Choy Yun Kai t/a Fu Cheung Co v. Win Tat Engineering Ltd and Others

HCCT 1/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTRUCTION AND ARBITRATION PROCEEDINGS

ACTION NO 1 OF 2009

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J U D G M E N T

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A. INTRODUCTION

1.The plaintiff (“Fu Cheung”) was a subcontractor of the 1^st defendant (“Win Tat Ltd”) back in 1997.  The subcontract (“the Subcontract”) was entered into orally and in relation to electrical maintenance works to be performed under a Government Term Maintenance Contract.

2.Mr Choy Yun Kai (“Mr Choy”) claims in this action that he was the sole proprietor of Fu Cheung.

3.The various works carried out under the Subcontract stretched from April or May 1997 to around sometime in 1999.

4.The action was commenced in 2004 as HCA 2056/2004.  It was transferred to the construction and arbitration list in December 2008. 

5.Fu Cheung’s primary claim is against Win Tat Ltd for alleged outstanding payments under the Subcontract, together with some unauthorised deductions, in the total sum of some $1.3 million odd. 

6.Fu Chung also claims against the 3^rd to 6^th defendants for various alleged unauthorised deductions against Fu Cheung’s payments entitled under the Subcontract.  These claims amount to some $280,000 (against 3^rd defendant), $220,000 (against the 4^th defendant), $230,000 odd (against the 5^th defendant) and $200,000 (against the 6^th defendant).  As will be explained later, the 3^rd to 6^th defendants all said to have advanced loans to Fu Cheung on behalf of Win Tat Ltd and Win Tat Ltd was therefore entitled to make those deductions from payments under the Subcontract.

7.The 2^nd defendant (“Mr Leung”) was closely involved with Fu Cheung.  He had been representing Fu Cheung to manage and carry out the works under the Subcontract. 

8.The principal dispute in this trial involve Mr Leung’s status in Fu Cheung:

(1)  It is the 1^st and 3^rd to 6^th defendants’ primary position that Mr Leung was or had been held out as a partner of Fu Cheung together with Mr Choy.  All the alleged outstanding payments and the loans had in fact been made in the manner as requested by Mr Leung as a partner for Fu Cheung.  Thus, Win Tat Ltd had fully discharged its payment obligations under the Subcontract, together with its entitled deductions made against the loans advanced to Fu Cheung (by it and the other defendants) as requested by Mr Leung.

(2)  On the other hand, as mentioned above, Mr Choy’s primary position is that Mr Leung was not a partner but only an employee of Fu Cheung.  Thus, any alleged payments made by Win Tat Ltd or loans advanced by Win Tat Ltd and the other defendants in the manner as requested by Mr Leung had nothing to do with Fu Cheung.  Fu Cheung has therefore not been properly paid with those sums.

9.In light of the above, Fu Cheung has also claimed against Mr Leung (as the 2^nd defendant) for the alleged outstanding payment and unauthorised deductions in the total sum of $1.58 million odd.  Mr Leung has never participated in the proceedings nor defended the action.  A default judgment was entered against him in January 2011.  

10.This trial therefore only concerns Win Tat Ltd (the 1^st defendant), and the 3^rd to 6^th defendants.  For convenience, I will refer them collectively as “the defendants” as when necessary.

11.Other than the above fundamental dispute on whether Fu Cheung was a partnership between Mr Choy and Mr Leung, the defendants further raise the following principal issues at trial:

(1)  If Fu Cheung only became a partnership subsequent to entering into the Subcontract, whether Win Tat Ltd was entitled to continue to treat Mr Leung as a partner pursuant to s 38 of the Partnership Ordinance (Cap 38) (“the PO”).

(2)  Whether when the questioned payments were made to Mr Leung or in the manner as directed by him, they were in any event further expressly consented to and confirmed by Mr Choy for Fu Cheung.

(3)  Finally and in any event, whether a final account was entered into between Fu Cheung and Win Tat Ltd in January 2001 for all the outstanding payments under the Subcontract, where Fu Cheung received the final payment in accordance with the final account to settle all of Win Tat Ltd’s payment obligations.

12.As it can be seen, the primary issues in this trial are thus (a) whether Mr Leung was a partner of Fu Cheung at the relevant time, (b) whether Wing Tat Ltd was entitled to treat Mr Leung as a partner of Fu Cheung pursuant s 38 of the PO, (c) whether in any event the questioned payments and loans had been confirmed and consented to by Mr Choy for Fu Cheung, and (d) whether Fu Cheung entered into a final account with Win Tat Ltd for the payments under the Subcontract and settled all payment obligations.

13.There are also some subsidiary issues raised in this action, but whether they call for determination depends on the finding of these main issues.  I would deal with them as when necessary.

14.Before I go into the evidence relating to the main issues, to put the matter in proper context, it would be helpful to first set out the relevant background facts which are not controversial or challenged.

B.  BACKGROUND

15.Unless otherwise specified, the following background facts are what I find to have been established, as they are common, or either not disputed or not challenged.

16.Win Tat Electrical Engineering Co (“Win Tat Engineering”) was established by Mr To Yu Loong (“Mr To”) and Mr Leung Siu Hung (“S H Leung”) in 1979 to carry out small-scale electrical installation works.  In about 1987, they further incorporated Win Tat Ltd, intending it to take on larger scale works.  Mr To and S H Leung are the only two shareholders of Win Tat Ltd[1].

17.The 4^th defendant is also a company formed by Mr To, while Mr To also have another company called Winrise Engineering Ltd (“Winrise”). 

18.In 1996, a Mr Wong Chi Wai (“Mr Wong”) (the 6^th defendant) was working with Onstar Engineering Co Ltd (“Onstar”). At that time, Onstar was awarded a contract of building services installation under a government contract.  The work was sub-contracted to one RYBN Electrical Engineering Co Ltd.  Mr Wong came to know Mr Leung, as Mr Leung with other workers were then working as sub-sub-contractors under that project.

19.Before the setting up of Fu Cheung, Mr Choy and Mr Leung were partners of another company called San Wing Engineering Co (新詠工程公司) (“San Wing”), which carried out electrical and air conditioning works.

20.In about early 1997, Win Tat Ltd was awarded the subcontract from Onstar for the air-conditioning and electrical installation works under the Government Term Maintenance Contract No TCE‑019/96 (“the TCE‑019 Works”).  Wan Chung Construction Co Ltd was the main contractor and the sub-contractors down the line were Yordland Engineering Ltd, Onstar and Win Tat Ltd.

21.As Win Tat Ltd did not have adequate manpower at that time, it decided to contract out the works to another sub-contractor under the TCE-019 Works.  Mr Wong introduced Leung to Mr To for that purpose.

22.Eventually, the TCE-019 Works were sub-contracted to Fu Cheung for the electrical installation works (“the TCE-019 Electrical Works”) under the Subcontract, and to San Wing for air-conditioning works (“the TCE-019 Air-conditioning Works”).  The payment terms were, among others, “pay when paid”.

23.The TCE-019 Electrical Works commenced in around April or May 1997.  They lasted until sometime in 1999, with some 35 individual work orders.  During this time, Mr Leung was the main person from Fu Cheung dealing with Win Tat Ltd.  He had supervised the works and the workers.  

24.From time to time, Win Tat Ltd would make interim payments for the works that had been carried out by Fu Cheung.  Mr Leung had been collecting the payments from Win Tat Ltd for Fu Cheung.  The majority of the payments were made by cheques drawn in favour Fu Cheung.  However, for some of the other payments, they were made by cash cheques, cheques drawn in favour of Mr Leung, or cheques split into Fu Cheung and San Wing’s names.

25.At the same time, Fu Cheung also subcontracted from Winrise (Mr Choy’s other company) another work project under government contract TCF-021 (“the TCF-021 Works”). 

26.In around September or October 1999, Mr Choy went to Win Tat Ltd to chase for some payments which he believed Fu Cheung had not been receiving.  He was then told by Mr To that Win Tat Ltd had already settled all payments.  Mr Choy asked for supporting documents including copies of the cheque payments made by Win Tat Ltd. 

27.At the same time, by way of a solicitors’ letter dated 2 October 1999 sent to Win Tat Ltd, it was stated that (a) Fu Cheung was a sole proprietorship owned by Mr Choy only, and (b) Mr Leung was only an employee of Fu Cheung in processing all the matters in relation to the TCE-019 Electrical Works.  It then went on to give Win Tat Ltd “notice” that from the date thereof, all matters in relation to the works should be referred and communicated to Mr Choy direct, and Mr Leung shall have no authority to represent Mr Choy and/or Fu Cheung, including but not limited to giving valid receipt of any payment in settling outstanding amount due from Win Tat Ltd.  The letter further stated that no settlement shall be considered by Mr Choy as valid unless and until it was acknowledged by Fu Cheung’s company chop together with Mr Choy’s signature.

28.A similar solicitors’ letter dated 6 October 1999 for Fu Cheung was also sent to Winrise in relation to the TCF-021 Works.

29.Later, Win Tat Ltd provided to Mr Choy certain schedules of payments, copies of cheques for the payments and copies of some invoices[2].

30.The schedules and copies of cheques show that (a) there were a number of payments made by cash cheques, cheques draw in favour of Mr Leung, and cheques split between Fu Cheung and San Wing, and (b) there were various deductions made against loans said to have been advanced at the request of Mr Leung by Win Tat Ltd and the other defendants.

31.Thereafter, Mr Choy and Mr To for Win Tat Ltd had gone into various checking and discussions for the alleged outstanding payments and unauthorised deductions.  During this time, Mr Choy and his wife had signed some backdated receipts for payments previously made by Win Tat Ltd.  It is however Mr Choy’s evidence that some of these back-dated receipts were signed under duress as Mr To threatened that if these were not issued, he would not make further payments to Fu Cheung.

32.On 11 January 2001, Mr Choy signed with Fu Cheung’s company chop a final account document entitled “Payment Schedule ASD Project Minor Work Term Contract No TCF-021”.  For convenience, I will refer this as the TCF-021 Final Account.

33.On the TCF-021 Final Account, it first set out that by way of tables calculations to show that Winrise had overpaid Fu Cheung a total of $304,267.40 (for materials and labour).  Thus, it stated that Fu Cheung owed Winrise $304,267.40 for overpaid material cost, wages and interest on advanced wages (富祥公司共欠偉昇代支材料費多付糧款及借糧利息).

34.The TCF-021 Final Account then went on to set out by way of a table that Win Tat Ltd owed Fu Cheung a total sum of $640,122.94 for the TCE-019 Electrical Works.  The table was entitled final calculations of Fu Cheung’s works under TCE-019 (富祥公司在永達工程有限公司所做TCE019/96工程最後結算).  

35.The TCF-021 Final Account, after taking these sums together, then set out that Win Tat Ltd still owed Fu Cheung a final sum (最後餘數)of $335,855.54 (ie, $640,122.94 - $304,267.40). 

36.It further stated expressly that Fu Cheung acknowledged the receipt from Win Tat Ltd as the final balance (富祥公司共收永達工程有限公司(附件1)最後餘數) of $355.855.54.  As mentioned above, this was signed by Mr Choy with Fu Cheung’s chop.  It is common ground that Fu Cheung was paid this sum.

37.More than 3 years later, in September 2004, Fu Cheung brought the present claim against the various defendants.

C.  THE TRIAL

C1. Witnesses

38.Mr Choy is the plaintiff’s only witness.  He has filed three witness statements and given oral evidence at trial. 

39.The defendants have filed the respective witness statements of Mr To and Mr Wong.  However, at the trial, the defendants decided not to call Mr Wong to give evidence, and his witness statement is thus no longer relied upon.  In the circumstances, the defendants have also only one witness, Mr To.  Mr To has filed three witness statements and given oral evidence at trial.

C2.  The issues

Issue 1: Whether Fu Cheung was a partnership between Mr Choy and Mr Leung

40.As mentioned above, the primary issue of the trial is whether Mr Leung and Mr Choy were partners of Fu Cheung.  If Mr Leung was a partner of Fu Cheung, Win Tat Ltd in making payments in the manner in accordance with Mr Leung’s instructions would be regarded as having properly discharged its payment obligations under the Subcontract, subject to the remaining arguments of whether a few identified payments said to have been made were not supported by evidence and thus whether they were in fact made.

41.This is a question of fact.

42.Insofar as this issue is concerned, the relevant evidence of the witnesses is in substance as follows.

Mr Choy’s evidence

43.Mr Choy has known Mr Leung since 1993.  They started some business dealings in around 1995.  In 1996, Mr Choy at the invitation of Mr Leung invested in San Wing[3] and became a partner of it having 30% of its share.  Mr Choy and his wife became the mandatory signatories of San Wing’s bank account.  They could operate the account singly.  Mr Leung was also a bank signatory but he had to sign either with Mr Choy or Mr Choy’s wife to operate the account.

44.However, Mr Choy said the dealings through San Wing were not satisfactory as Mr Leung later had been coy and unwilling to review to him the accounts and profits of the company.

45.In any event, in early 1997, he understood from Mr Leung that Mr Wong was introducing a new project to them.  That was the TCE‑019 Works to be subcontracted from Win Tat Ltd.  It was also suggested by Mr Wong that it they should set up a new company to take up the new project[4].

46.He therefore decided to set up Fu Cheung with Mr Leung as partners to take up the new project.  Each of them should have 50% share in it, but he would have control over the finances.  In his oral evidence, Mr Choy also said as he did not trust Mr Leung given the San Wing experience (where Mr Leung was the majority partner), he also wanted to set up a new company instead of continuing to use San Wing, so that he could have control over the new company.

47.The business registration of Fu Cheung was formally obtained on 24 April 1997.  The business registration stated that Fu Cheung commenced business from 1 April 1997, and was registered in Mr Choy’s sole name.  He said he did so, although Fu Cheung was intended to be a partnership between him and Mr Leung, because he wanted to have full control of the company (given his previous experience in San Wing).  He also said as he had a property, he considered that, in having a business registration in his sole name, it would make it easier for him to use the property to raise funds for Fu Cheung with the banks when needed. 

48.Mr Choy also said in court that he remembered that Fu Cheung in fact started carrying out the TCE-019 Electrical Works in April 1997 even before the business registration was formally obtained.

49.As to whether Fu Cheung was a partnership, it is important to note the following evidence of Mr Choy under cross examination[5]:

(1)  He accepted that when Fu Cheung started the TCE-019 Electrical Works in early April 1997, Fu Cheung was a partnership between him and Mr Leung.

(2)  He also accepted that if Mr Leung told people in early April 1997 that he was a partner of Fu Cheung, it was factually correct.

(3)  He said however given that Mr Leung had not been able to come up with the capital contribution to Fu Cheung even after the commencement of the works, he therefore told Mr Leung that he would give him 3 weeks to a month’s time to pay up, failing which he would treat Fu Cheung as his own. According to him, Mr Leung did not particularly respond or agree to this proposal one way or the other.

(4)  When asked whether he had told Win Tat Ltd about this, he said he only over a meal casually mentioned to Mr Wong as a form of “gossip”.  When asked by this court as what he in fact said to Mr Wong, he said he causally told Mr Wong that if Mr Leung did not come up with the fund within time, Mr Leung would have no share in it when the time was up and he would treat Fu Cheung as his own.

50.As I will explain later, I find this part of the evidence of significant importance under this issue, I have therefore reproduced the transcript of this part of the evidence in full in the Annex to this judgment.

51.Mr Choy then said, as Mr Leung eventually did not make any capital contribution to Fu Cheung, Mr Choy treated him only as an employee.  Mr Leung was paid a daily salary as the other workers.  He would also be given a 10% bonus if Fu Cheung was to make any profit at the end of the year.  However, all the salary slips were burnt in 2000, where a fire broke out at the container which kept the documents[6].

52.Since the commencement of the TCE-019 Electrical Works, it is Mr Choy’s evidence in his first witness statement[7] that Mr Leung was the principal person from Fu Cheung dealing with Win Tat Ltd.  He was responsible for the work at the sites, ordering of materials, dealing with employees and their deployment, as well as dealing and liaising with Win Tat Ltd.  Mr Leung had also been collecting payments from Win Tat Ltd, and issuing receipts on behalf of Fu Cheung.

53.In his oral evidence, Mr Choy however said Mr Leung was not authorised to issue receipts and what he said in the witness statement was incorrect.

54.Further, Mr Choy also said under cross-examination that even in October 1999, Mr Leung insisted that he was a partner of Fu Cheung.  They even later engaged in litigation for that purpose. I would deal with this part of the evidence further later in the judgment.

Mr To’s evidence

55.Mr To’s evidence in relation to whether there was a partnership between Mr Leung and Mr Choy for Fu Cheung is short for the obvious reason that he was not involved in the setting up of Fu Cheung.

56.In gist, Mr To’s evidence is that:

(1)  In around May 1997, as Win Tat Ltd was short of labour, and work orders for the Works were already issued, he asked Mr Wong for recommendation of potential sub‑contractors.  Mr Wong introduced Mr Leung to him.  He met Leung at a restaurant called Café One in Wai Chai with Mr Wong.  Mr Choy was not there.  At the meeting, Mr Leung told him that he was one of the partners of Fu Cheung and San Wing.  He was informed that San Wing was to carry out the air conditioning works, while Fu Cheung was for taking on electrical installation works.  They discussed the terms of the subcontract.  Eventually, he orally agreed to subcontract the electrical works to Fu Cheung and the air conditioning works to San Wing.  He did ask for copies of the business registration of the two companies for record keeping purposes, but these were never given to him.

(2)  Mr Leung also gave him a name card with both the names of San Wing and Fu Cheung printed there, but he could not find it now.  He remembered that there was no official title or position printed there.  Under cross-examination, he was shown Mr Choy’s name card[8] which shows also the names of San Wing and Fu Cheung with no position or title stated.  He said, as far as he could remember, Mr Leung’s name card should be similar to Mr Choy’s.

(3)  Since the commencement of the Works, it was Mr Leung who was the main person from Fu Cheung and San Wing dealing with him.  It was Mr Leung who had been collecting interim payments and issuing receipts for those payments.

(4)  The interim payments under TCE-019 Electrical Works were made by cheques generally drawn in favour of Fu Cheung.  However, from time to time, Mr Leung said to him they were short of cash for paying materials or the workers and needed the money urgently.  Mr Leung therefore would ask the payments (or part of the payments) to be made by cash cheques or cheques drawn in his name, and occasionally in favour of San Wing, so that he could obtain the money more quickly to pay for the materials and the workers.

(5)  Mr To further said every time a sum was requested to be so paid, he would ask Mr Leung to telephone Mr Choy in front of him to confirm that it was all right to do so.  Mr Leung would talk to Mr Choy first, before Mr To himself also speaking to Choy to confirm again.    

(6)  Under cross-examination, he was asked why he only explained the details of one of these alleged telephone conversations that occurred on 24 October 1997 at paragraphs 14 and 15 of his first witness statement, but refer only generally that a phone call was made in relation to each of the other payments, without elaborating the details of these other conversations[9].  In relation to these other conversations, it was pointed out to him that he had simply referred to the fact that each of these other telephone conversations had been made or that consent had been obtained from Mr Choy.  Mr To explained that as he had already explained the details once, which details were similar to the other telephone calls, he therefore did not find it necessary to explain every time.  

(7)  He was also asked why he found it necessary to confirm with Mr Choy every time for those payments given that it was his case that he already regarded Mr Leung as a partner of Fu Cheung.  Mr To explained that as there was another partner of the firm, he needed to have more “protection” by seeking confirmation from Mr Choy as well, in particular when the amount of money involved was significant.  When asked by Fu Cheung’s counsel, he said although he had not met Mr Choy before the earlier telephone calls, as Mr Leung called Mr Choy promptly when he asked Mr Leung to do so, he did not query that that was not Mr Choy to whom Mr Leung and he were speaking.

(8)  There were also various occasions where Mr Leung approached him on rather urgent basis asking for advancement of loans to enable him to pay wages to the workers.  These were the times where the interim payments from the Government and head contractor under the Subcontract had not been certified.  He had agreed to do so.  In advancing these loans, sometimes he would use Win Tat Ltd’s money, while sometimes he would use his own or other companies’ money (when Win Tat Ltd did not have sufficient funds in its account).  Sometimes, these cheques were cash cheques but deposited to Fu Cheung’s accounts[10]. For such loans advancements, he just asked Mr Leung to confirm with Mr Choy but he himself did not speak to Mr Choy personally, since these sums were in fact deposited to Fu Cheung’s account.  

(9)  Sometimes, Mr Leung had requested the loans to be made to him in cash or by way of personal cheques drawn in his favour as he needed the money urgently.  For each of these advancements, out of caution, Mr To said he would confirm with Mr Choy for his consent over the phone.

(10) Mr To has in his witness statements set out the circumstances under which Mr Leung had approached him and asked for the loans. 

Finding

57.Looking at the evidence of the witnesses and the documentary evidence, I find that Fu Cheung was a partnership between Mr Choy and Mr Leung.  My reasons are as follows.

58.First, it is Mr Choy’s own evidence that Fu Cheung was set up in April 1997 as a partnership between him and Mr Leung, and each of them had an equal share in it.  He also confirmed that at the time when the TCE-019 Electrical Works were taken up, Fu Cheung was a partnership, and accepted that it was correct if Mr Leung had told others in April 1997 that he (Mr Leung) was a partner of Fu Cheung.  On the basis of Mr Choy’s own evidence, it is clear to me that Fu Cheung was a partnership of Mr Leung and Mr Choy when it was set up, and when the Subcontract was entered into.

59.Second, it is Mr Choy’s evidence that as Mr Leung did not make the capital contribution to the partnership within the time limit that he had given Mr Leung, he therefore treated Fu Cheung as a sole proprietorship of his own.  In my view, even taking this evidence to the highest for the sake of argument, it does not make the partnership becoming a sole proprietorship as suggested by Mr Choy.  This is so because it is Mr Choy’s own evidence (see paragraph 49(3) above and the Annex) that, when he made that suggestion to Mr Leung, Mr Leung did not respond by agreeing to it.  In the circumstances, there was simply no agreement between Mr Leung and Mr Choy as partners of Fu Cheung that, if Mr Leung could not make the necessary capital contribution within the time limit, Mr Leung would cease to be a partner and Mr Choy would become the sole proprietor of Fu Cheung.  In the absence of such an agreement, what was left at the highest is that Mr Choy as a partner of Fu Cheung would have a claim against Mr Leung (as the other partner of Fu Cheung) for the capital contribution that needed to be made to the partnership.  It did not render the original partnership becoming a sole proprietorship.  The fact that there was no agreement that Mr Leung ceased to be a partner of Fu Cheung is also consistent with Mr Choy’s own evidence that even by October 1999, Mr Leung insisted that he was still a partner of Fu Cheung.  Fu Cheung therefore remained a partnership between them, subject to a claim against Mr Leung for his contribution.

60.Third, the fact that Fu Cheung remained a partnership even up to October 1999 is also consistent with and supported by the written Chinese declaration made by Fu Cheung to Winrise dated 7 October 1999[11]. This was signed by Mr Choy and Mr Leung stating that (a) Winrise should inform both Mr Leung and Mr Choy of the accounts of this project, and (b) any receipts to be issued under the TCF-021 Works were only valid if they were signed by both Mr Leung and Mr Choy together.  I reject Mr Choy’s explanation as incredible that, although Fu Cheung was a sole proprietorship only, the declaration was still made because Mr Leung was worried that Mr Choy would pocket the payments and not pay the workers.  This explanation does not make any common and commercial sense. The workers were working for Fu Cheung for the project, they would have to look to Mr Choy (as the sole proprietor of Fu Cheung in Mr Choy’s case) for payments.  At the same time, the insistence of signing receipts together by Mr Leung and Mr Choy would not have resolved the alleged worry, as the payments would have to be made to Fu Cheung.  The Chinese declaration does not have any effect of ensuring payments to be made to the workers.

61.Fourth, the fact that Fu Cheung remained a partnership throughout is also consistent with and supported by the following evidence:

(1)  The company chop of Fu Cheung bore only Mr Leung’s mobile phone number.  Mr Choy under cross-examination said this was made as a mistake.  I reject this evidence.  There is firstly no explanation as to why such a mistake was made.  But more importantly, if in fact Fu Cheung had become a sole proprietorship sometime say in May or June 1997 after Mr Leung had failed to make the capital contribution, there is no reason (and none is provided by Mr Choy) why Mr Choy would not have changed the chop to bear his own phone number (if the original one was a mistake as suggested), but was contended to continue to use it.  

(2)  Mr Leung’s name card and Mr To’s name card were practically of the same format (which evidence from Mr To I accept as there is no challenge to it), showing both the names of San Wing and Fu Cheung, but without any title or position stated. This is consistent with the fact that they were partners of both San Wing and Fu Cheung.

(3)  That Mr Leung had been issuing receipts on behalf of Fu Cheung when collecting payments from Win Tat Ltd.  The evidence of this practice and the fact that Mr Leung was entrusted to do so comes from and is in fact confirmed by Mr Choy himself in his first witness statement.  It is only when he gave evidence in court that he denied Mr Leung was authorised or entitled to do so.  When asked why he said otherwise in his first witness statement, he simply said that a mistake was made.  Again, I reject his explanation as incredible.  The first witness statement was made in 2005 while the evidence he gave in court was in 2012, recalling matters that happened in 1997.  It is inherently incredible that Mr Choy would have somehow remembered it wrongly in 2005 but more clearly in 2012, in particular when it had already been his case in 2005 that Fu Cheung was his sole proprietorship and that Mr Leung was only an employee.  He has not provided any reasons to explain why that would be the case.  

62.Mr James Lee, counsel for Fu Cheung, has contended that the business registration of Fu Cheung is registered in Mr Choy’s sole name is evidence that it was a sole proprietorship of Mr Choy.  There is nothing in this contention.  As accepted by counsel, the business registration is only but a prima facie piece of evidence of whether the firm is a sole proprietorship or not.  In the present case, the business registration as evidence must give way to the above overwhelming evidence of Mr Choy himself that Fu Cheung was set up as a partnership between him and Mr Leung, and his explanations as to why it was registered only in his name despite the partnership.  Similarly, as it has been accepted by Mr Choy that San Wing was a partnership between him and Mr Leung, its business registration was also registered only in Mr Leung’s sole name.

63.Mr Lee also submits that Mr Choy gave evidence that he went to Win Tat Ltd’s office with Mr Leung in October 1999 to chase for payments.  Mr To also confirmed in evidence that the meeting was a peaceful one, and there is no evidence to suggest that Mr Leung argued that he was a partner of Fu Cheung at the meeting.  This must (counsel contends) amount to weighty evidence to show that there was no partnership between Mr Leung and Mr To.

64.I cannot agree.  In my view, such submission is contrary and inconsistent with Mr Choy’s own evidence (as mentioned above) that even by October 1999, Mr Leung insisted or contended he was a partner of Fu Cheung.  That was one of the reasons why there was the above‑mentioned Chinese declaration and the fact (which was only revealed for the first time by Mr Choy when he gave evidence in court, and not even known to Mr Lee before then) that Mr Choy and Mr Leung in fact later engaged in a litigation over the ownership of Fu Cheung[12].

65.Further, the mere fact that there is no evidence to show that Mr Leung at this meeting had asserted that he was a partner of Fu Cheung is to my mind at most neutral in light of all the circumstances.  At that time, he had already received the payments and loans in the manner he had requested to be made.  On the other hand, Mr Choy wanted these payments to be made to Fu Cheung.  There would be no incentive for Mr Leung to say anything which would impede Mr Choy’s claim, even if (or perhaps in particular if) Mr Leung was a partner of Fu Cheung.  To put it the other way round, there is also no evidence to suggest that Mr Leung had said positively at this meeting that he was not a partner of Fu Cheung.  I therefore do not find this part of Mr Choy’s evidence of any such significance or weight that would affect my findings in light of the above overwhelming evidence.

66.For all the above reasons, I find on the balance of probabilities that Fu Cheung was and remained to be a partnership between Mr Leung and Mr Choy of equal share from the time when it was set up in April 1997 until it was dissolved on 30 September 1999. 

67.In the circumstances, I further find that:

(1)  The Subcontract was entered into between Win Tat Ltd and Fu Cheung as a partnership of Mr Choy and Mr Leung for the TCE-019 Electrical Works.

(2)  The said works had been carried out by Fu Cheung as a partnership between Mr Choy and Mr Leung. 

(3)  All the payments made by Win Tat Ltd to Fu Cheung in the manner and the ways as requested and instructed by Mr Leung as a partner of Fu Cheung constituted as a proper and valid discharge of Win Tat Ltd’s payment obligations under the Subcontract.  In this respect, I further accept Mr To’s evidence as to the circumstances of Mr Leung’s requests for the payments to be made in those manners.  This part of the evidence is not subject to any real challenge under cross-examination[13]. 

Issue 2: whether notice had been given to Win Tat Ltd for any change of the constitution of Fu Cheung as a partnership for the purpose of s 38 of the PO

68.Given my above finding that Fu Cheung was and remained a partnership, this issue only arises if I were wrong above, and that Mr Choy was correct in his case that although having been initially set up as a partnership, Fu Cheung had subsequently become a sole proprietorship when Mr Leung failed to make the capital contribution within the time limit imposed by Mr Choy.

69.As the evidence evolved in the trial as summarised above, the defendants in their closing further seek to alternatively rely on s 38(1) of the PO which provides that “where a person deals with a firm after a change of its constitution, he is entitled to treat all apparent members of the old firm as still being members of the firm until he has notice of the change”.  Although this is not pleaded, but Mr Lee for Fu Cheung has not (I think fairly) objected to this being raised.

70.Thus, under s 38 of the PO, a third party who has been dealing with a partnership is entitled to treat all the partners of the firm still as such even after a change of the firm’s constitution, unless a notice of the change has been given to the third party.

71.In the present case, it is Mr Choy’s own evidence that (a) when Fu Cheung took up the TCE-019 Electrical Works in April 1997, it was a partnership between him and Mr Leung, and (b) it was correct at that time if Mr Leung had informed others that he was a partner of Fu Cheung.  It is also Mr To’s evidence (which I accept, as there was no material challenge to it) that Mr Leung told him when they met at Café One to discuss the Subcontract that he was a partner of Fu Cheung. 

72.In the circumstances, even if Fu Cheung had later become a sole proprietorship, Win Tat Ltd was entitled to treat Mr Leung still as a partner of Fu Cheung, unless a notice of such a change of partnership had been given to Win Tat Ltd.

73.However, the evidence of Mr Choy shows that no such notice had ever been given to Win Tat Ltd:

(1)  As stated above in paragraph 49(4) (see also the Annex), it is Mr Choy’s evidence that he had only casually told Mr Wong over a meal that if Mr Leung could not pay up the capital contribution within the time limit imposed, he (Mr Leung) would not have any share in Fu Cheung, and Mr Choy would treat Fu Cheung as his sole proprietorship.

(2)  This evidence shows that this conversation occurred before the change of partnership, as Mr Choy was telling Mr Wong what would happen if Mr Leung did not pay.  This in accordance with Mr Choy’s evidence should thus be sometime in late April or May 1997.  As such, it is important to note that at that time, it is common ground that Mr Wong was working for Onstar and was neither an employee, shareholder nor director of Win Tat Ltd.  Thus, this conversation even if it had happened did not amount to any communication to Win Tat Ltd.

(3)  Further and in any event, this conversation as a matter of substance is not a notice of change of the partnership, as the change had not yet occurred and it was not even known whether it would occur, as it depended entirely on whether Mr Leung would pay within the time limit.

(4)  In relation to this, there is no evidence to show that Mr Choy later told either Mr Wong or Mr To that Mr Leung in fact did not pay within the time limit and the partnership had changed.

(5)  Quite to the opposite, when he was cross-examined on Fu Cheung’s solicitors’ letters issued in October 1999 respectively to Winrise and Win Tat Ltd, it is Mr Choy’s own evidence that it was only by then that he had informed Win

Tat Ltd about the allegation of sole proprietorship[14].  Further, in light of this evidence and the evidence summarised at paragraph 49(4) above, I reject Mr Choy’s evidence in his first witness statement that he had on various occasions informed Mr Wong that he was the sole proprietor and only boss of Fu Cheung[15].

(6)  In the circumstances, I am not satisfied that a notice had been given to Win Tat Ltd about the change of the partnership of Fu Cheung before any of the payments in dispute had been made. 

74.For these reasons, had I found that Fu Cheung had subsequently become a sole proprietorship, I would have further found that no notice of such a change had been given to Win Tat Ltd, which had initially been dealing with Fu Cheung as a partnership.  In those circumstances, Win Tat Ltd was entitled under s 38 of the PO to continue to treat Mr Leung as a partner of Fu Cheung, until it received the solicitors’ letter in October 1999 from Fu Cheung.  It is pertinent to also note that, by that time, Fu Cheung had already ceased its business[16]. In the circumstances, all payments made (including the loans advanced) by Win Tat Ltd in accordance to Mr Leung’s instructions amounted to valid discharge of its payment obligations under the Subcontract.

Issue 3:  Whether Mr To had orally confirmed with Mr Choy in making payments by way of cash, cash cheques, or cheques drawn in favour of Mr Leung or San Wing

75.As summarised above, it is Mr To’s evidence that[17]:

(1)  Whenever payments as requested by Mr Leung were to be made by cash, cash cheques or cheques drawn in favour of Mr Leung himself or San Wing, he would ask Mr Leung to call Mr Choy for confirmation and consent.  When Mr Leung made the calls, Mr To himself would also speak to Mr Choy over the phone to confirm the arrangement before he made the payments in the manner as requested.

(2)  When Mr Leung asked for advancement of loans, again, if these payments were to be made by cash, cash cheques or cheques drawn in favour of Mr Leung himself or San Wing as requested, he would similarly ask Mr Leung to call Mr Choy for confirmation and consent.  When Mr Leung made the call, Mr To himself would also speak to Mr Choy over the phone to confirm the arrangement before he made the advancements in the manner.

76.Mr Choy denies he has ever received such calls for confirmation.

77.I prefer Mr To’s evidence to that of Mr Choy. My reasons are as follows.

78.First, generally, I find Mr Choy not a credible witness.  This is so because he appears to me to be a witness who is prepared to simply change or embellish his evidence in order to support his case. I would give some notable examples:

(1)  In his witness statement, he is prepared to state that he was the sole proprietor of Fu Cheung from the very beginning when it was set up.  He also said that he had been telling Mr Wong that he was the sole proprietor of Fu Cheung from the very beginning[18].  However, this is clearly inconsistent and contradictory to his evidence given at trial under cross‑examination (see paragraph 49 above), which I have accepted.  There is no explanation to justify why he stated otherwise in his witness statement.

(2)  Similarly, as I mentioned above, he has clearly stated in his first witness statement at paragraph 23 that Mr Leung was entrusted to issue receipts for Fu Cheung when collecting payments.  Under cross-examination, he simply denied that Mr Leung was so entrusted or entitled to do so, and asserted that what he said in the witness statement was a mistake, without any explanation as to why he would have made such a mistake in the first place.  I also repeat my observations at paragraph 61(3) above on the inherent incredibility of such an explanation.

(3)  At paragraph 16 of his first witness statement, Mr Choy stated that it was Mr Leung who had “successfully solicited [the Subcontract] for the said Fu Cheung”.  At trial, under cross-examination, he said he had again made a mistake, and said that the work was introduced by Mr Wong but not obtained through Mr Leung.  This evidence was clearly made to seek to distance Mr Leung’s importance in obtaining the Subcontract.  However, there is simply no explanation to show why such a mistake was made in the first witness statement. It is again inherently incredible that Mr Choy would have somehow made a mistake in 2005 on this factual recollection but for no good reasons came to realise it in 2012 during trial.

79.Second, it is Mr Choy’s own evidence that, given his unsatisfactory experience in partnering with Mr Leung in San Wing, he did not trust Mr Leung and decided to have a tight control over the financial management of Fu Cheung.  It is also his evidence that he had been checking Fu Cheung’s bank statements and passbooks from time to time.  In the circumstances, I find it inherently improbable and beyond common sense that he would have no idea that a significant amount of money that should be paid under the Subcontract had not been received by Fu Cheung over a period two years.  The more likelihood is that he had been fully aware of the fact that some of these payments had been made to Mr Leung directly or to San Wing as requested for use to pay for wages and materials.  This is thus more consistent with Mr To’s evidence that Mr Choy had been giving his consent to do so.  In this respect, it is also pertinent to note that Mr Choy was a partner of San Wing, and which had been carrying out the related TCE-019 Air Conditioning Works. 

80.Third, I find on the other hand Mr To generally a credible witness who gave evidence in a consistent and firm manner.  He is also generally not shaken under cross-examination.  

81.Further, I also accept Mr To’s explanation as to why he still asked confirmation from Mr Choy for those payments although he had regarded Mr Leung as a partner of Fu Cheung.  In my view, it accords with common and commercial sense that Mr To said he wanted to be more assured and to have greater protection to further confirm with Mr Choy on these payments, which involved not insignificant sums of money, and to be paid to Mr Leung personally or San Wing.  I also accept his explanation as to why he did not set out in his witness statement in details the circumstance of each and every single telephone conversation of this nature, after he had already done so for the first one.  I have looked at these relevant paragraphs of Mr To’s first witness statement.  The way I read it is consistent with what he explained, in that the various subsequent telephone confirmations he had had with Mr Choy mentioned in the witness statement were conducted in a similar manner as the first one he explained at paragraphs 15 and 16 thereof.  There is nothing so unusual in setting out a witness statement in that way so as to avoid unnecessary repetitions of similar details to make it unreliable or incredible.

82.For the above reasons, I accept Mr To’s evidence in this respect and reject Mr Choy’s if there is any conflict.

83.I therefore find that Mr To had confirmed with Mr Choy for those payments and advancements of loans made in the manner as set out at paragraph 75 above.   

Issue 4:   The final account

84.Mr Lee for Fu Cheung has submitted in closing that there are a few payments which Wing Tat Ltd said it had made which are not supported by any documentary evidence.  See item 4 of the plaintiff’s Scott’s Schedule of Outstanding Sums.  Mr Lee therefore submits that Wing Tat Ltd should in any event still be liable for these supported payments.

85.However, Win Tat Ltd also relies on the TCF-021 Final Account as a matter of evidence and says the parties have already settled all the accounts under both the TCE-019 and TCF-021 Works.  Mr Lam for Win Tat Ltd therefore contends that this is evidence that Fu Cheung has agreed and accepted that all payments due under the Subcontract had been paid by Win Tat Ltd.

86.I first refer to paragraphs 33-36 above as to the contents of the TCF-021 Final Account.

87.As mentioned, the TCF-021 Final Account has expressly stated that the receipt of the sum $355,855.54 represented the “final outstanding sum” (“最後餘數”) arising from both the TCE-019 and TCF‑021 projects.  This was signed and acknowledged by Mr Choy for Fu Cheung in January 2001.  This was more than 1 year after the dispute had arisen in October 1999 between Fu Cheung and Win Tat Ltd.  By then Fu Cheung had already been provided by Win Tat Ltd with various payment schedules and supporting documents as demanded by Fu Cheung. 

88.In denying that there is a valid final account, Mr Choy at paragraphs 18 and 22 of his 3^rd witness statement said when he went to Win Tat Ltd’s office to sign the final account, there were no supporting documents shown to him at that meeting.

89.However, the evidence shows[19] and Fu Cheung’s own Reply at paragraph 32(3) confirms that in October 1999, Win Tat Ltd provided a set a set of payment schedules, copies of cheques and some invoices to Fu Cheung.  It is thus incorrect for Mr Choy to say he did not have any supporting documents to verify the final account.  If what Mr Choy was saying is that on that day at the office, he did not have any documents with him, then it does not assist him, as he had already had ample opportunities between October 1999 and January 2001 to verify and check what amounts should still be owed to Fu Cheung by Win Tat Ltd.

90.Further, I agree with Mr Lam’s submissions that at the time of signing the final account, (a) Mr Choy’s evidence was that he was told to take his time to check it before signing, and (b) he had already instructed lawyers to protect his interest.

91.Notwithstanding these, Mr Choy was still satisfied to sign the TCF-021 Final Account, confirming the receipt of the sum paid to be the “final” payment under the TCF-021 Works and TCE-019 Electrical Works. He was satisfied not to make any qualifications to the receipt of the payment.  

92.It is true that Mr Choy seeks to raise in his 3^rd witness statement (dated 14 December 2011) and at trial various questions or queries on the calculations made to support the final account.  These have also been advanced by Mr Lee for Fu Cheung in cross-examination and closing submissions.  However, there is nothing to show that none of these questions or queries could not have been raised at the time of the final account in 2001, or to show that Mr Choy was led into agreeing to the final account by reason of mistake or misrepresentation.  I repeat my observations at paragraphs 89-91 above.  The point is, even if by January 2001 Mr Choy only say had (as contended) an incomplete set of payment schedules, copies of cheques and invoices as provided by Win Tat Ltd, it would have been more so that he should have qualified the receipt of the so-called final payment under this final account.  But he did not find it necessary to do so.

93.In the circumstances, I find that Fu Cheung had agreed with the TCF-021 Final Account and accepted the payment of the final sum to represent the final payment of all its entitlements under both the TCE-019 Electrical Works and the TCF-021 Works.  

94.I therefore further hold that Win Tat Ltd is not liable to pay anything further under the Subcontract.  

Issue 5:   The various loans

95.Irrespective of my findings on partnership and the final account, it appears Mr Lee for Fu Cheung also contends in his closing submissions that the defendants have not proved some of the various loans said to have advanced to Fu Cheung as requested by Mr Leung. 

96.It is therefore necessary to deal with this issue. 

97.Given the way it is argued, it is convenient to look at separately the loans said to have been advanced by the 1^st and 3^rd to 5^th defendants on the one hand, and the ones by the 6^th defendant on other.

The loans made by 1^st and 3^rd to 5^th defendants

98.Mr To has given evidence on how these loans were made at the request of Mr Leung.  He has also given evidence and provided some documentary evidence (such as copies of the cheques) in support of the actual making of these loans by the 1^st and 3^rd to 5^th defendants.

99.This part of Mr To’s evidence has not been subject to any real cross-examination by Mr Choy’s counsel.  In particular, there is no challenge to Mr To’s evidence that, in the construction industry it was a common practice to pay the workers task by task in cash[20].  I therefore accept Mr To’s evidence on Mr Leung’s requests for advancement of loans as set out in his witness statements and confirmed in oral evidence.  I further repeat my observations at paragraphs 78 and 80 above regarding the general credibility of Mr Choy and Mr To for my acceptance of Mr To’s evidence in case of any conflict with Mr Choy’s evidence under this issue. 

100.On this basis, I also find that all these loans were made to Fu Cheung as requested by Mr Leung (as partner of Fu Cheung).  I also repeat my finding at paragraph 83 above on Mr Choy’s confirmation of some of these payments.  

101.Further, and in any event, given my acceptance of that Fu Cheung agreed with the final account with Win Tat Ltd by way of the TCF-021 Final Account, I also hold that Fu Cheung has accepted the loans made by the 1^st and 3^rd to 5^th defendants.

102.Win Tat Ltd was therefore entitled to deduct them from its payments to Fu Cheung under the Subcontract as they had done.

Loans made by Mr Wong (the 6^th defendant)

103.It is Win Tat Ltd’s case that it had deducted two sums each of $100,000 (ie, a total of $200,000) from its payments to Fu Cheung under the Subcontract since these two sums had been advanced to Fu Cheung at the request of Mr Leung by way of cash. 

104.As mentioned above, Mr Wong has filed a witness statement which sets out the circumstances under which he said he advanced these two sums to Fu Cheung at the request of Mr Leung, which were agreed to be repaid through deductions from Fu Cheung’s interim payments from Win Tat Ltd. However, the defendants decided not to call Mr Wong, and not to rely on Mr Wong’s witness statement.  

105.Mr Lee for Fu Cheung therefore submits that there is no evidence whatsoever in support of these two loans, and Fu Cheung must succeed at least in its claim against Mr Wong.

106.I am not entirely sure if Mr Lee is right to say that there is no evidence at all to support these two loans.  There is the following evidence.

107.These two deductions have been set out in two payment schedules for Fu Cheung under the TCE-019 Electrical Works respectively dated 2 January 1999 and 19 January 1999.  These payment schedules were prepared by Win Tat Ltd and provided to Fu Cheung.  They have in fact been produced by Mr Choy himself as exhibits “CYK‑28(a)” and “CYK-29(a)” to his 2^nd witness statement dated 9 June 2009.

108.Under the payment schedule dated 2 January 1999, after setting out 7 interim payments for various work orders, it went on to set off the payment sums against two deductions (one made by Mr To in the amount of $100,000, and other made by Mr Wong for $100,000), which resulted in a net payment of $182,812.18[21]. In the evidence as exhibited by Mr Choy himself (ie, CYK-28(a)), there are (a) a copy of a cheque from Win Tat Ltd drawn in favour Fu Cheung in the exact sum of $182,812.18[22], and (b) a copy of the Fu Cheung’s bank account statement showing that this sum was deposited on 4 January 1999.

109.The same kind of documentary evidence for the payment schedule dated 19 January 1999 is also exhibited under “CYK-29(a)”.  These documents show that after deducting¸among others, the sum of $100,000 said to be made by Mr Wong, Win Tat Ltd paid a net sum of $153,265.30 to Fu Cheung on 19 January 1999[23].

110.These payment schedules, copies of cheques and bank statements have been provided to Mr Choy.  For the reasons I have explained above, I have found that by signing and confirming that final account, Mr Choy has accepted all the calculations to be correct.  In the circumstances, I therefore also find it proved that these two loans had been advanced to Fu Cheung by Mr Wong, or alternatively they have been accepted by Mr Choy by way of the final account.

Other issues

111.Given my above findings and conclusions, I do not find it necessary or appropriate to deal with (a) the issue of whether, if Mr Leung were not a partner of Fu Cheung, he in any event had the ostensible or usual authority to request Win Tat Ltd to make the payments and advance the loans in the ways he had asked for, and (b) the defence of estoppel as pleaded at paragraph 20 of the Re-Re-Amended Defence.

112.Further, Mr Lee for Fu Cheung has also abandoned any claim based on unjust enrichment as pleaded.  I therefore also do not need to deal with this claim.

113.I would also perhaps quickly deal with one further factual dispute in the trial. 

114.It relates to whether the TCE-019 Works in fact commenced in April (as said by Mr Choy) or May (as recalled by Mr To) 1997. Given my finding that the partnership remained throughout the Subcontract, this issue is in fact irrelevant.  However, if necessary, I would have accepted Mr Choy’s recollection that the works in fact commenced in April 1997.  This is so as it is consistent with the documentary evidence that the business registration of Fu Cheung stated that it commenced business on 1 April 1997, even though it was only obtained on 24 April 1997. If the works in fact only commenced in May, it would not have been necessary for Fu Cheung to backdate the commencement of the business.  This however would not affect my view generally on Mr To’s credibility as a witness as observed above, as it is entirely understandable that Mr To might have remembered it incorrectly with a difference of one m month, for something which happened so many years ago.

D.  CONCLUSION

115.For the above reasons, Fu Cheung fails in its claims against the defendants.  I therefore dismiss the action. 

116.I further order that costs of the action be to the defendants, to be taxed if not agreed, and that Fu Cheung’s own costs be taxed in accordance with legal aid taxation.  The costs order is nisi in nature, which shall be made absolute 14 days from today unless any of the parties applies to vary it by summons.

Mr James Lee, instructed by Ong & Chung, for the plaintiff

Mr Vincent Lam, instructed by Cham & Co, for the 1^st, 1^st named of the 3^rd, 4^th, 5^th and 6^th defendants

ANNEX

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以下內容乃法庭數碼錄音謄本

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（下午4時03分）

問： 蔡生，睇下我有冇講錯喇，我今日聽到你嘅證供就係咁嘅，你初頭就同梁生就諗住開呢個富祥就大家係合夥人嘅，係咪？

答： 係。

問： 而嗰陣時已經開緊工添㗎喇，後屘，...

答： 係。

問： ... 4月1號時候，咁嗰時已經同永達做緊嘢喇？

答： 係。

問： 即係其實喺最初期，4月頭嘅時候，你哋已經同永達做緊嘢，而嗰陣時真係一個合夥人嘅形式做嘅，係咪？

答： 係。

問： 係咪？

答： 係。

問： 咁即係但係就因為後屘阿梁就畀唔起錢，所以你先唔侵佢玩，...

答： 係。

問： ...佢就做唔成合夥人？

答： 唔。

問： 但係咁樣唔通喎，因為佢本來係合夥人嚟㗎嘛，...

答： 唔。

問： ...即係之後你就唔認同佢做合夥人喇，係咪咁嘅意思？

答： 佢冇錢我咪唔認佢係合夥人，有同佢傾過嘛，「你再唔攞錢出嚟呢，就當你冇份㗎喇」，有同佢講過，佢又冇出聲，又冇話好或唔好，咁我畀咗唔知一個月定三個禮拜時間限期，叫佢攞出嚟，咁佢都係冇。

問： 但係嗰陣時都仲係合夥人嘅身分，就同永達做緊嘢嘅？

答： 係，係。

問： 係，咁但係後屘你就唔認同佢係合夥人，咁你有冇同永達講「喂，以後佢唔係我合夥人㗎喇。」咁？

答： 同黃志偉講。

問： 凈係同黃志偉講過？

答： 係，同黃志偉講。

問： 得。

官： 凈係黃生啫，係咪？

答： 係，係。

官： 係，就話你自己當係個人喇，係咪咁樣？

答： 係，係，係，我就即係說話咁樣喺度，喺度食飯咁樣，當八卦嘢咁樣講，我話「梁祥勝就而家仲--到而家都冇攞錢出嚟，問佢佢又唔出聲，我而家當我自己做㗎喇」，咁樣講啫，說話咁樣講啫。

官： 呢個係講畀黃生聽？

答： 話畀黃生聽。

官： 你講當「笑話」呀，唔係當「說話」咁講？

答： 係當「說話」咁講。

官： 唔。

答： 係，就冇係實齒話「梁祥勝又唔攞錢出嚟呀，我--而家我就係大股東呀」或者「我就係獨資呀。」咁樣，冇講得咁詳細。

官： 咁你實在就點講，再講一次，係點講？同黃生點講？

答： 係，即係話梁祥勝而家遲遲都仲唔肯畀錢出嚟，嗰陣時已經開咗工係幾個禮拜喇，遲遲都唔肯攞錢嚟，我話畀佢聽，話如果佢再--限期如果再唔攞錢出嚟呢，就冇份喇，當係我自己獨資晒喇咁樣，就咁樣，即係說話咁樣酹過嘅啫，係。

問： 咁即是其實如果1997年4月頭梁生同人講話佢係富祥嘅合夥人，係正確無誤個喎，喺當時，因為佢--你仲未--個限期仲未到吖嘛，你畀佢畀錢嘅限期...

答： 佢有冇同我哋講，我唔知。

問： 唔係，唔係，假設吖，即係如果咁同人講係合--啱嘅？

答： 係。

（下午4時07分）