Hon Tec Travel Ltd v. Yip Chun Man Albert

DCCJ 6240/2004

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 6240 OF 2004

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BETWEEN

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Coram  :  Deputy District Judge  S. T. Poon in Court

Date of Hearing  :  29^th  May 2006 & 3^rd June 2006

Date of Handing Down Judgment  : 6^th June 2006

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J U D G M E N T

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Background

1.The Plaintiff (“P”) is a travel agency company.  In its business dealings with a company named Hontec Travel (HK) Limited (“Hontec (HK)”), P was owed visa processing fees in the amount of HK$566,910.

2.With a view to continue the business relationship with P, the Defendant (“D”), being a shareholder of Hontec (HK), signed a written acknowledgment dated 13^th May 2004 undertaking to be personally liable for future visa processing fees of Hontec (HK) as from that day.

3.Since 13^th May 2004 and as at 27^th May 2004, a further sum of HK$128,110 of visa processing fees of Hontec (HK) was incurred and remained unpaid.

4.Being demanded for payment, D signed another written acknowledgment on 27^th May 2004 (“the Written Acknowledgment”) acknowledging the debt of HK$128,110 owed by D and undertaking to satisfy the debt before 25^th August 2004.

5.P is now claiming for the debt.

The Defence

6.The defence of D is that the debt has been repaid in full.  D alleged that he has paid the money to the debt-collector employed by P.

7.D said the debt-collector who received the money has signed and written a Chinese character “收”on the original copy of the Written Acknowledgment evidencing the receipt.   The original copy of the written acknowledgment was then returned to D.

Issue

8.P denied having received any payment from D or the debt-collector.  P’s case is that D has never given the original copy of the Written Acknowledgment to them.  The story of D is untrue and he has never paid any money to the debt-collectors.

9.The sole issue in this case is whether D has, as a matter of fact, paid up the debt to the debt-collector employed by P.  An ancillary issue is whether D has given the original copy of the Written Acknowledgment to P.

Evidence

10.Miss Yan Ka Ling, one of the persons in charge of P, gave evidence in Court.  Miss Yan did not impress me as a perfectly reliable witness in that she tended to deal with counsel’s questions rather than simply telling the truth in giving evidence, especially as regard whether she has informed D of P’s termination of authorization to the debt-collector.

11.However, her evidence relating to whether D has ever given the original copy of the Written Acknowledgment to P is supported by the evidence of Miss Choi Lai King, a witness subpoenaed by P.

12.Miss Choi gave evidence that she is a former employee of Hontec (HK) and she was responsible for the business dealings with P.  D terminated her service on 25^th May 2004 learning that Hontec (HK) can no longer have business dealings with P.  Although she had been reporting to Miss Yan and Mr. Tsui of P for the outstanding balance of visa processing fees, she regarded D as her boss.

13.Miss Choi said she was reluctant to be a witness in court because she worried that it would affect her new job.  She said also that she felt embarrassed to testify against her previous employer.

14.According to Miss Choi, D prepared the Written Acknowledgment after having a telephone conversation with Mr. Tsui on 27^th May 2004.  She was present at the office of Hontec (HK) on that day to finish the calculations of money owed to P.  After D finished writing the Written Acknowledgment he made a photocopy of which and gave the photocopy to her.  She has once asked for the original copy but D refused to give it to her.  She then took the photocopy and brought it to Miss Yan.

15.Miss Choi impressed me as an honest witness on the whole and her evidence is unshaken in cross-examination.  Although it is obvious that she has a somewhat more-than-remote relationship with Miss Yan and Mr. Tsui, there is nothing to suggest that she would give false evidence for the benefit of them or P.

16.On the other hand, I am of the view that D is not an honest witness.  D demonstrated no hesitation in altering his previous evidence whenever he saw fit.  When he was cross-examined as to the sources of money he applied to pay the debt-collector, he gave different versions of evidence from what was in his statements and even from the evidence he had just given in the witness box.

17.When D was asked about the denominations of the money given to the debt collector, having previously mentioned that the denominations were all in HK$500 and $1,000 notes, D was forced to say that the debt collectors had waived HK$110 from the debt which is totally contrary to common sense.

18.Besides, when D was asked whether the debt-collector has informed him of the time of their last visit to D’s office, D said he has been informed by them but this was not mentioned anywhere in his witness statements.  Obviously, D has become realized the inherent improbability of his version that, having borrowed sufficient money from his friend, he would wait for the debt-collector to come to his office to collect the debt rather than take the initiative to call up either Miss Yan or the debt-collector and pay the debt.

19.I am of the view that D is not telling the truth.

20.I find as a fact that D has never given the original copy of the Written Acknowledgment to Choi or P and D has never paid any part of the debt to the debt collecting agency or P as alleged.

21.I am satisfied that the subject debt is still outstanding and D is liable to pay the amount to P as agreed.

22.I order that Judgment be entered against D in favour of P for the sum of HK$128,110 and interest thereon from the date of Writ at 8% per annum until Judgment and thereafter at Judgment Rate until payment.

23.I make an order nisi that costs of this action be to P to be taxed if not agreed, with certificate for counsel.

Mr. Andrew Leung instructed by Messrs Kitty So & Tong for the Plaintiff.

Mr. Kwong K. Tack instructed by Messrs. Hagon Wai & Partners for the Defendant.