Oriental Pearl South Africa Project Cc. v. Bank of Taiwan

DCCJ 6509/2002

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 6509 OF 2002

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BETWEEN

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Coram  :  Her Honour Judge H.C. Wong in Court

Date of Hearing  :  10^th – 14^th , 17^th, 25^th July 2006

Date of Handing Down Judgment  :  4^th October, 2006

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JUDGMENT

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1.The Plaintiff is a company carrying on the business of import and export at 128 Wroxham Road, Paulshof, Sandton 2056, Republic of South Africa.  It is a company incorporated under South African law and Madam Li Na (“Madam Li”) was and is the sole owner of Plaintiff Company (“the Plaintiff”).

2.The Defendant’s Hong Kong branch carries on banking business in Hong Kong at 4^th floor 9 Queen’s Road Central Hong Kong (“the Bank”).

The Plaintiff’s Case

3.The Defendant’s Johannesburg branch was the Plaintiff’s banker in South Africa.  On the advice and assistance of Mr. Hu, the manager of the Defendant’s Johannesburg branch, Madam Li obtained the account opening documents for the opening of an account outside of South Africa to conduct her business in the PRC and Europe.  As a result, an account in the Plaintiff’s name number 114 1100 12490 and a second account in Madam Li’s name number 114 400 12343 were opened at the Bank in or about June 2000 (“ the said accounts”).

4.At the time of application to open the said accounts in June 2000, Madam Li executed the following documents:

(1) 2 signature Cards;

(2) a questionnaire;

(3) a certified copy of Founding Statement of the Close Corporation Act;

(4) a photo copy of the passports of madam Li and Cornelius Johannes Nysschens, the second signatory of the Plaintiff’s account;

(5) a certified copy of resolutions of the Plaintiff.

5.The initial opening of account procedure and the documents for the opening of the two accounts with the Bank were deposited with the Defendant’s Johannesburg branch and forwarded to the Hong Kong branch.  Madam Li referred to the former addresses and telephone numbers of the Plaintiff set out in the power of attorney authorizing her husband to be a co-signatory executed on or about 3^rd July 2000 as evidence that the two accounts were opened in June 2000, not June 2001, as alleged by the Defendant.  Madam Li admitted, however, that the said accounts remained inactive until early June 2001 when a deposit was paid into the Plaintiff’s account. 

6.Through Mr. Hu’s introduction, Madam Li maintained regular contact with Mr. Chang Chiu Huang, the assistant vice president of the Bank between June 2000 and June 2002.  The contacts by telephone with Mr Chang were initially in respect of the opening of the Plaintiff’s account at the Bank in June 2000; these became a regular practice after the Plaintiff’s account and her personal account were opened with the Bank particularly after June 2001. 

7.In or about June 2001 the Plaintiff’s account began to be active.  Madam Li claimed that Mr. Chang assured her during their telephone conversations that there would be no need for Madam Li to travel to Hong Kong to give instructions to the Bank and it would (a) accept instructions by facsimile transmission from the Plaintiff; (b) the Bank would handle the transactions in the Plaintiff’s account and Madam Li’s personal account with great care; (c) Mr. Chang himself would take care of and scrutinize the instructions sent by Madam Li by facsimile transmission personally; and (d) after receipt of instructions from the Plaintiff by fax, Mr. Chang would telephone Madam Li to confirm the instructions set out in the fax.

8.When Madam Li began to operate the said account at the Bank, Mr. Chang informed her that in order to transfer funds between her own account and the Plaintiff’s account at the Bank, the Plaintiff should use a “Withdrawal Slip”.  For the transfer of funds from Plaintiff’s account to an outside account, the Plaintiff should use an “Application for Outward Remittance or Exchange”.  Mr. Chang then sent to Madam Li sample forms of the ‘Application for Outward Remittance or Exchange’ and ‘Withdrawal Slip’ by fax on 15^th June 2001.

9.Based on the aforesaid representations and assurances of Mr. Chang, Madam Li claimed she began operating the said accounts by giving instructions to the Bank by facsimile transmission using the said forms.  On 15^th June 2000, the Plaintiff wrote to the Bank informing the Bank that certain funds would be deposited into the said account on 18^th June 2001 (page B055).  In the letter, Madam Li notified the Bank of the Plaintiff’s new telephone number.  The said letter was sent to the Bank by fax.

10.On 8^th June 2001, the Plaintiff instructed its client to deposit US$50,000 into the said account at the Bank (page B058).  On 19^th June 2001, the Plaintiff sent two applications by fax to remit and transfer certain funds from the Plaintiff’s account (pages B056 – 57).  The said deposit did not reach the said account until 20^th June 2001 according to the deposit slip dated 20^th June 2001 (page B059).  As a result of an earlier instruction on 15^th June 2001, the Bank executed the two applications on 21^st June 2001 (page B060 & B061).

11.The day before the Bank executed the two applications, Madam Li received a telephone call from Mr. Chang informing her that according to the instructions on the existing signature card in the Bank’s record, two signatures were required to operate the Plaintiff’s account.   In order to change the instruction from two signatures to one signature of two, the Bank required a resolution from the company to that effect.  A resolution form was then faxed to the Plaintiff.  The Plaintiff duly executed the resolution and faxed it back to the Bank on the same day 20^th June 2001.

12.It is Madam Li’s evidence that on 9^th July 2001, she received in the post a copy of the ‘Mandate and Indemnity for Execution of Facsimile Instructions’ (“the Mandate”) from the Bank and a blank certified copy of the resolution for the Plaintiff.  Although the Mandate was endorsed with the date 20^th June 2001, the envelope bore a post-mark of 22^nd June 2001.  Madam Li claimed that she did not think much of the importance of the Mandate and did not bother to read the contents because the two accounts have been opened for over a year and the Bank had by that time accepted and executed her instructions already without the Mandate.  Madam Li further claimed that she was not warned of the nature or the contents of the Mandate nor was she told the consequences of her acceptance of the terms and conditions in the Mandate.  Madam Li claimed that Miss Lee, the officer at the Bank who faxed her the resolution form on 20^th June 2001, had only told her she would be sent the usual standard forms to sign; therefore, she was under the impression that these were forms of no importance.  Madam Li signed the documents including the Mandate on behalf of the Plaintiff without understanding the nature, contents and consequences of the Mandate and returned the documents together with a certified copy of the resolution, a covering letter and a Power of Attorney authorizing her husband as the alternate signatory of the Plaintiff’s account to the Bank by post on or about 10^th July 2001 (page B-066).

13.According to Madam Li, the Plaintiff had given instructions by fax on approximately ten occasions between 20^th June 2001 and 15^th June 2002; all were executed by the Bank on her behalf. On 5^th June 2002, Madam Li gave a transaction instruction in person at the Bank while she was visiting Hong Kong (page B-074).  The 6^th June 2002 transaction (page B-076) was sent by fax from the Hong Kong & Shanghai Banking Corporation in Central to the Bank; and the 7^th June 2002 instruction was faxed from the Sheraton Hong Kong Hotel to the Bank by her.  Upon receipt of each of the Plaintiff’s letters and applications and instructions by fax, Madam Li alleged that Mr. Chang would telephone her to confirm and verify the instructions on each of the applications.  At the initial stages, Mr. Chang would fax back to the Plaintiff after execution each application endorsed with the chop and initials of the officers at the Bank for the Plaintiff’s record (page B-060).

14.On 3^rd June 2002, the Plaintiff sent a withdrawal slip by fax to the Bank requesting the transfer of US$150,000 to Madam Li’s personal account with the Bank (page B-079).  However, it failed to execute Madam Li’s instructions.

15.It was not only until 10^th July 2002 when Madam Li received a statement of accounts from the Bank that she discovered the debit of a sum of US$32,634.58 on 17^th June 2002 from the Plaintiff’s account (page B-080).  She immediately wrote a letter on 10^th July 2002 to the Bank pointing out the wrongful debit of US$32,634.58 from the said account.  She further questioned the Bank’s failure to execute the instruction on 3^rd June 2002 to transfer US$150,000 to her personal account from the said account.

16.On 11^th July 2002, she telephoned Mr. Chang but she was told he had been transferred from the Bank to Taiwan.  Her call was put through to Mr. Wu of the Bank who informed her that the transfer of the US$32,634.58 was executed in accordance with her instruction under an application by fax from the Plaintiff to the Bank.  Mr. Wu then faxed over a copy of the alleged application and a covering letter purportedly signed by Madam Li on the Plaintiff’s behalf (page B082 and 083) (“the first Application”).

17.Upon receiving the two documents from the Bank, Madam Li immediately wrote a letter to Mr. Wu setting out what she told him earlier by telephone and stating that the Plaintiff did not give instruction on 16^th June 2002 for an outward remittance or sent the purported covering letter to the Bank.  She pointed out the discrepancies in the covering letter and the first Application compared to the Plaintiff’s usual instruction practice; She pointed out that the signature and seal executed on these documents to be exact replicas which she claimed to be physically impossible to reproduce manually.  She further stated that these were obvious signs that someone had forged her signature and the Plaintiff’s seal.

18.On 22^nd July 2002, Madam Li received a telephone call from Mr. Ma and Mr. Wu of the Bank.  They informed her that they had received a letter dated 21^st July 2000 purportedly sent by the Plaintiff attaching an alleged letter from the Standard Bank of South Africa to the Plaintiff requesting three months’ bank statements on the Plaintiff’s account endorsed with a purported signature of Madam Li and the Plaintiff’s seal (“the second Application”).  Upon receiving a faxed copy of those two documents from the Bank, Madam Li immediately informed the Bank that they were not documents authorised by the Plaintiff.  This was followed by a letter on 13^th July 2002 to Bank informing it of the same (see page B-088).

19.On 30th July 2002, the Bank contacted Madam Li again informed her the Bank had received another ‘Application for Outward Remittance or Exchange’ dated 29^th July 2002 purportedly signed by Madam Li bearing the seal of the Plaintiff requesting the transfer of US$68,000 from the Plaintiff’s account to one “Cacace Arturo” (page B-090) (“the third Application”). Madam Li immediately informed the bank that the document was forged.

20.Upon the discovery of the forged first Application and the inaction of the Bank, Madam Li decided to fly to Hong Kong from South Africa to sort out the wrongful transfer with the Bank.  While in Hong Kong, she made a report to the police and laid a complaint at the Monetary Authority, she further instructed a firm of solicitors to act for her in Hong Kong.  Since the fraud was discovered, Madam Li sought the return of her money from the Bank.  The Plaintiff asks for a declaration that the Defendant has wrongfully debited the Plaintiff’s account with the sum of US$32,634.58, damages, interest and cost.

The Defence Case

21.The Defendant relies on the terms and conditions under the Mandate signed by Madam Li on behalf of the Plaintiff.  The Defendant denied the Plaintiff’s and Madam Li’s personal accounts were opened in June 2000 because the said accounts had remained inactive prior to June 2001.  He claimed that in June 2001, documents for the opening of the Plaintiff’s account consisted of the signature specimen card, the “Mandate and Indemnity for Execution of Facsimile Instructions” were sent by post from the Bank to Madam Li for completion and execution.

22.It was Mr. Chang’s evidence that Madam Li had telephoned him upon receipt of the documents.  He claimed he had explained to Madam Li over the telephone the purpose and contents of the forms and documents sent to Madam Li.  He had explained to Madam Li in Mandarin that she had the option of operating the Plaintiff’s account and her own account through facsimile instructions; should Madam Li not require the instructions to be executed immediately, instructions could be sent by post or submitted to the Bank in person.  Mr. Chang claimed that Madam Li as a businesswoman understood his explanations.  The Defendant claimed that was the basis the Plaintiff and Madam Li’s accounts were opened at Bank.

23.Mr. Chang claimed that before his departure on 14^th June 2002, whenever Madam Li executed an instruction or application for remittance either Mr. Chang himself or Mr. Wu Chia Pin, the senior manager of the Trade Finance Department would be responsible for the final approval which included verifying the application, checking the details and confirming the information etc.  Then one of them would further verify the signature on the Plaintiff’s application in case there were unusual features in the Plaintiff’s application or if the signature verifying officer or Mr. Ma had any doubts over the signature on the application form.  Upon approval of the Plaintiff’s application by Mr. Wu or Mr. Chang a ‘SWIFT’ message would be transmitted immediately to the beneficiary bank.

24.Mr. Chang denied it was a usual practice for the Bank to telephone Madam Li to confirm or verify the instruction on each and every occasion.  That it was only in cases where details of the requested transactions were found to be unclear and ambiguous that the handling officer at the Bank would seek to confirm or verify with the Plaintiff by facsimile or telephone.

25.Mr. Chang pointed out that in the Plaintiff’s covering letter it had only requested the Bank to fax or call the Plaintiff or Madam Li should further information be required rather than requesting the Bank to confirm or verify its instructions on each and every occasion.

26.Mr. Chang claimed that the Bank had no reason to believe Madam Li did not understand English, the language used on the Mandate, because most of Madam Li’s facsimile instructions and covering letters were written in English.  He claimed that he had explained the terms of the Mandate to Madam Li before she signed the document.  Furthermore, between June 2001 and June 2002 the Bank received no cause for complaints by the Plaintiff except on the occasion of the 17^th June 2002 instruction of transfer of US$32,634.58.

27.The Defendant called two further witnesses Mr. Ma Yu Yiu Benny and Mr. Chan Tak Leung, both assistant managers of the Bank’s Trade Finance Department.  They agreed that upon receipt of a fax application for transfer and remittance, the application would be passed to a signature-verifying officer to verify the customer’s signature against the Bank’s record on the account.  After the signature of the customer was verified and confirmed, the officer at the remittance section of the Trade Finance Department would input the relevant information into the computer system to process the request.   The transaction reference number, transaction date, remittance amount, bank charges, amount debited and the officer’s staff code would also be endorsed on the original copy of application form.  A duplicate copy of the original application form would be passed on to Mr. Ma for verification and approval.  Mr Ma would then pass the document to Mr. Wu, senior manager of the Trade Finance Department or Mr. Chang, the Assistant Vice President of the Bank, for further verification and final approval before execution.  After Mr. Chang returned to Taiwan on 14^th June 2002, the first Application was further verified by Mr. Chan Tak Leung before it was passed on to Mr. Wu for checking, verification and final approval.

28.Both Mr. Ma and Mr. Chan claimed that they would only further verify the signature of the customer only if there were any unusual features appearing on the application.  In the case of the first application, the signature-verifying officer was Miss Chan Pui Sheung.  She verified the signature on the 1^st forged application with the Bank’s record; the application was then passed onto Mr. Ma and Mr. Chan.  Both claimed that because there were no unusual features in the first Application, neither Mr. Ma nor Mr. Chan further verified the signature or the seal.

29.It was Mr. Ma’s evidence that it was only when the Bank received a faxed letter purportedly from the Plaintiff attaching a letter from the Standard Bank of South Africa requesting for 3 months’ bank statements on the Plaintiff’s account on 21 July 2002, that Mr. Ma and Mr. Wu considered they should telephone Madam Li to confirm the instruction.   Mr. Ma and Mr. Wu were informed by Madam Li that the second Application was not executed or authorized by her.

30.On 29^th July 2002, the Bank received another application for outward remittance (“the third Application”) by fax purportedly from the Plaintiff.  On this occasion, the Bank decided to verify the instruction with Madam Li by telephone, a copy of the third Application (page B-090) was faxed to the Plaintiff.  Mr. Ma and Mr. Wu were notified by Madam Li that the Plaintiff did not execute the transfer instruction on 29^th July 2002 and it was not a document authorized by or originated from the Plaintiff’s office.

31.The Defendant claimed that its officers had found no unusual features in the first Application after the signature and seal on the first Application had been verified by the Bank’s staff; therefore, it was considered to be genuine.  The Defendant relied on clauses 2 and 3 of the Mandate (page B-043 and 44), they are as follows:

“2.       The Bank shall be under no duty to inquire into the authenticity of any fax instructions or the identity or authority of the person transmitting or purporting to transmit any fax instructions.  The Bank may act on fax instructions upon receipt and whether or not a hard copy of such instructions is subsequently received by the Bank by post, personal delivery or otherwise. Notwithstanding the foregoing, the Customer shall promptly deliver to the Bank a hard copy of all such instructions.  In the event of any discrepancy between any fax instructions received and acted on by the Bank and a hard copy of the same, the fax instructions received and acted on by the Bank shall be deemed to be the instructions given by the Customer.

3.        The Bank may treat all fax instructions given as fully authorized and binding on the Customer regardless of the circumstances prevailing at the time of the instructions being given or the nature or amount of the transaction and notwithstanding any error, misunderstanding, lack of clarity, fraud, forgery or lack of authority in relation to the fax instructions, and the Bank may act upon fax instructions given to it so long as the Bank or any of its officers or employees believes the same to be genuine when given.  The Bank shall not be liable to the Customer for any losses sustained by the Customer as a result thereof.”

32.The Defendant claimed that it was under no duty to enquire into the authenticity of the application or the identity or authority of the person transmitting or purporting to transmit the application under clause 2 of the Mandate.  Under clause 3 of the Mandate, the Defendant was entitled to treat the application as fully authorized and binding on the Plaintiff.  The Defendant claimed that it is entitled to act upon the application because the Defendant’s officers had believed the application to be genuine.

33.The Defendant further claimed that the transmission amount of US$32,634.58 was not a large amount compared to a previous application of transfer on 7^th June 2002 by the Plaintiff of US$52,000.  Furthermore, the fact that the SWIFT code was given was not an unusual feature on the instruction letter.   The Defendant made no admission that the seal and the signature on the first Application were forged.

The Issues

34.The issues in this action have been summarized by Mr. Kenneth Chan, Counsel for the Defendant, as follows:

(a) Whether the Plaintiff succeeded in proving that the “Application for Outward Remittance or Exchange” and the instruction letter dated 16^th June 2002 were forged.

(b) If the answer to (a) is in the affirmative, whether the mandate was properly executed by the Plaintiff and if so, whether the Defendant was liable to the Plaintiff in the light of clauses 2 and 3 of the Mandate.

(c) If the answers to (a) and (b) above are in the affirmative, whether the Defendant was negligent as alleged by the Plaintiff.

(d) If the answers to (a), (b) and (c) above are in the affirmative, to what extent is the Defendant liable to the Plaintiff.

Findings

Has the Plaintiff succeeded in proving the first Application (Exhibit D3 and 4) and instruction letter (Exhibit D5) were forged?

35.I find Madam Li’s evidence to be clear and unambiguous.  The Plaintiff’s case is simple and straightforward.  She had opened an account at the Bank in June 2000 through the recommendation of the Defendant’s Johannesburg Branch Manager, Mr. Hu, who had also introduced Mr. Chang to her.  Madam Li believed she had supplied all the documents required by the Defendant in June 2000 for the opening of the said accounts for the Plaintiff and herself.  She also believed that she had signed all the documents required by the Defendant in June 2000.  The Defendant claimed these two accounts were not activated until June 2001and denied the said accounts were opened in June 2000.  For all intents and purposes, Madam Li considered she had opened two valid bank accounts with the Bank in June 2000 when she was given the two account numbers after she submitting all the documents required by the Bank.

36.It is not disputed that in June 2001, the Bank did carry out instructions given by Madam Li by telephone to Mr. Chang followed by a fax letter dated 15^th June 2001 confirming the instruction by telephone, for the letter referred to the telephone conversations between them on 15^th June 2001 advising the Bank that certain funds would be deposited into the Plaintiff’s and Madam Li’s accounts on the 18^th June 2001 (page B-055). Madam Li later amended the date of deposit to 20^th June 2001.  She had also produced a copy of the wire transfer instruction to her customer on 8^th June 2001 (page B-058).  The instruction set out the name of the Bank and the Plaintiff’s account number at the Bank and the amount to be deposited (US$50,000).  She also quoted the SWIFT code “BKTW HK HH” to facilitate the payment.  On page B-059 of the bundle, Madam Li produced a deposit slip showing a deposit of cash of US$50,000 into the Plaintiff’s account on 20^th June 2001 that the Plaintiff received from one Zhao Gang.  The deposit was duly made at the Bank.

37.On 19^th June 2001 Madam Li faxed two instructions by means of the ‘Applications for Outward Remittance or Exchange’ forms for the transfer of two lots of payments to be debited from the Plaintiff’s account at the Bank.  These were executed by the Bank on 21^st June 2001 and copies of these two instructions after the approval and execution by the Bank were faxed back to the Plaintiff on the same day 21^st June 2001 (page B-062 and 63 and 64). Madam Li further faxed to the Bank on the same day documents in respect of the Plaintiff company’s registration in South Africa as requested by the Bank with a covering letter from her for the attention of Miss Tam of the Bank.

38.As to the Mandate (page B-043 and 44), though the date 20^th June 2001 was endorsed on the document, it is obvious that the Bank did not receive this document from the Plaintiff on 20^th June 2001.  According to Madam Li, this document was not sent to her for her signature when she applied to open an account in June 2000.  Madam Li claimed the Mandate was received in the post on or about 9^th July 2001.  She exhibited (page B-085) the envelope in which she claimed the Mandate was sent; it bore a Hong Kong post-mark of 22^nd June 2001.  This document lends support to Madam Li’s evidence that she only received this envelope containing the Mandate on 9^th July 2001.

39.Mr. Chang claimed that a copy of the Mandate was faxed to Madam Li on 20^th June 2001 and he had explained to her over the telephone that she was required to sign the original copy of the Mandate but due to the urgency of the Plaintiff’s applications the Bank was willing for the time being to accept a fax copy of the Mandate for the application to be processed.  The Plaintiff was required to sign and returned the original of the Mandate to the Bank once it was available to the Plaintiff.  It is unfortunate that the Bank was not able to produce a copy of the fax Mandate signed by Madam Li which it claimed that it had received on 22June 2001.  Madam Li admitted she had received the original Mandate by post from the Bank and had returned it after signing on 10^th July 2001.   As it took 14 days to reach Hong Kong, she believed the original copy of the Mandate was received by the Defendant in the post on or about 24^th July 2001.

40.Based on the documents produced, the letter from Madam Li to Miss Tam dated 21^st June 2001 (page B-062) mentioned only the Plaintiff’s founding statement and computer registration number that had been verified by the South African police and the Registrar of Companies in South Africa.  There are other documents produced by the Plaintiff during this period such as the letter dated 21^st June 2001 to Miss Tam (page B-066) in reply to the request for corporate documents.  Madam Li’s 9 July 2001 letter to Mr. Chung referred to the corporate resolution required by the Bank for a Power of Attorney to be issued confirming Cornelius Johannes Nysschens as an authorized alternate signatory for the corporation of the Plaintiff’s account at the Bank (page C-122).  Other than these two letters, there was no documentary evidence that can show Madam Li had signed and faxed the Mandate back to the Bank as alleged.

Explanation of the Contents of the Mandate

41.Mr. Chang claimed he had explained to Madam Li during their telephone conversation on 20^th June 2001 the purpose and contents of the account opening documents including the Mandate, and instructions sent by facsimile was merely an option available to the Plaintiff.  In Mr. Chang’s supplemental statement, he further claimed that he had explained to her the purpose and contents of the Mandate on 20^th June 2001 including the risks involved in using facsimile instructions.  That he had also informed her that in order to give fax instructions it was necessary for the Plaintiff to sign the original copy of the Mandate.  Mr. Chang maintained that the Bank had no reason to believe that Madam Li did not understand English, the language used in the Mandate, because most of Madam Li’s fax instructions and letters were written in English.

42.On the other hand, Mr. Chang admitted that whenever he spoke with Madam Li on the telephone, Mandarin (Putonghua) was the language used by both parties.  There was no evidence that Mr. Chang had read over or translated the whole of the contents of the Mandate to Madam Li during the telephone conversation between them on the execution of documents.  It is not disputed that Mr. Chang was concerned about the signatory card submitted by the Plaintiff in June 2000 had indicated a requirement of two signatories on the Plaintiff’s instructions to the Bank. He was obviously concerned about the Plaintiff’s signatory cards and a fresh company resolution appointing Mr. Nysschens as the alternate signatory in place of the earlier instruction.  Mr. Chang admitted that he had handed over matters such as the details required in the resolution and the amended signatory cards etc., to his staff, Miss Tam and Miss Lee.  Mr. Chang did not explained and read out to Madam Li the full terms on the Mandate during the conversations between them on 20^th June 2001.  That was why Mr. Chang in his witness statement, maintained that there was no reason for him to suspect Madam Li did not understand the English language.  So far as Mr. Chang was concerned, Madam Li was supposed to read the fine prints in English on the Mandate for herself.

43.Madam Li claimed that she had received up to secondary education in China only before she moved to South Africa.  And she had only begun to receive formal English education in the last two years. She claimed therefore that back in 2001 her knowledge of English was limited.

44.In the case of Bank of China (Hong Kong) Limited v. Fung Chin Ken & another [2002] 5 HKCFAR p.515, the judgment of Litton NPJ, he said at paragraph 51:

“In reaching, as the Court of Appeal did, the conclusion that the transaction here must be set aside, that Court was in no way disturbing the fundamental principle that generally speaking, when a person signs a legal document, he or she is bound by the act of signature: As a matter of general law, it is no defence to say that he or she did not understand the contents of a legal document; that person takes the chance of being bound by its terms, as he or she can take the simple precaution of not signing until its content has been fully explained and understood.  But there are special circumstances whether the burden is thrown on the other party, under the principle of what are broadly called equitable fraud…”

45.The Plaintiff’s case is not that the Defendant was guilty of equitable fraud, rather, it is that the terms on the Mandate were not binding on her because the Bank had throughout the period before the departure of Mr. Chang communicated and confirmed by telephone on each occasion it received an instruction from the Plaintiff.  Madam Li claimed her practice was to call up Mr. Chang or one of his colleagues before and/or after faxing the Plaintiff’s instruction or application for transfer.  While the Bank had initially faxed back the applications upon completion of the instructions, the practice of telephone confirmation upon receipt of an application or instruction by fax had continued until June 2002.  Subsequently, it is not disputed that the Bank have adopted the practice of telephone conformation of all fax applications from its overseas customers since this incident involving the Plaintiff’s account in June 2002.

46.From the evidence adduced by the Plaintiff and the Defendant, it is clear that Madam Li had maintained constant communications with Mr. Chang and his colleagues over the transactions in the Plaintiff’s account.  However, with the departure of Mr. Chang on 14^th June 2002, the bank officer who took over from Mr. Chang failed to carry on with the practice of obtaining confirmation from Madam Li.  This resulted in the Bank’s wrongful transfer of US$32,634.58 from the Plaintiff’s account to an account at the Banco Mercantil e de Investimentos, Maputo in Mozambique via the Bank Belgolaise in Brussels.  

47.It was not until 10^th July 2002 when Madam Li received the monthly account statement from the Bank that she realized there was an unauthorized transaction from the Plaintiff’s account that she had never given instruction on.

48.Madam Li concluded that the signatures and seals on the first to third Applications, the covering letters accompanying the Applications and the letter attached to the request for bank statements were forged and reproductions of the Plaintiff’s signature and seal on the application for outward remittance form dated 7 June 2002 from the Plaintiff kept by the Bank (page B-077).  On all these documents, the signature appeared at exactly the same spot inside the seal of the Plaintiff.

49.Upon close examination of the signature and seal of the Plaintiff endorsed on pages B-077 with those on the first Application (pages B-082- 083), attachment to the second (pages B-086-87) and the third Application (page B-090), there are distinct identical features in the position of the signature inside the seal.  The similarities of the positions of the signature inside the seal appeared to be more than just coincidental.  I am persuaded that it would be very hard even for Madam Li herself to attempt to reproduce an exact identical signature inside the seal of the Plaintiff. 

50.The Bank was apparently alerted sufficiently by Madam Li’s complaint on 10 July 2002 that when it received the third Application attaching a letter allegedly from the Standard Bank of South Africa on 21^st July 2002 for the Plaintiff’s account statements, Messrs. Ma and Wu decided to telephone Madam Li to verify the request.  On 29^th July 2002, Madam Li was again contacted by Mr. Ma and Mr. Wu when the Bank received the third Application (page B-090) requesting a further transfer of funds to the same beneficiary account as the first Application (the Banco Mercantil ℯ de Investimentos in Mozambique).  There was no doubt by that stage that the Bank had good reasons to suspect the first, second and third Applications were forged and were not authorized by the Plaintiff. 

51.I accept without hesitation the three applications were forged by the same person or persons who had access to one of the Bank’s copy of the Plaintiff’s application of 7 June 2002 (page B-077).  Since no one outside the Bank would have access to a copy of the Plaintiff’s 7 June 2002 fax application received by the Bank, and as the Bank had retained four copies of each application upon receipt of the fax application, it would not be difficult for a staff at the Bank to access a copy of the Plaintiff’s 7 June 2002 application and to further duplicate it.

The “reasonableness” test under the Control of Exemption Clauses Ordinance Cap. 71

52.The Defendant claims it is under no duty to enquire into the authenticity of the application and the instruction letter.  Furthermore, as there were no unusual feature in the application and the instruction letter, the Defendant had no duty to make enquiries and to further verify the Plaintiff’s signature on the said document.  The Defendant claims that even if it had a duty to make enquiry into the authenticity of the application and instruction letter, the Defendant had already exercised such care and skill and was reasonable in the circumstances.  The Defendant seeks protection under clauses 2 and 3 of the Mandate signed by the Plaintiff.

53.The Plaintiff denied the Mandate formed part of the contract between the Plaintiff and the Defendant; and claims that in any event, clauses 2 and 3 of the Mandate did not satisfy the requirement of the reasonableness test under the Control of Exemption Clauses Ordinance Cap. 71. 

54.Section 3 of the Control of Exemption Clauses Ordinance provided:

“3.  The “reasonableness” test

(1) In relation to a contract term, the requirement of reasonableness for the purposes of this Ordinance and section 4 of the Misrepresentation Ordinance (Cap. 284) is satisfied only if the court or arbitrator determines that the term was a fair and reasonable one to be included having regard to the circumstances which were, or ought reasonably to have been, known to or in the contemplation of the parties when the contract was made.

(4) In determining for the purposes of section 11 or 12 whether a contract term satisfies the requirement of reasonableness, the court or arbitrator shall have regard in particular to the matters specified in Schedule 2; but this subsection does not prevent the court or arbitrator from holding, in accordance with any rule of law, that a term which purports to exclude or restrict any relevant liability is not a term of the contract.”

Further, under sections 7(2) & (3) and 8 of the Ordinance:

“7. Negligence Liability

(2) In the case of other loss or damage, a person cannot so exclude or restrict his liability for negligence except in so far as the term or notice satisfies the requirement of reasonableness.

(3) Where a contract term or notice purports to exclude or restrict liability for negligence a person’s agreement to or awareness of it is not of itself to be taken as indicating his voluntary acceptance of any risk.”

“8. Liability arising in contract

(1) This section applies as between contracting parties where one of them deals as consumer or on the other’s written standard terms of business. 

(2) As against that party, the other cannot by reference to any contract term –

(a) when himself in breach of contract, exclude or restrict any liability of his in respect of the breach; or

(b) claim to be entitled –

i. to render a contractual performance substantially different from that which was reasonably expected of him; or

ii. in respect of the whole or any part of his contractual obligation, to render no performance at all,

except in so far as (in any of the cases mentioned above in this subsection) the contract term satisfies the requirement of reasonableness.”

55.“Negligence” is defined in Section 2 of the Ordinance to mean

“the breach-

(a)  of any obligation, arising from the express or implied terms of a contract, to take reasonable care or exercise reasonable skill in the performance of the contract;

(b) of any common law duty to take reasonable care or exercise reasonable skill (but not any strict duty);

(c) of the common duty of care imposed by the Occupied Liabilities Ordinance.”

56.Schedule 2 of the Ordinance sets out the ‘“Guidelines” for Application of Reasonableness Test’ as follows:

“The matters to which the court or arbitrator shall have regard in particular for the purposes of sections 11(3) and 12(3) and (4) are any of the following which appear to be relevant –

(a) the strength of the bargaining positions of the parties relative to each other, taking into account (among other things) alternative means by which the customer’s requirements could have been met;

(b) whether the customer received an inducement to agree to the term, or in accepting it had an opportunity of entering into a similar contract with other persons, but without having to accept a similar term;

(c) whether the customer knew or ought reasonably to have known of the existence and extent of the term (having regard, among other things, to any custom of the trade and any previous course of dealing between the parties);

(d) where the term excludes or restricts any relevant liability if some condition is not complied with, whether it was reasonable at the time of the contract to expect that compliance with that condition would be practicable;

(e) whether the goods were manufactured, processed or adapted to the special order of the customer.

Application of the Guidelines

56. The Plaintiff was located in South Africa and had the need to open an account in Hong Kong to conduct her business in China, Europe and South Africa. Understandably, Madam Li preferred to use a bank which would be able to communicate with her in Chinese and talk to her in Putonghua (Mandarin); she was introduced to Mr. Chang of the Hong Kong branch by Mr. Hu of the Johannesburg branch with whom she had established a good business relationship in Johannesburg.  On that basis, the Plaintiff applied to open an account at the Defendant’s Hong Kong branch in 2000.

60.It was apparent to both Madam Li and Mr. Chang that with the Plaintiff in South Africa, instructions from the Plaintiff to the Bank had to be executed either by post or by other forms of communications such as the telephone and facsimile transmission.  It is hardly likely or reasonable to expect Madam Li to fly to Hong Kong on each occasion to present an instruction in person.  Even if instructions were to be channelled through the Johannesburg branch of the Defendant, the instructions would have to be forwarded either by post, fax or internal telecommunication.  Therefore, even though Mr. Chang might well have informed Madam Li she had the option of presenting the Plaintiff’s instructions in person, it was clearly not a reasonable or viable option opened to the Plaintiff.  As ordinary postal communications between South Africa to Hong Kong would take two weeks, it would therefore not be a viable option for the Plaintiff to make an application of transfer or forward remittance to the Bank by post.  It is obvious that transmission by facsimile of instructions from the Plaintiff would be the most effective and efficient option to be followed by telephone confirmation between the Plaintiff and the Bank’s officers.  Given that the Plaintiff‘s choice is limited, the best possible and efficient option is for the Bank to verify the instructions by telephone.

61.In spite of the Defendant’s claim that Madam Li had signed and faxed back to the Bank a copy of the Mandate with the terms and conditions attached indicating the Plaintiff’s acceptance of the terms, a substantial sum of money had been deposited into the Plaintiff’s bank account by then. Furthermore, the Plaintiff had already executed the two ‘Applications for Outward Remittance or Exchange’ dated 19^th June 2001 before Madam Li signed and faxed the Mandate back and received the Bank on 21 June 2001.  In the mean time, Madam Li had made sure that she would telephone Mr. Chang and his colleagues to confirm her instructions; she also had expected the Bank to contact her upon receipt of the facsimile transmissions of all instructions before execution by the Bank on each of occasion.

62.It was therefore under such an understanding the Plaintiff had conducted its affairs with the Bank. The Plaintiff was in a weak bargaining position having to deal with the Bank thousands of miles away and the Bank was fully aware of it.  The Bank was further aware that Madam Li had chosen to open an account with the Hong Kong branch of the Defendant for language reasons.  It was her practice to maintain regular telephone contact with Mr Chang and his staff speaking in Putonghua particularly before and after an instruction or application for transfer was faxed to the Bank.  Hence, this formed the previous course of dealing between the Bank and the Plaintiff.  However, in the first Application, the Bank failed to contact the Plaintiff for confirmation or verification, contrary to the previous course of practice. 

63.Applying the guidelines to reasonableness test, I find the Bank had failed to explain to the Plaintiff the terms of the Mandate and make sure Madam Li had fully understood the extent of the terms before she was asked to sign the document.  Even if the terms of the Mandate was brought to Madam Li’s notice upon the receipt of the fax copy of the Mandate, I accept that she did not take much notice of them because her 19^th June 2001 instructions had by then been executed by the Bank.  Furthermore, I also accept that the Plaintiff’s and the Bank’s previous course of dealing was for the Bank to confirm the Plaintiff’s fax instructions by telephone before execution. On the aforesaid basis, I find the exemption clauses under clauses 2 and 3 of the Mandate would only be reasonable if the Bank would confirm and verify with the Plaintiff upon receipt of each application and instruction due to the particular circumstances of the Plaintiff and due to the usual course of dealing between the Plaintiff and the Bank.

64.In coming to this conclusion, I have taken particular consideration of Section 3(4) of the Control of Exemption Clauses Ordinance that provides:

“(4) In determining (under this Ordinance or the Misrepresentation Ordinance (Cap. 284)) whether a contract term or notice satisfies the requirement of reasonableness, the court or arbitrator shall have regard in particular (but without prejudice to subsection (2) to whether (and, if so, to what extent) the language in which the term or notice is expressed is a language understood by the person as against whom another person seeks to rely upon the term or notice.”

65.I accept Madam Li’s evidence that her understanding and knowledge of the use of English in 2001 was limited.  She admitted she had the assistance of a South African secretary who would handle the day-to-day correspondences and communications in English.  At home, she had to seek the assistance of her husband.  When she received the Mandate printed in English on 20^th June 2001, she did not fully understand the terms expressed in English before she signed and faxed back to the Bank.

66.I further find that even if she did accept the terms on the Mandate by signing on the Mandate, it was on the understanding that the Bank would communicate with her on each and every instruction by fax transmission involving the Plaintiff’s and her accounts before execution.

Exercise of Reasonable Care and Skill

67.According to the evidence of the Bank officers, Mr. Ma and Mr. Chan, who were working under Mr. Chang at the relevant period between June 2001 and June 2002, both claimed that the Bank had no policy of calling up customers whenever the Bank received a facsimile transmission instruction unless the amount involved was over a certain limit.  However, after the incident involving the Plaintiff, there is now in place a policy to call up the Bank’s clients regardless of the amount on the fax instructions.

68.Mr. Chang claimed it was only in cases where the details of the requested transaction were unclear or ambiguous that the handling officer of the Bank would seek to confirm or verify with the Plaintiff by fax or by phone.  His evidence is contrary to the evidence of Madam Li.

69.I am satisfied after observing Madam Li’s demeanour and considering her evidence that she is an honest witness who is and was extremely concerned about her business.  I find she was a careful and prudent businesswomen who would look after all of the Plaintiff’s transactions including money transferred out of the Plaintiff’s account at the Bank.  I accept that she did communicate with Mr. Chang and his staff on a regular basis between June 2001 and June 2002.

70.Mr. Chan, Counsel for the Defendant, submitted on the law on the relationship between the bank and its customers.  He relied on the case of Barclays Bank plc v Quincecare Ltd. and another [1992] 4 All ER 363 where Steyn J held that the relationship between a banker and a customer quoad the drawing and payment of the customer’s cheques against the money of the customer in the banker’s hands was that of principal and agent; and as an agent the bank owed fiduciary duties to the customer and prima facie was also bound to exercise reasonable care and skill in carrying out the instructions of its principal.

71.Steyn J. held at page 376c of the report of the judgment:

“There is no logical or sensible reason for holding that bankers are immune from such an elementary obligation.  In my judgment it is an implied term of the contract between the bank and the customer that the bank will observe reasonable skill and care in and about executing the customer’s orders.”

At page 376 c he held:

“Given that the bank owes a legal duty to exercise reasonable care in and about executing a customer’s order to transfer money, it is nevertheless a duty which must generally speaking be subordinate to the bank’s other conflicting contractual duties.”

He held further at page 376 e:

“The critical question is: what lesser state of knowledge on the part of the bank will oblige the bank to make inquiries as to the legitimacy of the order? In judging where the line is to be drawn there are countervailing policy considerations.  The law should not impose too burdensome an obligation on bankers, which hampers the effective transacting of banking business unnecessarily.  On the other hand, the law should guard against the facilitation of fraud, and exact a reasonable standard of care in order to combat fraud and to protect bank customers and innocent third parties.  To hold that a bank is only liable when it has displayed a lack of probity would be much too restrictive an approach.  On the other hand, to impose liability whenever speculation might suggest dishonesty would impose wholly impractical standards on bankers.

Having stated what appears to me to be the governing principle, it may be useful to consider briefly how one should approach the problem.  Everything will no doubt depend on the particular facts of each case.  Factors such as the standing of the corporate customer, the bank’s knowledge of the signatory, the amount involved, the need for a prompt transfer, the presence of unusual features, and the scope and means for making reasonable inquiries may be relevant.”

72.In the Barclays Bank case, the bank sued the guarantor UniChem Ltd. and the first defendant company incorporated by one Mr. Harry Stiller for the return of the fixed term loan of £400,000.  Mr. Stiller requested the bank to transfer funds to an unknowing firm of solicitors, he then instructed the solicitors to transfer money to the United States where he absconded misappropriating the money.  The first defendant company contended in its defence that the bank had acted in breach of implied duty of care in the customer/banker’s relationship because the circumstances of the transfer had been such that they would have raised questions in the mind of a reasonable banker and the banker would put under detail of enquiry, failing which duty, the bank was negligent.  Steyn J. found on the facts that the basis of the banker/customer relationship had to be trust rather than distrust; there was nothing in the history of the loan transaction which should have put the bank on enquiry as to Mr. Stiller’s dishonesty.

73.In the present case, Mr. Chan argued that the amount involved in the first application was not substantial compared to the Plaintiff’s previous transfers before 17^th June 2002.  Furthermore, the application and instruction letter of 17^th June 2002 requested urgent processing of the instruction.  The Bank found no unusual features in the application or the instruction letter of 16^th June 2002 because it was apparent to the officers of the Bank the signature on the first application and the letter had been verified against the signature specimen card.  That there may be distortions to the signature and seal due to facsimile transmission and it was unreasonable to require an ordinary bank staff to possess the skill of a signature expert.  Mr. Chan further submitted that the Bank was not to make enquiries every time a slight discrepancy appeared on the signature on the document of instruction from its clients, it would not be conducive to the smooth running and efficiency in the competitive commercial world.  The Defendant claimed that Messrs. Ma and Chan had adopted a careful procedure in verifying the fax instruction.

74.Mr. Ma admitted that he had never had the occasion of explaining the terms and conditions on the Mandate or those on the revise side of the ‘Application for Outward Remittance or Exchange’ form to any of the Bank’s clients unless the particular client requested it. This reflected the attitude adopted by the Bank’s officers.

76.The Bank claims it had followed the proper procedure adopted by the Bank at the time when it processed the first Application.  The procedure involved its officer, Miss Chan, to verify the signature on the application against the client’s signature card.  She then initialled in the box under ‘SV’ on the document.  After checking the particulars on the application form, she input the information on the application into the computer, after which a SWIFT (Standard Wire International Fund Transfer) code appeared on the computer.  The application form was then passed to Mr. Ma who checked and approved the instruction before passing it on to Mr. Chan and Mr. Wu for further verification and approval.  Upon approval by Mr. Chan and Mr. Wu the transaction was executed.

77.Mr. Ma admitted that he did not verify the signature and seal on the first Application because he did not consider there were any unusual features in the transaction.

78.According to the evidence of Mr. Chang, prior to 7^th June 2002 before he left the Bank, either Mr. Wu of the Trade Finance Department or Mr. Chang himself would be responsible for the final approval of the Plaintiff’s applications.  He would verify the details of the requested transaction and check the information on the document to confirm if the information tallied with the details on the Plaintiff’s application.  Mr. Wu or Mr. Chang would then further verify the signature on the Plaintiff’s application in case there were any unusual features in the Plaintiff’s application or if the signature verifying officer or Mr. Ma had any doubt of the signature.

79.It is apparent that Mr. Chang’s evidence on the practice of the Bank differed somewhat from the practice adopted by Mr. Ma and Mr. Chan.  Both of them claimed that since Miss Chan had verified the signature, they did not further verify the signature and the seal because there were no unusual features with the transaction.  What their evidence meant was, after Miss Chan, the signature verifying officer, verified the signature and seal by comparing the signature and seal on the signature card with that on the application form, neither Mr. Ma nor Mr. Chan would check the signature and seal again; they would only check the other information on the application before passing it on to either Mr. Wu or Mr. Chang.  Mr. Wu or Mr. Chang would not further verify or check the signature again unless Mr. Ma or Miss Chan had identified any unusual features in the application.  Therefore, the only verification of the signature of the applicant on the application form was done by the signature verifying officer, in spite of the Bank’s procedure requiring a senior officer in the position of Mr. Chang or Mr. Wu to give the final approval, they had left this job to the Bank’s junior officers because the senior management would not conduct any further verification unless unusual features were brought to their attention.  The same attitude was adopted by Mr. Ma and Mr. Chan, as a result, the only verification of signature and seal on the application fell onto the shoulders of one person at the Bank, that of Miss Chan.

80.The aforesaid procedure may be acceptable if the matter was handled carefully and one of the senior officers of the Bank had called up Madam Li to verify the contents on the application, as was the practice before Mr Chang’s departure. Unfortunately, with Mr. Chang’s departure in mid-June 2002, this practice stopped.

81.Adopting the approach of Steyn J. in the Barclays Bank case, in order to find out if the Bank had been negligent, I took into my consideration the action taken by the Bank in approving the first Application.  I am satisfied that Madam Li had conducted regular telephone conversations with Mr. Chang of the Bank between June 2001 and early June 2002 on the Plaintiff’s transactions at the Bank.   I accept Mr. Chang had personally handled her enquiries though he might have from time to time delegated the details of the enquiries to his staff, Miss Lee and Miss Tam.  Unfortunately, Mr. Chang, who was the officer who had a personal knowledge of the Plaintiff’s account at the Bank including details of the standing of the Plaintiff as a corporate customer, the signatories on the Plaintiff’s account, the amount of money transmitted in the past, the usual form of instructions and letters adopted by the Plaintiff etc., had left Hong Kong for Taiwan in mid June 2002.  This knowledge acquired from regular handling of the customer’s account that would have enabled the officer to spot any unusual features on the customer’s applications and to decide if and when reasonable enquiries should be made.   The particular knowledge on the Plaintiff’s account seemed to have disappeared with the departure of Mr. Chang.  What Messrs. Ma, Chan and Wu did in the first Application was probably the same as before except for the most crucial part of the practice when Mr. Chang, if he were still at the Bank, would have taken the precaution of confirming with Madam Li by telephone before approving the transfer.  Although the amount of the transfer in the first Application could not be said to be the largest amount ever transferred out of the Plaintiff’s account, without the knowledge of the Plaintiff’s business and its usual course of practice, the other officers of the Bank failed to take reasonable precaution of verifying and confirming with Madam Li before approving the first Application. Consequently, the Bank had failed in its duty to protect the interests of its customer.

Conclusion

82.I am satisfied that Madam Li had trusted Mr. Chang as a senior officer of the Bank.  This trust was built from her regular dealings and telephone communications with Mr. Chang and the assistance from his supporting staff.  It was reasonable for Madam Li to expect the Bank to telephone her for confirmation whenever it received an ‘Application for Outward Transfer’ relying on the Bank’s previous practice in its handling of the said accounts.  On each and every occasion of an application of transfer, it was Madam Li’s practice to send with it a covering letter written on the Plaintiff’s letterhead paper and signing it, describing herself as “Na Li, sole owner and signatory” (page B-075 and B-078).  Even in her letter to Miss Tam written in Chinese (page B-062) she had described herself as “the sole owner of Oriental Pearl South Africa Projects CC”.  The covering letter (page B-082) of the first Application (page B-083) was not written on the usual letterhead paper of the Plaintiff; neither did the covering letter bear the description of the signatory ‘Na Li’ nor the description ‘the sole owner and signatory’.  A further unusual feature that appeared on these two documents that the Bank’s officers failed to identify was the position of the signature inside the company seal which appeared to be at the exact location within the seal.  These were the unusual features that the Defendant should have spotted and queries should have been raised. 

83.The Bank owes its customers a duty to exercise reasonable care in and about executing the customer’s orders in the transfer of money.  I am satisfied that the Bank was negligent and had failed to discharge that duty.  The Defendant cannot find shelter in clauses 2 and 3 of the Mandate and deny it was liable.

84.In my judgment, the Defendant had further failed to follow the Bank’s own procedure in the handling of its customer’s complaint in that it had failed to inform Madam Li that she should contact the Bank’s officer in charge of complaints to process her complaint and the Bank further failed to conduct a full investigation of the wrongful transfer of funds from an innocent customer’s account.  More importantly, it failed to trace the wrongly transferred sum as soon as it discovered the signature on the first Application could have been forged.  Instead, the Bank not only failed to report the matter to the Hong Kong Police, but it also refused to lodge a police report.  As a result, Madam Li had to fly to Hong Kong to lodge a complaint to the Monetary Authority and file a report with the Hong Kong Police because the Bank refused to make any attempt to trace the money back for its customer. 

85.The evidence showed the Bank had only conducted an internal investigation as to its internal procedure.  The purpose of the internal investigation was not to assist Madam Li to get her money back, even though it was plain to the Bank by the latter part of July 2002 that Madam Li was a victim who had nothing to do with the forged first Application.  By the time the Bank received the request for the Plaintiff’s bank account statements and later on the third Application, it must have been quite plain to the Bank that someone had forged the Plaintiff’s signature and seal to obtain a transfer from the Plaintiff’s account.  The Defendant could have made enquiries from the Bank Belgolaise in Brussels or from the beneficiary bank Banco Mercantil ℯ de Investimentos in Mozambique to stop the transfer or locate the person who had received the money.  But it failed to make any such attempts.

86.I am left in no doubt that the Defendant had failed to exercise reasonable care to protect the interests of its customer, the Plaintiff.  I give judgment to the Plaintiff and make the following orders:

(a) A declaration that the Plaintiff has wrongfully debited the Plaintiff’s account in the sum of US$32,634.58;

(b) The Defendant shall pay to the Plaintiff damages incurred including

(i)	air-tickets between Hong Kong and Johannesburg on three occasions at the cost of US$1,920.82 each, totalling	US$5,762.46;
(ii)	accommodation in Hong Kong and telephone charges	US$4,553.64.
	Total	US$42,950.68.

Interests

87.Interest on the judgment sum at half judgment rate from the date of wrongful debit, on the damages from the date of writ, to the date of judgment and thereafter at full judgment rate.

Costs

88.Costs to follow the event, the Defendant shall pay to the Plaintiff all costs incurred, to be taxed, if not agreed.  The order is made nisi to be made absolute should the parties failed to apply within two weeks for further direction.

The Plaintiff in person

Mr. Kenneth Chan, instructed by Messrs.Siao, Wen and Leung, for the Defendant