XIAO ZHIYONG v. ASIA EQUITY VALUE LTD

HCSD 46/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

APPLICATION TO SET ASIDE A STATUTORY DEMAND

NO 46 OF 2016

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J U D G M E N T

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Introduction

1.  By a Statutory Demand, Asia Equity Value Ltd (“AEVL”) demanded the Applicant to pay HK$46,786,279. in respect of debts due under a personal guarantee (“the Guarantee”).

2.  The Applicant disputes the alleged indebtedness on 2 broad grounds, namely,

(a) That the Money Lenders Ordinance, Cap 163 (“MLO”) was breached.  AEVL was and is an unlicensed money lender. The loan agreements contravened MLO in charging an effective rate of interest of not less than 111% per annum and in increasing the interest rate on default.  The Guarantee, executed as security for the loans, was also tainted with illegality and hence unenforceable;

(b) That the Guarantee and a Deed of Confirmation he signed were void by reason of non est factum.

3.  AEVL denies, through counsel’s submission, that it was a money lender.  It claims that the loans were exempted loans under MLO, secured by floating charges, book debts or equitable mortgages.

4.  The issues are therefore:

(a) Whether AEVL was a money lender within the meaning of the MLO;

(b) Whether the loans were exempted loans under MLO;

(c) Whether the loan agreements were illegal for charging an effective rate of 111% per annum for interest;

(d) Whether the loan agreements were illegal for charging an increased rate of interest on default.

Case of the Applicant

5.  The Applicant, Mr Xiao Yanping and Mr Xiao Guosheng were fellow townsmen.

6.  In or around June/July 2014, the 2 Mr Xiao, who were shareholders/directors of Alliance Capital Ltd (“Alliance”) and Guotai Global Investment Company Ltd (“Guotai”), told the Applicant that Alliance and Guotai were financially strained and would like to borrow money.  Alliance and Guotai were shareholders of Bolina Holding Co Ltd (“Bolina”), of which the Applicant was the Chairman.

7.  The Applicant asked Mr Yuen Chi Wai, Stanley (“Stanley Yuen”), the then Chief Financial Officer and Company Secretary of Bolina, to offer assistance and make the necessary arrangements.

8.  Stanley Yuen had since played a significant role in introducing AEVL to the 2 Mr Xiao, being their contact person, and making all the arrangements for agreements to be signed.  He also undertook the role of explaining the contents and effect of the agreements to the borrowers and guarantors including the Applicant.

9.  In or around August 2014, Stanley Yuen put in touch Alliance and Guotai (collectively “the Borrowers”) with AEVL.  AEVL was willing to lend a total of HK$150,000,000 to the Borrowers on the condition that they provided their shares in Bolina as security.

10.  Guotai’s shares in Bolina could not be made available at that time, but Alliance was in desperate need of money.  So the following interim arrangement was made:

(i) AEVL was to provide a loan of HK$100,000,000 to Alliance as Bridging Loan pursuant to a Facility Letter dated 14 August 2014. The Bridging Loan shall be repaid within 30 days of the advance in the sum of HK$109,250,000.

(ii) Once Guotai’s shares in Bolina were ready to be charged, both Alliance and Guotai would enter into convertible loan agreements with AEVL (collectively “the Convertible Loan Agreements”).

(iii) AEVL would then advance a further sum of HK$50,000,000 to Guotai, making a total loan of HK$150,000,000 to the Borrowers.

11.  AEVL required 3 personal guarantees and 1 corporate guarantee for the Bridging Loan to Alliance.

12.  Stanley Yuen told the Applicant that the Guarantee (as well as the other guarantees to be executed by other guarantors) was also of an interim measure such that once the Borrowers’ shares in Bolina were ready to be charged and the Convertible Loan Agreements executed and effected, all the guarantees would be discharged.  On that basis, the Applicant agreed to provide the Guarantee and a corporate guarantee.

13.  On 14 August 2014, the Applicant, together with the 2 Mr Xiao, were led by Stanley Yuen to the office of a law firm in Central, Hong Kong, where they were given several documents to sign. The Applicant and the 2 Mr Xiao did not understand English at all.  No one explained the terms of the documents (which were all in English) to them, save that Stanley Yuen repeated what he told the Applicant in the preceding paragraph and told him that the other document (ie the Deed of Confirmation) was a document which confirmed the same.  The Applicant was only shown the execution pages of the documents, and was urged by Stanley Yuen to sign on each of them.

14.  The meeting only lasted for less than half an hour.  The Facility Letter was executed by Mr Xiao Yanping on behalf of Alliance.  The Applicant signed the Guarantee and the Deed of Confirmation in his personal capacity and, on behalf of Max Lucky Group Limited (“Max Lucky”), signed a corporate guarantee and a deed of confirmation, in favour of AEVL.

15.  The Alliance Collateral Loan Agreement was executed on 14 August 2014 and the Guotai Collateral Loan Agreement on 10 September 2014.

16.  There is a dispute of facts as to when the Deed of Confirmation (and Max Lucky’s Deed of Confirmation) were executed:

(a) According to the Applicant, it was on 14 August 2014.  He has not signed any other documents relating to this transaction on any dates except 14 August 2014.

(b) According to AEVL, the Applicant delivered the Deed of Confirmation to AEVL on or about 10 September 2014.

17.  Subsequently, Alliance had deposited 50,000,000 Bolina shares into an account with Quam Securities Company Limited (“Quam Securities”) and AEVL had advanced the sum of HK$100,000,000 (with some charges deducted).

18.  Guotai had deposited 22,850,000 Bolina shares into an account with Quam Securities and AEVL had advanced the sum of HK$50,000,000.

19.  Upon learning of the matters in paragraphs 17 and 18, the Applicant considered that his obligation and that of Max Lucky under the respective guarantee had been discharged.

20.  On 28 October 2015 the Applicant received demand letters (also sent to the Borrowers and other guarantors) from AEVL’s solicitors. 

21.  At that time, Stanley Yuen had already left Bolina.  Having heard his own assistant explain to him, the Applicant began to discover the true nature of the Guarantee and that Stanley Yuen had misrepresented to him.  The Guarantee and Deed of Confirmation were fundamentally different from what the Applicant thought he agreed to and signed.

22.  The Applicant also learnt that the 2 Mr Xiao had paid HK$15,000,000 into a bank account designated by Stanley Yuen as arrangement fee.  The Applicant claimed that Stanley Yuen had abused the trust and confidence he had reposed on him.

23.  The 2 Mr Xiao repaid the loans in part.  AEVL sold some of the Bolina shares before issuing the statutory demand.

24.  The Applicant submits that he has a genuine defence to the alleged indebtedness, based on substantial grounds of law and of facts.  In addition, he did not know if AEVL had taken into account the part repayments of the Borrowers and the sale proceeds of the Bolina shares in the statutory demand. AEVL said it had and was only charging 15% interest.

Legal principles on setting aside a statutory demand

25.  The legal principles are not in dispute.  The Court may set aside the statutory demand if the debt is disputed on grounds which appear to the Court to be substantial: rule 48(5)(b) of the Bankruptcy Rules, Cap 6A.

26.  In determining whether a debt is disputed on substantial grounds, the burden is on the debtor/applicant and the Court must take a view, based on the evidence as presented by the parties, whether the evidence shows that there is a genuine triable issue that the debt is disputed on substantial as opposed to trivial or frivolous grounds: Lee Pui Chun v Cheng Chi Wah & ors, unrep, HCSD 13/2016, 5 October 2016 at §7 per Ng J; Hong Kong Civil Procedure 2017, Vol 2 at §I1/39.

27.  Compared to resisting summary judgment, the test for establishing a bona fide defence here is higher: Re Leung Cherng Jiunn [2016] 1 HKLRD 850, §27.

28.  As the Applicant is a guarantor instead of the borrower, if the borrower has some valid defence to a claim by the creditor, a guarantor can also take advantage of that defence: Chitty on Contracts (32^nd ed) at §45-099.

Whether AEVL was a money lender within the meaning of the MLO

29.  Section 2 of the MLO defines a “money lender” as

“every person whose business (whether or not he carries on any other business) is that of making loans or who advertises or announces himself or holds himself out in any way as carrying on that business.”

30.   “Loan” is defined in section 2 of the MLO as including

“advance, discount, money paid for or on account of or on behalf of or at the request of any person, or the forbearance to require payment of money owing on any account whatsoever, and every agreement (whatever its terms or form may be) which is in substance or effect a loan of money, and also an agreement to secure the repayment of any such loan, and “lend” (貸出) and “lender” (貸款人) shall be construed accordingly”.

31.  Whether a person is carrying on business as a money lender under section 2 MLO and whether one transaction is enough to constitute a business have been summarized in Chan Miu Chu Zoe v Choi Chiu Yuk, HCA 698/2012, 21 February 2014 at §21:

“a. The issue is a matter of fact to be determined by the court for each case. It is not possible to set out any description or definition, still less fixed formula for the determination of this issue. Each case must depend on its own facts. …

b. The number of transactions made by the lender is not the determining factor. The court has to look at all the relevant facts of the case. Even one transaction may be sufficient if there is evidence to show that the lender was a money-lender at the time of the transaction. …

c. The proper approach for the court to determine this issue is to look at the evidence to determine if the lender was, at the material time, a money-lender within the meaning of the Ordinance, and if so, it is not necessary to consider further. If there is no such evidence, the court then should look for other evidence as, at the relevant time, whether the lender had advertised or held out as a money-lender…

d. … even if the lender made the loan at remunerative interest rates and with proper security, this might not be an indicia of a money-lender…

e.   In an Order 14 application where the court will not conduct a mini-trial on the affidavits, the court may make a summary judgment if the defendant is clearly unable to adduce any evidence to support the allegation that the plaintiff was, at the material times, a money-lender.  ...”

32.  Despite the Applicant’s assertions throughout his affirmations that AEVL was in the business of money lending, AEVL has neither agreed nor denied such assertions but merely asserted that the loans were exempted loans.  It was only through counsel that AEVL denied it was a money lender.

33.  I agree with Mr Hui that there was evidence of AEVL being a money lender.  Even if AEVL had only ever granted the loans in question, the loan documentation was sophisticated and professionally drafted.  The loans were made to strangers and were substantial.  The loans were well structured, with a bridging loan, a deferred structuring fee and required security.  The interest rate as stated in the Facility Letter was, as shall be demonstrated, extremely high.  Even the rate of interest purportedly charged in relation to the statutory demand was 15%, well above banks’ best lending rate.

34.  Accordingly, there is a good arguable case that AEVL was a money lender and it did not have a license.

Whether the loans were exempted loans under MLO

35.  AEVL avers that the Facility Letter and/or the Convertible Loan Agreements were and are secured and hence were “exempted loans” within the meaning of paragraph 2 of Schedule 1 to Part 2 of the MLO (“MLO Schedule §2”). The security was in the form of registrable floating charges, book debts or equitable mortgage under the Companies Ordinance (“Cap 622”).

36.  MLO Schedule §2 provides that a loan is an “exempted loan” if it is:

(1)  a loan made to a company secured by a mortgage, charge, lien or other encumbrance;

(2)  which would, in the case of a company incorporated outside Hong Kong (see paragraph (b) or (c) of the definition of “company” in section 2(1) of Cap 622);

(3)  where the mortgage, charge, lien or encumbrance is created on or after that commencement date (ie 3 March 2014);

(4)  be able to be registered under Cap 622 if the company were incorporated under that Ordinance.

37.  Alliance and Guotai fell within the definition of “company” though they were incorporated in the BVI.  The first 3 requirements were met.  The sole issue is whether requirement (4) was satisfied.

38.  A loan to a company by way of a charge is registrable under section 334 of Cap 622.  Section 334(1) lists the charges to which the section applies:

“(a) a charge on uncalled share capital of the company;

(b) a charge created or evidenced by an instrument that, if executed by a natural person, would require registration as a bill of sale;

(c) a charge on land (wherever situate) or any interest in land, except a charge for any rent or other periodical sum issuing out of land;

(d) a charge on book debts of the company;

(e) a charge on calls made but not paid;

(f) a charge on instalments due, but not paid, on the issue price of shares;

(g) a charge on a ship or any share in a ship;

(h) a charge on an aircraft or any share in an aircraft;

(i) a charge on –

(i) goodwill;

(ii) a patent or a licence under a patent;

(iii) a trademark; or

(iv) a copyright or a licence under a copyright;

(j) a floating charge on the company’s undertaking or property.”

(underline added)

39.  A fixed charge on shares is not one of the categories.  See the commentary on section 80(2) of the former Companies Ordinance (Cap 32), from where section 334 of Cap 622 was derived: Butterworths Hong Kong Company Law Handbook (2013), 15^th ed, at [80.02].

40.  A fixed charge is one that, without more, fastens on ascertained and definite property or property capable of being ascertained and defined: Lo & Qu, Law of Companies in Hong Kong, 2^nd ed, §17.069.

41.  On the other hand, a floating charge is on a fluctuating body of assets under the control of the chargor.  In re Cosslett (Contractors) Ltd [1998] Ch. 495, at 510C, the English Court of Appeal so describes a floating charge:

“The essence of a floating charge is that it is a charge, not on any particular asset, but on a fluctuating body of assets which remain under the management and control of the chargor, and which the chargor has the right to withdraw from the security despite the existence of the charge. The essence of a fixed charge is that the charge is on a particular asset or class of assets which the chargor cannot deal with free from the charge without the consent of the chargee. The question is not whether the chargor has complete freedom to carry on his business as he chooses, but whether the chargee is in control of the charged assets”

42.  If one finds that by the charge it is contemplated that, until some future step is taken by or on behalf of those interested in the charge, the company may carry on its business in the ordinary way as far as concerns the particular class of assets, this is the hallmark of a floating charge and serves to distinguish it from a fixed charge: Arthur D Little Ltd v Ableco Finance LLC [2003] Ch 217, per DHCJ Kaye QC at §34, following Romer LJ in In re Yorkshire Woolcombers Association Ltd [1903] 2 Ch 284, 295.

43.  In summary, in the case of a floating charge, the “autonomy” over the charged assets is with the chargor, who can deploy the assets for his business until the charge is crystallized. 

44.  Further, the Charges must be able to be registered under Cap 622.Therefore, it was irrelevant that the Collateral Agreements (containing the Charges over Bolina shares) were purportedly registered by AEVL at the Registrar of Corporate Affairs in the BVI.

45.  Mr Alder did not dispute all these principles.  However, he submits that:

(a)  Either the Charges that were created were “floating charges” or charges over “book debts”; or

(b)  The agreements constituted equitable mortgages.

Were the Charges floating charges?

46.  Mr Alder gave the following reasons for suggesting that the Charges were floating charges:

(a) No particular shares in Bolina were charged.  Clause 2.1.1 required the Chargor to deposit a certain number of Bolina shares into an account to be opened with Quam Securities. Once the account was opened, any shares could have been used to fulfil the obligation. If the Chargor had immediately breached that obligation, all that the Chargee would have was a right to damages.  There would be no fixed charge over anything.

(b) The Charged Securities were the contents of the Charged Account from time to time. This covered various types of assets, including various securities, dividends and interest in the Account: Clause 4.2.

(c) The Charged Account was not an account with the Chargor, but with a third party, Quam Securities. Further, if money was credited to the Charged Account by Quam Securities eg following a dividend, it would not reduce the indebtedness, unlike indebtedness owed to a bank.

(d) There was a top-up mechanism in Clause 3. This showed that the Chargor was not content to take fixed security over particular shares, as might be so eg in the case of a particular loan to a borrower to buy a particular parcel of shares in a private company where the lender took a fixed charge over those very shares. Rather, what the Chargee was seeking by the instrument was a particular level of security.

(e) Under Clause 2.2 the Chargor had a right to withdraw certain shares in certain circumstances within 5 days of the agreements coming into force. Thus, any shares the subject of such a withdrawal would cease being subject to any fixed charge, if there was ever one.

(f) While it was true that withdrawals from the Charged Account required the Chargor’s consent, there was no reason to think such consent would not be forthcoming, provided that a comfortable level of security existed. Indeed, it would be in the Chargee’s interest to allow the Chargor to trade and improve its financial position so as to enhance its ability to repay the indebtedness.

(g) If shares in the Charged Account went up significantly in value, the Chargee may well permit certain shares or dividends to be withdrawn and used in the Chargor’s business (provided it remained adequately secured). If the shares then went down significantly, the Chargee would require a top-up. This would not happen with a fixed charge over a fixed particular parcel of shares eg shares in a subsidiary.

(h) Under Clause 3.5 (Alliance Collateral Agreement) and Clause 3.4 (Guotai Collateral Agreement), the Chargor was permitted to make withdrawals of Shares, where permitted to do so under the Loan Agreement.  Under Clause 5.2 of each Convertible Loan Agreements (as supplemented by Schedule 7), the Chargor may repay the loan by transferring shares. The Chargor may do this without any permission from the Chargee, and such repayment can be in any amount.  Any shares in the Charged Account could be used for this purpose because the shares within the account are fungible. Clause 5.2 did not give a right to the Chargee to say no.

(i) Thus, the overall effect of the instruments is that there might well be ‘throughput’ in the Charged Account and its contents might change from time to time over the life of the security.

47.  Mr Alder distinguishes Arthur D Little in that the subject matter of the charge there were all the shares in a subsidiary, whereas in the present case, the Charges were on fungible shares in a listed company. 

48.  I note that the Charges in the present case were described as “first fixed charge” in Clause 4.1 of each of the Collateral Agreements.  Such description might show the intention of the parties but it was not determinative.  Whether a charge is to be categorized as fixed or floating is to be determined by looking at the effect of the terms and provisions of the debenture in the light of the circumstances prevailing when the charge was created: Arthur D Little, §31.

49.  With respect to Mr Alder, I do not think it was the percentage of shareholding in Bolina that would distinguish a fixed charge from a floating charge. 

50.  Once the shares were deposited with Quam Securities, Clause 8.2 of the Collateral Agreements prohibited the Borrowers from dealing with the shares in the Charged Account without the consent of AEVL.  The Borrowers lost autonomy over them.

51.  In fact, in my view, the points he raised in paragraph 46 above pointed more to the Charges being in the nature of floating charges.  The clauses quoted in paragraph 46 showed that the terms of the Collateral Agreements were very restrictive (“straight-jacket”, to use the terminology of Mr Alder) and fairly protective of the Chargee.

52.  Even if one were to believe that AEVL would not unreasonably withhold its consent, it was clear from paragraph 46(f) above that the consent would be subject to conditions. 

53.  More importantly, the Bolina shares were not a floating body of assets. In that respect, the present case was similar to Arthur D Little, §40:

“(2) I again remind myself that the company was not trading in shares and no one has suggested it did. The essential nature of its business cannot, in my judgment, be ignored. The shares in CCL were not part of the company’s circulating capital and it did not need to sell them, to deal with them, or to substitute them as part of its ordinary business as a management consultant, nor to improve or assist its cash flow as part of that business. The shares were not part of a fluctuating body of assets which changed from time to time in the ordinary course of the company’s business.

(3) The shares did not remain under the management and control of the chargor in a manner which meant the company was free to withdraw them from the security, despite the charge, and to deal with them as part of its stock in trade… The shares could not be sold… entitling Ableco to secure transfer of the shares” (emphasis added).

Were the Charges over book debts?

54.  The classic definition of a book debt is a debt owing to the proprietor of a business, which has become owing to him in the course of the conduct of that business and which would ordinarily be recorded in the books of account of the business: Butterworths Hong Kong Company Law Handbook (2016), 18^th edition, at [334.02], at p. 549, last paragraph.

55.  In the present case, it was not any part of the Borrowers’ business or debts that was charged.  The Bolina shares were assets as opposed to being debts due to the Borrowers.  In fact, the highest that Mr Alder could put was that the dividends paid into the Charged Account constituted book debts.  However, dividends did not arise out of the business of the Borrowers but were only ancillary to and formed a part of the rights making up the shares themselves: Arthur D Little at §§45 and 48.  If one had asked AEVL: did you only have a charge over the dividends?  I am sure the answer would have been no. 

56.  To suggest that an ancillary part of the bundle of rights making up the shares could turn a security not registrable into a registrable one is against common sense and the spirit of section 334, Cap 622.

Were the Charges equitable mortgages or charges?

57.  Mr Alder submits that there were agreements by the mortgagor agreeing expressly to create a legal mortgage of the shares; such an agreement or charge can be registered under Cap 622: Cornhill Development Ltd v New China Hong Kong Finance Ltd [2001] 1 HKLRD 835, 841 F-G, per DHCJ Muttrie.

58.  In the present case, the parties have gone past the stage of agreeing to create a legal mortgage or charge.  The Charges were created when the Bolina shares were deposited with Quam Securities.  It is arguable that Cornhill is distinguishable.

59.  Mr Alder submits that in any event, there can be no serious suggestion that if the Chargee lodged the charges at the Companies Registry, the Companies Registry would reject them and that is the test.  His submission was probably based on this comment in The Hong Kong Companies Ordinance (Cap. 622) Commentary and Annotations 2016 that:

“In practice, the Companies Registry is unlikely to reject an application for registration of some document as a registrable charge.”

60.  With respect, that is not the test.  “Registrability” under Cap 622 is the test and that is a matter of law.  It means that if the Companies Registry registered an instrument under an erroneous interpretation of Cap 622, that would not make the instrument registrable.

61.  In summary, there is a dispute on substantial grounds that AEVL was a money lender at the time the loans were made; that the Charges were not registrable under Cap 622; and that the loans were not exempted loans.

Whether the loan agreements were illegal for charging an effective rate of 111% per annum for interest

62.  “Effective rate of interest” means the true annual percentage rate of interest calculated in accordance with Schedule 2: section 2 MLO:

(a) “Interest” is defined widely as “not [including] any sum lawfully agreed to be paid in accordance with this Ordinance on account of stamp duty or other similar duty, but save as aforesaid [including] 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”;

(b) Schedule 2 to the MLO is not applicable unless the interest payable under a loan is “not capable of being expressed in terms of an actual rate per cent per annum”: Kwok Ying Lung v Ko Chi Hung & anor [2001] 3 HKC 480 at 490D-E (CA).

63.  In the present case, Clauses 5.1 and 5.2 of the Facility Letterprovided, amongst others, that Alliance shall repay the sum of HK$109,250,000 to AEVL, being the aggregate of:

(a) The principal amount of the advance, ie HK$100,000,000;

(b) Interest pre-agreed and calculated for the term of the advance in an amount of HK$1,250,000; and

(c) A deferred structuring fee in an amount of HK$8,000,000,

save that the obligation to pay such interest and structuring fee shall be cancelled if the parties entered into the Convertible Loan Agreements.  There was no equivalent provision in the Guotai loan documentation.

64.   Applying the definition of “interest” under the MLO, the interest payable under the Facility Letter was HK$1,250,000 + HK$8,000,000. The effective rate of interest was thus:

  (HK$9,250,000 / HK$100,000,000) x 12 = 111%

65.  Under section 24 MLO:

“(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).

…”

66.  Section 24 applies whether AEVL was a money lender or not.  The Facility Letter and the Guarantee, being tainted with illegality from inception, were simply not enforceable by virtue of section 24(2).

67.  Mr Alder submits that in the statutory demand, AEVL did not have to rely on the Facility Letter, which was superseded by the Convertible Loan Agreements. AEVL only demanded for interest under the Convertible Loan Agreements at 15% per annum and that was not illegal.  In any event, Clause 7.3 of the Facility Letter and the Convertible Loan Agreements limited the “effective rate of interest” determined pursuant to any Clause therein to whatever level was lawful. 

68.  Further, whilst not contending that the “restructuring fee” fell outside the definition of “interest” in MLO, Mr Alder contends that upon restructuring, the Facility Letter was superseded by the Convertible Loan Agreements.  The restructuring fee was waived and so it could not be taken into account in the computation of interest.

69.  I do not accept these arguments. 

70.  Firstly, under Clause 2.1 of the Guarantee, the guarantee was given by the Applicant expressly “in consideration of [AEVL] agreeing to make the Facilities (ie HK$100,000,000 as defined in recital (A)) available to the Borrowers…”

71.  Accordingly, the Guarantee was tainted with illegality from its inception.  The subsequent entry into the Convertible Loan Agreements, Collateral Agreement, the purported charge of only 15% interest in the statutory demand, or waiver of the structuring fee would not have changed its illegal nature.

72.  Secondly, there was a difference in the definition of “effective rate of interest” between MLO and Clause 7.3.

73.  Under MLO, the structuring fee, being an amount in excess of the principal, was regarded as interest. 

74.  However, under the Facility Letter:

(a) The term “interest” in Clause 7.3 was strictly confined to mean only (i) the “interest” as provided for under Clause 5.2(b), namely, the amount of HK$1,250,000”; and (ii) the “default interest” as provided for under Clause 7.2, but not otherwise.  This interpretation was supported by Clause 7.1, which stipulated that “interest (including default interest) shall accrue from day to day and be calculated on the basis of a year of 360 days and the actual number of days elapsed.”

(b) “Structuring fee” was excluded from the meaning and scope of “interest” as evidenced by Clause 5.2: “the obligation to pay such interest and structuring fee…”

75.  As submitted by Mr Hui, even if the “interest” in Clause 7.3 was wide enough to encompass the structuring fee, Clause 7.3 only provided that the effective rate of interest determined pursuant to “any Clause” in the Facility Letter shall not exceed the amount permitted by applicable laws or regulation. It did not say that the grand total of interest payable under the Facility Letter shall not exceed the permissible amount.  So even if the effective rate of interest was capped at 60%, the amount of structuring fee payable would be limited to HK$5,000,000.  The total effective rate of interest under the Facility Letter calculated for the purpose of section 24 MLO would still be (HK$1,250,000 + HK$5,000,000) ÷ HK$100,000,000 x 12 = 75% per annum, in breach of MLO.

76.  Thirdly, Clause 7.3 was, in my view, arguably void for uncertainty.  I have asked Mr Alder, if an honest borrower considered the stipulated interest rate to be illegal but still wanted to pay interest, what rate should he pay?  Mr Alder could not suggest a rate.  In the premises, the parties must go to court to determine what the proper rate between 49% and 60% that the honest borrower had to pay.

Whether the loan agreements were illegal for charging an increased rate of interest on default

77.  Both Clause 7.2 of the Facility Letter and Clause 7.3 of the Convertible Loan Agreements provided for interest on any unpaid sum at the rate of 10% per annum higher than the rate which would have been payable, from the beginning date of default until payment.  In other words, the default interest rate is 25%. 

78.  This violated section 22(1) MLO which provided that:

“Any agreement made for the loan of money by a money lender shall be illegal if it provides directly or indirectly for –

…

(c) the rate or amount of interest being increased by reason of any default in the payment of sums due under the agreement:

Provided that provision may be made by any such agreement that if default is made in the payment upon the due date of any sum payable to the money lender under the agreement, whether in respect of principal or interest, the money lender shall be entitled, subject to Part IV, to charge simple interest on that sum from the date of the default until the sum is paid at an effective rate not exceeding the effective rate payable in respect of the principal apart from any default, and any interest so charged shall not be reckoned for the purposes of this Ordinance as part of the interest charged in respect of the loan” (emphasis added).

79.  Mr Alder has no answer to the illegality of the default interest rate except to rely on the fact that the loans were secured by registrable charges. As I have found the issue of registrability in dispute, the legality of default interest is equally so.

Enforceability of the Guarantee

80.  In summary, there is a bona fide dispute on substantial grounds that AEVL might be a money lender without a license at the time the loans were advanced.  The Charges created as security were arguably not registrable under Cap 622.  The charge of default interest was illegal.  The loan to Alliance was additionally illegal for charging extortionate interest at 111%.

81.  As the Facility Letter, Convertible Loan Agreements and Collateral Agreements were illegal at their inception, so was the security (including the Guarantee) thereunder: Fisher v Bridges (1854) 118 ER 1283 at 1285, cited in Spector v Ageda [1973] 1 Ch 30 at 44B-D:

“It is clear that the covenant was given for payment of the purchase money. It springs from, and is a creature of, the illegal agreement; and, as the law would not enforce the original illegal contract, so neither will it allow the parties to enforce a security for the purchase money, which by the original bargain was tainted with illegality.”.

82.  The Deed of Confirmation could not improve AEVL’s position.  It was executed as security in respect of the Facility Letter which was illegal at its inception.  Clause 2.1 of the Deed of Confirmation once again confirmed that the void Guarantee stood as a continuing security for the secured indebtedness notwithstanding execution of the Convertible Loan Agreements.

83.  There is a bona fide dispute on substantial grounds as to enforceability of the Guarantee.

Non est factum

84.  The Applicant’s case on non est factum can be dealt with quickly.  The Applicant knew what he was signing was a personal guarantee.  He was at best mistaken only to the extent of his liability. 

85.  The plea of non est factum is not available to a person whose mistake was really a mistake as to the legal effect of the document. There must be a radical or fundamental difference between what he signed and what he thought he was signing. See: Saunders v Anglia Building Society [1971] AC 1004 at 1016F, 1017C; Kincheng Banking Corp v Kao Yu Kuei [1986] HKC 212, 214 H-I.

86.  Stanley Yuen may have misled the Applicant and obtained secret profit. However, there was nothing to show that AEVL was aware of Stanley Yuen’s misrepresentation or was his accomplice.  The defence of non est factum simply could not get off the ground.

Other matters

87.  There were other points taken in the Applicant’s affirmations and the written submission of Mr Hui.  They were rightly, in my view, not pursued. Determination of any of those points in favour of either party would not have affected the outcome of this judgment.

Conclusion

88.  I find that the debt is disputed on substantial grounds arising out of breach of the MLO provisions.  I therefore set aside the statutory demand.

89.  I make an order nisi that costs be to the Applicant, summarily assessed and allowed at $300,000.

90.  I thank counsel for their able assistance.