Fang Yue and Others v. Shing Yim Ping

HCA 845/2022

[2026] HKCFI 3540

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 845 OF 2022

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D E C I S I O N

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A.  INTRODUCTION

1.After the trial in these proceedings, on 12 March 2026, I handed down a judgment (“Judgment”)[1] in which I allowed Ps’ claim against Shing and ordered Shing to pay the Outstanding Sum together with interest to Ps. Subsequently, Shing lodged an appeal against the Judgment, ie CACV 373/2026. By a summons dated 8 May 2026 (“the Stay Summons”), Shing seeks an order to stay the execution of the Judgment pending the determination of the appeal.

2.I have directed that the Stay Summons be determined on paper without an oral hearing. In this application, Ms Ellen Pang, together with Mr Charlie Liu, represent Shing. Mr Byron Chiu represents Ps. The parties have lodged their respective written submissions pursuant to the Court’s directions. This is my decision on the Stay Summons. For ease of reference, the abbreviations used in the Judgment are adopted herein.

B.  DISCUSSION

B1.  Minimum requirement - an arguable appeal

3.The existence of an arguable appeal (that is, one with reasonable prospects of success) is the minimum requirement before a court would even consider granting a stay. If there is no arguable appeal, no stay would be granted, however exceptional the circumstances may be otherwise justifying a stay of execution.[2]

4.There are 4 grounds of appeal in the Notice of Appeal in CACV 373/2026. For the purpose of the Stay Summons, Shing is only relying upon Grounds 1 and 2.

5.Shing attempts to challenge the findings of fact made by this Court after trial. The principles governing an appeal against a trial judge’s findings of facts are well-established. Recently, those principles have been reiterated by Au JA in Hui Wing Sze v Chiu Ka Leung[3], in which the learned judge said:

“21. The principles governing an appeal against a trial judge’s findings of fact are also well-established. In gist, the appellate court will only interfere when it is satisfied that the judge had erred in principle and/or that the findings are “plainly wrong”. Under the “plainly wrong” test, the court has to be satisfied that the trial judge had fallen into palpable error in his finding of fact, such as where the finding was one (a) which there was no evidence to support; (b) which was based on a misunderstanding of the evidence; (c) where the judge had taken into account irrelevant evidence or failed to take into account relevant evidence; or (d) which no reasonable judge could have reached. The threshold faced by an appellant is very high.

22. In this respect, it is also trite that the assessment and weight of evidence is generally and primarily a matter for the trial judge, and it is neither a proper ground of appeal nor the purpose of an appeal to allow a second attempt by the appellant to re-run submissions on the evidence with the hope that the appellate court may come to a different view. In reviewing the findings of fact by a trial judge, the Court of Appeal’s role is limited and it will not conduct a re-assessment of the evidence simply because the appellant submitted that more weight should be given to one piece of evidence as opposed to another.” (Emphasis added)

6.The following reminder given by Lam VP (as he then was) in Progetto Jewellery Co Ltd v Lau Chiu Ying and Another[4] should also be borne in mind:

“23. In reading the judgment, one must bear in mind the observation of Lord Hoffmann in Biogen Inc v Medeva Plc [1997] RPC 1 at p.45:

‘The need for appellate caution in reversing the trial judge's evaluation of the facts is based upon much more solid grounds than professional courtesy. It is because specific findings of fact, even by the most meticulous judge, are inherently an incomplete statement of the impression which was made upon him by the primary evidence. His expressed findings are always surrounded by a penumbra of imprecision as to emphasis, relative weight, minor qualification and nuance ... of which time and language do not permit exact expression, but which may play an important part in the judge's overall evaluation.’

24.  As the courts have often stated, the assessment of evidence and credibility of witnesses were primarily the task of a trial judge. The Court of Appeal would not re-assess the evidence afresh on its own unless an appellant can show that there were palpable errors in the assessment or the trial judge had gone plainly wrong in his assessment: see Ting Kwok Keung v Tam Dick Yuen [2002] 3 HKLRD 1; Singh Harjit v Determination Business Ltd CACV 68/2015, 24 November 2015; China Gold Finance Ltd v CIL Holdings Ltd CACV 11/2015, 27 November 2015. ……”

B2.  Ground 1 – Failure to Appy the Correct Legal Framework: Intention to Create Legal Relations[5]

7.Shing’s contentions:

(1)  In Ho Lai King v Kwok Fung Ying[6], the Court of Appeal said:

“48. …… in respect of agreements between family members, the presumption means that (as opposed to agreements between commercial parties) the onus is reversed: it lies on the party who contends there was an intention to create legal relations to establish such intention. ……”

(2)  There is no quarrel with the general principles stated in Big Island Construction HK Ltd v Wu Yi Development Co Ltd and Another[7] cited in Judgment §20. However, the principle set out in 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[8] cited in Judgment §21 is at odds with the Court of Appeal’s decision in Ho Lai King.

(3)  At the material times, Fang and Shing were in a romantic relationship. Applying the principle laid down by the Court of Appeal in Ho Lai King, the burden is on Fang to prove that the contested sums were loans from Ps to Shing. However, this Court erred in failing to appreciate the correct approach on burden of proof.

(4)  A genuine and arguable question arises as to the correct approach on burden of proof in this case. This element of intention to create legal relations, though squarely raised in Shing’s written opening and closing submissions at the trial, did not feature in the Judgment’s reasoning. Instead, the Court resolved the contest primarily as one of pure credibility at Judgment §§36 and 53-54.

(5)  It is far from incredible that monies (or some of the monies) were advanced without any legal intention to create an obligation to repay. Had the correct burden been applied, the outcome on one or more of the Loan Agreements may well have been different. It is reasonably arguable that if the analysis in Ng Kit is not followed on appeal, a retrial should be ordered.

8.My view:

(1)  As said by the Court of Final Appeal in Big Island Construction, “[o]ne should look to the burden of help as a last resort”.

(2)  It is pertinent to note the following exchanges between the bench and Shing’s counsel (not Ms Pang or Mr Liu) while counsel was making opening submissions in the trial:

“MR YAN: …… And also, we agree with my learned friend that the burden of proof, the principle on the burden of proof will only kick in when my Lord cannot find from the facts one way or the other. If you, my Lord, of course, can find this is a loan and this is not a loan, then it dispose the matter. There’s no need to resort to...

COURT: I think only if I refuse to accept the plaintiffs’ evidence and I also refuse to accept the defendant’s evidence, then there would be no evidence before me. Then I have to consider the burden of proof.

MR YAN: Precisely, precisely.”[9] (Emphasis added)

(3)  Both Ps and Fang have adduced evidence in support of their respective cases at the trial. At the trial, the parties were in agreement that the burden of proof would only kick in if the Court cannot regard the evidence as adduced by either side as true. This agreed position was accepted by this Court.

(4)  After hearing the live evidence from the witnesses and considering the evidence, this Court accepted Ps’ evidence and rejected Shing’s evidence. This Court found that Ps’ case was true and Shing’s case was untrue.

(5)  This Court’s approach is consistent with the guidance given by the Court of Final Appeal in Big Island Construction (set out in Judgment §20) and is consistent with the position agreed by the parties at the trial. With respect, I do not see any arguable error in this Court’s approach.

(6)  Shing’s attack against the Ng Kit case is a red herring. For the sake of discussion, even assuming that the principle in Ng Kit (as set out in Judgment §21) should be revisited for some reason, this would not affect the analysis as set out in the above.

9.In my judgment, Ground 1 is unarguable.

B3. Ground 2 – Universal Credibility-Based Approach[10]

10.Shing’s contentions:

(1)  The conclusion that all sums advanced by Fang were loans is heavily impacted by the overall credibility assessment of Shing: Judgment §55. Even though this Court was entitled to make an adverse credibility finding against Shing, the manner in which that finding was deployed is independently arguable.

(2)  It is unsatisfactory to first form a general view of a witness’s credibility and then apply it uniformly, without evaluating inconsistencies between testimony and other evidence as part of the overall assessment.[11] A wholesale negative credibility finding applied mechanically across all transactions is also unsatisfactory. An example is Pang Kam Chuen v Pang Kam Bor[12].

(3)  In this present case:

(a)  The high watermark of this approach is Judgment §55, where the Court characterised Shing’s evidence on the Sebastian Loan Agreement as “a pack of lies” which “has an adverse impact on the overall credibility and reliability of her evidence”, a finding that then infected the entirety of the analysis on every other category. At Judgment §§36-37, this Court also made a global positive credibility finding in favour of Fang and a global adverse credibility finding against Shing.

(b)  That global assessment was then deployed as a near-uniform basis for resolving the disputes in each category: §53-54 (Sebastian Loan Agreement); §83 (Shares Loan Agreement); and §85(1) (Other Loan Agreements). Critically, at §85(1) it was expressly reasoned that “For the reasons set out in the above, I regard Fang as an honest and reliable witness, and I am of the view that Shing is an untruthful and unreliable witness. On this basis, as to the nature of these payments, I prefer Fang’s evidence”, without separately examining whether the individual payments within each category, in particular the smaller RMB-denominated sums under the Sebastian Loan Agreement and the Other Loan Agreements, might bear a different character consistent with gifts given the circumstances and amounts involved.

(c)  This global credibility-based approach permeated and infected the other factual findings as well.

11.My view:

(1)  It is well established that when a witness’s evidence has been discredited over one or more contentious matters in the case, this is relevant to the overall assessment of the witness’s evidence. See Judgment §23.

(2)  Ps’ case is that the contested sums in this case fall within four categories: (a) sums covered by the Sebastian Loan Agreement; (b) sums covered by the Property Loan Agreement; (c) sum covered by the Shares Loan Agreement; and (d) sums covered by the Other Loan Agreements.

(3)  The analysis concerning each category has been clearly set out in the Judgment: (a) analysis on the Sebastian Loan Agreement (Judgment §§43-55); (b) analysis on the Property Loan Agreement (Judgment §§56-70); (c) analysis on the Shares Loan Agreement (Judgment §§71-83); (d) analysis on the Other Loan Agreements (Judgment §§84-85). One can see from the Judgment that in each category, the analysis and the conclusion are not only based upon the fact that Shing’s evidence is unreliable. This Court has also considered the contemporaneous documentary evidence, the evidence given by all the witnesses, common sense and inherent probabilities in the analysis concerning the sums in each category.

(4)  With respect, I am not convinced that Shing can arguably meet the very high threshold required in an appeal against findings of fact made by the trial judge.

12.In my judgment, Ground 2 is also unarguable.

B4.  Conclusion

13.For the reasons set out in the above, I am of the view none of the grounds relied upon by Shing is arguable. As said in the above, the existence of an arguable appeal is the minimum requirement before a court would even consider granting a stay. Since Shing has failed to satisfy this minimum requirement, the Stay Summons must be dismissed.

C.  DISPOSITION

14.I dismiss the Stay Summons.

15.Costs should follow the event. I order that costs of the Stay Summons be paid by Shing to Ps forthwith, and those costs be summarily assessed. Ps have lodged a statement of costs dated 29 May 2026. There be leave to Shing to lodge and serve a list of objections (limited to 2 pages) in response to that statement of costs within 7 days.

16.Lastly, I must thank all counsel for the very helpful assistance provided to the Court.

Mr Byron Chiu, instructed by Patrick Chu, Conti Wong Lawyers LLP, for the 1^st to 3^rd Plaintiffs

Ms Ellen Pang and Mr Charlie Liu, instructed by Lau, Chan & Ko, for the Defendant