Tsui Sheung-tsing v. Tsui Chi-hop

DCCJ009930/1968

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT KOWLOON

CIVIL JURISDICTION

Action No. 9930 of 1968

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Coram: Judge Cons, in Court.

Date of Judgment: 10 January 1969

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JUDGMENT

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1. This is an Action by a father against his son. Apparently some considerable time ago the family divided into two camps, with the father in one and the eldest son (i.e. the defendant) in the other together with his mother and the remaining children. A state of hostilities now exists between the two camps, with writs and summonses the weapons of war. But it has not always been so. Until at least two years ago there was peaceful co-existence and trading between them, which was presumably to the benefit of both. It is upon those trading relations that this case is based.

2. The father was at that time a shopkeeper in West Germany selling, I assume amongst other items, goods purchased from and through his son in Hong Kong. His son was, and still is, in the silk-weaving business in Tsuen Wan. Payment for the goods was made by Sterling remittances from West Germany.

3. The father was trading there from 1959 to the end of 1966. He has produced evidence that during that period he made remittances on ten occasions, all between October 1962 and October 1964. He also mentioned one remittance in U.S. dollars, but no claim is made in respect of that and I do not think it is material to this action. Claim is made, however, in respect of the last six remittances; that each and every one of those was not sent in payment of goods ordered by the father, but as a personal loan to his son for the development of the silk factory. That this cannot be so in relation to each and every one of those remittances is palpably obvious. A letter written by the father on the 30th January, 1964, includes the words "I now remit to you through the Bank of Communications £50 out of which $200 will go to your brother for purchase of clothing for the New Year. The rest to be used for purchase of silk knitted-wear and sent to me." The £50 referred to was acknowledged from Hong Kong as the 3rd February that year and is one of the sums now claimed in the writ.

4. It is easy to see why the father chose the middle of 1963 as the operative date on which to say that the remittances ceased to be payment of goods and became instead personal loans. On the 4th of May of that year, the son wrote requesting such a loan in respect of his factory and promised to repay any money lent within one year. He wrote a further letter on the 3rd of the following month. At one stage, this second letter struck me as convincing evidence that the father had agreed to make a loan despite the son's contention that it was refused. I drew the conclusion from the second sentence. When I raised this with the son in court he explained the sentence as merely a verbal support, and on further consideration I find that I agree with him. Reading the first paragraph as a whole, it appears to me that it is very probably in answer to a letter from the father expressing support in general but asking for more details before committing himself financially. The last sentence would indicate that he had not by then come to a definite decision.

5. A denial of any loan at all was made in evidence by the son and his sister who together run the factory. There is discrepancy between them as to the reason advanced, or not advanced, by the father for his refusal. The evidence of the two younger brothers took the matter no further, but that of one of them did cast some doubt upon the truth of the assertion of the son and his sister that they knew nothing of the father's claim until the actual service of the writ. On the other hand, there is the matter of the £50 remittance to which I have already referred. Furthermore, the closeness of the £70 remitted at the end of October, 1964, to the cost of producing and shipping 1,000 calendars ordered by the father in his letter of 2nd of September in that year, inclines me to the view that that remittance was in fact payment therefor. And although there has been no actual order produced to me for the previous year, as far back as 1962 the father was purchasing a similar number of calendars through his son, and I think it more than likely that the remittance of £70 in October, 1963 was for a similar reason. There are also at least two orders each for 1,000 pairs of slippers sent respectively in 1963 and September, 1964. In January, 1965, the cost of 1,000 pairs of slippers would seem to have been just under £70. This thus reduces the father's claim by £40 apart from shipping charges. Again there is no evidence that the slippers sent in June, 1965 were otherwise paid for, which is a further £70.

6. This disposes of most of the father's claim. And when one finds that the major portion of the claim is thus unfounded, it is natural to assume that the remainder is equally not to be believed. For a moment, however, I hesitated, that perhaps there could have been a genuine loan of £100 to the son. This feeling was inspired by two sentences in the father's letter of 31st August, 1963 written not long after a loan had been requested. "You say you have received £100. I wish you every success in your business so that I may set my mind at ease." It could be inferred from these words that a loan of £100 had been made for the business. But against this the general style of his letter is to jump rapidly from one topic to another, and I finally decided that alone these words were insufficient to tilt the balance which otherwise was so heavily weighed in favour of the defendant.

7. For these reasons I am satisfied that no loan of the sums claimed or at all was made and I enter judgment for the defendant.