Wong Chau Pan v. Poon Chuk Ying
Read the full judgment text of DCCJ 3119/2020 on BabelCite. This District Court judgment was delivered on 17 April 2024.
1. This is a case about financial dealings between two co-workers whilst they were in a romantic relationship and shortly after such a relationship ended.
Cites 4 cases
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DCCJ 3119/2020 [2024] HKDC 555 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CIVIL ACTION NO 3119 OF 2020 --------------------------------------- BETWEEN
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------------------------ JUDGMENT ------------------------ A. Introduction 1.This is a case about financial dealings between two co-workers whilst they were in a romantic relationship and shortly after such a relationship ended. 2.The Plaintiff (“P”) and the Defendant (“D”) were co-workers of an insurance company and developed a romantic relationship around the end of 2015. This relationship later ended in around the end of 2016. There were various monetary transactions from P to D during and after that period. The question is whether D is liable to return the money she received from P. 3.D participated in the earlier stages of the action and filed her defence and documentary evidence. However, D did not file any witness statement and did not attempt to call any witness to testify. D was further absent during various subsequent interlocutory hearings. 4.D was absent during the trial. Having been satisfied that D had been properly notified about the trial dates and venue, the Court decided to proceed with the trial despite D’s voluntary absence. B. P’s Case 5.P’s claim against D is for the sum of HK$103,000, being the total amount loaned and transferred by P to D at D’s request and repayable on demand between January 2016 and April 2017 without interest. 6.The sum is an aggregate of eight different transfers by way of bank remittance to D’s account with the Hongkong and Shanghai Banking Corporation Limited as follows (referred to as “Eight Payments” in aggregate and as “Payment x” individually hereinbelow):
7.D refused to repay these payments despite repeated demands. 8.P as the only witness orally testified during the Trial. Since D was absent, I raised various questions based on the case pleaded by D. P provided evidence in an honest, frank, coherent, and logical manner. His evidence is reasonable and well supported by documentary evidence. He is also frank and direct in admitting the defects of his evidence such as the lack of written messages in respect of some payments. He is willing and ready to provide further particulars in a detailed and honest manner when asked. After careful consideration of the content of the witness statement, the documentary evidence filed by both parties, the oral answers given, the demeanour exhibited whilst giving those answers in the witness box, and the overall circumstances, I find P’s evidence to be generally credible and reliable. This is particularly so when D chose not to provide any oral evidence to support her pleaded case or to rebut P’s evidence. 9.During the closing submissions, P confirmed that he is not asking for any interest before the commencement of this action and is only asking for interest at the judgment rate from the date of the Writ of Summons. C. D’s Case 10.D filed a defence denying P’s claims. 11.D admits the receipt of Payments 2, 3, and 5-8 particularised hereinabove in the total sum of HK$97,000 by denying the receipt of Payments 1 and 4 which add up to HK$6,000. 12.D avers that Payments 2, 3, 5 and 6 were made as gifts by P out of his love and affection as D’s boyfriend during their romantic relationship and further avers that Payments 7 and 8 were made by P also as gifts as “a small token (小小意思)” to buy food even though this occurred after the romantic relationship had ended. D. Issues 13.In light of the above cases of the parties, there are two major issues in the present action:
E. Issue 1: Payments Made 14.The first issue is relatively straightforward. 15.P has adduced evidence of his bank statements which clearly recorded a transaction of HK$4,000 on 22 January 2016 to the bank account of 558-9-037901, which is the same account of the destination of the other 6 payments from P to D that D admitted. Similarly, a transaction to the same account on 26 November 2016 in the sum of HK$2,000 could be readily seen from P’s bank statement. 16.Payment 1 is further supported by a WhatsApp message dated 22 January 2016 from D specifically requesting to borrow HK$4,000 from P for the purpose of repaying certain previous debt to a person named “曹正”. Similarly, Payment 4 was preceded by a specific request from D by way of WhatsApp messages sent in the evening of 26 November 2016. 17.No evidence has been adduced by D to contradict such cogent evidence. 18.As a result, the bare assertion in the Defence can hardly stand. I find that P had indeed transferred a total sum of HK$103,000 to D through the Eight Payments between 22 January 2016 and 23 April 2017 in the manner pleaded in the Statement of Claim as already discussed hereinabove. F. Issue 2: Gift or Loan 19.The second issue is a bit more complicated and consists of two sub-issues:
20.It is opportune to clarify the relevant legal principles of these two connected but distinct concepts first. F.1 The Applicable Law on Gift 21.The relevant principles on gift have recently been very helpfully summarised by DHCJ Paul Lam SC in the case of Ng Kit, the legal representative and the sole beneficiary of The Estate of Ng Kwun Yuen (吳坤元) deceased v Wu Tsun Hua and Ors, [2021] HKCFI 877 at §33 as follows:
F.2 The Applicable Law on Intention to Create Legal Relations 22.It is trite that the mere existence of an agreement is not sufficient, there has to be an intention of creating legal relations for an agreement to be legally binding. 23.In the family context, agreements without legal intention to be binding are more often found as illustrated in Balfour v Balfour [1919] 2 KB 571 at 579-579:
24.The ultimate test is to consider what was communicated between the parties in all the circumstances and decide whether, as understood by a reasonable person, the true inference is that they intended to create legal relations: Jones v Padavatton [1969] 1 WLR 328 at p 332G; Ho Lai King v Kwok Fung Ying [2020] 4 HKLRD 253 (CA) at §43. 25.Further guidelines have been provided in the following manner:
26.A presumption may arise in the contexts of family members, at least between close members such as husband and wife and parent and child. This was explained in Jonas v Padavatton at p 332G as follows:
27.It was previously suggested that such presumption is a “strong one”, however, this was recently disapproved by the Hong Kong Court of Appeal in Ho Lai King v Kwok Fung Ying at §§47-48, reversing the ruling of the DHCJ Keith Yeung SC in this respect, holding that this is nothing but a presumption of fact reversing the burden of proof, the strength or usefulness of which depends very much on the facts and circumstances of each case:
28.The relevant factors summarised in the first instance judgment adopted by the Court of Appeal are as follows ([2019] HKCFI 224 at §60):
F.3 Analysis 29.During the trial, P explained that the romantic relationship between him and D was an intimate one, but they were not living together and were financially independent. When they were dating, P would generally pay more but not all of the expenses. For example, P and D may go on trips together whilst P would pay for the hotel accommodation, they would pay for their own airfare independently. P explained that these Eight Payments were different from the expenses that he willingly paid because they were made to D at the specific request to borrow for her own benefit and expressly agreed to be a loan between the two of them. On the contrary, those other expenses that he paid were for the benefit of both of them. 30.P explained in detail the background and purposes of these Eight Payments, in particular:
31.It is noted that not every payment was fully documented as to the reason, the background and the purpose of these payments. P frankly admitted that some payments were made at the oral requests of D but he was able to provide details of those oral conversations and requests. In particular, as I already explained above, when asked further, P was willing and ready to explain further details of the relevant circumstances of these payments in line with his pleaded case. 32.Having considered all the circumstances, and bearing in mind the relevant legal principle that the ultimate test is to consider what was communicated between the parties in all the circumstances to determine the true inference to be drawn by a reasonable person, I find that there was indeed an intention to create a legal loan repayable upon demand between P and D in respect of all the Eight Payments. My reasons are as follows. 33.Firstly, the relationship between the parties was close but far from being familial. The parties only started dating at the end of 2015. It was a relatively short relationship. It already had its issues in around June 2016 and it ended by the end of 2016, about one year after its commencement. P and D were intimate and close as usual lovers but they did not live together and did live like a family or anything close to a family. 34.Secondly, it was stated expressly on various occasions when the payments were demanded that they were intended to be loans. The characteristic word “borrow” (“借”) appeared on multiple occasions before the payments were made and sometimes it is coupled with further assurances of repayment (“還”, “轉返”). 35.On some occasions, they were expressly recorded in WhatsApp messages or WeChat messages:
36.For other occasions, P explained that the requests were made orally but the intention to borrow was the same as the other occasions. They were different and distinguishable from those other unrepayable payments he made willingly because these Eight Payments were made for D’s personal benefit, not for the benefit of P and D jointly, unlike those dinner and hotel expenses. 37.I do not lose sight of the fact that for some payments such as Payments 2 and 3, there was no express word borrow “借” and the wording used may be susceptible to the interpretation of a gift such as “give” (“比”), but I consider this description alone to be inconclusive and the overall circumstances should be looked at. 38.There is an anomaly regarding Payment 8 which is discussed in more detail hereinbelow. 39.Thirdly, after the relevant payments were made, P on multiple occasions repeatedly confirmed that those were loans, that P was her creditor and that she would repay the sums she borrowed when she had the money. A lot of these confirmations were by way of written messages. Without repeating all these messages, one message sent by D to P on 8 July 2017 (i.e. after all Eight Payments were made) is particularly telling:
40.Whilst the amount may not be accurate, the clear intention and recognition of the nature of the payments made is indisputable. 41.Fourthly, there were repeated demands for repayment subsequently and D never denied the liability. Facebook messages and letters were adduced showing that P repeatedly demanded repayment in 2019 but D chose to remain silent and never disputed the liability to repay. 42.Fifthly, these payments were a significant burden to P himself. It can be seen from the messages clearly that P himself was not particularly wealthy and had to wait until the date of salary payment before he would have the funds to make those payments to D. P also mentioned on multiple occasions that he was trying his best but he did not have sufficient money to lend to D and only transferred an amount lower than the amount demanded by D. 43.Sixthly, five of the Eight Payments were made after the relationship had encountered issues and three or four of them were made after the relationship had ended. At least insofar as these latter payments were concerned, the burden of proof is not reversed and D bears the burden to prove lack of intention to create legal relation. However, the pattern remains the same. 44.Seventhly, apart from Payment 8, D produced no evidence whatsoever to rebut the evidence adduced by P. 45.In respect of Payment 8, there is a message issued by P on or shortly before 23 April 2017 (i.e. the date when Payment 8 was made) recording that there was a quarrel between P and D the previous evening and P wanted to apologise for what happened. The whole message reads as follows:
46.On this message alone, it may be suggested that this payment was a gift as a token of apology. However, having considered all the circumstances, I would reject this suggestion, because:
47.Given the limited evidence adduced by D, she has fallen far short of discharging the onus of proving the necessary intention of any gift. The only relevant evidence adduced by P in respect of Payment 8 interpreted in all the circumstances is not sufficient to give rise to an intention of gift as I discussed above. 48.Moreover, in light of all the circumstances, I find that the presumption of lack of intention to create legal relations between family members only had very limited, if any, application to the Eight Payments being considered here given the less-than-family relationship between the parties and the fact that many transactions occurred after the relationship had already ended. Insofar as such presumption may be applicable to reverse the burden of proof, P has clearly discharged such burden and demonstrated the intention to create legal relations. G. Conclusion 49.For the above reasons, I find that P’s claim succeeds in its entirety, and he is entitled to repayment of the full sum of HK$103,000 plus interest and costs. 50.P asked for interest to be calculated at the judgment rate from the date of the Writ of Summons, but no evidence or basis has been advanced. I do not see any basis to depart from the usual practice of awarding prime rate + 1% as the pre-judgment rate of interest. 51.Insofar as costs are concerned, the general rule for costs to follow the event should apply. H. Order 52.I therefore order that:
Mr Ng Chi Yeung, of Kent Tam & Co, for the Plaintiff The Defendant was not represented and did not appear | ||||||||||||||||||||||||||||||||||||||||||||||
Cases cited in this judgment