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Tsang Kin Chuen v Tsang Chuen Chee

Judgment Cited in Precedent Map Related
Vincent
Judgment Date19 September 1968
Year1968
Judgement NumberDCCJ4126/1968
Subject MatterCivil Action
CourtDistrict Court (Hong Kong)
DCCJ004126/1968 TSANG KIN CHUEN v. TSANG CHUEN CHEE

DCCJ004126/1968

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT VICTORIA

CIVIL JURISDICTION

ACTION NO. 4126 OF 1968

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BETWEEN
TSANG KIN CHUEN Plaintiff

AND
TSANG CHUEN CHEE Defendant

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Coram: J.T. Williams, D.J. in Court.

Date of Judgment: 19 September 1968

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JUDGMENT

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1. The plaintiff sues for $2,900 as the balance due on 2 cheques dated 19th and 22nd May, 1967 for sums of $1,700 and $2,000.

2. The defendant admits drawing the cheques and their dishonour. He alleges they were issued to secure loans of $1,700 and $2,000 from the plaintiff at interest of 4% per month. He alleges that the plaintiff is an unregistered money lender and he called one witness.

3. The defendant began and when he closed his case the plaintiff gave no evidence, but submitted that the defendant had failed to establish a prima facie case that the plaintiff was in the business of money lending, and even if the plaintiff were a money lender there was no evidence that he was unlicensed.

4. The evidence of the defendant and his witness D.W.2, Mr. FAN that the interest was 4% per month was not challenged in any way. Apart from those two loans the defendant says that in 1966 he had received a post dated cheque from a customer on which he had obtained a loan at 4% per month from plaintiff. The cheque was honoured and the plaintiff was repaid.

5. The defendant also states that he did not receive the full amount of $1,700 and $2,000 shown in the cheques, but was paid those sums less 4% which the plaintiff deducted as an advance payment of interest. The three loans referred to by the defendant were clearly high interest money lending transactions. I have to consider whether they are sufficient to establish a case that the plaintiff is in the money lending business.

6. In Premar Ltd. v. Shaw Brothers(1) the plaintiffs, a hire-finance company, were involved in lending transactions outside the scope of that business. It was held that plaintiff was in business of money-lending, but that decision was based on 57 transactions (p.585 F/G).

7. In LITCHFIELD v. DREYFUS(2) the plaintiff loaned to friends and acquaintances at lower rates than they would get elsewhere on about ten occasions and accepted substantial securities. It was held that he was not a money-lender but simply a man who was obliging friends. It was not merely the small number of transactions which influenced the decision but their nature.

8. In FAGOT v. FINE(3), Bankes J. stated:-

"..... the tribunal should consider not only the nature but the number of the money lending transactions. It is from these transactions and from them alone that the inference can be drawn whether or not the person is carrying on the business of money-lending."

9. In Edgelow v. MacElwee(4), McCardie J. in his judgment referred to a number of authorities in considering whether a solicitor was carrying on the business of money-lending. He says at p. 738:-

"Charity and kindliness are not the basis of usury, nor does a man become a money-lender because he may on one or several isolated occasions lend money to a stranger. There must be more than occasional and dis-connected loans. There must be a business of money-lending and the word "business" imparts the notion of system, repetition and continuity."

The Learned Judge went on to say,

"Each case must depend upon its own peculiar features, and it...

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