Tse Ping Wai v. The Personal Representatives of Lung Ping Yim, Deceased
Read the full judgment text of DCCJ 355/2005 on BabelCite. This District Court judgment.
1. This is a relatively simple case of recovery of debt.
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DCCJ 355/2005 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CIVIL ACTION NO. 355 OF 2005 ____________________________ BETWEEN
____________________________ Coram : Deputy District Judge Anthony Chow in Court Date of Hearing : 24th August 2006 Date of Delivery of Judgment : 25th August 2006 -------------------------- JUDGMENT -------------------------- 1.This is a relatively simple case of recovery of debt. The plaintiff’s case: 2.The plaintiff alleged that on or about 4/3/2001, her uncle, (the brother of the plaintiff’s mother) the deceased called and asked for a loan in the sum of HK$100,000.00. On the next day the plaintiff drew a cheque in the name of the deceased and on 6/3/2001, deposited the said cheque into the deceased’s bank account (no. 606-200-8054-6) with the Wing Lung Bank Limited. 3.The deceased was the co-owner of a property with his mother and the plaintiff alleged that at the time of the loan, the deceased told her since his wife and his mother did not get along, the deceased wanted to purchase his mother’s half interest in the property and therefore required the HK$100,000.00 loan from the plaintiff. 4.The deceased passed away on or about 23/5/2003, before repayment of the loan and the plaintiff filed this claim to recover the loan from the deceased’s estate. The Defendant’s case: 5.The Statement of Defence did not raise any positive defence but simply put the plaintiff to the strict proof of her claim. Issues: 6.The parties agreed there are 2 issues in this matter: First, did the plaintiff advance the sum of HK$100,000.00 to the deceased on 6/3/2001? Second, if the answer to the first issue is yes, was the sum advanced a loan? ‘Did the plaintiff advanced the sum of HK$100,000.00 to the deceased on 6/3/2001?’ 7.The burden of proof is on the plaintiff. The plaintiff’s evidence included the following:
8.The fact that HK$100,000.00 was paid into the deceased’s account by the plaintiff was not seriously challenged by the defendant. The plaintiff’s evidence clearly has satisfied her burden of proof. ‘Was the sum advanced a loan?’ 9.Again the burden of proof is on the plaintiff to establish that the HK$100,000.00 deposited into the deceased’s account was a loan. 10.The plaintiff’s evidence was her own testimony. There were only two persons present during the deceased’s telephone conversation with the plaintiff - the plaintiff and the deceased. The plaintiff’s testimony was therefore the only available evidence of what the deceased said. I have carefully observed the plaintiff’s demeanor during her testimony and I find the plaintiff an honest and truthful witness and I find the plaintiff’s testimony was sufficient to satisfy her burden of proof. 11.During the plaintiff’s cross-examination, counsel for the defendant, Miss Mak, asked the plaintiff a series of question on the plaintiff’s parents’ finances and whether her mother borrowed money to purchase their home. When I enquired with Miss Mak about the purpose of her questions, Miss Mak reply that she wanted to establish the HK$100,000.00 was in fact for repayment of a prior loan to the plaintiff’s mother. 12.When I asked Miss Mak if this allegation was pleaded in the Statement of Defence, Miss Mak replied ‘no’. It is of course open for the defence to attack the creditability of the plaintiff’s testimony; however, it is trite that parties are bound by their pleaded case and it was not open for Miss Mak to establish a ground of defence not pleaded in the Statement of Defence. I asked Miss Mak if she wanted to amend the Statement of Defence and Miss Mak said ‘no’. The defence therefore remained the same - no positive defence. 13.In her closing statement, Miss Mak stated the deceased’s wife’s testimony that the mother and the wife in fact got along fine and there was no pressure from the mother to repay the purchase price of the half interest on the property. 14.All of these are of course bare assertions and are totally irrelevant to what the deceased told the plaintiff at the time of the loan. The mother and the wife may have got along well, but the fact was there was a transfer of the mother’s half interest and there was enough pressure for the deceased to obtain a mortgage in the sum of HK$300,000.00 as part payment of the amount owed to his mother. The deceased clearly had an urge to repay the purchase price of the half interest to his mother. 15.The deceased’s wife testified that the HK$690,000.00 paid to the deceased’s mother for the half interest in the property was made up as follows:
16.When asked by Mr. Fung, solicitor for the plaintiff, about the balance in the sum of HK$90,000, the wife replied that she deposited a sum of HK$40,000.00 from her own savings into a joint account with the deceased. At the time the deceased already had HK$80,000.00 in this joint bank account and the sum of HK$90,000.00 was withdrawn from this joint bank account to pay the mother. 17.When asked if she knew where did the HK$80,000.00 came from, the wife could not answer. Clearly the wife did not know about the deceased’s financial situation. 18.In any event, once the plaintiff has satisfied her burden of proof, the burden shifts to the defendant to proof its defence and here there was no defence. 19.Leaving the lack of a pleaded defence aside, even if the Statement of Defence did plead that the deceased was in good financial situation and was in no need to borrow money from the plaintiff, the burden was on the defence to lead evidence in support. At the very least the defendant should submit the deceased’s bank account to show that at the time of the loan, there was sufficient money in his account to cover the payment to his mother without the loan from the plaintiff. The defendant failed to submit any evidence at all, leaving the allegation that the deceased had sufficient money to pay his mother another bare assertion. 20.Having considered all of the evidence and the testimonies of the plaintiff and the defendant’s witness, I find as a matter of fact that the HK$100,000.00 deposited into the deceased’s account on 6/3/2001 was a loan. Orders:
Mr. Fung Kwok Ki, of M/S Fung & Fung, for Plaintiff Miss Angel Mak, instructed by M/S Danny Lau & Lam, for Defendant |