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					A                                                                                    A


B                                                                   DCCJ3595/2005    B

                          IN THE DISTRICT COURT OF THE
C                                                                                    C
            HONG KONG SPECIAL ADMINISTRATIVE REGION
D                             CIVIL ACTION NO. 3595 OF 2005                          D

                                    ------------------------
E                                                                                    E
     BETWEEN
F                                                                                    F
                                          何應虹                            Plaintiff
G                                                                                    G
                                            and
H                                                                                    H
                               恆豐電綫廠有限公司 (HANG                         Defendant
                                FUNG ELECTRIC WIRE
I                                                                                    I
                                 FACTORY LIMITED)

J                                                                                    J
                                    ------------------------
K                                                                                    K
    Coram: H H District Judge Marlene Ng in Chambers (Open to the Public)
L                                                                                    L
    Date of Hearing: 17th March, 2009

M
    Date of Handing Down Decision: 24th March, 2009                                  M


N                                   ------------------------                         N
                                         DECISION
O                                   ------------------------                         O


P   I.               Introduction                                                    P

    1.               There is substantial common ground between the parties to
Q                                                                                    Q
    this action :
R           (a)      In 1995, the Defendant acquired premises known as Flat E,       R

                     33rd Floor, Skyline Plaza, No.88 Tai Ho Road, Tsuen Wan,
S                                                                                    S
                     New Territories (“Property”) at the price of
T                                                                                    T
                     HK$3,900,550.00.

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                                            -2-
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B           (b)      The Property was mortgaged to The Kwangtung Provincial          B

                     Bank later known as Bank of China, Limited (“BOC”) by
C                                                                                    C
                     way of an all moneys mortgage (“BOC Mortgage”) to secure
D                    general banking facilities, ie an overdraft facility (“BOC      D

                     Overdraft”) and a instalment loan of HK$2,000,000.00
E                                                                                    E
                     (“BOC Mortgage Loan”).
F           (c)      The BOC Overdraft was available to the Defendant at its         F

                     bank account with BOC’s Clague Garden Branch (“BOC
G                                                                                    G
                     Account”).
H                                                                                    H
            (d)      On 10th December 1996, Mr Ho Ying Tat (“Ying Tat”), the

I
                     Plaintiff’s brother and a director of the Defendant,            I
                     transferred 40,000 shares in the Defendant to the Plaintiff,
J                                                                                    J
                     and she was appointed as director and secretary of the
K                    Defendant.                                                      K

            (e)      In late 2001, the Defendant had two directors being the
L                                                                                    L
                     Plaintiff and Ying Tat.
M           (f)      As at 10th December 2001, the BOC Overdraft stood at            M

                     HK$360,740.29.
N                                                                                    N
            (g)      On the same day, the Plaintiff transferred a sum of
O                    HK$300,000.00 (“Sum”) from the bank account with Bank           O

                     of Communications (“BOComm”) in the names of the
P                                                                                    P
                     Plaintiff and her brother Mr Ho Ying Wing Peter (“Ying
Q                    Wing”) to the Defendant’s bank account with BOComm              Q

                     (“BOComm Account”).
R                                                                                    R
            (h)      Still on the same day, the Plaintiff as director on behalf of
S                    the Defendant signed a cheque payable to the Defendant for      S


T
                     the Sum drawn on the BOComm Account (“Cheque”).                 T


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                                           -3-
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B           (i)      Still further on the same day, the Cheque was deposited in      B

                     the BOC Account, and the BOC Overdraft was reduced to
C                                                                                    C
                     HK$60,740.29.
D           (j)      The reverse of the certified true copy of the Cheque obtained   D

                     from the records of BOComm was endorsed with the
E                                                                                    E
                     handwritten notation “東主往來 30 萬買銅綫” (“Cheque
F                                                                                    F
                     Notation”).

G           (k)      The bank statement issued by BOC showing transactions for       G
                     the BOC Account from 1st to 29th December 2001 (“BOC
H                                                                                    H
                     Statement”) showed there was no withdrawal of the Sum
I                    from 10th to 29th December 2001 inclusive.                      I

            (l)      By 29th December 2001, the BOC Overdraft increased to
J                                                                                    J
                     HK$147,213.11.
K           (m)      The Defendant completed the sale of the Property for            K

                     HK$2,350,000.00 (“Sale Price”) on 31st December 2001.
L                                                                                    L
            (n)      The outstanding BOC Mortgage Loan with interest in the
M                    total sum of HK$1,703,088.09 was repaid on 2nd January          M

                     2002.
N                                                                                    N
                                  th
            (o)      On 19 June 2002, Ying Tat transferred 15,000 shares in the
O                    Defendant to his wife Madam Chik Sau Yung (“Madam               O

                     Chik”).
P                                                                                    P
                             th
            (p)      On 6 April 2004, the Plaintiff resigned as director/secretary
Q                                                                                    Q
                     and ceased to be a shareholder of the Defendant, and Ying

R
                     Tat became the secretary of the Defendant in place of the       R
                     Plaintiff.
S                                                                                    S
            (q)      According to the Consent to Act as Director dated 6th April
T                    2004 signed by Madam Chik, she became a director of the         T


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B                    Defendant on the same day. But in her affirmation filed on     B

                     3rd December 2008 (“Chik Affirmation”) she claimed she
C                                                                                   C
                                                                    th
                     became a director of the Defendant on/about 10 December
D                    2005.                                                          D

            (r)      In 2004, the Defendant’s auditor was Lam, Lee & So CPA
E                                                                                   E
                     Company Limited (“LLS”).
F           (s)      On 18th November 1992, the Plaintiff and Ying Wing as          F

                     joint tenants acquired premises known as Flat B, 14th Floor,
G                                                                                   G
                     Nanking Building, No.1F Nanking Street, Kowloon
H                                                                                   H
                     (“Nanking Property”) with a mortgage loan from The Bank

I
                     of East Asia, Limited (“BEA”) (“BEA Mortgage”).                I
            (t)      On 1st February 2000, the BEA Mortgage was discharged
J                                                                                   J
                     and the Nanking Property was re-mortgaged to Dao Heng
K                    Bank Limited (“DHB”) (“DHB Mortgage”).                         K

            (u)      The Nanking Property was sold on 21st December 2001. On
L                                                                                   L
                     17th January 2002, the DHB Mortgage was discharged.
M                                                                                   M

    II.              Plaintiff’s claim
N                                                                                   N
                                                     th
    2.               The Plaintiff claimed that on 10 December 2001 with the
O   consent of Ying Tat she lent the Sum to the Defendant to reduce the             O

    outstanding banking facilities due and owing by the Defendant to BOC
P                                                                                   P
    and secured by the BOC Mortgage or “to settle the loan of the Defendant
Q   in order for the [BOC Mortgage] to be discharged”. The Plaintiff further        Q

    claimed that the Defendant failed to repay the loan despite repeated
R                                                                                   R
    requests/demands, so she commenced the present proceedings for
S   recovery of the same with interest. The Defendant’s defence amounted to         S


T
    a denial of the Plaintiff’s claim.                                              T


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B                                                                                   B

    III.             Defendant’s counterclaim
C                                                                                   C
    3.               The Defendant claimed that the Plaintiff as its director and
D   secretary wrongfully used its funds to settle the rates, management fees        D

    and mortgage payments of the Nanking Property, and “the decoration fee
E                                                                                   E
    of the Plaintiff’s property at Wing Hing Industrial Building” in a total
F   sum of HK$127,007.20, and demanded repayment of such sum with                   F

    interest. On the other hand, the Plaintiff claimed that all monies used or
G                                                                                   G
    obtained as bonus had the consent of the Defendant and all its directors
H                                                                                   H
    including Ying Tat, and “Wing Hing Industrial Building had been used

I
    for taking rest by staffs of the Defendant and was later used by [Ying          I
    Tat] as his own accommodation for more than 2 years”.
J                                                                                   J


K   IV.              Summary judgment application                                   K

    4.               By an Amended Summons dated 3rd March 2009, the
L                                                                                   L
    Plaintiff applied for summary judgment against the Defendant for the
M   amount claimed in the Statement of Claim with interest. The Plaintiff           M

    filed 2 affirmations on 17th November 2008 and 2nd January 2009
N                                                                                   N
                    st       nd
    (“Plaintiff 1 and 2 Affirmations”) in support of the application whilst
O   the Defendant filed the Chik Affirmation in opposition.                         O


P                                                                                   P
    V.               Affirmation evidence on the Plaintiff’s claim
Q   5.               The Plaintiff claimed that in December 2001 Ying Tat told      Q

    her the Defendant faced serious financial difficulties and needed to sell
R                                                                                   R
    the Property to improve cash flow. When BOC was told of the same,
S   BOC required the Defendant to reduce the BOC Overdraft (which was               S


T
    about HK$300,000.00 at that time) as much as possible. So Ying Tat on           T


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                                           -6-
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B   behalf of the Defendant “asked [the Plaintiff] to lend money to the         B

    Defendant with a view to discharge the [BOC Mortgage] so that the
C                                                                               C
    Defendant could sell the Property”. Indeed, when the Cheque was
D   deposited in the BOC Account, the Defendant had to fax the BOC              D

    Statement to BOC’s Mr 單漢毅 at the 17/F, Nan Fung Centre office
E                                                                               E
    (“BOC Fax”). The BOC Fax appeared to be signed by Ying Wing with
F                                                                               F
    the Defendant’s company chop affixed thereon.

G                                                                               G
    6.               The Plaintiff exhibited 2 customer advices dated 10th
H                                                                               H
    December 2001 in relation to the transfer/deposit of the Sum/Cheque
I   with the following handwritten notations : “東主戶口借出 from Winnie              I

    東主存入 由本人戶口,先存入公司戶口,再開公司票轉入中銀找
J                                                                               J
    OD 數,因要賣物業。” (BOComm) and “東主戶口借出由交通,from
K                                                                               K
    Winnie 存入東主往來 賣公司物業前先付清 OD 款才能轉賣。”
L   (BOC).                                                                      L


M                                                                               M
    7.               The Plaintiff claimed it was Ying Wing who wrote the
N   Cheque Notation and the name of the payee (ie the Defendant) on the         N

    Cheque. She did not know why Ying Wing wrote the Cheque Notation,
O                                                                               O
    but confirmed the Defendant did not purchase any copper wire.
P                                                                               P


Q
    8.               On 28th December 2001, BOC wrote to the Defendant’s then   Q
    solicitors, Messrs Gallant Y T Ho & Co, requesting them to prepare a
R                                                                               R
    Discharge of the BOC Mortgage and to collect on behalf of BOC on or

S   before 3rd January 2002 the total sum of HK$1,906,000.00 (subject to        S
    confirmation) with details as follows (“BOC Letter”) :
T                                                                               T
            (a)      BOC Overdraft :
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B                    Overdraft Limit at 2001/12/24            HK$200,000.00                  B

                     Interest up to 2001/12/24                HK$1,292.57
C                                                                                            C
                     Predicted interest up to 2002/1/3        HK$619.34
D           (b)      BOC Mortgage Loan :                                                     D

                     Principal                                HK$1,698,664.48
E                                                                                            E
                     Interest                                 HK$4,423.61
F                                                                                            F

    9.               The Plaintiff claimed that after the sale of the Property she
G                                                                                            G
    had on many occasions asked the Defendant and Ying Tat to repay the
H                                                                                            H
    loan of the Sum, but the Defendant refused/failed to do so. According to

I
    the Plaintiff, LLS in 2004 issued an audit confirmation to her (“LSS                     I
    Confirmation”) as follows :
J                                                                                            J
                              “Lam, Lee & So C.P.A. Company Limited

K   HO YING HUNG WINNIE                                                                      K

                             THIS IS NOT A REQUEST FOR PAYMENT
L                            CONFIRMATIONS FOR AUDIT PURPOSE                                 L


M   Dear Sir(s),                                                                             M

                   Re: HANG FUNG ELECTRIC WIRE FACTORY LIMITED
N                                                                                            N
            In the course of our regular examination of the accounts of the above company,
O   we find that the balance of your account is as follows:                                  O
    Balance as at         Nature of Account        Due from you          Due to you
    31 March 2004         Current Account                                HK$300,000.00
P           If the above balance agrees with your records please confirm by signing at the   P
    foot of this page and returning this letter to us in the sealed envelope.
Q           We appreciate that you may have settled the above account after the date         Q
    mentioned above, but we would still appreciate your confirmation that the balance is
    correct.
R           If you do not agree the above balance we should be grateful if you would write   R
    to us directly giving details of the difference.
S                                                                                            S
                                                                          Yours faithfully

T                                                 Lam, Lee & So C.P.A. Company Limited       T


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B                                                                                  B
    Confirmed        :       For and on behalf of
                             HANG FUNG ELECTRIC WIRE FACTORY LIMITED
C                                  (signed by the Plaintiff)                       C
                                          Authorised Signature(s)
    Date             :       31.3.04”
D                                                                                  D


E   10.              On the other hand, Madam Chik denied the Plaintiff lent the   E
    Sum to the Defendant to repay banking facilities secured by the BOC
F                                                                                  F
    Mortgage. She claimed that the Plaintiff as director of the Defendant
G   signed the Cheque and wrote the Cheque Notation, and that the Cheque           G

    Notation on the certified true copy of the Cheque obtained from the
H                                                                                  H
    records of BOComm as at 10th December 2001 showed the Plaintiff’s
I   handwritten notations on the aforesaid customer advices (see paragraph 6       I

    above) were untrue.
J                                                                                  J


K   11.              Madam Chik said that with a surplus of about                  K

    HK$640,000.00 upon deduction of the BOC Mortgage Loan repayment
L                                                                                  L
    of HK$1,703,088.09 from the Sale Price, the Defendant did not need to
M   borrow any loan to redeem the BOC Mortgage. As regards the LSS                 M


N
    Confirmation, Madam Chik claimed that upon careful search of the               N
                                                                    st
    Defendant’s “帳目” there was no such document as at 31 March 2004 or
O                                                                                  O
    any time thereafter, so she believed that the Plaintiff as director of the
P   Defendant at the material time obtained such document either by “做假            P

    賬” (ie false accounting) and/or by misrepresentation to LSS for which
Q                                                                                  Q
    the Defendant reported to the Tsuen Wan Police Station.
R                                                                                  R


S   VI.              Affirmation evidence in relation to the Defendant’s           S
    counterclaim
T                                                                                  T


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                                           -9-
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B   12.              Madam Chik claimed that the Plaintiff as director of the   B

    Defendant took money from the Defendant to deposit in her personal
C                                                                               C
    bank account and/or to pay for her own personal expenses, which
D   according to the Defendant’s preliminary calculations were about            D

    HK$229,736.99. In support, she exhibited 26 cheques signed by the
E                                                                               E
                                                              th
    Plaintiff on behalf of the Defendant dated between 17 February 1998
F   and 31st January 2002 and payable variously to BEA, the Government,         F

    the incorporated owners of Nanking Building, 南華信貸財務有限公司,
G                                                                               G
    the Plaintiff, cash, the Plaintiff and Ying Wing, and Cheung Wing Pang
H                                                                               H
    Pan (“Counterclaim Cheques”).
I                                                                               I

    13.              On the other hand, the Plaintiff claimed that when the
J                                                                               J
    Nanking Property was purchased in 1992, it was agreed by the then
K   directors of the Defendant that it be held in the joint names of the        K

    Plaintiff and Ying Wing and that all outgoings of such property would be
L                                                                               L
    borne by the Defendant. Further, most of payments by the Counterclaim
M   Cheques were for the Nanking Property (eg to pay mortgage instalment        M

    payments, rates, repair costs and management fees). Some of the
N                                                                               N
    Counterclaim Cheques were paid to Ying Wing “either to cover his debt
O   or to pay him as bonus” (eg to pay for his expenses or to his creditor),    O

    and one Counterclaim Cheque was payable to a supplier in the PRC. The
P                                                                               P
    Plaintiff could not remember the precise purpose for certain
Q                                                                               Q
    Counterclaim Cheques but believed they were related to the Nanking

R
    Property. The Plaintiff added that Madam Chik as Ying Tat’s wife should     R
    have known of the Nanking Property’s outgoings, and should have been
S                                                                               S
    fully aware that the Counterclaim Cheques were used for the Nanking
T   Property and for Ying Wing.                                                 T


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B                                                                                                B

    VII.             Legal principles
C                                                                                                C
    14.              A plaintiff may invoke the procedure under Order 14 of the
D   Rules of the District Court (“RDC”) where there is no valid defence to                       D

    his claim or otherwise a triable issue. The rationale is set out in Hong
E                                                                                                E
    Kong Civil Procedure 2009 Vol.1, para.14/4/1 at p.190 as follows :
F           “The underlying policy of the summary procedure is to prevent a defendant            F
            from delaying the plaintiff from obtaining judgment in case in which the
G
            defendant clearly has no defence to the plaintiff's claim: Man Earn Ltd v. Wing      G
            Ting Fong [1996] 1 H.K.C. 225. “Order 14 proceedings for summary
            judgment when there is no defence to a claim are an important feature of the
H           legal process. It enables plaintiffs in cases where there is no defence to obtain    H
            expeditious summary judgment to avoid unnecessary delay. When applied for,
            it is for the defendant to show that there is a triable issue or an arguable
I                                                                                                I
            defence if he is to be allowed his day in court. To deny him his day in court, if
            he shows a triable issue or an arguable defence, is indeed a fearful
J           injustice. On the other hand, if he has no defence and he obtains leave to           J
            defence, equally, there is injustice to the plaintiff” (per Mortimer J.A. in
            Manciple Ltd. v. Chan On Man [1995] 3 H.K.C. 459 at 466. The machinery of
K                                                                                                K
            O.14 works on the basis that if the plaintiff's application is properly
            constituted, he is prima facie entitled to judgment unless the defendant shows
L           cause to the contrary or the application is dismissed.”                              L


M   15.              In Ng Shou Chun v Hung Chun San [1994] 1 HKC 155,                           M

    Godfrey J noted it was not appropriate to embark on a mini-trial of the
N                                                                                                N
    action on affidavit evidence. The court should ask itself the question
O   whether what the defendant says is credible or believable. If so, he must                    O


P
    have leave to defend; if not, the plaintiff is entitled to summary                           P
    judgment.
Q                                                                                                Q


R   16.              Hong Kong Civil Procedure 2009 Vol.1 para.14/4/9 at                         R
    pp.192-194 went on to say that :
S                                                                                                S
            “It is trite law that the mere assertion in an affidavit of a given situation does
            not, ipso facto, provide leave to defend, since the defendant must satisfy the
T           court that he has a fair or reasonable probability of showing a real or bona fide    T
            defence, i.e. that his evidence is reasonably capable of belief …… “There is a
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B           difficulty because the court cannot resolve issues of fact on affidavits.          B
            However, there are some cases in which the defendant’s own case, although
            apparently it raises issues which, if found in his favour, would provide him
C           with a defence, are so incredible or so contradicted by contemporaneous            C
            documents or circumstances that it becomes clear that his defence is a sham”:
D           per Mortimer J.A. in Manciple Ltd. v. Chan On Man [1995] 2 H.K.C. 459 at           D
            466. Two tests are appropriate, namely “Is what the defendant says credible?”
            and “Is there a fair or reasonable probability of the defendant having a real or
E           bona fide defence?” Where an issue of fact is raised, the first question must be   E
            answered in the affirmative before considering the second.”
F                                                                                              F

    17.              In Hong Kong Civil Procedure 2009 Vol.1 para.14/4/16 at
G                                                                                              G
    p.199, it is said that “[a] condition of paying some or all of the money or
H   damages claimed into court, or giving security, is imposed where there is                  H

    good ground in the evidence for believing that the defence set up is a
I                                                                                              I
    sham defence or the master “is prepared very nearly to give judgment to
J   the plaintiff” …… leave to defend conditional on the full amount being                     J

    paid into court may be ordered where the defence is “shadowy” …… or
K                                                                                              K
    there is little or no substance in it or the case is almost one in which
L   summary judgment should be ordered. On the other hand, where the                           L

    defence can be described as more than shadowy but less than probable,
M                                                                                              M
    leave to defend should be given ……”
N                                                                                              N


O
    VIII.            Discussion                                                                O
    18.              At the commencement of the hearing, Mr Lam, counsel for
P                                                                                              P
    the Defendant, abandoned the argument raised in his written skeleton

Q   submissions that the Plaintiff failed to give notice of intention to proceed               Q

    after a year’s delay.
R                                                                                              R


S   19.              Mr Lam next argued that the summary judgment application                  S

    made more than three years after issuance of the Writ of Summons was
T                                                                                              T
    late. He suggested that it was good practice to file affidavit evidence
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A                                                                                    A


B   giving reasons for the delay, and that delay in bringing such application        B

    might of itself be sufficient reason for refusing judgment.
C                                                                                    C


D   20.              However, there is no express provision in the rules as to the   D

    time when a summary judgment application must be made, and failure to
E                                                                                    E
    give reasons for the delay would not necessarily prevent Order 14
F   judgment (see Hong Kong Civil Procedure 2009 Vol.1 para.14/2/2 at                F

    p.187). Mr Lam did not cite any irreparable prejudice to the Defendant
G                                                                                    G
    because of any delay, and I see no merit in this argument. Although Mr
H                                                                                    H
    Lam submitted that the delay would also lead the court to examine the

I
    Plaintiff’s case with more circumspection, I bear in mind that the               I
    background facts (see paragraph 1 above) are largely uncontested.
J                                                                                    J


K   21.              In this case, there is no dispute that on 10 th December 2001   K

    the Plaintiff paid the Sum to the Defendant, and such Sum was ultimately
L                                                                                    L
    deposited in the BOC Account. There is also no evidence that the
M   Defendant ever repaid such Sum to the Plaintiff. Thus the sole issue is          M

    whether such payment was a loan by the Plaintiff to the Defendant. If the
N                                                                                    N
    Plaintiff establishes a prima facie case on such issue, it is for the
O   Defendant to raise triable issues or arguable defences to the effect that        O

    such payment was not a loan.
P                                                                                    P


Q   22.              Mr Wong, counsel for the Plaintiff, submitted that the          Q

    purpose for which the Plaintiff granted the loan of the Sum to the
R                                                                                    R
    Defendant was irrelevant because of clear evidence of the existence of
S   the loan. But Mr Lam argued that it was for the Plaintiff to make out her        S


T                                                                                    T


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A                                                                               A


B   pleaded case that the alleged loan to the Defendant was for the purpose     B

    described in paragraphs 2 and 5 above.
C                                                                               C


D   23.              I note the following undisputed facts : (a) the Sum was    D

    transferred from the bank account in the names of the Plaintiff and Ying
E                                                                               E
    Wing to the BOComm Account and then by the Cheque to the BOC
F   Account, (b) upon deposit of the Cheque in the BOC Account, the Sum         F

    thereby reduced the BOC Overdraft from HK$360,740.29 to
G                                                                               G
    HK$60,740.29, and (c) there was no withdrawal of the Sum or a
H                                                                               H
    combination of sums constituting the Sum from the BOC Account

I
    between 10th December 2001 and 29th December 2001 (Saturday).               I


J                                                                               J
    24.              Since the sale of the Property was completed on 31st
K   December 2001 (Monday), Mr Wong submitted that there could be no            K

    avoiding the conclusion that the Sum was in fact used for reducing the
L                                                                               L
    BOC Overdraft, which conclusion sat well with the Plaintiff’s
M   explanation that the Defendant requested a loan of the Sum specifically     M

    for such purpose. I am of the view that the Plaintiff has established a
N                                                                               N
    prima facie case of her claim.
O                                                                               O

    25.              Mr Lam cast doubt on such contention by reference to the
P                                                                               P
    Cheque Notation on the reverse of the Cheque, which was a
Q   contemporaneous document dated 10th December 2001 and deposited in          Q

    the BOC Account on the same day. Mr Lam submitted that with the
R                                                                               R
    Cheque Notation suggesting that the Sum or the Cheque was
S   shareholder’s account for purchase of copper wire and further with          S


T
    factual dispute over whether it was the Plaintiff or Ying Tat who wrote     T


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A                                                                                        A


B   the Cheque Notation, there were triable issues that went to the credibility          B

    of the Plaintiff’s assertions.
C                                                                                        C


D   26.               Before dealing with the above argument, I would like to            D

    dispose of two preliminary points in relation to the Cheque Notation in
E                                                                                        E
    Mr Lam’s written skeleton submissions.
F                                                                                        F

    27.               First, I disagree the Plaintiff changed her evidence to say
G                                                                                        G
    that Ying Wing wrote the Cheque Notation on the reverse of the Cheque.
H                                                                                        H
    The reality is although the Plaintiff 1st Affirmation stated that the

I
    Plaintiff transferred the Sum from her bank account (erroneously stated              I
    to be the BOComm Account) to the BOC Account, she exhibited to such
J                                                                                        J
    affirmation customer advices which of themselves and by the
K   handwritten notations thereon clearly showed that the Sum was                        K

    transferred from the bank account with BOComm in the names of the
L                                                                                        L
    Plaintiff and Ying Wing to the BOComm Account and from the
M   BOComm Account by cheque to the BOC Account. There has been no                       M

    hiding of the routing of the Sum through the various accounts, which the
N                                                                                        N
    Defendant does not dispute at all and which the Plaintiff has clarified in
O   the Plaintiff 2nd Affirmation. In any event, the matter of the Cheque                O

    Notation was never canvassed in the Plaintiff’s pleadings or in the
P                                                                                        P
                 st
    Plaintiff 1 Affirmation that may lend weight to any suggestion of
Q   change of evidence. Further, the Plaintiff 2nd Affirmation did not resile            Q

    from the Plaintiff’s earlier evidence in respect of the existence and
R                                                                                        R
                                                                                    st
    purpose of the loan of the Sum to the Defendant set out in the Plaintiff 1
S   Affirmation.                                                                         S


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B   28.              Secondly, Mr Lam submitted it was incredible that the                B

    Plaintiff who signed the Cheque would be unaware of the Cheque
C                                                                                         C
    Notation. There is no dispute it was the Plaintiff who signed the Cheque.
D   But the Plaintiff’s case is that Ying Wing wrote the name of the payee                D

    and the Cheque Notation on the Cheque because she recognised Ying
E                                                                                         E
    Wing’s handwriting. Unless there is evidence to suggest that the Cheque
F   Notation was already made when the Plaintiff signed the Cheque or the                 F

    Plaintiff had custody of the Cheque from the time she signed it until it
G                                                                                         G
    was deposited in the BOC Account or the Plaintiff was the one who
H                                                                                         H
    deposited the Cheque into the BOC Account or alternatively evidence to

I
    explain why Ying Wing would not have access to the Cheque (but there                  I
    was no such evidence), the fact that the Plaintiff signed the Cheque does
J                                                                                         J
    not of itself render it incredible that she was unaware of the Cheque
K   Notation.                                                                             K


L                                                                                         L
    29.              On the other hand, Madam Chik only became a shareholder
M   and director of the Defendant in 2002 and 2004 respectively. There is no              M

    evidence that she was involved in the Defendant’s affairs in 2001. But in
N                                                                                         N
    the Chik Affirmation Madam Chik did not state the source of information
O   or belief for her assertion that it was the Plaintiff who wrote the Cheque            O

    Notation on or before 10th December 2001.
P                                                                                         P


Q   30.              I bear in mind that Order 14 rule 4(1) and (2) of the RDC            Q

    provides as follows :
R                                                                                         R
              “(1) A defendant may show cause against an application under rule 1 by
              affidavit or otherwise to the satisfaction of the Court.
S                                                                                         S
              (2) Rule 2(2) applies for the purposes of this rule as it applies for the
              purposes of that rule.”
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B   Order 14 rule 2(2) of the RDC provides as follows :                                         B

              “Unless the Court otherwise directs, an affidavit for the purposes of this rule
C             may contain statements of information or belief with the sources and grounds      C
              thereof.” (my emphasis)
D                                                                                               D
    Hong Kong Civil Procedure 2009 Vol.1 para.14/4/4 at p.191 also states
E   that “[matter] of hearsay is admissible in the defendant’s affidavit ……                     E

    provided that the sources and grounds of information or belief are
F                                                                                               F
    disclosed”. In my view, Madam Chik’s assertion that it was the Plaintiff
G   who wrote the Cheque Notation on or before 10th December 2001 is                            G

    therefore nothing more than a bare assertion.
H                                                                                               H


I   31.              Coming back to Mr Lam’s arguments in paragraph 25 above,                   I

    I note the sale of the Property was completed and the discharge of the
J                                                                                               J
                                           st
    BOC Mortgage was made on 31 December 2001 (Monday). In light of
K   the undisputed facts in paragraph 23(a)-(c) above, it is clear that                         K

    whatever might have been the original purpose for transferring the Sum
L                                                                                               L
    to the Defendant and irrespective of the Cheque Notation, the Sum was
M                                                                                               M
    actually used to reduce the BOC Overdraft and not for any other purpose.

N                                                                                               N
    32.              Although Mr Wong submitted that “the [Sum] was a sum
O                                                                                               O
    used to buy copper wire and not as allegedly used to pay off the
P   mortgage loan of the Property”, neither the Defence and Counterclaim                        P

    nor the Chik Affirmation expressly so aver/assert. Indeed, apart from a
Q                                                                                               Q
    denial that the Sum deposited in the BOC Account was a loan from the
R   Plaintiff to reduce the BOC Overdraft, the Defendant’s pleadings and                        R

    affirmation carefully shy away from directly addressing how and for
S                                                                                               S
    what purpose the Sum was used.
T                                                                                               T


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                                            - 17 -
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B   33.              Further, even though Madam Chik claimed to have carefully           B

    searched the Defendant’s accounts, the Defendant did not disclose any
C                                                                                        C
    extracts from its accounts, journals or ledgers to show how the Sum
D   deposited in the BOC Account was disbursed or whether copper wire                    D

    was purchased over the relevant period. I also take note of Mr Lam’s
E                                                                                        E
                                                                                   th
    submissions that the debit and credit entries for the period between 10
F   and 29th December 2001 in the BOC Statement that reflected an increase               F

    of the BOC Overdraft from the reduced sum of HK$60,740.29 on 10th
G                                                                                        G
                                                     th
    December 2001 to HK$147,213.11 on 29 December 2001 were normal
H                                                                                        H
    business transactions of the Defendant as an ongoing concern, but there

I
    is still no suggestion that any of such entries was for purchase of copper           I
    wire.
J                                                                                        J


K   34.              Still further, there is no suggestion that Ying Tat (ie Madam       K

    Chik’s husband and a director of the Defendant in 2001 and now) was
L                                                                                        L
    unavailable to respond to the Plaintiff’s assertions, yet the Chik
M   Affirmation did not even allude to any attempt by Madam Chik (who                    M

    only became a shareholder and director of the Defendant in 2002 and
N                                                                                        N
    2004 respectively) to make suitable enquiries with Ying Tat.
O                                                                                        O

    35.              It is trite that a bare denial is insufficient to resist a summay
P                                                                                        P
    judgment application and the defendant’s affidavit must condescend
Q   upon the particulars, and specifically deal with the plaintiff’s claim and           Q

    affidavit (see Hong Kong Civil Procedure 2009 Vol.1 para.14/4/1 at
R                                                                                        R
    p.190).
S                                                                                        S


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B   36.              In my view, although the deposit of the Sum in the BOC       B

    Account does not of itself prove it was a loan for the purpose of reducing
C                                                                                 C
    the BOC Overdraft (since any sum deposited in a bank account with
D   overdraft facilities will automatically reduce the existing overdraft), the   D

    matters discussed above lean strongly in favour of the Plaintiff’s case.
E                                                                                 E
    Whilst I acknowledge the matter of the Cheque Notation being a notation
F   on a contemporaneous document raises some factual disputes which              F

    cannot be resolved on affidavit, in the overall context of the above
G                                                                                 G
    discussion such defence arguments are at best shadowy.
H                                                                                 H


I
    37.              Notwithstanding the aforesaid, Mr Lam again cast doubt on    I
    the Plaintiff’s case by saying it was unnecessary for the Defendant to
J                                                                                 J
    borrow the Sum to redeem the BOC Mortgage. In this respect, there is no
K   dispute that the Sale Price was sufficient to cover both the outstanding      K

    BOC Mortgage Loan and the BOC Overdraft even if the latter had not
L                                                                                 L
    been reduced by the deposit of the Sum in the BOC Account. Mr Lam
M   submitted that this showed the Plaintiff’s allegation was incredible.         M


N                                                                                 N
    38.              The starting point is that the Property was mortgaged to
O   BOC, so quite apart from any consideration as to whether the anticipated      O

    sale proceeds would be sufficient to cover the outstanding sums secured
P                                                                                 P
    by the BOC Mortgage, the Defendant necessarily required BOC’s
Q   consent to sell the Property.                                                 Q


R                                                                                 R
    39.              The Plaintiff claimed that when the Defendant told BOC it
S   intended to sell the Property, BOC asked the Defendant to reduce the          S


T
    BOC Overdraft as much as possible, so Ying Tat on behalf of the               T


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                                           - 19 -
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B   Defendant (which was then in financial difficulty) asked her for a loan of         B

    the Sum to reduce the BOC Overdraft in order to sell the Property.
C                                                                                      C


D   40.              The Plaintiff’s case is supported by objective facts. First, as   D

    discussed above, the BOC Overdraft was actually reduced by the Sum
E                                                                                      E
    prior to completion of the sale of the Property and/or the redemption of
F   the BOC Mortgage. Secondly, when the BOC Letter required Messrs                    F

    Gallant Y T Ho & Co to collect outstanding sums in respect of the BOC
G                                                                                      G
                                                                rd
    Overdraft and the BOC Mortgage Loan on or before 3 January 2002 to
H                                                                                      H
    discharge the BOC Mortgage, it specified that the overdraft limit for the

I
    BOC Overdraft was HK$200,000.00. Thirdly, the Sum reduced the BOC                  I
    Overdraft to a level well within such overdraft limit. Fourthly, even
J                                                                                      J
    though the BOC Overdraft increased to HK$147,213.11 by 29 th
K   December 2001 (ie just before the discharge of the BOC Mortgage) it                K

    was still well within such overdraft limit. In my view, the above matters
L                                                                                      L
    sit well with the Plaintiff’s case that when the Defendant approached
M   BOC with its intention to sell the Property, BOC gave consent on the               M

    basis that the Defendant should reduce the BOC Overdraft as much as
N                                                                                      N
    possible. I am not persuaded the mere fact that the Sale Price exceeds the
O   BOC Overdraft and the BOC Mortgage Loan renders the Plaintiff’s                    O

    contentions incredulous. In my view, the Defendant could have clarified
P                                                                                      P
    the matter with Ying Tat (who was and is a director of the Defendant
Q   then and now) or with BOC, but the Chik Affirmation did not mention                Q

    any such effort.
R                                                                                      R


S   41.              During the hearing, I queried why the Defendant was               S


T
    required to send the BOC Fax to BOC obviously some time after 29th                 T


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                                          - 20 -
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B   December 2008. Mr Wong reminded me that although the Receipt on                B

    Discharge of the BOC Mortgage was dated 31st December 2008, the
C                                                                                  C
    BOC Letter showed that monies for redemption of the BOC Mortgage
D   would be collected by the solicitors on or before 3rd January 2002 and         D

    hence the precise amount of the BOC Overdraft and interest thereon to be
E                                                                                  E
    collected was “subject to confirmation”. Indeed, the Annual Statement of
F   Instalment Loan Account dated 28th September 2005 showed that the              F

    BOC Mortgage Loan was repaid on 2nd January 2002.
G                                                                                  G


H                                                                                  H
    42.              Upon careful consideration, given that (a) the BOC

I
    Overdraft and BOC Mortgage Loan were handled by BOC’s Clague                   I
    Garden Branch (see BOC Statement and Annual Statement of Instalment
J                                                                                  J
    Loan Account dated 28th September 2005), (b) the BOC Overdraft had an
K   overdraft limit of HK$200,000.00, (c) the monies for redemption of the         K

    BOC Mortgage was collected only in January 2002, and (d) as at 28 th
L                                                                                  L
    December 2001 the final figure for settling the BOC Overdraft was still
M   outstanding, there is nothing untoward for BOC staff at 17/F Nan Fung          M

    Centre dealing with discharge of the BOC Mortgage to ask the Defendant
N                                                                                  N
    to fax through the BOC Statement which showed the deposit of the Sum
O   and status of the BOC Overdraft thereafter.                                    O


P                                                                                  P
    43.              Next, the Defendant disputed the LSS Confirmation. Mr
Q   Wong’s first attack was the Plaintiff’s failure to plead the same. However,    Q

    the LSS Confirmation is not a material fact that constitutes the Plaintiff’s
R                                                                                  R
    cause of action on the loan of the Sum. Rather, the Plaintiff relies on the
S   LSS Confirmation as supporting evidence for the existence of the loan          S


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                                            - 21 -
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B   that has been outstanding for some time. In my view, it is not necessary            B

    to plead evidence.
C                                                                                       C


D   44.              Although the Plaintiff has not explained why she signed the        D

    LSS Confirmation (being an audit confirmation addressed to her as
E                                                                                       E
    creditor of the Defendant) as director on behalf of the Defendant (ie the
F   debtor), it is not a complaint that featured in Mr Lam’s submissions.               F

    Instead, Mr Lam in his written skeleton submissions complained that the
G                                                                                       G
    Plaintiff did not produce any audit confirmation “signed by an
H                                                                                       H
    independent director” for the period ending 31st March 2002. I do not

I
    understand why an “independent director” of the debtor company should               I
    sign an audit confirmation addressed to a individual creditor.
J                                                                                       J


K   45.              In any event, it is for the Defendant to raise triable issues or   K

    arguable defences, but it only made bare assertions of false accounting
L                                                                                       L
    and/or misrepresentation. Although such assertions are serious
M   allegations, there is no evidence that the Defendant made enquires with             M

    LSS as to whether LSS ever dispatched the LSS Confirmation or whether
N                                                                                       N
    such confirmation signed by the Plaintiff was returned to LSS. Madam
O   Chik’s search through the Defendant’s accounts for the LSS                          O

    Confirmation is also inexplicable when the LSS Confirmation on its face
P                                                                                       P
    (a) suggests it was issued by LSS and (b) requests the Plaintiff to return it
Q   to LSS after signing thereon. The Defendant also did not produce any                Q

    extracts of entries over the relevant period from its accounts, journals or
R                                                                                       R
    ledgers which should expose the existence or otherwise of a loan of the
S   Sum from the Plaintiff and/or the description for the deposit of the Sum            S


T
    in the BOC Account. The obliquity of the Chik Affirmation in relation to            T


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                                           - 22 -
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B   the LSS Confirmation highlights the shadowy nature of the allegations of          B

    false accounting and misrepresentation which cannot be bolstered by
C                                                                                     C
    mere reporting to the police by the Defendant.
D                                                                                     D

    46.              In my view, whilst there are disputes of fact (especially in
E                                                                                     E
    relation to the Cheque Notation on the reverse of the Cheque) that cannot
F   be resolved on affidavit (so that summary judgment is inappropriate), the         F

    defence set up is overall shadowy and of little substance. It is a case of
G                                                                                     G
    which I am very nearly minded to give judgment. But Mr Lam submitted
H                                                                                     H
    that nevertheless the Defendant should be allowed unconditional leave to

I
    defend up to the amount of the counterclaim.                                      I


J                                                                                     J
    47.              The pleaded counterclaim for a sum of HK$127,007.20 is
K   less than the claim for HK$229,736.99 based on the Counterclaim                   K

    Cheques in the Chik Affirmation. I agree that for the purpose of the
L                                                                                     L
    summary judgment application, the Defendant is not bound by the
M   Defence and Counterclaim. Order 14 rule 4(1) of the RDC provides that             M

    a defendant may show cause “by affidavit or otherwise to the satisfaction
N                                                                                     N
    of the Court”, so if the affirmation in opposition raises triable issues or
O   arguable defences, it is always open to the defendant to apply for                O

    amendment of the defence in due course.
P                                                                                     P


Q   48.              But several matters are of note in respect of the counterclaim   Q

    canvassed in the Chik Affirmation. First, the Chik Affirmation did not
R                                                                                     R
    verify the plea in the Defence and Counterclaim that the Plaintiff
S   wrongfully used the Defendant’s funds to pay for the decoration fee of            S


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                                              - 23 -
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B   the Plaintiff’s property at Wing Hing Industrial Building, so I will not                     B

    consider the same.
C                                                                                                C


D   49.              Secondly, there is clear dispute of fact in respect of the                  D

    counterclaim in relation to the Counterclaim Cheques and the nature of
E                                                                                                E
    Nanking Property. The Defendant claimed that the Plaintiff by the
F   Counterclaim Cheques took the Defendant’s funds for her own personal                         F

    use, but the Plaintiff claimed that the monies were either used for the
G                                                                                                G
    Nanking Property (which was beneficially owned by the Defendant) or
H                                                                                                H
    by Ying Wing.

I                                                                                                I
    50.              But in my view such factual disputes are insufficient to
J                                                                                                J
    permit unconditional leave to defend to the extent of HK$229,736.99.
K   According to Hong Kong Civil Procedure 2009 Vol.1 para.14/4/14 at                            K

    p.197 :
L                                                                                                L
              “      …… the mere fact that the defendant has a counterclaim does not
              necessarily entitle him leave to defend …… Where therefore there is clearly
M             no defence to the plaintiff’s claim, so that the plaintiff should not be put to    M
              the trouble and expense of proving it, but the defendant sets up a plausible
              counterclaim for an amount not less than the plaintiff’s claim, the order
N                                                                                                N
              should not be for leave to defence but should be for judgment for the plaintiff
              on the claim with costs, with a stay of execution until the end of the trial of
O             the counterclaim or pending further order …… In a proper case, e.g. claim by       O
              solicitors for costs with a counterclaim for damages for negligence, the court
              may order payment into court of part of the claim with a stay of execution
P                                                                                                P
              pending the counterclaim ……
                     If, however, the counterclaim arises out of quite a separate and distinct
Q             transaction or it is wholly foreign to the claim or there is no connection         Q
              between the claim and the counterclaim, the proper order should be for
              judgment for the plaintiff with costs without a stay pending the trial of the
R             counterclaim ……” (my emphasis)                                                     R


S                                                                                                S
    51.              Despite Mr Lam’s persuasion, I am not convinced that the
T   Plaintiff’s claim and the Defendant’s counterclaim arise from the same                       T


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                                            - 24 -
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B   transaction. Rather, it is plain as pikestaff that they arise from separate      B

    and distinct transactions covering different properties, different funds,
C                                                                                    C
    different uses and different periods. In the circumstances, I am unable to
D   draw assistance from the Defendant’s counterclaim to consider giving             D

    unconditional leave to defend.
E                                                                                    E


F   IX.              Conclusion                                                      F

    52.              In the circumstances, I grant conditional leave to defend to
G                                                                                    G
    the Defendant in respect of the Plaintiff’s claim and make the following
H                                                                                    H
    orders (but the costs orders are on nisi basis) :

I
            (a)      unless the Defendant pays a sum of HK$300,000.00 into           I
                     court within 14 days from the date hereof, the Plaintiff may
J                                                                                    J
                     enter final judgment against the Defendant for the amount
K                    endorsed on the Statement of Claim with interest thereon as     K

                     claimed, and costs of the action including costs of this
L                                                                                    L
                     application (with all costs reserved if any) with certificate
M                    for counsel to be taxed if not agreed;                          M

            (b)      if the aforesaid sum of HK$300,000.00 is so paid into Court
N                                                                                    N
                     as ordered,
O                    (i)     the Defendant may defend the action;                    O

                     (ii)    the parties do serve List of Documents within 28 days
P                                                                                    P
                             from the date hereof with mutual inspection within 7
Q                            days thereafter;                                        Q

                     (iii)   the parties do exchange witness statements as to fact
R                                                                                    R
                             within 42 days from the date hereof;
S                    (iv)    the parties do attend before Master in chambers (open   S


T
                             to the public) at Court No.47 at 2:30pm on 4th June     T


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                                             - 25 -
A                                                                                     A


B                            2009 (with 20 minutes reserved) for Case                 B

                             Management Conference (“CMC”);
C                                                                                     C
                     (v)     the parties do comply with Order 25 of the RDC and
D                            Practice Direction 5.2 (which will come into effect on   D

                             2nd April 2009) in respect of the CMC;
E                                                                                     E
                     (vi)    costs of and occasioned by this application (including
F                            all costs reserved if any) be costs in the cause with    F

                             certificate for counsel.
G                                                                                     G


H                                                                                     H
    53.              At the hearing I raised with counsel Order 1A rule 4(e) of

I
    the RDC that will come into effect on 2nd April 2009. Active case                 I
    management includes encouraging the parties to use alternative dispute
J                                                                                     J
    resolution procedure if the court considers that appropriate, and
K   facilitating the use of such a procedure. The parties and their legal             K

    representatives should assist the court in discharging such duty.
L                                                                                     L


M   54.              Here, the litigation involves a family company and the           M

    disputes involve various siblings. The Plaintiff’s claim and the
N                                                                                     N
    Defendant’s counterclaim require revisiting various transactions and
O   properties involving the family company and several siblings. Further, it         O

    appears from the documents there may well be other disputes amongst
P                                                                                     P
    various players which are not the subject of the present litigation, eg the
Q   ownership/status and the consequences on sale of the Nanking Property,            Q

    and the status/payments in respect of the Wing Hing Industrial Building
R                                                                                     R
    property. Given the familial relationship amongst the various players,
S   and the entwined disputes amongst the siblings, counsel and solicitors            S


T
    acting for the parties may wish to carefully consider whether there are           T


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                                           - 26 -
A                                                                               A


B   other options for satisfactory resolution of the disputes other than by     B

    litigation and to explore with their respective clients other possible
C                                                                               C
    options including mediation.
D                                                                               D

    55.              If the parties and their legal representatives consider
E                                                                               E
    mediation to be a viable alternative, they should jointly write to the
F   learned Master hearing the CMC as soon as possible to seek directions       F

    on the conduct of this action and the scheduled CMC with a view to save
G                                                                               G
    costs but always bearing in mind that after implementation of the Civil
H                                                                               H
    Justice Reform the court will not countenance unwarranted delay.

I                                                                               I


J                                                                               J


K                                                                               K
                                                            (Marlene Ng)
L
                                                         District Court Judge   L


M                                                                               M


N                                                                               N


O                                                                               O

    Representation:
P                                                                               P
    Mr Peter K C Wong instructed by Messrs Rowdget W Young & Co for
Q   the Plaintiff.                                                              Q

    Mr Andy Y H Lam instructed by Messrs Yeung & Chan for the
R                                                                               R
    Defendant.
S                                                                               S


T                                                                               T


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