未持牌放债人与安全港豁免

香港对于任何并非已受其他银行或证券监管机制规管的放债人，均设有严格的牌照法规 ^[1]。

由于相关法例采取「零容忍」的监管取向，当未持牌放债人提出追讨贷款时，借款人通常提出的抗辩理由包括：放债人未有取得相关牌照，或其所依赖的安全港豁免并不适用。在上述两种情况下，借款人提出的抗辩目的，均主张该笔贷款因未能遵守香港的放债人牌照法规，而应按法律要求被撤销或视为无效 ^[2]。

在近期一宗由未持牌放债人提出追讨贷款的上诉案件中 ^[3]，抗辩重点在于挑战牌照法规下其中一项安全港豁免规定。该项豁免规定，凡向公司作出的贷款，如以根据《公司条例》登记的押记作为担保，则不受放债人牌照法规管制。

虽然原审判决及上诉判决均未对该项豁免的立法源由作出详细说明，但较显浅的原因在于：已注册押记通常属于较为正式且具透明度的融资安排，尤其是相关押记可于公司注册处供公众查阅。

有关该案件的详情、当中的法律要点及判决分析，请见英语原文：

Hong Kong has strict licensing laws for any money lenders who are not already regulated by other banking or securities regimes ^[1].

Because of the “zero tolerance” approach of the legislation, when loans are claimed by an unlicensed money lender, it is a typical defence by a borrower that either the lender failed to obtain a licence or else that the safe harbour used by the lender does not apply. In both cases, the borrower’s defence is with the goal that the loan should be set aside as required by law for failure to comply with Hong Kong’s licensing laws ^[2].

In a recent appeal case of an unlicensed money lender seeking recovery of its loan ^[3], the defence arguments centred around attacking one of the safe harbours to the licensing regime. This exempts “a loan made to a company secured by a … charge … registered under the Companies Ordinance” from being subject to a money lender’s licence.

Although both the original decision and the appeal found little explanation for the origin of this exemption, the apparent reason is that registered charges are typically part of more formal and transparent financing arrangements, especially as the charges are subject to public inspection at the Companies Registry.

In the current case, the lender – who was an unlicensed entity – had lent monies to a borrower company. The loan was secured by a third-party corporate guarantee and a charge over properties owned by the guarantor’s parent companies.

In the original hearing ^[4], the judge decided that this exemption from licensing only applied where the lender and the security provider were the same entity, and so the loan arrangements were set aside. To come within this safe harbour, the Court said, the loan had to be made to a borrower, which then secured its obligations itself by registering the charge against its own assets.

Effectively, the Court found that the exemption only applied to a loan made to a company which is “secured by that company by a … charge… registered under the Companies Ordinance” ^[5].

However, the Hong Kong Court of Appeal disagreed. They noted that the wording of the exemption was very clear and, to use the Court’s words, “there is no place to graft into it a further requirement that the mortgage is confined to a mortgage of the borrower’s own assets.” ^[6]

In other words, absent clear legislative intent to the contrary – which did not exist – a plain reading approach was needed and the safe harbour was available where a registered charge secured the loan, even if this was granted by a third party.

The Court of Appeal judgment does appear to provide a common sense interpretive approach, especially to discourage “back against the wall” tactics in debt recovery cases, where a desperate borrower will readily cling to any possible form of defence.

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Chris Lambert

For more information or advice on banking and finance matters, please contact:-
Chris Lambert | | + 852 2861 8417

Disclaimer: This publication is general in nature and is not intended to constitute legal advice. You should seek professional advice before taking any action in relation to the matters dealt with in this publication.

^[1] Money Lenders Ordinance (Cap. 163) (“MLO”) which was initially introduced more than half a century ago to target loan sharks operating in the territory.
^[2] Section 23, MLO.
^[3] In the Hong Kong Court of Appeal, Yeung So Lai v. Art Excel Ltd [2025] HKCA 957.
^[4] In the Hong Kong Court of First Instance, GG v. LL Ltd [2024] HKCFI 2302.
^[5] Author’s emphasis added.
^[6] Yeung So Lai v. Art Excel Ltd [2025] HKCA 957, para 44.