Chan Mei Yi Jessica v. Tsoi King Keung Johnny
Read the full judgment text of DCCJ 1643/2014 on BabelCite. This District Court judgment was delivered on 31 October 2016.
1. The plaintiff, Miss Chan, and the defendant, Mr Tsoi, provide conflicting versions concerning the purpose of the transfer of HK$200,000 from Miss Chan to Mr Tsoi; the court is asked to decide, on the balance, which version is to be accepted. This case hinges on the strength of the evidence and the credibility of the parties.
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DCCJ1643/2014 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CIVIL ACTION NO. 1643 OF 2014 ------------------------
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------------------------------------------------- JUDGMENT ------------------------------------------------- The Issues 1.The plaintiff, Miss Chan, and the defendant, Mr Tsoi, provide conflicting versions concerning the purpose of the transfer of HK$200,000 from Miss Chan to Mr Tsoi; the court is asked to decide, on the balance, which version is to be accepted. This case hinges on the strength of the evidence and the credibility of the parties. 2.Miss Chan alleges that in or about March or April 2008, she orally agreed to lend a sum of HK$200,000 (the “Sum”) to Mr Tsoi at the interest rate of 2.25% per annum (the “Loan Agreement”); the Sum was advanced on 16 May 2008. Despite repeated demands, Mr Tsoi still refuses to repay the same. 3.Mr Tsoi accepts that he did receive the Sum from Miss Chan by way of a cheque; however, he alleges it was trust money for him to invest for and on behalf of Miss Chan in the stock or warrant market; instead of a loan. 4.Mr Tsoi also admits that he is prepared and ready to return HK$41,126.54 to Miss Chan as the remains of the Sum. The Undisputed Facts 5.Both parties agree that:
Analysis of Evidence 6.Both parties rely heavily on the MSN conversation transpired between them. 7.The main thrust of Miss Chan’s case is their conversation on 29 April 2008. In her witness statement, her case is that:
8.The relevant MSN messages dated 29 April 2008 are as follows [B2/212 – 218]:
9.Miss Chan argues that the Loan Agreement was confirmed as Mr Tsoi accepted the terms including the interest rate by mentioning “Deal”. 10.Mr Tsoi explains he was just joking with Miss Chan and was trying to teach her how to calculate interest; he never intended to borrow money from Miss Chan. 11.I accept Mr Tsoi’s explanation after a careful analysis of the above conversation. 12.If one reads the conversation carefully, one will find throughout the conversation the actual loan amount had never been mentioned. Miss Chan started off by saying “I got a few hundred-thousands … don’t know what good (it’ll) do just being left here” [01:43:22]; then she mentioned “$20,000, enough?” [01:59:11]; Mr Tsoi then mentioned “You said (yourself) a few hundred thousands …won’t (qualify) to be a few if less than 3 … certainly at least 150,000” [02:01:34]. 13.Mr Tsoi mentioned the sum should be at least $150,000; however, both parties had never confirmed the exact figure to be lent in the whole conversation. If both parties intended to create the Loan Agreement, the actual loan amount must be the first thing that would come to their mind, as it would be the most important element of the Loan Agreement. 14.They discussed about the interest rate; however, in a rather light-hearted manner. Miss Chan once mentioned “I charge him/her interest of 59%” [01:46:17] and Mr Tsoi said “Haha … (and) you try to be a money lender like the others …” [02:04:58]. 15.They mentioned about the pledge of the loan; but again, in a joking manner. Miss Chan said, “Do you have any property as a pledge? This is mortgage interest rate …” [01:50:05] and Mr Tsoi replied “I (shall) keep the title deeds, (I) won’t bloody listen to you … (you) didn’t say it just now … (you) made a hole for yourself to fall into” [01:50:39 – 01:52:53]. It never looks like it is a serious dialog between a real lender and borrower. 16.Then their discussion went on and Mr Tsoi taught Miss Chan how interest should be calculated. Miss Chan then said “I will save (it) up … Breaking even in 3 years … and then I lend you another 15 thousand … heehee … better than planting gold” [03:09:43 – 03:10:26]; obviously Miss Chan was in a joking manner. 17.I conclude that both parties did not have the real intention to enter into any legally binding loan agreement. 18.The above also sets an example on the communication pattern between Miss Chan and Mr Tsoi; that Mr Tsoi always tried to tease Miss Chan by giving some sexual innuendos; sometimes, they just flirted with each other; and from time to time, Mr Tsoi could be very manipulative. 19.Miss Chan’s witness statement does not tally with the MSN record. According to paragraph 6 of her witness statement, she knew that Mr Tsoi used a company without any actual business to obtain a loan from the bank for investment purpose by “cooking up the figures”, then the bank asked Mr Tsoi to repay the loan; which triggered Mr Tosi to borrow money from her. Mr Tsoi asked for $150,000 initially but after numerous conversations, she agreed to lend him $200,000; then on 29 April 2008, Mr Tsoi confirmed the Loan Agreement by saying “P-3% … deal! Don’t break your promise!” 20.As Miss Chan knew Mr Tsoi used a non-operating company to borrow money from the bank and the bank called loan, she should be very anxious about Mr Tsoi’s repayment ability; in particular, that $200,000 represented around 50% of the sale proceeds of her flat [B2/37, §5][2]. 21.However, thousands of MSN messages are disclosed in the hearing bundle, and Miss Chan had never mentioned in any message that the Sum was a loan, nor made any demand for repayment. 22.Further, Miss Chan mentions that Mr Tsoi initially asked to borrow $150,000 from her and after numerous conversation; she agreed to lend him $200,000. 23.The MSN messages state the otherwise. According to the messages, Miss Chan started off by saying “I got a few hundred-thousands … don’t know what good (it’ll) do just being left here. (What if) the little RMB fall after the Olympic Games …” and Mr Tsoi replied “You better go make a call and ask, better than asking me … so much money, (if you) give (it) to me to spend, (you) don’t need to bother”. Then Miss Chan said “Give the money to you (?) … should charge you p-3% … if (it has) such a fat profit, I charge him/her interest of 59%.” [01:43:22 – 01:45:32] 24.Accordingly, Miss Chan first mentioned that she had a few hundred-thousands dollars on hand and had no idea how she should utilize it, then the parties ventured into the discussion concerning the usage of that sum of money. Then Miss Chan asked, “How much do you want? $20,000, enough?” and Mr Tsoi replied “You said (yourself) a few hundred thousands … won’t (qualify) to be a few if less than 3 … certainly at least 150,000.” [01:59:01 – 02:01:34] The whole idea of $150,000 came from Miss Chan mentioned she had few hundred thousands and Mr Tsoi said “won’t qualify to be a few if less than 3”. They had never mentioned anything about the bank, Mr Tsoi’s cooked-up company, the bank’s loan or Mr Tsoi was demanded to repay the loan. 25.Hence I reject Miss Chan’s version. 26.Mr Tsoi’s version is the Sum is trust money that Miss Chan asked him to invest on her behalf. 27.He relies on the following messages:
28.According to the above messages, when the parties discussed about that $200,000, both of them treated it as Miss Chan’s money. Miss Chan mentioned “Hey, hey $200,000 … What service will you provide?” and Mr Tsoi answered “The aim is to lose all for you … hahaha”; and Mr Tsoi said “If market opens on Monday, there’s every chance that you would only have 30% or less left from your $200,000, scary right?” and Miss Chan showed her confidence on Mr Tsoi by saying “Oh … You can weather any storm”; and Mr Tsoi said “Don’t you remember that you only have $23,233.42 left?” 29.Further, on 11 May 2008, Miss Chan mentioned “Hay, hay, $200,000 … what service (will you) provide?”, then on 16 May 2008 the Sum was transferred. It matches with Mr Tsoi’s version that the Sum is trust money. 30.Mr Tsoi mentioned that he had kept Miss Chan fully informed about the investment he made on her behalf; and he produced the monthly summaries in respect of the months of May and June 2008 which set out all the transactions during that period [B1/51, § 19 & 56 – 60]. 31.It is also confirmed by the above messages that Mr Tsoi sent files to Miss Chan from time to time. 32.There is no rebuttal evidence from Miss Chan that Annexure 1 and 2 were not the files that were sent by Mr Tsoi to her. 33.At first sight, the tables on B1/56 & 57 are very confusing and difficult to understand. However, if one replaces the headings 收入 (income) and 支出 (expenses) with “cash in hand” and “warrants in hand”, the tables will make sense. According to the table on B2/56, at the beginning, on 19 May 2008, Mr Tsoi had cash $200,000 in hand that he recorded as income, then he bought in several warrants on 22 and 23 May 2008 (warrants in hand) that he recorded as expenses; he also sold out a warrant on 23 May 2008, which increased his cash in hand as recorded in income. 34.I accept the tables were contemptuous monthly summaries that Mr Tsoi sent to Miss Chan concerning the transactions carried out by him on her behalf. 35.The above tables also tally with Mr Tsoi’s version and the MSN messages that Miss Chan had suffered a substantial loss within two months. 36.On 27 June 2008, after Mr Tsoi told Miss Chan that “Don’t you remember that you only have $23,233.42 left?” Miss Chan’s response was “Lost 90% … shxt …” Such intense response indicated that Miss Chan treated the loss very personal and it supports the case that the Sum is trust money. If the Sum is a loan, Miss Chan should be very anxious if Mr Tsoi could repay it; however, there is no MSN message to show Miss Chan demanded Mr Tsoi for repayment. 37.On the balance, I accept Mr Tsoi’s version[3]. Conclusion 38.For the reasons above, I dismiss Miss Chan’s claim. 39.I make costs order nisi that costs be to Mr Tsoi, to be taxed if not agreed; if parties do not apply to vary the same within 14 days, the costs order nisi will become absolute. 40.I grant counsel’s certificate and thank for both counsel’s assistance.
Mr Minju Kim, instructed by Lam & Co for the plaintiff Mr Chan Man Hon Edward, instructed by Cham & Co for the defendant [1] Means p.169 of Hearing Bundle 2. [2]“In the beginning of 2008, I sold my unit and got cash of around $460,000, repaying the Defendant in full on 2 separate occasions.” [3] Mr Tsoi accepts that after Miss Chan’s sum reduced to HK$23,233.42, upon her request, he made further investment for her and eventually, the sum increased to HK$41,126.54, which he is willing, able and ready to repay to her. | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||