Ng Wai Chiu v. Ching Po Kam Yvonne

DCCJ3394/2007

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 3394 OF 2007

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BETWEEN

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Coram :  H.H. Judge Chow

Date of hearing :     7^th August 2008    

Date of handing down Decision :   25^th September 2008

Decision

1.This is the Plaintiff’s appeal against the decision made on 13 June 2008 by Master Poon who ordered, inter alias, that the judgment entered against the Defendant on 24 October 2007 be set aside. 

2.In this action the Plaintiff claims against the Defendant for $36,000, being balance of service charge in rendering service to procure a mortgage loan to her for the mortgage of the property known as Flat D, 11^th Floor, Block 3, Harvest Garden, No. 1 Wing Fat Lane, Tuen Mun (“the Property”), and $190,000 as a personal loan advanced by the Plaintiff to the Defendant on 2 February 2007 and interest thereon at $5,000.

3.The Defendant avers that she did not sign the agreement in respect of the service charge as referred to in the Statement of Claim, that the alleged loan referred to in the Statement of Claim was never advanced to her, and that she did not sign the alleged receipt relating to this loan.  The central issue of this case is whether the Defendant signed the two agreements in question. 

4.On 23 January 2007 the Plaintiff signed a Provisional Sale and Purchase Agreement for the purchase of the Property.  She intended to purchase the Flat with the assistance of a mortgage loan.  On 2February 2007, the Defendant went to see the Plaintiff at a clubhouse known as Mahjong Club for actors and entertainers at Mongkok. The Plaintiff’s version is that at that place the Defendant signed an agreement for payment of his service charge and the loan agreement.  He also gave her the loan of $190,000 in cash after she had signed the two agreements.  The Defendant denied all these allegations.  The Defendant said that after 2 February 2007 she had no contact with the Plaintiff until sometime on 3 July 2007.  In her 2^nd affirmation filed on 17 April 20087, she said:-

“14. It was not until sometime or 3^rd July 2007 at about 9.45 a.m. when I heard from Mr. Ng again.  On that occasion Mr. Ng called me at my office and told me that I had to repay him HK$200,000.00.  I was astonished and denied owing him any money.  I then telephoned Ngan immediately, suspecting that he might have been involved somehow.  Over the telephone Ngan refused to tell me what was going on but only asked me to meet him in private to talk about it.

15. A couple of days later on or about 5^th July 2007, at Ngan’s request, I met Ngan at Shantung Street, Mongkok, supposedly to discuss the matter during dinner.  At my request, Madam Lui went with me.  Having met us, however, Ngan brought us to the mahjong clubhouse where Mr. Ng was waiting.  There Mr. Ng produced a piece of paper with handwriting allegedly showing that 3 repayments had been made in February, March and April 2007 towards the alleged debt due to him.  I denied having made any repayments as I never even contracted the alleged debt in the first place.  Madam Lui also asked Mr. Ng for proof of the alleged indebtedness but whilst he said there was an agreement in writing he could not produce it.  He also refused to give his name card to Madam Lui.  An argument then ensued and at one point Madam Lui said she would be calling the Police.  On hearing this Ng asked me and Madam Lui to leave the place.  At the same time Mr. Ngan assured me that he would handle the matter.  Madam Lui and I then left the place.”

(Underlines provided)

5.In paragraph 7 of his supplemental affirmation filed on 31 May 2008, the Plaintiff made a reference to paragraph 6 of the Defendant’s 2^nd Affirmation.  At the end of his affirmation he avers that the Defendant is not telling the truth.  So the Plaintiff did peruse and consider the Defendant’s 2^nd Affirmation.

6.The Defendant alleges that the Plaintiff was present at the 2^nd meeting on or about 5 July 2008.  The Plaintiff did not refute the truth of what was described under paragraphs 14 and 15 of her 2^nd Affirmation.  He was free to say that the Defendant was not telling the truth, in the way he did at the end of his supplemental affirmation.  But he did not do so.  Accordingly there is truth in what the Defendant said under paragraphs 14 and 15 of her 2^nd Affirmation.

7.The Defendant said that during that meeting the Plaintiff produced a paper allegedly showing that 3 payments had been made in February, March and April, 2007 towards the alleged debt due to him.  She denied having made any repayments as she never contracted the debt.  She attended the meeting in order to find out why the Plaintiff told her that she had to repay him $200,000.  During this meeting the Plaintiff produced a piece of paper, which showed that 3 repayments had been made to the personal loan.  In my judgment, these 3 repayments could not have been made by the Plaintiff.  If the Defendant had borrowed the loan from him, naturally the repayments would have been made by the Defendant.  But there  is no evidence to show that this is the case.  If the Defendant had made the repayments, the Plaintiff would have said so in his affirmations.  But in his affirmation and supplemental affirmation the Plaintiff did not mention anything about repayment to the personal loan by the Defendant.  So the Defendant could not be the borrower of the alleged loan.  That being the case, she could not have signed the loan agreement and could not have received $190,000, as alleged by the Plaintiff.  The irresistible conclusion is that the Plaintiff was not telling the truth when he alleged that the Defendant had signed the two agreement.

8.The Defendant has convincingly shown to this Court that she did not sign the agreements, and that she did not receive the personal loan.  She has shown that there is a real prospect that she will be able to defend her case successfully.  The decision made by the master is correct.  Accordingly I dismiss the Plaintiff’s application.

9.I have considered very carefully all the Plaintiff’s arguments which attempt to discredit the Defendant’s evidence in various aspects.  When there is very credible evidence to show that the Defendant did not sign the 2 agreements and did not receive the personal loan, these arguments must fail.

Costs

10.I make an order nisi, to be made absolute in 14 days’ time, that the Plaintiff do pay costs of this application to the Defendant, with certificate for Counsel.  The Defendant’s own costs be taxed in accordance with Legal Aid Regulations.

The Plaintiff:       represented by Mr. K.M. Chong, instructed by M/S. Tang, Wong & Cheung, Solicitors.

The Defendant:   represented by Mr. Victor Gidwani, instructed by M/S. Tangs, Solicitors.