HCA14364/1998 TIMES PRINTING MACHINERY LTD. v. WONG CHI PING t/a SANG YAU LUEN PRINTING CO. - LawHero
HCA14364/1998
高等法院（民事訴訟）Deputy High Court Judge Line19/12/2002
HCA14364/1998
由此
A A
HCA14364/1998
B B
IN THE HIGH COURT OF THE
C HONG KONG SPECIAL ADMINISTRATIVE REGION C
COURT OF FIRST INSTANCE
D D
ACTION NO.14364 OF 1998
E --------------------- E
BETWEEN
F F
TIMES PRINTING MACHINERY LIMITED Plaintiff
G G
and
H H
WONG CHI PING trading as Defendant
SANG YAU LUEN PRINTING COMPANY
I I
-------------------
J J
Before : Deputy High Court Judge Line in Court
K Dates of Hearing : 19-20 December 2002 K
Date of Judgment : 20 December 2002
L L
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M M
JUDGMENT
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N N
1. This is an action for damages for breach of contract. The
O O
contract in question was for the sale of goods, and the goods in question
P were a printing machine, a sophisticated piece of printing machinery, the P
contract price of which was some $2.32 million. The nature of the claim
Q Q
is a wrongful refusal by the buyer to accept delivery.
R R
2. Let me commence by setting out the history. It starts back in
S S
August 1997. The plaintiff’s company was in the business of supplying
T machinery of the kind in question, and at that time, supplied the defendant T
U U
V V
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A A
with a printing press. It was evidenced by a contract which bears the
B B
label T-065. That sale went through on the plaintiff’s standard terms in
C the sum of $1.46 million. Both parties agreed that this transaction was C
unexceptionable and occurred in the manner I just described. The time
D D
then moved on to November 1997. The parties got together again and
E signed a contract bearing the label T-076 dated 25 November of that year E
for the sale of a further machine for the sum of $2.4 million. The contract
F F
is set out in the bundle at page B3. Printing presses of this type, made by
G a manufacturer called Roland, have a model number which varies as the G
machines develops over the years. This was going to be a contract for the
H H
sale of a model 643. The year of manufacture was 1989. It is common
I ground between the parties that it was a term of this contract that the I
J
defendant have the opportunity to examine the goods and if they were not J
what he wanted, then the contract could be cancelled. That is just what
K K
happened. The significance of this is that the defendant went to look at
L
that machine and inspected it in November 1997. L
M M
3. The case for the plaintiff was that at this time
N four photographs were delivered to the defendant showing that machine. N
These four photographs are 3R in size and are exhibit 1 in the case. The
O O
defendant’s case is that those photographs were not given to him at this
P time in November 1997, and no photographs were then given to him at all. P
Q Q
4. We then move on to February 1998. The parties entered into
R a written contract bearing the label T-088 for the sale of a printing press in R
the sum of $2.32 million. The model number was 638 and the year of
S S
manufacture was 1987. The written contract is set out at page B6. On
T the back of it there were standard terms and conditions as seen at page B7. T
U U
V V
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A A
The written contract sets out the number and the date I have just given.
B B
The case for the plaintiff was that on this occasion, further photographs
C were given showing this 638 machine. He says that they were given by C
two means. Firstly by the provision of three photographs which are
D D
exhibit 2 in the case, the larger photographs, I think they are 5R in size.
E And also by the provision of one sheet of A3 paper which had a colour E
photocopy of those three photographs upon it, and he said both of those
F F
were given to the defendant on 27 February in a café or restaurant in Kwun
G Tong where they were negotiating this deal before they went to the office G
and actually executed the written contract. The case for the defendant is
H H
that on this occasion, he was given exhibit 1, the four small 3R
I photographs, which it is common ground do not depict a 638 machine but I
J
depict a 643 machine. J
K K
5. In March, the plaintiff company entered an agreement to
L
purchase the 638 machine, a specific one, that was working and in use in L
Sweden. Time went by and the next significant event that occurred was a
M M
fax dated 5 June from the defendant to the plaintiff. I should add here
N that the delivery date on the written contract on page B6 of the bundle, put N
shipment or delivery at around July 1998. At the time that this contract
O O
was executed no shipping date was available therefore it was no more
P specific than that. Turning to that fax of 5 June, at page B10 of the P
bundle, it said this :
Q Q
“Your Company had verbally promised the Printing Press under
R the above contract [referring to T-088 at the top] will arrive in R
Hong Kong before 20th June. However, since the signing of the
contract, we heard nothing from you. We hereby notify your
S Company if the above Printing Press cannot arrive before S
15th July 1998, the above contract will be cancelled and please
T return the deposit. Hope your Company will abide by the T
promise.”
U U
V V
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A A
6. What the plaintiff said happened after that is there was
B B
negotiation between them. The plaintiff company was now aware of the
C shipping details and the date of arrival, and that accordingly on 18 June the C
parties entered a supplemental contract, and this is set out at page B12 of
D D
the bundle. And what this said was that :
E E
“In respect of Contract T-088 for the purchases of Roland Four
Colour Printing Press :
F F
Estimate that the Printing Press will arrive in Hong Kong on or
G
before 25th day of July, and will arrange for inspection of G
machine immediately.
H If after checking the machine number and machine accessories H
with the contents of the contract which confirms everything is
correct. Buyer shall pay all balance according to contract
I within 7 days and take delivery, otherwise the deposit will not be I
refunded.
J J
If the Printing Press shall arrive in Hong Kong after 25th day of
July, Seller shall compensate the deposit paid under the
K contract.” K
L L
7. That was typed. Then at the meeting between the plaintiff’s
M representative, Mr Lam and Mr Wong, the defendant, in the presence of M
Mr Wong’s secretary, the secretary added these words with everyone’s
N N
consent : “Seller’s machine shall be shipped from Sweden to Hong Kong.
O If it is discovered that the machine is not shipped from Sweden to Hong O
Kong, Seller must compensate Buyer for the deposit paid under the
P P
contract.”
Q Q
R
8. Now the defendant’s case is that the second set of R
photographs, exhibit 2, showing the machine model 638 was provided to
S S
him or, to be specific, to his secretary by Mr Lam, of the plaintiff, in
T April 1998. He says that when he saw that photograph, he realised the T
U U
V V
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A A
machine was different from the photographs that were already in his
B B
possession. He says that he therefore raised this with Mr Lam and
C Mr Lam agreed that was the case, and that they therefore came to an C
agreement that if the machine arrived from Sweden was as in the larger
D D
photograph, exhibit 2, the contract would be cancelled and the defendant
E would not have to pay for the goods. That is what the defendant contends E
for and he says that agreement was specifically made with Mr Lam before
F F
the supplemental contract of 18 June was executed. Subsequently, the
G machine did arrive in Hong Kong. It was inspected on 6 August, all G
parties being present, the defendant having an expert and not surprisingly,
H H
because it was a 638 machine that was being shipped, it looked like the
I machine shown in photograph exhibit 2, the larger photographs, it did not I
J
look like the machine in the smaller photograph exhibit 1, accordingly the J
defendant says that he was entitled not to accept it and he did not accept it.
K K
The plaintiff company accepted that repudiation and lines were then drawn
L
up for this dispute. That is the history. L
M M
9. The issue therefore that determines this case is what
N photographs were shown by the plaintiff’s representative Mr Lam to the N
defendant Mr Wong on 27 February 1998 in Kwun Tong. That is the
O O
issue.
P P
10. The resolution for that issue turns upon credibility. The
Q Q
plaintiff’s representative Mr Lam was the only witness for the plaintiff.
R I found him to be a good and credible witness. He struck me as a man R
who was doing his level best to remember back to events in 1997 and 1998.
S S
He impressed me very strongly as someone not arguing a cause but
T someone who strove to answer the questions honestly and accurately. He T
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A A
did not always find it easy — no one would in the circumstances. What
B B
he displayed in his evidence was a willingness to make concessions which
C were properly to be made. He exhibited a direct recall and a relationship C
to the events which had a quality of not being filtered by anything. In
D D
other words what I am saying is he impressed me as a witness of truth.
E E
11. There was one good point made against him because his
F F
evidence in the trial differed in one material respect from what he said in
G his witness statement, which was adopted as part of his evidence-in-chief G
and that was to do with this : that in the witness statement and when he
H H
started to give his evidence, what he was saying was that the photographs
I showing the 638 machine were given on the photocopy A3 sheet in the I
J
restaurant. When he was cross-examined and the three photographs in J
separate form on ordinary photographic paper exhibit 2 were shown to him
K K
he said those were given at the same time as well. He provided the
L
pictures in those two ways, whereas in the witness statement he said it was L
only done in one way. He explained that by saying he knew it was the
M M
provision of photographs, one and the same thing on one occasion. He
N put that mistake down to the passage of time and the fact that the N
difference was not particularly significant to him. I accepted the
O O
explanation that he advanced. I do not think that contradiction displayed
P any dishonesty on his part and it was not such a contradiction that made P
me doubt the weight to be given to his evidence.
Q Q
R 12. I regret to say that the opposite struck me about the evidence R
of the defendant. I found him to be an evasive and a thoroughly bad
S S
witness. I do not say that just in relation to his demeanour. Demeanour
T is not always a particularly good guide but his demeanour was poor. The T
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fact was that he consistently throughout his evidence, it seemed to me, was
B B
putting it all through a filter. Every answer that he was giving he was
C modifying in a way that demonstrated to me that it was not just recalling C
the events that had happened. He was recalling them and seeing which
D D
way he should answer because which way he answered could affect how
E his case went. I will give some examples of that as it is not easy to E
describe as a state of affairs. It is much easier to illustrate it by my
F F
looking at my note.
G G
13. Let me start (I am not going to give all the examples) he was
H H
asked this — about the inspection in November 1997 when he looked at
I the 643 machine, he was asked “you knew you were going to look at a 643 I
J
machine”. His first answer did not begin to grapple with the question, J
and in a way that became habitual in his evidence, it had to be repeated.
K K
He denied that. He said he did not know that he was going to look at a
L
643. Frankly I find that answer very difficult to believe. He was a man L
with 20 years experience in this trade. He consistently used the products
M M
of Man Roland, the manufacturer of the machine in question, in his factory
N in China in his printing business. He is experienced and he knew that the N
machines changed over the years, their logos changed and that the models
O O
would look different, especially by their logo, with the passage of time.
P So the 1987 machine would have a different logo which looked different P
from the 1989 machine. So the fact that he said he was going off to
Q Q
spend as much as of $2.32 million of his money to buy a machine without
R knowing what model it was, I thought, diminished his credibility. Not R
surprisingly, counsel for the plaintiff, following that up, said : “when you
S S
went on this inspection visit, it must have been right that you would make
T sure that the model you were looking at was the model in the contract?” T
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V V
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A A
In other words, the 643. He denied that. He said that was not the case.
B B
He then realised, in my judgment, that that answer was not a credible one,
C and he therefore said : Ah, I would have done that before I actually paid up. C
And then it was pointed out to him : how would you check that against the
D D
machine if you were not there to inspect, at which stage he said he always
E went back for a further inspection. “I go back two or three times”, he E
said. Frankly, I judge that he was making that up as he went along.
F F
There was just no good reason why he would not, on his first visit to look
G at the machine, make sure it was the sort of machine he was contracting G
about and wanted to buy.
H H
I 14. He was asked about the logo on the machine. And, I am I
J
afraid in the usual way, when asked about what he knew of the logo, he J
started to answer in terms about an engineer. The question was put again
K K
saying, “what did you actually look at, did you look the logo?” The
L
answer was : yes, I would surely look at the logo. Counsel asked him : L
why was that important to you? His answer was : to see if it was a
M M
second generation machine and computer controlled. Then counsel said :
N how would you tell that from the logo? He could not answer that N
question. He went round in circles for a while until we came to the
O O
situation when he said he did not know. I regret to say he was not a
P witness who inspired any trust. P
Q Q
15. He said, and it was his analogy, that buying this machine was
R like buying a used car. It was with that in mind therefore that I asked if in R
that case, just like buying a car, two of the important things he would want
S S
to know is : what model is it? what year is it? One would have thought
T it would be easy to extract from the witness a clear answer therefore, that T
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at the time of inspection, he knew the year and model of the machine.
B B
Frankly, it was not. Counsel took over. In the end he got an answer that
C suggested yes, that it was the case he did know the make and year of the C
machine inspected.
D D
E 16. If the defendant is right in his contentions what happened E
was this : that he inspected in November 1997 a 643 machine and then
F F
only some few months later, at the end of February, he was shown
G photographs of that identical 643 machine. The defendant was at pains G
throughout his evidence to stress how important photographs were and
H H
what reliance he placed upon them. It was not the case of the
I photographs receiving any causal glance or examination. It seems to me I
J
that the reality of the situation would be this, that when he received the 643 J
photographs, if he is right, in February, he would say this was the machine
K K
I have just inspected, isn’t it. The 643. Of course, he says he never
L
realised that it was the same machine. Again, I am afraid I find that hard L
to believe. If he did acknowledge that it was the same machine, then he
M M
would immediately be on notice and he could not run the case the way he
N is running it now. If he did realise that the photographs given to him in N
February was a 643, he must have said : Well, hang on, I have just signed a
O O
contract for a 638, this cannot be right, what is going on? That is why in
P my judgment the defendant would not acknowledge, what I infer to be the P
case, that he must have realised that the photographs, those four small
Q Q
photographs, were a 643 and not, and never could be, a 638 machine.
R R
17. It was established by counsel in cross-examination that the
S S
defendant Mr Wong did appreciate that what he looked at in
T November 1997 was a 643, a 1989 model. He conceded that he knew in T
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February that he was buying a 638 and he knew that 638 was a 1987 model
B B
because that was written in the contract and he could read the numbers
C about it. He was then asked “you knew therefore that you were buying C
something different in February from what you inspected in November”.
D D
He first answer was difficult to follow. He then avoided an answer and at
E the third time of asking, when put again, gave the answer, which I think E
surprised everyone in court, “I surely did not know”. He must have
F F
known. That answer just cannot be right. I am afraid this was a witness
G whom I was not prepared to trust. G
H H
18. Let me come to what is probably one of the most powerful
I points to be made against him. It is this : that the plaintiff says in I
J
June, following that fax of 5 June, the issue was about the time of delivery J
with a subsidiary issue of was it was coming from Sweden That is the
K K
plaintiff’s case, and he could look to the supplementary contract and say
L
that is what is recorded there in writing. The contemporary document L
therefore supports the plaintiff in his version of events. The defendant’s
M M
case is that : we had an agreement that if what arrived was like the
N photographs in exhibit 2, which shows the 638, if that was the case, I got N
my deposit back and I did not have to pay for the goods. That does not
O O
appear at all in the contemporary documentation. It is not in the
P supplementary contract. There is no good reason why not, especially P
when the defendant went to the length in putting in that it had got to come
Q Q
from Sweden. The importance of his requirement that it should actually
R come from Sweden was never adequately explained. It did not R
particularly matter because, on any view, it was a peripheral matter
S S
nowhere near as important as the fact that he be able to reject the goods if
T they looked like the second set of photographs he said he received in April. T
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A A
Whether right or wrong in my assessment of the defendant as witness, that
B B
point about the contemporary documentation can stand alone and is very
C powerful support for the plaintiff and it does great damage to the C
defendant.
D D
E 19. So, given my view of Mr Lam and my view of Mr Wong, one E
can see which way the finding is likely to go. However, before making it
F F
I have to deal with the evidence of two witnesses that Mr Wong called.
G He called a friend who had been present in the restaurant in Kwun Tong in G
February 1998 and he called his secretary, a lady called Idy Yick. I regret
H H
to have to say it about Mr Wong, but such was his performance in the
I manner I have described, I assess him as someone who would not scruple I
J
to ask a friend or a secretary to help him if he thought it suited him. J
I judge him to be a man who would call upon the loyalties that such
K K
friendship and such relationship with a secretary would give him.
L L
20. Mr Chan Yiu Ming was the friend. The burden of his
M M
evidence was that there were, as he said in his witness statement, a “few”
N photographs handed over. They were 3Rs. When asked what he meant N
by a few, he said around four. When cross-examined about that, it
O O
became really definitely four, and it could not be — it was impossible — it
P could not have been three and he would not have that it could be five. P
About the actual size being 3R and not 4R or anything else, he was
Q Q
adamant. The fact is he was not asked about this until three years after
R the event. I cannot see that detail such as he now purports to recall in R
court could have been objects worthy of such attention at the time that he
S S
would now retain any accurate impression of either the number or the size.
T In fact, that answer “it is impossible, it could not be three” demonstrated to T
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A A
me that he was someone not sitting there, like the plaintiff was, doing his
B B
best actually to recall what happened — a difficult task given the time.
C He was an advocate for a cause and that was why he jumped to make the C
assertion that it could not have been three.
D D
E E
21. Accordingly, I was not prepared to act on the evidence
F
Mr Chan Yu Ming. The same applied to the evidence of the secretary F
Idy Yick. Her witness statement only dealt with her addition of the
G G
condition to the supplemental contract concerning the provenance of the
H machine being Sweden. It did not deal with what is the core of the case H
to which she now speaks, namely the date when the larger photographs,
I I
exhibit 2, came into the possession of the defendant as she now says. It
J was a crucial assertion in the case that they were given to her in J
April 1998.
K K
L 22. She was asked about the handwriting on the back of exhibit 1 L
where there was a date of 27 February. She did not get off to a good start
M M
for the defendant, because the defendant had said that this was the
N secretary’s writing, whereas she said no that was my boss’ writing, N
Mr Wong’s. I am afraid that this did not inspire any confidence, but the
O O
important or most important matter concerns the date on the larger
P photographs and when she received them. She said that it was a practice P
that she had to date documents that were given to her. Therefore on this,
Q Q
following her usual practice, she put the date. What is actually written
R there, isn’t it, a full date, 20 April or anything like that, it just says R
“April 1998”. Many offices have systems, using a receipt chop, for
S S
dating the receipt of items. If this was her usual practice, then it is
T surprising that she did not have a chop. But what is more surprising, is T
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A A
that she did not actually write the full date. An office system that dates
B B
documents received merely by designating a month and nothing more is
C frankly one I have difficulty remembering ever coming across in other C
circumstances, and frankly it is an unusual one. If you are going to date
D D
something, one expects the full date and it is an indication that makes me
E raise an eyebrow. Not only that, this witness was asked about the E
quotation document B5. It is common ground that this quotation had
F F
been given to the defendant and had been produced for the purposes of
G these proceedings from the defendant’s custody, and the defendant G
admitted receiving it. It was the case that this witness said that she did all
H H
the filing of this kind in 1998. When asked if she noted on this the date it
I was handed to her, she had a good explanation, she said no she did not do I
J
it for documents that had the date on them. But that was not her first J
answer. I thought her first answer much more revealing: “this document
K K
did not go through me”. A moment’s thought about that reveals that she
L
could not possibly begin to remember an unexceptional written quotation L
that would have come to her five years ago in the course of her work.
M M
The truthful answer would have been that she had no recollection of it and
N everyone would have thought that an honest and realistic answer. Her N
assertion then, and this is where she moved first when touched about it,
O O
was to say that document did not go through me. That is not something
P that she could say with any certainty at all. Again it is only a small thing P
but it is small indications like this that turn on credibility that seem to me
Q Q
to matter, and that reveal, I have to say, that she takes a position much like
R Mr Chan Yu Ming of being someone who was thinking about the effect of R
their evidence and wanting to achieve a result rather than honestly
S S
recalling facts in the way that the plaintiff did. Accordingly I was not
T T
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A A
prepared to place any reliance on her evidence, or act upon it, as to the date
B B
being April when those photographs exhibit 2 were first received.
C C
23. Having made those findings about the witnesses and their
D D
credibility, I come to the crucial finding in the case which is this : that the
E photographs, exhibit 2, showing the 368 machine were the photographs E
that were shown in the restaurant in Kwun Tong in February 1998. They
F F
are the photographs which identified the machine which was the subject
G matter of the contract in question. It is common ground between the G
parties that if I make that finding of fact then the plaintiff proves its case,
H H
because the damages, which are pleaded at page A36 of the first bundle
I where the Amended Statement of Claim is set out, was spoken to by I
J
Mr Lam. He went through all those items and demonstrated how those J
amounts arose and Mr Cheng did not challenge at all and very helpfully
K K
and fairly tells me that he has no challenge to those matters.
L L
24. Accordingly, I have no doubt that those matters did result
M M
directly and naturally in the ordinary course of events from the buyer’s
N breach of contract and I shall award the sum of $664,918.92 to the plaintiff N
and I shall dismiss the defendant’s counterclaim. I will hear counsel
O O
about the application for interest and costs.
P P
[Discussions on costs]
Q Q
R 25. Having heard counsel on costs and interests there will be R
judgment for the plaintiff in the sum of $664,918.92; and interest on
S S
$400,000 of that at the rate of 11% and on the balance there will be interest
T at the judgment rate from the date of issue of the writ to the date of T
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A A
payment, and the plaintiff’s costs to be paid by the defendant on both the
B B
claim and the counterclaim.
C C
D D
E E
(Peter Line)
Deputy High Court Judge
F F
G Mr Alex Lok, instructed by Messrs Edward C.T. Wong & Co., G
for the Plaintiff
H H
Mr Andy Cheng, instructed by Messrs Patrick Wong &Co.,
for the Defendant
I I
J J
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
V V
TIMES PRINTING MACHINERY LTD. v. WONG CHI PING t/a SANG YAU LUEN PRINTING CO.
由此
A A
HCA14364/1998
B B
IN THE HIGH COURT OF THE
C HONG KONG SPECIAL ADMINISTRATIVE REGION C
COURT OF FIRST INSTANCE
D D
ACTION NO.14364 OF 1998
E --------------------- E
BETWEEN
F F
TIMES PRINTING MACHINERY LIMITED Plaintiff
G G
and
H H
WONG CHI PING trading as Defendant
SANG YAU LUEN PRINTING COMPANY
I I
-------------------
J J
Before : Deputy High Court Judge Line in Court
K Dates of Hearing : 19-20 December 2002 K
Date of Judgment : 20 December 2002
L L
-----------------------
M M
JUDGMENT
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N N
1. This is an action for damages for breach of contract. The
O O
contract in question was for the sale of goods, and the goods in question
P were a printing machine, a sophisticated piece of printing machinery, the P
contract price of which was some $2.32 million. The nature of the claim
Q Q
is a wrongful refusal by the buyer to accept delivery.
R R
2. Let me commence by setting out the history. It starts back in
S S
August 1997. The plaintiff’s company was in the business of supplying
T machinery of the kind in question, and at that time, supplied the defendant T
U U
V V
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A A
with a printing press. It was evidenced by a contract which bears the
B B
label T-065. That sale went through on the plaintiff’s standard terms in
C the sum of $1.46 million. Both parties agreed that this transaction was C
unexceptionable and occurred in the manner I just described. The time
D D
then moved on to November 1997. The parties got together again and
E signed a contract bearing the label T-076 dated 25 November of that year E
for the sale of a further machine for the sum of $2.4 million. The contract
F F
is set out in the bundle at page B3. Printing presses of this type, made by
G a manufacturer called Roland, have a model number which varies as the G
machines develops over the years. This was going to be a contract for the
H H
sale of a model 643. The year of manufacture was 1989. It is common
I ground between the parties that it was a term of this contract that the I
J
defendant have the opportunity to examine the goods and if they were not J
what he wanted, then the contract could be cancelled. That is just what
K K
happened. The significance of this is that the defendant went to look at
L
that machine and inspected it in November 1997. L
M M
3. The case for the plaintiff was that at this time
N four photographs were delivered to the defendant showing that machine. N
These four photographs are 3R in size and are exhibit 1 in the case. The
O O
defendant’s case is that those photographs were not given to him at this
P time in November 1997, and no photographs were then given to him at all. P
Q Q
4. We then move on to February 1998. The parties entered into
R a written contract bearing the label T-088 for the sale of a printing press in R
the sum of $2.32 million. The model number was 638 and the year of
S S
manufacture was 1987. The written contract is set out at page B6. On
T the back of it there were standard terms and conditions as seen at page B7. T
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The written contract sets out the number and the date I have just given.
B B
The case for the plaintiff was that on this occasion, further photographs
C were given showing this 638 machine. He says that they were given by C
two means. Firstly by the provision of three photographs which are
D D
exhibit 2 in the case, the larger photographs, I think they are 5R in size.
E And also by the provision of one sheet of A3 paper which had a colour E
photocopy of those three photographs upon it, and he said both of those
F F
were given to the defendant on 27 February in a café or restaurant in Kwun
G Tong where they were negotiating this deal before they went to the office G
and actually executed the written contract. The case for the defendant is
H H
that on this occasion, he was given exhibit 1, the four small 3R
I photographs, which it is common ground do not depict a 638 machine but I
J
depict a 643 machine. J
K K
5. In March, the plaintiff company entered an agreement to
L
purchase the 638 machine, a specific one, that was working and in use in L
Sweden. Time went by and the next significant event that occurred was a
M M
fax dated 5 June from the defendant to the plaintiff. I should add here
N that the delivery date on the written contract on page B6 of the bundle, put N
shipment or delivery at around July 1998. At the time that this contract
O O
was executed no shipping date was available therefore it was no more
P specific than that. Turning to that fax of 5 June, at page B10 of the P
bundle, it said this :
Q Q
“Your Company had verbally promised the Printing Press under
R the above contract [referring to T-088 at the top] will arrive in R
Hong Kong before 20th June. However, since the signing of the
contract, we heard nothing from you. We hereby notify your
S Company if the above Printing Press cannot arrive before S
15th July 1998, the above contract will be cancelled and please
T return the deposit. Hope your Company will abide by the T
promise.”
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6. What the plaintiff said happened after that is there was
B B
negotiation between them. The plaintiff company was now aware of the
C shipping details and the date of arrival, and that accordingly on 18 June the C
parties entered a supplemental contract, and this is set out at page B12 of
D D
the bundle. And what this said was that :
E E
“In respect of Contract T-088 for the purchases of Roland Four
Colour Printing Press :
F F
Estimate that the Printing Press will arrive in Hong Kong on or
G
before 25th day of July, and will arrange for inspection of G
machine immediately.
H If after checking the machine number and machine accessories H
with the contents of the contract which confirms everything is
correct. Buyer shall pay all balance according to contract
I within 7 days and take delivery, otherwise the deposit will not be I
refunded.
J J
If the Printing Press shall arrive in Hong Kong after 25th day of
July, Seller shall compensate the deposit paid under the
K contract.” K
L L
7. That was typed. Then at the meeting between the plaintiff’s
M representative, Mr Lam and Mr Wong, the defendant, in the presence of M
Mr Wong’s secretary, the secretary added these words with everyone’s
N N
consent : “Seller’s machine shall be shipped from Sweden to Hong Kong.
O If it is discovered that the machine is not shipped from Sweden to Hong O
Kong, Seller must compensate Buyer for the deposit paid under the
P P
contract.”
Q Q
R
8. Now the defendant’s case is that the second set of R
photographs, exhibit 2, showing the machine model 638 was provided to
S S
him or, to be specific, to his secretary by Mr Lam, of the plaintiff, in
T April 1998. He says that when he saw that photograph, he realised the T
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machine was different from the photographs that were already in his
B B
possession. He says that he therefore raised this with Mr Lam and
C Mr Lam agreed that was the case, and that they therefore came to an C
agreement that if the machine arrived from Sweden was as in the larger
D D
photograph, exhibit 2, the contract would be cancelled and the defendant
E would not have to pay for the goods. That is what the defendant contends E
for and he says that agreement was specifically made with Mr Lam before
F F
the supplemental contract of 18 June was executed. Subsequently, the
G machine did arrive in Hong Kong. It was inspected on 6 August, all G
parties being present, the defendant having an expert and not surprisingly,
H H
because it was a 638 machine that was being shipped, it looked like the
I machine shown in photograph exhibit 2, the larger photographs, it did not I
J
look like the machine in the smaller photograph exhibit 1, accordingly the J
defendant says that he was entitled not to accept it and he did not accept it.
K K
The plaintiff company accepted that repudiation and lines were then drawn
L
up for this dispute. That is the history. L
M M
9. The issue therefore that determines this case is what
N photographs were shown by the plaintiff’s representative Mr Lam to the N
defendant Mr Wong on 27 February 1998 in Kwun Tong. That is the
O O
issue.
P P
10. The resolution for that issue turns upon credibility. The
Q Q
plaintiff’s representative Mr Lam was the only witness for the plaintiff.
R I found him to be a good and credible witness. He struck me as a man R
who was doing his level best to remember back to events in 1997 and 1998.
S S
He impressed me very strongly as someone not arguing a cause but
T someone who strove to answer the questions honestly and accurately. He T
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did not always find it easy — no one would in the circumstances. What
B B
he displayed in his evidence was a willingness to make concessions which
C were properly to be made. He exhibited a direct recall and a relationship C
to the events which had a quality of not being filtered by anything. In
D D
other words what I am saying is he impressed me as a witness of truth.
E E
11. There was one good point made against him because his
F F
evidence in the trial differed in one material respect from what he said in
G his witness statement, which was adopted as part of his evidence-in-chief G
and that was to do with this : that in the witness statement and when he
H H
started to give his evidence, what he was saying was that the photographs
I showing the 638 machine were given on the photocopy A3 sheet in the I
J
restaurant. When he was cross-examined and the three photographs in J
separate form on ordinary photographic paper exhibit 2 were shown to him
K K
he said those were given at the same time as well. He provided the
L
pictures in those two ways, whereas in the witness statement he said it was L
only done in one way. He explained that by saying he knew it was the
M M
provision of photographs, one and the same thing on one occasion. He
N put that mistake down to the passage of time and the fact that the N
difference was not particularly significant to him. I accepted the
O O
explanation that he advanced. I do not think that contradiction displayed
P any dishonesty on his part and it was not such a contradiction that made P
me doubt the weight to be given to his evidence.
Q Q
R 12. I regret to say that the opposite struck me about the evidence R
of the defendant. I found him to be an evasive and a thoroughly bad
S S
witness. I do not say that just in relation to his demeanour. Demeanour
T is not always a particularly good guide but his demeanour was poor. The T
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fact was that he consistently throughout his evidence, it seemed to me, was
B B
putting it all through a filter. Every answer that he was giving he was
C modifying in a way that demonstrated to me that it was not just recalling C
the events that had happened. He was recalling them and seeing which
D D
way he should answer because which way he answered could affect how
E his case went. I will give some examples of that as it is not easy to E
describe as a state of affairs. It is much easier to illustrate it by my
F F
looking at my note.
G G
13. Let me start (I am not going to give all the examples) he was
H H
asked this — about the inspection in November 1997 when he looked at
I the 643 machine, he was asked “you knew you were going to look at a 643 I
J
machine”. His first answer did not begin to grapple with the question, J
and in a way that became habitual in his evidence, it had to be repeated.
K K
He denied that. He said he did not know that he was going to look at a
L
643. Frankly I find that answer very difficult to believe. He was a man L
with 20 years experience in this trade. He consistently used the products
M M
of Man Roland, the manufacturer of the machine in question, in his factory
N in China in his printing business. He is experienced and he knew that the N
machines changed over the years, their logos changed and that the models
O O
would look different, especially by their logo, with the passage of time.
P So the 1987 machine would have a different logo which looked different P
from the 1989 machine. So the fact that he said he was going off to
Q Q
spend as much as of $2.32 million of his money to buy a machine without
R knowing what model it was, I thought, diminished his credibility. Not R
surprisingly, counsel for the plaintiff, following that up, said : “when you
S S
went on this inspection visit, it must have been right that you would make
T sure that the model you were looking at was the model in the contract?” T
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In other words, the 643. He denied that. He said that was not the case.
B B
He then realised, in my judgment, that that answer was not a credible one,
C and he therefore said : Ah, I would have done that before I actually paid up. C
And then it was pointed out to him : how would you check that against the
D D
machine if you were not there to inspect, at which stage he said he always
E went back for a further inspection. “I go back two or three times”, he E
said. Frankly, I judge that he was making that up as he went along.
F F
There was just no good reason why he would not, on his first visit to look
G at the machine, make sure it was the sort of machine he was contracting G
about and wanted to buy.
H H
I 14. He was asked about the logo on the machine. And, I am I
J
afraid in the usual way, when asked about what he knew of the logo, he J
started to answer in terms about an engineer. The question was put again
K K
saying, “what did you actually look at, did you look the logo?” The
L
answer was : yes, I would surely look at the logo. Counsel asked him : L
why was that important to you? His answer was : to see if it was a
M M
second generation machine and computer controlled. Then counsel said :
N how would you tell that from the logo? He could not answer that N
question. He went round in circles for a while until we came to the
O O
situation when he said he did not know. I regret to say he was not a
P witness who inspired any trust. P
Q Q
15. He said, and it was his analogy, that buying this machine was
R like buying a used car. It was with that in mind therefore that I asked if in R
that case, just like buying a car, two of the important things he would want
S S
to know is : what model is it? what year is it? One would have thought
T it would be easy to extract from the witness a clear answer therefore, that T
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at the time of inspection, he knew the year and model of the machine.
B B
Frankly, it was not. Counsel took over. In the end he got an answer that
C suggested yes, that it was the case he did know the make and year of the C
machine inspected.
D D
E 16. If the defendant is right in his contentions what happened E
was this : that he inspected in November 1997 a 643 machine and then
F F
only some few months later, at the end of February, he was shown
G photographs of that identical 643 machine. The defendant was at pains G
throughout his evidence to stress how important photographs were and
H H
what reliance he placed upon them. It was not the case of the
I photographs receiving any causal glance or examination. It seems to me I
J
that the reality of the situation would be this, that when he received the 643 J
photographs, if he is right, in February, he would say this was the machine
K K
I have just inspected, isn’t it. The 643. Of course, he says he never
L
realised that it was the same machine. Again, I am afraid I find that hard L
to believe. If he did acknowledge that it was the same machine, then he
M M
would immediately be on notice and he could not run the case the way he
N is running it now. If he did realise that the photographs given to him in N
February was a 643, he must have said : Well, hang on, I have just signed a
O O
contract for a 638, this cannot be right, what is going on? That is why in
P my judgment the defendant would not acknowledge, what I infer to be the P
case, that he must have realised that the photographs, those four small
Q Q
photographs, were a 643 and not, and never could be, a 638 machine.
R R
17. It was established by counsel in cross-examination that the
S S
defendant Mr Wong did appreciate that what he looked at in
T November 1997 was a 643, a 1989 model. He conceded that he knew in T
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February that he was buying a 638 and he knew that 638 was a 1987 model
B B
because that was written in the contract and he could read the numbers
C about it. He was then asked “you knew therefore that you were buying C
something different in February from what you inspected in November”.
D D
He first answer was difficult to follow. He then avoided an answer and at
E the third time of asking, when put again, gave the answer, which I think E
surprised everyone in court, “I surely did not know”. He must have
F F
known. That answer just cannot be right. I am afraid this was a witness
G whom I was not prepared to trust. G
H H
18. Let me come to what is probably one of the most powerful
I points to be made against him. It is this : that the plaintiff says in I
J
June, following that fax of 5 June, the issue was about the time of delivery J
with a subsidiary issue of was it was coming from Sweden That is the
K K
plaintiff’s case, and he could look to the supplementary contract and say
L
that is what is recorded there in writing. The contemporary document L
therefore supports the plaintiff in his version of events. The defendant’s
M M
case is that : we had an agreement that if what arrived was like the
N photographs in exhibit 2, which shows the 638, if that was the case, I got N
my deposit back and I did not have to pay for the goods. That does not
O O
appear at all in the contemporary documentation. It is not in the
P supplementary contract. There is no good reason why not, especially P
when the defendant went to the length in putting in that it had got to come
Q Q
from Sweden. The importance of his requirement that it should actually
R come from Sweden was never adequately explained. It did not R
particularly matter because, on any view, it was a peripheral matter
S S
nowhere near as important as the fact that he be able to reject the goods if
T they looked like the second set of photographs he said he received in April. T
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Whether right or wrong in my assessment of the defendant as witness, that
B B
point about the contemporary documentation can stand alone and is very
C powerful support for the plaintiff and it does great damage to the C
defendant.
D D
E 19. So, given my view of Mr Lam and my view of Mr Wong, one E
can see which way the finding is likely to go. However, before making it
F F
I have to deal with the evidence of two witnesses that Mr Wong called.
G He called a friend who had been present in the restaurant in Kwun Tong in G
February 1998 and he called his secretary, a lady called Idy Yick. I regret
H H
to have to say it about Mr Wong, but such was his performance in the
I manner I have described, I assess him as someone who would not scruple I
J
to ask a friend or a secretary to help him if he thought it suited him. J
I judge him to be a man who would call upon the loyalties that such
K K
friendship and such relationship with a secretary would give him.
L L
20. Mr Chan Yiu Ming was the friend. The burden of his
M M
evidence was that there were, as he said in his witness statement, a “few”
N photographs handed over. They were 3Rs. When asked what he meant N
by a few, he said around four. When cross-examined about that, it
O O
became really definitely four, and it could not be — it was impossible — it
P could not have been three and he would not have that it could be five. P
About the actual size being 3R and not 4R or anything else, he was
Q Q
adamant. The fact is he was not asked about this until three years after
R the event. I cannot see that detail such as he now purports to recall in R
court could have been objects worthy of such attention at the time that he
S S
would now retain any accurate impression of either the number or the size.
T In fact, that answer “it is impossible, it could not be three” demonstrated to T
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me that he was someone not sitting there, like the plaintiff was, doing his
B B
best actually to recall what happened — a difficult task given the time.
C He was an advocate for a cause and that was why he jumped to make the C
assertion that it could not have been three.
D D
E E
21. Accordingly, I was not prepared to act on the evidence
F
Mr Chan Yu Ming. The same applied to the evidence of the secretary F
Idy Yick. Her witness statement only dealt with her addition of the
G G
condition to the supplemental contract concerning the provenance of the
H machine being Sweden. It did not deal with what is the core of the case H
to which she now speaks, namely the date when the larger photographs,
I I
exhibit 2, came into the possession of the defendant as she now says. It
J was a crucial assertion in the case that they were given to her in J
April 1998.
K K
L 22. She was asked about the handwriting on the back of exhibit 1 L
where there was a date of 27 February. She did not get off to a good start
M M
for the defendant, because the defendant had said that this was the
N secretary’s writing, whereas she said no that was my boss’ writing, N
Mr Wong’s. I am afraid that this did not inspire any confidence, but the
O O
important or most important matter concerns the date on the larger
P photographs and when she received them. She said that it was a practice P
that she had to date documents that were given to her. Therefore on this,
Q Q
following her usual practice, she put the date. What is actually written
R there, isn’t it, a full date, 20 April or anything like that, it just says R
“April 1998”. Many offices have systems, using a receipt chop, for
S S
dating the receipt of items. If this was her usual practice, then it is
T surprising that she did not have a chop. But what is more surprising, is T
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that she did not actually write the full date. An office system that dates
B B
documents received merely by designating a month and nothing more is
C frankly one I have difficulty remembering ever coming across in other C
circumstances, and frankly it is an unusual one. If you are going to date
D D
something, one expects the full date and it is an indication that makes me
E raise an eyebrow. Not only that, this witness was asked about the E
quotation document B5. It is common ground that this quotation had
F F
been given to the defendant and had been produced for the purposes of
G these proceedings from the defendant’s custody, and the defendant G
admitted receiving it. It was the case that this witness said that she did all
H H
the filing of this kind in 1998. When asked if she noted on this the date it
I was handed to her, she had a good explanation, she said no she did not do I
J
it for documents that had the date on them. But that was not her first J
answer. I thought her first answer much more revealing: “this document
K K
did not go through me”. A moment’s thought about that reveals that she
L
could not possibly begin to remember an unexceptional written quotation L
that would have come to her five years ago in the course of her work.
M M
The truthful answer would have been that she had no recollection of it and
N everyone would have thought that an honest and realistic answer. Her N
assertion then, and this is where she moved first when touched about it,
O O
was to say that document did not go through me. That is not something
P that she could say with any certainty at all. Again it is only a small thing P
but it is small indications like this that turn on credibility that seem to me
Q Q
to matter, and that reveal, I have to say, that she takes a position much like
R Mr Chan Yu Ming of being someone who was thinking about the effect of R
their evidence and wanting to achieve a result rather than honestly
S S
recalling facts in the way that the plaintiff did. Accordingly I was not
T T
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prepared to place any reliance on her evidence, or act upon it, as to the date
B B
being April when those photographs exhibit 2 were first received.
C C
23. Having made those findings about the witnesses and their
D D
credibility, I come to the crucial finding in the case which is this : that the
E photographs, exhibit 2, showing the 368 machine were the photographs E
that were shown in the restaurant in Kwun Tong in February 1998. They
F F
are the photographs which identified the machine which was the subject
G matter of the contract in question. It is common ground between the G
parties that if I make that finding of fact then the plaintiff proves its case,
H H
because the damages, which are pleaded at page A36 of the first bundle
I where the Amended Statement of Claim is set out, was spoken to by I
J
Mr Lam. He went through all those items and demonstrated how those J
amounts arose and Mr Cheng did not challenge at all and very helpfully
K K
and fairly tells me that he has no challenge to those matters.
L L
24. Accordingly, I have no doubt that those matters did result
M M
directly and naturally in the ordinary course of events from the buyer’s
N breach of contract and I shall award the sum of $664,918.92 to the plaintiff N
and I shall dismiss the defendant’s counterclaim. I will hear counsel
O O
about the application for interest and costs.
P P
[Discussions on costs]
Q Q
R 25. Having heard counsel on costs and interests there will be R
judgment for the plaintiff in the sum of $664,918.92; and interest on
S S
$400,000 of that at the rate of 11% and on the balance there will be interest
T at the judgment rate from the date of issue of the writ to the date of T
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payment, and the plaintiff’s costs to be paid by the defendant on both the
B B
claim and the counterclaim.
C C
D D
E E
(Peter Line)
Deputy High Court Judge
F F
G Mr Alex Lok, instructed by Messrs Edward C.T. Wong & Co., G
for the Plaintiff
H H
Mr Andy Cheng, instructed by Messrs Patrick Wong &Co.,
for the Defendant
I I
J J
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
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