楊曉英 v. Sze Kai Lung
Read the full judgment text of HCA 2452/2014 on BabelCite. This High Court CFI judgment was delivered on 13 August 2019.
1. This is a rather straightforward case. The plaintiff, as creditor,claims against the defendant, as debtor, for the repayment of an outstandingdebt in the sum of RMB 1,751,073.84 (“the Debt”). The plaintiff’s Statement of Claim was filed on 19 October 2016 and subsequently re-amended on 7 September 2018.
Cites 2 cases
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HCA 2452/2014 [2019] HKCFI 2089 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE ACTION NO 2452 OF 2014 ____________
____________ Before: Deputy High Court Judge William Wong SC in Court Date of Hearing: 13 August 2019 Date of Judgment: 13 August 2019 _____________________ J U D G M E N T _____________________ 1.This is a rather straightforward case. The plaintiff, as creditor,claims against the defendant, as debtor, for the repayment of an outstandingdebt in the sum of RMB 1,751,073.84 (“the Debt”). The plaintiff’s Statement of Claim was filed on 19 October 2016 and subsequently re-amended on 7 September 2018. 2.The defendant has only filed a defence containing bare denials and puts the plaintiff to strict proof. The defendant has not even filed any evidence to put forward a positive case. 3.Apart from bare denials, the only defence put forward by the defendant is that the governing laws of the loan between himself and the plaintiffare the laws of the Mainland. However, the defendant has not adduced any expert evidence on the laws of the Mainland to support his defence. 4.One day before the trial, the defendant filed a notice to act in person and sought an adjournment of the trial so that he could find a new set of lawyers. 5.On the very day of the trial, the defendant simply chose to be absent. 6.In the circumstances, I am of the view that the proper course is to proceed with the trial as scheduled. There are no good reasons as to why this trial should be adjourned. 7.The plaintiff duly gave evidence in this trial. Her evidence is not challenged and I find her version of events to be credible. In any event,her evidence is corroborated by contemporaneous evidence. I make the following factual findings. Factual findings 8.In or around January 2014, one Chan Pik Fan (“Chan”), common friend of both the plaintiff and the defendant, asked the plaintiff whether she could provide a short-term loan to the defendant. 9.As the defendant did not have a bank account in the Mainland,the loan was agreed to be deposited into the account of the defendant’s relative, a Mr Sze Chun Fai (“Mr Sze”). 10.The basic terms of the loan were:
11.I also accept the plaintiff’s case that the plaintiff did tell the defendant that the defendant should first pay her a sum of RMB 100,000 as earnest money, and that the plaintiff should have a discretion to deduct part or whole of the sum as interest depending on the time of repayment. If the defendant could repay the RMB 2,000,000 loan in time, the earnest money would be returned to the defendant. The defendant duly accepted this arrangement. The loan did not otherwise include interest as the plaintiff considered the loan to be a short-time loan advanced on a friendly basis. 12.On 22 January 2014, the plaintiff sent a draft loan agreement to the Defendant. On the same day, the defendant, through his secretary, by email, sent back a copy of the loan agreement duly signed by him. Chan also signed as a guarantor for the loan. 13.The original of this loan agreement (“the January Loan Agreement”) was then sent back to the plaintiff in Chengdu albeit that the agreement stated that it was signed in Chengdu. The reason is that the plaintiff thought that the January Loan Agreement would be signed in Chengdu. 14.On 24 January 2014, the earnest money in the sum of RMB 100,000 was duly transferred from Mr Sze’s account to the plaintiff’s account. 15.On 27 January 2014, the plaintiff transferred the sum of RMB 2,000,000 to Mr Sze’s account pursuant to clause 2 of the January Loan Agreement. 16.On the same date, the defendant and Chan duly signed a receiptacknowledging that the defendant had received the loan of RMB 2,000,000. 17.On 25 March 2014, the defendant again, through his secretary,emailed back a new agreement which in effect extended the time for repayment of the loan to 26 April 2014 (“the March Agreement”). 18.In around late April 2014, the defendant failed to repay the loan. He further requested the plaintiff to extend the time for repayment for one month. Accordingly, the plaintiff and the defendant entered into a further new agreement dated 25 April 2014 extending the time for repayment to 26 May 2014 (“the April Agreement”). 19.Once again, the defendant failed to repay by 26 May 2014. Naturally, the plaintiff kept chasing the defendant for repayment. 20.The plaintiff said that she would agree to further extend the time for repayment to 26 June 2014, but a new agreement would have to be signed to replace the previous agreements. The defendant duly accepted. Accordingly, a new agreement backdated to 22 January 2014 was executed by the parties to supersede all previous agreements (“the July Agreement”).The July Agreement also attached a receipt from the defendant which duly recorded that the defendant had received the loan amount of RMB 2,000,000 on 27 January 2014. 21.The July Agreement contains the following material terms:
22.I accept the plaintiff’s evidence that on 16 July 2014, the plaintiff, the defendant and Chan met in the International Financial Centre,Central, Hong Kong. I also find that during the said meeting:
23.I have no difficulties in finding that:
24.Further, in emails dated 7 January 2015 and 13 February 2015,from the defendant to Chan, the defendant unequivocally admitted that he owed the loan to the plaintiff and simply asked for more time to arrange the repayment. The governing laws issue 25.The defendant raised the point that the July Agreement is governed by the laws of the Mainland. That is, of course, true. But I agree with Mr Man for the plaintiff that I do not know where it gets the defendant. As the defendant chose not to adduce expert evidence on the laws of the Mainland, the legal position is that Hong Kong laws apply. (See Johnston,The Conflict of Laws in Hong Kong (3rd ed, 2017) at §§2.076 – 2.077.) 26.Mr Man for the plaintiff further submitted that as a matter of our own domestic law, our contract laws is largely based on our common law jurisprudence albeit that some areas of our contract laws are governed by statutory provisions. I agree. In my view, the governing laws issue cannot legitimately operate as a defence to the defendant’s undisputable debt to the plaintiff. Disposition 27.For the above reasons, I find that the plaintiff has duly proved her case and a judgment should be entered in her favour. 28.As far as interest is concerned, I agree with Mr Man for the plaintiff that parties are free to backdate a contract such that it can take effect retrospectively (see Northern & Shell plc v John Laing Construction Ltd[2002] EWHC 2258 (TCC) at §§38 and 40; affirmed by the English Court of Appeal in [2003] EWCA Civ 1035 at §§19, 23, 51 and 52. These two decisions were cited with approval in Achieve Goal Holdings Ltd v Zhong Xin Ore-Material Holding Co Ltd [2018] HKCFI 2718 (HCA 1987/2005, unreported, 15 December 2018), at §267, per Au-Yeung J. 29.As such, the plaintiff is entitled to claim interest at the contractual rate from 27 January 2014 up to the date of the judgment, and thereafter at the judgment rate. 30.Accordingly, I make the following orders:
31.Finally, it remains for me to thank Mr Man for the plaintiff for his helpful assistance to this Court.
Mr James Man, instructed by Tony Kan & Co, for the plaintiff The defendant was not represented and did not appear | |||||||||||||||||||||||||