CREDIT ONE FINANCE LTD v. LEONG WUN HENG

HCA 2917/2015

[2023] HKCFI 961

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 2917 OF 2015

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J U D G M E N T

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1.  In this judgment, unless otherwise stated, (1) references to numbered sections and sub-sections are to sections and sub-sections of the Money Lenders Ordinance (Cap 163) (“MLO”); and (2) all monetary figures are denominated in Hong Kong dollars.

A.  THE CLAIM

2.  This is a moneylender’s action brought by the plaintiff (“Credit One”), a moneylender licensed under the MLO, against the defendant (“Madam Leong”) for recovery of the principal and interest of a loan (“Loan”) advanced pursuant to a loan agreement dated 9 July 2015 (“Loan Agreement”) and secured by a legal charge of the same date (“Charge”) over Madam Leong’s interest in a residential property at Bayview Garden, Tsuen Wan (“Property”), of which Madam Leong is a half owner.

3.  The principal of the Loan is $2.6 million.  It was repayable, with interest at an annual rate of 30%, by 180 monthly instalments of $65,772 each (i.e. totalling $11,838,960).  The 1^st instalment was due on 9 August 2015.  Clause 4 of the Loan Agreement provides that if Madam Leong fails to punctually settle any instalment, Credit One shall have the right to demand immediate repayment of all outstanding sums.

4.  On the same day the Loan Agreement was signed (i.e. 9 July 2015), Credit One and Madam Leong also executed another agreement (“Supplemental Agreement”), whereby Credit One agrees that if Madam Leong punctually pays the monthly instalments on the 9^th day of each month, a lower interest rate will be charged so that each monthly instalment will be $53,515.  However, if there is any default in punctual repayment, the Supplemental Agreement will become null and void.  Madam Leong will then be liable to repay all shortfalls as if she should have repaid $65,772 each month.

5.  Except for the first 2 monthly instalments of $53,515 each settled respectively on 4 August and 8 September 2015, Madam Leong did not make any further repayment.  On 26 November 2015, Credit One issued a demand letter to Madam Leong. On 8 December 2015, Credit One commenced the present proceedings.

B.  OUTLINE OF THE DEFENCE CASE

6.  In defence, Madam Leong relies on Credit One’s contravention of various provisions of the MLO.

7.  In particular, she claims that she was defrauded into taking out the Loan as a result of false representations made by persons (“C&W Representatives” collectively) who held themselves out to be staff of one C&W Enterprise (International) Limited (“C&W”).  She further asserts that Credit One colluded with C&W acting by and/or through these persons who had, under various pretexts, received the bulk of the proceed of the Loan in breach of s 27.  That being the case, Credit One cannot enforce the Loan Agreement or the Charge against Madam Leong.

C.  MADAM LEONG’S FACTUAL CASE IN DETAIL

C1.  Events leading to the Loan

8.  Madam Leong, born in 1955, was about 60 years old in 2015. She had received education up to primary 4 level in Macau.  She does not read or write English, though she can read and write simple Chinese.  She has a daughter from her previous marriage, which ended in divorce in 1996.  She later met her cohabitee (“Mr Lau”). 

9.  Prior to 2015, Madam Leong worked as a part-time salesperson, earning about $8,000 per month.  She ceased working in January 2015 and has since been maintained by Mr Lau and her daughter.

10.  In 2009, Mr Lau purchased the Property and had it held under a joint tenancy with Madam Leong to provide for her in old age.  The joint tenancy was severed into a tenancy-in-common in equal shares on 12 December 2012 (when Madam Leong mortgaged her interest in the Property as security for the prior loan mentioned in the next paragraph).

11.  On 12 December 2012, Madam Leong borrowed $200,000 (“Po Shing Loan”) from Po Shing Properties Mortgage Limited (“Po Shing”).  The Po Shing Loan carried interest at 30% per annum.  The principal and interest of such loan was repayable over 60 monthly instalments of $6,470.68 each.  As security, Madam Leong executed a legal charge dated 12 December 2012 in favour of Po Shing over her half interest in the Property (“Po Shing Charge”).

12.  Beginning from 15 April 2015, Madam Leong received cold calls from a male person who identified himself as surnamed Wong (“Wong”).  Wong claimed to be an employee of a financial intermediary company within the Ricacorp group.  He informed Madam Leong that he was aware that she had borrowed a loan from Po Shing and that his company could assist her to carry out a debt restructuring to enable her to borrow a low-interest loan from an established bank such as the Hang Seng Bank or the Bank of East Asia.  Wong later told Madam Leong that his company was C&W.

13.  Wong persisted in calling Madam Leong and ultimately persuaded her to visit C&W’s office at Room 1906, Hollywood Plaza, Mongkok (“C&W Office”) on 6 July 2015 at around 3 pm.  At Wong’s request, Madam Leong brought with her to that visit (1) her Hong Kong Identity Card, (2) statements of her bank account for the preceding 3 months, (3) proof of her address, (4) rates demand notes in respect of the Property and (5) certain documents relating to the Po Shing Loan (collectively “Supporting Documents”).  

14.  While at the C&W Office, Madam Leong was introduced to another male person called Gary Leung (“Leung”). Leung orally represented to her that:

(1)  If she borrowed a $2,600,000 loan, C&W would use such loan to improve her credit standing and secure a low-interest loan from a bank in place of the Po Shing Loan.

(2)  The $2,600,000 loan would be borrowed in Madam Leong’s name only for such purpose and Madam Leong did not have to repay the same.

(3)  C&W would only charge Madam Leong a service fee of $8,000 in arranging the $2,600,000 loan.

15.  On 7 July 2015, Leung called Madam Leong to inform her that Credit One would be the lender of the $2,600,000 loan.  He also told Madam Leong to reserve the whole day of 9 July 2015 for signing the loan documents.

16.  In the morning of 9 July 2015, Madam Leong was told to attend the C&W Office first, which she did.  Whilst there, Leung orally “advised” Madam Leong that in order to replace the Po Shing Loan with a low-interest bank loan:

(1)  The law firm acting for Credit One would retain a portion of the Loan (“Retained Portion”) to repay the Po Shing Loan. The law firm would later refund to Madam Leong the balance of the Retained Portion left after the settlement of the Po Shing Loan.  Madam Leong should then hand over such surplus fund to C&W.

(2)  The balance of the Loan (“Remaining Portion”) would be paid to Madam Leong, whereupon she should (a) hand over $2,128,000 to C&W; and (b) use the balance to repay the first 2 monthly instalments of the Loan.

17.  After Madam Leong left the C&W office, and while Wong was taking her to Credit One’s office, Wong orally assured Madam Leong that Credit One knew full well that the Loan was just a step in improving Madam Leong’s financial credit and that there would be no problem.

18.  After they arrived at Credit One’s office at 10/F, Wing On Plaza, Tsim Sha Tsui (“Credit One Office”), Madam Leong and Wong were taken to a conference room where they waited.  Later, a female staff of Credit One entered the conference room and asked Wong to wait outside at the reception area.  After Wong had stepped outside, the female staff introduced herself as Ms Chan and briefly explained the Loan documentation to Madam Leong.  At that point, Madam Leong received a WhatsApp message from Wong, whereby Wong assured Madam Leong that the documents she was being asked to sign were “alright” and that she should sign them straightaway.

19.  It was in reliance on the repeated assurances and representations by the C&W Representatives set out in [12], [14], [16], [17] and [18] above that Madam Leong executed the Loan Agreement, the Supplemental Agreement and the Charge.  In fact, she had no financial need whatsoever for a $2,600,000 loan.

C2.  Utilisation of the Loan

20.  According to Madam Leong, the principal of the Loan ($2,600,000) was applied in the following manner.

21.  First, $250,000 was retained by Credit One’s solicitors, Cheung & Choy (“CC”), to repay the Po Shing Loan and discharge the costs and expenses for redeeming the Po Shing Charge.  On around 5 August 2015, after settling the Po Shing Loan and redeeming the Po Shing Charge and the costs and expenses relating thereto in the total amount of $142,915.16, CC refunded $107,084.84 ($250,000 - $142,915.16) to Madam Leong by depositing the sum into her Wing Lung Bank account (opened in the circumstances mentioned in [25] below).  On 7 August 2015, pursuant to the request of Wong and in accordance with Leung’s representation set out in [16(1)] above, Madam Leong handed the said sum of HK$107,084.84 to another man representing C&W surnamed Li (“Li”). 

22.  Second, Credit One deducted $1,200 as “valuation fee”.

23.  Third, Credit One also deducted $39,000 as “service fee” payable to one Credit Management Limited (“CML”).

24.  Fourth, Credit One further deducted $7,950 for discharging CC’s costs and disbursements.

25.  Most importantly, on 9 July 2015, at CC’s office, Madam Leong was given a Wing Lung Bank cheque payable to her (but not crossed) in the sum of $2,301,850 (being $2,600,000 - $250,000 - $1,200 - $39,000 - $7,950) (“Cheque”). Then, on the same day, Wong escorted Madam Leong to the head office of Wing Lung Bank in Central.  As instructed by Wong, Madam Leong (1) opened an account with the bank (“Account”); (2) deposited the Cheque into the Account; (3) withdrew $2,128,000 in cash; and (4) handed over the same to Wong in line with Leung’s representation as set out in [16(2)] above.  

26.  The balance of $173,850 (i.e. $2,301,850 - $2,128,000) was later applied as follows:

(1)  Pursuant to the Supplemental Agreement, Madam Leong settled the first 2 monthly instalments, each in the sum of $53,515, on 4 August and 8 September 2015.

(2)  In a telephone conversation in about late August 2015, Li requested Madam Leong to hand over to C&W the remaining $66,820 ($173,850 - $53,515 - $53,515).  Accordingly, on 1 September 2015, Madam Leong withdrew $66,820 in cash from the Account and handed over the same to Li.

27.  Meanwhile, in around mid August 2015, Li told Madam Leong that despite the execution of the Loan Agreement, her credit rating was still not good enough to apply for a low-interest bank loan, and that she must obtain a further loan of $700,000 from another lender.  Madam Leong reluctantly agreed and proceeded to obtain a $700,000 loan (“Second Loan”) from one aEasy Credit Hong Kong Limited, which loan was secured by a second mortgage over her interest in the Property (“Second Mortgage”).  

28.  Then, in a telephone conversation on 3 October 2015, Li told Madam Leong that by taking out the Second Mortgage, she had breached the Loan Agreement and had become liable to pay Credit One a penalty of $88,000.  Madam Leong understandably reacted with anger to this demand, whereupon Li offered to reduce C&W’s service fee (presumably for arranging the Second Loan) from $8,000 to $6,000.  In the end, Madam Leong reluctantly paid $94,000 (i.e. $88,000 penalty + $6,000 service fee) to Li.

29.  Madam Leong was never granted any low-interest bank loan.  She was later unable to contact any of the C&W Representatives.  She visited the C&W Office but found no one there.  After speaking to her daughter, it dawned on Madam Leong that she had been deceived.  She made a report to the police on 22 October 2015.

C3.  Madam Leong’s grounds of defence

30.  By paragraphs 10 and 11 of his opening submission, Mr Jin Pao SC, counsel for Madam Leong, confirms that Madam Leong would not pursue some of the defences pleaded in the re-re-amended defence and counterclaim, namely those based on collateral contract, waiver, estoppel and breaches of ss 18 and 22(1)(b).

31.  To sum up, Madam Leong mounts a defence based on Credit One’s various other breaches of the MLO:

(1)  Set off under s 27(4): Under s 27(4), Madam Leong is entitled to set off the monies paid or levied in contravention of s 27 totalling $2,444,054.84 (being $2,128,000[1] + $107,084.84[2] + $66,820[3] + $88,000[4] + $6,000[5] + $1,200[6] + $39,000[7] + $7,950[8]) against the amount actually lent to, and received by, her which was just $155,945.16 ($2,600,000 - $2,444,054.84).  Since the amount after the set-off exceeds the amount actually received by Madam Leong, Credit One has no claim against Madam Leong.

(2)  Charging of excessive interest in breach of s 24: On the premise that the amount actually lent was only $155,945.16, the effective rate of interest on the Loan would be 993.38% per annum, vastly exceeding the 60% per annum limit imposed by s 24.  The Loan Agreement and the Charge are thus unenforceable.

(3)  Extortionate transaction under s 25: Even on the premise that the principal of the Loan was $2,551,850 (being $2,600,000 - $1,200 - $39,000 – $7,950)[9], the effective rate of interest would be 48.26% per annum, exceeding the 48% per annum limit set by s 25.  48.26% per annum was neither a reasonable nor fair rate of interest having regard to the particular circumstances of this case.

(4)  Charging of extra interest on account of early repayment in breach of s 21: Clause (i) of the Schedule of Fees and Charges (“Schedule”), which forms part of the Loan Agreement, empowers Credit One to charge a 3% “administrative fee” (行政費用) in case of early settlement, thereby rendering the Loan Agreement illegal under s 21.

(5)  Charging of default interest in breach of s 22(1)(c):  Clauses (j) and (k) of the Schedule empower Credit One to charge default interest at 4% per month on top of the contractual pre-default rate (which is 30% per annum or 2.5% per month).  The Loan Agreement and the Charge are thereby rendered illegal under s 22(1)(c).  There is no plea by Credit One for the exercise of discretion under s 22(2).

32.  Madam Leong counterclaims for a declaration that the Loan Agreement and the Charge are unenforceable, and an order that the registration of the Charge against the Property be vacated forthwith.

D.  CREDIT ONE’S CASE

33.  Regarding the provenance of the Loan, Credit One’s pleaded case is primarily one of non-admission.  Credit One has not presented any positive case as to how the Loan was introduced to it or what arrangements were in place between itself and its intermediaries or agents, whether direct or indirect and whether generally or with respect to the Loan.  Given the lack of a contradictory positive case, Credit One also elected not to cross-examine Madam Leong. 

34.  At this juncture, I should mention that, in a last minute attempt to plug the gaps in its pleadings and evidence as to the provenance of the Loan, Credit One had applied for, but failed to obtain, (1) leave to amend the statement of claim and the re‑amended reply and defence to counterclaim; and (2) leave to file 7 new/supplemental witness statements by which Credit One also sought to introduce a voluminous amount of documents, many of which had not been discovered until Credit One’s purported service of 5 supplemental lists of documents on 10 July 2019 and thereafter.

35.  In short, Credit One had sought, but was refused, leave to replace its non-admission of Madam Leong’s case with one of denial with a positive case. 

36.  Such applications first came before me at the pre-trial review on 31 July 2019.  I adjourned the substantive hearing of Credit One’s summons of 11 July 2019 to G Lam J (as he then was) as the trial was then listed before his Lordship on 28 October 2019.  On 5 September 2019, G Lam J dismissed both of Credit One’s applications on the ground that leave granted at such a late stage would jeopardise the trial dates, which are of course a milestone date[10]. 

37.  Credit One’s said summons did not specifically seek leave to use the newly disclosed documents.  As submitted by Mr Pao SC, it is incumbent on a litigant giving late discovery to make a proper inter partes application to seek leave of the court.  This is not merely part of the continuing discovery obligation which does not require leave: Kinetics Medical Health Group Co Ltd v Dr Tse Ivan Cheong Yau, HCA 1115/2010, unreported, 8 May 2013, per Deputy High Court Judge Marlene Ng  (as she then was) at [31]-[33].

38.  Anyway, as stated in paragraph 34 above, the documents in question formed part of the 7 new/supplemental witness statements in the form of exhibits thereto.  His Lordship’s dismissal of Credit One’s late application in respect of the new/supplemental witness statements would logically also prohibit use of the late documents.  Indeed, G Lam J had specifically expressed dissatisfaction with some of the new documents.

39.  In preparation for the pre-trial review which was listed before me, I had of course read the amendments sought to be made by Credit One to its pleadings and the new evidence (whether oral and documentary) that Credit One desired to adduce and deploy.  That is to say, I am aware that, had G Lam J granted leave, Credit One would have had a positive explanation on pleadings and in evidence as to how it came to enter into the Loan Agreement with Madam Leong; in particular, the intermediary who introduced Madam Leong to it as far as Credit One was concerned.

40.  A party is entitled to, and will often, make or strengthen his case by taking advantage of a gap in the opposite party’s pleading(s) and/or evidence. 

41.  In the instant case, both the court and the parties are aware that Credit One could have presented a positive case as to how the transaction under scrutiny came to it[11] had such case been raised in time.

42.  In such circumstances, the court should vigilantly guard against paying any regard to the excluded amendments and evidence.  This should include (whether intentionally or subconsciously) under-assessing a party’s case due to the court’s awareness of what positive case the other party could have raised in his pleading(s) and evidence.   Otherwise, taking this case as an example, Credit One would have been able to bring the disallowed amendments and/or new evidence in through the backdoor without leave of the court.

43.  Resuming the narrative, the Loan was, according to Credit One, utilised as follows:

(1)  There is no dispute regarding the matters set out in [21] to [26] and [28] above, save and except that Credit One does not admit that Madam Leong disposed of portions of the Loan (collectively “Relevant Sums”) as follows:

(a)  $2,128,000 to Wong on 9 July 2015;

(b)  $107,084.84 to Li on 7 August 2015;

(c)  $66,820 to Li on 1 September 2015; and

(d)  $94,000 to Li in around October 2015.

(2)  As stated in [31(3)] and footnote 9 above, Credit One agrees to waive and deduct the sums of $1,200 (valuation fee), $39,000 (CML’s “service fee”) and $7,950 (CC’s costs and disbursements) from the principal of the Loan.  That is to say, Credit One accepts that the amount actually lent was $2,551,850 rather than $2,600,000.

E.  DISPOSAL OF THE RELEVANT SUMS

44.  To consider the first 2 defences raised by Madam Leong (i.e. the set-off defence under s 27(4) and the breach of s 24 defence), the first question of fact to resolve is whether Madam Leong did pay the Relevant Sums to the C&W Representatives.

45.  I have been reminded by Mr Mike Lui, counsel for Credit One, and I am mindful, that in adjudicating serious allegations of misconduct such as fraud:

(1)  The alleging party must adduce compelling evidence to such extent as to overcome the inherent improbability of the existence of the alleged wrongdoing.  The standard of proof remains to be on the preponderance of probability, but the more inherently improbable the act in question, the more compelling will be the evidence needed to satisfy the court on a preponderance of probability that the alleged wrongdoing did take place: Aktieselskabet Dansk Skibsfinansiering v Brothers (2000) 3 HKCFAR 70 at 77J-79D per Lord Hoffmann NPJ.

(2)  The court must guard against speculation or making informed “guesses” or choosing from equally possible permutations of fact.  While under the civil standard of proof, an inference can be drawn without there being practical certainty, where allegations of serious wrongdoing are involved, the court needs to look for inferences that are “compelling” and refrain from drawing damning inferences on a bare or “mere” balance of probabilities: Securities and Futures Commission v Wang Jian Hua, HCMP 745/2013, unreported, 29 October 2015 at [79]-[80] per G Lam J (as he then was).

46.  Madam Leong tendered herself as the only witness for the defence.  She made 4 witness statements, all in Chinese, which she affirmed under oath at the trial.  And, as stated in [33] above, she attended the trial but was not cross-examined.

47.  On the evidence before me, I am satisfied, and I find, that Madam Leong did pay the Relevant Sums to the C&W Representatives as summarised in [21], [25], [26(2)] and [28] above.

48.  First, Madam Leong’s evidence is unchallenged.  The testimony of Credit One’s 2 witnesses, Mr Lam Tze Chiu Andrew (“Mr Lam”) and Ms Chan Siu Fong Eling (“Ms Chan”)[12], does not touch upon Madam Leong’s dealings with the C&W Representatives.  Credit One does not have a contradictory positive case regarding the involvement of the C&W Representatives and chose not to cross-examine Madam Leong.

49.  Second, there is nothing inherently incredible about Madam Leong’s case.  On the contrary, I accept her evidence that she had no financial need for a $2.6 million loan at the time given that (1) she was being maintained by her daughter and Mr Lau; (2) her outstanding indebtedness under the Po Shing Loan was, according to paragraph 41 of Mr Lam’s witness statement, $138,965.16 only; and (3) the monthly sum for the repayment of such prior loan was just $6,470.68, which she had apparently been able to keep up with.

50.  Third, Madam Leong’s account is supported by the available contemporaneous documents.  The claimed cash withdrawals of $2,128,000, $107,084.80 and $66,820 on 9 July, 7 August and 1 September 2015 respectively are substantiated by the debit entries in the passbook of the Account.  As regards the sum of $94,000 mentioned in [28] above, Madam Leong’s evidence is that she raised the sum by using her Hang Seng Bank credit card to withdraw $90,000 by way of cash advances over several days, coupled with $4,000 given to her by Mr Lau.  The cash advance withdrawals of $90,000 can be seen from Madam Leong’s Hang Seng Bank credit card statement.  

51.  Fourth, her assertions about the involvement of the C&W Representatives are supported by the WhatsApp messages exchanged between herself on one hand and Wong and Li on the other.

52.  For these reasons, I am satisfied, and I find, that Madam Leong did (1) take out the Loan in reliance upon the false representations and assurances made to her by Wong and Leung as set out in [12], [14], [16], [17] and [18] above and (2) pay the Relevant Sums to the C&W Representatives as described in [21], [25], [26(2)] and [28] above.

F.  STATUTORY PROVISIONS GIVING RISE TO SET-OFF DEFENCE

53.  It is convenient at this point to set out the provisions of the MLO, the breach of which underpins Madam Leong’s first ground of defence (see [31(1)] above).

54.  Section 27(3) and (4) provide that:

“(3) Subject to section 33A(5)[13], it shall not be lawful for any money lender or his partner, employer, employee, principal or agent or any person acting for or in collusion with any money lender to charge, recover or receive any sum as for or on account of any such costs, charges or expenses (other than stamp duties or similar charges) or to demand or receive any remuneration or reward whatsoever from a borrower or intending borrower for or in connection with or preliminary to procuring, negotiating or obtaining any loan made or guaranteeing or securing the repayment thereof.

(4) If any money or money’s worth is directly or indirectly paid or allowed to or received by any person in contravention of this section, the amount or value thereof, to the extent of such contravention and notwithstanding any agreement to the contrary, may be recovered by the borrower from such person or, if such person is the money lender or a partner, employer, employee, principal or agent of the money lender or is in any way acting for or in collusion with him, may be set off against the amount actually lent (and that amount shall be deemed to be reduced accordingly) or may be recovered by the borrower from such person or from the money lender.” (footnote and emphasis added)

55.  The phrase “any person acting … in collusion with any money lender” also appears in s 29(10), which criminalises contraventions of s 27(3):

“(10) Any money lender or his partner, employer, employee, principal or agent or any person acting for or in collusion with any money lender who charges, recovers or receives any sum as for or on account of any costs, charges or expenses (other than stamp duties or similar charges) referred to in section 27(3) or demands or receives any remuneration or reward whatsoever from a borrower or intending borrower for or in connection with or preliminary to procuring, negotiating or obtaining any loan made or guaranteeing or securing the repayment thereof commits an offence.” (emphasis added)

G.  ARE THE RELEVANT SUMS PROHIBITED UNDER S 27(3)?

G1.  Are the Relevant Sums “costs, charges or expenses” or “remuneration or reward” within the meaning of s 27(3)?

56.  In my view, where other aspect(s) of the section are also satisfied, the Relevant Sums do fall within the types of payment targeted under s 27(3).

57.  In this regard, in deciding whether a sum would constitute “costs, charges or expenses” of or “remuneration or reward” for a loan, the true nature or substance of the payment should be considered, and not with regard to the falsehood under which the borrower was labouring under.  For ss 27(3) and (4) and 29(10) to be engaged, it is not necessary to find that the moneylender was somehow involved in the fraud pertaining to the payments defrauded from the borrower.  See Gain Wealth Global Credit & Investment Ltd v Chan Suk Fong [2020] 4 HKLRD 831 at [35] (Kwan VP).  

58.  In this case, the Relevant Sums could in my view be said to be the “remuneration or reward” levied by C&W in procuring the Loan for Madam Leong, or the “costs” for obtaining the Loan.  Credit One does not seriously dispute this.  

G2.  Did C&W through the C&W Representatives “collude” with Credit One?

59.  The true contention between the parties is as to whether C&W, acting by and/or through the C&W Representatives, was a person “acting … in collusion with” Credit One, to which question I now turn.

60.  In paragraphs 56 to 66 of his written closing submission, Mr Lui helpfully traces the legislative history of the MLO in general and ss 27(3) and (4) and 29(10) in particular.  He fairly accepts that the hansard material, whether regarding the MLO in general or ss 27(3) and (4) and 29(10) in particular, does not shed light on the meaning of the phrase “any person…in collusion with any money lender”. 

61.  However, I note that the common and recurrent theme that runs through the hansard material since the enactment of the MLO is that the legislative intent behind the MLO generally and ss 27 and 29(10) thereof is to combat loansharking and excessive rates of interest (including any incidental charges imposed upon the borrower).  Pausing here, as set out in [31(2)] above, if the amount actually lent by Credit One is found to be just $155,945.16, the enforcement of the Loan Agreement against Madam Leong would bring the effective rate of interest up to 993.38% per annum, which is on any view unconscionably (or even criminally) excessive. Credit One does not appear to dispute Madam Leong’s calculation of such effective interest rate.

G2.1  Case law on “collusion”

62.  What constitutes “collusion” is context specific. 

63.  In the present case, the context is the MLO and the legislative objectives sought to be achieved by such statute, which are to curb loansharking and grossly excessive interest rates.

64.  In HKSAR v Wong Kwok Wai (2013) 16 HKCFAR 191, the borrower went to company A for a loan of $15,000. After being told a loan of that amount had been approved, she was directed to company B where she was told that only a loan of $6,000 had been approved and that she had to pay $3,600 to guarantee repayment.  The borrower was then escorted to company C where she was given a cheque for $6,000.  After depositing the cheque and obtaining $6,000 in cash, the borrower had to part with $5,100 ($1,500 for administrative fee and $3,600 as guarantee), the borrower was left with just $700.  The “remuneration or reward” that was the subject matter of the charge under s 29(10) was the $3,600 deduction.  The applicant for leave to appeal to the Court of Final Appeal was convicted of acting in “collusion” with a moneylender to demand the $3,600 “remuneration or reward” from the borrower in violation of s 29(10).  

65.  In dismissing the leave application, Bokhary NPJ, giving the decision of the Appeal Committee, said at [8] that no point of law really arose on the meaning of “collusion”.  Regardless of the precise definition of this word, the applicant and the moneylender’s conduct in that case certainly fell fairly and squarely within such meaning.

66.  Tang PJ added at [11][14]:

“I agree. On such a charge, the question to ask and answer is whether the persons who are said to have acted in collusion were playing the same game. It should not be made more complicated.” (emphasis added)

67.  Tang PJ’s comment was applied and elaborated on in Ever-Long Finance Ltd v Yeung Wah Lung [2017] 1 HKLRD 500, an application to set aside a default judgment.  In that case, the defendant borrower was found to be a mentally incapacitated person, whereupon the judgment in default against him was held to be irregular and set aside for want of a guardian id litem having first been appointed to act for the defendant.

68.  Deputy District Judge Simon Ho said, obiter, at [86] – [93]:

“86. The word "collusion" under s.27(3) and (4) of MLO would no doubt need to be construed in its own statutory context against the whole of the Ordinance with its objective and intent in mind. One key purpose of MLO is clearly to protect the borrower from having to borrow money from others at excessive or extortionate interest rates. If one lends or offers to lend at an effective rate of interest exceeding 60% per annum (as specified in s.24) would commit an offence, and the loan agreement together with any collateral security would become illegal and unenforceable irrespective of whether the lender is a money lender or not. Section 25 is also enacted to protect a borrower from being subject to an extortionate loan transaction. Under s.25(2)(a), a transaction is extortionate if it requires the debtor or his relative to make payment which are grossly exorbitant. Under s.25(3), a loan transaction with effective rate of interest exceeding 48% per annum is also presumed to be extortionate. Under s.25(1)(b), the court if satisfied there is evidence of the transaction being extortionate, may reopen the transaction to do justice between the parties having regard to all the circumstances.

87. The long title of the Ordinance also expressly provides that:

‘To provide for the control and regulation of money lenders and money-lending transactions, the appointment of a Registrar of Money Lenders and the licensing of persons carrying on business as money lenders; to provide protection and relief against excessive interest rates and extortionate stipulations in respect of loans; to provide for offences and for matters connected with or incidental to the foregoing; and to repeal the Money-lenders Ordinance 1911. (original emphasis)’

88. Given the above proper perspective, it is clear to me that the purpose and design of s.27(3) and (4) is chiefly to prevent the aforesaid statutory protection afforded to a borrower from being stripped away or otherwise compromised by not only the money lender but also by any other related persons as mentioned therein in receiving costs, charges, expenses (other than stamp duties or similar charges), remuneration or reward from the borrower in addition to the interest charged by the money lender. Just like interest, these various sums (irrespective of whatever label given) are essentially the borrower's costs of borrowing from the money lender.

89. In this light, the "person in collusion with the moneylender" as mentioned under s.27(3) and (4) should be construed in such manner so far as its literal meaning and statutory context permit to enable the aforesaid statutory protection being effectively implemented.

90. Coming back to the guiding test of “playing the same game” as expressed by Tang PJ in Wong Kwok Wai to decide whether the person concerned has acted in collusion with the money lender against the aforesaid statutory backdrop, such person would appear to be one who identifies its interests with the money lender’s rather than the borrower’s. In my view, to qualify as the collusion under s.27(3) and (4), it would be sufficient for such person and the money lender to co-operate with each other to do or abstain from doing some act(s) with a view to facilitate the conclusion of the loan transaction against the borrower’s interest or otherwise to his prejudice. I take this to be the essence of the term “collusion” as appeared in s.27(3) and (4) to meet with the statutory intent and purpose, and in accordance with the test of “playing the same game” as expressed by Tang PJ in Wong Kwok Wai.

91. Mr Lau contends that “collusion” here means “conspiracy”, and the defendant must demonstrate there had been a prior agreement between the moneylender and the financial intermediary … to extract the consultancy fee from him. Mr Lau further submits that no evidence of such agreement can be discerned from Bonnie’s affirmation.

92. With respect, I do not accept such submission because “collusion” in the statutory context of MLO is in my view a wider concept than “conspiracy”. Proving “Conspiracy” is one of the ways to prove “collusion”, but that should not be the only way. Trickery may take different forms and the collusion under s.27(3) and (4) should not be narrowly construed as Mr Lau contends, otherwise it would unnecessarily hamper the effectiveness of s.27(3) and (4) in protecting the borrower under the statutory framework of MLO.

93. The conventional usage of “collusion” does not appear to be so confined as Mr Lau contends either. It seems to me that the natural and ordinary meaning of the term “collusion” under s.27(3) and (4) is broad enough to cover “co-operation between parties to deceive or otherwise to do harms to others”.”

69.  After citing DDJ Simon Ho’s above judgment, Deputy District Judge C To said in Gain Wealth Global Credit & Investment Ltd v Lam Hau Kay [2018] HKDC 796 at [70]:

“In my view, the cooperation may take many forms. The lender and the entities in collusion may act together or separately. They may act simultaneously, or in disjunctive temporal periods. They may act complementarily or supplementarily. They may appear to act independently, but if the arrangement including their roles and conduct taken as a whole is to facilitate the imposition of a charge or the receipt of a sum in connection with the procuring, negotiating, obtaining, guaranteeing and securing the repayment of the loan, such conduct should also be caught by the [MLO].”

70.  The above passages in Wong Kwok Wai; Ever-Long Finance and Gain Wealth Global Credit & Investment Ltd v Lam Hau Kay have since been quoted and applied in a number of District Court[15] and Court of First Instance[16] decisions.

71.  In Gain Wealth Global Credit & Investment Ltd v Chan Suk Fong [2020] 4 HKLRD 831[17], Kwan VP (giving the judgment of the Court of Appeal) approved at [49] the principles set out by DDJ Simon Ho in Ever-Long Finance.  Her Ladyship added at [35] that for ss 27(3) and (4) to be engaged:

“…it is not necessary to find that the money lender was somehow involved in the fraud pertaining to those payments. Whatever the object of the plaintiff’s collusion might be as regards the defrauded monies is irrelevant.”

72.  Mr Lui contends that as a matter of proper construction, the phrase “any person…in collusion with any money lender” in s 27(3) does not cover situations where the moneylender has no knowledge of the existence or involvement of the person taking monies from the borrower.

73.  Assuming that Credit One has no direct knowledge of the existence or involvement of C&W or the C&W Representatives taking monies from Madam Leong, Mr Lui prays in aid the ejusdem generis maxim.  Counsel suggests that since the phrase “any person…in collusion with any money lender” is preceded by specific references to the moneylender being in partnership etc with the person with whom it has allegedly colluded, the phrase should likewise only cover persons or entities of whom the moneylender has knowledge in terms of existence or involvement in the loan transaction.  

74.  Mr Lui further contends that the “playing the same game” test mentioned by Tang PJ in Wong Kwok Wai was obiter and required elaboration, and that in many civil cases decided by the Court of First Instance or the District Court (including Ever-Long Finance and the first instance decisions in Gain Wealth and Skyline Credit), it was found that the plaintiff moneylender actually co-operated with the fraudulent intermediary and had communication with or knowledge of the latter’s role.

75.  I am inclined to accept that to show collusion under s 27, the moneylender should have knowledge of the existence of the relevant intermediary.  As a matter of common sense and plain language, the words “collusion” (the wording used in s 27) and “cooperation” (the wording used by DDJ Ho in Ever-Long Finance and approved by the Court of Appeal in Gain Wealth and Skyline Credit) would require the moneylender and the intermediary to be aware of the existence of each other.  DDJ C To’s statement at [7] in Gain Wealth Global Credit & Investment Ltd v Lam Hau Kay is concerned only with the flexible manners in which collusion may take place.

76.  However, as confirmed by the Court of Appeal in Gain Wealth, it is unnecessary to show any conspiracy (between the moneylender and the intermediary) to extract payment from the borrower.  There is also no need to show that the moneylender was involved in or even had knowledge of the fraud practised by the intermediary.  Mr Lui did not seek to contend otherwise.

G2.2  Analysis of the evidence in the present case

77.  Having regard to the authorities and principles set out above, to my mind, the key question is whether Credit One and C&W and its representatives were “playing the same game” or “cooperated with each other to do or abstain from doing something with a view to [facilitating] the conclusion of the [Loan Agreement] against [Madam Leong]’s interest or otherwise to [her] prejudice”.  

78.  In light of the following evidence and findings, I answer this question in the affirmative.

79.  First, the proper inference to be drawn from the pleadings and the evidence before the court is that C&W referred or introduced the Loan to Credit One:

(1)  Madam Leong’s unchallenged evidence is that she had never heard of Credit One before until Leung informed her by telephone on 7 July 2015 that Credit One would be the lender of the $2,600,000 loan.

(2)  Credit One does not have a positive case as to how it came to know, and then grant the Loan to, Madam Leong.  There is no plea, for example, that Madam Leong had approached Credit One directly, or that Credit One had approached her directly, or that they were introduced to each other by some other agents or intermediaries.  In this regard, I note that while it is stated in paragraph 40 of Mr Lam’s witness statement that “[Credit One] did receive the referral of [Madam Leong] from [CML]”, Credit One’s solicitors subsequently clarified via its letter of 8 August 2018 that there was a typographical error and that what Mr Lam meant to say was that Credit One “did not” receive any referral from CML.

(3)  Mr Lam testified in re-examination that the Loan was facilitated by Credit One’s “own agent” which had been paid. If by such assertion Mr Lam was seeking to suggest that the Loan was introduced by an intermediary other than C&W, then I reject the evidence since no such case has been pleaded by Credit One and it is unacceptable for unpleaded issues to be raised out of the evidence: Kwok Chin Wing v 21 Holdings Ltd (2013) 16 HKCFAR 663 at [21] (Ma CJ).  In this connection, I cannot stress enough that shortly before the trial, G Lam J (as he then was) had refused Credit One’s application to amend its pleadings, which sought to change its case of non-admission to one of denial by alleging that the Loan was introduced by a certain agent to Credit One.

80.  Second, I also infer and find that it was the C&W Representative(s) who liaised with Credit One and helped set up the meeting at the Credit One Office on 9 July 2015:

(1)  Madam Leong’s unchallenged evidence is that it was Leung who asked her on 7 July 2015 to reserve the entire day of 9 July 2015 for the purpose of signing the loan documents.  It is no part of either side’s pleaded case that Credit One contacted Madam Leong directly to fix the appointment.

(2)  Mr Lam testified during cross-examination that one of his subordinates, Ms Chan Chi Ying Cheyenne (“Ms C Chan”), had directly called Madam Leong prior to 9 July 2015 to discuss the loan details and make an appointment to sign the loan documents.  I reject such evidence as Ms C Chan did not give evidence and Madam Leong, who positively denied having received such a call during examination-in-chief, was not cross-examined.

(3)  Accordingly, I find that there was no direct communication between Credit One and Madam Leong for fixing the 9 July 2015 appointment at the Credit One Office.  That being so, the most natural and compelling inference to be drawn is that the appointment was arranged between Credit One and C&W, after which the date was relayed by C&W back to Madam Leong via Leung’s telephone call on 7 July 2015. 

81.  Third, I am satisfied that the C&W Representatives also helped Credit One collect the Supporting Documents from Madam Leong.

(1)  It is Madam Leong’s unchallenged evidence that Leung collected the Supporting Documents from her when they met at the C&W Office on 6 July 2015.

(2)  There is no suggestion from either side that the Supporting Documents, which were required for preparing and drawing up the Loan Agreement, were given by Madam Leong to Credit One by other means, for example directly or via another intermediary.

(3)  Accordingly, the irresistible inference is that after collecting the Supporting Documents from Madam Leong on 6 July 2015, Leung (or someone else in C&W) passed them to Credit One.

82.  Fourth, Wong brought Madam Leong to the Credit One Office and was seen by a staff of Credit One (who was identified as a Ms Chan) to be accompanying Madam Wong.

(1)  This is Madam Leong’s evidence, which I accept.

(2)  Mr Lam admitted that he had never met or communicated with Madam Leong (whether on 9 July 2015 or otherwise), and has no first-hand knowledge of what Madam Leong heard or said on 9 July 2015 at the Credit One Office or CC’s office, so he is in no position to contradict this part of Madam Leong’s evidence.

(3)  Likewise, Ms Chan claimed (and I accept) that the “Ms Chan” who met with Madam Leong on 9 July 2015 was Ms C Chan rather than herself, so Ms Chan cannot challenge Madam Leong’s evidence either.

83.  Fifth, it must be evident to Credit One that the Loan was so patently prejudicial to and against the interest of Madam Leong that there was no rational reason for her to enter into the Loan Agreement:

(1)  The face amount of the Loan ($2,600,000) far exceeds that of the Po Shing Loan ($200,000) or, more precisely, the principal then still outstanding under such prior loan (which was $138,965.16 only). 

(2)  She had no other debts or liabilities. 

(3)  She had no genuine financial need for a $2.6 million loan at the time.

(4)  Yet, the pre-default monthly repayment of the Loan ($53,515) was about 8 times more than that of the Po Shing Loan ($6,470.68).

(5)  Madam Leong was financially incapable of repaying $53,515, not to mention $65,772, per month for 180 months.

(6)  Madam Leong’s financial incapability to repay the Loan was, or would have been, plain and obvious to Credit One, having regard to her age, low education level, the humble nature of her job before retirement, her retiree status, lack of gainful employment or any other source of income, all of which should cause one to seriously question her repayment ability.

84.  Mr Lam gave evidence that Madam Leong “had made several representations to us that she is affordable to repay the loan” and “had made different assurances to us that she will repay the loan despite the loan is at a large amount”.  I reject such evidence because (1) it is denied by Madam Leong who was not cross-examined; (2) there is no detail as to when, how or where such representations or assurances were made; and (3) Mr Lam admitted that he had never contacted Madam Leong and had no first-hand knowledge of what she had gone through at the Credit One Office and CC’s office on 9 July 2015.

85.  Mr Lui draws my attention to the loan approval form, loan application form and property valuation form relating to the Loan.  He submits that those internal documents show that Credit One had genuinely processed and considered Madam Leong’s loan application.  I do not think these documents can alter the objective fact that the Loan was beyond Madam Leong’s means.  Nor can these documents show that Credit One genuinely believed that Madam Leong needed, or could repay, the Loan.  Indeed, the loan application form recorded that Madam Leong was a 60-year-old housewife without any source of income while the loan approval form recorded that Madam Leong’s only debt was the outstanding sum under the Po Shing Loan which amounted to just $135,433.  I note that in these documents, the purpose of the Loan, apart from repaying the Po Shing Loan, was stated to be “investment” (投資用途). However, I accept Madam Leong’s evidence that she, as instructed by Wong, only told Ms C Chan that she intended to use the Loan for a business in the Mainland (拿來回內地做生意).  There is no evidence that Credit One had asked any follow up questions, or taken any steps whatsoever, to verify such bare assertion by Madam Leong who had so far not had any business experience.  To my mind, Credit One could not have reasonably believed (and did not believe) that the Loan was in Madam Leong’s interest or within her repayment ability.

86.  Mr Lui also draws my attention to the internal Work Guideline (工作指引) published by Credit One which was applicable at the time the Loan Agreement was signed.  However, there is nothing in this document to suggest that Credit One genuinely believed that Madam Leong needed, or had the financial ability to repay, the Loan.

87.  During re-examination, Mr Lam said that for loans that are repayable by 180 instalments, in his experience around 70-80% of Credit One’s clients would be able to fully repay such loans within 6 months to 2 years.  In my view, such alleged past experience (even if true) could hardly provide a sufficient basis for Credit One to think that the borrower in this particular case (i.e. Madam Leong) would be able to repay the Loan, given her said personal circumstances and the sheer size of the Loan.

88.  Mr Lui further submits that the court should not ignore the security for the Loan and that, insofar as Credit One was concerned, it was happy to lend to Madam Leong on the strength of the Charge.  I am prepared to accept that Credit One granted the Loan on the strength of the Charge, but it seems to me that this matter has no bearing on the pertinent question at hand, namely whether the Loan was prejudicial to, and beyond the means of, Madam Leong.  The Charge may well explain why Credit One thought that it was in its own interest to grant the Loan, but it cannot logically explain why Credit One thought (if it did) that it was in Madam Leong’s interest to obtain the Loan.

89.  Sixth, I reject Mr Lui’s submission that Credit One had no knowledge of the existence of the C&W Representatives because none of the contemporaneous documents discovered by Credit One mentions any of their names.  I find the lack of such explicit reference in the documents immaterial and unsurprising considering Mr Lam’s admission during cross-examination that Credit One was trying to avoid a “paper trail” of Credit One’s payment to its actual and direct intermediary.  Mr Lam explained that Credit One sought to achieve this through a debit note purportedly issued by CML dated 9 July 2015 for $39,000 in respect of “service fee for above credit facility application thereto”, which document is obviously false and misleading because (as Mr Lam himself admitted) CML never provided any services to Madam Leong.  I accept Mr Pao SC’s submission that the purpose of the debit note was to provide an avenue through which Credit One could hide the truth, particularly the identity of the actual intermediary.

90.  Lastly, it is also Mr Lui’s submission that since Madam Leong has only pleaded a case of fraudulent collusion between the C&W Representatives and Credit One, it is not open for her to now run a case of “collusion” without suggesting fraudulent conduct on the part of Credit One. I reject this argument.  I am satisfied that Madam Leong has adequately pleaded, paragraph 25 of the re-re-re-amended defence and counterclaim, the case she runs in evidence at. 

91.  For the above reasons, I conclude that C&W and the C&W Representatives (Wong, Li and Leung) were persons acting in collusion with Credit One within the meaning of s 27(3) and (4).  It should be clear from the above analyses that I am specifically persuaded, on the pleadings and evidence before me, that Credit One (1) was aware of the existence of C&W and the C&W Representatives at the time of conclusion of the Loan Agreement and (2) was playing the same game with C&W and the C&W Representatives “for or in connection with or preliminary to procuring, negotiating or obtaining [the Loan] or guaranteeing or securing the repayment thereof”.

H.               CONSEQUENCES OF THE FACTUAL FINDINGS

92.  Given my findings in sections E and G above, Credit One’s claims in this action must be dismissed on the ground that the Loan Agreement falls foul of s 24(2).

93.  Section 24 provides materially that:

“(1) Any person (whether a money lender or not) who lends or offers to lend money at an effective rate of interest which exceeds 60 per cent per annum commits an offence.

(2) No agreement for the repayment of any loan or for the payment of interest on any loan and no security given in respect of any such agreement or loan shall be enforceable in any case in which the effective rate of interest exceeds the rate specified in subsection (1).”

94.  Section 2(1) provides that “interest” does not include any sum lawfully agreed to be paid in accordance with the MLO on account of stamp duty or other similar duty, but includes any amount (by whatever name called) in excess of the principal, which amount has been or is to be paid or payable in consideration of or otherwise in respect of a loan; while “effective rate” means the true annual percentage rate of interest calculated in accordance with Schedule 2 to the MLO.  

95.  To qualify as “interest” under s 2(1), the amount is not required to be paid or payable to the lender or its agent; it could be paid to someone else so long as it is “paid or payable in consideration of or otherwise in respect of a loan”: see Gain Wealth at [55].

96.  Section 2(1) defines “principal” as “the amount actually lent”.  This is a question of fact, not a question of law.  Money is lent if it is applied by the lender to the purposes of the borrower in any way which the borrower authorises but should not include any sums handed back by the borrower to the lender as a pure gift or not in the satisfaction of any obligation: see Gain Wealth at [57].

97.  Where money is paid in contravention of s 27, s 27(4) gives 3 additional and/or alternative remedies to the borrower, one of which being that the borrower may set off the money against the amount actually lent.  The choice rests with the borrower.  The lender does not have the right to invoke s 27(4).  See Gain Wealth at [65].

98.  In this case:

(1)  It is common ground that the Loan should not include the sums of $1,200 (valuation fee), $39,000 (service fee to CML) and $7,950 (CC’s costs and disbursements) deducted by Credit One.

(2)  In addition, given my findings above that Madam Leong had paid the Relevant Sums to the C&W Representatives who were acting in collusion with Credit One, in calculating the “amount actually lent” by virtue of s 27(4), the Relevant Sums should be deducted.  Accordingly, the true principal of the Loan was only $155,945.16 (i.e. $2,600,000 – $1,200 – $39,000 – $7,950 – $2,128,000 – $107,084.84 – $66,820 – $94,000).

(3)  Madam Leong was obliged under the Loan Agreement to pay Credit One 180 monthly instalments of $65,772 each (or $11,838,960 in total). Such payment (after deducting the true principal of the Loan in the amount of $155,945.16) was payable to Credit One, in excess of the principal of the Loan, and “in consideration of or otherwise in respect of” the Loan.

(4)  Mr Pao SC submitted that, working with these amounts of principal and interest, the effective rate of interest of the Loan (calculated in accordance with Schedule 2 to the MLO as set out in the table in the schedule to the re-re-re-amended defence and counterclaim) would be 993.38% per annum.  Credit One does not dispute this calculation and has not put forward any rival computation.

(5)  Since the effective rate of interest of the Loan exceeds 60% per annum, pursuant to s 24(2), I find that neither the Loan Agreement nor the Charge is enforceable.  The court has no discretionary power to uphold or re-open the transaction.

99.  In the circumstances, it is unnecessary for me to deal with the other defences raised by Madam Leong.

I.  DISPOSITION

100.  For the reasons stated above, I dismiss Credit One’s claim and allow Madam Leong’s counterclaim for (1) a declaration that the Loan Agreement and the Charge are unenforceable at law and (2) an order that the registration of the Charge against the Property be forthwith vacated from the Lands Register.

101.  I further make a cost order nisi that Credit One shall bear the costs of this action, such costs to be taxed on a party and party basis if not agreed, while Madam Leong’s own costs shall be taxed in accordance with the Legal Aid Regulation (Cap 91A). This cost order nisi will be made absolute unless the parties take out a summons to vary it within the next 14 days.

102.  I thank Mr Pao SC and Mr Lui for their able assistance.

[1] See [25] above.

[2] See [21] above.

[3] See [26(2)] above.

[4] See [28] above.

[5] Ditto.

[6] See [22] above.

[7] See [23] above.

[8] See [24] above.

[9] Credit One volunteers to waive and deduct the sums of $1,200 (valuation fee), $39,000 (CML’s “service fee”) and $7,950 (CC’s costs and disbursements) from the Loan.

[10] See [2019] 4 HKLRD 591.

[11] Whether the court would have accepted it is another matter.

[12] Both managers of Credit One.

[13] Section 33A(5) is immaterial here.

[14] Quoting Sakhrani J in Famous Zone Electronics Ltd v Hong Kong and Shanghai Banking Corp Ltd, HCA 10349/1997, unreported (5 June 1998), which was an appeal from the dismissal of the defendant’s application for interpleader relief.  Under Order 17 of the Rules of the High Court (Cap 4A), an applicant for interpleader relief must satisfy the court that he does not collude with any of the claimants of the subject matter.  In considering the meaning of “collusion” under Order 17, Sakhrani J observed that “[i]t is plain that collusion as used in Order 17 does not necessarily connote anything sinister on the part of the applicant”.  In the specific context of Order 17, collusion “does not necessarily involve anything morally wrong” and “may be said to be an equivalent for playing the same game” (page 5).

[15] See, e.g. E-way (Hong Kong) Property Credit Ltd v Fung Wing Tim [2019] HKDC 39; Sit Ka Man v Field Finance Ltd [2021] HKDC 864; Actually Financial Ltd v Wong Pui Miu [2022] HKDC 82; and Shun On Finance Ltd v Wong Fung Kwan [2022] HKDC 240.

[16] See, e.g. the first instance decisions in Gain Wealth Global Credit & Investment Ltd v Chan Suk Fong [2018] HKCFI 2666; and Skyline Credit Limited v Leung Hing Chung [2019] HKCFI 169.

[17] See also Skyline Credit Ltd v Leung Hing Chung [2022] 4 HKLRD 561 at [33] (Kwan VP).