Richin Travel Agency (HK) Ltd v. Cheung Chi Ming and Another
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DCCJ60/2006 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CIVIL ACTION NO. 60 OF 2006 ------------------------ BETWEEN
------------------------ Coram: H H District Judge Marlene Ng in Court Date of Hearing: 17th March 2008 Date of Handing Down Judgment: 25th March 2008 ------------------------ JUDGMENT ------------------------ 1.The Plaintiff was/is a travel agency that provided air ticket and hotel accommodation booking services (“Services”) to customers. The 1st Defendant had been its customer for several years prior to 2005. I. Plaintiff’s claim 2.The Plaintiff claimed that at the 1st Defendant’s request it provided the Services to the 1st Defendant or to his order between 29th March and 23rd May 2005, “full particulars of which been rendered to the 1st Defendant” :
The Plaintiff further claimed that the 1st Defendant failed to pay the aforesaid sum of HK$80,884.00 despite repeated requests. II. 2nd Defendant 3.On 5th January 2006, the Plaintiff commenced the present proceedings against the 1st Defendant for payment of the aforesaid sum of HK$80,884.00 and the sum of HK$25,912.00 under invoice no.80627 dated 23rd March 2005 (“80627 Invoice”). On 1st December 2006, Master K W Wong granted leave to the Plaintiff to (a) join the 2nd Defendant as a defendant in the present proceedings, and (b) remove the claim for the sum of HK$25,912.00 under the 80627 Invoice against the 1st Defendant. Instead, the Plaintiff claimed against the 2nd Defendant for the total sum of HK$50,886.00 for the Services it rendered at the 2nd Defendant’s request to her or to her order between 20th May 2004 to 11th April 2005, including the sum of HK$25,912.00 under the 80627 Invoice. 4.The 2nd Defendant did not file/serve any notice of intention to defend, so default judgment (“Judgment”) was entered against her on 29th January 2007 in favour of the Plaintiff for the sum of HK$50,886.00 and interest thereon at 10.088% pa from 5th January 2006 to the date of the Judgment and thereafter at judgment rate until payment together with fixed costs of HK$1,420.00. 5. In the circumstances, the trial only concerned the Plaintiff’s claim against the 1st Defendant. III. 1st Defendant’s defence 6. According to the Defence filed by the 1st Defendant, he admitted (a) he was liable to pay the total sum of HK$67,014.00 under the Plaintiff’s invoices nos.80844, 80847, 80849, 81164, 81175 and 81266, but (b) he made the 1st and 2nd Payments in the total sum of HK$35,000.00 to the Plaintiff. So the 1st Defendant claimed he was only liable to the Plaintiff for the sum of HK$32,014.00 (ie HK$67,014.00 – HK$35,000.00). He denied he was liable to pay the remaining 3 invoices nos.80649, 80662 and 80848 (“Disputed Invoices”). IV. Undisputed facts 7. The following facts were not disputed :
V. Standard of proof 8. The 1st Defendant all along acted in person. As evident from his submissions, it appears he was under the impression that the Plaintiff was bound to adduce (a) documentary evidence from airlines and hotels and/or (b) his Fax Sheets (see paragraph 30 below) to prove beyond dispute that (i) he placed the orders for the Disputed Invoices, and (ii) the persons named in the Disputed Invoices actually used the Services set out therein. In my view, the Plaintiff was not bound to do so, and its case would not necessarily fail if no such documents were adduced. 9. The standard of proof in civil cases is generally proof on the balance of probabilities. If, therefore, the evidence before the court is such that the tribunal can say “we think it is more probable than not”, the burden is discharged, but if the probabilities are equal it is not (see Phipson on Evidence 16th ed. (2005) para.6-51 at pp.153-154). VI. Disputed Invoices 10.Although the 1st Defendant claimed that the Plaintiff failed to provide particulars of the Disputed Invoices, copies of the Disputed Invoices were disclosed in the Plaintiff’s List of Documents filed on 11th May 2007. The copy Disputed Invoices in the trial bundle were the “receipt” duplicates retained by the Plaintiff. It is evident from copy invoices in the trial bundle that the Plaintiff’s invoices had various duplicate copies, eg “receipt” and “accounts” duplicates. In the course of his evidence, the 1st Defendant claimed that the copy invoices he received from the Plaintiff’s solicitors were different from those in the trial bundle, but he did not adduce those copies nor gave particulars about the differences. He also did not say whether such copies were in fact different duplicates of the same invoices. I am unable to place weight on his suggestion that the Plaintiff’s business dealings and practice were permeated with confusion and error such that its claim under the Disputed Invoices were unsustainable. 11. Copy invoice no.80649 dated 29th March 2005 was as follows :
12.Copy invoice no.80662 dated 30th March 2005 was as follows :
13.Copy invoice no.80848 dated 15th April 2005 was as follows :
14.Mr Wong Sai Ming (“Mr Wong”), the Plaintiff’s witness, explained that the departure date in invoice no.80848 was a typographical error, and it should be 24th and not 20th May 2005. He discovered the error by cross-referencing the corresponding electronic air ticket for the Plaintiff issued on 15th April 2005 (“E-ticket”) which gave the departure date of 24th May 2005. Mr Wong said (and on balance I accept) the issued E-ticket was the confirmed air ticket for the 1st Defendant under invoice no.80848 because it was his practice to insertthe date of issue of the air ticket as the date of the invoice (ie 15th April 2005 in this instance). 15.At the commencement of trial, Ms Leung, counsel for the Plaintiff, orally applied to discover and rely on further documents being a number of electronic air tickets in relation to the Disputed Invoice. In the course of submissions, Ms Leung restricted her application to the E-ticket. After hearing submissions, I granted leave to the Plaintiff to rely on the E-ticket in light of the 1st Defendant’s allegation that he was not in Hong Kong but in Japan during the relevant period, which was made for the first time in these proceedings in his supplemental witness statement dated 8th March 2008. 16. When the 1st Defendant gave evidence, he complained about the Plaintiff’s late production of the E-ticket. In my view, the 1st Defendant did not suffer any prejudice because :
VII. Overview of the witnesses 17.The Plaintiff called Mr Wong to give evidence. Mr Wong worked for the Plaintiff since 1988, and he was the Plaintiff’s supervisor at least from 2005 up to the trial. His main duties were to take orders from customers for booking the Services, place orders for the Services with service providers, and issue invoices, air tickets and hotel vouchers to customers. 18.The 1st Defendant gave evidence as sole witness for the defence. Both Mr Wong and the 1st Defendant adopted their witness statements as part of their evidence in chief. 19. 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)). 20. On balance, I find Mr Wong to be a reliable and credible witness. His evidence is consistent with the objective facts and is supported by contemporaneous documents. He frankly admitted the things he could not remember and was upfront about certain matters that were not within his knowledge. On the other hand, I find the 1st Defendant’s evidence unreliable (see analysis below). His assertion that he did not place orders for any of the Disputed Invoices with the Plaintiff is not much better than a bare denial. VIII. Parties’ past dealings 21. Mr Wong came to know the 1st Defendant through the introduction of another customer of the Plaintiff. The 1st Defendant told Mr Wong (and the 1st Defendant admitted) he was working as an insurance agent at that time. The 1st Defendant claimed he continued to work as an insurance agent until trial. 22. Mr Wong confirmed (and on balance I accept) that the 1st Defendant had been purchasing the Services from the Plaintiff since about 2000. This was evidenced by the Invoice Settlement Record (“Record”), which was a computer record generated by the Plaintiff’s accounts department showing particulars of the Plaintiff’s invoices to the 1st Defendant from 14th June 2000 to 5th June 2005 that were fully or partially settled. On the other hand, the 1st Defendant only had distinct memory of business dealings with the Plaintiff for 3-4 years before 2005. He did not expressly deny their business relationship commenced in 2000, but only said his memory was hazy that far back in time. In my view, given the Record and the various transactions referred to in paragraph 34 below which verified the Record, Mr Wong’s evidence in this respect is more reliable. 23. There is no dispute that the 1st Defendant’s contact person at the Plaintiff was Mr Wong unless he was on leave. At first, Mr Wong was puzzled why a local insurance agent like the 1st Defendant would require frequent purchases of large number of air tickets from the Plaintiff. Later, when he knew the 1st Defendant better, he was informed by the 1st Defendant that in addition to being an insurance agent the 1st Defendant also ran a business of arranging persons (“Runners”) to travel to Europe to buy luxury goods (eg handbags) to resell for profit in Japan (“Business”). Mr Wong said the 1st Defendant would purchase air tickets for himself, the 2nd Defendant and other persons (some of whom Mr Wong did not know) for such purpose. Mr Wong even recalled an occasion when he asked the 1st Defendant to buy a brand-name bag for his friend, but Mr Wong eventually returned the bag to the 1st Defendant as his friend did not want it. 24. The 1st Defendant admitted he was involved in such parallel imports Business. He claimed that due to his familiarity with Europe, he worked essentially as a tour guide for the Runners who were not his employees. Some Runners had their own operations and gave him commission for his services. Some Runners were introduced to him by middlemen who would (a) collect payment and reimburse him for the Services he purchased for the Runners from the Plaintiff, and (b) pay commission to him. So the 1st Defendant might not personally know the Runners, and sometimes he would even meet them for the first time at the airport just before departure overseas. So he would only have brief (and not long term) impression of the Runners that might last a short while after each trip, and in time his memory about them would diminish. 25. Mr Wong claimed the 2nd Defendant was the 1st Defendant’s partner in the Business. The 1st Defendant cross-examined Mr Wong at length on the subject. Mr Wong explained that (a) sometimes the 1st Defendant would order air tickets from the Plaintiff for the 2nd Defendant for travelling overseas to purchase luxury goods, which invoices the 1st Defendant would settle, and (b) more than once the 1st and 2nd Defendants travelled overseas together. Mr Wong disagreed that the 1st Defendant merely introduced the 2nd Defendant to the Plaintiff as a potential customer. If that were so, as Mr Wong convincingly pointed out, there would have been no justifiable reason for the 1st Defendant to settle the Plaintiff’s invoices for the Services purchased for use by the 2nd Defendant. Although at times the 2nd Defendant would herself telephone Mr Wong to place orders for the Services, she mightask Mr Wong to collect payment from the 1st Defendant who eventually paid the relevant invoices. Mr Wong therefore concluded the 2nd Defendant was the 1st Defendant’s partner in the Business. 26. In my view, the issue of whether there was or was not a partnership between the 1st and 2nd Defendants is a red herring. Presently, the Plaintiff does not claim against the 1st Defendant for the sum of HK$25,912.00 under the 80627 Invoice. According to the Judgment, the Plaintiff has already signed judgment against the 2nd Defendant for such claim. There is also no suggestion in either party’s pleadings that the 2nd Defendant was involved or interested in the transactions evidenced by the Disputed Invoices. In short, whether the 2nd Defendant was or was not the 1st Defendant’s partner in respect of the Business is neither here nor there. 27. However, the 1st Defendant sought to attack the credibility of Mr Wong’s evidence by such cross-examination. I do not consider Mr Wong’s evidence was shaken in any respect. On balance I accept the 1st Defendant did (a) place orders for purchase of the Services for the 2nd Defendant, (b) inform Mr Wong he would pay for such Services for the 2nd Defendant, and (c) pay the Plaintiff for the relevant invoices for such Services. As an example, I refer to invoice no.80844 dated 9th April 2005 (being one of the invoices listed in paragraph 2 above) addressed to the 1st Defendant which referred to purchase of hotel accommodation for the 2nd Defendant and in respect of which the 1st Defendant admitted liability (see paragraph 6 above). On balance I accept Mr Wong had sufficient basis to believe that the 1st and 2nd Defendants were partners. But even if his belief were incorrect, I do not consider such error sufficient for drawing any inference that Mr Wong made mistakes in relation to the Disputed Invoices. IX. Usual practice for transactions for the Services 28. The Record showed that between 14th June 2000 and 5th August 2005 the Plaintiff’s sales turnover vis-à-vis the 1st Defendant was at least HK$1,666,014.00. The 1st Defendant became one of the Plaintiff’s major customers. Mr Wong fairly acknowledged that he also served other customers who purchased air tickets for visiting Europe and Japan during this period, but such evidence fell far short of any suggestion that he mixed up the transactions for the Disputed Invoices with transactions for other customers. 29. Since the 1st Defendant was then a major customer of the Plaintiff, the Plaintiff had convenient arrangements in place for the 1st Defendant to purchase the Services through the Plaintiff. There is no dispute between the parties on such arrangements. 30. When the 1st Defendant wanted some airtickets and/or hotel accommodation, he would telephone Mr Wong who would check the availability of the requested Services. If the requested Services were available, Mr Wong would inform the 1st Defendant by telephone and tell him the relevant prices. If the 1st Defendant agree on the quoted prices, he would fax a list of names (“Fax Sheet”) for Mr Wong to arrange issue of the air tickets and/or hotel accommodation vouchers. The 1st Defendant said the Fax Sheets were necessary because he placed frequent orders with the Plaintiff for the Services which involved a number of different persons (sometimes up to 6-7 persons) on each occasion. When the service providers issued the air tickets and hotel accommodation vouchers, Mr Wong would prepare the invoice which would show his initials “sm”. As discussed above, I accept Mr Wong’s evidence that it was his practice to date the invoice with the date of issue of the air ticket, which served as useful record for the Plaintiff’s accounts department. 31. It was quite usual for the 1st Defendant to order air tickets and/or hotel accommodation for persons other than the 2nd Defendant and himself (eg for the Runners). The 1st Defendant agreed that at times he would order air tickets for other persons without going on the relevant overseas trip himself. Mr Wong explained that European brand name shops were reluctant to sell to familiar faces all the time. Although the 1st Defendant said he could not remember, Mr Wong estimated that over the years he had sold air tickets for over 50 persons to the 1st Defendant’s order. 32. After the air tickets and/or hotel accommodation vouchers were arranged/issued, Mr Wong would telephone the 1st Defendant to request him to collect them. Sometimes the 1st Defendant would come to the Plaintiff’s office to collect them, but more frequently he preferred to drive his station wagon to Luk Yu Building where the Plaintiff’s office was located and have Mr Wong hand them over to him in the vehicle. X. Practice for settlement of invoices 33. Since the 1st Defendant wasa major customer of the Plaintiff, Mr Wong would not ask him to sign any receipt. In any event, the 1st Defendant did not complain of any lack of receipt. Further, the Plaintiff’s failure to issue receipt did not prevent the 1st Defendant from settling the Plaintiff’s invoices during the period between 2000 and the end of 2004. 34. At first, the Plaintiff required the 1st Defendant to settle each invoice upon handing over the air ticket(s) to him. However, after 4-5 transactions in respect of which the 1st Defendant settled the corresponding invoices, the Plaintiff allowed the 1st Defendant to settle several invoices by lump sum payment instead. Such practice was illustrated by the following :
35. The above illustrations were supported by copies of the invoices/cheques referred to above and by the Record. Further, the corresponding invoice numbers were marked on the cheques for easy reference. 36. The 1st Defendant claimed that throughout the parties’ course of dealings he had a credit period of 30-45 days to settle the Plaintiff’s invoices. Mr Wong said (and on balance I accept) there was no agreed or fixed credit period for settling the Plaintiff’s invoices, but if payment were outstanding for some time, he would chase the 1st Defendant for payment. But the difference in evidence between Mr Wong and the 1st Defendant is immaterial since by the time of trial the Disputed Invoices have been outstanding for a long time. XI. Did the Plaintiff place orders for the Services under the Disputed Invoices? 37. Mr Wong frankly admitted he could not recall the fine details of how the 1st Defendant ordered the air tickets and hotel accommodation for the 3 transactions under the Disputed Invoices. However, he was firm in his evidence that it was the 1st Defendant who directly placed the orders with him, and that he himself prepared the Disputed Invoices and signed on the “Receipt” duplicates retained by the Plaintiff. Mr Wong further explained that :
38. In respect of invoice no.80848, Mr Wong recalled that the air tickets and hotel accommodation was for the 1st Defendant (who was named therein) and his party, including Madam Wai Shuk Mei (“Madam Wai”), Mr Wong Wai Lun and the 1st Defendant’s younger brother Mr Cheung Chi Pun (“Brother”). 39.The 1st Defendant claimed his impression of Mr Wong Wai Lun was hazy, but both the 1st Defendant and Mr Wong remembered Madam Wai. Mr Wong recalled Madam Wai because in November 2004 the 1st Defendant placed order with the Plaintiff for the purchase of inter alia a round trip air ticket between Hong Kong and Frankfurt for Madam Wai on the same airline and flights as set out in invoice no.80848 (see invoice no.79387 dated 16th November 2004 which was already settled by the 1st Defendant – see paragraph 34(d) above). 40. The 1st Defendant acknowledged the matters in the above paragraph. He said Madam Wai was “friend of a friend”, and he remembered her because she did not have an ordinary surname. The 1st Defendant agreed that in November 2004 he took Madam Wai and others to Europe to buy luxury goods, but he claimed to be unaware as to whether an air ticket as referred to in invoice no.80848 was issued in Madam Wai’s name because he was very busy at that time (ie he had at least 3 overseas trips each month). 41. The 1st Defendant agreed he previously placed orders with the Plaintiff for air-tickets for him to go to Frankfurt (see invoices nos.79173 and 79387 dated 30th October and 16th November 2004 – see paragraph 34(d) above). Even amongst the invoices listed in paragraph 2 above in respect of which the 1st Defendant admitted liability (see paragraph 6 above), it was evident that the 1st Defendant also placed order with the Plaintiff for himself, the Brother and 3 others for air passage Hong Kong – Singapore – Frankfurt – Singapore – Hong Kong (see invoice no.80949 dated 25th April 2005). 42. As for the Brother, the 1st Defendant also previously placed orders with the Plaintiff for purchasing round trip air tickets for the Brother to travel between Frankfurt and Hong Kong (see invoices nos.76077 and 79387 dated 5th January and 16th November 2004 – see paragraphs 34(c) and (d) above – as well as invoice no.80949 dated 25th April 2005 referred to in the above paragraph), and between Japan and Hong Kong (see invoices nos.80167, 80379 and 81175 dated 3rd February, 4th March and 13th May 2005 respectively – see paragraphs 34(e)-(f) and 6 above). 43. More importantly, invoice no.79387 dated 16th November 2005 (see paragraph 34(d) above) showed that Madam Wai, the 1st Defendant, the Brother and some others went as a single party to Frankfurt to purchase luxury goods. 44. In light of the above factual background, on balance I accept the evidence of Mr Wong and find that the 1st Defendant placed order with the Plaintiff for the Services set out in invoice no.80848. This was also supported by the E-ticket. The E-ticket showed that the Plaintiff actually arranged for the issue of the relevant air ticket for the 1st Defendant on 15th April 2005, which corresponded to the date of invoice no.80848. This also bolstered Mr Wong’s evidence that he would prepare and date the invoice with the date of issue of the air ticket. As discussed above, I am satisfied Mr Wong made a clerical error in typing the date of departure in invoice no.80848 as 20th May 2005 rather than 24th May 2005. 45. In coming to the above conclusion, I have borne in mind the 1st Defendant’s contention that he was in Japan from 20th to 25th May 2005, and only went to Frankfurt on 28th May 2005 until 2nd June 2005. A few matters are of note :
46. There is no dispute that the 1st Defendant did travel on airline flights to and from Frankfurt on 28th May and 2nd June 2005 respectively. The latter date coincided with the date of return in both invoice no.80848 and the E-ticket. In light of all of the above matters, I am persuaded it is more probable than not that the 1st Defendant used the air ticket represented by the E-ticket with alteration of the departure date. But as I have pointed out earlier, once the air tickets and hotel accommodation vouchers were issued to the 1st Defendant, whether he or other named persons actually used them is irrelevant to the matter of liability for payment of the Disputed Invoices. 47. The 1st Defendant suggested there was no reason for him to issue air tickets more than a month before the departure date. He claimed it was not his mode of practice as cancellation or alteration of departure date might attract penalties. He further claimed he would need to collect deposits from middlemen for payment of the air tickets. In light of invoice no.80848, the E-ticket and the 1st Defendant’s actual departure date for Frankfurt as well as the above factual matrix, I have found it was more probable than not there was subsequent alteration of the departure date of the 1st Defendant’s E-ticket. Further, collection of monies from middlemen is not relevant here because invoice no.80848 has not been settled to date. 48. The above also draws support from the fact that although the 1st Defendant claimed he had made enquiries with the Brother and asked for sight of the Brother’s passport, the Brother never expressly denied he went to Frankfurt between 24th May and 2nd June 2005. Although the Brother sometimes resided in the Mainland China and sometimes in Hong Kong, the 1st Defendant did not call or subpoena the Brother to give evidence even though there was no difficulty for the Brother to come to Hong Kong. 49. In respect of invoice no.80649, Mr Wong said the 1st Defendant told him the 3 persons named therein were his relatives. The 1st Defendant denied they were his relatives and further denied he so told Mr Wong. In respect of invoice no.80662, Mr Wong frankly admitted that he had no information on the 2 persons named therein. 50. Taking into account all of the above matters, especially the analysis of invoice no.80848, the past trips of the 1st Defendant, the Brother and Madam Wai to Frankfurt and Japan as disclosed in the Plaintiff’s invoices, and the past course of dealings between the parties, I am satisfied on the balance of probabilities that the 1st Defendant did place the orders for the transactions evidenced by the Disputed Invoices. XI. Chasing for payment 51. The 1st Defendant claimed that in/about May/June 2005, the Plaintiff required him to settle all outstanding invoices when he collected the air tickets. He asked Mr Wong for the outstanding amount. When Mr Wong told him, he thought it was more than he remembered, so he made the 1st and 2nd Payments and requested for more information from the Plaintiff. However, the 1st Defendant did not say what was the outstanding amount given to him by Mr Wong, and what he thought was the correct outstanding amount. 52. I do not find the 1st Defendant’s evidence convincing. He claimed he did not have any written records throughout the years, and he did not disclose any documents in the present proceedings. I find this extraordinary in light of the fact that the 1st Defendant carried on his Business for several years between 2000 and 2005, and even on his own case he had to make payments every so often to the Plaintiff for batches of invoices, and to collect deposits and balance payments for air tickets and hotel accommodation as well as his own commission from middlemen acting for the Runners whom he did not know. Further, when he gave evidence, he claimed he had to rely on his recollection because “his file was not complete”, but such assertion at least suggested he did have some records. 53. The 1st Defendant criticised the Plaintiff for failing to produce the Fax Sheets for the Disputed Invoices. Mr Wong explained in his witness statements (which he adopted as his evidence) that he had tried to locate such Fax Sheets, but was unable to do so. He believed they might have been destroyed or mis-located. In his final submissions, the 1st Defendant challenged the coincidental loss of the Fax Sheets for the Disputed Invoices. I do not think anything sinister could be read into the unavailability of the Fax Sheets for transactions done in 2005. There is simply no evidence that the Plaintiff engineered the “loss” of the Fax Sheets for the Disputed Invoices. However, even without the Fax Sheets, the evidence before me as discussed above shows on balance that the 1st Defendant placed the orders for the Services under the Disputed Invoices with the Plaintiff. 54.The 1st Defendant claimed that when Mr Wong chased him for payment, he had told Mr Wong that (a) the Disputed Invoices and the 80627 Invoice were not his, and (b) he had checked his passport which confirmed he was out of town on the departure date in invoice no.80848, so he refused to make any payment and demanded an explanation. On the other hand, Mr Wong said the 1st Defendant did not deny liability when chased for payment, and the 1st Defendant only sought to delay payment. I prefer Mr Wong’s evidence. If the 1st Defendant had already mentioned his absence from Hong Kong to Mr Wong to justify his denial of liability, he did not offer any satisfactory reason for not referring to the same in his Defence and his first witness statement, and only raising such contention in his second witness statement dated 8th March 2008. XII. Dishonoured cheque 55. The 1st Defendant said he actually deposited HK$10,000.00 into his BEA bank account for the 4/10/05 Cheque, but he inadvertently forgot he had issued 2 cheques in small sums of HK$195.00 and HK$336.00 respectively. Thus there were insufficient monies in his BEA bank account, and consequently the 4/10/05 Cheque was dishonoured on presentation for payment. The 1st Defendant claimed he was busy with overseas travels in November and December 2005, so he did not attend to the dishonoured cheque as he should have. But by the time the Plaintiff commenced the present proceedings against him in January 2006, he did not further deal with the matter of the dishonoured cheque. XIII. 80627 Invoice 56. The 1st Defendant cross-examined Mr Wong extensively on the 80627 Invoice. There is no dispute that the 2nd Payment on 5th August 2005 was evidenced by the 1st Defendant’s cheque no.62904 drawn on the BEA payable to the Plaintiff. It was marked on the face of such cheque that it was appropriated for partial settlement of invoice no.80627 (HK$5,912.00) and invoice no.80649 (HK$9,088.00) (also the Record). 57. The 1st Defendant complained that (a) the 2nd Payment should not be used to settle the 80627 Invoice, which had nothing to do with him, and (b) there was no justification for the Plaintiff to appropriate the 2nd Payment for partial settlement each of the 2 invoices. 58. According to Mr Wong, whose evidence I accept, it was the 2nd Defendant who placed the order for the 80627 Invoice. At first the 1st Defendant acknowledged such invoice was chargeable to his account, and it was only later that he told the Plaintiff to ask the 2nd Defendant for payment. Consequently, the Plaintiff amended its pleadings to claim against the 2nd and not the 1st Defendant for payment under such invoice, and the Plaintiff fairly credited the whole of the 2nd Payment as part payment for the Plaintiff’s invoices listed in paragraph 2 above. In light of the above background and bearing in mind the matters in paragraphs 3-4 above, I am persuaded that any confusion over the 80627 Invoice was also contributed by the 1st and 2nd Defendants’ conduct. In any event, any such confusion would not evidence any error in relation to the Disputed Invoices. 59. As regards the criticism against the Plaintiff’s method of appropriation of the 2nd Payment, Mr Wong explained that usually the Plaintiff would receive a cheque from the 1st Defendant for settlement of specific invoices, and he would tell the Plaintiff’s accounts department the relevant invoice numbers. However, the 2nd Payment did not fit the value of any particular invoice(s), and the 1st Defendant did not specify which invoices were to be settled by the 2nd Payment, so the Plaintiff’s accounts department made the appropriation on own initiative. Mr Wong was unclear about their decision. On balance I accept Mr Wong’s explanation. The law is clear. If the debtor makes no appropriation to any specific debt by express or implied communication to the creditor when making payment, the creditor may do so (see Chitty on Contracts 29th ed Vol.1 paras.21-059 – 21-060 at pp.1266-1267 as endorsed by the Court of Appeal in Murdoch Investments Inc v Yangtze Coaxial Cable Ltd CACV123/2000 (unreported, 27th June 2000)). 60. I am not persuaded that these contentions by the 1st Defendant are sufficient for drawing the inference that the Disputed Invoices were erroneous. I find on balance that (a) the 1st Defendant did place the orders for the Services identified in the Disputed Invoices, (b) the Plaintiff did issue the air tickets and/or order the hotel accommodation identified in the Disputed Invoices for the 1st Defendant and other named persons, and (c) the 1st Defendant failed to pay for such invoices. XIII. Conclusion 61. In the circumstances, I grant judgment in favour of the Plaintiff in the sum of HK$80,884.00 against the 1st Defendant. There is no reason why costs should not follow event. I therefore grant a costs order nisi that the 1st Defendant do pay the Plaintiff’s costs of the action against the 1st Defendant, including all costs reserved (if any), to be taxed if not agreed. The costs order nisi shall not be made absolute until expiry of 21 days. 62. At the trial Ms Leung indicated the Plaintiff would be seeking certificate for counsel. The Plaintiff’s claim (even inclusive of the invoices that were not disputed by the 1st Defendant) did not exceed HK$150,000.00. As Ms Leung conceded, this case turned on a small factual compass. I am not persuaded I should award certificate for counsel. 63. Should the 1st Defendant require translation of this Judgment into punti language, he can contact my clerk to arrange an appointment for a court interpreter to verbally translate this Judgment to him at the Wanchai Law Courts at a mutually convenient date and time.
Representation: Ms Christine Leung instructed by Messrs Pang, Kung & Co for the Plaintiff. The 1st Defendant, in person and present. | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||