Lui Fai Yeung v. Chui Kin Man
Read the full judgment text of FACV 16/2011 on BabelCite. This Court of Final Appeal judgment was delivered on 21 December 2012 before Chan PJ, Ribeiro PJ, Tang PJ, Bokhary NPJ and Lord Walker of Gestingthorpe NPJ.
Civil law – loans versus gifts – burden of proof – Seldon v Davidson – presumption of advancement – intimate relationship – Acknowledgement of Debt – taped conversations – appeal – Court of Final Appeal – relationship between plaintiff and defendant described in statement of claim as 'romantic' from late 2004 to October 2007 – plaintiff claimed 178 payments totalling HK$3,350,701 between January 2005 and September 2007 were loans – defendant said payments were gifts or private monies deposited with her for custody or pocket money – trial judge (Chung J) dismissed the claim on 30 September 2010, finding he was not fully satisfied with the evidence of either party and that the plaintiff had failed to prove how much of the payments fell into which category – Court of Appeal dismissed the plaintiff's appeal – whether principles in Seldon v Davidson applied so that proof of payment in an intimate relationship raised a prima facie obligation to repay with the burden on the defendant to show the money was a gift – held, no; Seldon v Davidson concerned transactions between strangers and a resulting trust, and the proper inference depends on the circumstances of the case rather than on who bears the burden of proof – the manner, frequency, and amounts of the payments (numerous small cash payments with occasional larger remittances), the plaintiff's greater financial means, and the defendant's reliance on him made the allegation that all payments were loans incredible – the proper inference was that the payments were gifts – whether the Acknowledgement of Debt dated 31 July 2007 should be given weight – held, no; the defendant denied signing it, no taped conversation about the Acknowledgement was produced despite the plaintiff's habit of recording, the plaintiff made further payments of HK$112,258 after signing, the defendant made no repayment, the plaintiff wrote a love letter to the defendant in March 2008 after commencing the action, and the plaintiff was not above producing unreliable documents (including a letter falsely stating the defendant had been employed by International Food) – whether the seven taped conversations contained admissions that the payments were loans – held, no; the 2 August 2007 statement by the plaintiff was not contradicted by the defendant but silence in the presence of her sister was not an admission, a 25 May 2005 remark properly translated did not use the word 'borrowed', and the plaintiff failed to produce any tape of a request for a loan or the making of a loan – appeal dismissed with an order nisi that the plaintiff pays the costs of the appeal to the defendant, such costs to be taxed unless agreed, with 14 days to make any contrary submissions on costs, failing which the order nisi shall stand as an order absolute.
Legal issues: Application of Seldon v Davidson and presumption of advancement to intimate-relationship money transfers · Reliability of the Acknowledgement of Debt dated 31 July 2007 · Treatment of the taped conversations as evidence of loans
Outcome: Appeal dismissed; the plaintiff's claim for repayment of the alleged loans is dismissed.
Cited by 7 cases · Cites 1 case
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FACV No 16 of 2011 IN THE COURT OF FINAL APPEAL OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION FINAL APPEAL NO 16 OF 2011 (ON APPEAL FROM CACV NO 228 OF 2010) _____________________ Between :
_____________________ J U D G M E N T _____________________ Mr Justice Chan PJ: 1.I agree with the Judgment of Mr Justice Tang PJ. Mr Justice Ribeiro PJ: 2.I agree with the Judgment of Mr Justice Tang PJ. Mr Justice Tang PJ: 3.In 1998, the plaintiff, a married man, met the defendant, an unmarried masseuse, at a massage establishment in Jordan. Their relationship between late 2004 and October 2007 was described in the statement of claim as “romantic”[1]. 4.The plaintiff claims that between January 2005 and October 2007 he lent a total of HK$3,350,701 to the defendant, of which he said the defendant repaid HK$153,000. This action was commenced in January 2008 for the balance of HK$3,197,701. 5.The defendant’s case is that the plaintiff gave her money as gifts on various occasions between early 2005 and September 2007, and during the same period, the plaintiff on various occasions asked the defendant to allow him to deposit his “private monies” into her bank account. Part of these monies were returned to the plaintiff and part were used with the plaintiff’s consent as the defendant’s pocket money. The defendant also said that plaintiff asked her to give up her job and that he would look after her[2]. 6.At trial, the plaintiff relied on his own evidence[3], an Acknowledgment of Debt dated 31 July 2007 and certain taped conversations[4] with the defendant. After trial, on 30 September 2010 Chung J dismissed the claim. 7.The learned trial judge was “not fully satisfied with the evidence of either the plaintiff and the defendant” and took the view that the monies paid by the plaintiff to the defendant might have been:-
8.He dismissed the plaintiff’s claim because the plaintiff had failed to prove how much of these payments[5] fell into which of the above categories. 9.In the Court of Appeal[6], the plaintiff relied on Seldon v Davidson [1968] 1WLR 1083, a decision of the English Court of Appeal, and argued that in the circumstances of the present case, once payment was proved, it was prima facie repayable on demand, and the burden was on the defendant to show otherwise. He also contended that the trial judge ought to have given effect to the Acknowledgement of Debt and that on the evidence (including the taped conversations) he should have found that the payments were loans made by him to the defendant. The Court of Appeal dismissed his appeal. 10.The plaintiff appealed to us as of right. Although he was represented at trial as well as on appeal, he appeared before us in person.[7] He relies on 3 grounds of appeal:
Seldon v Davidson 11.On Seldon v Davidson, the Court of Appeal said:
12.The plaintiff submits, rightly in my view, that his relationship with the defendant would not give rise to any presumption of advancement. However, I do not agree with his submission that the Court of Appeal had decided against him because they thought that the defendant could rely on a presumption of advancement. 13.In Seldon v Davidson, the plaintiff claimed the return of £1550 as money lent to the defendant who was employed by her as a chauffeur and handyman. The defendant had admitted the receipt of the money but claimed that the money was a gift. The County Court Judge ruled that in such circumstances it was for the defendant to begin. The defendant appealed and the ruling was upheld by the Court of Appeal. Willmer LJ said at 1088C that it was admitted on the defendant’s behalf that:
14.Here we are not concerned with a resulting trust. It is clear that on the plaintiff’s case the defendant was free to use the money lent although she was obliged to repay on demand. 15.Edmund Davies LJ (as he then was) agreed with Willmer LJ. He pointed out at 1089G:
16.I believe the proper inference to draw depends on the circumstances of the particular case and not on who has the burden of proof.[9] 17.In Mak Ka Hing v Pang Ming Chung, [2011] 1 HKLRD 347, Le Pichon JA[10] said at para 23:
18.Here, we are not concerned with transactions between strangers. The plaintiff and the defendant had an intimate relationship between late 2004 and late 2007. The payments that are the subject of the plaintiff’s claim were made during this period. The plaintiff relied on a total of 178 alleged loans in his statement of claim. The payments commenced on 17 January 2005 with a cash payment of $5,000 and ended on 15 September 2007 with a cash payment of $4,000. The first 116 of these loans were made between 17 January 2005 and 21 November 2006. They were all made in cash, 84 of which were for $5,000 or less. Then between 14 December 2006 and 8 August 2007, there were a total of 13 remittances or bank transfers ranging from $2,000 to $500,000. Between 31 December 2006 and 15 September 2007, there were a total of 49 cash payments, of which 21 were for $5,000 or less. 19.The Court of Appeal said:
20.The Court of Appeal added:
21.In the circumstances of this case, the proper inference to draw is that the payments were gifts. Certainly so, in the case of the cash payments. But, the plaintiff did not distinguish between the cash payments and the remittances. His case was that they were all loans. Given his relationship with the defendant, it is incredible that he was not supporting the defendant. Moreover, although he had denied ever making any cash gift to the defendant, it is clear from his witness statement that he had made expensive gifts to the defendant.[13] 22.Moreover, as the Court of Appeal said:
23.I believe the proper inference is that all the payments were gifts. 24.I turn to the letter the plaintiff wrote to the defendant on 3 March 2008, in relation to which the Court of Appeal said:
25.I believe this letter is more consistent with the payments being gifts than loans. Acknowledgment of Debt 26.The plaintiff also relied on an Acknowledgement of Debt in Chinese dated 31 July 2007. It bears what was purported to be the defendant’s signature. As translated it reads :
27.In her evidence, the defendant said the plaintiff had tried to persuade her to sign some such documents but she refused. According to the defendant, the plaintiff was under pressure to seek repayment from her. 28.The plaintiff was a director and shareholder of International Food Ingredients (Asia) Limited, (“International Food”) which carried on the business of food trading. His wife has substantial wealth.[14] A cousin of the plaintiff’s wife was the major owner of International Food and the money paid by the plaintiff for the defendant came at least in part from International Food. There is a Deed dated 14 November 2007 made between International Food, Mr Wee Lee Hiong T (the cousin), the plaintiff and his mother-in-law Wong Suet Ying in which the plaintiff admitted indebtedness to International Food and Mr Wee of HK$1,500,000. The plaintiff agreed to repay HK$1,500,000 on or before 14 May 2008 and as security Ms Wong agreed to provide a property as security. 29.There is a Recital in the Deed that:
30.It is against this background that one should consider the Acknowledgment of Debt. 31.The judge was not satisfied with the plaintiff’s evidence regarding the Acknowledgement of Debt and placed no weight on it. The Court of Appeal agreed. With respect I agree with them. 32.By the Acknowledgment of Debt, the defendant had promised to repay $500,000 within 3 months of 31 July 2007 and the balance within the following 3 months. However, not only had the defendant made no repayment, the plaintiff made a cash payment to the defendant on 31 July 2007 of $7,000. There were then five further cash payments from 3 August 2007 and 15 September 2007 ranging from $3,000 to $9,000, as well as a remittance of $80,258 on 8 August 2007. The total paid by the plaintiff to the defendant after the signing of the Acknowledgment of Debt was $112,258. These payments form part of the Plaintiff’s claim. As noted above, the plaintiff had written a love letter to the defendant in March 2008, after the present action was commenced on 23 January 2008. Such conduct casts grave doubt on its genuineness or the reliability of the document as an acknowledgment of debt. There is also a letter signed by the plaintiff for International Food saying that the defendant had been working there since 1 July 2004 at a salary of $23,500. It seems clear that it is not what it purported to be. So the plaintiff was not above producing documents which cannot be relied on. 33.Moreover, although the plaintiff had a habit of taping conversations, no taped conversation was available regarding the Acknowledgment of Debts, or its signing or the discussion(s) which led to it. That I must say is highly surprising. 34.In such circumstances, and also for the reasons given by the courts below, I agree that no weight should be given to the Acknowledgement of Debt. Fair Treatment of Evidence Taped Conversation 35.Seven transcripts were produced of conversations which took place on:
36.The recorded conversation of 2 August 2007 was between the plaintiff, the defendant and the defendant’s sister. The others were between the plaintiff and the defendant only. 37.According to the plaintiff the conversations were recorded with a MP3 and that there were other taped conversations which he had not produced. 38.The background to these conversations can be briefly stated. The defendant and her sister had jointly purchased a “relocation property” in Shanghai in 2005, each contributing $50,000. The defendant’s contribution came from money provided by the Plaintiff, probably the cash sum of $50,000 provided on 21 March 2005[15]. The 2005 conversations were mostly about the purchase. 39.The 2007 conversations show that the plaintiff was under pressure from the cousin to repay money which the plaintiff had obtained (possibly improperly)[16] from International Food. He was trying to persuade the defendant (possibly her sister as well) to help him by selling a property (probably the relocation property in Shanghai), to charge the defendant’s shop in Hong Kong to the cousin as security for repayment, as well as to liquidate a small investment of $70,000[17] with the Bank of China and pay him the proceeds. It is clear that the plaintiff was desperate. In the taped conversation of 2 August 2007, he said: “I am dying. Even don’t want to answer the call from cousin.”[18] 40.The plaintiff relied on the following passage in the transcript of the 2 August 2007 conversation, where the plaintiff said at 94 “If those problems still cannot be resolved, I will be in big trouble. I borrowed the money for lending to her.” (借來借給她的) The plaintiff’s statement was not contradicted by the defendant. 41.However, I do not regard the absence of contradiction as an admission by the defendant. After all, her elder sister was present and she might not wish her to know her true relationship with the plaintiff. Throughout this conversation there was no express admission by the defendant that she had ever borrowed any money from the plaintiff. The fact that she was willing to raise money and to pay such money to the plaintiff is also equivocal. After all, they were still on intimate terms, and according to the plaintiff, as late as June 2007 she had wanted the plaintiff to divorce his wife and marry her[19]. 42.Since it is clear that by this time, the plaintiff would want evidence of an admission from the defendant, his failure to obtain a clear admission from her on tape is telling. None of these conversations contain an unequivocal admission by the defendant that she had borrowed money from the plaintiff. 43.I turn to the taped conversations of May 2005. They mainly concern the purchase of a relocation property in Shanghai. In the second transcript of a conversation on 25 May 2005, the plaintiff relied on the following passage in the translation provided by him:
44.The Chinese original reads:
45.In the Chinese original the word “borrowed” was not used. Instead of “After all, the money was borrowed from you for this house”, I believe the Chinese should be translated as “After all, your money was used for this house”. 46.In any event, I would not regard this as a sufficiently unequivocal admission by the defendant that she had borrowed $50,000 from the plaintiff. 47.It is remarkable that, despite the numerous loans that the plaintiff relied on[20], and his practice of taping conversations with the defendant, the plaintiff has been unable to produce any taped conversation of any request for loan by the defendant or the making of a loan by him. 48.In all the circumstances, I believe the correct and natural inference is that the payments were gifts and not loans. I therefore agree with the courts below that the plaintiff’s claim should be dismissed. I would dismiss the plaintiff’s appeal. 49.I would also make an order nisi that the plaintiff pays the costs of this appeal to the defendant, such costs to be taxed unless agreed. Any contrary submission on costs should be made within 14 days from the date of this judgment. In default of such submissions, the order nisi should stand as an order absolute without further order. Mr Justice Bokhary NPJ: 50.In civil cases, issues of fact are normally resolved by way of a finding one way or the other. Disposing of such an issue on the burden of proof is far from ideal. But it is not a course which the law absolutely forbids. The trial judge dismissed a claim for the repayment of what the plaintiff said were loans but the defendant said were gifts. In dismissing the claim, the trial judge proceeded on the basis that the plaintiff had not discharged his burden of proving the loans which he alleged and the defendant denied. The Court of Appeal affirmed the trial judge’s judgment. I see no ground on which we can interfere. 51.Having called the course adopted by the trial judge far from ideal, I should in fairness to him add this. If one were to go by the inherent probabilities, there were some payments by the plaintiff to the defendant that one might be disposed to think were loans. But the plaintiff’s case — and his testimony — was that all the payments were loans. Neither at trial, nor in the Court of Appeal, nor indeed before us, was the defendant ever called upon to deal with a case that there were some loans even though there were also some gifts. 52.In the result, I, too, would dismiss the appeal with the order as to costs proposed by Mr Justice Tang PJ. Lord Walker of Gestingthorpe NPJ: 53.I agree with the Judgment of Mr Justice Tang PJ. Mr Justice Chan PJ: 54.The appeal is dismissed with a cost order nisi as in para.49.
The appellant appeared in person The respondent appeared in person [1] The defendant married in March 2005 and was divorced in February 2007. Her intimate relationship with the plaintiff continued during her marriage. According to the plaintiff, the defendant’s “masquerade of being single” was only unmasked in mid-2007. [2] It appears that she had given up her job as a masseuse and started a foot massage business but it is not clear when she did so. [3] There was also evidence from Lu Cheung Pi, the plaintiff’s nephew, whose evidence was relevant to when the plaintiff’s wife (Mrs Lui) discovered the plaintiff’s affair with the defendant. [4] There were a total of 7 taped conversations. The taped communications were produced “to support what I have stated in the present action.” Para 2, plaintiff’s supplemental witness statement. They will be dealt with in some detail below. [5] Chung J, however, made no finding on the amount of money actually paid by the plaintiff to the defendant. According to the defendant, it was HK$2,000,000 odd. [6] Both the trial and the appeal were conducted in Chinese. Their judgments were also in Chinese, we have been provided with translations. [7] The Defendant was represented until 18 December 2009. Thereafter, she acted in person. [8] In other words, his lordship did not have in mind only blood relationship such as between father and son which would give rise to a presumption of advancement. [9] It is not necessary to consider whether Seldon v Davidson was concerned with persuasive or evidential burden. [10] With the agreement of Ma CJHC (as he then was) and Rogers VP [11] Mak Ka Hing was concerned with commercial transactions between strangers. [12] See para 24 below. [13] Which include running machines, massage beds, crystal accessories, presumably for her foot massage business. [14]Para 13 plaintiff witness statement. It was an issue at trial when Mrs Lui discovered the plaintiff’s affair with the defendant. The plaintiff’s nephew gave evidence that the plaintiff’s wife telephoned him on 14 September 2007 and told him that the plaintiff had lent a lot of money to the defendant that she suspected that the plaintiff had an affair with the defendant. This is what the Court of Appeal said about such evidence :
[15] Item 15, para 6 the statement of claim. [16] It appears from the taped conversation on 1 October 2007 that the plaintiff had requested the defendant to sign a (mortgage or charge) “按揭”on 4 Oct 2007 and that she must do so “不然表哥會告我，到時候連你都接賘什麼的，都有問題了” [“otherwise cousin will (sue/prosecute) me, at that time, you will have problem, for receiving stolen properties”] [17] At 361 2 August 2007 transcript. [18] At 370 2 August 2007 transcript. [19] Though according to the plaintiff that was because the defendant did not want to repay him. Para 13 plaintiff’s witness statement. [20] Which include a remittance of $500,000 on 14 December 2006, and a remittance of $270,000 on 9 January 2007. | |||||||||||||||||||||
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