LEE CHICK CHOI v. BEST SPIRITS CO LTD.

DCCJ 1988/2017

[2018] HKDC 587

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 1988 OF 2017

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DECISION

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1.  This is the plaintiff’s application for leave to appeal against the Decision made by me on 24 April 2018 (“the Decision”) in regard to a striking out and restrictive proceedings order (“RPO”) summons taken out by the defendant.

2.  By a summons dated 27 April 2018, the plaintiff seeks leave to appeal against the Decision to the Court of Appeal.

The Leave to Appeal Application

3.  From what I could make out of the lengthy affirmation filed in support of the summons, grounds of the plaintiff’s application for leave to appeal appear to be as follows:

(i)  the plaintiff has locus standi in this action to sue without the consent of his trustee in bankruptcy;

(ii)  this claim is for “injury to feelings” only and not a claim of damages for loss of income, therefore is not a duplication of the previously litigated actions;

(iii)  this court has failed to take into consideration and not relying on the judgment of HH Judge Ko (as the acting CDJ then was) in DCCJ 1914/2015;

(iv)  since the issue of section 66 of PDPO has not been decided in Hong Kong before and therefore has no precedent cases, this matter should be decided by the Court of Appeal; and

(v)  the question of re-litigation should be dealt with by the Court of Appeal rather than by the District Court because this court did not rely on §105(e) of the judgment of HH Judge Ko in DCCJ 1914/2015.

Rulings of the Court

4.  In my Decision, I ruled that this claim is a “mere re-run of the claim in inter alia HCA 2045/2012, and is in fact a claim for compensation of loss of income.”: §20 of the Decision.  In other words, I found that this is in reality a claim for the alleged breaches of the employment contract the plaintiff had with his former employer (ie the defendant) and for loss of income.  This has been dressed up as an “injury to feelings” claim under section 66 of PDPO.  As such, the consent of his trustee in bankruptcy will be required to commence the present proceedings. 

5.  However, it should be noted that the main reasons of why I considered that the claim should be struck out for failing to disclose any reasonable cause of action and/or scandalous, frivolous or a vexatious; or otherwise an abuse of process of the court actually appear in §§12-15 of the Decision.  I shall not repeat them here.  The locus standi is merely one of the “additional” reasons.

6.  As to the plaintiff’s second argument that this is an “injury to feelings” claim under section 66 of PDPO and not a loss of income claim arising out of his employment contract, I have already dealt with this matter in §§5 to 8 of the Decision.   I do not intend to repeat them here save to say that I agree with the observations made by both Deputy High Court Judge Yee and the Court of Appeal in the cases cited in those paragraphs.

7.  In relation to the plaintiff’s third argument that I had failed to take into consideration of the judgment of HH Judge Ko in DCCJ 1914/2015, again I find this consists of no substance.  First, that case dealt with an action commenced by the plaintiff’s wife, namely, Madam Yuen Oi Yee Lisa, rather than the plaintiff himself.  §5(b) of the Order of HH Judge Ko dated 16 November 2015, which has been repeatedly cited by the plaintiff in his affirmation in support of this application, refers to the plaintiff’s wife who was found to be “at liberty to commence fresh proceedings against (the defendant) under section 66 of (PDPO) to claim damage for injury to her feelings as a result of the contravention identified in the result of investigation of the Privacy Commissioner.”  This, in my judgment, does not mean that the plaintiff, who has been barred by the courts to commence fresh proceedings against defendant in various proceedings, is at liberty to issue such proceedings against the defendant.  Second, with respect to HH Judge Ko, his decision is not binding on me but DHCJ Yee and the Court of Appeal’s decisions are.  Third, I entirely agree with the reasoning of DHCJ Yee and the Court of Appeal on the breach of the DPP5 and the alleged income loss.

8.  The fourth reason of the plaintiff is that since section 66 of PDPO has never been decided upon and has no precedent cases in this jurisdiction, this matter should be left to the Court of Appeal to decide.  I have no hesitation to reject this argument. Not only the District Court has exclusive jurisdiction to hear claims arising out of the PDPO at the first instance, section 66 does not involve a difficult point of law which in my view warrants the Court of Appeal to decide upon. Further, it is not true that section 66 of the PDPO has not been decided upon by courts in this jurisdiction.  There are plenty of cases which had been decided by the court on this issue on previous occasions, see for example: X v Melissa Mowbray-D’arbela & Pathfinders Limited, unrep., DCCJ 3793/2016 (Deputy District Judge C. Chow; 28.2.2018); Lee Kwok Tung Albert v Chiyu Banking Corporation Limited, unrep., CACV 180/2017 (Hon Cheung and Yuen JJA; 6.3.2018; Dr. Alice Li Miu-ling v The Hong Kong Polytechnic University, unrep., DCEO 1/2004 (HHJ HC Wong; 1.11.2012).    

9.  Lastly, I see no reason why the issue of re-litigation should be decided by the Court of Appeal rather than the District Court as claimed by the plaintiff just because I did not follow the decision of HH Judge Ko in paragraph 105(e) of his judgment in DCCJ 1914/2015.   §105 (e), like §5(b) of his Order, concerns the plaintiff’s wife whose data the defendant had allegedly disclosed without justification and authority and therefore was in breach of DPP5. It has nothing to do with the plaintiff.  Therefore, I simply see no possible causal link between the defendant’s breach of DPP5 and the present alleged injury to feelings to the plaintiff. 

The plaintiff’s appeal against costs order and RPO

10.  I find the plaintiff’s reasons for the appeal on costs either incomprehensible or irrelevant.  I do not consider that they contain any arguable grounds which warrants leave to be granted to take the matter to the Court of Appeal.

Conclusion

11.  In conclusion, I find the plaintiff has not demonstrated any arguable grounds of appeal in this application which warrants leave to be granted to appeal against the Decision. I therefore would dismiss the plaintiff’s summons with costs in favour of the defendant, such costs to be taxed if not agreed.