Ng Tsing Yee v. Tsang Kin Fai

Action No. 6751 of 1982

THE HIGH COURT OF JUSTICE

BETWEEN

Coram: Hon. Liu J.

Date: 3rd June, 1983.

__________

JUDGMENT

__________

1. This is an action against the defendant by the administratix of the estate and the surviving widow of Kan Cheuk, deceased. The claim arose from a document signed between the plaintiff's deceased husband and the defendant on the 30th August 1977. It was an Agreement for Sale and Purchase in the Chinese language, whereby the defendant agreed to sell to the deceased husband of the plaintiff some 17,424 square feet of land in the Ping Che Village registered in the District Office as Lot 823 in Demarcation District No.77.

2. In the Agreement for Sale and Purchase produced in these proceedings (Exhibit "P2"), the defendant as vendor was described as representing the owner and the plaintiff's deceased husband was described as representing the purchaser. To be more precise, the capacity of the deceased was put down as "purchaser and/or representative".

3. The defendant has, from beginning to end, disputed the genuineness of Exhibit "P2".  It was alleged by the defendant that the document produced and marked Exhibit "P2" had been at least altered if not itself a forgery. In particular, the defendant disputed all his signatures on "P2". The defendant was at plains to emphasize the different kinds of ink used for the characters contained in it.   It was repeatedly exclaimed by the defendant during the course of these proceedings as to how an agreement which he maintained to have been drawn up and signed with the same pen could contain characters in different ink.

4. Let me first deal with the facts: Mr. Kan died in March 1978. Prior to his death, he had immigrated to Canada with his wife joining one of their daughters. Mr. Kan's immigration was not a happy one. Apparently soon after he had landed, he was confined to hospital and after his discharge, on medical advice he returned to Hong Kong on the 2nd March 1978 for treatment. Mr. Kan died on the 28th March 1978 in the Hong Kong Baptist Hospital. Prior to his immigration to Canada, through the introduction of a Miss Man, DW2, Mr. Kan and the defendant met. That was at the end of August 1977. The introduction was as a result of a proposed sale of a piece of land, Lot 823 in this action, owned by the defendant. Mr. Kan. approached the defendant in his capacity as a broker. It was agreed that Lot 823 was to be taken over by Mr. Kan for a re-sale. Mr. Kan was expressly permitted to make a profit out of the re-sale, and a document was duly signed. According to the plaintiff, this was Exhibit "P2", and also according to Miss Man, she signed Exhibit "P2" and saw both the deceased and the defendant sign it. The plaintiff herself was present and she personally witnessed the signing by the defendant, her late husband and the witness, Miss Man. Miss Man claimed that instead of the first description of the deceased in "P2", which is being translated as "representing the purchaser" or "the purchaser and/or representative", there appeared, at the time of the signing, words to the effect "He held out as a broker". Miss Man was not quite definite in her assertion. She agreed that she could find no visible sign of any alterations in that space in "P2" now filled by the present characters "party B (representing the purchaser) Kan Cheuk". Whilst Miss Man challenged only that part of the document, she accepted the rest. It is note-worthy to turn to the end of "P2" at which the same description for the deceased, Kan Cheuk, is repeated just immediately before the signature of Miss Man herself. With the very same designation at the end of that document, there was hardly any incentive for interfering with an earlier part of it. Bearing in mind the absence of any visible sign. of obliteration and the less than firm assertion of Miss Man, in the circumstances I cannot accept her evidence that ''P2" has been so amended or modified.

5. The plaintiff told the court that the document was taken possession of by her deceased husband and was soon turned over to the solicitor. Mr. Yap, the solicitor then in charge corroborated the evidence of the plaintiff. He testified that he had custody of "P2" until its surrender to the plaintiff's present solicitors for the purpose of these proceedings.

6. The defendant emphasized that the understanding was for the plaintiff's deceased husband to serve only as a broker and he was not to be treated as a buyer. In addition, it was claimed that completion was agreed to be within 30 days. He claimed that the contents of "P2" deviated from what had been agreed and signed between the plaintiff's deceased husband and himself on the 30th August 1977 and further that the difference in the ink of the written characters on the document confirmed it as a forgery. As against that, we have the evidence of Miss Man and the plaintiff who were both present. Miss Man categorically affirmed that "P2" was in fact the document signed. Subject to her ill-founded challenge to one of the two identical descriptions of the capacity of the deceased, she was sure that when the document was produced for signature, it had already been wholly written out in its existing terms and signed by the deceased. She agreed that the two signatures of the defendant and her own signature were written with the same pen and, therefore, in the same colour of ink. It stands to reason, so she explained, that "P2" is now in at least two different kinds of ink. It was not really disputed that the indorsement at the end concerning a cheque was subsequently added. She corroborated the evidence of the defendant that completion was to be within a month. If that evidence of Miss Man and the defendant as to completion date were or could be taken as being inconsistent with the written terms of the agreement, extrinsic evidence would not be admissible to qualify it, particularly when one of the parties thereto is now dead. It seemed to have been urged by counsel for the plaintiff that time for completion in the agreement was not made essence of the contract. However, that is not a point of any real significance. Whether or not time for completion was of the essence, the defendant had throughout refused to complete. In fact, soon after the beginning of September, the parties i.e. the late husband of the plaintiff and the defendant, were locked in unpleasant arguments. The effort of Miss Man, at the instigation of the defendant, trying to return the deposit to the plaintiff's late husband for the matter to be, thereby, amicably resolved, was unfruitful.

7. If his evidence on the disputed issues were not deliberate falsehood, the defendant must have been very confused by his own notion of a broker, by what he allegedly understood to be the purport of the document signed and by the frustration arising from animosity. I do not find him an impressive witness.

8. In summary, the defendant's allegation of forgery was principally based on:

9. All these matters have been dealt with and disposed of. In fact, the defendant seemed to appreciate all too well the capacity in which the deceased was designated in "P2". In his cross-examination of the witness, he complained of the deceased's capacity having been changed to that of a buyer and the deceased having substituted himself as representative of the buyer in "P2".

10. Suffice it for me to say that I find Exhibit "P2"  a genuine document signed in its present form by the plaintiff's late husband, the defendant and Miss Man on the 30th August 1977.

11. In his examination in chief, the defendant did not seek to substantiate the allegation of verbal cancellation of "P2" made in his Defence. But in cross-examination by counsel, he was virtually driven to embrace the allegation in his Defence that on the 7th October at a tea house, the deceased agreed to abort the sale and allow him to retain the $3,000 deposit in consideration of his forbearance to sue. The plaintiff testified that the deceased left Hong Kong in October and did not return until March 1978. From the Certificate of Identity of the deceased (Exhibit "P8), it can be seen that the deceased departed from Hong Kong on the 2nd October 1977 and did not return until the 2nd March 1978. The defendant has shown himself to be a witness completely without credibility. I find that the said Agreement for Sale and Purchase was not so cancelled or at all.

12. The defendant claimed that he refused to complete from start to finish. One Mr. Cheng was introduced to the defendant by Mr. Kan, the deceased, on 2nd September 1977. Almost immediately on the 3rd September 1977, they had serious disagreement at a tea house.   About a wee later in -September, Miss Man was sent by the defendant to negotiate for a possible settlement with an offer to return the deposit. According to Miss Man, Mr. Kan was adamant that he wanted the land. The deceased also intimated to Miss Man that he had in fact deposited the purchase money with his solicitor. Soon thereafter, the deceased's solicitor, by a letter dated the 3rd October 1977 ("P4"), demanded completion from the defendant. Even as late as March 1976, as can be seen from the "without prejudice" letter dated the 29th March 1978 ("D2"), the parties were still trying to negotiate. The deceased died on the 28th March 1978. Letters of Administration of his estate were granted on the 15th September 1979. According to the defendant, well into 1980 he was still meeting the deceased's daughter probably for her last attempt.

13. Having obtained Letters of Administration in September 1979, more than a year later, the plaintiff reverted to this matter by her solicitor's letter dated the 24th October 1980 ("P6"). She threatened institution of a legal action. As can be seen in the letter from the defendant's solicitor to the plaintiff's solicitor dated 3rd November 1980 ("D4"), the defendant then went to see Mr. Donald Yap, the plaintiff's solicitor, on the dispute. At that meeting, the defendant raised the question of genuineness of "P2", the Agreement for Sale and Purchase.

14. Therefore, although the defendant refused to complete right from the beginning, these contacts showed that there was probably some room for negotiation.   At the end, it would seem that the defendant fell to rely more heavily, if not almost exclusively, on the alleged forgery, and he was not really seeking to maintain that he had decided never to complete come what may and whatever the legal right of the purchaser. was. The stance he took seemed to he that he was entitled to refuse completion, on account of the alleged forgery. To quote what the defendant said in evidence: "I had the right to refuse".

15. The deceased and his personal representative, the plaintiff, had, in my view, reasonably continued" to try to have the contract completed" until the contract was finally lost and the plaintiff, acting reasonably, should have gone into the market. There was no evidence whether an equivalent property was available. Moreover with good prospects of obtaining a decree of specific Performance on the signed Agreement for Sale and Purchase, "P2", it would have been unreasonable to expect the deceased or his personal representative to waste time and energy in trying to locate another parcel of land and open fresh negotiation with its owner. Despite what seemed to be the last approach before action by the daughter in 1980, in my view, the plaintiff ought to have realized at or near the time of the grant of the Letters of Administration in September, 1979 that the contract was lost to her late husband's estate, and that should be the time the plaintiff should have enforced the contract or gone into the market.

16. In early 1979, the market price of a similar parcel of land was $20 per square foot. In the later six months of 1979, the market price was $20 - $30 per square foot. That covered the period for the Letters of Administration which were granted on the 15th September 1979. When the plaintiff widow threatened legal action by her solicitor's letter dated 24th October 1980 ("P6"), the market price of comparable land reached its peak at $40 per square foot. Needless for me to say that I accept the chartered surveyor's evidence.

17. The plaintiff claimed to have the market price of the land in question assessed at slightly over $17 per square foot i.e. $300,000 as at the date of issuance of the writ on the 31st July 1982. It was submitted that damages should be assessed as at the date when performance was no longer possible. I would not, without further assistance, subscribe to counsel's submission that damages must necessarily be referable to the date of writ as opposed to the date of judgment or an earlier date in case of any delay in pursuing the claim. But as the plaintiff is content with a lower rate of slightly over $17 per square foot obtaining at the institution of this action and not the higher rate of $20 - $30 per square foot at or near the Letters of Administration granted in September 1979 ("P1") when the contract was or should have been considered as finally lost to the estate after those reasonable attempts made to persuade the defendant to complete, I would not in these circumstances, reject the market price of $300,000 asked for in these proceedings for the 17,424 square feet in Lot 823, D. D. 77.

18. The purchase price under "P2" was $4.5 per square foot. For an area of 17,424 square feet, that would come to $78,408. Therefore, the difference between the claimed $300,000 and the contract price is $221,592.

19. A deposit was paid by cheque by the deceased to the defendant. That was not a matter disputed.

20. In the circumstances, such $3,000 deposit will have to be refunded by the defendant to the plaintiff.

21. As for interest, the action was commenced in July 1982.  It has taken a long time for the action to come before the court. There has been no explanation for the subsequent apparent delay.

22. If the claim had been enforced in due time, interest could only have been granted from the date of writ to the date of judgment or until payment, and perhaps interest would have been awarded only from judgment if valuation was to be taken as at the time of judgment. I have acceded to the date of writ for assessment only for the lesser claim. There has been no clear factual basis for dealing with the prayer for interests. Possibilities are many for the matter to be fairly disposed of. Furthermore, there was no evidence as to who was truly to blame for this action to be heard nearly a year later. Bearing in mind also the hostility of both parties generated by the much uncalled for animosity on both sides, it does not seem to be just for interest to be awarded on the already substantial damages against the defendant.

23. The deposit of $3,000 is a small sum and interest thereon would not be very significant. Moreover, the return of the deposit could also have been claimed at a much earlier stage than the commencement date of these proceedings. I do not propose to award interest on the $3,000 deposit now ordered to be returned, but the plaintiff must have costs of the action against the defendant. I order:

Representation:

Mr. B. Chain instructed by Messrs. Yung, Yu, Yuen & Co. for the Plaintiff.

Tsang Kin Fai, Defendant, in person.