馬遼沙 v. 黃建新及另二人
Read the full judgment text of DCCJ 263/2006 on BabelCite. This District Court judgment.
1. Since 1991 the Plaintiff (“ Ma ”) carried on construction site sub-contracting business as main contractor dealing in high value construction contracts and contract documentation (eg quotations/tenders, contracts and invoices).
Cites 2 cases
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DCCJ263/2006 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CIVIL ACTION NO. 263 OF 2006 ------------------------ BETWEEN
------------------------ Coram : Her Honour District Judge Marlene Ng in Court Dates of Hearing : 9th, 10th and 23rd July 2007 Date of Handing Down Judgment : 31st October 2007
------------------------ JUDGMENT ------------------------ I. Introduction 1.Since 1991 the Plaintiff (“Ma”) carried on construction site sub-contracting business as main contractor dealing in high value construction contracts and contract documentation (eg quotations/tenders, contracts and invoices). 2.In 1998, Ma came to know the 2nd Defendant (“Wong Jr”), a structural engineer, when they worked together at a construction site at Tai Ping Road (“TPR Site”). Afterwards they continued to work together at other construction sites, and kept in contact until Wong Jr left Hong Kong and disappeared in/about April 2002. 3.The 1st Defendant (“Wong Sr”) is Wong Jr’s father. All along he lived at the cockloft above the ground floor garage at No.22 Ho Man Tin Street, Kowloon (“Cockloft”) with his wife 錢秀月 (“Wife”), daughter 黃輝安 (“Daughter”) and mother-in-law Koo Lan Ching (“Koo”). Wong Jr no longer lived there after he got married. Wong Sr did not dispute that Wong Jr left Hong Kong and disappeared in/about April 2002. 4.Since 1969 the Cockloft was rented by Koo’s husband. Wong Sr moved in with them in 1970 when he married the Wife. When Koo’s husband passed away, she became the tenant and paid the rent. The ground floor garage was initially used by the landlord and later let to an estate agency. 5.The present dispute arose out renovations to the Cockloft in/about 1999 (“Renovation”) by the 3rd Defendant (“Kou”). It was not until early 2002 (ie about two years after completion of the Renovation) when Ma came with Wong Jr to the Cockloft (“Home Visit”) that he met and spoke with Wong Sr for the first time. II. Ma’s claim 6.Ma claimed Kou chased Wong Sr for unpaid charges for the Renovation (“Charges”). In/about August 1999, Wong Jr on behalf of Wong Sr asked Ma for a loan of HK$150,000.00 to be paid directly to Kou for partial settlement of the Charges. Wong Jr offered to guarantee repayment of such loan. Although Ma and Wong Sr had no prior business/money dealings, out of loyalty (義氣) and helpful spirit (助人精神) Ma agreed to grant such loan to Wong Sr (“Alleged Loan” or “Alleged Loan Agreement”) and paid the money to Kou directly. 7.In 2001-2002, Ma chased Wong Jr and Wong Sr in vain for repayment of the Alleged Loan. During the Home Visit Wong Sr agreed to repay the Alleged Loan, but when Ma subsequently chased him he became evasive and eventually even changed his home telephone number (“Home Number”). After April 2002 Wong Jr could not be found, so Ma continued to chase Wong Sr. In the latter half of 2002, Ma engaged debt collection service to no avail. 8.In/about mid-2003, Wong Sr agreed to repay the Alleged Loan to Ma by monthly deposit of HK$4,000.00 into Ma’s bank account until full repayment (“Ma’s Agreement”). Between 2nd July 2003 and 4th May 2005, Wong Sr paid Ma a total sum of HK$95,000.00 by 24 instalments (“Paid Sum”), but failed to make further repayment. Ma claimed for the outstanding balance of the Alleged Loan in the sum of HK$55,000.00 and damages for breach of contract. III. Wong Sr’s defence and counterclaim 9.Wong Sr denied he borrowed any money from Ma or authorised Wong Jr to do so on his behalf. Since the latter half of 2002 debt collectors posted up or left dunning letters (“Dunning Letters”) at the Cockloft. In 2003 red paint was sprayed over the main entrance of the Cockloft (“Paint Spray Incident”). Wong Sr claimed that Ma authorised these activities with a view to persuade him to make payments. Wong Sr reported such incidents to the police, but feared for his and his family’s safety. In such circumstances, Wong Sr agreed under duress to make monthly deposits of HK$4,000.00 into Ma’s bank account up to a limit of HK$100,000.00 (“Wong Sr’s Agreement”). 10.Wong Sr agreed that between 2nd July 2003 and 4th May 2005 he paid the Paid Sum to Ma, but mistakenly thought he had paid HK$100,000.00. After 4th May 2005, Ma turned back on his word and wrongfully demanded further payment of HK$50,000.00 (now HK$55,000.00) accompanied by further nuisance from debt collectors. Wong Sr denied Ma’s claim and counterclaimed for restitution of monies he paid under duress. IV. Legal proceedings 11.In November 2005 Ma commenced legal proceedings in the Small Claims Tribunal against the Wife, Daughter and Kou for recovery of the outstanding balance of the Alleged Loan in the sum of HK$50,000.00 (“SCT Claim”). On 16th January 2006 (ie shortly after the first hearing on 11th January 2006), Ma wholly discontinued the SCT Claim against all defendants. On the same day, he commenced the present proceedings against Wong Sr, Wong Jr and Kou. 12.On 24th February 2006, Ma’s claim against Kou was struck out. On 28th March 2007, Ma wholly discontinued his claim against Wong Jr. I am only concerned with Ma’s claim against Wong Sr and Wong Sr’s defence and counterclaim against Ma. 13.Save for Ma’s challenge to the authenticity of two faxes respectively dated 16th and 18th September 2003 (“16/9/03 and 18/9/03 Faxes” or collectively “Disputed Faxes”), the documents in the trial bundle were agreed as to admissibility and authenticity. 14.Ma, Wong Sr and Koo gave evidence. Ma intended to call Kou as his witness, but Mr Wong, counsel for Ma, informed the court that Ma’s solicitors were unable to serve the witness subpoena on Kou. However, it transpired from Ma’s evidence that after he gave the Alleged Loan to and thereby came to know Kou, they became such good friends thathe introduced Kou to work on decoration projects in Macau. Ma also confirmed “[Ma]家下都有同[Kou]來往” up to the time of trial. He even saw Kou a few days before trial at a MTR station. 15.Such evidence does not sit well with the suggestion of being “unable” to serve the witness subpoena on Kou. Although Ma said he maintained contact with Kou, there is no evidence he invited Kou to clarify the Renovation, Charges, Cheque (see below) and his dealings with Wong Sr (if any), or to give evidence on these matters. One is left to wonder (as Mr Chan, solicitor for Wong Sr, did) whether such “inability” to serve the witness subpoena was in fact an election not to have Kou testify so that adverse inferences might be drawn (see Ip Man Shan Henry v Ching Hing Construction Co Ltd (No 2) [2003] 1 HKC 256, 307). However, in coming to my decision below, it is unnecessary for me to draw adverse inferences from the omission to call Kou to testify. 16.In assessing witnesses’ credibility, the court should consider the totality of their evidence against the documentary evidence, inferences based on inherent improbabilities and/or undisputed facts (see the principles set out by Chung J at paragraph 12 of Star Glory Investment Ltd v Kai Tua (H.K.) Technology Ltd & ors HCA3523/2002 (unreported, 13th August 2005)). 17.In my view, Ma was not honest or reliable. His evidence was unimpressive and in some respects unbelievable when viewed against undisputed document(s). I have come to the unhappy conclusion that Ma made up some aspects of his evidence, which immediately casts doubt on his overall credibility. He gave the distinct impression of being prepared to go to any length to recover the Alleged Loan irrespective of the propriety of his assertions. 18.On the other hand, even though I am ultimately not with Wong Sr on his counterclaim, I find he gave clear and straightforward evidence in respect of the events that happened. Although he must have been aggrieved by Wong Jr’s prodigal behaviour that put him and his family in the present jeopardy and disconcerted by the demands by Ma and the debt collectors, his fortitude that was so eloquent in his demeanour and testimony gave his evidence on factual events a ring of truth. As for Koo, who was almost 90 years old at the time of trial, her evidence on the various incidents she personally experienced is plainly honest and truthful. V. Issues 19.The issues are as follows :
VI. Renovation 20.I accept that in/about 1999 Wong Jr proposed to renovate the Cockloft (which was not Wong Sr’s idea) and made arrangements with Kou (with whom he was familiar) for carrying out the Renovation. I further accept Wong Sr did not discuss the Renovation or Charges with Kou because (and Kou knew) Wong Jr rather than Wong Sr was responsible for the Renovation and Charges. This was supported by the Defence Kou filed in the SCT Claim (“Kou Defence”) as follows :
21.By the Kou Defence, Kou admitted inter alia (a) he came to know Wong Jr in 1997, (b) Wong Jr asked him to carry out the Renovation, and (c) he chased Wong Jr for payment of the Charges, but there was no suggestion that Wong Jr acted on behalf of Wong Sr. I find on balance that Wong Jr was the contracting party for the Renovation. VII. Alleged Loan Agreement 22.On 2nd September 1999 Ma deposited HK$50,000.00 in cash into Kou’s bank account (“1st Payment”). On 8th May 2000, Ma gave a cheque in the sum of HK$100,000.00 to Kou (“2nd Payment”). (a) Ma’s case 23.Ma claimed that in/about August 1999 Wong Jr told him (a) despite Kou’s efforts to chase Wong Sr, Kou did not have sufficient funds to pay the Charges for the completed Renovation, and (b) Wong Sr would like to borrow the Alleged Loan for partial settlement of the Charges, and (c) Wong Jr would guarantee repayment. 24.Ma further claimed Wong Sr requested the Alleged Loan through Wong Jr because he was not acquainted with Ma. Ma believed Wong Sr was the true borrower because (a) he trusted Wong Jr who worked as an engineer at the TPR Site for a substantial company, (b) Wong Jr told Ma he lived at the Cockloft with Wong Sr and family, (c) Wong Sr by living at the Cockloft had benefit/use of the Renovation, and (d) Wong Jr had previously brought Ma to the ground floor vicinity of No.22 Ho Man Tin Street, Kowloon, which was about 10-15 minutes’ walk away from the TPR Site. 25.Ma agreed to lend the Alleged Loan to Wong Sr for partial settlement of the Charges payable to Kou on the following terms : (a) the Alleged Loan would be paid to Kou directly, (b) Wong Sr must repay the Alleged Loan before Chinese New Year in 2002, and (c) Wong Jr must guarantee repayment of the Alleged Loan. Wong Jr agreed to the above terms on his own and on Wong Sr’s behalf. 26.Pursuant to the Alleged Loan Agreement, Ma paid the Alleged Loan to Kou for partial settlement of the Charges. When Ma made the 1st Payment, he telephoned to ask Kou about the Renovation works and the amount owed by Wong Sr. Kou did not give any direct reply. In respect of the 2nd Payment, Ma drove to North Point to give the cheque to Kou in person. This was the first time he met Kou. (b) Wong Sr’s case 27.Wong Sr claimed he did not authorise Wong Jr to liaise with Kou in respect of the Renovation and Charges on his behalf. In 1999-2000, he was unaware (and Wong Jr did not tell him) Ma had paid the Alleged Loan to Kou. Wong Sr said if there were any loan, such loan would have been sought by and granted to Wong Jr and had nothing to do with him. Wong Sr did not know the relationship amongst Wong Jr, Ma and Kou nor understand why Ma would make partial payment of the Charges to Kou. But he was certain he never borrowed any money from Ma or asked Wong Jr to do so on his behalf. (c) Discussion 28.I find Ma’s allegations inherently unreliable and unbelievable :
29.Further, Wong Sr said (and I accept) it was only in “二零零幾年” (probably in 2001) that Kou started to chase him for the Charges. I disagree Kou started to chase Wong Sr for payment prior to August 1999. According to the Kou Defence, Kou at first chased Wong Jr for payment of the Charges, which in my view caused Wong Jr to approach Ma for financial assistance and had nothing to do with Wong Sr. 30.There is plainly much more to the relationship amongst Ma, Wong Jr and Kou than meets the eye. I reject Ma’s claim in respect of the Alleged Loan Agreement and Alleged Loan. There is insufficient evidence before this court as to the details of the true arrangement between Ma and Wong Jr. But since Ma paid Kou the 1st and 2nd Payments which Kou acknowledged in the Kou Defence to be part payment of the Charges, I am prepared to find that Ma lent such sums to Wong Jr who commissioned the Renovation and who was therefore liable for the Charges. Wong Sr had no contractual liability for payment of the Charges and no reason to (and did not) seek the Alleged Loan. VIII. Kou’s demand for the Charges and the Cheque 31.Ma was cross-examined extensively on the Cheque (see below) a copy of which was shown to Wong Sr by Kou. Whilst the Cheque might not be directly pertinent to Ma’s allegations about the Alleged Loan, it illustrates starkly the unreliability of his evidence. I propose to deal with this issue here as it follows the chronological sequence of events. (a) Wong Sr’s case 32.Kou chased Wong Jr unsuccessfully for the Charges. In/ about 2001 Kou told Wong Sr the Charges were about HK$300,000.00 and pressed him for payment. Ma paid Kou HK$150,000.00 (ie the 1st and 2nd Payments). Kou gave Ma a copy of a cheque for HK$150,000.00 (exhibit D1, “Cheque”) which he claimed was dishonoured, so he asked Wong Sr to settle the remaining balance of the Charges. (b) Cheque 33.The copy Cheque was dated 9th June 2000 and drawn by Ma on behalf of Shing Fai Engineering Co (Ma’s sole proprietorship company) on Dao Heng Bank payable to Kou in the sum of HK$150,000.00. There was a stamp by Hang Seng Bank Limited across the face of the copy Cheque. Ma admitted he wrote and signed the Cheque, which was dishonoured upon presentation for payment due to insufficient funds in his bank account. 34.Although Ma claimed he was unsure whether the Cheque was crossed, exhibit D1 showed that the printed words “or bearer” were crossed out. Further, consistent with Wong Sr’s evidence of what Kou told him, Ma’s evidence suggested it was Kou (ie the payee) who attempted to cash the Cheque :
(c) Ma’s case 35.Ma claimed he wrote the Cheque (a) as record that Kou received a total sum of HK$150,000.00 (ie the Alleged Loan) from him for part payment of the Charges, and (b) as evidence that Kou owed him HK$150,000.00. He later clarified that Kou was not the borrower of the Alleged Loan and did not owe him money, and the Cheque was merely confirmation of his payment of the loan proceeds to Kou. Ma claimed it was his practice to make records in such manner. 36.Ma said he never gave the Cheque to Kou, but left it in his chequebook, which he kept in a storage compartment in his car. The storage compartment had a broken lid, so any passenger could have seen his chequebook. Ma did not know whether any passenger would have taken the Cheque, but there might have been such opportunity if he (as driver) had to leave to his car. 37.Ma had no idea the Cheque was missing from his chequebook. When his solicitors informed him of the copy Cheque disclosed by Wong Sr in the present proceedings, he checked his bank statements and found an entry in early July 2000 showing that the Cheque was dishonoured upon presentation for payment. Ma said he had no prior knowledge of such dishonour because he rarely visited his friend’s office at Kowloon Bay (which was used as his correspondence address with the bank) and did not read his bank statements. But after he became aware of the copy Cheque, Ma still did not ask Kou for clarification (because he did not suffer any loss) or report loss of the Cheque to the police (because he did not wish to become embroiled in further litigation). (d) Discussion 38.I have no hesitation in accepting Wong Sr’s evidence in paragraph 32 above whilst I regard Ma’s explanation to be a blatant untruth. In my view, Wong Jr was so financially straitened that he caused Ma to pay not only the 1st and 2nd Payments to Kou, but also a further sum of HK$150,000.00, which Ma did in June 2000 by way of the Cheque that was subsequently dishonoured. This would be consistent with what Kou told Wong Sr in 2001 and as stated in the Kou Defence. Since Kou did not receive the balance of the Charges due to the dishonour of the Cheque and Wong Jr’s failure to pay, Kou approached Wong Sr in 2001 to press for payment. 39.I find it wholly incredible that Ma would write the Cheque in the manner described above if all he wished to do was to record the fact he gave HK$150,000.00 to Kou. Ma retained the pay-in slip as record of the 1st Payment, and he could easily have asked for a copy of the cheque for the 2nd Payment from his bankers even if he had not retained any copy. Had Ma wished to make a personal record of the Alleged Loan, he could have written on the cheque stub, chequebook cover or even on the back of the Cheque. If he had to write on the face of the Cheque (although there was no good reason why), he could have written a narrative record without filling in the particulars as if it were a bona fide cheque and/or sign his name as drawer. Ma could not satisfactorily explain why he crossed the Cheque or dated it with a date (ie 9th June 2000) wholly irrelevant to the 1st and 2nd Payments. The overall evidence suggested the Cheque was intended to be a cheque payable to Kou on 9th June 2000, which echoes the conclusion in paragraph 38 above. 40.This is further supported by the fact that the Cheque had been presented for payment. Since it was a crossed cheque and the tenor of Ma’s evidence in paragraph 34 above was that Kou presented it for deposit into his bank account, the irresistible conclusion in light of what Kou told Wong Sr (see paragraph 32 above which evidence I accept) was that the Cheque was dishonoured when Kou presented it for payment. 41.Ma’s claim that the Cheque inexplicably disappeared does not hold water at all. There was no evidence Kou had ever been a passenger in Ma’s car. It is impossible to imagine that someone would have taken the Cheque from Ma’s car and attempted to or passed to Kou to attempt to deposit it into Kou’s bank account when such person could not assume that Ma would not read his bank statements and thereby would not discover the dealings in relation to the Cheque in the following month. Ma’s assertions were so incredible that they are unbelievable. His untruths in this respect severely and adversely affect his overall credibility and reliability. IX. Wong Sr’s payment to Kou 42.I accept Wong Sr did not know the arrangement between Wong Jr and Kou, but when Kou asked him to pay the balance of the Charges in/about 2001 Wong Sr was persuaded to do so by various instalments over a period of one odd year. Wong Sr emphasised he had no obligation to pay the Charges because the Renovation was arranged between Wong Jr and Kou. He went on to say in his witness statement dated 28th June 2006 inter alia that “及後[Wong Jr]因為經濟問題，向[Wong Sr]借錢支付部份裝修費予工人[Kou]，[Wong Sr]答應，並已代為分期付清兒子[Wong Jr]欠[Kou]的裝修費，雙方早已解決裝修費事宜”. Save that at the material time Wong Sr was unaware of Kou’s allegation in the Kou Defence that the total Charges were HK$270,000.00, the above matters were consistent with the Kou Defence (see paragraph 20 above). 43.In my view, Wong Sr did not assume any personal or contractual liability for the Charges by making payment to Kou. Contractual liability for paying the Charges fell squarely on Wong Jr, and Wong Sr merely made voluntary payments to Kou to help Wong Jr who was then in financial difficulties. One cannot ignore the familial relationship between Wong Sr and Wong Jr. Wong Sr very fairly did not doubt Kou actually incurred costs and charges for the Renovation. I find the above factors prompted Wong Sr’s willingness to make some voluntary payments, but it is a far cry from adopting liability for the Charges. This is also in line with Wong Sr’s stance that he would have awaited clarification from Wong Jr and not made payment had Kou asked for the full Charges of HK$300,000.00. X. Ma’s alleged demand for the Alleged Loan 44.Ma claimed that since Wong Sr failed to repay the Alleged Loan, he chased Wong Jr and asked to meet Wong Sr directly. This, Ma claimed, led to the Home Visit in early 2002. In light of the above findings, I disagree that Wong Sr failed to repay the Alleged Loan. However, I accept Ma did chase Wong Jr for loan repayment some time before the Home Visit, but even on Ma’s case there was no satisfactory explanation why he chased Wong Jr when the deadline for repayment was only by Chinese New Year in 2002. This raised doubt as to the truthfulness of Ma’s assertions in relation to the Alleged Loan Agreement. XI. Home Visit 45.There is no dispute Ma came with Wong Jr to the Cockloft in early 2002 and was introduced to Wong Sr. This was the first time Ma and Wong Sr met or spoke with each other. (a) Ma’s case 46.Ma claimed that during the Home Visit he also met the Wife and an old lady (later known as Koo). When he chased Wong Sr for repayment of the Alleged Loan, Wong Sr admitted liability and promised to repay as soon as possible. At that time Ma thought Wong Jr was still living at the Cockloft. (b) Wong Sr’s case 47.Wong Sr claimed the Home Visit was in early 2002 before Chinese New Year. He was entertaining friends at the Cockloft when Wong Jr and Ma showed up. Wong Sr thought Ma was a friend of Wong Jr. They left after a while. Although Ma paid another visit to the Cockloft during Chinese New Year, Wong Sr was not at home. He was subsequently informed of Ma’s visit. (c) Discussion 48.Since I have found there was no Alleged Loan or Alleged Loan Agreement, I disagree Wong Jr specifically brought Ma to the Cockloft to introduce him to Wong Sr so that he could chase Wong Sr for repayment of the Alleged Loan. I also do not accept that during the Home Visit Ma chased Wong Sr for repayment of the Alleged Loan or Wong Sr admitted liability and promised to repay the same. More importantly, without any Alleged Loan or Alleged Loan Agreement, there was no reason for Wong Sr to agree to any repayment. I prefer Wong Sr’s evidence that he was entertaining friends at the Cockloft when his son (ie Wong Jr) dropped by with a friend (ie Ma). It was not surprising given that the Cockloft was close to where they worked (ie the TPR Site). XII. Authority of Wong Jr 49.Even if Ma and Wong Jr entered into the Alleged Loan Agreement (which I disagree), I am of the view that Wong Jr did not have any actual authority to borrow the Alleged Loan on behalf of Wong Sr. Wong Sr did not even know about the 1st and 2nd Payments until Kou told him in 2001, so such knowledge had no bearing on the issue of Wong Jr’s actual authority in August 1999. Further, the Home Visit also did not evidence any actual authority by Wong Jr to enter into the Alleged Loan Agreement on behalf of Wong Sr or amount to Wong Sr’s ratification of such agreement. 50.I do not accept Mr Wong’s submission that because Wong Sr and not Wong Jr lived at the Cockloft and the Alleged Loan was for partial settlement of the Charges that Wong Jr had apparent authority to borrow the Alleged Loan on behalf of Wong Sr. Such submission was based on a mistaken understanding of Ma’s case. In fact, Ma claimed he all along believed Wong Jr, a working adult with a respectable job, also lived at the Cockloft. Consequently, Wong Sr’s residence at the Cockloft would not amount to any unequivocal representation to Ma that Wong Jr had authority to act on his behalf not just in respect of the Renovation but also to seek finance to pay for the same. 51.Since there was no communication between Wong Sr and Ma prior to early 2002, all that was left was Wong Jr’s representation to Ma. But Deputy Judge Ribeiro QC (as he then was) in Leung Shuk Kam v Cheung Suet Fun Maria Ausilla and anor HCA6182/1991 (unreported, 7th October 1992) said at paras.34 and 35 that :
In such circumstances, there was no effective holding out by Wong Sr that Wong Jr had authority to borrow the Alleged Loan on his behalf. XIII. Benefit from the Alleged Loan Agreement 52.Mr Wong argued that even if Wong Jr did not have any actual or apparent authority to enter into the Alleged Loan Agreement on behalf of Wong Sr, the Alleged Loan was applied for the benefit of Wong Sr who lived at the renovated Cockloft, so he was liable in equity to restore such monies to the extent that they had been so applied. 53.This alternative cause of action was not pleaded. At the commencement of trial Mr Wong applied for leave (which I granted) to further amend the Re-Amended Statement of Claim, but he did not seek leave to plead such alternative cause of action. Nevertheless, Mr Wong pursued it in his closing submissions. Unsurprisingly, Mr Chan (who had by that time finished his closing submissions) objected. When I enquired whether he wished to seek leave to further amend Ma’s pleadings, Mr Wong declined saying that Ma was entitled to raise such alternative cause of action without amendment since it was a mere matter of law. I disagreed and disallowed him from doing so. I indicated at the trial hearing I would hand down my reasons which I now do. 54.The starting point is Order 18 of the Rules of the District Court :
55.It was therefore plain that in order not to take Wong Sr by surprise Ma must specifically plead all the material facts and reliefs that constituted his cause(s) of action against Wong Sr in order to establish his claim, and all the material facts which he relied for asserting that Wong Sr’s defence was not maintainable. 56.Ma CJHC in Wing Hang Bank Limited v Crystal Jet International Limited & ors [2005] 2 HKLRD 795, 799 reiterated some basic principles of pleadings as follows :
57.Here, Ma’s pleaded claim was for breach of contract (ie breach of the Alleged Loan Agreement made by Ma and Wong Jr on behalf of or ratified by Wong Sr) for recovery of a legal debt. However, the alternative cause of action was based on an alternative factual scenario, ie the act of Wong Jr as agent was unauthorised, not ratified and therefore wrongful, and was a claim in equity that sought restitutionary relief. Such cause of action clearly raised much more than a mere matter of law. Hong Kong Civil Procedure 2007 Vol.1 para.18/7/12 at p.306 stated as follows :
But Ma’s pleadings were wholly silent on the material facts for the alternative cause of action. Since Mr Wong chose to stand on Ma’s existing pleadings, it was not open for Ma to argue such alternative cause of action. 58.In any event, I would have declined to grant leave for Ma to so amend his pleadings at this late stage. To grant leave when Wong Sr and Koo had given evidence and when Mr Chan had finished his closing submissions would have caused prejudice that could not have been compensated by costs. An equitable claim begets equitable defences, but Wong Sr would have been denied the opportunity to respond with appropriate equitable defence(s) and/or relevant evidence. XIV. Post-Home Visit 59.Ma claimed that after the Home Visit he continued to chase both Wong Sr and Wong Jr for repayment of the Alleged Loan. He further claimed that when Wong Jr disappeared in April 2002, Ma continued to chase Wong Sr by calling the Home Number. However, I prefer Wong Sr’s evidence that when Ma chased him for payment of the Alleged Loan, he explained clearly he did not borrow any money and there was no basis for demanding “父還子債”. XV. Debt collection (a) Wong Sr’s case 60.Wong Sr said that since the latter half of 2002 he and his family members received intimidating telephone calls with no caller identity, and harassment and disturbance by debt collectors who came to the Cockloft to demand for payment. The debt collectors claimed that Ma instructed them to collect payment. They posted up Dunning Letters and kicked the entrance of the Cockloft with such force that Wong Sr was able to hear them inside. Wong Sr and his family were scared and angry with the Paint Spray Incident. Wong Sr reported such incident and other incidents of harassment and disturbance in 2002-2003 to the police, and these reports were pending investigation. Because of the disturbing telephone calls, Wong Sr changed the Home Number but could not remember when he did so. (b) Ma’s case 61.Wong Jr disappeared in 2002. In/about mid-2003, Ma approached a solicitor Mr Leung who advised him to claim against Wong Sr as borrower of the Alleged Loan. Through the assistance of Mr Leung whom Ma then trusted, Ma engaged the services of a debt collection company to recover the Alleged Loan. He recalled signing an English document at Mr Leung’s office requiring the debt collection company to use lawful means and limiting its authorisation to three months (ie up to September 2003). Such document was not referred to in Ma’s witness statement or disclosed in the present legal proceedings. After September 2003, Ma could not contact Mr Leung who like Wong Jr had disappeared. 62.Ma did not know the name of the debt collection company (because Mr Leung did not tell him) or its responsible or contact person. The debt collection company did not charge him any fees for the debt collection service. Ma did not know whether debt collectors went to the Cockloft in March/April 2003 and/or telephoned to demand payment. Ma claimed that even if they did, they were not on his instructions. He only became aware of the debt collection activities much later when the police told him to recover any indebtedness by proper means (ie by civil claim). But he knew that at some stage Wong Sr changed the Home Number. (c) Discussion 63.I accept that Wong Sr made reports to the police in relation to debt collection activities as early as in 2002-2003 and in relation to the Paint Spray Incident in May 2003. It is also common ground that Ma retained the services of a debt collection company. I find he did so in the latter half of 2002 (ie after Wong Jr disappeared in April 2002 and Wong Sr refused to pay) as Wong Sr said and as Ma admitted in his pleadings, and not from mid-2003 to September 2003 as Ma alleged in his evidence. 64.I further find that pursuant thereto debt collectors telephoned the Home Number and visited the Cockloft to dun for payment of HK$150,000.00 (eg posting up/leaving Dunning Letters, kicking the main entrance, committing the Paint Spray Incident and making a nuisance of themselves). Although the identities of those who committed these acts were unknown, I find as a matter of inference they were seeking to collect repayment of Ma’s loan of HK$150,000.00 to Wong Jr (see paragraph 30 above) or make demands related to such loan. 65.I find Ma’s vagueness unconvincing. Although he claimed he did not remember the name of the debt collection company or its responsible or contact person, he admitted he had been contacted by someone from the debt collection company, and more interestingly he was able to engage the debt collection company for debt collection service again in 2005 (see paragraphs 105-109 below) when Mr Leung (whom Ma said made all the arrangements on his behalf) had already disappeared. Further, Ma admitted the police liaised with him over debt collection matters shortly before he commenced the SCT Claim in November 2005. I find Ma’s inability to recall any details suspect. 66.I further find Ma was liable for the actions of the debt collectors notwithstanding the terms of the alleged arrangement between Ma and the debt collection company inter alia that the latter should use lawful means. Similar scenario has been considered by the Court of Appeal in Wong Wai Hing & another v Hui Wai Lee [2001] 1 HKLRD 736, which neither Mr Wong nor Mr Chan cited. 67.In that case, the defendant engaged the services of a debt collection agency to obtain payment of an unpaid debt. The contract provided that only lawful means would be used for collecting the debt. But the defendant’s operatives used threats and engaged in conduct that constituted assault and intimidation. It was held on appeal that the defendant was liable for the actions of the debt collection agency. The analysis by the Court of Appeal was clearly reflected in the material parts of the headnote which were extracted as follows :
68.Further, I am of the view that in engaging the debt collection company to collect the sum of HK$150,000.00 when he plainly knew Wong Jr had disappeared, Ma must have known the debt collectors would approach Wong Sr and other occupants (who had no contractual liability to pay Ma) to collect payment by making a nuisance of themselves. I will discuss below whether the debt collection activities constituted duress. XVI. Ma’s Agreement or Wong Sr’s Agreement? (a) Wong’s case 69.Wong Sr claimed that at that time he and his family were frightened by the debt collection activities. Koo also said she was very scared. Wong Sr claimed he was forced to enter into Wong Sr’s Agreement even though he had no contractual obligation to repay any indebtedness which Wong Jr might have owed Ma and which he had no opportunity to verify with Wong Jr. 70.In mid-2003, after discussion with Ma, Wong Sr offered to pay Ma monthly instalments up to a limit of HK$100,000.00 to put an end to the debt collection activities (ie for Ma and debt collectors to leave him and his family in peace). Wong Sr said he did so in order to protect his family from further disturbance, but made clear this was not his “repayment” as he never borrowed money from Ma. Wong Sr said had Ma refused to accept the above offer he would not have paid HK$150,000.00 to Ma. 71.Wong Sr in his witness statement dated 28th June 2006 said that “…… [Wong Sr]是在被受長期滋擾及恐懼的情況下，無奈和[Ma]作出唯一一次口頭協議，但並非必然的義務或承諾，是按[Wong Sr]的經濟狀況而定，分期暫代[Wong Jr]退還是項 “來歷不明的欠款”，以拾萬元為上限，期間雙方都要尋找[Wong Jr]對質”. Wong Sr explained that “按[Wong Sr]的經濟狀況而定” (depending on his economic situation) meant “[Wong Sr]係有權選擇 …… 經濟好少少就畀多啲喇，經濟唔好就畀少啲咁樣”. Wong Sr said Ma agreed to the above terms of offer. (b) Ma’s case 72.Ma said that during a telephone conversation with Wong Sr in mid-2003, he demanded repayment of the Alleged Loan. Wong Sr admitted he owed Ma the Alleged Loan and voluntarily proposed to make monthly instalment payments of HK$4,000.00 each until full repayment. Wong Sr also promised to accelerate payment whenever he had more money. Ma claimed there was no reason for him to agree to Wong Sr’s Agreement as it did not reflect the true indebtedness due to him. (c) Discussion (1) Wong Sr’s Agreement 73.On balance I reject Ma’s evidence and find the parties reached agreement in terms of Wong Sr’s Agreement. Despite Ma’s demands to Wong Sr for payment, Wong Sr steadfastly refused to make any payment for more than a year after Wong Jr’s disappearance. Ma did not give any satisfactory explanation why Wong Sr suddenly offered to make instalment payments for the entire Alleged Loan in mid-2003. I find Wong Sr only offered to make instalment payments up to a limit of HK$100,000.00 because he was disconcerted by the debt collection activities and wanted to put an end to the nuisance. I further find Ma accepted the offer although the proposed payment was less than the Alleged Loan because he knew he had no right to dictate terms. 74.There was also no reason for Wong Sr to offer (and I find he did not offer) to make accelerated payment if possible. Ma’s evidence in this respect was startling when Wong Sr had been unwilling to make payment at all over the past year or so. This is nothing but a poor attempt to explain away the actual accelerated payments made by Wong Sr in September 2003 under Wong Sr’s Agreement (see paragraph 88 below). 75.Given my finding against the existence of any Alleged Loan Agreement, I disagree that Wong Sr offered to repay the Alleged Loan. However, Mr Wong seized upon the Chinese characters “攤還” in paragraph 4 of Wong Sr’s witness statement dated 23rd August 2006 to submit that Wong Sr’s offer to make instalment payments was for repayment of the Alleged Loan. In my view, Wong Sr’s choice of Chinese characters must be read in context of his homemade witness statement (ie he was unrepresented at that time). In paragraph 4 of such witness statement, Wong Sr made clear it was out of concern over his family’s safety that he entered into Wong Sr’s Agreement “以港幣拾萬元分開攤還”. These references to his family’s safety and to the amount of HK$100,000.00 were plainly inconsistent with any contractual obligation to repay the Alleged Loan of HK$150,000.00. I also bear in mind that in paragraph 6 of the same witness statement Wong Sr clearly denied any liability to make repayment to Ma on behalf of Wong Jr. Upon proper construction, Wong Sr did not “admit” liability to repay the Alleged Loan by using the Chinese characters “攤還”. (2) Ratification 76.Since I have found there were no Alleged Loan Agreement and/or Alleged Loan on behalf of Wong Sr, there was no contract or loan for Wong Sr to ratify. But even if I am wrong, I do not agree Wong Sr’s Agreement could amount to any effective ratification. 77.Bowstead & Reynolds on Agency 18th ed (2006) para.2-070 at p.77 made clear that an express ratification must be “a clear manifestation by one on whose behalf an unauthorised act has been done that he treats the act as authorised and becomes a party to the transaction in question” (my emphasis). Halsbury’s Laws of Hong Kong Vol.1(2) 2003 Reissue para.[15.025] stated that “[ratification] can be effected by words or conduct unequivocally showing an intention to adopt the agent’s act ……” (my emphasis). But my findings above plainly showed that Wong Sr did not by Wong Sr’s Agreement or by payment of the monthly instalments thereunder to Ma (a) agree to make payments as contracting party to and/or principal debtor under the Alleged Loan Agreement or (b) adopt such agreement or the Alleged Loan as his own. In the circumstances, there is no basis to support any ratification. 78.Mr Wong relied on the following passage from Halsbury’s Laws of Hong Kong Vol.1(2) 2003 Reissue para.[15.025] :
79.I disagree there was any voluntary acceptance by Wong Sr of the benefit of Wong Jr’s act by virtue of Wong Sr’s Agreement. 80.Mr Wong referred me to Leung Shuk Kam where the 2nd defendant entered into a provisional agreement for the sale of the 1st defendant’s property to the plaintiffs. There was no evidence to establish that the 2nd defendant had any authority to act as agent, but the deposit paid by the plaintiffs was paid into the 1st defendant’s bank account and the estate agent told the 1st defendant it was intended to be the deposit payable under the provisional agreement. On the following day, the 1st defendant transferred such deposit sum from her account to the account of her elder sister. It was held that the 1st defendant’s retention of the money and her transfer of such money to her sister evidenced implied ratification of the provisional agreement. 81.But the facts in Leung Shuk Kam were a far cry from the factual circumstances in the present case. In that case, the 1st defendant kept and transferred the money as deposit under the provisional agreement to her sister, so such conduct ratified “the act” of the agent. Here, Wong Sr made clear to Ma he did not endorse the act of Wong Jr and he only made the offer to pay instalment payments in order to get rid of the nuisance caused by demands from Ma and/or debt collectors. There was no voluntary acceptance of Wong Jr’s act. 82.Mr Wong next suggested that even if Wong Sr was unaware that Wong Jr borrowed the Alleged Loan on his behalf and/or Ma paid the proceeds of the Alleged Loan to Kou for the Charges pursuant to the Alleged Loan Agreement, “it was subsequently ratified by [Wong Sr’s] voluntary acceptance of the benefit of [Wong Jr’s] act” in that he did not ask Kou to return the sum of HK$150,000.00 to Ma and pay such sum to Kou himself for the Charges. I cannot accept such contention. There was no contractual obligation for Wong Sr to pay the Charges to Kou. The relevant contracting party for the Renovation was Wong Jr. Wong Sr at best accepted his son’s filial efforts to upgrade his living condition by renovating the Cockloft. But it was not voluntary acceptance of Wong Jr’s act of borrowing money from Ma to pay for the Charges, which was Wong Jr’s and not his obligation. 83.Whilst I have no disagreement with the principles set out in Republic of Peru v Peruvian Quano Company (1887) 36 Ch D 489 and In re Mawcon Ltd [1969] 1 WLR 78, in light of my findings above, Wong Sr’s willingness to make payment to Ma up to a limit of HK$100,000.00 was not an adoption of part of the Alleged Loan Agreement that operated as ratification of the whole. 84.Mr Wong submitted otherwise. He relied on two contentions. First, by residing in the Cockloft with his family (including the Wife, Daughter and Koo), Wong Sr “obtained the benefit of the [Renovation] when [Ma] made the payment in the amount of HK$150,000.00 under the [Alleged Loan Agreement]”. Secondly, the Alleged Loan was obtained and applied for Wong Sr’s benefit “to discharge his obligation to pay for [the Charges], and [Wong Sr] accepted the benefit notwithstanding he had no knowledge of the same”. 85.I can dispose of these arguments simply on my finding that Wong Sr was not contractually obliged to pay the Charges to Kou or to repay the Alleged Loan to Ma. I have also explained in paragraphs 28 and 50 above why Wong Sr’s mere residence at the renovated Cockloft was not enough. Further, these arguments ran dangerously close to the alternative cause of action which I have disallowed. 86.In short, there was never “acting [by Wong Sr] in accordance with the terms of contract made by the agent [ie Wong Jr]” or any unequivocal adoption by Wong Sr of the Alleged Loan Agreement or the Alleged Loan. XVII. Disputed Faxes 87.Between 2nd July 2003 and 4th May 2005, Wong Sr deposited the Paid Sum (with some instalments payments more or some less than HK$4,000.00) into Ma’s bank account. It was much later that Ma and Wong Sr discovered that the total sum paid was less than HK$100,000.00. Ma realised the same when he went through the documents with his solicitors for the purpose of the present proceedings, which in my view explained why the Dunning Letters and the SCT Claim in 2005 only claimed for HK$50,000.00 (see paragraphs 105-106 and 110 below). Wong Sr was also under the impression he had paid HK$100,000.00 until he checked the documents recently. He fairly admitted he omitted to pay HK$5,000.00 under Ma’s Agreement due to carelessness. 88.To understand the parties’ assertions in relation to the Disputed Faxes, it is necessary to bear in mind the first eight instalment payments between 2nd July 2003 and 30th March 2004 as follows :
89.I disagree with Ma’s claim that Wong Sr paid a total sum of HK$20,000.00 between 2nd September and 2nd October 2003. In fact, he paid a total sum of HK$24,000.00 (ie equivalent to six and not five instalments of HK$4,000.00 each), so he only paid the next instalment payment on 30th March 2004. 90.Ma did not satisfactorily explain why Wong Sr would accelerate payment of the monthly instalments from September 2003 to February 2004 (ie HK$24,000.00) by paying them all within September 2003. I prefer Wong Sr’s evidence that it was because he received the 16/9/03 Fax as follows :
91.I also accept Wong Sr made no further monthly instalment payment until March 2004 because he received the 18/9/03 Fax which confirmed as follows :
As evident from paragraph 88 above, by 18th September 2003 Wong Sr had paid a total sum of HK$18,000.00 to Ma. By taking into account such paid sum of HK$18,000.00 and by referring to an outstanding sum of HK$82,000.00, the 18/9/03 Fax clearly showed that the total payment should be HK$100,000.00 and not HK$150,000.00. 92.Ma claimed he did not know Wong Sr’s fax number and denied having written, signed or issued the Disputed Faxes which he said were forgeries. He claimed the pen strokes for his signature were different from those of the signatures in the Disputed Faxes. Ma claimed his stance was supported by the inherent unreliability of the Disputed Faxes, which I now turn to. 93.I accept that the Disputed Faxes were received via the only fax machine at the Cockloft (“Fax Machine”) with fax number 2565[xxx]. On 16th February 2003, Wong Sr received the 16/9/03 Fax (exhibit D2) with a fax header that read as follows :
Such fax header showed that the Junk Fax was received by the Fax Machine at 4:48:20 pm. Wong Sr reused the Junk Fax, and about two odd hours later at 7:07pm the Fax Machine received the 18/9/03 Fax on the reverse of the Junk Fax. The fax header of the 18/9/03 Fax read as follows :
94.The fax headers of the Disputed Faxes did not identify the callers or recipients. Their format, font and font size were the same but different from the fax header of the Junk Fax. Ma claimed such difference indicated that the Disputed Faxes were not genuine. However, Wong Sr explained under cross-examination that “呢個就--我就唔知道咩嘢原因，可能係呢個環保--嗰個咩嘢廣告嗰度就係唔知點樣fax過嚟畀我哋，我就唔知，或者machine唔同呢，或者係嗰啲形式，我哋就唔清楚點樣嘅唔同。…… Machine 嗰個機器呀，嗰啲fax machine或者咩嘢，我哋唔清楚”. He further clarified under re-examination that in his experience the fax headers of the faxes received by the Fax Machine from different senders (note that he had the Fax Machine for more than a year and received an average of ten faxes a day) had different format (eg some had caller identities and some not) and font. 95.I see no reason to doubt Wong Sr’s explanation. I accept that the Disputed Faxes as well as the Junk Fax were received via the Fax Machine at the times and in the manner described in paragraph 93 above, which together with the contents of the Disputed Faxes sat well with the timing and amount of Wong Sr’s actual payment of the first eight instalment payments to Ma. Plainly Wong Sr acted on the instructions in the Disputed Faxes. Since Ma failed to offer any satisfactory explanation for the accelerated payments and given his lack of credibility, I reject his claim that the Disputed Faxes and his signatures thereon were forgeries. Having studied Ma’s signatures on the Disputed Faxes, copy Cheque, Re-Amended Writ, Re-Re-Amended Statement of Claim, witness statement, and Notice of Discontinuance of the SCT Claim, I am unable to agree that the signatures on the Disputed Faxes were distinctly different. Indeed, Ma confessed that other than his signature on the copy Cheque, Wong Sr would not have known how he signed his name. 96.In any event, as I have found there was no Alleged Loan Agreement, I do not accept Mr Wong’s argument that Wong Sr’s instalment payments were partial repayments under the Alleged Loan Agreement. XVII. Duress 97.I agree with Mr Wong that in considering whether Wong Sr’s Agreement was vitiated by duress, the relevant events and circumstances were those at/before mid-2003. 98.Mr Wong argued that Wong Sr’s defence and counterclaim based on duress must fail since it had not been specifically and carefully pleaded. He referred to Hong Kong Civil Procedure 2007 Vol.1 para.18/8/9 at p.308 which states that a claim or a defence raising duress “should contain full particulars of the facts and circumstances relied upon as to where, when, by whom, over whom and in what way duress was exercised” (see also Tudor Grange Holdings Ltd & others v Citibank NA & another [1991] 3 WLR 750, 765). 99.Paragraph 4 of Wong Sr’s Re-Amended Defence and Counterclaim pleaded inter alia that Dunning Letters were placed at the Cockloft and Wong Sr was disturbed and intimidated by the demands to pay HK$150,000.00. I do not need to deal with Mr Wong’s pleading point because save for a few incidents (eg the debt collectors kicking the main door and/or main gate of the Cockloft and the Paint Spray Incident) Wong Sr’s evidence in relation to the activities of the debt collectors prior to mid-2003 lacked particularity on the specific threatening, intimidating or disturbing words/conduct and on the gist of the words used by the debt collectors over the telephone or on visits to the Cockloft for demanding payment. There was no evidence as to the specific threatening and/or intimidating contents of the Dunning Letters (other than demand for payment) prior to mid-2003. 100.In the circumstances, although I accept the debt collectors made approaches and a nuisance of themselves to persuade payment, other than kicking the main door and/or metal gate of the Cockloft and the Paint Spray Incident which might cause some concern, Wong Sr’s evidence as to the gist of the acts and what was said was far from satisfactory to support the assertion of illegitimate pressure amounting to intimidation, exhortation, threat, bullying, harassment and ultimately duress. 101.In Pao On v Lau Yiu Long [1980] AC 614, 635 Lord Scarman said as follows :
102.In Universe Tankships of Monrovia v ITWF [1983] 1 AC 366, 384, Lord Diplock said the rationale was that the party’s consent was induced by illegitimate pressure with the consequence that the consent was treated in law as revocable. Lord Scarman, who dissented on an immaterial issue, said at p.400 that the classic case of duress was not the lack of will to submit but the victim’s intentional submission arising from the realisation that there was no practical choice open to him. 103.Having considered the totality of the evidence, I am not convinced it was Ma’s wrongful or illegitimate threat/pressure leading to an absence of practical choice that persuaded Wong Sr to enter into Wong Sr’s Agreement and to pay the Paid Sum to Ma. Whilst I accept Wong Sr regarded the activities of the debt collectors a nuisance and wished to put an end to the same, the following matters showed his will was not so overborne or deflected as to render Wong Sr’s Agreement void or voidable :
104.Accordingly, Wong Sr failed to satisfy me he entered into Wong Sr’s Agreement and paid the Paid Sum under duress. I find he consciously did so because he wanted to put an end to the nuisance arising from Ma’s demands and the debt collection activities, but his will was not overborne or deflected. XVIII. After 4th May 2005 105.Wong Sr claimed that several months after 4th May 2005, Ma went back on his word under Wong Sr’s Agreement and again engaged debt collectors (who targeted the Daughter this time) to collect payment of HK$50,000.00. The Dunning Letters demanded the Daughter to pay HK$50,000.00 which were consistent with the SCT Claim against inter alia the Daughter for HK$50,000.00. I have no hesitation in drawing the inference that the debt collectors acted on behalf of Ma. Wong Sr made various reports to the police which were still under investigation. 106.On 28th October 2005 debt collectors came to the Cockloft to demand the Daughter to pay HK$50,000.00. On 25th November 2005, debt collectors came to the Cockloft to demand for payment and to post up Dunning Letters. Wong Sr reported these incidents to the police. 107.On 29th December 2005, Koo opened the main door of the Cockloft but not the metal gate when the doorbell rang. She saw a stranger who said Ma asked him to demand the Daughter to make payment. The stranger banged on the metal gate four to five times after Koo closed the door. The lights at the Cockloft suddenly went out. Koo was frightened and Wong Sr later discovered the main electricity switch outside the Cockloft had been switched off. This incident was reported to the police. 108.In December 2005, the debt collectors (who claimed to be acting on Ma’s instructions) visited the Cockloft to post up and/or leave Dunning Letters demanding Wong Jr to repay to Ma a sum of HK$300,000.00. Wong Sr’s witness statement dated 23rd August 2006 stated that the debt collectors “說是[Ma]借給[Wong]買車之用”, which was confirmed by Ma. Since Wong Jr had disappeared, Ma hoped to flush him out by chasing his family members. Ma said that as advised by the police he eventually issued a civil claim to recover the same. 109.The above debt collection activities were irrelevant to the issue of duress vis-à-vis Wong Sr’s Agreement and the payments thereunder. However, they showed that whilst Ma clearly knew by 2005 that Wong Jr had left Hong Kong and disappeared, he was not above using debt collectors to cause nuisance to those whom he admittedly knew did not owe him any money (eg the Daughter) in attempts to get payment. I find Ma would go to any lengths to recover what he had paid to Kou and the propriety of his demands meant little to him. I find him wholly untrustworthy. XIX. SCT Claim 110.Although Ma knew the Wife and Daughter did not owe him any money, he sued them in the SCT Claim for HK$50,000.00 being the outstanding balance of the Alleged Loan. He claimed he did so because inter alia he did not know the full name of Wong Sr (whom he addressed all along as “黃伯”) until the first hearing on 11th January 2006. But that is no justification to sue the Wife and Daughter when even on his own case Mr Leung advised him the true borrower was Wong Sr. In the circumstances, my observations in paragraph 109 above also apply to the SCT Claim issued by Ma. 111.Shortly thereafter Ma discontinued the SCT Claim and commenced the present proceedings. As seen from the above analysis, there was also no justification for him to sue any of the defendants in the present proceedings. XX. Hearing on 19th June 2006 112.Ma claimed that at a hearing on 19th June 2006 in the present proceedings Wong Sr admitted he borrowed the Alleged Loan and falsely alleged that Ma agreed not to demand repayment of the outstanding balance. Wong Sr denied such allegation. There was no transcript of the hearing. During the trial Mr Wong agreed that Ma’s allegation would not be relied on as admission on the part of Wong Sr. XXI. Conclusion 113.In the circumstances, Ma failed to establish his claim which is hereby dismissed. Wong Sr also failed to establish that Wong Sr’s Agreement was void or voidable as a result of duress. As he did not rely on any other grounds that might vitiate such agreement (eg lack of consideration etc), his counterclaim is also dismissed. 114.There is no reason why costs do not follow event. I grant a costs order nisi that Ma do pay Wong Sr’s costs of his claim (including all costs reserved, if any) in these proceedings whilst Wong Sr do pay Ma costs of the counterclaim (including all costs reserved, if any) to be taxed if not agreed. Both the claim and counterclaim were below HK$150,000.00 and the issues were not complicated. There shall be no certificate for counsel.
Representation : Mr Tim Wong instructed by Messrs Louis K Y Pau & Co for the Plaintiff Mr Chan Siu Chung of Messrs S C Chan & Co for the 1st Defendant | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||