KONEW CAPITAL INTERNATIONAL LTD v. WON GOLD SNAKE formerly known as WONG KONG HEUNG formerly known as WONG KWONG HEUNG CANDY

DCMP 4781/2022

[2026] HKDC 1198

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 4781 OF 2022

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BETWEEN

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DECISION

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Introduction

1.  This is the Defendant’s application by summons dated 5 November 2025 issued pursuant to Order 32 rule 5 of the Rules of the District Court, Cap.336H (“RDC”) to set aside the Order made by Deputy District Judge Alan Ng given on 23 July 2025 (“the Order”). By the Order, the learned Deputy Judge dismissed the Defendant’s appeal against Master Andrea Yu’s Decision made on 28 October 2024[1] to enter judgment on the Plaintiff’s monetary claim against the Defendant in default of notice of intention to defend, pursuant to Order 83A rule 4 and Order 28 rule 4(1) of the RDC.

2.  At the hearing of the appeal before Deputy District Judge Alan Ng on 23 July 2025, the Defendant was absent. Mr Cheung for the Plaintiff has very fairly confirmed to the court that the learned Deputy Judge then went on to dismiss the appeal on that basis, without dealing with the evidence and the merits of the appeal. For an example of such a situation, see e.g. Tsoi Chik Sang Lawrence v Tardi Holdings Limited [2025] HKCFI 2634 (see also Lau Sin v Wong Mary & Others [2018] HKCFI 1094 at paras.23-25). As such, I am of the view that the present situation falls within Order 32 rule 5(4) of the RDC which provides:

“Where an application made by summons has been dismissed without a hearing by reason of the failure of the party who took out the summons to attend the hearing, the Court, if satisfied that it is just to do so, may allow the summons to be restored to the list.” [underline added]

3.  The Plaintiff objects to the application on the ground that the Defendant has advanced no good reason to justify an order to restore her appeal from Master Yu’s Decision and to have it re-heard.

Background

4.  The facts of the case have already been set out in detail in paragraphs 4 to 9 of Master Yu’s Decision dated 28 October 2024. In summary:

(i) The Plaintiff is a licenced money lender in Hong Kong, and the Defendant, being the registered owner of Flat No.2610 on 26^th Floor, Tai On Building, Nos.57-87 Shau Kei Wan Road, Hong Kong (“the Property”) has been a repeat borrower and customer of the Plaintiff;

(ii) On 13 January 2021, the Plaintiff lent to the Defendant a sum of HK$2,000,000 (“the 1^st Loan”) to be repaid by 180 monthly instalments, at an interest rate of 16.80% per annum, pursuant to a loan agreement in Chinese (“1^st Loan Agreement”);

(iii) On 8 December 2021, the Plaintiff lent to the Defendant another sum of HK$400,000 (“the 2^nd Loan”), to be repaid by 60 monthly instalments, also at the interest rate of 16.80% per annum, pursuant to another loan agreement in Chinese (“2^nd Loan Agreement”);

(iv) The 1^st Loan Agreement and the 2^nd Loan Agreement were secured by mortgages in favour of the Plaintiff granted by the Defendant over the Property;

(v) The Defendant defaulted in repaying the monthly instalments of the 1^st Loan since 10 August 2022 and of the 2^nd Loan since 5 August 2022. Under clause 8(a) of each of the 1^st Loan Agreement and the 2^nd Loan Agreement, the whole balance of the 1^st Loan and the 2^nd Loan and all accrued interest became immediately due and payable;

(vi) Despite repeated requests and demands by the Plaintiff, the Defendant has failed to pay the whole outstanding balance to the Plaintiff.

5.  The Plaintiff filed the Originating Summons herein on 15 December 2022. The Defendant filed an Acknowledgement of Service on 3 January 2023 expressing her intention to contest the case, but she did not file any Notice of Intention to Defend.

6.  As set out in paragraphs 10 and 11 of Master Yu’s Decision, by her affirmations filed in opposition to the Plaintiff’s application for default judgment under the Originating Summons, the Defendant claims that she has a valid defence as follows:

(a) The Plaintiff did not keep its alleged promise to cancel the registration of the original or previous mortgage dated 23 December 2019 over the Property prior to her entry into the 1^st Loan Agreement;

(b) The Defendant also alleges that she was misleadingly persuaded by a staff member of the Plaintiff to enter into the 1^st Loan Agreement and the 2^nd Loan Agreement, as a result of which the Defendant has commercially lost out as she had to pay extra interest compared to another potential loan agreement with another finance company and the financing structure of the 1^st Loan Agreement and the 2^nd Loan Agreement affected her future borrowing power;

(c) The Plaintiff had charged compound interest, hence the 1^st Loan Agreement and the 2^nd Loan Agreement were illegal;

(d) The Defendant also relies on a counterclaim of HK$10,000,000, representing alleged financial hardship or loss caused to her as a result of the Plaintiff’s alleged actions.

7.  After indicating that she was satisfied that the requirements under sections 18(1) and 18(2) of the Money Lenders Ordinance, Cap.163 (“MLO”) had been complied with, and that the interest charged was not in contravention of sections 24 and 25 of the MLO, the learned Master went on to consider the other evidence. She concluded that there was no merit in the Defendant’s alleged defence. In particular, the learned Master found that the non-cancellation of the original mortgage bears no relation at all to the Defendant’s current liability under the 1^st Loan Agreement and the 2^nd Loan Agreement. Also, the learned Master found that the Defendant’s allegation of the Plaintiff’s misrepresentation is not believable, as the Defendant did not dispute that she could read English, and was commercially experienced in taking out loans. She also did not dispute that she had signed the 1^st Loan Agreement and the 2^nd Loan Agreement.

8.  As for the Defendant’s allegation of commercially losing out as she had to pay extra interest compared to another potential loan agreement with another finance company, the learned Master found that factually, no compound interest was charged, and the Defendant’s alleged counterclaim, which is unparticularised, has no substance.

9.  As such, the learned Master took the view that there are no triable issues and granted money judgment against the Defendant on 28 October 2024.

10.  As aforesaid, the Defendant then lodged an appeal against Master Yu’s Decision and the hearing was scheduled to be heard on 23 July 2025 before Deputy Judge Alan Ng, which she has failed to attend.

Discussion

11.  In order for the court to exercise its power under Order 32 rule 5(4) of the RDC to restore a summons for it to be heard again, it is for the party who failed to attend the hearing to demonstrate that it is just to do so – see e.g. Lau Sin (supra) at para 26.

12.  The Plaintiff says that based on the very limited evidence adduced by the Defendant, she has advanced no good reason to justify an order to restore her appeal and to have it re-heard.

13.  Firstly, in explaining her absence at the hearing of the appeal fixed on 23 July 2025, the Defendant said that she was admitted into hospital on 21 July 2025. Attached to her letter sent to the court on 24 July 2025 (i.e. the day after her appeal was dismissed), she submitted a hospital discharge slip of Pamela Youde Nethersole Eastern Hospital which shows that she was already discharged by 9:34 am on 23 July 2025. Despite this, the Defendant did not attend the hearing scheduled at 10 am on that day, there being no indication from the Defendant that she was not aware of the date and time fixed for the hearing.

14.  At the hearing before me, I enquired with the Defendant on the time of her discharge from the hospital on 23 July 2025, and she indicated that despite the time shown on the discharge slip, she was in fact told she could only leave the hospital around noon on that day.

15.  It seems that there is thus evidence that the Defendant was indeed admitted into the said hospital on 21 July 2025, and was only discharged, at least earliest only at 9:34 am on that day. There seems to be no other evidence to contradict the Defendant’s explanation.

16.  In fairness, even if I accept the Defendant’s explanation for her absence, the Plaintiff submits that the court can consider the merits of the Defendant’s appeal. In this regard, the Defendant has to demonstrate that her intended appeal has a reasonable prospect of success or that there is a question that should be considered by the appellate court in the interest of justice – see e.g. Ego Finance Ltd v Ju Lui [2021] HKDC 651 at para.38 per HH Judge Simon Leung (as he then was).

17.  The Plaintiff submits that in her affirmation in support of the appeal, the Defendant has not explained why a hearing of the appeal is justified on the merits, i.e. her appeal against Master Yu’s Decision has a reasonable prospect of success. For the reasons set out in Master Yu’s Decision, the Plaintiff submits that the Defendant’s intended appeal is doomed to fail in any event.

18.  Having considered the evidence of the Defendant, I agree with the reasons set out in Master Yu’s Decision made on 28 October 2024 to enter judgment on the Plaintiff’s monetary claim against the Defendant. I agree with the Plaintiff’s submissions that on the materials before the Court and the alleged defence put forward by the Defendant, the Defendant’s appeal is doomed to fail in any event.

19.  On the Plaintiff’s evidence[2], there can be no dispute that the Plaintiff was at the material times a duly licenced money lender under section 23 of the MLO. The relevant notes or memorandum forming parts of the 1^st Loan Agreement and the 2^nd Loan Agreement also set out the terms required under section 18 of the MLO, including the relevant parties to the agreements, the amounts of the principal loans, the terms of repayment, the forms of security and the rates of interest charged, as well as declarations as to the place of negotiation and completion of the agreements. As such, section 18(1) and (2) of the MLO had also been complied with.

20.  Further, as already observed by the learned Master, the interest rate charged at 16.8% per annum does not exceed 48% and is not in contravention of sections 24(1) and (2) and 25 of the MLO, nor has any compound interest been charged or that the rate or amount of interest charged would increase by reason of any default in payment, in contravention of section 22 of the MLO. The Plaintiff’s evidence[3] also confirms that the Plaintiff has never received any money or collected any costs or expenses from the Defendant with regard to the negotiation for the loan agreements. There is thus, contrary to what the Defendant submits, no violation of section 27 of the MLO.

21.  The learned Master was also duly satisfied that the procedural requirements under Order 83A and Order 88 of the RDC have been complied with.

22.  I also agree with the learned Master that the non-discharge of the original mortgage dated 23 December 2019 over the Property is neither here nor there for the purposes of this action. There is also no basis for the Defendant’s allegation that she was misled into entering into the loan agreements with the Plaintiff, or that she was made to pay higher interest as a result of a misleading and fraudulent statement made by a Miss Tong of the Plaintiff. In fact, it is the Plaintiff’s case that there was no such Miss Tong working for the Plaintiff at the material times.

23.  On the evidence, it is clear that the Defendant, being an experienced and repeat borrower, could not have been misled by the Plaintiff and thereby suffering loss of a better alternative financing structure as she has alleged.

Conclusion

24.  For the above reasons, I am of the view that the intended appeal by the Defendant has no reasonable prospect of success, and is doomed to fail in any event. There is no other reason in the interest of justice for the appeal to be heard. It will not be just to restore the hearing of the appeal in such circumstances.

25.  I should also mention that at the hearing before me, the Defendant has also sought to repeat her previous application for discovery of copies of the audio records of the conversations between the staff of the Plaintiff and the Defendant during the negotiations for the loan agreements. She also repeated her complaint that the audio record of the hearing on 23 September 2024 before Master Yu previously provided to her did not include discussions between the Plaintiff’s counsel and solicitor. Such applications and issues have already been dealt with by Deputy Judge Damian Wong in his Decision dated 7 May 2025, whereby the learned Deputy Judge has dismissed the Defendant’s application for discovery, and has subsequently also refused to grant leave to appeal against the said Decision[4]. As such, it is inappropriate for me to deal with any such repeated applications, and I would not accede to the same.

26.  Coming back to the Defendant’s application to restore the appeal, on the above considerations, I do not think it is just to restore the hearing of the appeal.

27.  I therefore dismiss the Defendant’s summons dated 5 November 2025, with costs to the Plaintiff, with certificate for counsel, to be summarily assessed if not agreed. The Plaintiff shall lodge and serve its statement of costs within 14 days from the date hereof, and the Defendant shall lodge and serve a list of objections, if any, within 14 days thereafter. The costs shall then be assessed summarily on paper.

28.  Lastly, I thank Mr Cheung for his helpful assistance, and the Defendant for attending the hearing.