HCA 2340/2019
[2023] HKCFI 134
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
ACTION NO 2340 OF 2019
________________________
BETWEEN
TO KIT SHEUNG（杜傑相）, the sole administrator
1st Plaintiff
TO KIT SHEUNG（杜傑相）
2nd Plaintiff
and
CHAN SHOOK FUNG NANCY（陳淑芬）
Defendants
________________________
Before: Deputy High Court Judge Kenneth Wong in Chambers (On paper disposal)
Closing Date for Written Submissions: 29 April 2022
Date of Decision: 27 January 2023
_________________
DECISION
_________________
A. The Defendants’ Application
1. Section 21 of the Evidence Ordinance, Cap 8 of the Laws of Hong Kong SAR is invoked by the Defendants in this application. It reads as follows:
21.
(1) On the application of any party to any proceedings, the court or a judge may order that such party be at liberty to inspect and take copies of any entries in a banker's record for any of the purposes of such proceedings.
(2) An order under this section may be made either with or without summoning the bank or any other party, and shall be served on the bank 3 clear days before the same is to be obeyed, unless the court or judge otherwise directs.
(3) The costs of any application to the court or judge under or for the purposes of this section, and the costs of anything done or to be done under an order of the court or judge made under or for the purposes of this section, shall be in the discretion of the court or judge, who may order the same or any part thereof to be paid to any party by the bank, where the same have been occasioned by default or delay on the part of the bank.
(4) Any such order against a bank may be enforced as if the bank were a party to the proceeding.
2. By their summons issued on 22 February 2022 (the “Summons”), the Defendants ask for an order that Hang Seng Bank Limited (the “Bank”) do produce to their solicitors copies of (a) its record of the account opening form signed by the 2nd Plaintiff and Madam Chan To Yuk Lin, deceased[1] (the “Deceased”) for their joint account No. 285-7-095950 with the Bank (the “Joint Account”) and (b) entries in its record, corresponding to the following entries in the customers’ bank book for the Joint Account:
(collectively, the “documents sought”)
It should be noted that according to the Grant of Probate issued by the Court of First Instance on 28 April 2016 (Grant No. HCAG005724/2016), the Deceased died on 21 February 2015. As can be seen from the above table, all of the documents sought are documents or records of transactions which came into place before the death of the Deceased.
B. The Action
3. In a nutshell, in this action, the Plaintiffs seek (1) an account by the Defendants as to the Deceased’s dealings with the estate of Mr To Shak, the late father of the Deceased and the Plaintiffs, and in relation to certain landed properties of the late father, the proceeds of sale and resumption money received by the Deceased and rental income and (2) an order for payment of all sums found due and payable by the Defendants to the Plaintiffs.
4. Allegedly, the proceeds of sale, resumption money and rental income in relation to some of the landed properties under complaint were deposited into certain bank accounts held under the names of the 2nd Plaintiff and the Deceased, one of which is the Joint Account.
C. The Plaintiffs’ Position
5. The Plaintiffs do not dispute the relevancy of the documents sought and do not contest the application. In fact, they have been cooperative in assisting the Defendants in obtaining the documents sought from the Bank[2] . As early as in 30 August 2021, the 2nd Plaintiff, who resides in Belgium, has signed[3] an authorization letter confirming his consent for the Bank to provide the Joint Account’s information to the Defendants’ solicitors and authorize the Defendants’ solicitors to collect all relevant documents and account information from the Bank (the “2nd Plaintiff’s authorization letter”).
D. The Bank’s Position
6. The resistance came from the Bank.
7. However, the Bank does not take any issue that the documents sought are not necessary or relevant to the purposes of the present proceedings under section 21 of the Evidence Ordinance. The only point that they appear to take is that the signature of the 2nd Plaintiff supplied to them is different from the 2nd Plaintiff’s specimen signature in their record.
8. The following is a chronology of the communication between the Defendants’ solicitors and the Bank:
(1) On 3 March 2020, the Defendants’ solicitors wrote to the Bank (a) stating that they act for the Defendants being the executrices of the estate of the Deceased, one of the Joint Account’s holders and enclosing a copy of the grant of probate, (b) asking for the documents sought and (c) agreeing to bear the Bank’s cost in relation to this enquiry if no application to the Court under section 21 of the Evidence Ordinance was necessary.
(2) On 31 March 2020, the Bank replied to the Defendants’ solicitors refusing the request. The Bank pointed out that they owed a duty of confidentiality towards their customers, and that due to the documents sought involved a third party, they were not in a position to accede to the request without the third party’s consent.
(3) On 6 September 2021, the Defendants’ solicitors enclosed the 2nd Plaintiff’s authorization letter to the Bank and asked the Bank to provide the documents sought.
(4) On 6 October 2021, the Bank replied by letter to the Defendants’ solicitors. In the letter, the Bank stated the following:
“We observe that the Authorization Letter dated 30 August 2021 duly signed by To Kit Sheung the survivor holder of the Joint account, the said document is copy and the signature is differ from the record keep with our bank. Please sign the signature again and provide the original Authorization Letter to us.”
(5) On 8 October 2021, the Defendants’ solicitors replied. They explained to the Bank that the Joint Account was opened many years ago, that it was not uncommon for the account holder to adopt a slightly different signature now as against the signature adopted years ago, and that moreover, the Bank had no reasons to doubt the signatory of the authorization letter was not the same person given the situation that it was obtained from the solicitors acting for him. The solicitors further enclosed for the Bank’s consideration and retention a copy of the covering letter dated 8 September 2021 issued by the 2nd Plaintiff’s solicitors, Messrs Kenneth C.C. Man & Co. enclosing therewith the original of the 2nd Plaintiff’s authorization letter. The Defendants’ solicitors warned that should the Bank still refuse their request, they had no alternative but to apply to court for the necessary order to compel it to produce the documents sought and they would seek costs against the Bank.
(6) On 29 October 2021, the Bank replied. Again, it refused the request. The only explanation it gave was as follows:
“We wish to inform you that the survivor holder, Mr To Kit Sheung’s (“Mr To”) signature is fully different with our record, please inform Mr To sign the signature again. If Mr To forget his signature, he can in person to branch for help and apply document.”
(7) In response to the Bank’s comment, the Defendants’ solicitors had indeed made various efforts to resolve the matter. They had asked the Plaintiffs’ solicitors to invite the 2nd Plaintiff to resign the authorization letter. The 2nd Plaintiff had done so but as pointed out by the Plaintiffs’ solicitors in their letter dated 21 December 2021, their client (the 2nd Plaintiff) has adopted no other signatures apart from those as shown in the 2nd Plaintiff’s authorization letter, which were unfortunately rejected by the Bank, on the ground that they were different from the 2nd Plaintiff’s specimen signature kept by the Bank, there was no useful point of sending to the bank with a fresh authorization letter bearing the same signature of the 2nd Plaintiff. Also, the Plaintiffs’ solicitors indicated that because of the pandemic, the likelihood of the 2nd Plaintiff coming to Hong Kong to personally deal with the Bank’s queries was extremely slim.
(8) As mentioned by the Defendants’ solicitors to the Plaintiffs’ solicitors, their client had also directly approached the relevant department of the Bank. The bank staff attending their client suggested the 2nd Plaintiff to sign the authorization before a staff of the Chinese Embassy in Belgium. However, the Plaintiffs’ solicitors replied that it was not possible because the 2nd Plaintiff was not a passport holder of People’s Republic of China or People’s Republic of China (Hong Kong).
(9) On 22 February 2022, the Bank was served with the Summons and the Affirmation of Chan Shook Fung Nancy in support.
(10) In response to the Summons, on 10 March 2022, the Bank sent a letter to the Defendants’ solicitors and stated as follows:
“Having considered the documents you served on our Bank together with the Summons in relation to the Application in the Action as far as our Bank is concerned, we would like to point out that, since the copies of entries in the Bank's record, corresponding to entries in the customers' bank book for the Account as set out in the Schedule to the Summons as stipulated in paragraph 1 (b) of the Summons are beyond the retention period of 7 years of our Bank, these records have already been destroyed and therefore not within our Bank's power, custody and control.
In view of the foregoing, please advise us whether you will continue the Application. If your answer is in affirmative, we would like to inform that we will adopt a neutral stance with regards to the Application and will leave it to your client to establish the merits of the Application before the Court.”
(11) This was the first time that the Bank mentioned to the Defendants’ solicitors that the documents sought in paragraph 1(b) of the Summons had in fact already been destroyed.
(12) On 15 March 2022, at the Defendants’ solicitors’ request, the Bank sent another letter. However, it only repeated the same position:
“As per your request by Your Letter, we copied this letter to the Court (together with a copy of Our Letter) for consideration.
As mentioned in Our Letter and as a matter of fact, we would like to reiterate and confirm that, since the copies of entries in the Bank's record, corresponding to entries in the customers' bank book for the Account as set out in the Schedule to the Summons as stipulated in paragraph 1(b) of the Summons are beyond the retention period of 7 years of our Bank, these records have already been destroyed and therefore not within our Bank's power, custody and control.
As indicated in Our Letter, if you will continue the Application despite the foregoing, we would like to inform that we will adopt a neutral stance with regards to the Application and will leave it to your client to establish the merits of the Application before the Court.”
(13) In their last letter dated 22 April 2022, the Bank again just repeated the same position:
“As mentioned in our letters dated 10 March 2022 and 15 March 2022 and as a matter of fact, we would like to reiterate and re-confirm that, since the copies of entries in the Bank's record, corresponding to entries in the customers' bank book for the Account as set out in the Schedule to the Summons as stipulated in paragraph 1(b) of the Summons are beyond the retention period of 7 years of our Bank, these records have already been destroyed and therefore not within our Bank's power, custody and control.
We humbly pray for the Court that the Court would be of the view that the said confirmation is sufficient to clarify the Bank’s position with regards to records under paragraph 1(b) of the Summons and, in order to save costs, no further affirmation/affidavit as suggested in paragraphs 43 to 46 of D's Submission is required.
As per the facts as stated in paragraphs 27 to 33 of D's Submission, no duly signed/executed instruction or consent of the Plaintiff is given to our Bank allowing us to provide the information in question to the Defendant before the Summons (and up to date). As such, we are of the view that our Bank's duty of confidentiality does not fall away as mentioned in paragraph 56 of D's Submission without a valid Court Order and would like to inform that the alleged default or delay of the part of our Bank as discussed in paragraphs 53 to 57 of D's Submission are not admitted.
In view of the circumstances and as our Bank is not a party to the proceedings of Action and the Summons is not taken by our Bank, we do not agree that the costs of the application (and any legal costs incurred for such application) shall be borne by our Bank.”
9. I should add that the Bank’s position is in sharp contrast with the position taken by The Hongkong and Shanghai Banking Corporation Limited (“HSBC”) in respect of similar documents sought under another joint account held by the Deceased and the 2nd Plaintiff with HSBC. In response to the Defendants’ solicitors’ requests for documents, on 2 April 2020, HSBC by letter stated as follows:
“To enable us to provide the account information / statement of the above customer's account, we would require the following documents:
• Original of the Probate under Grant no. HCAG005724/2016 for the deceased.
• A written instruction from the executors, Chan Shook Fung Nancy and Chan Shook Yim Sally with the signature thereon attested before a solicitor regarding to provide the account information to your firm.
• Certified true copy of the identification document of the executors.
Please be advised that it is our normal practice not to provide customer account information / statement beyond 7 years period.
As the account no. 002-0-434023 is in joint names of To Kit Sheung and the deceased, by virtue of the Joint Account Mandate and Conditions governing the joint account, the balances thereof vest in the survivor, To Kit Sheung. Under this circumstance, we are unable to accede your request to provide the requisite account information after the date of death of the deceased.
Please let us have a cheque for HKD500.00 payable to "HSBC" being our service charges.
Please send the above documents and cheque to our office address : Deceased Account BOS, 8/F, Tower 2, HSBC Centre, No. 1 Sham Mong Road, Kowloon. Upon receipt of the aforesaid documents, we shall be pleased to proceed accordingly.”
10. Upon provision of the documents and payment of service charges that it required by the Defendants’ solicitors, HSBC provided the information and documents requested without any hindrance and in a very cooperative and helpful manner.
E. Discussion
11. It is apparently clear that the documents sought are relevant to the Plaintiffs’ claim as to the dealings with those proceeds of sale, resumption money and rental income in relation to those landed properties in dispute which had been deposited into the Joint Account. Section 21 of the Evidence Ordinance is applicable. The Plaintiffs do not oppose this application. The 2nd Plaintiff has indeed assisted the Defendants to obtain the documents sought by producing a signed consent and authorization letter to the Bank. But for the Bank’s refusal, the Defendants should have obtained the documents sought without need to resort to incurring costs to take out the Summons.
12. The Bank’s attitude was uncooperative and unhelpful, and the arguments that it raised are obviously wrong. This has caused delay, and more devastatingly, the irretrievability of the documents sought in paragraph 1(b) of the Summons which was destructed.
13. First, there is no question of confidentiality as alleged by the Bank. The Deceased was one of the holder of the Joint Account with the 2nd Plaintiff. When she lived, of course she was entitled to receive all information of the Joint Account. Upon her passing away, as rightly pointed out by HSBC in its letter dated 2 April 2020 (referred to in paragraph 9 above)[4] , by the terms of the Joint Account, the balances of the Joint Account would have vested in the surviving account holder, i.e. the 2nd Plaintiff. From this point onward, the Deceased (or her estate) was no longer the Bank’s customer in relation to the Joint Account. Therefore, the Defendants would not be entitled to obtain the account information after the date of the death of the Deceased. However, at any time before the death of the Deceased, the Deceased was the Bank’s customer in relation to the Joint Account. As the executrix of the Deceased’s estate, the Defendants, like the Deceased herself when she lived, are entitled to all information of the Joint Account prior to her death. As mentioned in paragraph 2 above, the documents sought are documents or records of transactions which came into place before the death of the Deceased. Therefore, the Defendants are entitled to the documents sought as of right.
14. Second, the Bank’s concern of “confidentiality” is all the more misplaced, as the only so-called “third party” involved is the 2nd Plaintiff, being the other holder of the Joint Account, and his solicitors on the Court’s record have already confirmed his agreement of disclosure of the documents sought.
15. Third, the Defendants’ solicitors first wrote to the Bank on 3 March 2020 requesting the documents sought. Unlike HSBC, which had expressly stated in its first reply that customer account information / statement beyond 7-year period may not be provided, the Bank never made such indication to the Defendants’ solicitors. Particularly when it bluntly rejected the Defendants’ solicitors’ request, it never saw fit to indicate that the 7-year deadline was imminent in relation to the documents sought. It was only, after all the blunt refusals, until 10 March 2022, and after service of the Summons on them, that they informed the Defendants’ solicitors for first time that since the entries in the Bank's record, corresponding to entries in the customers' bank book for the Joint Account as set out in the Schedule to the Summons as stipulated in paragraph 1 (b) of the Summons are beyond the retention period of 7 years of the Bank, these records have already been destroyed. With all due respect to the Bank, this attitude towards its customer is most unhelpful, to say the least.
16. Fourth, the unforthcoming conduct of the Bank is further made even more prominent by the fact that when the request was first made to the Bank on 3 March 2020, the entries corresponding to items (v)-(xi) in the Schedule to the Summons (i.e. entries between 8 June 2013 to 30 September 2014) was still within the 7-year period. If the Bank did not raise, fallaciously, the “confidentiality” argument, or if the Bank saw the good sense of keeping the documents pending resolution of the (fallacious as it was) “confidentiality” issue or the “signature” issue thereby arising, or if it, more straightforwardly, told the Defendants’ solicitors that the 7-year period was imminently approaching and it would destroy the documents absent a court order, the documents sought which now the Court is preparing to grant production under section 21 of the Evidence Ordinance would not have been destroyed or this application would not have been necessitated.
17. Fifth, in paragraph 44 of his written submissions and paragraphs 5-13 of his written submissions in reply, the Defendants’ counsel raised the concern as to whether the paper documents, albeit destroyed, would have also been stored electronically or by microfilm; and if so their whereabouts. This question, in my view, is not unreasonable, given that the information is relevant to the issues in question in the Action. The Bank has been taciturn. It did not say a word in response.
18. For the above reasons, I agree with the Defendants’ counsel that the Bank owes the Defendants a more detailed explanation as to the status of the documents sought in paragraph 1(b) of the Summons. The Bank should produce an affirmation as alluded to in paragraphs 5 and 12 of the Defendants’ counsel’s written submissions in reply.
F. Production Order
19. I therefore make the following order under section 21 of the Evidence Ordinance:
(1) The Bank do produce to the Solicitors for the Defendants a copy of the Bank’s record of the account opening form, signed by the 2nd Plaintiff and the Deceased, for the Joint Account with the Bank.
(2) The Bank shall file and serve on the Defendants’ solicitors and the Plaintiffs’ solicitors, within 28 days from the date of this order, an affirmation stating whether the documents sought in paragraph 1(b) of the Summons have been in its possession, custody or power; and if so whether they or any of them have been stored in paper form, electronically and/or microfilm; and if those documents (whether in paper form, electronically or microfilm) are not now in the Bank’s possession, custody or power when it parts with them and what have become of them.
G. Costs Order
20. Section 21(3) of the Evidence Ordinance provides that the Court shall have the discretion to order the costs of the application to be paid by the Bank, where the application has been occasioned by default or delay on the part of the Bank.
21. For the reasons set out in paragraphs 11-17 above, this Court is of the view that the application has been occasioned by the default and delay of the Bank. Had the Bank not erroneously taken the “confidentiality” argument and provided the documents sought or acted otherwise in a cooperative and constructive manner, this application would not have been necessary, and the documents sought in paragraph 1(b) of the Summons would not have become irretrievable as belatedly submitted by the Bank in its letter to the Court dated 22 April 2022.
22. In the same letter, the Bank submitted that as it is not a party to the proceedings and the Summons is not taken out by it, it should not bear the costs of the application. This submission is misconceived. Section 21(4) of the Evidence Ordinance has stipulated that any order against a bank under section 21 may be enforced as if the bank were a party to the proceeding. Since I have been satisfied that the present application has been occasioned by default as well as delay on the part of the Bank, the Court is justified and entitled to exercise its discretion under section 21(3) to make costs order against the Bank.
23. I therefore make an order that the Bank do pay the Defendants forthwith costs of the Summons, to be taxed if not agreed.
( Kenneth Wong )
Deputy High Court Judge
Written Submission by Mr. Wallace CHEUNG, instructed by Choi & Liu, for the Defendants
No Written Submission was lodged by the 1st and 2nd Plaintiffs
Written Submission by Hang Seng Bank Limited, in person
[1] The Defendants are the executrices of the estate of the Deceased and are sued in this capacity.
[2] See the Bank’s position described in section D below.
[3] per the Bank’s request as referred to in paragraph 8(2) below.
[4] This is on the assumption that the terms of the HSBC’s joint account have the same effect as the terms of the Joint Account held with the Bank. It is also regrettable that the Bank has never explained this clearly or made any reference of the relevant terms of the Joint Account, to the Defendants’ solicitors in their communication.