Lee Wai v. Pang Ka Ling
Read the full judgment text of DCCJ 363/2005 on BabelCite. This District Court judgment.
1. The plaintiff is claiming repayment of loans in the total sum of HK$341,428.00. The Defendant admitted receiving a total sum of HK$233,000.00 plus RMB12,000.00 from the plaintiff, but as gifts.
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DCCJ 363/2005 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CIVIL ACTION NO. 363 OF 2005 ------------------------ BETWEEN
------------------------ Coram: Deputy District Judge Anthony Chow in Court Dates of Hearing: 3rd and 4th October 2006 Date of Handing down of Judgment: 11th October 2006 ------------------------ JUDGMENT ------------------------ 1.The plaintiff is claiming repayment of loans in the total sum of HK$341,428.00. The Defendant admitted receiving a total sum of HK$233,000.00 plus RMB12,000.00 from the plaintiff, but as gifts. The Plaintiff’s Case: 2.The 74 years old plaintiff was a client of the defendant, an estate agent. 3.The Parties have known each other for about 8 years, and starting from early 2004, the parties met often and became more familiar. The parties became intimate and between June and August 2004, they had sexual intercourse 7 or 8 times. 4.In or around June or July 2004, the defendant represented to the plaintiff that she needed money to set up her own estate agency business and requested the plaintiff to lend her a sum of HK$340,000.00. 5.Upon the defendant’s promise to repay the loan, the plaintiff agreed to lend her the money. 6.The loan was advanced to the defendant on 3 occasions. First, in or about June or July 2004, the sum of HK$80,000.00 and RMB12,000.00, equivalent to HK$11,428.00. Second, on 18/8/2004, the sum of HK$100,000.00. Third, on 30/8/2004, the sum of HK$150,000.00. All of which were in cash with the last two advances, at the Hunghom branch of the Bank of Communication, immediately after the plaintiff withdrew the sum from his account. 7.After getting the money from the plaintiff, the defendant changed her attitude and denied having borrowed any money from the plaintiff. 8.The plaintiff now claims repayment of the loan, together with interest and costs. The Defendant’s case: 9.Between 1995 and 1996, the defendant first came to know the plaintiff when she was acting as his estate agent in the leasing of one of his properties. Later, the defendant discovered her sister and brother-in-law have known the plaintiff since 1993. 10.The plaintiff started to court the defendant, but the defendant was not interested. Later the defendant learned the plaintiff was married to a 24 year-old on the Mainland. 11.Even after the plaintiff’s marriage, the plaintiff continued to pursue the defendant, on one occasion asking her to go on an overseas tour with him, but the pursue was again rejected by the defendant. 12.The plaintiff purchased a property at Whampoa Estate, with the defendant acting as his estate agent. The plaintiff later told the defendant he purchased the property to be near the defendant’s work place, which was also located at Whampoa Estate. 13.In or about April 2004, the plaintiff told the defendant that his marriage was turning sour. His wife had taken HK$5,000,000.00 to invest in Mainland real estate, taken rent from the plaintiff’s property on the Mainland and taken out HK$8,000,000.00 worth of letters of credit in the name of the plaintiff’s company. 14.The plaintiff told the defendant he was going to divorce his wife and asked the defendant for a chance to court her. After his divorce, the plaintiff promised the defendant they would go on a trip to the United States and thereafter they would reside in Thailand, where the plaintiff owns several properties. 15.To show he was sincere, the plaintiff promised the defendant he would purchase a flat in Hong Kong as a gift to the defendant. Thereafter, whenever the plaintiff returned to Hong Kong from the Mainland, the parties would spend time together. The plaintiff would occasionally ask for sex, because the defendant did not believe in sex outside of marriage she refused. 16.In or about May 2004, the plaintiff told the defendant his wife had agreed to a divorce and asked the defendant to recommend a divorce lawyer to handle the legal matter. The defendant recommended the firm of Messrs. Paul W. Tse & Co. 17.The parties had tea in the Hong Kong Gold Coast Hotel and the plaintiff asked for sex again. This time, because the plaintiff represented that his divorce was arranged, their marriage imminent and the defendant did not want to disappoint the plaintiff, she relented. 18.After sex, they went to view properties nearby on Pearl Island, with the plaintiff asking the defendant to select a flat for herself as the promised gift. The defendant thought the location too remote and the plaintiff told the defendant to find a suitable location and tell him about the details later. 19.To show the defendant he was sincere in marriage, the plaintiff left his bank passbook for safe keeping with the defendant. 20.In or about June 2004, the plaintiff gave HK$60,000.00, from rent he collected, to the defendant for her to deposit in her account. The defendant suggested they could use the money together and gave an ATM card, with access to her bank account, to the plaintiff. The plaintiff asked the defendant to changed the PIN number of the ATM card to 909909, to match the hotel room number they first had intimate relationship. 21.The plaintiff later suggested the defendant should use the money to purchase a diamond ring, but the defendant wanted to leave the money for the purchase of the flat. 22.The plaintiff told the defendant when he and his wife went to the solicitor’s office to sign the divorce documents, the wife wanted half of his assets and he did not want to do so before this wife repaid all of the debts taken out in his name. The plaintiff asked the defendant to be patient. 23.The plaintiff also asked the defendant to quit her job and the plaintiff would support her financially to set up her own estate agency business, because he considered her his fiancee. 24.In or about late July 2004, the defendant overheard the plaintiff’s wife telling him she was pregnant. The defendant was ferocious with the plaintiff for courting her while still intimate with his wife. 25.The plaintiff promised he would get a divorce immediately. In the meantime, the plaintiff gave the defendant HK$3,000.00 and RMB12,000.00, so that she could take a trip with her son and for the defendant’s use in her estate agency. 26.During this period, the plaintiff asked for sex, but the defendant refused. 27.On 18/8/2004, the plaintiff withdrew HK$100,000.00 from his Bank of Communication account and gave $20,000.00 to the defendant. The balance the plaintiff used to purchase parts for his automotive repair business on the Mainland. On 30/8/2004, the plaintiff withdrew a further HK$150,000.00 and gave them to the defendant. Both payments were given to the defendant as gifts, for use in the defendant’s business and for purchase of a flat. The plaintiff also promised to give the defendant more money later to purchase a flat in Tseung Keung O. 28.Because the defendant continued to refuse the plaintiff’s request for sex until they were married, their relationship turned sour. 29.In or about September 2004, the plaintiff called and asked for a loan of HK$100,000.00 to help a friend to purchase a flat in Sham Shui Po. The friend turned out to be Ms. Chor Ching Yee (a.k.a. Chor Yuen Yi, the Defendant’s witness), who had a history of affairs with the plaintiff. 30.The defendant felt deceived and broke up with the plaintiff. The defendant denied there was any loan arrangement between the parties and stated that all money was given to her as gifts. Preliminary Application: 31.Prior to commencement of trial, Mr. Chow, solicitor for the plaintiff, applied to have the defendant open its case first. Mr. Chow submitted since the defendant had admitted receiving money from the plaintiff, the English case of Seldon v. Davidson [1968] 2 All E.R. 755 CA, states that since the burden of proving the property transferred was a gift lies in the donee, the defendant ought to begin its case first. 32.The defendant in Seldon v. Davidson admitted receiving all of the money claimed by the plaintiff, accordingly, the plaintiff did not have to proof payment; here the defendant only admitted receiving a part of the alleged loan money. The plaintiff still had the burden of proving he paid the defendant the balance. 33.In view of the fact that the plaintiff still had the burden of proving payment in part of his claim, if Mr. Chow insisted on having the defendant start their case first, the trial must be split into two parts. When Mr. Chow could not give me a practical alternative to a split trial, he wisely withdrew his application. Relevant law: 34.In Halsbury’s Laws of England, Fourth Edition, Vol. 20(1), page 3, the learned authors stated the requirements of a gift inter vivo as follows:
35.Accordingly, there are only two requirements for a gift: intention of the donor and receipt by the donee. Issues: 36.There was no allegation on lack of capacity and the property involved was cash, therefore no resulting trust or presumption of advancement could arise. Accordingly, there are only 2 factual issues in this matter: First, did the defendant received a total sum of HK$341,428.00, as alleged by the plaintiff or HK$244,428.00, as alleged by the defendant? Second, at the time, did the plaintiff intend these sums as gifts to the defendant? Analysis: 37.I will deal with the evidence of Ms. Chor first. Under cross examination, Ms. Chor admitted all the information deposed in her witness statement came from the plaintiff, after he tried to collect the alleged loan from the defendant and failed. Ms. Chor’s evidence was therefore hearsay. Although hearsay evidence is admissible, the fact that at the time the plaintiff told his story to Ms. Chor he was already formulating his claim against the defendant, has rendered Ms. Chor’s statement nothing more then a reiteration of the plaintiff’s own story. Ms. Chor’s evidence has no provitive value. 38.Additionally, in paragraph 6 of Ms. Chor’s statement, she stated:
39.Clearly, Ms. Chor’s motivation was revenge and for that reason, the truthfulness of her statement was also suspected. Accordingly, I placed no reliance on Ms. Chor’s evidence in my analysis of this matter. 40.There were no independent witness or documentary evidence, both issues can only be determined by the veracity of the parties’ testimonies. Accordingly, I will deal with both issues at the same time. 41.The first question that begged to be answered was: Why did the defendant, a not unattractive woman in her 40’s, agreed to sleep with the plaintiff, an old man in his 70’s? 42.The plaintiff testified that it was because the defendant had “needs”, which I guess he meant sexual desires. Mr. Chow added the sex was a lure to get a HK$340,000.00 loan from the plaintiff. 43.The problem with the plaintiff’s story was if the defendant wanted to satisfy her sexual desires, she would logically have chosen a younger man, not the plaintiff, an old man in his 70’s. The problem with Mr. Chow’s theory was according to the plaintiff’s case, the defendant asked for the loan after their first sexual encounter. If the defendant was using sex to get money from the plaintiff, one would expect her to withhold her favour until the money was in her hands. Granting her favour before even asking for money would have worked against her purpose. These theories simply did not make any sense. 44.On the other hand, the defendant’s story was it was the plaintiff’s promise of marriage and security that lured her into agreeing to have sex with the plaintiff. 45.Even the plaintiff testified that the defendant’s two prior relationships did not work out because in the first relationship, the man was married and refused to divorce his wife and in the second relationship, the man’s mother rejected the defendant (which could only have meant rejecting her as a wife for her son) because she was a divorcee. From the plaintiff’s own testimony, one could clearly see marriage and stability was foremost in the mind of the defendant. 46.A woman in the circumstance of the defendant desiring marriage and security was both logical and reasonable. Compared with the plaintiff’s story, the defendant’s story made much better sense. 47.Another question that must be answered was: Why did the plaintiff agreed to hand over the equivalent of HK$341,428.00 to the defendant? 48.The plaintiff’s story was the defendant used sex to lure the plaintiff into trusting her. The plaintiff requested the defendant to give him a written acknowledgement to document the loan. The defendant agreed but kept delaying, because he trusted the defendant, the plaintiff gave the money to the defendant even though she has not yet given him the written acknowledgement. 49.When asked by Mr. Cheung, counsel for the defendant, why did he only advance HK$100,000.00 to the defendant on 18/8/2004, when his bank account clearly showed on that day, he had sufficient funds to advance all of the balance of the alleged loan. The plaintiff replied he did not trust the defendant and was hoping she would not need the other HK$150,000.00. 50.Did he trust or distrust the defendant? The plaintiff’s testimony was clearly conflicting. 51.There were other abnormalities in the plaintiff’s story as well. First, why did the plaintiff visit the offices of Messrs. Paul W. Tse & Co. with his wife? Second, how did the defendant come into possession copy of the plaintiff’s marriage certificate and his wife’s HKID card? Third, how did the defendant come into possession of the plaintiff’s original bankbook? 52.Under cross-examination, the plaintiff admitted he visited the offices of Messrs. Paul W. Tse & Co. with his wife. When asked why, the plaintiff simply said the defendant arranged it and he wanted to visit a solicitor’s office. Yet, the plaintiff admitted he has been to many other solicitors’ firms in the past due to his numerous real estate dealings. There was nothing special about Messrs. Paul W. Tse & Co.’s office and there was certainly no need to visit it with his wife. 53.As to the copy marriage certificate and HKID card of his wife, the plaintiff simply said the defendant had keys to his flat and must have stolen these documents. The problem with this story was the defendant could not possibly derive any benefit from taking a copy of the plaintiff’s marriage certificate and his wife’s HKID card. 54.As to the original bankbook, the plaintiff testified that he kept the bankbook with his wallet at all times and could not explain how it ended up in the defendant’s possession. 55.The defendant stated it was the plaintiff who told her his wife used to steal money from him and gave the defendant his bankbook for safe keeping. 56.The plaintiff also said he could no longer live with his wife, promised her a quick divorce and immediate marriage to lure her into having sex. 57.After their first sexual encounter, the plaintiff promised to purchase a flat as a gift to the defendant. Soon after, the plaintiff gave her HK$60,000.00 to purchase a ring to re-enforce his promise of marriage. After the defendant found out the plaintiff’s wife was pregnant, the plaintiff gave her HK$3,000.00 for a trip and RMB12,000.00, as expenses for her estate agency business. Later, when the defendant pressed for the divorce, the plaintiff gave her more money as part fulfilment of his promised gift of a flat. 58.It was the plaintiff who gave her a copy of his marriage certificate and his wife’s HKID card to arrange a lawyer to prepare the divorce documents, but when the plaintiff arrived at the office of Messrs. Paul W. Tse & Co., the wife wanted half of the plaintiff’s assets as condition for the divorce, the plaintiff backed out from the divorce. 59.Here we have two versions of events. In the plaintiff’s version, the 74 years old plaintiff, who is married to a 24 year-old woman, alleged the defendant was a sexually driven woman, who used sex into luring him to give her a loan. In the defendant’s version, it was the plaintiff who used the promise of marriage and security in the form of a flat as gift to lure her into having sex. Of the two versions, I prefer the defendant’s, it simply was more logical and reasonable. 60.Having carefully considered the evidence and the testimonies of the parties, I accept the defendant’s version of event. I find as a matter of fact the defendant only received a total sum of HK$244,428.00 from the plaintiff and at the time the plaintiff intended these sums as gifts. Order: 61.Claim is dismissed. 62.Costs to the defendant, to be taxed if not agreed.
Representation: Mr. Chow Sik Lun, of Messrs Leung, Chan & Pang, for the Plaintiff Mr. Ivan Cheung, instructed by Messrs Tam, Pun & Yipp, for the Defendant |