SUEN LAN ANG v. LEUNG MING FAI

DCCJ 1602/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 1602 OF 2010

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BETWEEN

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JUDGMENT

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1.  In this action, the plaintiff claims against the defendant for payment of $478,578 being total sum of various loans granted in the period between April 2009 and June 2009. Some of these loans were made in the form of bank transfers. The others were in the form of payments made by the plaintiff on the defendant’s behalf at the latter’s requests.

2.  In his pleadings, the defendant admitted that the said sum of $478,578 had been transferred to him or paid on his behalf, as the case may be.  However, he pleaded that those were not loans, but gifts made by the plaintiff to him and that he had never asked for those monies.

3.  The defendant did not appear in the trial today.  However, since the defendant had been notified of the trial date sufficiently in advance, the trial may be proceeded in the defendant’s absence.

4.  Having heard and reviewed the plaintiff’s evidence, I am satisfied that the monies were transferred to the defendant or paid on his behalf as loans but not as gifts as alleged.  According to the SMS between the parties, the plaintiff had asked the defendant on 18^th August 2009 as to whether he was prepared to repay the loan of four hundred odd thousand dollars (“一個月快到了, 你欠我的四十多萬是不是真的打算吾還”), and the defendant replied on the next day that he could not do it that soon (“咁快真係未得住!你迫到我死我都真係唔得!” Subsequently, the defendant also asked the plaintiff for more time so that he could figure out what to do.  It is apparent that the defendant acknowledged that the monies in question were loans but not gifts.

5.  Ms Wu has also drawn my attention to Chitty on Contracts, vol.2, 30^th edition (2008), paragraph 38-244:

“If money is proved, or admitted, to have been paid by A to B, then in the absence of any circumstances suggesting a presumption of advancement, there is prima facie an obligation to repay the money; accordingly if B claims that the money was intended as a gift, the onus is on him to prove this fact.”

6.  Since the defendant has failed to appear in the trial, there is no evidence before this Court showing that the monies were intended as gifts.  The defendant’s defence must fail.

7.  I therefore order that the defendant do pay the sum of $478,578 to the plaintiff.

8.  Interest on the said judgment sum be paid at the rate of 1% above the prime rate as from time to time quoted by HSBC from the date of the writ until today, and thereafter at judgment rate until full payment.

9.  Costs of the action should follow the event.  I make a cost order nisi that the defendant do pay the plaintiff’s costs (including all reserved costs) to be taxed if not agreed, with certificate for counsel.  This cost order shall become absolute absent any application within 14 days.