CHEUNG KIN MING v. ZHENG YANPING

DCCJ1379/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 1379 OF 2012

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JUDGMENT

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The Parties and the Issue

1.  The Plaintiff, Mr Cheung Kin Ming（張建明）(“Ming”) and the Defendant, Ms Zheng Yanping（鄭燕萍） (“Yanping”) were in an intimate relationship for several years since 2005 but, after taking several twists and turns, they finally separated in November 2011 when the relationship came to an end. Ming alleges that Yanping borrowed a sum of RMB668,800 (which parties agree that it was equivalent to HK$800,000 at the material time) from him in May 2011 and now asks for repayment of the said loan in the present action.

2.  Yanping has no dispute that she took the said sum from Ming but explains that it was, in fact, repayment of money which Ming borrowed from her, from time to time, when they were still in relationship. Yanping explains in her Defence that although the total outstanding sum which Ming owed her was more than HK$800,000, she was willing to accept the repayment as full and final settlement of all the outstanding sums. Yanping explains that, according to her Defence, she accepted a lesser sum “for the sake of convenience, generousness and forgiveness to” Ming.

Background

3.  Ming has done many things for living, but, for the purpose of this case, I would describe him as a merchant in logistic business and property investor. Yanping, on the other hand, is a resident in Shenzhen, mainland China, working as a Chinese medical practitioner in Shenzhen Traditional Chinese Medicine Hospital. It is common ground that Ming and Yanping met each other through the introduction of a marriage matchmaking consultancy in Shenzhen. At that time, Ming was living in Shenzhen at a residential estate known as “時代華庭” (“Shenzhen Residential Property”).

4.  Both Ming and Yanping are divorcees and they each have their own children from their previous marriages.  Although the stage of intimacy in the relationship between Ming and Yanping is subject to dispute, parties generally agree that they had good and bad times in the relationship before the final separation in November 2011. Ming says that although they were in a romantic relationship, he had no actual plan yet to get married with Yanping. On the other hand, Yanping says that, in fact, Ming had already proposed to her several times and they planned to get married in Hong Kong.

5.  Parties bring to my attention that throughout the entire period when they were still in relationship, many incidents, most of them in relation to property investment in Shenzhen and Hong Kong, happened. I consider that they are events which have bearing on assessment of the evidence of this case and I therefore will give a brief account of these incidents below.

6.  In February 2008, more than 2 years after Ming and Yanping had been having the relationship, Ming sold his Shenzhen Residential Property and used the sale proceeds to purchase 2 retail shops at a development in Shenzhen known as Royal Garden (皇御苑) (“Shenzhen Retail Shops”) for investment purposes.  Ming and Yanping agreed to purchase the property in the name of Yanping, namely to use Yanping as a trustee to hold the Shenzhen Retail Shops for Ming.  Later, Ming decided to sell the property in March 2009.

7.  In May 2009, Ming and Yanping’s relationship turned sour and, eventually, they separated within that month.  Ming and Yanping, for the purpose of separation, signed a handwritten separation agreement dated 19 May 2009 in Chinese (“the Separation Agreement”). The Separation Agreement was drafted by Yanping and signed by both parties.  The terms of the separation agreement are as follows, in traditional Chinese Characters (some of the texts originally were in simplified Chinese Characters):-

“分手協議書

張建明先生和鄭艷萍女士因為種種原因現分手。在三年半的交往中，涉及一些財物問題，現協議如下，以免日後糾葛。

	項目	歸屬	擬交還日期	實際交還日期	簽名
(1)	皇御苑1062#及1063#房產	鄭交還張	2009.5.21	2009    25/5	[簽名]
(2)	軒逸Y526P小車	歸鄭所有， 鄭還張8萬元	2009.5.21	2009    25/5	[簽名]
(3)	訂婚鑽戒   藍	鄭交還張	2009.5.21	2009    25/5	[簽名]
(4)	錢	張借鄭3萬元，用於支付2部水機及其他費用		2009    25/5	[簽名]
(5)	SONY相機	鄭交還張	2009.5.21	2009    25/5	[簽名]
(6)	LG手機	鄭交還張	2009.5.21	2009    25/5	[簽名]

8.  Parties have great dispute as to the reasons behind this separation and the interpretation of the Separation Agreement.

9.  A few months later after the separation in May 2009, namely in August, Ming and Yanping started to make contact with each other again. They fell for each other very quickly and went back into an intimate relationship in September 2009. 

10.  After they were back in relationship in September 2009, both Ming and Yanping went for inspection of a residential property in Hong Kong, known as Flat F, 22/F, Block 3, Phase II, Tai Hing Garden, Tuen Mun, New Territories (“Tai Hing Garden 22F”) for the purposes of acquisition. It is not in dispute that Ming acquired this property in his own name but parties however take issue with the reasons behind this acquisition.

11.  Later, in the beginning of 2010, parties decided to purchase another property at the same residential development, namely Flat H, 18/F, Block 2, Phase I, Tai Hing Garden, Tuen Mun, New Territories (“Tai Hing Garden 18H”) for investment purposes.  The completion of the acquisition took place in April 2010. This property again was acquired in Ming’s sole name but Ming and Yanping specifically signed a handwritten agreement dated 21 January 2010 (“Tai Hing Garden Agreement”) setting out the financial arrangements for acquisition of this property. This Tai Hing Garden Agreement was drafted by Ming and signed by both parties. It is not in dispute that, according to the agreement, Yanping would have some interest in the property but Ming disputes that the agreement has ever taken effect at all. The terms of the Tai Hing Garden Agreement are as follows in traditional Chinese Characters (some of the texts originally were in simplified Chinese Characters):-

“協議書

屯門大興花園一期2座18樓H室作買價港幣$1,275,000元$壹佰貳拾柒萬伍仟元正，面積S=544.呎。於2010年正月21日商量，張建明與鄭艷萍決定，由鄭艷萍出資港幣肆拾萬元正。房屋租金的收入鄭艷萍收！另外，屯門偉景花園A座7樓H室，2010年5月份租客搬出後，買(sic)出將錢拿到深圳購買房子！（附註：屯門大興花園一期2座18樓H室因張建明負責跟進！供款分權共擁有）

2010年正月21日”

12.  Parties are not in dispute that the Tai Hing Garden 18H was sold in less than a year time, in December 2010.

13.  Several months before they sold the Tai Hing Garden 18H, in September 2010, Ming and Yanping had some discussion on the investment opportunities in industrial properties in Hong Kong. Yanping later decided to acquire an industrial property in Hong Kong for investment purposes.  There is no dispute that Yanping signed the sale and purchase agreement for acquisition of Workshops 3 and 4, 14/F, Block A, Delya Industrial Centre, 7 Shek Pai Tau Road, Tuen Mun, New Territories (“Industrial Workshops”) in December 2010 and entrusted Ming to take care of the acquisition procedures in Hong Kong for her. The completion took place eventually in January 2011. 

14.  There is no dispute that, in fact, Yanping acquired this Industrial Workshops through a company belonged to Ming as a “confirmor”.  In other words, Ming initially signed a provisional sale and purchase agreement in November 2010 through a company wholly owned by him, known as “Regal Supreme Limited”, with the predecessor-in-title of the Industrial Workshops for a consideration of HK$1,148,000 and “re-sold” (as a “confirmor”) the property to Yanping at a higher price of HK$1,328,000.

15.  Parties, however, take issue with the fact that whether Yanping had knowledge, before the acquisition, of Ming’s involving in the transaction by way of a company as a “confirmor” and making a profit of HK$180,000. Ming argues that Yanping knew the “confirmor” arrangement and agreed to it but Yanping complains that she was being cheated.

16.  It is not in dispute that the Industrial Workshops were leased out for rental income in February 2011 and the tenant was a Mr Kung Hoi Cheong (“Kung”). Yanping however says that she did not know about this letting initially but Ming explains that he, in fact, was authorized to lease out the property for Yanping.

17.  Around March 2011, the relationship between Ming and Yanping took another twist. Yanping met another gentleman in mainland China, a Mr Wang. There is no dispute that this Mr Wang married Yanping then but for only a very short period of time. They then separated.

18.  Parties have very different stories as to the reasons how and why this Mr Wang intervened the relationship between Ming and Yaping and eventually got married to Yanping. Ming says that he was simply told that Yanging got involved with another man without a reason but Yanping explains that she got involved in this new relationship because Ming “disappeared” from their planned marriage registration on 8 March 2011 at Tuen Mun Marriage Registry and “absconded” from her reach.

19.  The disputed transaction took place in May 2011, namely about 2 months after Yanping got married to Mr Wang and thereafter quickly separated from him. There is no dispute that Yanping requested Ming to deposit a sum of RMB668,800 (or HK$800,000) into her bank account in Shenzhen on 19 May 2011.  Parties take issue with the nature of this transaction.  Ming argues that it was a loan to Yanping but Yanping says that it was a repayment of money owed to her.  The purpose of the money deposited into Yanping’s bank account is in fact the vary issue of this action. 

20.  As to the use of the money, there is not much dispute. After the separation of Mr Wang and Yanping, Yanping wanted to retain the matrimonial home in Shenzhen originally purchased by Mr Wang for their marriage. She then planned to pay back Mr Wang for what he had paid for the residential property. In fact, the sum RMB668,800 was only partially sufficient to settle the amount owed to Mr Wang as he paid over RMB2 million. The rest was then settled by a loan from Yanping’s parents. 

21.  As to the events leading to the transaction of RMB668,800 (or HK$800,000), parties have very different explanations.  Ming says that Yanping asked for a loan from him. Ming agreed and then simply just lent her the money, namely RMB668,800. Ming also says that he did not know that they were married at that time until November 2011.

22.  Yanping, on the other hand, gives a slightly different account of the events. Yanping says that once Ming learnt about her marriage with Mr Wang, he immediately tried to make good the broken relationship with her. According to Yanping, Ming offered to repay her what he owed her for a sum of around HK$ 800,000. Yanping then was touched by Ming’s offer and accepted the payment as a full and final settlement of all the outstanding sums.

23.  Although they have different account of the events but it is not in dispute that Ming and Yanping were, once again, back in relationship.

24.  In November 2011, Ming and Yanping, for the final time, separated.  As to the reason for this final separation between them, parties again have very different explanations.

25.  Ming says that when Yanping was planning to sell the Industrial Workshops, he suggested retaining HK$800,000 from the balance of the sale proceeds as repayment for his loan to her in May 2011 but Yanping refused. Their relationship therefore deteriorated and they therefore separated for the final time.

26.  Yanping, however, disagrees and explains that because of the repeated absence of Ming at the Tuen Mun Marriage Registry, namely 8 March 2011 and 8 November 2011 respectively when they had arranged for marriage registration twice, she lost all her faith in him and their relationship has come to an irretrievable breakdown.

The Pleaded Cases and the Burden of Proof

27.  According to the pleaded cases of the parties, Ming argues that the sum RMB668,800 (or HK$800,000) was a loan to Yanping. Yanping however explains that it was a repayment of money owed to her. The pleaded cases are clear and straightforward.

28.  Although there are other probable factual inferences which one may draw from the evidence in order to come to a different conclusion from the pleaded cases of the parties, I am told that, and I agree, this is not allowed. Miss Lam, Counsel for Ming, submits that this court is not entitled to find or to make any factual findings which are not a case pleaded by any of the parties.  She relies on several authorities including Soar v. National Coal Board [1965] 1 WLR 886 and Waghorn v. George Wimpey & Co Ltd [1969] 1 WLR 1764 and Poon Hau Kei v. Hsin Chong Construction Co Ltd [2004] 2 HKLRD 442.

29.  I entirely agree with this submission. This court is bound by the pleadings of the parties.  No matter how likely a further alternative of the evidence might suggest, this court is not allow to find for this further alternative.  I am, therefore, given the task to determine whether it was, on balance of probabilities, more likely, a loan to Yanping or it was a repayment by Ming and nothing else.

30.  On the burden of proof, I tend to agree with the submissions of Mr Wong, Counsel for Yanping.  He submits that in Seldon v Davidson [1968] 1 W.L.R. 1083, the plaintiff lent money to the defendant who admitted the receipt of such money.  The plaintiff claimed the repayment but the defendant suggested that the money was a gift.  The English Court of Appeal held that:-

“...we have from the defendant in this case a clear admission of the payment of the money, and no suggestion that it was paid in settlement of an existing debt, or that it was given in return for cash, or anything of that sort. In the absence of any such circumstances, money paid by the plaintiff in circumstance such as these is prima facie repayable on demand. If the defendant seeks to evade repayment of the money which was paid to him, it seems to me that the judge was right in placing the onus upon him to prove the facts which he alleges show that the money was not repayable.”

31.  In my judgment, if it is argued that a payment of money to a defendant was to settle an existing debt, the burden shall not shift to the defendant, but remains in the plaintiff to prove the payment was a loan.  In EL Vince Ltd v Wu Wen Sheng [2011] 4 HKLRD 541, the plaintiff claimed repayment of money allegedly being loan from the defendant but the plaintiff’s claim failed.  The plaintiff appealed and in dismissing the appeal, Tang JA (as he then was) held that;-

“In the appeal, ...... , counsel for the plaintiff submitted that the Judge erred because he held that the burden of proof was on the plaintiff. She submitted that since the receipt of $2 million was admitted, the burden had shifted to the defendant. She cited... Seldon v Davidson ... However, neither decision supports her contention. It is that it is only when there is clear admission of the payment of money and no suggestion that it was paid in settlement of an exiting debt... that the burden of proof is shifted to the defendant.”

32.  Mr Wong further relies on Lui Fai Yeung v Chui Kin Man (2012) 15 HKCFAR 803, whereby the Court of Final Appeal held that the Court must consider the whole circumstances of the case in order to decide whether a payment of money is a loan or not, and should not just look at the question on who the burden of proof lies.

33.  I agree with Mr Wong’s submissions. According to the pleadings, the nature, the purpose and the reason behind the transaction of RMB668,800 (or HK$800,000) on 19 May 2011 are the disputes of this case.  Ming asserts that it was a loan and he must bear the burden of proof.  Once Ming has successfully proved it that, Yanping, of course, has the burden of proof to show that it was not a loan to her but, in fact, a repayment.  In my judgment, it would be a more sensible approach to take into the whole circumstance of the case and consider what, on the balance of probabilities, the real nature and purpose of the transaction are.

The Test for Evidence 

34.  Both parties mainly rely on their own oral evidence and some contemporaneous documents in support of their case. There are a lot of contradicting issues between the parties’ oral evidence and, in my view, the assessment of the credibility and reliability of their oral evidence therefore becomes an important and essential part of the factual determination of the present case.

35.  Parties have no dispute that on assessment of credibility and reliability of the oral evidence of witnesses, this Court may adopt the usual test applied in many other previously decided cases when there were serious dispute of facts including Star Glory Investment Ltd v Kai Tuo (HK) Technology Co Ltd (HCA  3523/2002, unreported, 13 August 2005), namely :-

“The assessment of a witness’s credibility and/or reliability is a task frequently undertaken by the court in litigation (in fact, very often an essential task). I consider the following to be the appropriate test to adopt:-

‘There are two objective tests for assessing a witness's credibility regarding a matter to which he has testified:-

(a) whether that part of his testimony is inherently plausible or implausible;

(b) whether that part of his testimony is, in a material way, contradicted by other evidence which is undisputed or indisputable (an example often given of such evidence is contemporaneous documents).

Further, where it is shown that a witness has been discredited over one or more matters to which he has testified (using the above tests), this fact is relevant to the assessment of his overall credibility.  Likewise, regard may be had to a witness’s motive for deliberately not giving truthful testimony.  For example, telling the truth may prejudice his interest, or a just determination of the litigation may affect his interest.”

Analysis of the Evidence

36.  Both parties give oral testimonies personally at the trial. Although Ming calls an additional witness, Kung, to purportedly support his case, but, since he was not, personally, involved in most of the contradicting matters between the parties, I am of the view that his evidence is not very helpful for my analysis.

37.  To assess the credibility and reliability of the oral evidence of parties, I shall now deal with the issues raised in the evidence one by one.

Actual Plan to Get Married

38.  Did Ming and Yanping have any actual plan to get married? This is an important element of the evidence of the parties. The parties give an almost opposite answer to this question. The answer to this question will inevitably set the tone of the evidence of the entire case. The answer to this question is a real test for credibility and reliability of the evidence of the parties and it is certainly not a matter of who has a better memory. I am sure that any reasonable person would not make a mistake as to whether he/she has, or has not, planned for a marriage.

39.  Although it is not in dispute that the relationship took some twists and turns, Yanping says that the parties have along had an actual plan to get married. However Ming blatantly says that he never contemplated or talked about marriage with Yanping, although he admitted that he might, sometimes, have some thoughts about it.  He never regarded Yanping as a “life partner” and because of many conflicts between them, he always had doubts about their future.

40.  First of all, the Separation Agreement mentioned the return of an “Engagement Ring”. Yanping argues that this is clear evidence that Ming, in fact, had proposed to marry her. As the Separation Agreement was signed by both parties, it is suggested that Ming must have acknowledged it.  Ming admits that he did give a ring to Yanping as a gift but it was never intended to be an engagement ring. When he signed the agreement, he did not pay too much attention to the description. I find the answer of Ming difficult to believe and this is against the contemporaneous document. The answer is obviously an afterthought and not the truth.

41.  Secondly, I take in consideration of all the SMS text messages adduced as evidence before this Court, in particular 2 messages, namely:-

(1) one sent by Ming to Yanping on 25 October 2011 at 1:44 pm suggesting Yanping to send information to the Tuen Mun Marriage Registry through internet or by phone for marriage registration; and

(2) one sent by Yanping to Ming on 7 November 2011 at 10:58 pm saying that she would wait at the Tuen Mun Marriage Registry at 10:00 am on 8 November 2011 for Ming until he appeared.

On the evidence before me, it is more than obvious that there must be an appointment made for Ming and Yanping to have their marriage registration on 8 November 2011. And this is confirmed by the admission of Ming in his oral testimony that he did arrange for the registration on 8 November 2011 but was absent without giving any notice and explanation to Yanping. This is in direct contradiction of what Ming originally purports to say to this Court in his witness statements.

42.  I find that Ming did have a real intention to get married to Yanping.  On balance of probability, I accept Yanping’s evidence and am unable to see why Ming would have agreed to attend a marriage registry in Tuen Mun on 8 November 2011 but without a serious intention to get married. The evidence shows that the intention to get married was not a casual one. Ming and Yanping, did have an actual plan to register their marriage.

43.  On this issue of intention to get married, I accept Yanping’s evidence in full and if there is any contradiction of evidence about their relationship, and in particular, the intention to get married, I prefer the evidence of Yanping over Ming.

44.  I therefore also accept, for example, that Ming had proposed to Yanping to marry him 3 times. They had arranged for the 1^st time to register at the Tuen Mun Marriage Registry on 15 September 2009 but due to incomplete information and failure of advance booking, their registration was unsuccessful. This is supported by a copy of pamphlet they took from the marriage registry with their handwritten notes regarding documents required for the registration. The 2^nd time to register was arranged to be held on 8 March 2011. But similar to the 3^rd time which was scheduled to be held on 8 November 2011 mentioned above, Ming did not appear at the marriage registry without any prior notice and explanation.

Acquisition of Shenzhen Retail Shops and the Separation in May 2009

45.  Ming alleges that Yanping, being a trustee, wrongfully withheld the sale proceeds of the Shenzhen Retail Shops and failed to return it to him in May 2009.  This resulted in their separation and hence the signing of the Separation Agreement. Ming argues that Yanping is a dishonest person.

46.  Yanping gives a very different story. She says that the separation had nothing to do with the sale proceeds. She did not even have it in May 2009. She only received the sale proceeds of RMB970,000 on 21 August 2009 as shown by the bank statement. Furthermore, the Separation Agreement did not mention “sale proceeds” but only “the real property of Royal Garden”. She explains that the separation was caused by Ming having affairs with another mainland Chinese lady from Beijing.

47.  In my judgment, Ming’s argument must fail. The Separation Agreement was signed on 19 May 2009, namely 3 months before Yanping received the money. This is against the logic. Yanping could not have “withheld” the sale proceeds in May 2009 when she did not even have it. I therefore accept the explanation given by Yanping. It seems to me that the purpose of Ming’s evidence is to give this Court a wrong impression that Yanping was a dishonest person but in fact she was not.

Tai Hing Garden 20F

48.  Ming gives oral evidence that in September 2009, parties agreed to jointly purchase Tai Hing Garden 22F and both of them once signed the Provisional Sale & Purchase Agreement together on 15 September 2009.  And, according to Ming, Yanping later retracted and asked for her name to be removed from the agreement.  As a result, Ming solely purchased Tai Hing Garden 22F.

49.  However, Yanping argues that this property was intended to be used for their matrimonial home and Ming invited her to sign on the Provisional Sale & Purchase Agreement. After Ming discovered that Yanping could not make any monetary contribution to the acquisition, Ming requested Yanping to withdraw from it.

50.  As I have already found that Ming and Yanping had an actual plan to get married and they in fact attended the Tuen Mun Marriage Registry on 15 September 2009, it is more like than not that, the explanation given by Yanping is more reliable. I therefore reject Ming’s evidence.

Tai Hing Garden Agreement and the HK$400,000 loan

51.  Ming argues that, in fact, Yanping never honoured her promises in the Tai Hing Garden Agreement and therefore treated the agreement as abandoned. According to Ming, she never paid the HK$400,000 contribution according to the agreement. But Yanping, on the other hand, says that she did contribute the said HK$400,000 for the acquisition by way of a loan to him. Ming explained to Yanping that because she was not yet a resident in Hong Kong, they would have difficulty to obtain a mortgage from the bank if she were to become an owner of the property and she accepted his explanation.

52.  Yanping further explains, in support of her case, that after Ming’s failure to turn up at the Tuen Mun Marriage Registry on 8 March 2011, he offered an apology to her and her parents and friends. Ming then wrote down a list of properties which he alleged that he owned on a “piece of paper”. Ming then promised Yanping that he would let her take over all his assets in an attempt to show his sincerity. A copy of that “piece of paper” has been shown to me in the trial bundle.

53.  Ming however denies it completely. He admits that he wrote the list but says that the list was for Yanping’s reference for property investment in Hong Kong.

54.  According to Yanping’s evidence, when she was shown that “piece of paper”, she immediately discovered that Tai Hing Garden 18H was missing from the list. Yanping explains that she was very concerned because she had interest in the property and she had advanced HK$400,000 to Ming for the acquisition of the property. Ming however said that it was sold but the sale proceeds were used for acquisition of another property investment. Given the intimate relationship between them, Yanping accepted the explanation and allowed Ming to repay later.

55.  Ming criticizes the evidence of Yanping that there is no contemporaneous document, for example bank statement, to support the payment. And secondly, the Tai Hing Garden Agreement did not mention that the HK$400,000 is a loan. Ming suggests that, reading between the lines, it looks more like “investment” than “loan”. Ming submits that this is inconsistent with Yanping’s evidence. Thirdly, Yanping never asked for the payment of the rental income which she was entitled to according to the agreement. Ming therefore submits that the Tai Hing Garden Agreement must have been abandoned.

56.  On balance of probabilities, I accept Yanping’s evidence.First of all, the Tai Hing Garden Agreement is more consistent with the evidence of Yanpaing’s version of events than Ming’s. If Tai Hing Garden Agreement was abandoned as alleged by Ming, since this agreement was drafted by him, he could have easily drafted a cancellation agreement and asked Yanping to sign and acknowledge it.

57.  Secondly, I agree with Yanping’s submission that the list on the “piece of paper” had absolutely no “reference” value for property investment. Ming must have prepared it for a specific purpose to comfort Yanping.

58.  Thirdly, although there is no documentary proof to show the payment by Yanping to Ming for the sum of HK$400,000, in my view, given the intimate relation between the parties, it would be more than sufficient to ascertain from the circumstances that the payment was effected and I do not find it unusual that it was a cash transaction.

59.  Fourthly, in my view, the description of Yanping’s HK$400,000 contribution could mean “loan” or “investment”. Given the relationship between the parties, I am not surprised that they used very loose description in the agreement. Furthermore, I do not find that it makes any material difference in present context.

60.  Lastly, I do not accept that Yanping’s failure to enforce the Tai Hing Garden Agreement for her entitlement of the rental income was due to the abandonment of the agreement. Given their intimate relationship, it was quite normal that Yanping did not pay too much attention to it.

61.  In substance, I find that Yanping had paid a sum of HK$400,000 to Ming for the purpose of acquisition of Tai Hing Garden 18H by way of a loan.

Acquisition of Industrial Workshops

62.  Parties take issue with the reasons behind Ming’s using his wholly owned company as a “confirmor” in this acquisition of the Industrial Workshops and making a profit of HK$180,000 (namely HK$1,148,000 - HK$1,328,000 = HK$ 180,000).

63.  Ming argues that Yanping had full knowledge before she signed any agreement and accepted the “confirmor” arrangement. But Yanping says that she trusted Ming as her estate agent in this transaction and had absolutely no knowledge about the identity of the confirmor and the secret profit of HK$180,000 Ming made.

64.  In support of the argument, Mr Wong for Yanping, draws my attention to Ming’s evidence that, under cross-examination, he explained that whenever he signed for his company, he would sign his English name.  But he would sign his Chinese name when acting in personal capacity.  Ming said so because he attempted to justify his English signature on the provisional sale and purchase agreement of the Industrial Workshops with Yanping. However, this alleged practice of Ming is contrary to some documents whereby Ming simply signed his Chinese name even if acting for his company.  When confronting these documents, he just said “signed wrongly”.  Mr Wong submits that Ming used English signature so as to conceal the fact that his company was the true vendor and the truth was that Ming concealed his interests by using an English signature in re-selling the Industrial Workshops to Yanping and made secret profit out of the transaction.

65.  On the other hand, Ming explains that, in fact, he intended to acquire the Industrial Workshops using his company as a personal investment. However after Yanping learnt that he acquired the property at a “discounted price”, she offered to purchase it from Ming at market price and acknowledged that Ming would make a profit.

66.  In my judgment, I find it hard to accept Ming’s explanation.

67.  First of all, the reason offered by Ming for using his English signature in this acquisition of the Industrial Workshops is absolutely dubious.

68.  Secondly, I simply do not see the commercial advantage Yanping could obtain from the transaction if Ming was selling the Industrial Workshops to her at market price. On the contrary, I can see the immediate advantage of Ming in the transaction as a confirmor. At that stage, Ming only paid HK$114,800 as deposit, and after he re-sold the property to Yanping as a confirmor, he was no longer necessary to pay the balance of the purchase price. In other words, after spending only HK$114,800 as cost, he made a quick and easy profit of HK$180,000, namely over 100% profit margin within months. There was a huge commercial incentive for Ming not to tell Yanping the truth, otherwise he might have to share the profit with her.

69.  In conclusion, I find that Yanping had no knowledge of fact that Ming involved in the transaction by way of a company as a “confirmor” and making a secret profit of HK$180,000.

70.  Although parties also have dispute as to whether or not Yanping had knowledge of the letting to Kung by Ming, as the above are more than sufficient to dispose of this issue of evidence, I do not intend to deal with it.

Repayment Date

71.  This is a straightforward issue. In my view, when a loan is advanced, repayment date should be a very important term.  According to the Statement of Claim, the Witness Statement and Supplemental Witness Statement of Ming, the repayment date of the alleged loan of RMB668,800 (or HK$800,000) was not mentioned. It is therefore not in dispute that the alleged loan should therefore be repayable upon reasonable demand since the repayment date is not clearly spelt out. I accept that, given the intimate relationship between the parties, it is possible and perhaps natural that Ming did not discuss the repayment date with Yanping. However, Ming dramatically changed his stance when he was giving oral evidence in the witness box. Ming for the first time said that they had in fact agreed a repayment date on 28 October 2011 and later extended to 8 November 2011 upon mutual consent.  In other words, Ming’s case is not a loan repayable on demand but a loan with an agreed repayment date. This is a material inconsistency. I find it very difficult to accept his evidence. It is more likely than not that it was not a loan.

Yanping’s Loans to Ming and Her Bank Statements

72.  Yanping explains that, besides HK$400,000 which she lent Ming for acquisition of Tai Hing Garden 18H according to the Tai Hing Garden Agreement, Yanping says that she had, in addition, advanced numerous personal cash loans, from time to time, to Ming for a aggregate sum of more than HK$400,000, namely total HK$800,000.

73.  In support of her case, Yanping produces copies of various bank statements as Exhibit marked “D1”.

74.  Mr Wong for Yanping submits that she did not keep any records of each cash loan because she never contemplated the need to do so.  All along, she trusted Ming and intended to have a family with him.Yanping admits that she cannot tell exactly how each cash withdrawal from her bank statements was given to Ming.

75.  Yanping also says that the timing of the various loans should start from late 2009 (some time after the Separation Agreement) to May 2011. And this was why the Separation Agreement did not mention about them.

76.  Mr Wong further submits that there is no suggestion that the identified sums in the bank statements were spent somewhere else such as other business or on other persons.  The only reasonable inference to be drawn should be that Yanping paid Ming the same on each occasion.

77.  Before turning to the oral evidence, Ms Lam, Counsel for Ming, criticizes that Yanping’s Defence and witness statements in relation to the parts regarding the cash loans advanced to Ming were too vague, general, lack of particulars and oversimplified to be answered. I accept that perhaps the Defence is simple but not the witness statements. Furthermore, I wonder if the Defence is want of particulars as suggested by Ms Lam, why Ming never requested further and better particulars of the Defence. After all, I do not see how these comments could have any bearing on my assessment of the evidence.

78.  Ms Lam further submits that the evidence of cash withdrawals from the Yanping’s bank accounts was neither here nor there as one withdrew money from one’s bank account does not necessarily mean that she lent the same or any amount of money to another.  There is no causative link between the two.  It could be for personal daily use, making payment of bills, advancing to other as loan or as gift, repaying old debts due to creditors, making investments, buying assets, donating to charitable organizations, putting aside for future use or even lost.

79.  I agree that, generally speaking, the above remarks from Ms Lam are arguably fair comments but this Court must make factual findings within the parties pleaded cases, as Ms Lam has submitted and I agree, that, other alternatives are not relevant. Unless Ming is able to demonstrate to this Court that these transactions were inherently implausible to be cash loans to him or there is/ are contemporaneous document(s) to show that these transactions were not  loans, this Court is left with the conflicting oral testimonies of the parties only to make the factual findings.

80.  First of all, casual cash loans without proper records between lovers were not inherently implausible. Secondly, there are no contemporaneous document to show that most of the transactions (except a few which have been accepted not so) were not loans. Ms Lam purports to show me that there were mistakes in the recollection by Yanping in identifying the transactions in the bank statements and therefore argues that these casual cash loans were untrue. Perhaps to certain extent, the evidence adduced by Yanping might not be able to show how accurate the total outstanding sum was but, in my judgment, it is not necessary for Yanping to prove an accurate figure.

81.  Taking into account of the entire circumstances, Yanping is a more credible and reliable witness than Ming. Although it seems that Yanping is not very accurate in telling this Court how the numerous cash loans were advanced to Ming, this is understandable as she never kept any records. I find that, on balance of probabilities, Yanping on many occasions (including the occasion of acquisition of Tai Hing Garden 18H), between late 2009 and May 2011, lent a total sums of more than HK$800,000 to Ming. 

Yanping’s Admission of the Alleged Loan in the SMS Text Messages

82.  Ming also argues that Yanping has admitted the loan of RMB668,800 in her text messages to Ming, namely (some of the original texts were in simplified Chinese Characters and now reproduced in traditional Chinese Characters below):-

(1)	“對於玩弄感情的人，對於一個沒有誠信的人，我也無話可說，你覺得六十多萬能買到幸福嗎?!”
	(5 December 2011, 10:11:14)
(2)	“玩弄女人是要付出代價的，像你這種愛財如命的人玩得起嗎?!玩?奉陪!”
	(5 December 2011, 10:33:25)
(3)	“你那錢，放心，我會還，但不是現在，等我忘了痛，放下仇恨，會當著我爸，曾老師夫婦，阿芳夫婦，胡晶福，張忠平的面在美城酒樓那間包房還你。”
	(5 December 2011, 10:55:55)
(4)	“你以為我拋棄一切回到你身邊是為了騙到你那幾十萬?是你太傷我心，太傷我家人，我背負著各種輿論和眼光，我還必須對忍眼淚前行，我欠你甚麼了?你要還”
	(5 December 2011, 11:08:30)

83.  Mr Wong for Yanping submits that when these messages were sent, her relationship with Ming had collapsed completely. Ming did not make any reply to these text messages, such as asking Yanping to repay the loan as soon as possible.  It is also unclear why Yanping would repay the money in the presence of her parents and other friends.

84.  In my judgment, given the fact that there were numerous monetary transactions between Ming and Yanping over the years, this so-called admission is too vague to mean anything. The text messages did not refer to the fact that money was borrowed by Yanping. Furthermore, if it were an admission, Ming should have given an acknowledgement of it by text message but curiously, he did not. Although Ming purports to explain that he made phone calls in reply, I do not believe that he did so.

85.  I accept Yanping’s explanation that she never admitted any loan from Ming. She says that she decided to separate from Mr Wang and returned to Ming in 2011, not for inducing or facilitating Ming to repay her the prior loans advanced to him.  And when Yanping, in one of the text messages, referred to “repayment”, she meant to refer to the repayment of the RMB$80,000 which she wanted to replay Ming as he had paid for her for the private car as mentioned in the Separation Agreement. Yanping explains that she did not want to owe Ming anything after this final separation.

Overall Assessment of Evidence and Conclusion

86.  All in all, I find that Yanping is a more credible and reliable witness than Ming. The admission was too vague to have any meaning at all but if one should give any meaning to it, I accept Yanping’s explanation. Ms Lam has also pointed out some inconsistencies of Yanping's evidence which I consider that they are minor and immaterial and do not affect my assessment of her credibility and reliability. My findings of fact above are sufficient to dispose of this action and I do not intend to deal with other issues of evidence one by one save and except to say that if there should be any evidence in conflict between the parties, I tend to accept Yanping’s version.

87.  Ming has failed to discharge his burden of proof to show that the transaction of RMB668,800 (or HK$800,000 at the material time) on 19 May 2011 was a loan to Yanping and, at the same time, Yanping has, on balance of probabilities, successfully show that the said transaction was in fact a repayment from Ming for numerous personal loans which he borrowed from her of more than HK$800,000 in cash (including the sum of HK$400,000 paid in accordance with the Tai Hing Garden Agreement).

88.  By reason of the above, I hereby dismiss the present action.

Costs

89.  For costs, it should follow the event. I therefore award costs to Yanping, with Certificate for Counsel, to be taxed if not agreed. This is a costs order nisi which shall become absolute unless parties take out an application to vary the same within 14 days. 

90.  Lastly, I would like to thank Counsel, Ms Lam and Mr Wong, for their helpful submissions.