HO TSZ NING v. LAW PUI CHUN JENNY

DCCJ 1917/2022

[2026] HKDC 122

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 1917 OF 2022

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JUDGMENT

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A. Introduction

1.  This is a trial of the Plaintiff’s claim against the Defendant for breach of contract. The Plaintiff appeared in person. The Defendant did not appear.

B. Background

2.  This case concerns a sale of an Online Retail Sales Platform known as “Thai Sis Buy” (“the Platform”) by the Defendant to the Plaintiff.

B1. The Plaintiff’s Case

3.  In or around February 2022, the Plaintiff came to know that the Platform was for sale through an agent, namely Bossapp Business Consultancy Limited (“Bossapp Limited”). Interested in purchasing the platform, the Plaintiff and the Defendants entered into negotiations.

4.  On 12 April 2022, the Plaintiff as the purchaser and the Defendant as the vendor and Jabjabjobs Recruitment Consultancy Limited (“Jabjabjobs Consultancy”) as the business introduction consultant signed and executed an Online Business Transfer Agreement (“the Agreement”).

5.  Pursuant to the Agreement, the Plaintiff agrees to purchase and the Defendant agrees to sell the Platform which operates on (i) Facebook; (ii) Instagram; and (iii) own webpage at HK$190,000.00.

6.  The Agreement contains the following terms that are relevant to the present dispute:

“買賣雙方同意下列買賣條件：

……

第3條成交價、成交日、接手日

成交價：港幣【190,000】

接手日為5/4/2022

有關業務的「正式成交日」為買方或賣方最終簽署本協議的日期，而本協議亦將在該日期後生效。……

第4條資產及權利轉讓內容

業務資產及權益

有關項目	包括與否	有關內容
業務品牌	是
業務各平台擁有權	是	網站及Facebook、Instagram
店鋪傢俬	不適用
店鋪內設備	不適用
客戶名單	是
店鋪租金按金	不適用
其他按金	不適用
存貨	不適用
應收帳款	否
供應商名單	是
其他	否

第5條付款及收款

……

C. 買方於簽署本協議時支付港幣38,000 予「大食職」[1]作為服務費。

第6條交易保障聲明

除特別列明外，賣方需確保沒有任何在正式接手人前的、而且會在法律上轉移到買家或買方公司身上的，和「有關業務」相關的法律責任、債務、合約責任或應付支出（「有關責任」）在正式接手日時候並未清還。賣方以個人身份作出保證，如有任何對買方構成有後索償的「有關責任」並未清還而造成對買方任何實際損失，賣方須全數賠償買方，生意轉讓搜尋可直接在托管款項中退還任何上述債務或應付支出與買方，買方亦可根據香港法律向賣方追討任何因為有關責任而造成的損失。

第7條交接安排

賣方在正式接受日後12個月內不可經營同類型網店業務（除了現有業務外）、聘用及/或招攬現有員工及/或主動招攬原有客戶。除特別列明外，賣方願意於辦公時間提供交接安排，買方可以要求賣方教授和業務有關的營業知識，雙方可就交接安排商討條款及細則。

第8條違約條款

賣方

A. 如賣方在簽署本協議後拒絕交易或違反買賣條款，賣方須賠償頂讓費用50%予賣方及陪償頂讓費用的20%予大食職（直接從已收取託管金額中扣除），及須賠償因違約造成的損失。”

7.  The Plaintiff duly paid (1) HK$190,000 as the purchase price to the Defendant and (2) HK$38,000 as services fees to Jabjabjobs Consultancy, in compliance with Clause 3 and Clause 5 of the Agreement, as consideration for purchasing the Platform.

8.  After the Platform was handed over to the Plaintiff, a number of incidents happened which suggested that the Defendant has breached the Agreement.

9.  First, commencing from around 14 April 2022, the Plaintiff started to receive messages in the “Thai Sis Buy” Facebook account from customers demanding the Plaintiff and/or the Platform to supply goods to them. However, the Plaintiff believes that the payments from the customers were made to the Defendant before the handover of the Platform or the signing of the Agreement (“the First Incident”).  This appears to have been resolved in due course as the Plaintiff said in her oral testimony that the Defendant did eventually follow up on such outstanding orders, and the relevant customers did contact the Plaintiff further on this.

10.  Following the First Incident, the Plaintiff asked the Defendant to provide a list of customers who purchased goods from the Defendant and a list of goods which had not been delivered and/or supplied to those customers. Despite repeated requests, the Defendant has not provided any List of Customers to the Plaintiff. (“the Second Incident”).

11.  Furthermore, in or around late April 2022, the Plaintiff discovered that the Defendant was using the name “Thai Sis Buyer 凱師奶” to operate a WhatsApp Chatgroup named “Thai Sis 陪你周圍買靚貨” (“the Chatgroup”) in the same business name as the Platform (“the Third Incident”). The Chatgroup offers promotions and allows customers to place orders for goods.

12.  At the protest of the Plaintiff, the Defendant eventually handed over the administration of the Chatgroup to the Plaintiff on 23 May 2022. However, once the Plaintiff joined the Chatgroup, the number of members in the Chatgroup dropped drastically. This affects the business and/or profit of the Plaintiff and/or the Platform (“the Fourth Incident”).

B2. The Defence’s Case

13.  The Defendant did not appear at trial and did not testify. Consequently, her witness statements previously filed are expunged.

14.  According to the Defence filed by the Defendant, it is argued that the Defendant established the Platform in July 2017 in order to operate an online purchasing platform for goods and home appliances from different countries. The Platform was conducted via social media platforms, Facebook and Instagram.

B2.1 About owing goods to customers before the handover (Re the First Incident)

15.  The Defendant did not admit to the Plaintiff’s allegation that there were customers demanding the Plaintiff and/or the Platform to supply goods pre-paid (in the Plaintiff’s belief) to the Defendant but not yet delivered.

16.  The reason for the Defendant’s non-admission is that whether there were actually customers approaching and demanding the supply of goods from the Plaintiff and the Platform was not within the Defendant’s knowledge.

B2.2 About failure to provide a list of customers (Re the Second Incident)

17.  The Defendant alleges in the Defence that before signing the Online Business Transfer Agreement, the Defendant was asked to and did draft and produce a document summarizing customer information within her knowledge, which includes:

(i)     customers’ names,

(ii)     phone numbers,

(iii)     products bought,

(iv)     product prices,

(v)     payment progress,

(vi)     shipping statuses, and

(vii)     profits records.

18.  However, the Defendant’s allegation in §18 above was not supported by any documentary evidence nor oral evidence (since the Defendant did not testify in court).

B2.3 About the Chatgroup (Re the Third Incident)

19.  The Defendant denies that the Chatgroup was created by her. The Defendant alleges that the Chatgroup was created by one Miss Lee in or around July 2017, about the same time at which the Defendant created the Platform. Miss Lee was only a business partner of the Defendant and collaborated with the Platform from time to time.

20.  The Defendant also stressed that the Platform and the Chatgroup are separate and independent businesses. At the material time of the case, the Defendant never owned the Chatgroup exclusively herself, nor did she jointly own the Chatgroup with Miss Lee. Miss Lee was the one who had control over the Chatgroup.

21.  Furthermore, the Defendant contends that the Agreement never included the Chatgroup as a part of the business to be sold to the Plaintiff.

B2.4 About the drop of members in the Chatgroup (Re the Fourth Incident)

22.  The Defendant did not admit that there is a drop of members in the Chatgroup after she handed over the administration of the Chatgroup to the Plaintiff.

C. Analysis

C.1 On liability

23.  The issues on the Defendant’s liability that remain to be tried are as follows:

     (1)     Whether the Defendant failed to provide a list of customers to the Plaintiff, in breach of Clause 4 of the Agreement.

     (2)     Whether the Defendant ran an online business through the Chatgroup with the same business name and nature as the Platform, and solicited the Platform’s current customers within 12 months of the handover of the Platform to the Plaintiff, in breach of Clause 7 of the Agreement.

     (3)     Whether there was actually a drop of members (who are customers) in the Chatgroup after the administration of the Chatgroup was handed over to the Plaintiff, and if so, whether the drop was caused by the Defendant soliciting customers from the Platform after the handover, in breach of Clause 7 of the Agreement.

24.  On Issue (1), I find that the Defendant did breach Clause 4 of the Agreement by failing to provide a list of customers to the Plaintiff.   From the WhatsApp messages produced into evidence, while it is apparent that the Defendant did pass on the transaction records with customers for the past few months before the completion of the sale, there is no evidence showing that the Defendant had provided a list of customers to the Plaintiff.

25.  On Issue (2), while the Defendant denies that she was responsible for the Chatgroup, there is evidence in the WhatsApp messages showing a customer in the Chatgroup having made payment to the Defendant’s bank account upon a purchase made.  Although this was only one transaction, it does show that the Defendant had at least been involved in the operation of the Chatgroup and competed against the Plaintiff within the 12 months period in breach of Clause 7 of the Agreement. 

26.  On Issue (3), screenshots of the Chatgroup were produced into evidence, and it is apparent that there were a large number of participating customers quitting after the Chatgroup was handed over to the Plaintiff.  However, there is no evidence showing that the drop in customers was related to any breach committed by the Defendant.  This breach is therefore not made out on the evidence.

27.  In the circumstances, I find that the Defendant had breached Clauses 4 and 7 of the Agreement.

C3. On quantum

28.  The evidence before the Court and the Plaintiff’s witness statement did not contain any information as to how the Plaintiff’s loss could be quantified.  Although the Plaintiff claimed in her Statement of Claim for the full refund of the consideration of HK$190,000 and consultant fee of HK$38,000, that does not seem to me to be correct, as the Plaintiff had testified in her oral testimony that she did receive orders from customers and did make profits out of the Platform. 

29.  The Plaintiff also accepted that there was no way as to how her loss resulting from the Defendant’s breachescould be quantified. 

30.  In the circumstances, the Plaintiff accepts that the appropriate remedy is limited to the liquidated compensation of 50% of HK$190,000 (ie HK$95,000) pursuant to Clause 8A of the Agreement. 

D. Conclusion

31.  I shall make an order that the Defendant should pay the Plaintiff HK$95,000, together with interest at the HSBC Best Lending Rate plus 1%, from the date of the Writ until payment.

32.  I shall also order the Defendant to pay the Plaintiff’s legal costs of this action (including all costs reserved, if any), to be taxed if not agreed.