FANG YUE AND OTHERS v. SHING YIM PING

HCA 845/2022

[2026] HKCFI 1421

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 845 OF 2022

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J U D G M E N T

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A.  INTRODUCTION

1.  In this case, the Plaintiffs (“Fang”, “Fong Senior” and YTH” respectively, and “Ps” collectively) claim against the Defendant (“Shing”) for repayment of four categories of sums made to Shing on various occasions. There is no dispute that Shing received these sums. When these sums were paid to Shing, Fang and Shing were lovers at those times. The dispute between the parties is the nature and purposes of these payments, and whether Shing has an obligation to repay the same to Fang (or to Ps) but has failed to do so.

2.  In this trial, Mr Byron Chiu represents Ps. Mr Yan Kwok Wing, together with Mr Chester CK Fung, represent Shing.

B.  BACKGROUND AND THE PARTIES’ RESPECTIVE CASES

3.  The following are agreed facts[1]:

(a)  At all material times:

(i)  Fang is a citizen of the United States residing in Chinese Mainland;

(ii)  Fong Senior is Fang’s father;

(iii)  YTH is a company incorporated in Hong Kong held by Fang’s parents; and

(iv)  Shing is a resident of Hong Kong.

(b)  In December 2016, Fang and Shing became acquainted with each other in the United States and soon became in a relationship. At that time, Fang was residing in the United States while Shing was travelling to the United States.

(c)  In early 2017, Fang went to Hong Kong and Shanghai to make arrangements for relocating his work to Shanghai. Between early 2017 and mid-2017, Fang and Shing physically met up with each other around once every one to two months.

(d)  Shing had been in a domestic partner relationship with Allan James Payne (“Payne”). Shing had two children with her ex-husband. One of the children is called Sebastian.

(e)  In July 2017, Fang officially relocated to Shanghai. From July 2017 to February 2020, Fang and Shing physically met up with each other once a month on average while maintaining their long-distance relationship.

(f)  From February 2020, in light of the travel restrictions as a result of the COVID-19 pandemic, Fang and Shing stopped physically meeting up with each other. They had one last physical meeting in February 2021 before their relationship ended in May 2021.

4.  Sebastian Loan Agreement

(a)  The first category of the sums to Shing, according to Ps’ pleaded case, are payments under the “Sebastian Loan Agreement”. Ps’ case is that in or around October 2017, Shing orally informed Fang that Sebastian had incurred various usurious loans and had received threatening messages and phone calls demanding repayment. Upon Shing’s request, Fang orally agreed to lend money to Shing to assist her son to repay some of the usurious loans. Since then until April 2018, during various physical meetings in Hong Kong and via telephone and/or WeChat messages and audio calls, Shing continued to request Fang to and Fang agreed to lend money to Shing for repaying Sebastian’s usurious loans.

(b)  Pursuant to the Sebastian Loan Agreement, Fang transferred or casued to be transferred various sums to Shing from his personal bank account and from his parents’ bank account to Shing’s bank accounts, and made one payment by cash. Those payments are as follows:

Date	From (bank/cash)	To (bank/cash)	Amount
05-10-2017	Fang (CCB)[2]	Shing (China Everbright)[3]	RMB ¥     5,000
06-10-2017	Fang (CCB)	Shing (China Everbright)	RMB ¥     5,000
10-10-2017	Fang (CCB)	Shing (China Everbright)	RMB ¥     50,000
10-10-2017	Fang (CCB)	Shing (China Everbright)	RMB ¥     5,000
13-10-2017	Fang (CCB)	Shing (China Everbright)	RMB ¥     30,000
15-11-2017	Fang (CCB)	Shing (China Everbright)	RMB ¥     40,000
18-11-2017	Fang (CCB)	Shing (China Everbright)	RMB ¥     90,000
23-11-2017	Fang (CCB)	Shing (China Everbright)	RMB ¥     10,000
07-12-2017	Fang (cash withdrawal)	Shing (cash)	RMB ¥     40,000
02-01-2018	Fang’s mother and Fong Senior (Schwab)[4]	Shing (HSB)[5]	US$     20,000
23-01-2018	Fang’s mother and Fong Senior (Schwab)	Shing (HSB)	US$     20,000
07-02-2018	Fang (CCB)	Shing (China Everbright)	RMB ¥     21,000
14-02-2018	Fang (CCB)	Shing (China Everbright)	RMB ¥     6,500
12-03-2018	Fang’s mother and Fong Senior (Schwab)	Shing (HSB)	US$    50,000
09-04-2018	Fang (CCB)	Shing (China Everbright)	RMB ¥     13,000
Total:			RMB ¥    315,500                       &      US$    90,000

(c)  The payments as shown in the table above are agreed by Shing.[6] However, Shing contends that those payments were gifts from Fang to her while they were in a romantic relationship.

5.  Property Loan Agreement

(a)  The second category of the sums to Shing in Ps’ case is the payments to Shing under an agreement called the “Property Loan Agreement”. Ps’ case is that in or around May 2018, Shing’s residence in Happy Valley was compulsorily purchased. While awaiting the compensation for the compulsory purchase, Shing orally told Fang that she required a sum of money to purchase a new property. Shing requested Fang to lend her money on the conditions that (i) the new property shall be purchased under the sole name of Shing; and (ii) Shing shall repay the loan to Fang within two months (“Condition 1” and “Condition 2”, collectively “the Conditions”). Fang agreed to this request and hence the parties made the Property Loan Agreement.

(b)  According to Ps, Fang transferred or caused to be transferred the following sums to Shing from his personal bank account and from his parents’ bank account to Shing pursuant to the Property Loan Agreement:

Date	From (bank)	To (bank)	Amount
24-05-2018	Fang’s mother and Fong Senior (Schwab)	Shing (HSB)	US$    500,000
07-06-2018	Fang’s mother and Fong Senior (Schwab)	Shing (HSB)	US$    500,000
27-06-2018	Fang’s mother and Fong Senior (Schwab)	Shing (HSB)	US$    320,000
10-08-2018	Fang (CCB)	Shing (China Everbright)	RMB ¥      10,000
12-09-2018	Fang’s mother and Fong Senior (Schwab)	Shing (HSB)	US$    20,000
Total:			RMB ¥      10,000                         &     US$       1,340,000

(c)  Shing agrees that she needed a bridging loan to purchase a new residence in or around May 2018 and the Property Loan Agreement is true. However, she contends that (i) the Property Loan Agreement is not subject to the Conditions; (ii) the last two items in the table set out in the above are not payments from Fang pursuant to the Property Loan Agreement, but are gifts from Fang to her; and (iii) she has fully repaid the loan provided by Fang under the Property Loan Agreement. Subject to the aforesaid, she does not dispute the transactions as shown in the table above.[7]

(d)  Shing contends that by 20 March 2021, she has fully repaid the Property Loan.[8]

6.  Shares Loan Agreement

(a)  The third category of the sums to Shing in Ps’ case is the payments under an agreement called the “Shares Loan Agreement”. Ps’ case is that in around December 2020, Shing orally told Fang that her friend who was a Vice President in Shenwan Hongyuan Securities (HK) Limited (申萬宏源證卷(香港)有限公司) (“Shenwan Securities”) invited her to purchase stocks by opening a VIP account with the company (“the Stock Account”). The opening of the VIP account required US$ 1 million. Shing requested Fang to lend her money for opening the Stock Account. On or about 21 December 2020, Fang orally agreed to lend a sum from YTH to Shing for the sole purpose of opening the VIP account, subject to the condition that the loan money transferred from YTH’s account to Shing should be repaid to the same account no later than 31 March 2021. Pursuant to this Shares Loan Agreement, on 21 December 2021, Fang caused a transfer of US$500,000 from YTH’s account in Nanyang Commercial Bank (China) Limited (“NYCB”) to Shing’s account in HSB.

(b)  Shing does not dispute the aforesaid transfer.[9] However, Shing denies that the sum of US$500,000 is a loan to her. Shing’s case is that although the Stock Account was under her sole name, it was held by her on trust for Fang and herself, and the US$500,000 was Fang’s investment in the Stock Account. Shing contends that since Fang does not claim any relief in relation to the Stock Account, there would be no need for this Court to deal with Fang’s beneficial ownership in that account in this case.

	Date	From (bank)	To (bank)	Amount
1	23-04-2018	Fang (CCB)	刑小紅, agent of Shing	RMB ¥  5,980
2	11-04-2019	Fang (CCB)	Shing (China Everbright)	RMB ¥  50,000
3	09-09-2019	Fang (CCB)	Shing (China Everbright)	RMB ¥  3,000
4	28-11-2019	Fang (CCB)	Shing (China Everbright)	RMB ¥  50,000
5	15-10-2020	YTH (NYCB)	Shing’s company Good Morning Hong Kong Limited (HSB)	US$   95,000
6	03-05-2021	Fong Senior (NYCB)	Shing (HSB)	US$   50,000
	Total:			RMB ¥  108,980                   &     US$   145,000

7.  Other Loan Agreements

(a)  The fourth category of the sums to Shing in Ps’ case is the payments to Shing under the “Other Loan Agreements”. According to Ps, the payments shown in the table above are loans to Shing.

(b)  Shing admits the existence of the transfers as shown in the table above.[10] However, Shing contends that those payments are gifts from Fang to her.

8.  Ps claim against Shing for the repayment of the sums in the aforesaid four categories, for they are loans from Fang to Shing and ought to be repaid by Shing. Alternatively, Ps claim against Shing for these sums on the ground of unjust enrichment.

9.  Subject to the dispute as set out in [10] below, it is agreed that Shing has made the following payments to Ps or Ps’ designated recipients[11]:

Date	To	Amount
12-06-2018	Fong Senior	HK$ 45,000
14-01-2019	Fong Senior	HK$ 201,000
14-01-2019	YTH	HK$ 10,000
05-08-2019	Fong Senior	HK$ 50,000
09-10-2019	YTH	US$ 450,000
05-05-2020	-	US$ 318,000
27-10-2020	熊鵬	US$ 298,060
22-12-2020	李靜	HK$ 1,235,000
11-01-2021	Fong Senior	HK$ 90,000
20-03-2021	Prudential Hong Kong Limited	HK$ 24,165.52
Total:		HK$ 1,655,165.52 & US$ 1,066,060

10.  According to Shing, the payment of US$298,060 to 熊鵬, and the payment of HK$1,235,000 to 李靜 as shown in the table in [9] above are repayments of the Property Loan made by her. According to Fang, these payments are not repayments made by Shing, but are transfers of some of the funds previously paid by Fang to Shing, and the purpose of the transfers was to make some payments for Fang’s own investments.

11.  It is an agreed fact that Shing provided an American Express Supplementary Credit Card to Fang.[12] Shing has put forward a counterclaim (“the Counterclaim”) that between May 2019 and November 2021, Fang spent a total of HK$67,532 for his own expenditure, enjoyment and/or consumption using the AE Card (“the AE Card Expenses”). Shing settled that sum but Fang failed to repay the sum to Shing. Shing claims against Fang for the repayment of that sum. As to the Counterclaim, Fang’s position is that he could not remember whether the AE Card Expenses were his expenditure, and if Shing could adduce evidence to prove that these expenses were spent by him, he was willing to reimburse Shing the same. In the event that the Counterclaim is proved, Ps contend that the sum in the Counterclaim can be set off against the amount awarded to Fang (or to Ps) in Ps’ claim.

12.  Ps have put forward a primary case and an alternative case.

(1)  Ps’ primary case is based upon the Sebastian Loan Agreement, the Property Loan Agreement, the Shares Loan Agreement, and the Other Loans Agreements (collectively “the Loan Agreements”). Ps contend that the Loan Agreements are agreements between Fang and Shing. Shing is liable to repay the sums advanced to her under the Loan Agreements to Fang.

(2)  Ps’ alternative case is based upon unjust enrichment. Ps contend that the sums advanced to Shing as pleaded in Ps’ case constitute unjust enrichment, and Shing is liable to repay the same to Ps.

13.  As to Ps’ primary case and Ps’ alternatively, Shing’s case is the one outlined in [4] to [10] above.

C.  THE ISSUES

14.  The parties have provided me an Agreed List of Issues, in which the following issues are set out:

(1)  What is the nature and/or purpose of the money transferred from Ps to Shing? Specifically:

(a)  whether Ps have transferred money to Shing pursuant to the Sebastian Loan Agreement (Ps’ case) or the payments were in the nature of gift (Shing’s case), and whether Shing is under any obligation to repay the same to Ps;

(b)  what is the amount of the advanced to Shing under the Property Loan Agreement; what are the conditions attached thereto whether and/or to what extent has Shing made repayment;

(c)  whether Ps have transferred US$500,000 to Shing pursuant to the Shares Loan Agreement (Ps’ case) or that the said US$500,000 were held on trust by Shing (Shing’s case), and whether Shing is under any obligation to repay/return the said US$500,000 to Ps;

(d)  whether Ps have transferred money pursuant to the Other Loan Agreements (Ps’ case) or that they were in the nature of gift (Shing’s case), and whether Shing is under any obligation to repay the same to Ps.

(2)  Whether Shing is unjustly enriched at the expense of Ps in respect of the aforesaid amounts and liable to make restitution.

(3)  Whether the AE Card Expenses were made by Fang and if so in what amount; and whether Fang is entitled to set-off the same against the amount (if any) awarded to Fang (or to Ps) under Ps’ claim.

15.  At the beginning of the trial, I invited counsel to make submissions on this question: whether the Counterclaim is within the exclusive jurisdiction of the Small Claims Tribunal (“SCT”) and hence this Court does not have jurisdiction over that claim. The relevant statutory provision is s.5 of the Small Claims Tribunal Ordinance (“SCTO”), which provides:

“5. Jurisdiction of the tribunal

(1) The tribunal shall have jurisdiction to hear and determine the claims specified in the Schedule.

(2) Save as provided in this Ordinance, no claim within the jurisdiction of the tribunal shall be actionable in any other court in Hong Kong.

(3) A claim within the jurisdiction of the tribunal may be brought in another court if there is included in such claim a claim for some other relief, redress or remedy, other than a claim for costs.

……” (Emphasis added)

16.  There is no dispute that the Counterclaim is a claim for a sum less than HK$75,000 (apart from costs) only, and hence is a claim within the jurisdiction of the SCT. Having seen the wording of s.5 of the SCTO, in particular s.5(2), both Mr Chiu and Mr Yan agreed that the Counterclaim would not be actionable in this Court.

17.  Mr Yan sought leave to withdraw the Counterclaim, and leave was granted. Accordingly, Agreed Issue (3) under [14] above would not be an issue to be resolved in this trial.

18.  However, notwithstanding the withdrawal of the Counterclaim, Mr Yan has tried to argue that, Shing would still be able to use the matters in the Counterclaim to run a defence of set-off in relation to Ps’ claim. On this point, I am in respectful disagreement with Mr Yan.

(1)  In the Defence, it is pleaded:

“31. Further or alternatively, [Shing] is entitled to and seeks to set off its loss and damages aforesaid or so much of its counterclaim set forth below so as to extinguish or reduce [Ps]’ claim herein.” (Emphasis added)

(2)  The Counterclaim is pleaded in [33] to [38] in the same document.

(3)  By framing the Defence and Counterclaim in this way, it is clear that Shing is relying upon the Counterclaim to run the defence of set-off. When the whole Counterclaim is not actionable in this Court and is withdrawn, there would be nothing which could be relied upon by Shing as the basis of the defence of set-off.

(4)  In view of the case pleaded by Shing in the Defence and Counterclaim, I am of the view that after the withdrawal of the Counterclaim, Shing is not entitled to use the matters in the Counterclaim to run a defence of set-off.

19.  Although the Counterclaim is withdrawn, I allowed the parties to rely upon the AE Card Expenses to make comments on other issues in this case, insofar as the AE Card Expenses are relevant to those issues.

D.  THE PRINCIPLES

D1.  Loan vs Gift

20.  In considering whether a payment is a loan or a gift, the Court of Final Appeal has given valuable guidance in Big Island Construction HK Ltd v Wu Yi Development Co Ltd And Another[13]. In that case, Tang PJ said:

“64. …… I believe a judge should resolve conflicting versions of fact by deciding what is more probable uninfluenced by any consideration of who has the burden of proof. One should look to the burden for help as a last resort. In practice, it is difficult to conceive of a case where there is no evidence apart from the payment. Indeed, when a defence of gift is pleaded it suggests that evidence is available to prove it. Ditto, a claim that it was a loan. In a case where the contest is between a loan and a gift, it is difficult to conceive a case where the court has nothing more than the evidence of payment and receipt. Given the relatively short limitation period one or more of the protagonists is likely to be available. One would expect evidence to explain why the payment was made from the parties. Payments and receipts do not normally happen spontaneously. Moreover, the relationship of the protagonists, their evidence, the circumstances of the payment, its size, the alleged purpose of the payment or the use to which the money was put, are all matters which might help the court to decide the character and effect of the payment. ……”

21.  In Ng Kit, the legal representative and the sole beneficiary of The Estate of Ng Kwun Yuen (吳坤元) deceased v Wu Tsun Hua and Ors[14], DHCJ Paul Lam SC said:

“33(i) Save where a presumption of gift may arise, a gift between spouses or civil partners must be established in the same way as a gift between strangers; that is to say it must be made by deed or by delivery, and there must be a clear and distinct act of gift and evidence that a gift was intended, in particular when the claim is made after the death of the alleged donor.”

D2.  Unjust enrichment

22.  In considering a claim for restitution based upon unjust enrichment, the following questions would need to be considered:[15]

(1)  Was the defendant enriched?

(2)  Was the enrichment at the plaintiff’s expense?

(3)  Was the enrichment unjust?

(4)  Are any of the defences applicable?

D3.  Assessment of evidence

23.  The principles concerning assessment of evidence given by witnesses are trite. The Court would take into account the following[16]:

(1)  Whether the party’s case is inherently plausible or implausible;

(2)  Whether the party’s case is, in a material way, contradicted by other evidence (documentary or otherwise) which is undisputed or indisputable;

(3)  Where it is shown that a witness has been discredited over one or more matters to which he has given evidence using the above tests. This is relevant to the assessment; and

(4)  the demeanour of the witnesses.

24.  Examples of a witness’s unsatisfactory approach to giving evidence include: evasive and argumentative answers, tangential speeches avoiding the question, blaming legal advisers for pleading, disclosure and evidence shortcomings, self-contradiction, internal inconsistency, shifting case, new evidence, and selective disclosure.[17]

25.  While there is a long passage of time between the material events and the trial, contemporaneous documentation is of particular importance. In Esquire (Electronics) Ltd v Hong Kong and Shanghai Banking Corp Ltd [18], Stock JA (as he then was) said:

“…… Comparison with contemporaneous documentation is always an aid to reliability of oral testimony, unless there is reason to believe that the documentation is contrived or materially incomplete; but where the passage of time between events and trial is as long as it was in the present case, and where there is such a host of contemporaneous documentation, as there was in this case, the documentation must, I would have thought, assume a special importance. ……

I would venture to suggest that the truth, in so far as one is able to reach it or, as is sometimes the case, to reach a version of it that is more likely to be correct than not, can best be tested by reference to contemporaneous documentation where it exists, or to its absence where one would expect it to have been created, as well as to inherent probabilities (though bearing in mind that there may be occasions where the truth may run against that particular grain) having regard to all the facts that are known. This is particularly so in a case such as the present, where events have taken place so long before trial and where there exists a mountain of contemporaneous documentation that can be used to point the way. This is not to say that the documentation should have been treated as if it stood on its own, not to be explained, contradicted or supported by oral testimony. It is however to say that in this case the approach adopted to assessment of the facts placed far too much emphasis on character impression and too little upon what was suggested by the documentation and by the inherent probabilities in their historical context. That documentation, as well as conflicts within the evidence, inherent probabilities, and a study of how matters were originally pleaded and asserted in witness statements – these are the factors which in a trial such as this, so long removed from the time of the events in question, were likely to be of particular use in assessing the facts ……” (Emphasis added)

26.  In respect of disputes between family members or parties in a personal relationship, the following have to be borne in mind:

(1)  In Chen Tek Yee & Ors v. Chan Moon Shing[19], Yuen JA said:-

“29. …… when the parties are in a personal relationship (as contrasted with parties in a commercial transaction), it would be unrealistic to expect written records of assurances ……”

(2)  Similarly, in Cheung Lai Mui v. Cheung Wai Shing & Ors[20]^, Wilson Chan J said:

“95. …… Members of the family dealt with each other on the basis of trust, not mistrust. They could not have envisaged litigation in the future, and they would not have generated records to protect themselves out of the blue.”

27.  With the aforesaid principles in mind, I now turn to the evidence.

E.  EVIDENCE AND FACTUAL FINDINGS

E1.  Witnesses giving evidence in the trial

28.  Ps have called the following witnesses to give evidence in the trial in support of Ps’ case:

(1)  Fong Senior

(2)  Fang

29.  Shing has given evidence in the trial in support of her case.

E2.  Fong Senior

30.  In Fong Senior’s witness statement, Fong Senior mentioned the following:

(1)  In around May 2018, Fang told him that Fang had a friend in Hong Kong, and she needed a bridging loan for 2 or 3 months to acquire a new residential property. She had the financial ability to repay the loan. Fang told Fong Senior that Fang would need to use the fund in the account jointly held by Fong Senior and his wife (“the Joint Account”) to provide the loan to Fang’s friend. At that point of time, Fong Senior came to realize the relationship between Fang and Shing.

(2)  Fong Senior did not know Shing and has never met Shing.

(3)  Fong Senior trusted Fang and allowed Fang to manage the Joint Account, his personal account and YTH’s account.

31.  All the payments from the Joint Account, from Fong Senior’s personal account, and from YTH’s account to Shing set out in Fong Senior’s witness statement are included in the Agreed Statement of Facts and admitted by Shing.

32.  At the final submissions stage, Mr Yan told me that in fact the contents of Fong Senior’s witness statement are not in dispute. I accept Fong Senior’s evidence as set out in his witness statement.

E3.  Fang v Shing

E3.1  Overview

33.  There is no dispute that when Fang made or procured the payments as set out in Ps’ case to Shing, Fang and Shing were in a romantic relationship at those times. However, the fact that they were in a romantic relationship would not ipso facto mean that each and every payment from Fang to Shing must be a gift. This point is illustrated by the following:

(1)  Shing agreed that Fang did provide loans to her to assist her to acquire a new property, and the Property Loan Agreement is true.

(2)  According to Shing, Fang would need to reimburse her all the sums borne by her in settling the AE Card Expenses. Fang does not dispute that if the AE Card Expenses are really his expenditure, Fang would have an obligation to reimburse Shing.

The aforesaid clearly shows that at the time when Fang and Shing were still in a romantic relationship, there could still be loan agreement(s) or reimbursement arrangement(s) between them as to some specific sums. The aforesaid also shows that there could be a loan agreement between Fang and Shing even if the agreement is not in writing.

34.  Further, I agree with Mr Chiu that the romantic relationship between Fang and Shing is not something incompatible with the existence of a loan agreement or some loan agreements between them. To state the obvious, when A agrees to provide a loan to B, there must be a reason behind the agreement. The personal relationship between A and B could well be the reason.

35.  Mr Yan submits that being a wealthy businessman, it is more likely than not that when Fang and Shing were in a romantic relationship, Fang would be willing to give generous sums to Shing as gifts. In my view, as a matter of common sense, a person’s wealth does not necessarily link with his generosity. A very wealthy person may not be generous. A not very wealthy person may be very generous. Certainly, it cannot be said that since at the material times Fang and Shing were in a romantic relationship and Fang was a wealthy businessman, every sum to Shing would be a gift.

36.  Having seen and heard the evidence given by Fang and the evidence given by Shing, I prefer Fang’s evidence to Shing’s evidence. Whenever there is a conflict between their evidence, I prefer the evidence given by Fang.

37.  In my view, Fang is an honest and reliable witness. He is forthcoming and has given straight-forward answers to the questions put to him. His evidence is consistent and supported by the documents. I accept his evidence.

38.  In his final submissions, Mr Yan submits that Fang had failed to satisfactorily account for the disappearance of the WeChat messages exchanged between him and Shing from October 2017 to April 2018, and this is a point against Fang should be taken into account in assessing the credibility and reliability of Fang’s evidence.

39.  As to why Fang was unable to produce these WeChat messages, Fang in fact has given an explanation in his witness statement, ie he lost those messages due to lapse of time. Fang’s explanation was not challenged under cross-examination. It was not put to Fang that his explanation was not true or unsatisfactory. In these circumstances, I am of the view that in the final submissions, Mr Yan is not entitled to make any criticism against Fang for the non-production of these WeChat messages.

40.  Regarding these WeChat messages, there have been some exchanges between the parties long before the commencement of the trial:

(1)  On 16 February 2024, Ps’ solicitors wrote to Shing’s solicitors and said that Fang lost the WeChat messages due to lapse of time. Ps’ solicitors asked whether Shing was in possession of those WeChat messages.

(2)  On 11 March 2024, Shing’s solicitors replied and said that Shing had deleted most of the messages, save and except certain messages which were saved.

(3)  On 18 March 2024, Ps’ solicitors requested an affirmation from Shing verifying the answer given in her solicitors’ letter dated 11 March 2024.

(4)  On 12 April 2024, Shing made the affirmation.

41.  In my view, there is no basis to make any criticism against Fang based upon the nonavailability of these WeChat messages.

42.  Regarding Shing, in my judgment, she is an untruthful and unreliable witness. Her evidence is contradicted by the documents on various material aspects and is inherently improbable on the crucial issues in these proceedings. Her evidence also contains irreconcilable internal contradictions. Save and except the matters agreed or not disputed by Ps and the matters as shown in the documentary evidence, I refuse to accept Shing’s evidence.

E3.2.1  Sebastian Loan Agreement

43.  As to the payments set out in the table in [4(b)] above, there is no dispute that Fang made or procured those payments to Shing. The dispute between the parties is the nature of the payments. Ps say that those payments are loans provided to Shing pursuant to the Sebastian Loan Agreement. Shing denies the existence of the Sebastian Loan Agreement and says that those payments were gifts from Fang to her while they were in a romantic relationship.

44.  In my view, the email exchanges between Fang and Shing in December 2021 and January 2022 would shed light on the truth. The important emails are as follows: 

(1)  On 26 December 2021, Fang emailed Shing, demanding for repayment. A list was attached to that email (“the First List”). In the First List, some payments from Fang to Shing have been set out, including a payment of US$500,000 to Shing on 21 December 2021. Regarding that payment, the remark on the First List is “股票 - 必須原路返回”.

(2)  On 27 December 2021 at 11:28 am, Shing replied and made some comments on the sums mentioned by Fang in his email. Regarding the US$500,000, Shing said that the sum was used to invest in the Hong Kong Stock Market on behalf of Fang, and due to the fall in the market, more than half was lost. If Fang wanted to get back the remaining sum, Shing could sell Fang’s shares and return the proceeds to him.

(3)  On 27 December 2021 at 3:05 pm, Fang replied. As to Shing’s comments on the Stock Account, Fang said: “股票的处理让我考虑一下”.

(4)  On 29 December 2021 at 4:40 pm, Shing emailed Fang, in which Fang said, inter alia, “$10,000,000 total be put on 申萬證券股票戶口，每人一半即HK$5,000,000, 約USD 650,000”.

(5)  On 29 December 2021 at 9 pm, Fang emailed Shing and enclosed an updated list (“the Second List”) in that email. In the Second List, Fang set out more payments to Shing. Fang was demanding Shing to repay him the balance as set out on the Second List. Among the payments set out on the Second List, various payments have been marked as “代盛还Sebastian的欠款”.

(6)  Subsequently, there were some emails passing between Fang and Shing. Fang kept on chasing Shing to demand her to repay the money.

(7)  On 30 December 2021,

(a)  At 11:10 am, Fang wrote to Shing demanding for repayment and provided the account details.

(b)  At 12:29 pm, Shing replied and said: “沒有錢拿什麼去匯款? 過多二個月我房子按揭供款都會開始有問題，你這樣講話是解決不了問題的, 能否冷靜處理問題?”

(c)  At 1:35 pm, Fang replied and continued to demand for repayment: “盛小姐，请你理性看待还款事宜，尽快还款”.

(d)  At 1:47 pm, Shing replied and said: “你在26號聯絡我，讓我在4天時間里為你籌50幾萬美金，你告訴我怎麼籌？我連5萬都拿不出！如果你這樣逼我，那我只好等你把我送上法庭吧，謝謝你曾經的信任”

(e)  At 2:16 pm, Fang said “我在今年六七月份就告知你要还款，怎样是这4天…你今天出个还款计划”

(f)  At 4:26 pm, Fang said “但有转账记录等事实为证，让你列出近期还款计划，已经给足你颜面” and “盛小姐，请你正视一件事：你借我的钱要尽快偿还”

(g)  At 5:44 pm, Shing replied and said: “我逃避嗎？我從來沒有想過不給回你的錢，所有的花費都是在你同意的情況下我才用的！” (Emphasis added)

(h)  At 8:07 pm, Fang said: “明天中午12点前出还款计划”

(8)  On 4 January 2022, Shing in her email to Fang said: “…你一切皆出自願幫我代兒子付款，給我生活費，你我兩相情願，從未牽涉欺騙 …” (Emphasis added)

45.  During cross-examination, Shing admitted that when she received the Second List through email, she did read the Second List. She also made an amendment on the Second List. The amendment made by Shing is in relation to the amount paid by her to 李靜. Originally, the figure shown on the Second List was HK$123,500.00. Shing corrected the figure and stated that the correct figure should be HK$1,235,000.00.[21]

46.  It is clear that in the email exchanges between Fang and Shing in December 2021 and January 2022, save and except the US$500,000 in relation to the Stock Account, Shing did not deny the existence of the loans as set out in Second List.

47.  The fact that there is no denial of the existence of the loans in the emails is admitted by Shing under cross-examination.

48.  As to the email exchanges between Fang and Shing in December 2021 and January 2022, Mr Yan submits that little weight should be attached to these emails, for these emails are not documents made at the time of the alleged loan agreements but documents appeared subsequently. With respect, I am unable to agree.

(1)  Evidence of subsequent conduct is admissible for the purpose of determining the parties’ intention at the material time. In Blue v Ashley[22], Leggatt J said:

“…… where, as here, the court is concerned with an oral agreement, the test remains objective but evidence of the subjective understanding of the parties is admissible in so far as it tends to show whether, objectively, an agreement was reached and, if so, what its terms were and whether it was intended to be legally binding. Evidence of subsequent conduct is admissible on the same basis. In the case of an oral agreement, unless a recording was made, the court cannot know the exact words spoken nor the tone in which they were spoken, nor the facial expressions and body language of those involved. In these circumstances, the parties’ subjective understanding may be a good guide to how, in their context, the words used would reasonably have been understood. It is for that reason that the House of Lords in Carmichael v National Power Plc [1999] 1 WLR 2042 held that evidence of the subjective understanding of the parties is admissible in deciding what obligations were established by an oral agreement.” (Emphasis added)

(2)  As submitted by Mr Chiu, since the relationship between Fang and Shing ended in May 2021, if there is anything in Fang’s emails to Shing in December 2021 (in which Fang was demanding for repayments of loans) which is not true or not correct, there would be no reason for Shing not to rebut and refute the untrue allegations in reply. Those email exchanges are highly relevant in assessing the veracity of the parties’ respective cases.

49.  Mr Yan refers me to some WhatsApp exchanges between Fang and Shing. On 30 December 2021 at 12:25 am, Shing sent a message to Fang, in which Shing asked a rhetorical question: why Fang did not list out the expenses spent on meals, air tickets, travelling and hotels in the past few years. Mr Yan submits that in this message, Shing had expressed her disagreement to Fang’s claim for repayment of the loans set out in his emails. With respect, I am unable to agree.

(1)  The plain meaning of that WhatsApp message is not a denial of the loans set out in Fang’s emails.

(2)  Further, all the email exchanges on 30 December 2021 as set out in [44(7)] above are exchanges subsequent to this WhatsApp message. In those email changes, it is clear that Shing did not deny the existence of the loans as set out in the Second List (save and except the US$500,000). On the contrary, she admitted that she would repay the indebtedness (“我從來沒有想過不給回你的錢” – Shing’s email on 30 December 2021 at 5:44 pm), but she said that she did not have the money to pay (“沒有錢拿什麼去匯款?”  – Shing’s email on 30 December 2021 at 12:29 pm).

50.  Mr Yan submits that in Shing’s email dated 4 January 2022, by saying “你一切皆出自願幫我代兒子付款”, Shing had said that all the payments to her to repay the loans owed by Sebastian were gifts from Fang to her. With respect, I am unable to agree.

(1)  Mr Yan’s submission is contrary to Shing’s admission under cross-examination as stated in [47] above.

(2)  Further, in my view, the meaning suggested by Mr Yan is not the plain meaning of the email. There is no dispute that all the payments made or procured by Fang were made or procured by Fang voluntarily at the material times. However, that does not necessarily mean that those payments would be gifts from Fang to Shing. Voluntary payments from Fang to Shing could also be loans from Fang to Shing.

(3)  Reading the emails as set out in [44(7)] above, for the reasons set out in [49(2)] above, I do not regard Shing’s email dated 4 January 2022 as a denial of the existence of the Sebastian Loan Agreement.

51.  It is Shing’s case that (a) the only loan agreement between Fang and her is the Property Loan Agreement; and (b) by 20 March 2021, she has fully repaid the Property Loan. Thus, in other words, Shing’s case is that she did not owe any sum to Fang after 20 March 2021. During cross-examination, it was put to Shing that in line with her case, when she received emails from Fang demanding for repayment in December 2021, she should immediately rebut and deny the loans alleged by Fang. Shing disagreed. However, she did not explain why she did not deny the loans alleged by Fang in his emails. In my view, there is an irreconcilable contradiction in Shing’s case and her case cannot be true.

52.  Shing claimed that Sebastian only owed a loan of HK$100,000, and that was fully settled by Allan before or around December 2021. Shing’s evidence is inherently improbable.

(1)  Under cross-examination, Shing could not give clear evidence on the alleged settlement of the Sebastian’s loan by Allan. Shing could not tell whether Sebastian owed money to one or more financial companies. Shing also could not tell by what means the repayment(s) was/were made.

(2)  Further, had Allan assisted in repaying Sebastian’s loan, it is inherently improbable that Shing and Allan did not demand and did not keep any document to prove on the full settlement of the loan.

(3)  Shing’s evidence is contradicted by the sums marked with “代盛还Sebastian的欠款” on the Second List. Shing had gone through the items on the Second List and had never suggested that these remarks should be changed or amended.

(4)  Shing’s evidence is also contradicted by her own email dated 4 January 2022, in which she said “你一切皆出自願幫我代兒子付款”.

53.  In my view, the existence of the Sebastian Loan Agreement is supported by the Second List and the email exchanges between Fang and Shing in December 2021 and January 2022. On the matters relating to the Sebastian Loan Agreement, Fang’s evidence is consistent with the documents. On the contrary, Shing’s evidence is contradicted by the documents and is inherently improbable. I accept Fang’s evidence and refuse to accept Shing’s evidence.

54.  I hold that Ps’ case on the Sebastian Loan Agreement is true.

55.  The Sebastian Loan Agreement is one of the contentious issues in this trial. Shing’s evidence on the matters relating to this issue is a pack of lies. This has an adverse impact on the overall credibility and reliability of her evidence.

E3.2.2  Property Loan Agreement

56.  Regarding the Property Loan Agreement, the disputes between the parties are as follows:

(1)  whether the last two items as set out in the table in [5(b)] above (ie RMB¥10,000 and US$20,000) are parts of the Property Loan;

(2)  whether (a) the payment of US$298,060 to 熊鵬; and (b) the payment of HK$1,235,000 to 李靜as set out in the table in [9] above are repayments of the Property Loan made by Shing; and

(3)  whether the Property Loan Agreement is subject to the Conditions.

E3.2.2.1   RMB¥10,000 and US$20,000

57.  In respect of these two sums, Mr Yan submits that the documentary evidence clearly shows that the completion of the purchase of the new property took place on 1 August 2018, and these two sums were advanced to D after that date. Mr Yan submits that these two sums could not be related to the purchase of the new property.

58.  In Ps’ pleaded case, these two sums are “additional loans to settle some small expenses” in relation to the purchase of the new property.[23] In Fang’s evidence, Fang said:

(1)  On or around 10 August 2018, Shing told him that as a result of the purchase of the new property, she had a liquidity problem and asked Fang to lend her RMB¥10,000. Fang acceded to the request.[24]

(2)  On or around 12 September 2018, based upon the Property Loan Agreement, Fang lent a further sum of US$20,000 to help Shing to complete some procedural matters in relation to the mortgage of the new property.[25]

59.  As to where the truth lies, in my view, the best evidence is the Second List in the email exchanges between Fang and Shing from December 2021 to January 2022. These two sums are on the Second List, and the description of each of these sums is “借款”. Shing has never disputed the correctness of the description in the email exchanges.

60.  Accordingly, these two sums must be loans from Fang to Shing. In my judgment, the truth is that these two sums were loans provided by Fang to Shing upon Shing’s requests. Each time, when Shing made a request, she gave a reason which was relating to the purchase of the new property. The reason given by her might or might not be true. However, from Fang’s perspective, Shing gave him an impression that the sum requested was related to the purchase of the new property.

61.  I have also considered the WeChat messages between Fang and Shing on 12 September 2018, in which Fang said “2万美元都给你了”. Under cross-examination, Fang said that the word “給” could mean “a transfer” or “something given”. Reading those messages in context, I agree with Fang. Considering the evidence before me as a whole, in particular the non-denial of the remark of “借款” in relation to the US$20,000 on the Second List by Shing in the email exchanges, I am of the view that the true meaning of the WeChat message set out in the above is Fang having transferred US$20,000 to Shing. The true meaning of that WeChat message is not Fang giving the US$20,000 to Shing as a gift.

62.  In respect of these two sums, I accept Ps’ case.

E3.2.2.2  US$298,060 and HK$1,235,000

63.  There is no dispute that the following sums were transferred from YTH to Shing’s company and Shing:

(1)  On 15 October 2020, a sum of US$95,000 was transferred to Shing’s company Good Morning Hong Kong Limited; and

(2)  On 22 October 2020, a sum of US$450,000 was transferred to Shing.

64.  Ps’ case is that the transfer of US$450,000 to Shing via YTH is for the purpose of paying 熊鵬 and 李靜 for Fang’s investment.

(1)  Part of the US$450,000 transferred to Shing on 22 October 2020 was for the purpose of paying the US$298,060 from Shing to 熊鵬 on 27 October 2020.

(2)  The remaining US$151,940 then formed part of the transfer of HK$1,235,000 to 李靜 on 22 December 2020.

(3)  Under cross-examination, Fang said:

(a)  The second batch of payment was made in December 2020, two months after the first batch of payment made in October 2020. These two payments were for separate investments. When YTH transferred the payment of US$450,000 to Shing, the underlying investments were already agreed upon and thus Fang had to prepare the money in advance in order for Shing to transfer the money once the respective recipients of the two investments were ready to take the respective payments. The delay in the transfer of payments for the second investment was because of the pending confirmation from the recipient.

(b)  At the time of these payments, Shing had not defaulted in repaying the loans owed to Fang and Fang trusted Shing. Hence, Fang would let Shing handle his money remotely in Hong Kong under COVID.

(c)  Initially, Ps considered the payments from Shing to 熊鵬 and 李靜 as repayments made by Shing and indicated the same in Ps’ pleaded case. However, subsequently Ps amended the pleadings and did not regard these payments as repayments. Fang explained that at the beginning of these proceedings, he forgot the US$450,000 from YTH to Shing. It was during the audit process at a later time, the auditor found out the payment of US$450,000 from YTH to Shing and Fang recalled the situation at that time, and hence Ps amended the pleadings.

65.  Shing’s case is that in or about October 2020, Fang told her that he made a huge profit of RMB¥30 million odd by trading surgical masks in Chinese Mainland. Fang was willing to give her a portion of the profit as a gift and hence transferred the US$95,000 and the US$450,000 to her. These two transfers are unrelated to the payments from her to 熊鵬 and 李靜. The payments made by her to 熊鵬 and 李靜 are partial repayments of the Property Loan.

66.  Regarding the payments to 熊鵬 and 李靜, I prefer Fang’s evidence to Shing’s evidence.

(1)  The fact that Fang has made a profit in his business does not necessarily mean that Fang would give the US$95,000 and the US$450,000 to Shing as gifts.

(2)  The US$95,000 and the US$450,000 to Shing are not from Fang’s personal account, but from YTH’s account. YTH is not a company owned by Fang, but is a company owned by Fang’s parents. It is inherently improbable that Fang would give YTH’s assets to Shing as gifts without the consent or approval of his parents.

(3)  Bearing in mind that the US$95,000 and the US$450,000 are substantial sums, if these are really gifts from Fang to Shing, naturally Shing should be very grateful to Fang for his generosity. However, there is no evidence showing that Shing has expressed her gratitude to Fang for these generous gifts by any means at any time.

67.  Mr Yan submits that Fang’s evidence should not be accepted, for there is an inexplicable shortfall in Fang’s explanation[26]. With respect, the shortfall point was not put to Fang while Fang was giving evidence, and Fang had not been given an opportunity to respond to this point under cross-examination. In the circumstances, Mr Yan is not entitled to take this point in his final submissions.

68.  Having considered the evidence as a whole, as to the payments to 熊鵬 and 李靜, I accept Ps’ case.

E3.2.2.3  Property Loan Agreement subject to the Conditions

69.  As to whether the Property Loan Agreement is subject to the Conditions as contended by Ps, I am of the view that Ps’ case is inherently probable, and I accept Ps’ case.

(1)  According to Fang, he realized that Allan and Shing cohabited together in around mid-2017.[27] According to Shing, on the first day when she met Fang, she had told Fang the relationship between Allan and her.[28]  In other words, according to either version, before Fang and Shing entering into the Property Loan Agreement in around May 2018, Fang had already known the relationship between Allan and Shing.

(2)  Against this background, bearing in mind that Fang and Shing were in a romantic relationship at the time of the Property Loan Agreement, it is inherently probable that Fang would raise Condition 1 and would require Shing to agree to that.

(3)  Further, a loan must be repaid by a specific time. It is inherently probable that the Property Loan Agreement is subject to Condition 2.

E 3.2.2.4  Allan’s Manuscript

70.  I would briefly comment on a manuscript produced and relied upon by Shing. According to Shing, the manuscript was prepared by Allan (“Allan’s Manuscript”). Shing relies upon Allan’s Manuscript as evidence to show her full repayment in respect of the Property Loan Agreement and the non-existence of other loans between Fang and her. For the reasons below, I do not regard Allan’s Manuscript as reliable evidence, and I do not attach weight to the matters set out in this document.

(1)  Fang’s attention was drawn to Allan’s Manuscript while he was giving evidence. Fang did not regard Allan’s Manuscript as a full and complete record of all the loans and repayments as between Shing and him.

(2)  Under cross-examination, Shing said that the document was a record made by Allan, and she could not be sure whether the document in fact reflected her full repayment of the Property Loan.

(3)  Allan’s Manuscript is not a self-explanatory document. There is no evidence from Allan explaining the meaning of the records made on the paper. Without any explanation from the author, a reasonable reader would have difficulties in understanding the true meaning of various items in that document. Further, without hearing evidence concerning this document from Allan and without seeing his evidence being tested under cross-examination, it would not be prudent to attach any weight to this document.

E3.2.3  Shares Loan Agreement

71.  As to the Shares Loan Agreement, the parties’ respective cases are as follows:

(1)  Ps’ case:

(a)  In around December 2020, Shing requested Fang to lend her money for opening a stock account with Shenwan Securities and for purchasing stocks (ie the Stock Account).

(b)  On about 21 December 2020, Fang orally agreed to lend money from YTH’s account to Shing for the sole purpose of opening the Stock Account, subject to the condition that repayment should be made to YTH’s account no later than 31 March 2021.

(2)  Shing’s case:

(a)  In or about November 2020, Fang requested Shing to open a stock trading account in Hong Kong for him to invest in the Hong Kong stock market for (i) convenience as Shing could operate the account on his behalf at any time; and (ii) evasion of tax liability and the need to make declaration in light of Fang’s US citizenship.

(b)  Fang and Shing agreed to inject a total amount of HK$10,000,000 as the initial capital in the stock trading account to be opened. Each of them shall bear 50% of the initial capital and 50% of the gain/loss of the investment.

(c)  However, notwithstanding the agreement, Fang only contributed US$500,000 to the Stock Account. Shing made good of the shortfall using her money and the initial capital injected to the Stock Account retained as approximately HK$10,000,000.

(d)  Although the Stock Account was under Shing’s sole name, it was held by Shing on trust for herself and Fang in equal shares.

72.  As submitted by Mr Chiu, there are various fundamental problems in Shing’s case.

73.  First, Ps had their own securities accounts in Hong Kong and could conduct trading in the Hong Kong stock market by using their own accounts. It is incapable of being believed that Fang would request Shing to help him to open a stock account in Hong Kong to enable him to trade in the Hong Kong stock market. As to the allegation that Fang intended to evade tax, such an allegation is not supported by any evidence save and except the bare allegation from Shing. Such a serious allegation would not be entertained unless there is clear and cogent evidence in support of the allegation, but there is no such evidence in this case.

74.  Second, there are irreconcilable inconsistencies in Shing’s case concerning the amount of the initial capital injected to the Stock Account.

(1)  Shing’s pleaded case is that at around November 2020, Fang and Shing agreed to inject a total amount of HK$10,000,000 as the initial capital to open the Stock Account. As a result of and after this agreement, a WeChat chat room named “港股打新” (“WeChat Room”) was opened.

(2)  However, both in her supplemental witness statement and in her oral evidence, Shing said that Fang and her agreed to inject a total amount of US$1,000,000 as the initial capital to open the Stock Account. The WeChat Room was subsequently opened in November 2020. It was only after the opening of the Stock Account, in late December 2020, Fang and her agreed to vary the total capital invested into the Stock Account to HK$10,000,000 for the purpose of upgrading the account to a VIP account.

(3)  The inconsistency between her pleaded case and the case in her evidence was put to Shing during cross-examination. No satisfactory answer was given by Shing.

(4)  It is also worth to note that the monthly statements of the Stock Account in January and February 2021 do not show any upgrade of the account.

(5)  There is a further irreconcilable inconsistency between Shing’s pleaded case and Shing’s evidence. Under cross-examination, Shing admitted that her description of “$10,000,000 total be put on 申萬證券股票戶口，每人一半即HK$5,000,000, 約USD 650,000”in her email to Fang on 29 December 2021 at 4:40 pm is inconsistent with her pleaded case. Shing agreed that the subject matter in the email exchanges in fact was the US$500,000 mentioned in her email dated 27 December 2021. Bearing in mind that this was the subject matter, the saying in Fang’s email dated 29 December 2021 as set out in the above is really something inexplicable.

75.  Third, regarding the purpose of opening the WeChat Room, I accept Fang’s evidence and reject Shing’s evidence.

(1)  According to Fang, the purpose of opening the WeChat Room was to introduce a lady called Amy working in a securities company (ie Tiger Securities (老虎證券)) to Shing, so that Shing could open an account in Tiger Securities to make her own investment in Initial Public Offerings (“IPOs”) in Hong Kong. The WeChat Room was irrelevant to the opening of the Stock Account with Shenwan Securities.

(2)  According to Shing, the WeChat Room was opened for enabling Shing to help Fang to open an account in Chinese Mainland for buying IPOs in Hong Kong.

(3)  In my view, Shing’s evidence is inherently improbable.

(a)  If Fang intended to open a securities account in the Mainland, Fang could easily do so by himself or through a company controlled by him.

(b)  Further, if one intends to invest in IPOs in Hong Kong, one would naturally open a securities account in Hong Kong. It makes no sense to open a securities account in the Mainland to invest in IPOs issued in Hong Kong.

(c)  On 25 November 2020, Shing in the WeChat Room sent out a document and said “麻煩你們幫我看清楚再交啊”. Under cross-examination, Fang’s attention was drawn to this message. Fang said that this message was directed to the licensed person of Tiger Securities. In my view, by this message Shing was asking the staff in Tiger Securities to see whether everything in the document submitted by her was correct before forwarding the document to the company. I do not see in what way Shing can derive assistance from this message in support of her case.

76.  Fourth, there is clearly documentary evidence showing that Shing was interested in investing the IPO issues of Blue Moon Group Holdings Limited (6993) (“Blue Moon”) (ie 藍月亮as referred by the parties) and JD Health International Inc (6618) (“JD Health”) (ie 京東/京東健康 as referred by the parties), but Fang refused to jointly invest with her in those IPOs.

(1)  On 27 November 2020, Shing shared the articles in relation to these two IPOs to Fang through WeChat.

(2)  When Shing said “你說讓我搞京東老公搞藍月亮的”, Fang replied and said “我說借錢”. Then Shing replied a sticker with the words “頭腦發熱” on it. Clearly, Fang stressed that any assistance provided to Shing in relation to investments in these IPOs would be in the form of a loan.

77.  Fifth, since the opening of the Stock Account, Shing had the control over the investments therein, and Shing did not provide updates in relation to the investments in the account to Fang. As submitted by Mr Chiu, all these suggest that the investments in the Stock Account are Shing’s own investments, not the joint investments of Fang and Shing.

(1)  In the WeChat Room, the last message was from Shing on 3 December 2020, in which she attached some screencaps showing the approval of her applications for short-term loans to invest in the IPOs of JD Health and Pop Mart by Shenwan Securities, and she also said “方總你入的新股已確認”. As submitted by Mr Chiu, Shing’s message is incorrect, for what is shown in the screencaps is approval of applications for short-term loans, not success acquisition of any shares.

(2)  After 3 December 2020, Shing did not provide any update on these IPO issues to Fang in the WeChat Room or via other channels.

(3)  In fact, Shing via Shenwan Securities applied and successfully allotted with shares of (a) JD Health on 7 December 2020; (b) Pop Mart on 10 December 2020; and (c) Blue Moon on 15 December 2020. Shing did not provide these updates to Fang in the WeChat Room or by other any written means.

(4)  Shing claimed that she provided the updates to Fang through phone calls. In my view, this is something invented by Shing in the witness box and there is no truth in this allegation. Bearing in mind that in accordance with Shing’s case, the purpose of opening the WeChat Room was to enable Shing to help Fang in invest in IPOs in Hong Kong, had there been any truth in Shing’s case, naturally Shing should and would have had informed Fang the updates in the IPO issues in the WeChat Room. In my judgment, the absence of any update in the IPO issues in the WeChat Room shows that Shing’s case is inherently improbable.

(5)  Fang said that the investments in the Stock Account were Shing’s own investments. Hence, when Shing was talking about these investments in the WeChat Room, he did not read these messages carefully, for the investments were not relevant to him. Having considered the evidence before me as a whole, I regard Fang’s evidence is inherently probable.

78.  Sixth, the point that the investments in the Stock Account are Shing’s personal investments is further reinforced by Shing giving no notice of the following incidents to Fang:

(1)  On 5 July 2021, Shing withdrew HK$1,000,000 from the Stock Account for personal reasons.

(2)  On 7 July 2021, Shing deposited HK$5,000,000 cash as a fixed deposit in the Stock Account.

(3)  According to Shing, on 12 December 2021, she first became aware of an alleged unusual margin situation in the Stock Account (“Alleged Unauthorized Margin Trading”).

(4)  On 19 January 2022, Shing made a complaint to the Securities and Futures Commission (“SFC”).

(5)  On 26 January 2022, Shing met Shenwan Securities’ representatives, and was first made aware of Shenwan Securities’ arrangement in October 2021 for a three-month high interest loan on her behalf to finance her margin payments.

79.  Shing claimed that she tried but could not contact Fang, for Fang disappeared and avoided Shing since May 2021. As submitted by Mr Chiu, Shing’s evidence is untrue.

(1)  The documentary evidence in fact shows that it was Shing who blocked Fang since May 2021. In Shing’s email to Fang on 30 December 2021, Shing said “你在5月十幾號開始就不理我不與我溝通，我一氣之下就拉黑你”. When this email was put to Shing during cross-examination, Shing then said that in fact she could send messages to Fang.

(2)  However, Shing changed her stance at a later time and said that she could not contact Fang or leave a message to him, for Fang had told her not to do so. Shing claimed that Fang told her not to contact him after the opening of the Stock Account.

(3)  To state the obvious, if the investments in the Stock Account are joint investments as claimed by Shing, it is unbelievable that Fang would tell Shing not to contact him after the opening of the Stock Account.

80.  Seventh, under cross-examination, Shing admitted that from July 2021 to 19 January 2022, she did not inform or discuss with Fang the Alleged Unauthorized Margin Trading. There is no plausible explanation from Shing as to why she did not do so, if the investments in the Stock Account were really joint investments as claimed by her.

(1)  In her witness statement, Shing claimed that she attempted to contact Fang about the Alleged Unauthorized Margin Trading in July 2021. This is in fact contradicted by Shing’s own case that she was first made aware of the Alleged Unauthorized Margin Trading in December 2021.

(2)  Shing alleged that she was first made aware of the Alleged Unauthorized Margin Trading on 12 December 2021. She made a complaint to the SFC on 19 January 2022. From 12 December 2021 to 19 January 2022, Shing did not inform Fang the Alleged Unauthorized Margin Trading.

(3)  Shing in cross-examination alleged that she kept calling Fang during that period of time. However, from September 2021 to 1 January 2022, there were some WhatsApp messages exchanged between Fang and Shing, in which Fang kept on chasing Shing for repayments, and Shing refused to pay. There were some heated exchanges in those messages. There was no sign in those messages indicating that Shing had attempted to call Fang but Fang refused to pick up her call.

(4)  On 21 December 2021, Fang wrote a WhatsApp message to Shing and said: “你一直也沒有回我, 加個微信溝通一下吧”. Shing agreed that at that time, she had not yet added Fang back to her WeChat contact list. From this message, it is clear that it was Shing refusing to talk to Fang, not the other way round.

(5)  It is also clear in Shing’s email to Fang on 27 December 2021 at 11:28 am (see [44(2)] above), despite she mentioned some matters concerning the Stock Account, she did not mention the Alleged Unauthorized Margin Trading. Had Fang been avoiding or being irresponsible to deal with the Alleged Unauthorized Margin Trading, naturally Shing would have had mentioned all these in this email.

(6)  When Shing made her complaint to Shenwan Securities, she included Allan (not Fang) in the email chain. There is no plausible explanation from Shing as to why she did not include Fang in the email chain, if Fang really had a personal interest in the investments in the Stock Account as alleged by her.

81.  Eighth, if the investments in the Stock Account are joint investments of Fang and Shing, Shing should have discussed with Fang about the arrangements of these investments after they broke up in May 2021. However, Shing did not do so. Fang also did not attempt to have such a discussion with Shing on this matter. During the period from May 2021 to July 2021, the investments under the Stock Account were making profits. In view of all these, it is inherently improbable that the investments in the Stock Account are joint investments.

82.  As to the reply given by Fang in his email dated 27 December 2021 at 3:05 pm (see [44(3)] above) – “股票的处理让我考虑一下”, under cross-examination, Fang explained that his understanding of what Shing said in her email[29] was that due to the fall in the stock market, she did not have enough money to repay Fang. Hence, Fang replied and said that he would think about it. In my view, Fang’s explanation is inherently probable. In his email dated 27 December 2021, Fang did not admit that he had any interest in the Stock Account.

83.  Having considered all the evidence, as to the Shares Loan Agreement, I accept Fang’s case and reject Shing’s case.

E3.2.4  Other Loan Agreements

84.  Regarding the other loans, the payments as set out in [7] above are agreed. The dispute between Fang and Shing is whether these payments from Fang to Shing are loans or gifts.

85.  As to the nature of these payments, I accept Ps’ case and reject Shing’s case.

(1)  For the reasons set out in the above, I regard Fang as an honest and reliable witness, and I am of the view that Shing is an untruthful and unreliable witness. On this basis, as to the nature of these payments, I prefer Fang’s evidence.

(2)  Further, in the payments set out in [7] above, payment nos.1, 2 and 4 have been clearly set out on the Second List. The point concerning the Second List as set out in [44] to [49] and in [51] above also applies to these payments.

(3)  Regarding payment nos.5 and 6, these items can also be found in the Second List, although the dates are different. Ps’ case is that although the dates are different, payment nos.5 and 6 are indeed the first item in the second section, and the last item in the first section on the Second List. Based upon Fang’s evidence (which is accepted by this Court), I accept Ps’ case. Accordingly, the point as set out in subparagraph (2) above also applies to payment nos.5 and 6.

(4)  There is a further point in support of the contention that payment nos.5 and 6 are loans. Payment no.5 is from YTH’s account, and Payment no.6 is from Fong Senior’s account. These payments are not Fang’s own money. It is inherently improbable that Fang would use his father’s money and YTH’s money to make gifts to Shing.

E4.  Conclusion

86.  Based upon the evidence accepted by this Court, for Agreed Issue (1) set out in [14] above, I make the following findings:

(1)  The Sebastian Loan Agreement, the Property Loan Agreement, the Shares Loan Agreement and the Other Loan Agreements in Ps’ case are true. Shing is liable to repay all the loans under these agreements to Fang.

(2)  The sums paid to Shing under the Loan Agreements are those pleaded in Ps’ case.

(3)  The repayments made by Shing are those pleaded in Ps’ case.

(4)  Shing’s case is rejected in its entirety.

Accordingly, Ps’ primary claim against Shing must be allowed.

87.  There is no dispute that if Ps’ primary claim is allowed, there should be an order requiring Shing to pay HK$10,348,376.08 (“the Outstanding Sum”) to Fang, together with pre-judgment interest at 1% above the HSBC prime rate from the date of the Writ of Summons until the date of the judgment. There is also no dispute that there should be usual post-judgment interest on the judgment sum, ie post-judgement interest at the judgment rate until full payment of the Outstanding Sum. I would make this order at the end of this judgment.

88.  For completeness, as to Agreed Issue (2) as set out in [14] above, I would say that based upon the factual findings made by this Court, Ps would also succeed in their alternative claim based upon unjust enrichment. For the record, Mr Yan has agreed that if Ps’ alternative claim is allowed, Mr Yan accepts that there be an order requiring Shing to pay the Outstanding Sum with the same pre-judgment interest to either Fang or to Ps. Post-judgment interest is also not disputed. Since I have decided to make an order under Ps’ primary claim, it would not be necessary for me to make an order under Ps’ alternative claim.

F.  DISPOSITION

89.  I enter final judgment in favour of Ps and against Shing. I make the order as set out in [87] above.

90.  Costs should follow the event. There be a costs order nisi that costs of these proceedings (including costs reserved) be to Ps, to be taxed if not agreed. Unless there is an application for variation of the costs order nisi made by an inter partes summons within 14 days, the costs order nisi shall become absolute without a further order.

91.  Lastly, it remains for me to express my gratitude to all counsel for the helpful assistance rendered to the Court.