Wong Fung Chuen v. Nanyang Commercial Bank Limited

HCA000437/1984

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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BETWEEN

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Coram: Hon. Macdougall, J.

Dates of Hearing: 12th - 14th March 1986

Date of Delivery of Judgment: 27th March 1986

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JUDGMENT

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1. The plaintiff, on his own admission, was convicted after pleading not guilty at his trial in 1978 of manufacturing and trafficking in dangerous drugs. He was sentenced to serve a term of fifteen years imprisonment and has been in custody since 10th April 1978.

2. It is common ground that on 17th December 1977 he opened a cheque account with the Happy Valley branch of the defendant bank. Between that date and 27th January 1978 he made 17 deposits all of which were in sums of round thousands ranging from $2,000 to $300,000. During the same period he made eleven withdrawals all of which were again in sums of round thousands and ranged from amounts of $10,000 to $300,000.

3. It is also common ground that on January 30th and February 2nd 1978 two forged cheques purporting to bear the plaintiff's signature and made out in the sums of $50,000 and $150,000 respectively were presented for payment by one Kwong Kit Yee. She presented the first of these cheques at the Happy Valley branch of the defendant bank and the other at its head office. Further common ground is that on January 31st 1978 she also presented two forged cheques in his name made out in the sums of $100,000 and $50,000 respectively. She presented the first of these at the bank's head office and the second at its Happy Valley branch. On each of these four occasions she endorsed her signature on the reverse side of the cheque.

4. Unfortunately, the forgeries deceived a number of bank officers who had checked the signatures on the cheque against those on the plaintiff's specimen signature cards held by both the head office and the Happy Valley branch office of the bank. As a consequence each cheque was paid out to Kwong Kit Yee.

5. Among the agreed documents placed before me by the parties are four written statements made by the plaintiff to the police in 1984 shortly after he had instituted proceedings against the defendant bank for recovery of the sums so paid out.  Indeed, it had been the bank who had made the complaint to the police concerning the forgeries, and it was as a consequence of this that the police had begun their enquiries by obtaining statements from the plaintiff. Also before me is a voluntary statement made by Kwong Kit Yee to the police on her arrest concerning her presentation of the four forged cheques to the bank, and the transcript of the evidence given at her trial in December 1984 which concluded with her acquittal on all charges.

6. At that trial a handwriting expert testified that he was not surprised that the four forgeries had fooled several bank officers. From this evidence and my own examination of the forgeries I have no doubt that they were skillfully executed.

7. All four cheques had been presented for payment during the plaintiff's brief absence from Hong Kong between 28th January and 2nd February. According to the plaintiff in his testimony in this court, his purpose in visiting Thailand was to look for a wife. In one of his statements to the police, he claimed, however, that he had gone to Thailand for the purpose of sightseeing.

8. On his return to Hong Kong he found that his flat had been sealed by the police and having enquired about the matter from the caretaker in the management office in the building he was told that officers from the Narcotics Bureau wanted him to attend at their office in Police Headquarters.

9. Although he maintained that he had all along been engaged in only lawful business activities, the plaintiff feared that he might have been framed by someone who had planted dangerous drugs in his flat during his absence. He was therefore afraid of going to the police and decided to stay with a friend in Kowloon.

10. In his evidence at the trial of Kwong Kit-yee, however, he testified that he had not thought that the police closure order had had any connexion with dangerous drugs but that it might have had something to do with the selling of watches in China. In the light of what he had been told by the caretaker and the fact that he was subsequently tried and convicted for drug offences, it is plain that this explanation was a manifest lie. During the course of his testimony, he sought to project an image of himself as a successful and law abiding businessman. His explanation for being in prison was that somehow he had been framed by someone and that the Narcotics Bureau had taken advantage of his plight to enlist his services to infiltrate a drug ring and that while performing this task he had been arrested by the Shamshuipo police and later charged, tried and convicted of drug offences of extreme gravity.

11. Having found himself unable to gain access to his flat and thus to his cheque book, which he had left there when he went to Thailand, he decided on the following day, the 3rd February, to telephone the Happy Valley branch of the bank to find out whether he would be able to withdraw money from his account at that branch on presentation of his identity card.

12. He claims that his call was received by a Mr. Yip who, apparently without more ado, told him that apart from 1,000 odd dollars, he had no money in his account, and asked him to come to the bank to see the account. On hearing this, the plaintiff suspected that the police had frozen his account and had laid a trap to lure him to the bank so that they could arrest him. He then decided that as it was near the lunar new year he would wait until after it had passed before he would go to the bank to clarify what had happened to his account.

13. According to the plaintiff, he had been cohabiting with Kwong Kit Yee for about two months before his departure for Thailand and that they had agreed to be married. However, since her mother had told him that Kwong Kit Yee was already married and had a daughter, he rebuked Kwong for not disclosing this to him and told her that he wished to terminate their relationship. Notwithstanding this, she accompanied him to the airport on his departure for Thailand and he gave her a cheque for $5,000 so that she could pay his rent of $2,000 odd at the management office and keep the balance for her own use. As he had no relatives in Hong Kong, he also gave her the key to his flat so that she could look after his furniture during his absence. No explanation was offered to the court as to why it would be necessary to have someone look after his furniture for such a brief period of time.

14. On his return to Hong Kong and having discovered that his flat had been made the subject of a closure order, he telephoned Kwong Kit Yee twice in order to find out what had happened. She was not at the home on either occasion. Although he left a message for her, she failed to return his calls and he did not see her again until he gave evidence against her at her trial in December 1984, almost seven years later. He agreed that apart from the two telephone calls to her home, he had made no attempt to go and see her. At her trial, however, he testified that he had actually gone to visit her to recover the key so that he could gain access to his flat.

15. After the lunar new year and some ten days after his return from Thailand, the plaintiff went to the Happy Valley branch of the bank where he said he saw a Mr. Yip who showed him a cheque in the sum of $150,000 which purported to bear his signature. After seeing that the signature on the cheque was not his, he informed Mr. Yip that he had not withdrawn that sum. Mr. Yip then told him that in fact he had drawn it when he had attended the bank accompanied by a lady. The plaintiff denied this and an argument broke out between the two men.  Mr. Yip then snatched the cheque from the plaintiff before he had had an opportunity to examine the reverse side to ascertain the identity of the person who had presented it. The plaintiff then left the bank.

16. In his evidence at the trial of Kwong Kit Yee, the plaintiff had testified that although he had had the cheque in his hands at the bank, he did not look at the reverse side because it had not occurred to him to do so as he was very angry.

17. According to the plaintiff, Mr. Yip did not disclose the name of the person who had obtained payment on the cheque, but that even had he done so, the plaintiff would not have known that that person was the woman with whom he had been cohabiting and had planned to marry because the name on the reverse side of the cheque, as he later came to learn, was Kwong Kit Yee and he only knew her by her ballroom name of Kwong Ming. When it was put to him in cross examination that it was common knowledge that ballroom girls used aliases in the ballroom he declared that he was unaware of this.

18. On 17th March 1978 solicitors for the plaintiff wrote to the manager of the Happy Valley branch of the bank stating that on 14th of that month the plaintiff had discovered that various sums of money had been paid out of his account on various cheques not drawn by him and that after he had had an opportunity of comparing the signature on one of these cheques with that on a cheque actually drawn by him, he had found that that on the former was different. The solicitors also requested the bank to provide them with the plaintiff's relevant bank statements and photocopies of his signature cards and all cheques presented to the bank on his account and on which payment had been made. They added that the plaintiff had informed them that the bank had told him that it would be making a complaint to the police.

19. Solicitors for the bank replied to the plaintiff's solicitors on 23rd of the same month stating that the bank denied that the plaintiff had examined a cheque and that, on comparison of the signature thereon with his signature on a cheque drawn by him, he had found the two to be different. They also denied that the bank had informed him that it would be making a complaint to the police. The solicitors enclosed copies of the requested bank statements and requested the plaintiff's solicitors to stipulate which cheques the plaintiff was alleging had not been signed by him. They concluded by saying that when this had been done, consideration would be given to the requests for the supply of the other documents referred to in the plaintiff's solicitors' letter.

20. Further brief correspondence followed between the plaintiff's and the bank's solicitors culminating in a letter from the bank's solicitors dated 25th July 1978 in which they asked whether the plaintiff had reported the alleged forgery to the police.

21. At this juncture all correspondence ceased until five years later on 15th July 1983 when another firm of solicitors engaged by the plaintiff requested that it be supplied with copies of the four cheques and the plaintiff's specimen signature card. These were supplied after a formal request had been made under the hand of the plaintiff's attorney, as the plaintiff was by this time serving his 15 years term of imprisonment. It was not until 19th January 1984 that the writ in this action was finally issued. This was all but 6 years after the forged cheques had been presented to the bank for payment.

22. The plaintiff conceded that he had been asked by the bank to telephone it before he gave cash cheques in large sums to other people for presentation. According to him, he had complied with this request on one occasion and that the bank had telephoned him on another occasion to confirm whether he had signed a cheque which had been presented for payment.

23. After the plaintiff had issued the writ against the bank, he was visited in Stanley prison on four occasions by a police officer who took statements from him concerning matters pertaining to the four forged cheques. When asked by the officer whether he knew a Chinese female Kwong Kit-yee, he denied knowledge of her but went on to say that he was, however, acquainted with two ballroom hostesses called Siu Ying and Kong Ming, and that they had accompanied him to withdraw money from the bank once or twice but that he no longer "remembered them". This was a curious addendum to his disclaimer of knowing Kwong Kit-yee. One wonders why, if he did not know of a person named Kwong Kit-yee, who, although he had no reason to think it, actually happened to be a ballroom hostess, he should blurt out that he knew two ballroom hostesses. Nothing appears in the statement to indicate that Kwong Kit-yee was a hostess.

24. In the second of these four statements, he told the police officer that Kong Ming was the girl friend of his driver Chan Fat. In the third statement taken on 13th May 1984, he said that he was unaware of the address of either Kong Ming or Chan Fat. Moreover, he repeated that he did not know Kwong Kit-yee but, again very curiously, stated that he would recognise her if he saw her. What is of great significance, however, is that when asked about what he knew concerning the presentation of the four forged cheques, he replied that he might have dropped them on the street where they might have been picked up by someone. It is plain therefore that he was not suggesting that any suspicion attached to Kong Ming. If there be any truth in his allegation that the cheques were cashed without his knowledge, it seems to me that in all the circumstances Kong Ming would have been the obvious suspect from the very earliest stage when the forgeries had come to light. Indeed at Kwong Kit-yee's trial, the plaintiff testified that it was not until 1984 when he was interviewed by the police that he suspected that she might have been responsible. He confirmed this in his evidence in the present trial where he added that it was when the police had told him that it was Kong Ming who had taken his money that he had first suspected her.

25. It was not until after the plaintiff had given this third statement that Kwong Kit-yee was arrested and gave a voluntary statement under caution to the police. In it she gave an account of her relationship with the plaintiff and answered all questions asked of her by the police. Basically her version of the matter was that she had come to know the plaintiff in about September 1977 when he patronised the ballroom in which she then worked and used the name Kong Ming. She disclosed that she cohabited with the plaintiff from about October until the end of December of that year at the plaintiff's flat and that at around the beginning of October she and the plaintiff had gone to City Hall to register their marriage.

26. In January 1978 the plaintiff informed her that he intended to go to Thailand on a business trip and asked her to remain in his flat during his absence. She admitted that she knew that he had been involved in the manufacture of heroin and had made a great deal of money as a result, and that since he had previously promised to purchase a flat for her, she had asked him to give her some money before he departed for Thailand. According to her, the plaintiff gave her four cheques to the total value of $350,000. She explained that he had divided the amount into separate cheques because she was aware, having accompanied him to the bank on previous occasions and having been addressed by the manager as Mrs. Wong, that the manager had told him that if the amount of a cash cheque exceeded $200,000 he was required to telephone the bank before it was presented for payment. She admitted that she had cashed the four cheques and that on the evening of 2nd February 1978 when the plaintiff had returned from Thailand, he telephoned her home and asked one of her family to tell her not to return to his flat as "something had happened there". She had no further contact with the plaintiff and it was not until about six months later that she came to know that he had been arrested by the police.

27. After Kwong Kit-yee had made this statement, the police returned to Stanley Prison to re-interview the plaintiff. He then gave an entirely different account of his relationship with the person he referred to as Kong Ming. Instead of claiming that she was his driver Chan Fat's girl friend, he now admitted that he had cohabited with her and had accompanied her to the City Hall Marriage Registry to register their marriage. However, he claimed that he subsequently learned from Kong Ming's mother that she was married and had a three year old daughter. On hearing this he had insisted that Kong Ming clarify the relationship between herself and her husband before he would agree to formally marry her.

28. He went on to state that he had gone to Thailand on a sight seeing visit in 1978 and that he did not continue his cohabitation with her after his return. It was in this statement that, for the first time, he claimed that he had given her a cheque for $5,000 on the day of his departure for Thailand. He also disclaimed knowledge of the hostess Siu Ying at the Golden Fountain ballroom whom he had referred to in an earlier statement as having had accompanied him to the bank to withdraw money once or twice. His explanation for having mentioned her name in that context was that he "might have wrongly remembered".

29. At her trial Kwong Kit-yee gave evidence on her own behalf. Her testimony, albeit fuller than the statement which she had given the police, was in accordance with that statement. She claimed that the plaintiff must have known that her name was Kwong Kit-yee because they had both been required to supply their full names when registering their marriage at City Hall. She also explained that she had once taken a cash cheque for $300,000 to the bank for encashment for the plaintiff. On that occasion she had been required to wait for a long time before payment was made and the manager had told her that there should have been a confirmatory telephone call before cashing cheques of a large amount of around $200,000 or $300,000. She did not know whether this meant that cash cheques of a lesser amount should also be confirmed before presentation. However, it was this incident that brought this matter to her attention and therefore it was no surprise to her when the plaintiff had given her four cheques totalling $350,000 instead of one cheque only.

30. The defendant bank called Mr. Lo, the manager of the Happy Valley branch, and Mr. Yip, the sub-manager of the same branch, to testify on its behalf.

31. According to Mr. Lo he had seen the plaintiff attend at the bank accompanied by a woman named Kwong Kit-yee and that he had seen her signature on the reverse side of the plaintiff's cheques. when she had cashed them on occasions prior to the encashment of the four cheques which are the subject of this action. He said that on the morning of 3rd February 1978 the plaintiff telephoned him and requested him to check the balance of his account. As he recognised the plaintiff's voice he checked the account and told him that it was $1992.50. The plaintiff replied that there should have been more money than that in his account as he had not made any recent withdrawals. Mr. Lo then told the plaintiff that a number of substantial sums of money had been withdrawn in the previous few days and that the cheques concerned had been signed by Kwong Kit-yee on the reverse side. The plaintiff then asked Mr: Lo to tell him in what amounts the cheques had been made out. On being given these particulars together with the dates of the cheques and the identity of the person who had made the withdrawals, the plaintiff said that he would go to the bank to examine the cheques. He then concluded the call.

32. Approximately a week later the plaintiff arrived at the bank. Mr. Lo attended to him and produced a number of bundles of cheques from which he withdrew the four forged cheques for the plaintiff's inspection. Mr. Lo's first recollection of the incident was that the plaintiff looked at the cheques through a glass partition separating the two sides of the counter. He later corrected himself and said that in fact he had examined the cheques through a grille and that such had been replaced by a glass partition a few years ago. I do not find there to be anything sinister in this. He did not make the correction as a result of the change in divider having been drawn to his attention. He volunteered this piece of information. I consider it to be a natural error in the circumstances. Moreover, the nature of the divider is not a matter which would have assumed any significance in Mr. Lo's mind at the time when the plaintiff examined the cheques.

33. Apparently the cheques for each day's dealings are retained in a bundle by the bank. Mr. Lo said that he had produced three bundles since the last four substantial cheques had been cashed on three days. Although the plaintiff did not physically handle the cheques, Mr. Lo said that he had displayed both sides of each one for his examination. The whole procedure of extracting and examining the cheques took approximately fifteen minutes. The plaintiff then left the bank. Mr. Lo could not recall whether the plaintiff had said anything while he was examining the cheques.

34. It was plain from his evidence that he did not snatch a cheque from the plaintiff and that there was no argument between the two of them. Mr. Lo was cross-examined on these events and other matters including banking practice and the course of correspondence between the plaintiff's solicitors and those of the bank.

35. I found him to be an honest witness and I accept his testimony. It may be that due to the passage of time his memory of the events is not complete but I am satisfied that it is accurate in material matters.

36. Mr. Yip testified that he had had occasion to telephone the plaintiff concerning a cash cheque that had been presented for payment at the bank's head office, and had obtained confirmation from him that he had signed it. 'Mr. Yip asked him to notify the bank on all occasions when a cash cheque in an amount in excess of $10,000 was to be presented by someone else. The plaintiff agreed to do so.

37. On a later occasion, Mr. Yip again telephoned the plaintiff to obtain confirmation that he had signed a cash cheque which had been presented by another person for payment. The plaintiff confirmed with Mr. Yip that he had sent that person to cash the cheque. Mr. Yip reminded him to make a confirmatory telephone to the bank whenever a cheque in a large sum was to be presented by another person for payment. The plaintiff then replied that it was unnecessary to do this and that whenever his cheques were presented for payment they should be paid and he would be responsible. Mr. Yip accepted the plaintiff's direction and thereafter ceased making confirmatory telephone calls to him whenever cash cheques were presented on his account.

38. Mr. Yip denied that he had spoken to the plaintiff over the telephone on 3rd February when the plaintiff had contacted the bank concerning his account. He further denied that it was he who had attended to the plaintiff on the occasion when he had come to the bank after the lunar new year to examine the cheques.

39. Although Mr. Yip was unable to recall with clarity a number of details concerning various matters which were peripheral to the major events with which this action is concerned, I am perfectly satisfied, first, that he told the truth about his calls to the plaintiff and his conversations with him about the need to confirm withdrawals of large sums by way of cash cheques and, secondly, that he was not the person who received the plaintiff's call on 3rd February 1978 or the one who attended to the plaintiff when he came to the bank to examine the cheques.

40. Moreover, I accept his testimony that when he had communicated with the plaintiff on the two occasions over the telephone both men spoke in Cantonese and that the plaintiff spoke with only a slight Chiu Chow accent. The plaintiff, on the other hand, was at pains to explain in his own testimony that not only was he illiterate but he could not communicate with anyone in Cantonese because he only had a 20% grasp of the dialect.

41. The plaintiff created a most unfavourable impression. He told many manifest lies and his evidence at this trial, his statements to the police and his evidence at the trial of Kwong Kit-yee abound in contradictions of a nature that satisfy me that he embarked on deliberate plan to deceive the bank into cashing what he well knew were forged cheques with the intention that he would subsequently make a claim on it for reimbursement.

42. I did not have the benefit of hearing Kwong Kit-yee give evidence but I have seen her statement to the police and have read the transcript of her evidence at her trial. From what I have heard in the present trial and upon consideration of the other material placed before me by consent of the parties, I am inclined to believe that Kwong Kit-yee's claim that the plaintiff gave her the completed cheques and that she presented them for payment in ignorance of the fact that they had been forged is more likely to be true than the version given by the plaintiff.

43. Indeed, it seems to me to be by no means unlikely that in order to deter Kwong Kit-yee from vindictively disclosing his drug trafficking activities to the police, the plaintiff resorted to the ruse of providing her with skilfully forged cheques that would deceive the bank, thus enabling him to satisfy, at the bank's expense, Kwong Kit-yee's admitted desire to have him settle a substantial sum on her.

44. It was suggested by counsel for the plaintiff that the fact that the cheques were presented during the plaintiff's absence from Hong Kong is more consistent with his version that Kwong Kit-yee exploited that absence to cheat him of his money than with her account of the matter. However, it seems to me that it is at least equally possible that he deliberately absented himself from Hong Kong at the relevant time so as both to make it appear more likely that he was an innocent victim and to intensify suspicion as to her culpability.

45. However, although I consider that it is more likely than not that Kwong Kit-yee had been unaware that the cheques were forged when she obtained payment on them, such a finding is not necessary in order for me to resolve this case in favour of the defendant. Whether Kwong Kit-yee was innocent of any fraud or whether she was aware that the cheques were forged, I am completedly satisfied that the defendant, either acting independently of Kwong or acting in collusion with her, knew full well that the cheques were forged and intended that they should be presented to the bank, and that the bank would be deceived and pay out on them.

46. Whether the plaintiff acted with or without the collusion of Kwong Kit-yee, it is plain that in order for him to give the appearance of having genuinely been the victim of clever forgeries, it was very important that he did not delay in making a complaint to the bank since delay would prejudice any claim that he proposed to make against it.

47. It is in that context that one examines the artificiality of his telephone call to the bank on the morning after his return from Thailand. The plaintiff would have it that this call was made simply to enquire whether, having lost his cheque book, he would be able to present himself at the bank with his identity card and draw on his account.

48. I do not consider that anyone who had lost or was unable to gain access to his cheque book and wished to draw money from the bank would have been likely to cope with the situation in the manner in which the plaintiff did.

49. It must be obvious to anyone who operates a cheque account that when he exhausts his cheque book and requires a new cheque book to draw further funds from his account all he needs to do is to present himself at his bank and apply for one to be supplied to him. Since the plaintiff had signed specimen signature cards and was known at the bank, he must have realised that he would have had no difficulty in establishing his identity on arrival there. Had he genuinely wished to obtain a cheque book in order to draw funds, I have no doubt that he would simply have gone to the bank and applied for a new cheque book. Alternatively he would have applied for a counter cheque.

50. Bearing in mind his avowed objective in making the telephone call and having regard to all the circumstances of this case, I am satisfied that when the plaintiff requested Mr. Lo to tell him the state of his account, his purpose was to find out whether the bank had paid out on the forged cheques and, if so, to lay the necessary groundwork for his claim on it for reimbursement.

51. I regard the plaintiff's testimony in this trial that his enquiry from Mr. Lo as to whether, having lost his cheque book, he would be able to draw on his bank account if he presented himself at the bank with his identity card, as nothing more than an attempt to improve on the clumsy and artificial manner in which he had actually set in train his plan over the telephone on 3rd February. With the benefit of reflexion, he now attempts to tell what he considers to be a more natural story. However, for the reasons I have already outlined, I consider that this new account is only marginally less strained than the other version.

52. Had he genuinely been the victim of a fraud as he maintains, it surely must have been obvious to him that Kwong Kit-yee was the prime suspect. According to him he had given her a cheque bearing his genuine signature just before his departure to Thailand, and, during his absence, she had had access to his flat in which he kept his cheque book. Moreover, she had failed to contact him after his return to Hong Kong. On the basis of these circumstances alone, I find it amazing that it was not until the police told him in 1984, some 6 years later, that Kong Ming had cheated him that he began to suspect her as being the culprit.

53. His story is even more incredible, when one considers that Mr. Lo had shown him the reverse sides of the forged cheques bearing Kwong Kit-yee's signature, and the fact that, having gone so far as to register his marriage with her at City Hall Marriage Registry, he must have known, not merely her professional ballroom name, but her real name.

54. It is plain to me that all along he was at pains to be as vague as possible as to the identity of likely suspects so that any enquiry would be likely to run up a blind alley.

55. He was unable to give the police any clue as to the identity of possible suspects. Indeed, he even sought to lead them to believe that he might have lost his cheque book in the street and that a complete stranger had somehow gained possession of it. He deliberately lied about Kong Ming being his driver's girl friend so that it would not seem implausible when he claimed, as he did, that he did not know her address. He claimed that his driver's name was merely Chan Fat, the well known Chinese equivalent of John Smith, when he must have known that his full name was Chan Hing-fat.  Again he was unable to inform the police of Chan's address.

56. I have no doubt that having set the machinery in motion by telephoning the bank and later examining the cheques and instructing solicitors to write to the bank, he was content to let the trail go completely cold and wait until 1984 before instituting proceedings against the bank. Had his claim been a genuine one, it is logical to assume that he would have made a complaint to the police at an early stage. However, even at the very end, it was not he, but the bank, when confronted with a writ, who made a formal complaint to the police.

57. Bearing in mind that for him to succeed in normal circumstances in a claim against the bank, the plaintiff would merely need to establish that it had paid out on forged cheques, it was very much in his interest for the trail to be allowed to grow as cold as possible. Hence the abnormally lengthy delay in commencing the action. The plaintiff no doubt had hoped that, because of the vagueness of the information he had given about Kong Ming and Chan Fat, and the length of time that had elapsed since the perpetration of the fraud, the police would make no serious effort to locate them and that, accordingly, any such investigation that they might mount would prove fruitless.

58. The explanation that the plaintiff offered in the trial in 1984 as to why he had allowed the matter to sleep until that year is highly implausible. I do not accept his explanation that until 1982 he had been unable to write to a friend and have him engage a lawyer for him. At the present trial, he disclosed that the identity of that friend is none other than Chan Fat. If that be so, the question arises as to why the plaintiff, knowing that the police were interested in contacting Chan, did not then disclose this information to them. I can only conclude that he did not want the police to be able to follow up any leads that could possibly assist in bringing out the truth.

59. This desire on his part to provide only the vaguest possible information to the police also accounts for his deliberate lie that Kong Ming was his driver's girl friend; a lie that was only retracted after the police had arrested Kwong Kit-yee and when the plaintiff had thus come to a realisation that it would be of no avail to persevere with that particular deception. Likewise, he abandoned, at the same interview, his claim that he had been acquainted with a hostess named Siu Ying of the Golden Fountain ballroom, and offered the lame excuse that he "might have remembered wrongly".  Earlier, his mention of this name as being that of a person who also used to accompany him to the bank served the purpose of widening the vague field of possible suspects.

60. It was also after Kwong Kit-yee's arrest that the plaintiff, for the first time, informed the police that on the day prior to his trip to Thailand he had given her a cheque for $5,000.  This cheque was never cashed. In the light of all the other circumstances of the case, it is not unrealistic to view the provision of this belated piece of information as an attempt to cast further suspicion on Kwong Kit-yee, now that she had been located and he was faced with the prospect of having to deal with that unexpected and unwanted development.

61. Moreover, the standard of his handwriting on the account opening registration form at the bank, and Mr. Yip's evidence that the plaintiff carried on conversations with him in Cantonese with only a slight Chiu Chow accent, puts the lie to the plaintiff's claim that he is illiterate and is unable to communicate in Cantonese. These lies had been told, I have no doubt, to create the impression that he was an ignorant man who, not only would have been unlikely to understand even the most basic of bank practices but would easily have had misunderstandings with the police in making his contradictory statements and have been unable to read what the police officer had written in those statements. In this connexion, it is pertinent to observe that in at least two of the four statements he signed as having read them and that their contents were true and correct.

62. In the light of my finding that the plaintiff was at all material times aware that the cheques were forged and had intended that the bank should be thereby deceived into paying out on them, it is clear that the defendant has therefore discharged the burden of proof cast on it to establish its allegation of fraud against him. (Hornal v Neuberger products Ltd [1957] 1 Q B 247) The plaintiff is therefore estopped from claiming that the defendant had no authority to pay on the four forged cheques or to debit the plaintiff's account in the amounts thereof. (Greenwood v Martins Bank Ltd [1933] A.C. 51 H.L. and Estoppel by Representation by Spencer Bower and Turner 3rd Edn paras 63 and 64)

63. I therefore give judgment for the defendant. The plaintiff's claim is dismissed with costs.

Representation:

Mr. H.Y. Wong instructed by M/S K.M. Lai & Li for plaintiff.

Miss Susan Kwan instructed by M/S Gallant Y.T. Ho & Co. for defendant.