Gee Yau Wing Terry v Ng Kwok Wah Vincent

CourtDistrict Court (Hong Kong)
Judgment Date10 September 2009
Judgement NumberDCCJ6362/2006
Subject MatterCivil Action
DCCJ006362/2006 GEE YAU WING TERRY v. NG KWOK WAH VINCENT

DCCJ 6362/2006

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 6362 OF 2006

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BETWEEN
Gee Yau Wing Terry
(朱有榮)
Plaintiff
and
Ng Kwok Wah Vincent
(吳國華)
Defendant

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Coram : Deputy District Judge Osmond Lam

Dates of hearing : 17th, 18th, 24th June, and 10th July 2009

Date of handing down Judgment : 10 September 2009

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J U D G M E N T

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1. This is a case of money borrowed and not repaid. Nonetheless, it happened over ten odd years ago and it involved in the Buddhist terminology a group of “dharma brothers and sisters”. The moral of the story is contained in an ancient Chinese idiom meaning as follows : “tolerance generates iniquity 姑息養奸.

2. The issues in dispute are however relatively simple. They can be identified as follows.

3. The Plaintiff claimed that in or about November 1998, by an oral agreement the Plaintiff agreed to lend to the Defendant the sum of HK$300,000.00 with interests at the rate of 20% per annum as from the date of the loan and the Defendant agreed to repay by 21st June 1999. Pursuant to that oral agreement, the Plaintiff made payment to the Defendant by way of a cheque on or about 22nd December 1998. Shortly after, the Defendant handed to the Plaintiff a post-dated cheque issued by Pearldek Ltd. and signed by the Defendant for HK$300,000.00 payable on or about 21st June 1999 (“the first cheque”). The Defendant also promised to repay the said interest by that time.

4. By June 1999, the Plaintiff claimed that the Defendant asked for the rescheduling of the repayment terms and extending it to 30th December 2000 when he represented another post-dated cheque (“the second cheque”) in the sum of HK$360,000.00 being the repayment of the principal and part of the interests in exchange for the first post-dated cheque. The Defendant promised he would repay on or before 30th December 2000. The Plaintiff accepted and returned the first post-dated cheque back to the Plaintiff. The Plaintiff did not keep a copy of that first cheque.

5. By 30th December 2000, the Defendant said he did not have enough money in the bank account. His business was not going well and he asked the Plaintiff not to present the second cheque for payment. In response, the Plaintiff was kind enough not to press for repayment, though there were times when he did ask how the Defendant’s business was doing and eventually in two emails saying he needed the cash. All these did not make the Defendant repay. As a result, the Plaintiff never got paid and was still holding the same 2nd cheque and after some soul-searching, the Plaintiff only issued proceedings on 29th December 2006, the very day before the expiry of the limitation period.

6. The Defendant, on the one hand, never denied that he had borrowed the money. However, he said that it was money lent to his company Pearldek Ltd. and not lent to him personally. Thus, the Plaintiff sued the wrong party. If that was not true or disbelieved by this Court, it was a loan made so long ago in 1998 that on any view, the Plaintiff’s right to sue was time-barred by virtue of the operation of the limitation period.

7. Of course, the Defendant also raised a number of factual issues and I shall deal with them where necessary. Nonetheless, this is the substance of his defence.

Relationship between various parties

8. The Plaintiff testified that he got to know the Defendant in a buddhist association called Dharma Buddhism Association (法華園佛教學會). Between 1995 and 2005, the Plaintiff was actively involved in the running of the association. He said he left the association due to his business activities and he had no time to devote himself there. The Plaintiff said that the Defendant was in financial difficulties around 1998 and asked to borrow money from him. At the time of asking, a loan period of half a year was mentioned. The sum of HK$300,000.00 was lent and the money was paid out on 22nd December 1998, as can be seen from the Plaintiff’s disclosed bank statement. Thus, it being a loan period of half a year, the 21st day of June 1999 would be the last date of repayment. The interest of 20% per annum was what the Defendant offered. Nothing was in writing as he only wanted to help the Defendant and did not bother with any of the usual formalities. The Defendant gave him the first cheque shortly after the cashing of that HK$300,000.00 as evidence of the loan and the time for repayment.

9. Insofar as whether the payee was filled in the Defendant’s name or it was written as cash payment or left in blank, the Plaintiff said he could not remember. He did not know about this company Pearldek Ltd. at the time. At one time, the Plaintiff did ask the Defendant about this company and the Defendant replied that he used a company cheque as he did not have a personal bank account. The Plaintiff did not think it was anything peculiar at all. But the Plaintiff lent the money to the Defendant personally and it had nothing to do with this company Pearldek Ltd. which he knew nothing about.

10. By the time of 21st June 1999, the Defendant said he did not have any money and he told the Plaintiff not to present the first cheque for payment. Then the Defendant asked for extension and the Plaintiff agreed. As a result, the Defendant gave him the second cheque in the sum of HK$360,000.00 and it was post-dated till 30th December 2000. The Defendant said he would repay him by that time. The extra sum of HK$60,000.00 was part of the interest to be paid by the Defendant. The Plaintiff gave back the first cheque to the Defendant and did not keep a copy.

11. Even for the second cheque the Plaintiff did not present it to the bank for payment as the Defendant said he did not have money at the time. Only occasionally did the Plaintiff ask for his money and it would be met up with excuses. There were two emails sent to the Defendant as shown in the bundle. But the Defendant said he never received them. The Defendant never paid back the money nor any of the interests as promised. Thus, the Plaintiff eventually decided to commence proceedings, as was his right to...

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