Lai Siu Wai Louis and Another v. Lam Hung Kwan

DCCJ 557/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 557 OF 2011

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Before : His Honour Judge Chow in Chambers (Open to public)

Date of Hearing : 21 December 2012

Date of Decision : 8 February 2013

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DECISION

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1.There are two summons before this Court for adjudication, namely, the plaintiffs’ summons filed on 17 August 2012 for final judgment or alternatively interim payment in respect of the sum of HK$300,000 pending final judgment, and the defendant’s summons filed on 4 September 2012 for leave to withdraw the Amended Form 16 and to file and serve his Re-amended Defence. The Form 16 was filed on 9 May 2011. It was later amended. The amended Form 16 was filed on 14 September 2011.

2.The defendant’s explanation for withdrawing the admission is set out in his affirmation :-

“25. Despite I am under no obligation to refund or repay any part of the amount I received in the Ha Tsuen Project, I, originally, was willing to assist the 1^st Plaintiff by returning him the $300,000 that I received in the Ha Tsuen Project in which he had probably made a loss, as I felt so sorry for him, in particular, when the 1^st Plaintiff secured the business with Mr Poon through me and suffered loss at the end. I considered the 1^st Plaintiff and I were, after all, friends after knowing each other for several years. This accounts for the reason that I admitted liability on the $100,000 in my Defence and offered to pay by monthly installments in the original Form 16 Admission (Liquidated Amount), both filed on 9^th May 2011, in order to save costs of both parties. And also for this reason I did not tell my solicitors the whole and complete events in relation to the amount of $400,000 that I had received from the Plaintiffs, and the admission I made was only based on moral basis with a view to ending the action as soon as possible at minimal costs.

27. Upon receiving the Amended Writ of Summons with correct name of the 2^nd Plaintiff stated therein, I instructed my solicitors to file the Amended Defence on 14^th September 2011 admitting liability for the further sum of $200,000 and offered to pay the total sum of $300,000 by monthly installments in my Amended Form 16 as I am also having financial difficulty to pay the amount in lump sum.

28. I refused to admit liability on the $100,000 that I received from the Tin Liu Tsuen Project because the Plaintiffs suffered no loss but gain in the project.  Under the circumstances, I see no reason why I should refund the Plaintiffs this amount received.”

3.According to the defendant, the plaintiffs engaged debt collector to threaten and harass him.  The debt collector even spread information on his financial situation.  The plaintiffs defamed him on the internet chat rooms and facebook pages.  An article dated 28 December 2011 titled “呼籲支持林源鈞度過困境＂for the purpose of harassing him was faxed to his friends and to his solicitors by someone unknown. His solicitors received such an article through fax on 5 January 2012.  He cannot tolerate such conduct and behaviour any longer and, so he decided that he should disclose the whole and complete facts and fight with the plaintiffs up to the end.  For that reason he seeks this Court’s leave to withdraw his amended Form 16 and to re-amend his Amended Defence.

4.The alleged misbehavior deployed by the plaintiffs took place on in December 2011.  He could no longer tolerate such dirty tricks, and so he decided that he should disclose the whole and complete facts and fight with the plaintiffs up to the end.  By this he must have meant that he would not make any payment, since he did not owe any liability to make the payment of HK$300,000.  If that had been his intention, that intention must have been in his mind when he was irritated by such tricks. Then it would be very natural for him to withdraw the admissions shortly after such tricks had been performed, because he could not tolerate such misbehavior anymore.  But he did not do so.  Instead, he instructed his solicitors to write a letter on 19 July 2012 to the plaintiff, urging the plaintiffs to accept the payment of HK$300,000 by monthly installments as full and final settlement of the matter.  This is totally contrary to his intention to fight with the plaintiffs up to the end by not making any payment of money.  The very fact that the letter dated 19 July 2012 was written and delivered to the plaintiffs reflected that he wished to make payment.  This negatives any intention that he decided to fight with the plaintiffs up to the end.

5.It is only after the plaintiffs had filed their summons on 17 August 2012 that he filed his summons on 4 September 2012.  What made him do so, since on 19 July 2012, he still offered to the plaintiff for payment by monthly installments? Nothing special happened between 19 July 2012 and 4 September 2012.  There is no explanation on the change of his mind.

6.If he had really made up his mind to fight to the end because of the plaintiffs’ dirty tricks he should have shortly after December (but long before 4 September 2012) taken out an application to withdraw his admissions in the Form 16, and not to make an offer to the plaintiffs on 19 July 2012 to make the payment of $300,000 by monthly installments.  Furthermore, according to him, he did not have the responsibility to make the payment.  He did so simply because he just wanted to help the 1^st plaintiff as he was in financial difficulty.  If he had been in sound financial situation, this would have been logical. But he himself was also in financial difficulty.  This makes his explanation for withdrawing the admissions incredible.  Therefore, I refuse to give him leave to do so, and I dismiss the applications contained in his summons, but I allow the proposed re-amendments to the Defence, in so far as they are not related to the withdrawal of admissions.

7.By virtue of the defendant’s admissions contained in the amended Form 16, there is no defence to the application by the plaintiffs.  I therefore enter judgment in favour of the Plaintiffs in the sum of HK$300,000, with interest thereon, at judgment rate, commencing from 9 May 2011, until satisfaction.

Costs

8.I make an order nisi, to be made absolute in 14 days’ time, that the defendant do pay costs of and incidental to both summons, to be taxed, if not agreed, with certificate for counsel.

Miss Connie Lee, instructed by S H Chan & Co, Solicitors, for the plaintiffs

Mr Edward T C Chan, instructed by Yeung law & Co, Solicitors, for the defendant