LAM MAN SUN v. FELDMAN, RICHARD DAVID GERARD

DCCJ 3032/2023

[2025] HKDC 1215

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 3032 OF 2023

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JUDGMENT

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INTRODUCTION

1.  This action concerns the recovery of 5 personal loans allegedly advanced by the Plaintiff to the Defendant in the total sum of HK$596,800 (the “Subject Loans”).

2.  The trial was originally set down for 3 days. The Defendant (acting in person) was absent on the first day of trial on 23 June 2025 (he was also absent at the PTR on 20 March 2025). Rather, he made a telephone call to the Court at around 9:20 am (trial was to commence at 10:30 am) and informed the Court clerk that due to unforeseen circumstances, he would be unable to attend the trial. He further said that he was out of Hong Kong and asked for the trial to be conducted remotely via video-link.

3.  Insofar as the Defendant was making a formal application for the trial to be conducted remotely, I have no hesitation in refusing it. It was made right before the trial was scheduled to commence and was extremely late (with no proper reason or explanation given for the delay). It would also necessitate an adjournment of the trial which is a milestone date, and no exceptional circumstances have been shown (as required under O 25 r 1B(3)).

4.  I am satisfied that the Defendant has been given proper notice of the trial dates (at least from the Plaintiff’s solicitors letter dated 9 June 2025 and also the Court’s letter dated 13 June 2025 with a Notice of Hearing). The fact that the Defendant made a telephone call to the Court on the first day of trial right before it was to commence reinforces this fact. I therefore proceeded with the trial in the absence of the Defendant pursuant to O 35 r 1(2).

5.  Although the Defendant was absent, I should still consider his pleaded case (his Defence was prepared by his former solicitors). I remind myself that the burden remains on the Plaintiff to prove his claim. I shall however disregard the Defendant’s witness statement in its entirety.

KEY BACKGROUND FACTS AND THE PLEADED CASES OF THE PARTIES

6.  It is common ground that the Plaintiff and the Defendant became acquainted in or around 2015[1]. They have a dispute on their exact relationship but it has no bearing on the matters that I need to decide. It is sufficient for me to note that the Defendant has been working in the bar/restaurant business, and the Plaintiff together with his friends were regular patrons/customers.

The Plaintiff’s pleaded case on the Subject Loans

7.  The Plaintiff claims to have advanced the Subject Loans (being personal loans) to the Defendant or some corporate entities designated by the Defendant on various dates as follows[2]:

Date of advance	Transferee	Amount
25 Jan 2018	The Defendant	HK$150,000
16 Nov 2018	Mimosa Holdings Ltd (“Mimosa”)	HK$75,000
3 Dec 2018	Mimosa	HK$220,000
27 Dec 2018	Dynasty New Ltd (“Dynasty”)	HK$117,000
8 Jan 2019	Dynasty	HK$34,800
		HK$596,800

8.  The Plaintiff says that the Defendant failed or refused to repay any part of the Subject Loans despite repeated demands.

The Defendant’s pleaded case on the Subject Loans

9.  The Defendant denies that personal loans were advanced by the Plaintiff. Rather, it is acknowledged that between 16 November 2018 and 8 January 2019, the Plaintiff made advances “by way of loans to [Mimosa] and [Dynasty] in the total amount of HK$446,800”. The Defendant further claims that these loans “were subsequently repaid to the Plaintiff”[3]. I note that no particulars or dates were pleaded.

10.  In other words, the Defendant denies the 1^st transaction in the table set out in paragraph 7 above (the “1^st Transfer”) but admits the remaining 4 transactions (the “Remaining Transfers”), although he claims that those were loans to Mimosa and Dynasty but not to him personally, and they have in any case been repaid.

Further background – the 2017 Loans

11.  At this juncture I should mention 2 other loans that form part of the overall background (although they do not form part of the Plaintiff’s claim). It arises out of the Plaintiff’s evidence. The Plaintiff says that he provided 2 other loans to the Defendant in 2017 (ie before the Subject Loans were advanced) in the total sum of HK$600,000, being (i) HK$300,000 advanced on 27 July 2017 and (ii) another HK$300,000 advanced on 31 July 2017 (the “2017 Loans”)[4].

12.  On the Plaintiff’s case, the 2017 Loans were subsequently regarded by the parties to be shareholder’s loans to KeeKee Investment Limited (“KeeKee”), hitherto owned and controlled by the Defendant until the Plaintiff formally becoming a shareholder on 24 December 2018[5].

13.  The Plaintiff’s case is that HK$596,800 out of the 2017 Loans has been repaid (presumably by KeeKee)[6]. The Defendant’s case in this regard is that KeeKee repaid HK$150,000 to the Plaintiff[7]. The difference does not matter for the purpose of this action because it at most concerns KeeKee’s indebtedness to the plaintiff, not the Defendant’s.

THE ISSUES THAT REQUIRE DETERMINATION

14.  Given the state of the pleadings, in my view the following issues require determination:

(1)  Did the 1^st Transfer in fact take place? If so, was it a personal loan from the Plaintiff to the Defendant? (“Issue 1”)

(2)  Were the Remaining Transfers personal loans to the Defendant or were they loans to Mimosa and Dynasty instead? Have they been repaid as the Defendant alleges? (“Issue 2”)

THE PLAINTIFF’S ORAL EVIDENCE

15.  The Plaintiff gave oral evidence before me. I bear in mind the usual principles in assessing credibility of witnesses. I place particular weight on contemporaneous documents and inherent probabilities and remind myself that demeanour may sometimes be an unreliable guide.

16.  The Plaintiff’s witness statement, which was adopted as part of his examination in chief, is consistent with his pleaded case. He also expanded on certain topics when giving oral evidence in Court, including the following:

(1)  He did not know anything about Mimosa and Dynasty at the time when the Remaining Transfers were made. He only effected them as requested and directed by the Defendant. He subsequently caused company searches[8] to be carried out (at around the time when he engaged solicitors to send demand letters) and discovered that the Defendant’s name appeared on the company searches of both Mimosa and Dynasty. He therefore took the view that the Defendant was in control of both companies. He was unable to recall whether the Defendant was shown to be a director or shareholder (or both);

(2)  He only engaged solicitors to demand for repayment some time in 2023 and not earlier because the Defendant had been causing KeeKee to repay the 2017 Loans to him up until mid 2020, and thereafter Covid-19 had a severe impact on the Defendant’s restaurant/bar business so the Plaintiff was prepared to be lenient.

17.  The Plaintiff’s oral evidence is not challenged and I accept them in full.

ISSUE 1

18.  The Plaintiff produced a deposit slip showing that a cheque of HK$150,000 was deposited into the Defendant’s bank account at Standard Chartered Bank on 25 January 2018[9]. I therefore find that the 1^st Transfer in fact took place.

19.  There is no explanation from the Defendant accounting for the 1^st Transfer. I accept the Plaintiff’s evidence that the 1^st Transfer was a personal loan to the Defendant. In this regard, I bear in mind that when there has been a payment of money, it is incorrect to import a prima facie obligation to repay. In other words, the onus of proving that a transaction involving the payment of money amounts to a loan is on the plaintiff and it is not satisfied by proof merely of the payment to the defendant of the amount claimed. See Big Island Construction (HK) Ltd v Wu Yi Development Co Ltd (2015) 18 HKCFAR 364 at §§101-109.

20.  I therefore resolve Issue 1 in favour of the Plaintiff.

ISSUE 2

21.  I accept the Plaintiff’s evidence set out in paragraph 16(1) above. As a matter of inherent probabilities, I find that the Plaintiff would not have advanced the Remaining Transfers to Mimosa and Dynasty (which are admitted by the Defendant to have been made, see paragraph 10 above) if he was not so requested or directed by the Defendant because they were at the time entities unknown to him.

22.  Furthermore, the Plaintiff produced some WhatsApp exchanges between the parties. They confirm that the Defendant requested the Plaintiff to deposit sums into the accounts of Minosa and Dynasty as short-term bridging loans, acknowledged receipt of these sums and/or expressed gratitude[10]. I place weight on these contemporaneous documents.

23.  I find as a fact that Mimosa and Dynasty were merely agents or nominees of the Defendant for the purpose of receiving these personal loans advanced by the Plaintiff to the Defendant.

24.  I should also mention a document entitled “Statement of Shareholder loan”[11]. I accept the Plaintiff’s evidence that this document was created and produced by the Defendant (but with the Plaintiff’s manuscript markings thereon) for the purpose of a meeting on 6 October 2021. As the Plaintiff explains (which I accept), his writing at the top right hand corner of the document “596,800.00 missing” is a contemporaneous record of the fact that the Subject Loans had been made and were then outstanding[12].

25.  There is no evidence whatsoever (documentary or otherwise) to show that the Defendant, Mimosa and/or Dynasty ever repaid any part of the Remaining Transfers to the Plaintiff, and I reject the Defendant’s case that these personal loans have been repaid.

CONCLUSION AND COSTS

26.  For the above reasons, I find that the Plaintiff advanced the Subject Loans to the Defendant which the Defendant has failed or refused to repay. It is trite that where money is lent without express stipulation as to the time for repayment, a present debt is created which is generally payable at once without demand. In any case the Plaintiff has made repeated demands through solicitors.

27.  Accordingly, I give judgment in favour of the Plaintiff in the sum of HK$596,800, together with interest at HSBC prime rate plus 1% from the date of writ (which I regard as the last day when the Defendant ought to have repaid the Subject Loans) until the date of judgment, and thereafter at judgment rate.

28.  I also make a costs order nisi that the Defendant shall pay the Plaintiff’s costs of this action (including all costs reserved) to be taxed if not agreed with certificate for counsel.