TOTAL EXPRESS CAPITAL STRATEGY LTD v. YEUNG KA YEE CARRIE AND OTHERS

HCMP 1984/2024

[2026] HKCFI 1595

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1984 OF 2024

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J U D G M E N T

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A.  Introduction

1.  By originating summons dated 9 October 2024, the Plaintiff seeks: -

(1)  monetary judgment against the 1^st Defendant;

(2)  an order for possession in respect of House and Garden & Appurtenances thereto, 12 Price Road, Hong Kong (the “Property”); and

(3)  an order that the Property be sold pursuant to sections 2, 3, and 6 of the Partition Ordinance (Cap 352).

B.  Material Background

2.  The Plaintiff is a licensed money lender.

3.  The 1^st, 2^nd, and 3^rd Defendants are the registered owners of the Property under a tenancy-in-common. They each hold 1/3 share of the Property.

4.  The 2^nd Defendant is the mother of the 1^st and 3^rd Defendants, and the 3^rd Defendant is the 1^st Defendant’s brother.

5.  The 1^st Defendant has been living in the Property together with the 2^nd Defendant. According to the valuation report of Mr Raymond Hui of Midland Surveyors Ltd dated 22 January 2026, the estimated market value of the Property is HK$82,400,000[1].

6.  The 1^st Defendant has been operating a business of providing beauty and cosmetic services since 2009.

7.  In light of Covid-19, the 1^st Defendant encountered financial difficulties in sustaining her business.

8.  On 23 September 2019, the 1^st Defendant obtained a loan from a licensed money lender named Zero Finance Hong Kong Ltd (hereinafter “Zero Finance”) in the amount of HK$9,000,000. This loan was secured by a mortgage over the 1^st Defendant’s 1/3 share of the Property[2].

9.  On 31 January 2020, the 1^st Defendant obtained a further loan of HK$15,000,000 from another licensed money lender named Man Chong Finance Planning Ltd (hereinafter “Man Chong”). This further loan was also secured by a mortgage over the 1^st Defendant’s 1/3 share of the Property[3].

10.  From 13 May 2020 to 7 September 2022, the Plaintiff and the 1^st Defendant entered into 7 sets of loan agreements (collectively the “Loan Agreements”), pursuant to which the Plaintiff advanced a total sum of HK$18,430,000 to the 1^st Defendant. The details are as follows: -

	Dates	Loan Amounts	Interest
1st Loan Agreement	13 May 2020	HK$15,000,000	22% p.a.
2nd Loan Agreement	29 December 2020	HK$2,000,000	24% p.a.
3rd Loan Agreement	26 April 2022	HK$540,000	40% p.a.
4th Loan Agreement	6 June 2022	HK$270,000	40% p.a.
5th Loan Agreement	5 July 2022	HK$270,000	40% p.a.
6th Loan Agreement	1 August 2022	HK$200,000	40% p.a.
7th Loan Agreement	7 September 2022	HK$150,000	40% p.a.

11.  The indebtedness under the aforesaid Loan Agreements is secured by a deed of mortgage dated 13 May 2020 (the “Mortgage”) over the 1^st Defendant’s 1/3 share of the Property[4]. It is not in dispute that the 1^st Defendant had signed the Mortgage, and the secured indebtedness was capped at HK$50,000,000.

12.  The documentary evidence shows that the 1^st Loan Agreement was a re-financing arrangement, and part of the loan proceeds was utilized to repay the indebtedness owed to Zero Finance and Man Chong. In this connection, the 1^st Defendant had signed: -

(1)  2 sets of written confirmations dated 13 May 2020 addressed to the Plaintiff[5], confirming her instructions that the proceeds under the 1^st Loan Agreement should be utilized to repay the outstanding sums owed to Zero Finance and Man Chong.

(2)  2 sets of authorization letters dated 28 April 2020[6], authorizing the Plaintiff’s solicitors, ie Messrs Edward Lau Phoebe Ng Solicitors LLP (“ELPN”), to liaise with Zero Finance and Man Chong (such that the pre-existing mortgages in their favour could be discharged).

13.  In the circumstances: -

(1)  on 28 May 2020, the Plaintiff, via ELPN, repaid an aggregate sum of HK$9,016,453 to Zero Finance by cheques[7].

(2)  on 28 May 2020, the Plaintiff, via ELPN, repaid an aggregate sum of HK$2,949,507 to Man Chong by cheques[8].

(3)  on 27 May 2020, the balance of HK$3,034,040 (ie HK$15,000,000 less HK$9,016,453 less HK$2,949,507) was paid to the 1^st Defendant.

14.  As will be elaborated below, the 1^st Defendant complained that the loan proceeds under the 1^st Loan Agreement were disposed of without her authorization. However, she did not suggest that the loan proceeds under the 2^nd, 3^rd, 4^th, 5^th, 6^th, and 7^th Loan Agreements were misapplied.

15.  It is not in dispute that the 1^st Defendant had failed to make punctual repayment or full repayment in accordance with the terms of the 7 sets of Loan Agreements.

16.  By letter dated 9 September 2024[9], the Plaintiff demanded the 1^st Defendant to make full repayment of all the outstanding indebtedness immediately. However, the 1^st Defendant did not comply with the demand.

17.  Clauses 5.01(a)-(b) of the Mortgage provide that an “event of default” occurs if the 1^st Defendant defaults in making payment following the Plaintiff’s demand or if the 1^st Defendant fails to make payment on the due date of any principal amount or interest. Clauses 6.01(a)-(b) of the Mortgage further provide that if an “event of default” occurs, the Plaintiff shall be entitled to take possession of the Property and sell the same.

18.  In the premises, on 9 October 2024, the Plaintiff commenced the present proceedings pursuant to Order 88 of the Rules of the High Court.

19.  As stated in the 2^nd affirmation of Ms Leung Hoi Ki[10] (who is the Plaintiff’s manager), the total amount of indebtedness owed by the 1^st Defendant as of 30 April 2025[11] was HK$27,533,817.80, and the interest accrued on the said indebtedness is HK$13,892.82 per day.

20.  The 1^st Defendant opposed the Plaintiff’s claims in these proceedings. To this end, she filed an affirmation in opposition on 14 March 2025.

21.  Although the 2^nd and 3^rd Defendants have not participated in the present proceedings, I am satisfied that they have been aware of the Plaintiff’s claims in relation to the Property. In this connection: -

(1)  The Plaintiff’s solicitors, namely ELPN, issued a pre-action letter to the 2^nd and 3^rd Defendants, informing them that the Plaintiff would seek a court order that the Property be sold pursuant to the provisions of the Partition Ordinance.

(2)  As confirmed by Mr Lawrence Ma of ELPN in his affirmations made on 16 July 2025 and 19 August 2025, from 28 November 2024 to 20 May 2025, ELPN did serve copies of the court documents relating to these proceedings (including the originating summons, the affirmations filed on the Plaintiff’s behalf, court notes, and notices of appointments) on the 2^nd and 3^rd Defendants.

(3)  Further, it is also worth mentioning that (i) the 2^nd and 3^rd Defendants are respectively the mother and brother of the 1^st Defendant; (ii) the 2^nd Defendant has been living in the Property together with the 1^st Defendant; and (iii) various notices in respect of the present proceedings were posted at the Property.

C.  Legal Principles

22.  In Golden Rich Finance Ltd v Lam Sau Fa [2018] HKCA 952 at para 2, Cheung JA set out the court’s approach in disposing of an originating summons summarily. His Lordship stated: -

“A mortgage action under Order 88 is commenced by originating summons and supported by affidavit evidence. The procedure is prescribed under Order 28, rule 4(1) of the Rules of the High Court (Cap 4A). At the hearing of the originating summons, the matter may be disposed of summarily where the Court is satisfied that there are no triable issues. As pointed out by the authorities, this is akin to an application for summary judgment under Order 14, namely, once the plaintiff’s entitlement to summary judgment is demonstrated on the face of the evidence, the burden falls on the defendant to show that she has a credible defence to the claim. This is to be tested against the evidence adduced in the case such as whether the defence is inconsistent with the contemporaneous documents or the defendant’s previous admissions and stand. The Court should also consider the inherent probability of the defence. But what is not permitted is for the Court to conduct a mini‑trial of the case on the affidavit evidence. If the Court does not deal with the originating summons summarily, it may order the proceedings to continue as if the matter had begun by writ (Order 28, rule 8) or gave further directions for the conduct of the case (Order 28, rule 4(2)).”

D.  No Arguable Defence

23.  For the following reasons, I am not of the view that the 1^st Defendant has raised any arguable defence to the Plaintiff’s claims pursuant to the Loan Agreements and the Mortgage.

D1.  The proceeds under the 1^st Loan were misapplied?

24.  In her affirmation in opposition on 14 March 2025, the 1^st Defendant asserted that the Plaintiff, without her authorization, applied the proceeds under the 1^st Loan Agreement to repay the indebtedness owed to Zero Finance and Man Chong. Thus, instead of receiving a sum of HK$15,000,000, she only received HK$3,034,040.

25.  There is neither truth nor merit in this complaint.

26.  The 1^st Defendant’s assertion is flatly contradicted by the contemporaneous documents. As pointed out in paragraph 12 above, the 1^st Defendant signed (i) 2 sets of confirmations dated 13 May 2020[12]; and (ii) 2 sets of authorization letters dated 28 April 2020[13]. These contemporaneous documents show that the 1^st Defendant expressly and unequivocally authorized and instructed: -

(1)  the Plaintiff to apply the loan proceeds under the 1^st Loan Agreement to repay the pre-existing indebtedness owed to Zero Finance and Man Chong; and

(2)  the Plaintiff’s solicitors, namely ELPN, to liaise with Zero Finance and Man Chong.

27.  In any event, the 1^st Defendant’s allegations are inherently incredible. The 1^st Defendant alleged that[14] she was caught by surprise on 28 May 2020 when she discovered that the Plaintiff only gave her a cheque of HK$3,034,040, but not HK$15,000,000. On the 1^st Defendant’s allegations, a huge sum of almost HK$12 million was misapplied. Had the 1^st Defendant’s allegations been true, she would have raised a complaint immediately. However, there is not a shred of evidence showing that she did so. The 1^st Defendant only complained when she filed her affirmation in opposition herein on 14 March 2025. There was a delay of almost 58 months.

28.  In my view, the 1^st Defendant’s complaint is an afterthought, and the truth is that the 1^st Defendant knew and accepted that the proceeds under the 1^st Loan Agreement should be utilized to repay the pre-existing indebtedness owed to Zero Finance and Man Chong.

D2.  The Plaintiff did not advance the remaining HK$35 million under the 1^st Loan?

29.  The 1^st Defendant also asserted that a person named Alex Hung allegedly said to her that the Plaintiff would pay her the balance of the proceeds under the 1^st Loan Agreement in the amount of HK$35,000,000, but the Plaintiff did not do so[15].

30.  There is no substance in this bare assertion.

31.  First of all, there is not a shred of objective evidence showing that:-

(1)   the person named Alex Hung existed;

(2)  the 1^st Defendant had received a representation that the Plaintiff would advance an additional sum of HK$35,000,000 in her favour; and

(3)  the 1^st Defendant had complained that the Plaintiff failed to pay her an additional sum of HK$35,000,000

32.  Second, under the terms of the Mortgage, HK$50,000,000 is merely the maximum amount secured by the Property. Neither the Mortgage nor the 1^st Loan Agreement stipulated that the Plaintiff was under an obligation to lend a total sum of HK$50,000,000 (or the additional sum of HK$35,000,000) to the 1^st Defendant.

33.  Third, in any event, I fail to see why the 1^st Defendant should be absolved from the liabilities under the 7 sets of the Loan Agreements (which are secured by the Mortgage over the 1^st Defendant’s 1/3 share of the Property) simply because the Plaintiff failed to lend her an additional sum of HK$35,000,000. The 1^st Defendant’s complaint does not make sense at all.

D3.  The “confirmation” under annexure 3 of the 1^st Agreement could be a false instrument?

34.  The 1^st Loan Agreement contains the following annexures, which are documents involving Kapital Oasis Management Ltd (the “Referrer”). All these documents were signed on 13 May 2020: -

(1)  Annexure 2 is a referral agreement signed by the 1^st Defendant and the Referrer[16]. In gist, it was provided that regardless of whether the Plaintiff eventually advanced loans to the 1^st Defendant, the Referrer could not charge any fee against the 1^st Defendant.

(2)  Annexure 3 is a confirmation that the Referrer provided to the Plaintiff[17]. In gist, the Referrer confirmed that it did not charge any fee against the 1^st Defendant.

(3)  Annexure 4 is a confirmation signed by the 1^st Defendant and the Plaintiff[18]. In this document, the 1^st Defendant confirmed that the Plaintiff had advised her not to pay any fee to the Referrer and that she understood that the Plaintiff was not related to the Referrer.

35.  The 1^st Defendant does not dispute that she had signed the referral agreement and the confirmation under annexures 2 and 4.

36.  However, the 1^st Defendant contended as the representatives of the Referrer did not attend the Plaintiff’s office on the occasion of 13 May 2020, Annexure 3 could be a false instrument[19].

37.  I reject the 1^st Defendant’s unfounded assertion.

38.  The mere fact that the Referrer’s representative did not sign the confirmation under annexure 3 of the 1^st Loan Agreement in front of the 1^st Defendant could not amount to a valid basis for alleging that the document was forged. Indeed, there is not a shred of evidence showing that the Plaintiff’s staff and/or anyone forged the signature that appears in the Referrer’s confirmation.

39.  In any event, the purpose of the documents under annexures 2, 3, and 4 of the 1^st Loan Agreement was to ensure that the loan transaction in question was conducted on the basis that the Referrer did not and could not charge or demand any referral fee from the 1^st Defendant. I cannot see how the 1^st Defendant could rely on the alleged invalid execution of these documents to contend that she is not liable for the indebtedness owed to the Plaintiff. The 1^st Defendant does not even suggest that the Referrer charged or proposed to charge a referral fee from her.

D4.  The Plaintiff induced the 1^st Defendant to borrow monies under the 3^rd to 7^th Loan Agreements under high interest rate?

40.  The 1^st Defendant alleged that a staff of the Plaintiff named Tony Leung told her that she could apply for loans from the Government under the 100% Loan Guarantee Schemes for Small and Medium-sized Enterprises and Individuals (the “SME Scheme”). Tony Leung then referred the 1^st Defendant to a representative of a company named Lokson Sumptuous Asset Ltd (“LSAL”), which had experience in helping clients to apply for loans under the SME Scheme. Believing that the application would be successful, the 1^st Defendant entered into the transactions under the 3^rd to 7^th Loan Agreements. However, it transpired that the application was not concluded. As such, the 1^st Defendant “had a feeling that the Plaintiff had collusion with [the representative of LSAL] to adduce [her] to borrow the 3^rd Loan to 7^th Loan from them with such a high interest rate”.

41.  Even assuming that 1^st Defendant’s allegations were true, the 1^st Defendant has still failed to disclose a valid vitiating factor (such as misrepresentation) for setting aside the 3^rd to 7^th Loan Agreements.

42.  In any event, the 1^st Defendant’s suggestion that the Plaintiff colluded with LSAL for the purpose of inducing her to enter into the 3^rd to 7^th Loan Agreements are entirely speculative and unsupported by evidence.

43.  As a seasoned businesswoman[20], the 1^st Defendant knew and ought to know that there was no guarantee that the application under the SME Scheme would necessarily be successful. It appears to me that the 1^st Defendant simply made a commercial decision to borrow monies from the Plaintiff, and there is no question that she did receive the loan proceeds. In the circumstances, there is no room for the 1^st Defendant to complain that she had been abused.

D5.  The 1^st Defendant was charged legal fees in relation to the preparation of the Mortgage?

44.  The 1^st Defendant alleged that upon the request of a Mr Law, she paid a fee to the Plaintiff’s solicitors, ie ELPN, directly[21].

45.  However, the 1^st Defendant has not provided any documentary evidence to substantiate her allegation; nor has the 1^st Defendant provided any meaningful particulars (such as the amount of the payment, the date of the payment, and the means of the payment).

46.  Meanwhile, the Plaintiff has been able to provide an invoice and a receipt[22] showing that (i) ELPN charged the Plaintiff a fee of HK$17,200 for carrying out the works in relation to the preparation of the Mortgage and the 1^st Loan Agreement and (ii) the said legal fee of HK$17,200 was paid by the Plaintiff.

47.  In the premises, the 1^st Defendant’s allegation is untrue and liable to be rejected.

D6.  Contents of the Loan Agreement not Adequately explained to the 1^st Defendant?

48.  The 1^st Defendant alleged that on the occasion where the 1^st Loan Agreement was executed, the Plaintiff’s staff (ie a gentleman named Wilson) only rapidly read out the contents thereof, and he did not provide explanations[23].

49.  This allegation would not avail the 1^st Defendant.

50.  It is trite that a person of full age and capacity is normally bound by his signature to a document, and the law does not assist a person who carelessly puts his signature on a document: see Ming Shiu Chung & Others v Ming Shiu Sum & Others (2006) 9 HKCFAR 334 at paras 84 to 86.

51.  In any event, the 1^st Defendant admitted that: -

(1)  Before the 1^st Loan Agreement was signed, the Plaintiff’s staff did explain that the documents to be executed were concerned with a loan of HK$15,000,000[24].

(2)  The Plaintiff’s solicitor (ie a Mr Lau) had briefly explained the contents of the Mortgage to her[25].

52.  In the premises, it was not the case that the 1^st Defendant was clueless about the transaction in question.

D7.  Certain documents were not provided to the 1^st Defendant?

53.  The 1^st Defendant alleged that the Plaintiff did not provide her with the referral agreement that was signed as well as annexure 1 of the 1^st Loan Agreement that was signed by herself and annexure 3 of the 1^st Loan Agreement that was signed by the Referrer [26].

54.  I do not accept the 1^st Defendant’s allegations.

55.  There is no contemporaneous document showing that the 1^st Defendant had raised a complaint about the alleged omission.

56.  Meanwhile, the 1^st Defendant had signed a receipt confirming that the 1^st Loan Agreement, together with other related documents, were duly received[27]. Had some of the annexures of the 1^st Loan Agreement been omitted, the 1^st Defendant would not have signed the receipt at all.

D8.  Sum Up  

57.  For all the above reasons, I conclude that the 1^st Defendant has failed to raise any arguable defence or triable issue against the Plaintiff’s claims in these proceedings.

58.  Accordingly, the Plaintiff is entitled to seek monetary judgment against the 1^st Defendant and enforce the terms of the Mortgage over the 1^st Defendant’s 1/3 interests in the Property.

E.  Order for Sale

59.  The next question to consider is whether the court should make an order that the Property be sold pursuant to the provisions of the Partition Ordinance.

60.  Section 3(1) of the Partition Ordinance provides that: -

“Where any property in land is held in the manner referred to in section 2, any person interested in such property may institute proceedings in the court under this Ordinance by way of an action for partition or sale.”

61.  It is trite that a mortgagee who is entitled to possession of the subject property is a “person interested” for the purposes of section 3(1) of the Partition Ordinance and thus he is entitled to apply for partition or sale of the property: see Law Chun Wai v Chu Suk Har [2016] 1 HKLRD 224 at paras 21-23 (per His Honour Judge Andrew Li); Eco Finance Ltd v Poon Sau Han Joanna & Anor [2023] HKCFI 868 at para 21 (per Recorder Jenkin Suen SC).

62.  For the following reasons, I am of the view that this is a clear-cut case where the court should exercise its discretion in favour of granting an order for sale.

63.  First of all, unless the Property is sold, the Plaintiff will not be in a position to recover the substantial indebtedness owed by the 1^st Defendant, and it will effectively be left with no remedy. This would be unfair.

64.  Second, there is no suggestion from the Defendants that it would be feasible to physically partition the Property into 2 separate flats. Bearing in mind that the Property is a residential unit, it is highly questionable as to whether physical partition is feasible. In this connection, I accept the submissions of Mr. Timothy Lam (counsel for the Plaintiff) that there could be complications in relation to compliance with the deed of mutual covenants as well as the relevant building regulations.

65.  Third, even if physical partition were possible (which is not the case), the value of the Property will decrease substantially. This is not in the financial interests of the parties.

66.  Fourth, I am not of the view that the sale of the Property would cause hardship to the 2^nd and 3^rd Defendants: -

(1)  Upon the sale of the Property, the 2^nd and 3^rd Defendants will receive 2/3 of the balance of the sale proceeds after the relevant expenses are deducted. In light of the substantial value of the Property, the 2^nd and 3^rd Defendants will receive a substantial amount of money. As such, the 2^nd and 3^rd Defendants could purchase an alternative property for residential purposes.

(2)  In this connection, at the hearing, the 1^st Defendant alleged that the 2^nd Defendant was a fragile elder. Thus, she would suffer distress if she is forced to move to another residential property. I am not in a position to accept the 1^st Defendant’s bare assertion (which was not even raised in her affirmation in opposition filed on 14 March 2025). For reasons best known to themselves, the Defendants have not adduced any evidence on the 2^nd Defendant’s health conditions. As such, I am unable to conclude that the sale of the Property will have a devastating effect on the 2^nd Defendant’s health as alleged. In any event, whilst I accept that the 2^nd Defendant will face some inconvenience, this is not a sufficient reason to deprive the Plaintiff of remedies.

67.  Fifth, I am also of the view that the interests of the Defendants are adequately safeguarded. In this connection, I take into account that: -

(1)  The proposed sale of the Property will be conducted by the Plaintiff’s solicitors, ie ELPN, who are officers of the Court.

(2)  There will be a reserved price (ie HK$70,000,000). This is based on the valuation conducted by Mr Raymond Hui of Midland Surveyors Ltd (which has not been disputed by the Defendants).

68.  Taking all the circumstances into account, I am satisfied that the court should exercise its powers to grant an order for sale.

F.  Disposition

69.  In the premises, I will make an order in terms of the draft submitted by Mr Lam.

70.  As regards costs, under clauses 18.01(a) and (b) of the Mortgage, the Plaintiff is contractually entitled to recover the costs and expenses incurred in enforcing its rights on an indemnity basis. I do not see any good reason why the Plaintiff is not entitled to seek indemnity costs.

71.  Adopting a broad-brush approach, I order the 1^st Defendant to pay the Plaintiff’s costs in these proceedings, summarily assessed at HK$350,000.

72.  Lastly, I thank Mr Timothy Lam for his helpful assistance.