cabot's positive assertion that the law is not unconstitutional; a view supported by a judicial decision, and, on the other, Mr Gessford's tentative opinion that the statute is "perhaps unconstitutional". On this evidence, there can be no doubt that the issue must be resolved in favour of the plaintiff. Accordingly, I hold that the evidence clearly establishes that the statute is not unconstitutional.

The Public Policy Defence This defence is pleaded in the following way -

"10. If and in so far as the Plaintiff seeks to enforce the Las Vegas Hotel Agreement, the said agreement is illegal under Hong Kong law and unenforceable in the Courts of Hong Kong as being contrary to public policy.11. Further or alternatively, if it be proved that the outstanding balance allegedly due and owing by the Defendant to the Plaintiff of US$2,740,000 represented losses incurred by the Defendant in gambling at the Plaintiff s casino, it would be contrary to the public policy of Hong Kong to permit the Plaintiff to recover such sum or any part thereof by action in the Courts of Hong Kong.

12. In relation to public policy the Defendant will rely upon the following facts:

a. Gambling is illegal in Hong Kong save in limited and controlled circumstances. In particular Casino gambling is illegal in Hong Kong in any circumstances.

b. The extension of credit for the specific and exclusive purpose of gambling is a particularly insidious and reprehensible activity.

c. The Defendant is aged 71 having, been born on the 14th February 1926 and is a compulsive gambler.d. The Plaintiff made no inquiries as to the Defendant's ability to repay any of the monies himself with which the Plaintiff promised to provide him for the purposes of gambling, in its casino, nor any inquiries as to the Defendant's compulsive personality or addictive propensities in relation to gambling.e. The Plaintiff deliberately induced the Defendant to put at risk at the Plaintiff s own gambling tables large sums of money, when the Plaintiff knew, or ought to have known, that the Defendant was not in a financial position to place such stakes unless the Plaintiff put them at his disposal.

f. The Plaintiff deliberately and cynically incited the Defendant to spend large sums on gambling, without any regard whatever to the damaging individual consequences to the Defendant and his family.

g. Gambling debts are not enforceable in the State of Nevada (Nevada Revised statutes §463.36). The Plaintiff is seeking, to evade the consequences of nonenforceability of such debts by putting up monies intended to be used exclusively to create gambling debts and then seeking to recover such monies by the sham device of categorising the transaction as a separate and distinct credit transaction. In substance any debt created in these circumstances should be regarded by the Hong Kong Courts as both in substance and in fact a gambling, debt and as such unenforceable in Hong Kong, law.h. The Nevada Statute relied on by the Plaintiff and referred to in paragraph 6 is in any event unconstitutional in that the laws of Nevada (in particular Assembly Bill 536 and Senate Bill 335) create an arbitrary distinction between the rights of patrons and the rights of casinos and thereby violates the due process and equal protection clauses in the Constitution of the United States of America. In particular the Senate Bill affords casinos direct access to the courts to enforce a gaming debt evidenced by a credit instrument, whereas the Assembly Bill 536 provides that a patron must go first to the State Gambling Control Board to enforce the collection of a debt owed to the patron by the casino. In such circumstances it would contrary to principles of comity in relation to the United States of America as whole for the Courts of Hong Kong, to countenance the enforcement of such laws in Hong Kong.

i. Many states in the United States of America, other than Nevada, would refuse to enforce such claims based upon gaming transactions in Nevada based upon their own public policy against gaming, particularly gaming on credit, although they must enforce a judgment secured first by the plaintiff in Nevada. A forum state must give full faith and credit to a sister state judgment, regardless of the forum state's public policy on the underlying claim. But the forum state may refuse to entertain a lawsuit on a sister state cause of action if its enforcement is contrary to the public policy of the forum state.

13. In the premises, no Hong Kong Court should countenance the enforcement of the claim by the Plaintiff against the Defendant in Hong Kong.

14. Alternatively, no Hong Kong, Court should countenance the enforcement of the claim by the Plaintiff against the Defendant in Hong Kong without first requiring the Plaintiff to seek to enforce it in the Courts of Nevada."

The evidence from the defendant to support the factual allegations in this plea is somewhat sparse. The defendant himself says essentially nothing to help. The defendants solicitor verifies these "matters in the defence", saying that "insofar as these are . . . matters of fact within his knowledge, I have received this information from the defendant". It is not said which of the factual allegations are within the defendant's knowledge. The solicitor's affidavit was filed on 19 December 1997. The plaintiff's solicitor filed an affirmation on 30 December 1997 challenging the allegation that the defendant was a compulsive gambler. Since then the defendant has filed no further evidence to support the facts alleged in his plea. Paragraph 12(a) of the Draft Defence: Gambling in Hong Kong Gambling in Hong Kong is governed by the Gambling Ordinance (Cap. 148). Generally, gambling is unlawful in Hong Kong, but this is subject to the broad exception that it "is lawful if the game is played on a social occasion in private premises and is not promoted or conducted by way of trade or business or for the private gain of any person otherwise than to the extent of a person's winnings as a player of or at the game". Certainly, gambling in a casino in Hong Kong is unlawful, and a criminal offence.

But a reading of the Gambling Ordinance paints a false picture of public policy and morality in Hong Kong in relation to gambling. It is a matter of common knowledge to everyone living in Hong Kong that very large amounts of money are lawfully bet and won on the totalizator at every race meeting organised by the Hong Kong Jockey Club, and many people take part in frequent lawful lotteries known as the Mark Six. The public purse benefits from this widespread gambling in Hong Kong. A duty of 18% is payable on so called exotic bets, and 12% on other bets. As is also well known in Hong Kong, the Jockey Club ploughs back much of the profit it makes from this lawful gambling into community projects that benefit the Hong Kong people. So, we may understand from this that the public policy of Hong Kong as reflected in our law and morality is not against gambling per se; it is not regarded as immoral, sinful, improper or worthy of public condemnation. The public policy is that gambling should be controlled and directed so that, to some extent, it benefits the community, both through the activities of the Jockey Club and by the collection of duty, and not the private purse of casino owners and bookmakers. Paragraph 12(b): Credit for Gambling The allegation that the giving of credit for gambling "is a particularly insidious and reprehensible activity" is a value judgment or an argument, not a factual allegation. Broadly, "insidious" means deceitful and "reprehensible" means blameworthy. I accept, of course, that giving credit to gamble encourages that gambling, but one might also argue that giving credit to buy liquor encourages the evil of drinking alcohol to excess.Paragraph 12(c): The Defendant The defendant is said to be 71 years old and a compulsive gambler. I have nothing before me from the defendant to help me understand the significance of the plea that the defendant is a compulsive gambler. There is no suggestion that this condition results in some incapacity in law so that the defendant is not fully responsible for the promises he makes. The defendant is certainly a regular gambler for high stakes, and, it may be, a very unlucky one. After gambling in the plaintiff's casino, in December 1993, he lost US$2 million, in October 1995, he lost nearly US$3 million in April 1996, he lost nearly US$2 million. After being allowed discounts, he paid these debts. It seems he was equally unlucky at other casinos. He is presently being sued in Hong Kong by three different casinos for amounts of US$2 million, nearly US$3 million and just over US$1 million. We do not know, of course, whether, on other occasions, he won.

We have, in Hong Kong, plenty of addictive gamblers, drinkers and shoppers, and those that supply the facilities to gamble, drink and shop provide plenty of encouragement and assistance to these people to indulge their addictions. It is not conceivable that any court in Hong Kong would find it contrary to public policy or morality to allow the recovery of debts incurred by such persons in the pursuit of their addictions. That may be desirable in a Utopia, but we do not live in such a society. If a person is incapable of making rational decisions regarding his financial affairs, that is something that he, his family, his friends or the public authorities should do something about; it is not a situation in which the Hong Kong Jockey Club, or any other supplier of goods or services, should be expected to protect that person against his own inclinations that may be detrimental to his welfare and that of his family.Paragraph 12(d): Enquiries by the Plaintiff This cannot be an allegation within the defendant's knowledge. In any event, I have already commented on the suggestion that public policy or morality in Hong Kong requires that the supplier of gambling facilities should take steps to protect a gambler against his own frailty. Paragraph 12(e): Inducement by the Plaintiff I suppose the plaintiff did provide the facilities to enable the defendant to gamble. That is the plaintiff's business. But the use of the phrase "deliberately induced" is rhetoric, suggesting that the plaintiff did something out of the ordinary. There is no evidence that the plaintiff knew anything about the defendant's financial position, other than, apparently, he could afford to lose and repay large sums of money. I have already commented on this aspect of the allegations.

Paragraph 12(f): Incitement This allegation is also, as framed, little more than rhetoric. And there is no evidence about the plaintiff's attitude of mind. Again, there is the suggestion that, by the standards of public policy and morality in Hong Kong, a casino owner should protect a gambler. I reject this.Paragraph 12(g): A Sham? One does not know the motives of the Nevada legislators in framing the statute as they did, but I accept that the debt incurred by the defendant was, in substance, a gambling debt. By following what the statute provides, it is difficult to see how the plaintiff was guilty of any kind of "sham".

Paragraph 12(h): Unconstitutionality I have already dealt with this draft plea. In my view, it has little impact on the public policy point.

Paragraph 12(i): Attitude of Other States The attitude of other states in the United States seems to me to be hardly relevant. I am concerned with public policy in Hong Kong, not other parts of the United States. Assessment of the Public Policy Defence In spite of the paucity of the defendant's evidence of the facts advanced to support this plea, I am prepared to accept for the purposes of this matter that public policy in Hong Kong is such that gambling is controlled to benefit the community, but it is not regarded as immoral, sinful, improper or worthy of public condemnation, that for a casino to advance credit for the purposes of gambling encourages that gambling, that the defendant is elderly and has a propensity to gamble, that the plaintiff encouraged the defendant to gamble large sums, and that did not regard itself as responsible for ensuring that the defendant and his family were not harmed by the defendant's propensity to gamble.

18. The question that has to be answered is - Is it offensive to the public policy or morality of Hong Kong to allow the recovery of this debt in the circumstances of this case?

19. I have no hesitation in saying that it is not. That conclusion has ample support in the views expressed in Saxby v. Fulton [1909] 2 KB 208. The headnote of that case, which correctly reflects the ratio of the decision, is "Money lent in a foreign country for the purpose of being used by the borrower for gaming, the game not being illegal by the law of that country, may be recovered in the English Courts." That case is a Court of Appeal decision, and has stood for nearly ninety years without being questioned. In fact, the law, as the Court of Appeal saw it, had been so for a lot longer than that. I say that because the Court of Appeal followed a decision of Lord Lyndhurst given in 1842. I do not think that the case of Sayed Raji v. Bank Sepah Iran (Unrep) QBD 23 May 1988, before a single judge, relied on so heavily by Mr Huggins, does, or could, detract from authority of Saxby. That case was concerned with those cases where the English courts will refuse to enforce foreign judicial awards where they conclude that a substantial injustice has been committed according to English notions. Mr Huggins, as one might expect, seeks to distinguish Saxby. He points out that the facts are different, as indeed they are. In that case, the money was lent by a friend, not a casino owner, and there was no suggestion that the gambler was under any "disability". I do not consider that these factors to be material in the light of my earlier findings, and do not make any difference to the application of the case to the one before me. There is, however, another factor that Mr Huggins argues is important. The Saxby decision was given by Vaughan Williams, LJ, Buckley, LJ and Kennedy LJ. . Buckley, LJ said, at 227 -

"Two propositions lie at the root of this case. The first is that the contract of loan was made at Monte Carlo and that the money was advanced for purpose which at that place is legal. The second, which is of cardinal importance, is that by the common law of England gaming and wagering are not per se illegal. There are many statutes . . . which make certain gaming contracts and securities given in connection with gaming void and render the consideration for the contract illegal, but there is no principle of common law and no statute which makes betting and wagering in itself illegal. Coming to the question of public policy, I cannot see that it is contrary to public policy for the English Courts to recognize a debt contracted for the purpose of wagering abroad in a place where such wagering was legal."

20. Vaughan Williams, LJ and Kennedy, LJ did not, apparently, see the second proposition as of "cardinal importance". It is so, of course, that the common law of Hong Kong also does not make gambling illegal. In England, the approach was, in 1909, to allow the common law to stand, and to make exceptions by statute. We have a statute that makes gambling generally illegal, but provides for broad exceptions. In practice, gambling in Hong Kong is widespread, heavy and legal, so long as it is conducted through the Hong Kong Jockey Club. I do not think this difference of approach leads rationally to the conclusion that gambling in England was not contrary to public policy, but gambling in Hong Kong is so contrary. Given the attitude of public policy in Hong Kong to gambling that I have already outlined, in my view, it would be the height of arrogance and hypocrisy to tell the State of Nevada that the courts of Hong Kong regard it as offensive to the public policy and morality of Hong Kong to enforce this debt legally incurred in Nevada in the circumstances of this case.

21. In the result, I find that this defence has no arguable basis.

Interest

22. The plaintiff claims interest on the debt at the rate of 11.68% from 21 August 1997 until judgment, and thereafter at the judgment rate until payment. The plaintiff's solicitor has produced another Nevada statute that provides for interest to be recoverable "at a rate equal to the prime rate at the largest bank in Nevada". I have no evidence on which I could base the interest rate. In the absence of agreement, I will receive evidence on this point.

Result

23. In the result, I find that the defendant has not advanced any defence that raises a triable issue. Accordingly, there will be judgment against the defendant in the sum of US$2,740,000 or its Hong Kong dollar equivalent at the time of payment, with interest on that sum from 21 August 1997 until the date of delivery of this judgment at a rate to be agreed or fixed by me on hearing further evidence on the appropriate rate, and interest at the judgment rate from then until payment. The defendant is to pay the plaintiff's costs, as taxed if not agreed.

Representation:

Mr A Houghton, instructed by Messrs Deacons Graham & James, for the plaintiff.

Mr A Huggins, SC, instructed by Messrs Stephenson Harwood & Lo, for the defendant.