法庭：情婦被追債問上床點計
已婚食品男商人與中年桑拿女郎擦出愛火，發展出一段婚外情，但兩人戀情僅三年便宣告「玩完」。男方在分手後翻舊帳，不惜興訟自揭婚外情要求對方歸還近三百廿萬元，案件昨在高院開審。女被告雖無律師代表，但詞鋒銳利，在庭上指男方違背照顧她一生一世的承諾，更問男方的律師說：「佢同我上床時點計呀？食咗飯唔使埋單呀？有無啲咁嘅男人？」案件押後至明日進行結案陳詞。這對因財失義的前度情侶分別是原告呂輝烊和被告崔健敏。呂年約六十多歲，一頭白髮，身穿西裝加上眼鏡，外表斯文，從事海藻食品生意。崔現年五十二歲，頭髮染上紅色，紮上髮髻，身穿T恤，外表較真實年齡輕。崔自稱由內地來港，她原本從事桑拿工作，呂光顧桑拿室時認識她。中年骨女詞鋒銳利
呂的大律師稱，兩人的「親密關係」發生於○四至○七年間，呂起初借錢予崔作生活費，崔於○六年時表示要在北角英皇道買舖位，以經營足部按摩和美容生意，呂用自己的積蓄和向親友商借，把逾三百萬元交給崔，但多番強調是貸款，絕非零用錢，至今只收回約十五萬三千元。呂又呈上與崔的電話對話錄音為證。
崔親自以「半鹹半淡」的廣州話質問呂時聲如洪鐘。她聲稱，她原本有一名小她十一歲的丈夫，兩人在○五年結婚，但呂追求她，不時在清晨來電，令她和丈夫在同年底已「散band」，「家破人亡自爆無「變態性關係」
崔表示，呂展開追求攻勢時，每次找她都會給予幾千元，但現時被舊愛翻舊帳，她怒不可遏謂：「佢同我上床時點計呀？……食咗飯唔使埋單呀？有無啲咁嘅男人？我啲損失邊個計呀？」期間，她又無故「爆出」與呂沒有「變態性關係」。
崔向呂指稱與呂相戀時，呂勸不要工作，說會照顧她一輩子。呂在庭上斷然否認答應照顧女方一輩子。崔出示一封呂在兩人分手後寫的情信，內容指呂對於他們分開感到難過，呂在下款中自稱「痛苦的花生仔」。呂起初否認有寫信，但看過信又承認確有其事，但解釋是崔找丈夫威嚇他不要再追債，他擔心未能成功追債，才寫信「氹住」對方。
呂將一些借據呈堂，但崔否認簽過任何借據，要求法官找筆迹專家驗證，又指自己的戶口由呂控制，呂不時把錢轉帳到戶口，再立即取走，她沒有取得任何錢。崔反指呂挪用公款，但因公司要「查數」，於是要求假扮公司向她借錢，她當時加以拒絕。呂在庭上否認曾挪用公款。崔承認在○七年時，以一百六十萬元買北角舖位，原計劃收租長期投資。為了交付首期，她向銀行借得五十多萬元，並抵押了勞力士手錶和金飾獲得十多萬元，但她強調無投資生意，所有都是由呂操控。
案件編號：HCA 134/2008
本案原告呂輝烊年逾六十歲，經營海藻食品生意。他○四年光顧桑拿浴室時與現年五十二歲被告崔健敏認識，並發展婚外情，至○七年分手。他稱拍拖期間共借了三百多萬元予被告買舖位做生意，之後被告僅還了十多萬元，遂於○八年入稟追討。案件三周前在高院審訊，法官鍾安德押後至昨頒發書面判決，裁定原告敗訴。稱被告饋贈 受壓才興訟
俱隱藏真相 被告較可信
法官昨日在書面判詞表示，他認為原告和被告，都可能在有意無意間，隱藏或歪曲真相，並非完全可信可靠。法官指出，原告有兩份據稱有被告簽名的借據及還款契據呈堂，但他卻未能解釋為何上面所列之金額，與現時申索金額不符。至於被告則否認簽過上述兩份文件，並指原告曾稱公司派人查數，央求她向查數人承認借錢，來為他圓謊。法官比較雙方說法，認為被告的說法較為可信。
法官表示原告在付錢時，已偷錄兩人對話，現在拿來作證，可見原告謹慎。但法官在聽取錄音後，卻發現內容似乎更切合被告的事件版本。考慮整體證據後，法官未能確定，款項究竟是饋贈、借款還是共同投資。由於舉證責任在原告，故法官裁定原告敗訴。
案件編號：HCA 134/2008
【明報專訊】六旬已婚食品公司董事2004年光顧桑拿浴室，邂逅50多歲按摩女郎，兩人發展婚外情3年後分手。惟董事突於07年追討319萬元，指款項乃由他借予女方，但他先後在原訟庭及上訴庭被判敗訴，終審法院昨再駁回上訴，認為該筆錢全屬饋贈而非借款。
上訴人呂輝烊為國際食品（亞洲）有限公司董事，他指女被告崔健敏曾簽下100萬元「借據」，並向法庭呈上7段兩人對話的錄音。
錄音未提借據 官指屬饋贈
終院在判辭指出，呂與別人對話時有錄音的習慣，但在提交法庭的錄音中，內容竟完全沒有提及「借據」一事，錄音中兩人亦沒有清楚提及「借錢」等字眼，或被告要求呂借錢給她等，法官對此大表驚訝（highly surprising）。
由於上訴人就「借據」所作的證供並不可信，終院拒絕考慮該證據。判案書又指出，呂稱涉案319萬元全數皆為借予被告的貸款，但法官認為該筆款項或可是饋贈、貸款、共同投資等；且以兩人當時關係，指呂完全沒有在金錢上支持崔實難以置信。雖然呂表示從未送任何金錢予被告，但從其供辭中，亦可見他在與崔交往期間，曾送贈對方跑步機、水晶擺設等多份昂貴禮物，故法官認為該筆319萬元屬饋贈，終駁回呂的上訴。
呂崔二人自04年發展婚外情，呂指其間曾向女方借出逾330萬元，供對方經營足浴店。惟兩人至07年舊情不再，呂即興訟向崔追討欠債。原審時兩人在庭上針鋒相對，崔指該筆錢皆為呂給她的零用錢，又大爆對方追求她時，每隔數天便動輒給她數千元小費，以及和她發生性關係，更斥男方「食咗飯唔使埋單呀？」
【案件編號：FACV16/11】
終審法院
本摘要由終審法院司法助理擬備,
並非判案書的一部分,
判案書可於下述網址取閱: http://www.judiciary.gov.hk/
新聞摘要
呂輝烊 對 崔健敏
終院民事上訴2011年第16號
（原高等法院上訴法庭民事上訴2010年第228號）
上訴人：呂輝烊
答辯人：崔健敏
主審法官：終審法院常任法官陳兆愷、終審法院常任法官李義、終審法院常任法官鄧國楨、終審法院非常任法官包致金及終審法院非常任法官華學佳勳爵
判決：本院一致裁定駁回上訴
判案書：由常任法官鄧國楨頒發判詞、非常任法官包致金頒發同意判詞
聆訊日期：2012年12月7日
判案書日期：2012年12月21日
法律代表：雙方無法律代表，親自應訊。
摘要:
上訴人是一名已婚男士，於1998年在佐敦一所按摩場所認識做按摩師的答辯人。他們於2004年年底至2007年10月期間有親密男女關係。上訴人聲稱於2005年1月至2007年10月期間，向答辯人貸款總共178次。在本訴訟中，上訴人尋求追討港幣3,197,701元。答辯人聲稱有關款項為上訴人給她的饋贈，並聲稱上訴人曾叫她不用工作，讓他照顧她的生活。
上訴人出示一份答辯人承認借款港幣100萬元的「借據」，和若干對話錄音以支持他的申索。他的申索被原訟法庭駁回，原因是法官對上訴人及答辯人的證據並不完全信納。法官裁定有關款項有可能作爲饋贈、共同投資或貸款而向答辯人支付，並不一定僅為貸款。上訴法庭與終審法院均駁回上訴。
在論述證據方面，答辯人指上訴人試圖説服她簽署某些類似該「借據」的文件，但遭她拒絕。事實上，上訴人當時正承受壓力，須向其與妻子的表親一同擁有的公司歸還他的欠款。上訴人儘管承受如此財政壓力，但他仍在本宗訴訟展開後寫了一封情信給答辯人。本院贊同上訴法庭及原訟法庭的看法，考慮到該種情況，上訴人就該「借據」所作的證供並不令人信納，法庭對該「借據」不應給予任何比重。
本院亦注意到，儘管上訴人聲稱曾作出爲數衆多的貸款，但他所出示的對話錄音中並無清楚證據，證明答辯人曾向他要求借貸或他曾向答辯人貸款。
本院裁定，上訴人與答辯人之間的關係跟已婚夫婦之間或父母與子女之間的關係有別，因此並未產生財產的移轉是有意作爲饋贈的假定（稱爲「預贈假定」）。但就本案的情況而言，恰當的推論是所有有關款項均為饋贈。
ACV 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
:
LUI
FAI YEUNG Appellant/Plaintiff
-
and -
CHUI
KIN MAN Respondent/Defendant
____________________
Court: Mr Justice Chan PJ, Mr Justice Ribeiro PJ,
Mr Justice Tang PJ, Mr Justice Bokhary NPJ and Lord Walker of Gestingthorpe NPJ
Date of
Hearing : 7 December 2012
Date of
Judgment : 21 December 2012
_____________________
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:-
“ (a) gifts; or
(b) joint investment and/or asset; or
(c) monies for temporary custody and/or
loans,
and not necessarily be loans.”
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:
(1)
the Court of Appeal erred in finding that the principles in Seldon v
Davidson did not apply to this case and that presumption of advancement applied
in favour of the defendant.
(2)
the Court of Appeal erred in giving no weight to the Acknowledgment of
Debt dated 31 July 2007.
(3)
the trial judge had not correctly or fairly treated the evidence, and he
had not received a fair trial. The Court
of Appeal had failed to correct such mistakes.
Seldon v
Davidson
11. On Seldon v Davidson, the Court of Appeal
said:
“53. The facts in the case of Seldon v
Davidson show that while a defendant admits having received money from a
plaintiff in the absence of any circumstances giving rise to any presumption of
advancement, the defendant has the onus of proving that the money is not
repayable. However, the above principle is applicable only in the absence of
presumption of advancement or anything of that sort.”
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:
“… the house which had been bought with the
aid of the money paid by the plaintiff was no doubt prima facie subject to a
resulting trust in favour of the plaintiff. That being so, it would be strange
indeed if the same considerations did not apply to the money paid by the
plaintiff to the defendant to assist him in the purchase of the house.”
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:
“ The important fact in the present case is
that there is no blood relationship of any kind between the plaintiff and the
defendant.” (my emphasis)[8]
His lordship asked at 1090F:
“…what is to be inferred as to the nature
of the transaction when the simple payment of money is proved or admitted
between strangers.”
He went on to say that he agreed with
Willmer LJ that:
“…on that bald state of affairs, proof of
payment imports a prima facie obligation to repay the advancement in the
absence of circumstances from which presumption of advancement can or may
arise.”
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:
“A defendant seeking to evade repayment of
the money which was paid to him had the onus of proving the facts which he
alleges show that the money was not repayable.”[11]
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:
“36. …The ways in which those payments were
made were not consistent at all with Mr Lui’s allegation that they were loans,
and also contrary to the content of the Letter.”[12]
20. The Court of Appeal added:
“55. Mr Lui’s allegation that Ms Chui has,
over a period of about two and a half years, borrowed money from him for
140-150 times (several times a month) in amounts ranging from several thousand
to several ten thousand dollars and it had been made clear that the monies were
to be repaid in full upon Mr Lui’s demand, is not credible at all in light of
the relationship between the two parties at the material time. In view of Mr
Lui’s financial ability and his sentimental attachment to Ms Chui, it was
extremely possible that he, as she alleged, was willing to ‘sacrifice’ so that
her ‘days can be happy’, and thus gave monetary gifts to her. Mr Lui was not
honest when he said that between the two parties there was a common
understanding by which the monies were to be repaid in full by Ms Chui. The trial
judge was definitely justified to reject it and found that Mr Lui was not an
honest or reliable witness.”
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:
“37. Mr Lui was financially much more
capable than Ms Chui, and in fact, Mr Lui agreed that Ms Chui had from time to
time indicated to him that she did not have sufficient income to cover the
expenses. Under such circumstances, the suggestion that Mr Lui and Ms Chui had
a common understanding which required Ms Chui to make full repayment of the
financial assistance Mr Lui provided to her is still not convincing.”
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:
“4.
Although Mr Lui had already filed a claim in the Court against Ms Chui
for the monies owed in January 2008, on 3 March 2008 he wrote Ms Chui a letter
(“the Letter”) and the content showed that he still loved her. In our view, it is necessary to excerpt some
parts from the Letter because the content is relevant to the merits of the
matter. The excerpt is as follows:
‘… I must make it known to you that I did
not betray, and what’s more, I have not ceased to be faithful. The development
of the matter is different from what you understand/imagine and I am also a
victim. This matter has been used to attack the two of us so as to separate us.
I have all along been resisting pressure from various directions. I have been
striving to protect you … The technical errors made in dealing with this matter
have caused some problems, others have taken the advantages of the situation.
However, the current situation is not hopeless, I think it is still possible to
turn the tide. … I would rather sacrifice myself instead of making you suffer.
Regrettably, you did not go deep into the
matter to acquire a better understanding, but made a wrong decision and broke
off the contact completely. This is our
tragedy which should not have happened…
I am looking forward to your contacting me
again for the promise to be fulfilled, hoping that your days can be happy. …’
”
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 :
“I, Chui Kin Man, borrowed from Lui Fai
Yeung HK$ one million dollars. I undertake to repay firstly the debts of not
less than HK$ five hundred thousand dollars within 3 months from the date of
signing this Acknowledgement of Debts, and then to repay the balance within the
subsequent three months, totaling to HK$ one million dollars. If any
outstanding amounts overdue remain unpaid, Mr. Lui Fai Yeung shall institute
legal proceedings against me to recover.”
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:
“Mr. Lui shall recover a debt in
the approximate sum of HK2,300,000 from 崔健敏 (the Defendant)
on or before 1 March 2008, otherwise the Company and Mr. Wee shall institute
legal proceedings against Mr. Lui to recover the Debt (HK$1,500,000).”
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:
1. 25 May 2005 (whilst being massaged)
2. 25 May 2005 (whilst being massaged)
3. 31 May 2005 (whilst being massaged)
4. 2 August 2007 (face to face)
5. 18 September 2007 (telephone
conversation)
6. 1 October 2007 (telephone conversation)
7. 1 October 2007 (telephone conversation)
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:
“174 Chui: For me is not that matter. For
the worst, I will get back the money to repay to you.
175 Lui: well, okay, not that critical.
176 Chui: For the worst, I will get back
the money and repay to you. I will still
be okay. I just get back the money and
repay to you. After all, the money was
borrowed from you for his house”
44. The
Chinese original reads:
“ 174 崔：我沒關係，我最多把錢拿回來還給你。
175呂：喔好，唔緊要。
176 崔：我最多把錢還給你，我沒所謂，我最多把錢拿回來還給你，反正本來就是拿你的錢去搞這層樓的。”
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.
(Patrick
Chan)
Permanent
Judge (RAV Ribeiro)
Permanent
Judge (Robert Tang)
Permanent Judge
(Kemal
Bokhary)
Non-Permanent
Judge (Lord Walker of Gestingthorpe)
Non-Permanent
Judge
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 :
“41. The judge has accepted the nephew’s
evidence which was that Mr Lui’s wife called him in mid-September 2007,
expressing her suspicion of an extra-marital relationship between Mr Lui and Ms
Chui. However the judge made it clear
that there was no evidence showing how long before September 2007 that Mr Lui’s
wife became aware of such situation. He
also found that it was around August 2007 that Mr Lui told Ms Chui that his
wife had already noticed the relationship between the two of them, and asked Ms
Chui to leave Hong Kong, and it was also around August in 2007 that he told Ms
Chui that his wife’s cousin would come to Hong Kong to check the accounts and
told her to admit having borrowed money from him when being asked.”
[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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