Quek v Chan [2004] VSC 394

Supreme Court of Victoria|2004-10-13|Before: ASHLEY J

Contract - whether loans made by one gambler to another for purposes of gambling - or whether one gambler engaged a second gambler to gamble with the former's money and using a system devised by the former - whether loan contracts illegal - Casino Control Act 1982 (Qld), ss. 4, 66, 85A - 85D.

Quek Keng Siong ("Mr Quek" or "the plaintiff") is a 74 year old Chinese born Singaporean citizen. He is a businessman, apparently in a large way. His other interest, for many years, has been gambling. His game of choice is baccarat. He has gambled and continues to gamble at casinos in Australia, the United States and elsewhere. It was not suggested that he has ever failed to settle with a casino, even though it is apparent that he bets in large amounts, and that on occasion[1] he has had to settle an overall loss in a substantial amount.

Sio Wa Chan ("Mr Chan" or "the defendant"), known in Australia as Freeman Chan, is a Chinese born Australian citizen. He migrated to Australia in about 1992 from Macau, where he had operated a textile factory. He has not worked whilst in Australia. Like the plaintiff, he is a keen gambler, baccarat being his game of choice. It was through their common interest in gambling that the two men met and became acquainted. Their acquaintance dates from at least 2000, and perhaps a little earlier.

By early 2002 the two men were on good terms. They met socially when the plaintiff was on visits to Melbourne, and they met when gambling at Crown Casino.

The two men went to Jupiter's casino ("Jupiter's") with others, in January 2002.

The two men went to Star City Casino, in Sydney, in the period late February to early March 2002.

The two men, with their wives, went to Jupiter's in the period 22-29 April 2002.

This proceeding arises out of the last-mentioned visit. The plaintiff alleges that he lent the defendant $400,000 for gambling. He says that the defendant ended up losing $334,000, and that he gave the defendant, in response to the latter's request, a postdated cheque for the balance to $400,000. He says that the defendant promised to repay $100,000 immediately on return to Melbourne, and the remainder when he settled the sale of a property. But the defendant, he alleges, did not repay any of the money. So he stopped payment on the $66,000 cheque. He claims from the defendant $334,000.

The defendant has a very different account. He alleges that the plaintiff recruited him to play a particular system using the plaintiff's money; and that he did so on 23, 24, 25, 26 and part 27 April 2002. He says that a friend arrived on the afternoon of 27 April, and that for the balance of that day, and on 28 April he, his friend, and his wife gambled, using, in substance, $100,000 which he had handed to the plaintiff in cash in a paper bag on 21 April, such cash having been given to the plaintiff as gambling money for the defendant's wife. He says that the cheque for $66,000 represented so much of the $100,000 as remained after gambling. In short, he says that he borrowed nothing from the plaintiff, and that the plaintiff owes him $66,000. He counterclaims in that amount.

The defendant pursues, in the alternative, a defence to the plaintiff's claim which takes as its starting point acceptance of the plaintiff's allegation that he loaned $400,000 to the defendant. According to the defence, the plaintiff was an agent of Jupiter's, and by s 66 of the Casino Control Act 1982 (Qld) ("the Act") it was wrongful for him to make a loan to the defendant. The loan, the defendant alleges, was illegal and/or void, and the plaintiff is not entitled to maintain the proceeding.

In order to understand what transpired in April 2002 it is necessary to understand that at that time, and prior thereto, the plaintiff both at Jupiter's and at other casinos was what is commonly known as a registered junket operator. The gist of such an arrangement is that a casino operator enters into an agreement with a promoter by which the latter arranges for a group of persons to visit the casino to participate in gambling, (a so-called "junket") and the casino operator pays the promoter a commission based on the amount gambled or revenue derived.[2]

Commonly, it seems, casino operators calculate commission by reference to turnover, which is worked out in this way: the casino operator provides the promoter with so-called "junket chips". The promoter gives the chips to each participant in the junket, and they are used for gambling. When there is a winning hand the gambler is paid with so-called "winning chips". The gambler exchanges such chips for more junket chips. At the end of gambling any unexpended junket chips are returned. Chip exchanges and the return of unexpended junket chips are managed by the promoter, who, or whose authorised representative, alone deals with the casino operator. Turnover is calculated, as between casino operator and promoter, by setting on the one side the value of junket chip purchase vouchers (which are provided to the promoter at the outset) and chip exchanges, and on the other side the value of unused purchase vouchers and junket chips returned.[3]

It is next necessary to mention that in January 2002 and in April 2002 the plaintiff, according to his evidence, was accustomed to remit part of the commission which he received to junket participants. He did so on the basis of their individual turnover - calculated by the value of the person's chip exchanges less junket chips returned. So, at Jupiter's, according to his evidence, he received a total of 1.6% commission; and he paid out to the individual players, according to their turnover, 1.4%.

In order to keep track of the turnover of each junket participant, and to effect chip exchanges with the casino, the plaintiff made use of a so-called authorised representative. When the plaintiff, the defendant and others went to Jupiter's in January 2002 the plaintiff's authorised representative was man named Wang Ren Kan. When the plaintiff, the defendant and their wives went to Jupiter's in April 2002 the person who acted as authorised representative was Chen Di Hua ("Miss Chen"). She undertook chip exchanges with the Casino, and she maintained a so-called "rolling" record in respect of the defendant.[4]

Having described the dispute between the parties, and having set out some of the background necessary to understand what occurred in April 2002, I should make a number of points at the outset.

First, this is not a matter in which one party or the other could be mistaken as to the nature of the transaction. Both counsel agreed that this was so. One party could not have been telling the truth; and at least some witnesses called by that party at worst did not tell the truth, or at best were induced by the party into believing that certain events had or had not occurred. It follows that the credibility of the parties and of at least some other witnesses falls for careful consideration.

Second, the plaintiff, the defendant, and some other witnesses gave evidence through an interpreter, the spoken language being Mandarin or Cantonese. The use of an interpreter created an additional difficulty in making an assessment of a witness's credibility. Even so, the form of answers given by witnesses did not make such assessment by any means impossible.

Third, whilst findings which I make hereafter involve acceptance of the burden of evidence given by particular witnesses, it needs to be understood by the parties that such acceptance does not bespeak certainty. In a civil case, a person establishes his or her claim if the Court is satisfied that the necessary elements of the claim are established on a balance of probabilities. I mention this because it seemed to me, as the hearing progressed, that there was more to this proceeding than just the money involved.

Concerning the April 2002 trip and its aftermath, a number of things are clear.

First, the plaintiff, the defendant, their wives and Miss Chen travelled to Jupiter's from Melbourne in the late afternoon/evening of 22 April. There was no gambling that day.

Second, for many hours on 23 April the plaintiff and the defendant played baccarat at a table reserved by the plaintiff in the VIP section of Jupiter's. No one else played at the table, though the wives of the plaintiff and defendant sat at the table for at least a good part of the day.

Third, on 23 April either the plaintiff or Miss Chen gave the defendant a $200,000 chip before gambling commenced.

Fourth, not long after the defendant was given that chip he was asked to sign, and he did sign, a document printed partly in English and partly in Chinese, upon which there were handwritten insertions. The document[5], so far as it was handwritten, was written in English by the plaintiff's wife Cheng Woei Fen (conveniently, "Mrs Quek"), who impressed me as an articulate and probably well-educated businesswoman. She told me, and I accept her evidence in this connection, that she completed the voucher (it was so described throughout the evidence) on her husband's instructions, having obtained the voucher from Miss Chen. The voucher described the $200,000 transaction this way: "on loan".

Fifth, the defendant was then unable to read English.

Sixth, on 24 April Miss Chen gave the defendant a $100,000 chip early in the course of the day's gambling. Again Mrs Quek completed a voucher. Again it described the transaction as "on loan."[6] Again the defendant signed it.

Seventh, the plaintiff and the defendant gambled for a long time on 24 April at the table reserved by the plaintiff. No one else played at that table that day.

Eighth, there was some gambling by the defendant at the reserved table on 25 and 26 April. There was dispute whether the plaintiff also gambled on those days.

Ninth, the plaintiff and the defendant gambled for a time at the reserved table on 27 April. On that day, in the morning, the plaintiff or Miss Chen gave the defendant a $100,000 chip, Mrs Quek completed a voucher[7] describing the transaction as "on loan", and the defendant signed the voucher.

Tenth, on the afternoon of 27 April a friend of the defendant, Mr Ly Quok Thai ("Mr Ly"), arrived at Jupiter's. The defendant had earlier invited him to go on the trip, and Mr Ly went when he had time available.

Eleventh, the defendant, Mr Ly and the defendant's wife gambled together after Mr Ly's arrival. They did so on the afternoon and evening of 27 April, and on 28 April. Whether they did so with the chips which the defendant held at the time of Mr Ly's arrival, or whether the defendant then gave those chips back to the plaintiff and received from the plaintiff another $100,000 chip (or chips to that value) representing $100,000 in cash which he, the defendant, had earlier given the plaintiff, was in dispute.

Twelfth, there was no gambling on 29 April. On that day accounts were settled. Mrs Quek wrote out a cheque, payable to the defendant, in an amount of $66,000. It was drawn on the plaintiff's account with the Bank of Melbourne and was dated 3 May. That account was, according to the evidence, an account of convenience. It was not the plaintiff's principal account. At all times between 22 April and 16 July it was in credit, but never in an amount exceeding $34,360.31, and often enough only in an amount of a few thousand dollars. There is no reason to think, however, that the plaintiff could not have deposited funds sufficient to meet the cheque he had drawn in the defendant's favour; that is, nothing suggests that he did not have enough money to do so. The burden of the evidence strongly suggests the contrary.

Thirteenth, Miss Chen kept a rolling record in respect of the defendant for the period 23 - 28 April.[8] It recorded the defendant's chip exchanges and, it seems, the value of junket chips returned. Each chip exchange was noted on a separate line. The defendant and Miss Chen signed off on each exchange.

Fourteenth, the value of the chip exchanges, less junket chips returned, was used by Miss Chen to prepare two commission records.[9] They showed, on their face, commission totalling $18,536 calculated at 1.4% on turnover. Each of the two documents was signed by Miss Chen and the defendant. The defendant did not deny receipt of cash in that overall amount. It was, he said, given by Miss Chen to his wife. It was his evidence, disputed for the plaintiff, that part of the so-called commission, $7812, was commission on turnover referable to his gambling with Mr Ly; and that the remainder, $10724, was his "wage" for gambling with the plaintiff's money.[10]

Fifteenth, the plaintiff stopped the $66,000 cheque on about 3 July.[11]

Sixteenth, the defendant presented the cheque on about 24 July. A few days later he was advised that it had been dishonoured. Several weeks after that he regained physical possession of the cheque.

Seventeenth, either on 29 April or on an occasion when the plaintiff was in Melbourne in June 2002 - there was dispute about which - the plaintiff handed the three vouchers to the defendant. He did not keep copies.

Eighteenth, in late August 2002 the plaintiff sent registered mail to the defendant from Singapore.[12] The envelope set out the defendant's home address. Inside the envelope, on any view, were two photocopy vouchers.[13] They were vouchers of the same kind as the vouchers which the defendant had signed in April 2002. They were not copies of the April 2002 vouchers. Completed by Mrs Quek, they were dated 23 and 24 April and were for amounts of $100,000 and $300,000 respectively. The defendant's signature was copied off some document which Mrs Quek then possessed.

According to the plaintiff's case, those documents were prepared and sent to the defendant in order to suggest that the plaintiff had some evidence of the alleged loan transactions in circumstances where the defendant had, by a subterfuge, obtained the April 2002 vouchers. It was said for the plaintiff, in substance, that these fake vouchers did no more than replicate the April 2002 vouchers - that is, by showing loans to a total of $400,000 which loans the defendant had acknowledged by his signature.

I said a moment ago that the envelope contained at least the two photocopy vouchers. There was a dispute between the parties whether a letter which set out the plaintiff's version of events [14] was also included. The defendant and Mr Fai Win Leung gave evidence that only the vouchers were in the envelope. Mr Leung is the boyfriend of the defendant's daughter. He said that he went to the post office with the defendant to collect the registered mail. The plaintiff and his wife gave evidence that the letter was prepared; and Mrs Quek gave evidence that thereafter she took it upon herself to create the vouchers and to enclose them with the letter. I will say something more about this dispute later in these Reasons.

In the context of the matters which are indisputable, and considering also evidence pertaining to matters which were in dispute at trial, and the impression created by the various witnesses, where lie the probabilities? In my opinion they strongly favour the plaintiff's case. The following considerations are pertinent.

First, the description of the moneys represented by chips given to the defendant as being "on loan", according to the cases advanced by the parties, was unequivocal. For the plaintiff it was said that the description represented the fact. For the defendant it was submitted that possibly the vouchers were so completed "as a means of satisfying the casino that the relationship was consistent with a junket arrangement."[15] An alternative submission was that Mrs Quek may have misunderstood what her husband told her. It was not submitted that the vouchers were consistent with the defendant's account that he was asked by the plaintiff to gamble with the plaintiff's money using the plaintiff's system.

There was nothing to suggest that the vouchers were completed in that form for the motive first suggested by counsel for the defendant; or, for that matter, that the plaintiff should have thought it incompatible with a junket arrangement that more than one person gamble with the promoter's money. Again, it seems to me very improbable that Mrs Quek would have misunderstood - fortuitously for the purposes of this case - what her husband told her about the three transactions.

Second, if the vouchers were not completed as they were for either of the reasons suggested by the defendant, what could be explanation for them being so completed other than that it was the fact? The only alternative, really, is deliberate misrepresentation. I cannot think that the plaintiff was likely to have embarked upon such a course. The defendant was then a goodish friend. The plaintiff, moreover, was not shown to be short of funds - as might induce him to embark upon a process of misrepresentation against the risk that the defendant might lose all or some of the funds advanced.

Third, I see no indication of intention to mislead the defendant in the circumstance that Mrs Quek completed the vouchers in English. She gave a credible explanation: that is, that English is the written language of commerce in Singapore, the language in which she is accustomed to write.

Fourth, Miss Chen gave evidence of using such vouchers on other occasions to record loans made by the plaintiff.[16] She described a document in that form as "our loan voucher".[17] She said that she would hand such a voucher to the plaintiff if the person who borrowed money did not repay her.[18] That was in circumstances where she retained the voucher. I see no reason not to accept that evidence, which was not challenged in cross-examination, and which discloses that the plaintiff was not unaccustomed to lend money to other gamblers, and that vouchers in the particular form - really, business vouchers adapted for a particular use - were used to record transactions of that kind.

Fifth, a deal of evidence was given by the plaintiff, his wife, the defendant, his wife and Miss Chen as to what, if anything, was said when the defendant was asked to sign the three vouchers. The burden of the evidence adduced for the plaintiff was that on each occasion the defendant was told that the document recorded a loan. But according to the defendant, on the first occasion he was told by the plaintiff that

"It doesn't matter. These are the records of the junket. After we play, I will give it back to you."[19]

On the second and third occasions, on his account, nothing was said.

There is no doubt that the evidence of the plaintiff, Mrs Quek and Miss Chen was not always consistent, one to the other, and internally, as to what was said. Counsel for the defendant understandably emphasised the point. But unless the plaintiff or his wife or Miss Chen was starting out to deceive the defendant, there is no reason why any of them would have said to the defendant that the voucher was simply an internal record. Moreover, if in truth the voucher recorded a loan which the defendant had asked the plaintiff to make him, the defendant could not have misunderstood the probable import of what he was being asked to sign. Again, on all the evidence something was said on the plaintiff's side about the nature of the voucher on at least one occasion; and absent intention to mislead, the probabilities favour a conclusion that the defendant was told on that occasion that the voucher recorded a loan.

Sixth, the rolling record maintained by Miss Chen was entirely consistent with a record as would be kept for commission purposes in respect of a gambler using his own funds. The defendant gave uncertain evidence whether he expected to be paid commission, and if so on what basis, for gambling with the plaintiff's money. Eventually he described the commission paid on his recorded turnover when gambling, as he said, with the plaintiff's money, as a "wage". He offered no explanation - though perhaps it was not for him to do so in evidence - why a wage , as distinct from commission, should be calculated on turnover. He affected to know little about commission on turnover as at April 2002, and said that it was a very minor thing, that even if it was paid it would not be enough to compensate for the time he spent gambling for the plaintiff.[20] At one stage in his evidence, asked whether he was going to be paid, he said "maybe". He told me that he had never received any commission in the past.[21]

In my opinion the defendant's evidence about commission was unsatisfactory. I think that it was probably motivated by concern about the conclusion that might readily be reached by consideration of the rolling and commission paid records. The evidence of Wang Ren Kang, Warren Chan and Mr Ly satisfies me that in January 2002 the defendant organised a group of gamblers to play on a junket at Jupiter's, that the pooled turnover of the group was calculated by the plaintiff's representative, that the defendant was paid (1.4%) commission on that turnover, and that he then remitted parts thereof to the individuals making up the group according to their contributions to the initial pool of funds. I conclude that he was, by April 2002, well aware of the plaintiff's commission arrangement, of the records that would be kept, and of the way in which commission on turnover might accumulate to a healthy sum. On his account he gambled for the plaintiff, using the latter's money, and thus at no financial risk to himself, throughout 23 and 24 April, and during parts of 25, 26 and 27 April. For that work he earned a wage of $10724; whilst as well, on his evidence, the plaintiff paid for his airfare to and from the Gold Coast. It seems improbable to me that the plaintiff would have calculated a "wage" in such a way.

Seventh, the cheque for $66,000 was postdated by a few days. The plaintiff and the defendant were apparently on good terms throughout their April trip to Jupiter's. Even according to the closing submissions for the defendant, their relationship did not begin to sour until they met several weeks later at Foxwoods Casino in the United States. There is no reason, if the plaintiff postdated the cheque so that he could put his account into sufficient funds, why he could not or would not have done so very soon after 29 April. He was a man of means, and if he owed his friend money, why would he not ensure that his account was put in funds?

The plaintiff gave an explanation for postdating the cheque and for not crediting his bank account with sufficient funds to meet it. His explanation was this: the defendant had $66,000 in chips remaining when gambling ended. The defendant asked for cash in exchange for the chips. He said that he wanted to trick his wife into thinking that he had won this money. He did not want his wife to know that he had lost money. The plaintiff's response had been that the defendant had not repaid him the $400,000 so he could not have the $66,000. But he, the plaintiff had relented, on the footing that the defendant had undertaken to repay $100,000 straight away on his return to Melbourne, such money to be paid into the plaintiff's bank account by Miss Chen before the cheque was presented.[22] He denied that the defendant's wife would have known whether the defendant had won or lost. On his account, Mrs Chan did not sit at the gambling table all the time.

Mrs Quek gave evidence of being present when the relevant conversation took place. She said that she did not know quite what the defendant was going to tell his wife - whether his losses were the less, or that he had won the amount of the cheque.[23]

Miss Chen gave some relevant evidence. The plaintiff told her, she said, that the defendant would give her a cheque for $100,000 when he returned to Melbourne. She was to put it straight into his account. Then the defendant could cash the cheque.[24]

The defendant and his wife gave altogether different evidence. Central to that evidence were the propositions that the defendant went to Jupiter's to gamble for the plaintiff with the plaintiff's money, that the defendant gave the plaintiff $100,000 in cash the day before they set off from Melbourne as gambling money for his wife, that the $100,000 had been the source of funds for gambling by he, his wife and Mr Ly after Mr Ly's arrival on 27 April, and that the $66,000 cheque represented so much of the $100,000 which remained when gambling ended.

If the cheque represented so much of $100,000 cash given by the defendant to the plaintiff as remained when gambling ended, then the plaintiff's evidence that the cheque represented the balance of $400,000 loaned by him to the defendant could not be correct. In that event, it would be at least very difficult to accept his evidence that loans had been made, rather than that the defendant had gambled for him with his money up to 27 April. It would also make it at least very improbable that the defendant would have asked for cash for a reason such as the plaintiff alleged he gave.

If, on the other hand, the cheque did not represent the balance of $100,000 cash given by the defendant to the plaintiff as remained when gambling ended, the defendant was bereft of explanation why any cheque, let alone a cheque for $66,000, was written in his favour. I add that it was not distinctly contended for the defendant that, assuming the plaintiff did loan him $400,000, what remained at the end of gambling was other than $66,000. The case was rather conducted on the basis that, if the plaintiff's account was correct, what remained of the $400,000 was $66,000; whereas, if the defendant's account was correct, he owed the plaintiff nothing and was entitled to $66,000.

The defendant's account of the reason why the cheque was written requires the Court to conclude, all other things apart, that the plaintiff not only, as the junket operator, took chips from the defendant (or his wife - there was a conflict in the evidence) to a value of $66,000, but that he then gave the defendant a cheque for the amount, which amount he failed to forthwith cover by a sufficient deposit into his bank account; and which, on the defendant's case, he consistently failed to cover thereafter despite a number of requests. My provisional conclusion, having regard to the relationship between plaintiff and defendant in April 2002, and to the plaintiff's apparent financial strength, is that such conduct seems improbable.

Eighth, before reaching a final conclusion about that question, and about the probabilities of the matter overall, it is necessary to consider the two key aspects of the defendant's case: that is, that the defendant went to Jupiter's to gamble for the plaintiff with the plaintiff's money; and that the defendant gave the plaintiff $100,000 in cash as money for possible gambling by his wife before they set off. Although the two are interconnected, I deal first with the defendant's case that he went to Jupiter's to gamble for the plaintiff with the plaintiff's money; and that he did so until the arrival of Mr Ly.

* In January 2002 he arranged a junket to Jupiter's. The defendant arranged for others to participate. He, the plaintiff, received 1.6% commission on turnover. He paid 1.4% to the defendant. What the defendant paid out of that to other junket participants he did not know. On that trip he lent no money to the defendant.

* He had a method of gambling which he used at various casinos. It was written down on the reverse side of the document, Exhibit C. He could not remember when he wrote the method on that document. At the time when he wrote it he and the defendant were still good friends, sometimes the defendant asked his opinion, so sometimes he wrote the figures on the paper. The document seemed to show that it was written at Star City Casino. He and the defendant had been there once, he thought it was in March 2002. They had gambled on that trip, and played golf.

* The April trip was arranged a few days prior to departure for the Gold Coast. The defendant said he had a few friends who wished to gamble. That was two or three days before they lunched together on 22 April. It was on 22 April that he sent Miss Chen to collect the air tickets.[25]

* On the morning of 23 April the defendant asked him for a loan of $200,000 in chips. He expected a request for a loan. The defendant had mentioned it before they left Melbourne, at Crown Casino. He had said that he would pay the loan back immediately if he won. If he lost, he would pay the plaintiff back from the proceeds of sale of his property. He said the same things on the morning of 23 April. The defendant, I interpolate, had sold a property in Doncaster in January 2002. Settlement, it seems, took place in about the second week of May.

* He, the plaintiff agreed to make the loan. He believed the defendant to be a man of means, and to him - that is, the plaintiff - $400,000 was a very small amount.[26] He gave the defendant a chip for $200,000. His wife prepared a voucher recording the loan. The defendant signed it. The defendant made other requests for loans - on 24 April and 27 April - on each occasion a loan was made, and a voucher was prepared and signed. On the third occasion he told the defendant that he would make him no more loans.

* When they gambled on 23 April, and thereafter, he and the defendant did not necessarily bet the same way. He did not know what the defendant liked to bet.

* At one stage Mr Ly arrived. He thought it was on about 24 or 25 April. Mr Ly gambled, but the plaintiff could not say where he got the chips to do so. He could not recall if Mr Ly was still at Jupiter's on the day that his party left.

* He, the plaintiff, gambled each day on the trip. When he gambled, the defendant gambled at the same table.

* On 29 April he got his wife to write out the $66,000 cheque in the circumstances described in [50].

* That day the defendant was paid commission, calculated from Miss Chen's records, on the same basis as commission had been calculated on the January junket. He did not recall if he was present when the defendant signed the commission paid records.

* Subsequent to 29 April, he made various unsuccessful requests to the defendant for repayment of the loans. The defendant reassured him that he would effect repayment; but he did not do so.

* In June 2002 he came to Melbourne. He brought with him the three vouchers. The defendant came to see him at Crown. The defendant asked him for the vouchers. He said that with the vouchers he could go to the bank and buy the plaintiff a bank cheque. They went to a bank. He gave the defendant the vouchers. That was either in his room, or in the car. The defendant put them in an inside pocket. At the bank, the defendant spoke to a bank officer. He, the plaintiff, did not see whether the defendant took the vouchers out of his pocket. Subsequent to the conversation with the bank officer the defendant told him that the money was not in place yet, it would be a few more days before the plaintiff could get his money. He, the plaintiff, demanded the vouchers back, more than once. The defendant variously told him to take it easy, and that he did not know where he had put them and that they would talk about it later.[27] He, the plaintiff, just kept quiet, he could not do anything.[28]

* It was subsequent to his return to Singapore that he took steps to stop payment of the $66,000 cheque.

* Denied that he had asked the defendant to organise participants for the January junket; and said that it was the defendant who had proposed the junket, and organised the participants.

* Said that on the trip to Star City they "tried to find those people who wished to go up to gamble"[29] - that is, participants in the January junket.

* Denied that before they went to Star City he contacted the defendant and tried to persuade the defendant to work for him using his system.

* Denied asking the defendant to go to Star City to watch how he played his system.

* Said that it was possible that he paid the defendant's expenses for the Star City trip "because he had to, you know, find the customers".[30]

* Said that in March 2002 he did not ask the defendant to organise a group to go to Jupiter's. It was the reverse.

* Denied that in March 2002 he asked the defendant and Stephen Tung to gamble for him. Why, he asked, would he request others to gamble for him?

* Said that there was a lunch on 22 April, attended by he and his wife, the defendant and his wife, and Miss Chen.

* Denied that on the day of the lunch the defendant gave him a paper bag containing $100,000 cash.

* Said that the defendant was not his authorised representative as at 22 April. Rather, application was made by the defendant during the trip to become a registered junket operator.

* Gave evidence that sometimes, not always, he used the method of gambling depicted by Exhibit C. He could not remember whether he used it at Star City in February-March 2002 or at Jupiter's in April that year.

* Gave evidence of attending a lunch on 21 April with the defendant and "quite a fat man" whose name he did not know - Tung or Dung - later "fat Tung". That day, he said not say to Tung that the latter could join him and gamble for him at Jupiter's.

* Agreed that Miss Chen, at his direction, had put the Chinese character for "loan" beside notations of three chip exchanges totalling $400,000; and said that this was done after the "fake vouchers" were sent to the defendant.

* Denied that at the end of gambling on 23 April the defendant had handed over to him all the chips - junket and winning - which he then held.

* Denied that on 27 April he had instructed the defendant not to bet at the seventh hand; and that he then bet and won.

* Denied that when Mr Ly arrived the defendant had said that he did not want to play for him, but wanted to play with Mr Ly.

* Denied that when Mr Ly arrived the defendant had returned all the chips which he then had, and that he thereafter gave the defendant a $100,000 chip.

* Denied that on 29 April his wife and the defendant's wife went off to settle the accounts, whilst he, the defendant and Mr Ly went up to the VIP room.

* Denied that the defendant had asked him for the vouchers, that he went to his room and got them, and that he then gave them to the defendant in the presence of the defendant's wife and Mr Ly.

* Denied that the defendant had on various occasions after 29 April asked him when he could bank the $66,000 cheque.

* Gave uncertain answers as to the occasions on which and frequency with which he had attempted to contact the defendant on his mobile or home phone subsequent to his, the plaintiff's, June 2002 trip to Melbourne.

* Denied that the fake vouchers had been created after he learned that the defendant had gone to the police about the $66,000 cheque, though agreeing that at some stage he did learn that the defendant had gone to the police.

I have mentioned a number of matters put to the defendant in cross-examination, and denied by him, not because the questions denied became evidence, but because they set the scene for evidence given by the defendant and other witnesses called on his behalf, because the questions may in some instances may be compared with the evidence adduced from and for the defendant, and because the course of cross-examination illuminates the point, which I will address in the course of these Reasons, that certain evidence was adduced from and for the defendant which was not put to the plaintiff or to witnesses whom he called.

* It was not put to the plaintiff that having someone bet for him with his money had the advantage that he could tell the other person not to bet in particular circumstances, or to bet on the opposing hand.

* It was put to the plaintiff that on a single occasion, on 27 April, he had told the defendant not to bet on a hand. Compare the later evidence of the defendant as to the frequency and the dates of any such occasions, and the evidence of Mrs Chan about those matters.

* It was not put to the plaintiff that on any occasion he had taken chips from the defendant's pile in order to place his own bet.

* It was not put to the plaintiff that the defendant had given him score cards.

* The plaintiff admitted asking Miss Chen, later in the piece, to write the Chinese character for "loan" beside three entries totalling $400,000 on the rolling record which she kept in respect of the defendant. That record did not show chips advanced as distinct from chips exchanged. The entries were, accordingly, a nonsense. It can be said that the fact that the plaintiff directed Miss Chen to make such entries showed his willingness to fabricate documents; and the fact that she made the entries shows her readiness to do what he told her. On the other hand, the "evidence" created by the notations was in substance compatible with the import of the three original vouchers.

* Cross-examination of the plaintiff first opened up the issue as to when the three vouchers were given by the plaintiff to the defendant. Each of the defendant, his wife and Mr Ly gave evidence, contrary to the evidence of the plaintiff, that he gave the vouchers to the defendant, after request, on the morning of 29 April. Of this controversy, more later.

* Cross-examination of the plaintiff first made mention of the circumstance that the defendant went to the police. The plaintiff was cross-examined to suggest that he made up the story of the loans and created the fake vouchers after and because he became aware that the defendant had gone to the police about the $66,000 cheque.[31] The defendant gave conflicting evidence as to when and why he went to the police. But even if the defendant did go to the police before he received the fake vouchers, there is a difficulty in saying that it caused the plaintiff to invent the loans; for the original vouchers had been written months before that.

The plaintiff was not a faultless witness. He gave evidence which was at times confused, and which was at other times at odds with the evidence of other witnesses whom he called. At least with respect to the notations on the rolling record he evidenced preparedness to direct another person to create a document which was false in form, if not false in substance. Again, he gave the clear impression that he expected what he said to be accepted; and, if what he said called for action, that action would be taken. Those things said, however, his evidence pertaining to the nature of the April 2002 transactions was, I consider, consistent with documents which came into existence at the time, and was generally credible.

Mrs Quek and Miss Chen, so far as either of them gave evidence in the present connection, gave evidence which was in substance compatible with the evidence of the plaintiff. That is not to say, as I have already pointed out, that their evidence[32] concerning the detail of the three transactions was identical with the evidence of the plaintiff.

I should mention one aspect of Mrs Quek's evidence. She said that her husband took the three vouchers to Melbourne on a trip in June 2002. Put to her that it would be strange for her husband to have taken the vouchers, particularly as the transactions were recent and the defendant could be expected to remember them, she disagreed, saying that "it would be better to bring along a proof".[33] Whilst the answer probably transgressed into my province, I consider that it was sensible. In that connection it is to be noted that, according to the defendant's evidence, when he was contacted later in 2002 by a man who said that he owed $400,000, he asked: "Have you got vouchers?"[34] It may be said that the defendant's evidence left open the possibility that the caller had not identified the plaintiff as the alleged creditor. Even so, what the defendant said, according to his evidence, tends to underline the common sense of the rationale for the plaintiff taking the vouchers which Mrs Quek advanced.

I go to the defendant's case. Mr Chan gave evidence that the plaintiff asked him to go to Jupiter's to gamble, using the plaintiff's money and employing a system of betting that the plaintiff had devised. There was a background to this: the plaintiff had told him when they were gambling at Crown Casino, some time before January 2002, that his, the defendant's, method of gambling made it very hard to win. At the plaintiff's request he organised friends to go on a junket to Jupiter's in January 2002. He gambled with his own money. Whilst they were there he watched the plaintiff playing his system, and the plaintiff taught him to play baccarat using that system. He played the system many times, learning. It was a very complicated matter.[35] The system had two elements: the size of sequential bets, and whether to bet on the player's hand or the banker's hand. The latter was the main point.[36]

Further according to the defendant, in late February 2002 he went to Star City with the plaintiff, at the latter's request. There were two purposes: so that the defendant could see the friends who had gone to Jupiter's in January, with a view to organising an April junket to that venue; and so that the defendant could be taught to play the plaintiff's system.[37]

The plaintiff played his system, and "all the way he was winning".[38] Whilst they were in Sydney the plaintiff wrote down the betting sequence. It was produced as Exhibit C.

In April 2002, according to the defendant, the plaintiff told him he was going to Jupiter's. He asked the defendant to arrange for his friends to go there. The conversation took place at Crown Casino. He told the plaintiff that his friends could not go. The plaintiff said:

"It doesn't matter, you can go. I'll teach you the system. I will pay for your expenses".[39]

The plaintiff asked him to continue to attempt to get others to go.

On 21 April, the defendant said, he told the plaintiff that nobody was willing to go. The plaintiff asked him to go, and said that he was going to teach him how to play. He, the defendant, said that his wife also wanted to go. He told the plaintiff that

"I will give her money to check in herself."[40]

"...approximately some time between 12 or thereafter I departed from my home with my wife. My wife prepared $100,000 cash, went to casino, gave it to Mr Quek, arrive at the place in the casino where the cars were parked. Mr Quek got into my car, say 'Going to Richmond together to have lunch'."[41]

Further according to the defendant, in April, before they went to the Gold Coast,

"All the time Mr Quek ask me to be his employee."[42]

Throughout the period they were there, he thought he was using the chips to help the plaintiff play the system.

Turning to what happened at Jupiter's in April 2002, the defendant gave evidence that, having been provided with chips on 23 April,

"At the beginning because I was not very familiarised, it was Mr Quek instruct me how to play, then I play."[43]

It was after he began to play that he was handed the first voucher to sign.

The defendant said that he played the plaintiff's system every hand in the period 23-27 April, save on occasions when the plaintiff told him not to bet. The plaintiff did not bet according to that system at all times.[44] On 23 April the plaintiff asked him not to bet on the eighth hand in a sequence.[45] On 24 April, when each of them had a starting bet (I will explain this a little later) of $100, the plaintiff told him not to bet.[46]

According to the defendant, when gambling ended on 23 April, he gave the plaintiff all the chips which he had. The plaintiff put them into a safety box in the accounts office.[47] The next morning, when gambling began, the plaintiff gave him a $100,000 chip. Shortly afterwards, Mrs Quek passed the second voucher to him.

On 24 April, according to the defendant's evidence, he gambled very late, using the plaintiff's method, beyond the time when the plaintiff ceased gambling. He retained what chips he had when gambling ended, though Miss Chen was in attendance.

On 27 April, the defendant said, he still had chips left. But the plaintiff gave him another $100,000 worth of chips, and Mrs Quek gave him the third voucher to sign. Until Mr Ly arrived he gambled at the same table as the plaintiff, using the plaintiff's system. But when Mr Ly arrived he told the plaintiff that he was going to play with Mr Ly. The plaintiff said that was alright. He gave back the chips which he then had to the plaintiff, and the plaintiff handed him back a $100,000 chip saying:

"I'm returning back to you. This is your money."[48]

He, his wife, and Mr Ly gambled with that money for the rest of that day, and on 28 April. He and Mr Ly gambled in partnership, though he provided all the funds. They did not use the plaintiff's system, they used "Mr Ly's own feeling".[49] The partnership won, Mrs Chan lost. Thus was explained the $66,000 residue.

Before leaving Jupiter's, he said, he asked the plaintiff for the three vouchers, saying that the plaintiff had told him he was going to give them back to him. The plaintiff went upstairs, came back with three vouchers and gave them to him. He handed them to his wife, who put them into her handbag.

Cross-examination, revealed, in my opinion, a considerable number of anomalies and unsatisfactory features in the defendant's evidence.

* He knew, he said, that the plaintiff had many methods of gambling; but the plaintiff only taught him one of them; and the plaintiff always played that one method when at Jupiter's in January 2002, at Star City in February-March 2002, and at Jupiter's in April 2002.[50]

* The particular method, on his account, was very complicated. He could not express it orally. The main difficulty was in a formula whether to play banker or player on a particular hand (the plaintiff said that the system, the existence of which he acknowledged, had no such formula). Yet although the method was very complicated, the plaintiff left him to gamble alone, using the plaintiff's money, on the late evening of 24 April, and at times on 25 and 26 April.

* The plaintiff, he said, had given him pieces of paper showing when he should bet on the banker's or the player's hand on particular occasions. Such pieces of paper, which he had retained but which he neither discovered nor produced at trial, could only be used in connection with one stack (shoe) of cards. The plaintiff, I note, was not cross-examined to suggest that he had created any such documents, or that he had given the same to the defendant.

* On his account, the plaintiff went to the trouble, in connection with an internal transaction, of having the vouchers prepared. Yet no count was made of chips which he claimed that he returned to the plaintiff when gambling ended on 23 April,[51] nor of chips which he claimed that he returned to the plaintiff after Mr Ly's arrival on 27 April. What could be the purpose of the plaintiff having a one-sided record, assuming that there could have been any sense in him asking the defendant to sign receipts for chips given to the defendant for gambling on the plaintiff's behalf?

* According to his evidence, although the plaintiff took back the chips which he had after gambling ended on 23 April, yet on 24, 25 and 26 April he retained the chips which he held at the end of gambling - even though Miss Chen, the plaintiff's authorised representative, was on hand.

* He gave evidence that he held chips to a value exceeding $100,000 on the morning of 27 April. He only needed chips amounting to, say, $50,000 for gambling by the plaintiff's method. Yet on his account the plaintiff gave him a further $100,000 chip that morning.

* According to his evidence, he won overall on 27 April in the period before Mr Ly arrived. He had more than $200,000 in chips when Mr Ly arrived. Yet he did not give the plaintiff the excess of chip value beyond $100,000 - that is, retaining in chips the equivalent of the cash which on his account he had given to the plaintiff on 21 April - but rather gave all the chips back and then received a $100,000 chip (or chips to that value) from the plaintiff.

* He said that he agreed with the plaintiff that he would go to the Gold Coast about two-three days before they left on 22 April. Compare his evidence in chief; and compare also the evidence of Mrs Chan - to the latter of which I will refer later in these Reasons. Note also conflict in his evidence whether his agreement to go to Jupiter's to gamble for the plaintiff was conveyed at a lunch on 21 April, or was conveyed a day earlier.[52] Note again his evidence that the pertinent agreement was reached at a lunch in Richmond on 21 April attended by the plaintiff, himself and Mr Tung; and his evidence that an answer to interrogatory, in which he deposed to the lunch taking place on 22 April, was incorrect. Note also paragraph 17 of the amended defence and counterclaim, the burden of which is that the pertinent conversation occurred on 22 April.

* According to his evidence, the plaintiff gave an explanation why he wanted the defendant to gamble for him. It would increase the number of losing hands that could be played before the up-front money which the plaintiff had deposited with the Casino (in the form of a cheque) would be exhausted. The more hands that could be played, the greater the prospect that the odds of having winning sequences would prevail.[53]

Pausing for a moment, I consider it very unlikely that the plaintiff would have given such an explanation, which was in my opinion unsound. In order to see why that is so it is necessary to understand a little about the particular method of betting. As explained in viva voce evidence, and as depicted in columns 2 and 3 of exhibit C, the betting sequence was quite simple. Taking as a starting point a bet of one amount or another, in the event of a losing hand bet next an amount equal to double the amount lost plus the starting bet. Follow that sequence for a maximum of eight consecutive losing bets. Then revert to the starting bet. In the event of a winning bet at any time in the sequence, revert to the starting bet.

The theory underpinning the sequence of bets was said to be this: if one winning hand occurred in the sequence, the gambler would win overall a modest amount; and the infrequency with which there was likely to be a sequence of eight consecutive losing bets was such that the more frequent sequences in which there was likely to be a winning bet would secure an overall profit.

Now the starting bet in one sequence shown in the exhibit was $100, and the last bet was $25,500. If there were eight consecutive losing bets, the overall loss would be $50,200. The starting bet in another sequence was $700, and the last bet $178,500. If there were eight consecutive losing bets, the overall loss would be $351,400. In the event, if the up-front money was $1M, there could be about 20 consecutive sequences of eight losing bets starting at $100 before the $1M was exhausted; but if the starting bet was $700 the $1M would be exhausted in less than three consecutive losing sequences of eight bets.

Aside altogether from the improbability of there being 24 losing hands in a row, and the improbability of an uncommon frequency of sequences of eight consecutive losing bets (for such an event was said by the defendant to be very infrequent), there was no advantage such as the defendant claimed in the plaintiff recruiting another person to play for him. If that person began with a starting bet of $100, and the plaintiff began with a starting bet of $700, and if there was a catastrophic sequence of losing bets, then the up-front money would be exhausted more speedily than if the plaintiff was betting alone. At least that would be so if the plaintiff and defendant were playing at the same table. Indeed, the defendant seemed to acknowledge that the value of having multiple players was that they could play at different tables and so spread the risk.[54] But on no view did the plaintiff and defendant play at separate tables in April 2002 in the period when, as the defendant alleged, they were playing by the plaintiff's method.

* There was, he said, another virtue in the plaintiff engaging him to bet using the plaintiff's money and system. Because of the relative frequency of winning sequences by contrast with losing sequences, a gambler was likely to achieve an overall modest win. More numerous small wins were, on that assumption, likely to be achieved if more than one person used the plaintiff's system and started with a $100 bet.

To my mind that explanation why the plaintiff should have recruited him to bet with the plaintiff's money was unsound; and the plaintiff was unlikely to have recruited the defendant for such a reason. The betting sequence was essentially very simple. Whatever the amount of the starting bet, in the event of a losing bet double the bet and add the amount of starting bet; and so continue for a maximum of eight consecutive losing bets. Exhibit C, columns two and three, shows starting bets of $100 and $700. But there was nothing to stop the plaintiff having a starting bet of, say, $200 or $300. The sequence could be constructed very simply. Why would the plaintiff pay a man with an imperfect knowledge of the system a wage calculated as if it was commission, his airfare, and accommodation (as the defendant alleged was the case) to gamble using a $100 starting bet if the plaintiff could replicate the defendant's bet and his own (for on the defendant's evidence the plaintiff sometimes began with a $100 bet) by a starting bet of $200?

* There was, he gave evidence, another advantage again in the plaintiff engaging him to bet with the plaintiff's money using the plaintiff's system. The plaintiff could instruct him not to bet on a particular occasion. The plaintiff had so instructed him. In cross-examination he referred to one such occasion - on 23 April.[55] On that occasion the plaintiff's starting bet had been $700, and his starting bet $100. There had been seven consecutive losing bets. The plaintiff told him not to bet on the eighth hand and he did not do so. The plaintiff bet, and won. Then they reverted to the starting bets.[56]

As I understand it, the alleged advantage of the plaintiff being able to instruct the defendant not to play was that the plaintiff could play the eighth hand for a large amount; whereas, if the defendant also played that hand according to the system, the table limit would be exceeded. Putting to one side the plaintiff's denial that any such incident occurred, putting to one side the defendant's conflicting evidence as to the number of occasions on which he was told not to play, putting to one side also the defendant's evidence that their starting bets on the occasion on 24 April of which he gave evidence in chief were $100, and putting aside again the defendant's uncertain evidence about the amount of the table limit, the alleged advantage was no advantage at all. If the table limit was $200,000 and the plaintiff's starting bet was $700, after seven consecutive losing bets his overall loss would be $172,900. His eighth bet would be $178,500. If the bet won then his overall win (it would be a little smaller if he bet the banker's hand) would be $5,600. If the defendant's starting bet was $100, his accumulated losses after seven hands would be $24,700. If he was forbidden to bet on the eighth hand, the plaintiff could be certain of losing overall, even if his eighth bet won - that is, a $5,600 win less $24,700 losses equals a loss of $19,100. If the table limit was $200,000, it would make no sense for the plaintiff not to instruct the defendant to bet the difference between his bet and the limit - that is, $21,500.

* There was, he said, a still further advantage for the plaintiff in his employing persons to bet on his behalf. Because the table limit is set at a differential between bets on the player's and banker's hands, in given circumstances the plaintiff could instruct an employee to bet on the other hand, thereby keeping his, the plaintiff's, bet within the table limit.

Not only did the plaintiff not instruct the defendant to act in such a way whilst at Jupiter's in April 2002, I very much doubt the existence of the alleged advantage in such a case. The same result would seem to be achieved by instructing a second player to bet to, but not beyond, the table limit, betting on the same hand as the plaintiff. But I take this matter no further.

* At times on 24 April, he said, the plaintiff played different hands to the hands which he played in accordance with the plaintiff's system.

The defendant, having given this evidence, was confronted by the problem that this meant that the plaintiff must surely have lost on every such hand. For winning bets on the player hand are paid at even money, and winning bets on the banker's hand are played at even money less 5%. The defendant then said that he had misunderstood what he had been asked. What he had meant was that he and the plaintiff had bet different amounts. An examination of the transcript does not suggest the reliability of that explanation.[57]

* He had won overall, he said, whilst betting on 24 April. But he had no more in chip value at the end of the day than when he began. That was because the plaintiff had taken chips of large value from his pile, and had placed a losing bet of $125,000. The entire $125,000 bet had been made with chips from his, the defendant's pile.[58]

That account was improbable for a number of reasons. If true, it would tend to show that the chips which the defendant had were the plaintiff's chips. Yet the plaintiff was not cross-examined to suggest that such an incident had occurred; whilst the defendant said nothing about it in evidence in chief. Again, the account emerged in cross-examination by way of explaining why, after a winning day, the defendant had no greater value in chips than when he began. But his explanation created more problems than it solved. For the defendant agreed that he needed at least $50,000 to play the plaintiff's system; and he played on 24 April after the plaintiff ceased gambling, and on occasions on 25 and 26 April. It followed from his account that he must have had something over $175,000 in his pile before the plaintiff abstracted chips amounting to $125,000 in value. His description of the rate at which the plaintiff's system generated winnings could not explain how he could have increased his chip holding from $100,000 to $175,000 or more by the time that the plaintiff acted in the manner alleged. Further again, the defendant gave evidence that the $125,000 bet was the eighth bet, and that he was told not to play. $125,000 is not a bet fitting any sequence in exhibit C, a problem which the defendant sought to avoid by later suggesting that the bet may have been $125,000 of his chips plus other chips from the plaintiff's pile. Moreover, this was perhaps a third occasion when, according to the defendant, the plaintiff told him not to bet. Yet nothing was said about that matter until nearly the end of cross-examination on the topic.[59]

* On 25 April he was occupied, he said, in the preparation of an application to become a junket operator. The plaintiff's wife filled it in the forms for him. He gambled after that.

Pausing for a moment, the only real significance of that evidence was that the defendant gave internally inconsistent accounts of when it was that he awoke that day, when the form-filling was undertaken and completed; and that the defendant's account, as to timing, considerably contrasted with the evidence given by his wife.

Of somewhat greater moment was the defendant's vagueness whether the plaintiff gambled with him at all on 25 and 26 April, his evidence that on those days that the plaintiff "looked for him" whilst he was playing, and his evidence that when he finished gambling on those days he did not go looking for the plaintiff.[60] It would be strange, if the plaintiff had retrieved chips from the defendant on 23 April, and if he was present when the defendant ceased gambling on 25 or 26 April, that the retrieval would not have been replicated.

* It was his evidence that after gambling on 25 and 26 April he gave records of his bets to the plaintiff. They showed, hand by hand, whether he had played banker or player, and whether he had won or lost on the hand.

Pausing for a moment, the import of this evidence was that the defendant had reported his betting on 25 and 26 April - that is, as would enable the plaintiff to check whether the defendant had followed his system. Whilst a scorecard which the defendant completed on a sample basis[61] does not suggest that a complete picture was thereby conveyed - particularly as to bet size - the more important consideration is that if he had given the plaintiff scorecards it could be seen to be some corroboration of his general account. But that matter was not the subject of cross-examination of the plaintiff; and, indeed, it only emerged in the course of the defendant's cross-examination. I very much doubt the reliability of that evidence, even though it was later supported, and, indeed, improved upon, by evidence given by Mrs Chan.

In all, the defendant's evidence as to when the plaintiff asked him to gamble for the plaintiff using the plaintiff's money, when he agreed to do so, what events occurred during the April trip to Jupiter's which demonstrated that he was betting with the plaintiff's money,[62] and what advantages there were for the plaintiff in engaging him to bet for the plaintiff, was not at all convincing. Likewise his evidence, I will return to this matter, that the plaintiff handed him the three vouchers on 29 April. I so conclude considering such evidence apart from the contrary accounts given by the plaintiff, his wife and Miss Chen, apart from the various documents which stand in the way of its acceptance, apart from the question whether he gave the plaintiff $100,000 in cash on 21 April, apart from the fact that he was paid an amount equal to 1.4% commission on turnover for all his gambling between 23 - 28 April, and apart from the probability - contrary to his evidence - that he paid for his airfare and accommodation.

At various points, when discussing the defendant's evidence, I have mentioned evidence given by Mrs Chan pertaining to "employment" issues. Some pertinent evidence was also given by Mr Ly, and by Mr Siu Wan Tung. Should that evidence lead to a conclusion that the defendant's "employment" evidence, though I have not considered it convincing, and despite other matters telling against its acceptance, was in substance accurate?

The defendant's wife, Man Leng Wong (conveniently, "Mrs Chan"), essayed little or no recollection of a number of matters, but a detailed recollection of others. Her evidence in chief was relevantly as follows: after the defendant returned from Star City, she formed the belief, based upon things which he said to her, that she would be going to Jupiter's. He told her on the evening of 21 April that they were going the next day. On the morning of 23 April she saw Miss Chen give chips to her husband. A little later she was sitting by her husband, at the gaming table, when a voucher was passed to him. He asked what it was, the plaintiff replied "our records", and he signed it. At the end of play the her husband returned his chips to the plaintiff. That happened at the gaming table. The next morning she saw Mr Quek give chips to her husband, saw Mrs Quek pass a voucher to the plaintiff which he then handed on to the defendant and saw him sign it. She stayed at the table all day. They gambled until very late, then Mr or Mrs Quek said that he or she was very tired and that they were going to leave. The plaintiff said to her husband, "You continue to play this game of cards", and the defendant did so. On 23 and 24 April the defendant played the same hand - banker or player - as the plaintiff. At the end of play on 24 April she put the chips into her handbag. On 25 April she got up very late. There was no gambling in the morning. Her husband told her that the plaintiff was going to arrange for him to have a junket licence. She saw Mrs Quek help the defendant to fill in forms. That was in the afternoon. There was no gambling that day or night. On 26 April she got up late. She, her husband, the plaintiff and his wife had an outing. There was no gambling that day. On 27 April she put the chips which she had in front of her husband. Then the plaintiff gave him another chip of $100,000 value. There followed the procedure of a voucher being passed on to the defendant. Mr Ly arrived at about 3 pm. She saw him speak to the plaintiff. Then she heard her husband tell the plaintiff that he was going to play with Mr Ly, and the plaintiff say that it was up to him. She then saw her husband give at least $100,000 worth of chips to the plaintiff, and the plaintiff hand him back a $100,000 chip. She, the defendant and Mr Ly then gambled that day, before and after dinner, at another table. She paid no attention to what the plaintiff and his wife did. On 28 April she, the defendant and Mr Ly gambled again. At the end of gambling she put all the chips - junket and winning - into her handbag. There were chips to a value of about $100,000. On 29 April, after breakfast, she, Miss Chen and Mrs Quek got together to settle the accounts. She gave all the chips which she had to Miss Chen. There were junket chips to a value of about $60,000, and a few thousand dollars worth of winning chips. Miss Chen calculated commission due to the defendant and Mr Ly, and gave her about $20,000 in cash. With respect to the junket chips, Miss Chen asked Mr Quek to come over, he did so, then he went back and spoke to the defendant. He returned, and told Mrs Quek to write out a cheque for $60,000 odd. When that was done, the plaintiff took it away and handed it to her husband. Later, he handed it to her, and she put it in her handbag. Later again, the plaintiff gave her husband the three vouchers, and he gave them to her.

In the course of cross-examination, Mrs Chan gave the following evidence:

s She decided that she was going to Jupiter's about 10 days before leaving on 22 April. Her husband had then decided that he was going. He had told her that he was going to help the plaintiff play his system. She also wanted to learn that system.

s On 23 April she did not hear her husband ask for a loan from the plaintiff. She heard everything that he said to the plaintiff the whole time they were at Jupiter's, but she could not recall very clearly now (what was said). She saw the three vouchers, but did not see Mrs Quek writing on any of them, or where they came from.

s She went to learn the plaintiff's system, but despite sitting at the gaming table for many hours whilst the plaintiff and her husband was playing, and despite being a long-time baccarat player herself, she learned nothing about the system. Indeed, on her admission, she did not try to learn it.[63]

s On 23 April there was no occasion when her husband and the plaintiff played different hands; and on that day there was no occasion on which the plaintiff bet but her husband did not.

s The defendant won on 23 April. But then she agreed that over a long period of gambling her husband had many winning and many losing hands, and that the only basis upon which she had said he won was that he had told her that the plaintiff had told him (they) were winning.[64]

s Not only were chips handed to the plaintiff at the end of play on 23 April, the defendant gave the plaintiff a record of his playing - that is, a scorecard.

s Vouchers which the defendant was asked to sign were not loan vouchers. A propos 24 April, there was this question and answer:

"... Mr Quek's wife handed across a voucher, didn't she? - Not the loan voucher."[65]

s On 24 April, "in the middle of gambling", after dinner, the plaintiff asked the defendant not to bet. He, the plaintiff, then played a large winning bet. Then the plaintiff and the defendant both stopped gambling for a time.

s The chips which she put in her handbag at the end of play on 24 April remained in her handbag, did not come out, for two days. It took more than one day to complete the defendant's application for a junket licence. But then the witness said that her husband gambled on the evening of 25 April, that Mr Quek had asked him to do so, saying that he was not going to gamble. As to when Mr Quek said those things, the witness gave conflicting evidence. She said also that her husband, but not the plaintiff, gambled on the night of 26 April. Her explanation why she had said in evidence in chief that there was no gambling on 25 or 26 April was that she had meant that she had retained the chips.[66] But then she said that maybe she had made a mistake.[67]

s The defendant gave scorecards to the plaintiff on 25, 26 and 27 April - that is, in addition to the scorecard which he gave to the plaintiff on the evening of 23 April. On one occasion, at least, the cards had been in her handbag.

s As to 27 April, her husband began the day with more than $100,000 worth of chips. The plaintiff gave him a chip for $100,000. She could not recall whether that happened after play had been going for a while.

s The $20,000 which Miss Chen gave her on 29 April had been described by Miss Chen as commission on the $100,000 gambling money - that is, the $100,000 in chips said to have been given by the plaintiff to the defendant after Mr Ly's arrival - plus the value of winning chips handed back that day. She recalled that her husband had come over and signed the commission paid records.

s Miss Chen told her that she had lost $30,000. She agreed that Miss Chen had no way of knowing how the $100,000 said to have been given to the defendant after Mr Ly's arrival had been split up between she, her husband and Mr Ly. Then she said that she told Miss Chen that her husband had given her $40,000 in chips. But her evidence was far from consistent upon the matter.[68]

Aside altogether from the impact of her evidence concerning the $100,000 cash said by she and the defendant to have been given to the plaintiff on 21 April, her evidence as to the circumstances in which the three vouchers were acquired by the defendant, and her evidence concerning events subsequent to her return to Melbourne on 29 April, I do not regard Mrs Chan as having given evidence upon which I could set much store. I think that she had, in fact, a quite poor recollection of events leading up to and occurring in the course of the Jupiter's visit. I think that her evidence probably involved a substantial input from her husband, and that it certainly involved improbable denial and some story-telling when she got into difficulties. Like other witnesses, I think that she was a loyal person the burden of whose evidence was understandable in the circumstances.

Both in evidence in chief and in cross-examination Mrs Chan corroborated, in large part, the evidence given by her husband concerning the circumstances in which the plaintiff or Miss Chen gave him chips, the circumstances in which her husband was given vouchers to sign, what was said by the plaintiff a propos the first voucher, the return of chips after play on 23 April and again after Mr Ly's arrival on 27 April, the circumstances in which the $66,000 cheque was prepared, and the return of the three vouchers. On the other hand, she made no mention of the plaintiff and the defendant playing different hands on any occasion, nor until cross-examined did she make any mention of the plaintiff asking the defendant not to place a bet, she fixed that occasion as having occurred on 24 not 23 April (and not at the same time of day as her husband), she made no mention of the plaintiff taking $125,000 in chips from the plaintiff's pile, she claimed that she went to learn the plaintiff's system but then said that she neither learnt it, or tried to learn it, she gave clear evidence that the defendant did not gamble at all on 25 or 26 April but then contradicted that evidence and gave an improbable explanation for what she had first said, she claimed that her husband had given the plaintiff a multiplicity of scorecards - that he had done so more often than even he said was the case, she was over-enthusiastic in saying that a voucher her husband was asked to sign was "not the loan voucher", her account of what Miss Chen said about commission did not accord with the fact, her claim that she returned junket chips amounting to $60,000 on 29 April does not accord with the rolling record kept by Miss Chen, her evidence seeking to explain Miss Chen's alleged remark that she had lost $30,000 was confused and contradictory, she apparently adjusted her evidence to meet the fact that her husband had signed the commission paid records, and her evidence tended to show that her appreciation whether the defendant had won or lost overall was essentially derivative - that is, based upon what her husband or someone else told her.

The other person, relevantly, who attended Jupiter's in April 2002 was Mr Ly. He gave this evidence in chief: he had attended the January 2002 junket and was paid commission. Sometime before April 2002 the defendant asked him to go to Jupiter's. He told the defendant that he would go if he had time. The morning of the day of his departure he rang the defendant and said that he was coming. He took no money. The defendant had said he had money and that they would play in partnership. On 27 April he and the defendant gambled at a table where others were playing. The defendant took a $100,000 chip for gambling. On 28 April he and the defendant again gambled in partnership. Mrs Chan also gambled. Chip exchanges were made with Miss Chen on both days. He and the defendant won a few thousand dollars. He did not know from whom Mrs Chan obtained junket chips. On 29 April the ladies attended to settling. The plaintiff walked to and fro. The plaintiff said that whatever money was left, there (would be) a cheque (for the defendant). He did not see a cheque. Before he left for Sydney, he heard the defendant ask the plaintiff for papers. The plaintiff went upstairs and returned with papers which he gave to the defendant and his wife.

* Agreed that at the end of the January 2002 junket it was the defendant who gave him commission.

* Agreed that he and the defendant should be termed good friends, and said at casinos they had loaned each other money.

* Said that on no previous occasion had there been an arrangement with the defendant whereby they played in partnership, but entirely with the defendant's money; but said that such arrangements are not uncommon.

* Gave uncertain evidence whether, on his arrival, the plaintiff, the defendant and their wives were or were not gambling; and as to what they did in the immediate aftermath of his arrival.

* Gave a series of answers about the circumstances of his April 2002 trip to Jupiter's which were inconsistent with things recorded in a police statement which he had made, through an interpreter, in December 2002.[69]

* Gave a confused account why it was that he remembered that he travelled to Jupiter's on 27 April.

* Asserted that the plaintiff had definitely gambled at the same table as he and the defendant.

* Said that at the end of gambling on 28 April he and the defendant, having started gambling on 27 April with $100,000 in chips, had won a few thousand and had not more than, or more than (he did not know), $100,000 in chips.

* Gave evidence that, although there was nothing special about settling at the end of a junket, he could remember where people were sitting or standing, who was involved in settling, that there was mention of a cheque, and that paperwork was given by the plaintiff to the defendant.

Mr Ly was evidently a friend of the defendant. Indeed, the defendant had brought him from the airport on the day that he gave evidence. He denied discussing the events of April 2002 with the defendant at any time. That seems improbable. His evidence was in certain respects quite detailed. It sat uncomfortably with some of what he said in his police statement in December 2002. Improbably, in the absence of discussion, his memory seemed to have improved with the passage of years.

Two other matters should be mentioned; first, if it was the case that the defendant proposed that the two men play in partnership, he providing the chips, and if he did provide all the chips, no conclusion follows whether the chips represented a loan or were rather a redemption of $100,000 cash given by the defendant to the plaintiff. Second, the import of Mr Ly's evidence was that the $100,000 worth of chips with which he and the defendant began was not used to fund Mrs Chan's gambling; and that he and the defendant won overall. If all that evidence was correct, which I doubt, the cheque for $66,000 would be unexplained by evidence called for the defendant.

The other witness who gave a little pertinent evidence, Mr Siu Wan Tung, said that in early 2002, probably January, each of the plaintiff and the defendant had asked him to go to Queensland to gamble. His full expenditure would be paid but he had to play for the plaintiff with the system. He described a system which he had seen the plaintiff using. He did not go. In March they invited him to go again. They said they would pay him all expenses, but he had to play the system. Then they rang him on 21 April. The plaintiff asked him to go to lunch. At lunch, they said the same thing. The plaintiff said it.

Cross-examined, the witness said that he thought he had been on a junket. He had not received commission. Put that he had misunderstood what was said to him, he replied that he understood he would play on the plaintiff's behalf but would not be paid commission. Only his expenses would be paid. Then he said that if he won, the plaintiff could give him commission; but nothing if he lost.

Mr Tung was no doubt a long-time friend of the defendant. His denials that he had discussed this matter with his friend, whom he had seen socially during the course of the trial, were given after extended pauses. His evidence, put to show that there was a pattern of the plaintiff seeking to recruit others to play for him, was not very convincing.

So, he said that the plaintiff and defendant had sought to recruit him to play the plaintiff's system at Jupiter's in January. No evidence suggested that the defendant or anyone else played for the plaintiff during that junket.

Again, on Mr Tung's account there was no difference in the requests made to him in January, March and April 2002. On any view the defendant organised junket participants in January 2002, and attempted to recruit junket participants for the April 2002 trip. No doubt commission would be paid to such persons. Is it not more likely, the witness saying that each of the plaintiff and defendant asked him to go to Jupiter's on each occasion, that the carrot offered was commission?

As against such a conclusion, the witness insisted that it was his understanding that he was asked to play the plaintiff's system for the plaintiff. Yet on his account he was to be paid expenses only. Commission, his evidence about this was speculative, might be paid if he played and won. But the defendant was paid commission in April 2002, regardless of the outcome of his gambling. Could it be safely concluded that, whatever proposal was made to the witness, that proposal mirrored the actual arrangements between the plaintiff and the defendant in April 2002?

What I have so far said about Mr Tung's evidence is apart altogether from his evidence the he saw a bag on the lunch table on 21 April. His evidence in that connection, I will refer to it later, was not at all persuasive.

I turn to what I have called the second key element of the defendant's case - that is, that the defendant handed the plaintiff $100,000 in cash on 21 April, which was converted into a chip which the plaintiff gave him on 27 April. If those events occurred it would not only give support to the defendant's explanation of the $66,000 cheque, it would suggest that the defendant did not need to borrow from the plaintiff in order to gamble.

The plaintiff's evidence, pertinently, was that of denial. That aside, whether the defendant handed cash to the defendant on 21 April depended substantially upon the evidence of the defendant and his wife, and in small measure upon the evidence of their son Mr Roger Chan, and the evidence of Mr Tung. But the question cannot be viewed in isolation from other evidence pertaining to the April 2002 trip to Jupiter's. If there was a mass of evidence to suggest that loans were made, and that the pertinent evidence of the defendant and his wife could not be accepted, it would bear upon their credibility; and as well upon the likelihood, if the defendant needed to borrow, that he had given $100,000 in cash to the plaintiff. Against that background, I should refer to the particular evidence of the defendant, his wife, Mr Roger Chan, and Mr Tung.

The defendant gave varying evidence, I have referred it already, as to when it was that he agreed to go Jupiter's with the plaintiff. On no view of his evidence was any such agreement reached more than 2-3 days before 22 April. Taking a view most favourable to the defendant, he so agreed a day or so before 21 April.

Next, on his account he left home at about midday on 21 April. He drove to Crown Casino. His wife was with him. They were intending to have lunch together (with the plaintiff). He had with him $100,000 in cash which his wife had prepared. At the Casino, Mr Quek emerged and said that they were going to Richmond to have lunch. His wife decided not to go when the plaintiff said that he had arranged for others to attend. His wife left behind the brown paper bag of money, which was sitting in a plastic bag. He gave the bag to the plaintiff "on the spot."[70] The plaintiff took it into the restaurant and put it on the table. During lunch, the plaintiff said Mr Tung that

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Judgment (293 paragraphs)

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