Yau Suk Yee v. Kwok Sze Chai
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DCCJ 2321/2007 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CIVIL ACTION NO. 2321 OF 2007 -------------------- BETWEEN
-------------------- Coram : Deputy District Court Judge Edward Shum Dates of Hearing : 19th & 20th November 2009 Date of handing down Judgment : 4th December 2009
________________________ JUDGMENT ________________________ 1.By this action, the Plaintiff seeks to recover a sum of HK$250,000 from the Defendant which she alleges she had lent to the Defendant. 2.It is not disputed that the Plaintiff transferred a sum of HK$250,000 into the Defendant’s bank account on 31st January 2007 but the Defendant denies that this was made by way of a loan from the Plaintiff. 3.Counsel for the Plaintiff rightly refers me to paragraph 38-244 of Chitty on Contracts (30th ed.), Vol. II and I quote:-
4.As I have said, receipt of the money is admitted by the Defendant in this case. Prima facie there is an obligation on the part of the Defendant to repay the money upon demand. The legal burden of proof is therefore on the Defendant to show the reason why the money should not be repaid to the Plaintiff [see: Seldon v Davidson [1968] 1 WLR 1083]. 5.Counsel for the Defendant fairly concedes that the way in which the Defence was pleaded rules out any such presumption. And thus, it is the Defendant’s pleaded case that his late father mentioned to him during a conversation that “some of the rest of his savings (HK$600,000) were placed in the Plaintiff’s bank account in anticipation of a deterioration of health to such an extent that he might become physically unfit for errands to the banks.” His late father “further mentioned that the Plaintiff was a trustworthy person who would assist him in settling costs in his medical expenses from the sum of HK$600,000 which he had deposited into her bank account.” [see: last paragraph on p.2 of his Defence] 6.It is not in dispute that the Plaintiff had an extra-marital relationship with the Defendant’s late father, Kwan Chack Kwan, (“the Deceased”) and a daughter, now aged 9, was born out of that relationship. It is also not in dispute that the Deceased separated from his wife, Woo Bik Wah, (“the Wife”) in 1999 and had since moved out of the matrimonial home, a unit purchased under the Home Ownership Scheme and registered in the joint names of the Deceased and the Wife. The Plaintiff further claims and it is not seriously challenged by the Defendant that the Deceased started to cohabit with her sometime in late 1999. 7.Sometime in or about early January 2007, the Deceased was diagnosed to be suffering from lung cancer. After discharging from Wong Tai Sin Hospital, the Deceased returned to live in the matrimonial home. Meanwhile, the Defendant returned from England to look after the Deceased. The Defendant arrived at Hong Kong on 12th January 2007 and he greeted by the Deceased, the Plaintiff and their daughter at the airport. Although the Defendant knew that the Deceased had an extra-marital relationship with the Plaintiff, this was the first time that they met. 8.Three days later, viz. on 15th January 2007, the Deceased took the Defendant to the Kwun Tong branch of HSBC and transferred 2 sums of HK$200,000 each to the Defendant and his younger sister, Kwok Sze Yin (“Sze Yin”). The Defendant claims in his witness statement (which stands as his evidence-in-chief) that the Deceased had “remarked that he distributed the money to my sister and me because his health might deteriorate to an unfit condition”. 9.Later on the same day, accompanied by the Defendant, the Deceased also went to the Kwun Tong office of Leisure & Cultural Services Department where he was working as an amenities assistant and filled out a form nominating the Wife to receive all the death benefits. It now transpires that the total death benefits paid out to the Wife amount to some $1.4 million. 10.In fact, prior to the Defendant’s return to Hong Kong, the Deceased had already transferred a sum of HK$600,000 to the Plaintiff’s bank account on 11th January 2007. The Defendant, Sze Yin and the Wife all agree in their evidence that they were aware of this transfer but they disagree with the Plaintiff’s claim that the sum of HK$600,000 was given to her as future maintenance. 11.It is perfectly clear therefore from the evidence that the Deceased was distributing his assets to his immediate family members at a time when he felt he was not going to live long. This is actually admitted by the Defendant in his evidence in chief. 12.As mentioned above, the Deceased had an extra-marital relationship with the Plaintiff for over 10 years and a daughter was born out of that relationship. It is difficult to imagine that the Deceased, being a loving and responsible husband and father, would give away all his assets without even providing for the future maintenance of the Plaintiff and their young daughter. 13.Counsel for the Defendant draws my attention to the fact that the Plaintiff has made an application on behalf of her daughter to claim against the Wife a lump sum of HK$400,000 or any reasonable amount as adjudicated pursuant to section 4 of the Inheritance (Provision for Family and Dependants) Ordinance, Cap. 481 out of the Deceased’s estate [DCMP No.2755 of 2008 refers]. This is of course not something which I have to decide in these proceedings. 14.But then again, this only demonstrates that the Wife is not going to provide on her own volition anything out of the death benefits that she received for the future maintenance of the Plaintiff’s young daughter. 15.Any suggestion that the Deceased intended to provide for the future maintenance of the Plaintiff’s younger daughter out of his pension benefits is clearly a non-starter. The Deceased had already nominated the Wife to receive all the death benefits. Unless the Deceased received his pension benefits during his life time, his pension benefits would be converted into death benefits and be paid out to the Wife. Given the relationship (or rather the lack of relationship) between the Wife and the Plaintiff, the Deceased could hardly expect the Wife to be willing to provide on her own volition anything out of the death benefits for the future maintenance of the Plaintiff’s young daughter. But why would the Deceased leave his young daughter’s future livelihood at the mercy of the Wife? 16.In any case, I find it unbelievable that the Deceased would take the trouble to transfer a sum of HK$600,000 to the Plaintiff to hold on trust for him when he knew full well that the Defendant was going to return from England to look after him on the following day. In this connection, the Defendant also admitted under cross examination that he had applied for deferral of his studies at the Oxford University for 2 terms before he returned to Hong Kong to look after the Deceased. Since the deceased was no longer cohabiting with the Plaintiff after his discharge from Wong Tai Sin Hospital, I can see little point in his entrusting the Plaintiff with the sum of HK$600,000. 17.More important still, the Wife departed from her witness statement. She mentioned for the first time when being cross-examined that the Deceased had told her that out of the sum of HK$600,000, HK$200,000 was for the Plaintiff, HK$200,000 was for the Plaintiff’s daughter and the rest was for the Deceased’s own use. This flatly contradicts with the evidence of the Defendant and Sze Yin that the whole sum of HK$600,000 was held by the Plaintiff on trust for the Deceased. 18.Viewed from these perspectives, I am unable to accept the Defendant’s contention that the Deceased merely transferred the sum of HK$600,000 to the Plaintiff for her to hold as trustee. 19.It is clear from reading the relevant extract from the Deceased’s bank passbook that a mere sum of HK$21,000 odd was left after making the aforesaid distribution of cash. The Deceased had therefore practically no means to meet the medical expenses for chemotherapy which was due to start on 30th January 2007 [see: the hospital charges summary issued by the Adventist Hospital]. 20.There is hardly any dispute that the main bulk of the sum of HK$250,000 was spent on the Plaintiff’s medical and credit card expenses. The remaining question is whether the loan of HK$250,000 was made to the Defendant. 21.But, first of all, this is never the Defendant’s case that it was a loan to the Deceased. Indeed, the Defendant went so far as to saying in his witness statement (which stands as evidence in chief) that “the said transaction of money was carried out solely on a basis of mutual agreement between the Plaintiff and my late father to return a part of my late father’s money to him for his medical expenses; and it was not a loan, still less a loan to me.” 22.Having rejected the Defendant’s evidence that the whole sum of HK$600,000 was held by the Plaintiff on trust for the Deceased, I have no hesitation in rejecting the alternative suggestion that this might be a gift from the Plaintiff to the Deceased. In any event, this was never pleaded in the Defence. But if indeed it was a gift from the Plaintiff to the Deceased, I fail to see any good reason why the Plaintiff could not settle the medical and credit card expenses for the Deceased directly. 23.Since the Defendant has failed to discharge his legal burden on showing why the money should not be repaid to the Plaintiff, I therefore grant final judgment for the Plaintiff against the Defendant for the sum of HK$250,000 together with interest thereon at the rate of 9.13% from the date of writ to the date of judgment and thereafter at judgment rate until payment. 24.There is no reason why costs should not follow the event. I grant a costs order nisi that the Defendant do pay to the Plaintiff costs of this action to be taxed if not agreed. There be certificate for counsel.
The Plaintiff : represented by Ms. Eugenia Yang instructed by M/S. Jal N. Karbhari & Co., Solicitors The Defendant : represented by Mr. Calvin Cheuk instructed by M/S. Charles Chu & Kenneth Sit, Solicitors |