LEUNG CHUNG LAN LORRAINE v. HANG SENG BANK LTD

HCSA 43/2017

[2018] HKCFI 257

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

SMALL CLAIMS TRIBUNAL APPEAL NO 43 OF 2017

(ON APPEAL FROM SMALL CLAIMS TRIBUNAL CLAIM NO SCTC 46908 OF 2016)

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REASONS FOR JUDGMENT

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The application

1.  Ms Leung is the claimant and applicant in the present matter.  By this application, she is seeking leave to appeal against the decision of the Deputy Adjudicator reached on 10 August 2017 dismissing her claim against the Hang Seng Bank Limited (“the Bank”).  The application is made pursuant to section 28 of the Small Claims Tribunal Ordinance, Cap 338 (“the Ordinance”).

2.  When Ms Leung appeared in person before me on 23 January 2018, she requested to address the court in English.  I was satisfied that she was conversant in English.  I acceded to her request.  Upon my enquiry, she also requested that my reasons for judgment be delivered in English.  I note from the case file that the parties filed their statements in English.  The documents they submitted are a mixture of both languages.  The proceedings before the Deputy Adjudicator were conducted in Chinese.  Witnesses affirmed in Punti.  The Deputy Adjudicator delivered her reasons for decision in Chinese.  However, the Form 9 lodged by Ms Leung for leave to appeal was filled out by her in English.  In the circumstances, I have decided to accede also to Ms Leung’s request that I give my judgment in English — hence my use of English now.

3.  As Ms Leung appeared in person, I briefly explained to her the relevant sections of the Ordinance before she began.  She was provided with a copy of Part VI of the Ordinance.  The effects of sections 28 and 29 were specifically explained to her.  I also explained to her that it was her right, should she want to, to seek legal advice.  She indicated that she understood the position.

The claim and the facts before the Tribunal

4.  Ms Leung’s case was that she was the victim of an identity fraud.  Her case before the Deputy Adjudicator may be summarized as follows. 

5.  In June 2002, Ms Leung applied for and got issued an insurance policy with the defendant (“the Policy”). It had a term of 10 years. During the term, modal premium in the monthly sums of HK$995.40 were to be paid by her through direct debit.  Upon maturity of the Policy in 10 years’ time, Ms Leung would be entitled to be paid by the Bank certain settlement benefits.  All these were not in dispute, and all were well until about October 2011.

6.  Ms Leung told the Tribunal that sometime in October 2011, she lost her Identity Card.  On 28 October 2011, which date she said was shortly after the loss of her Identity Card, a new account in her name was opened with the Bank (identified by the Tribunal as the “242 Account”).  Ms Leung said that the 242 Account was not opened by her, but by some fraudsters in her name with the information on her lost Identity Card.  She also claimed that she had no knowledge about that new account until much later.

7.  According to the records kept by the Bank, Ms Leung on 6 May 2010 opened an integrated account with the Bank (“the 385 Account”).  On 26 April 2011, she gave the Bank written instructions to change the debit account for the Policy to the 385 Account.  On 23 November 2011, instructions were further received from Ms Leung to change the direct debit account from the 385 Account to the 242 Account.  That change was duly effected.  The 385 Account was closed shortly afterwards on 25 November 2011.  Bank records further show that since those changes, and until the maturity of the policy, the monthly modal premium payments had in fact been debited from the 242 Account.  Ms Leung claimed that she was not aware of the fact that payments were no longer debited from the 385 Account during that period.

8.  In April 2012, when the maturity of the Policy was approaching, the Bank posted to Ms Leung what it called “a pre-notice relating to the maturity of the Policy together with a Change of Maturity Benefit Instruction Form”.  Two sets of such documents were sent, one in Chinese and one in English.  They were posted to the mailing address which according to the Bank’s records belonged to Ms Leung.  One of the purposes of sending the notices was to obtain instructions from Ms Leung as to how the maturity benefits were to be settled.  Subsequently, the Bank received both the Chinese and English replies.  On the face of the documents, they were signed by Ms Leung.  In the Chinese version, the option of “Transfer the amount to the existing premium deduction bank account of Hang Seng Bank under my sole or joint name” was ticked.  In the English version, the option of “Transfer the amount to the following Hang Seng Bank Account under my sole or joint name” was ticked, and in the spaces immediately below, particulars of the 242 Account were provided.  In effect, the instructions in both versions were the same.

9.  The Bank followed the instructions it had received and transferred the settlement benefits (in the total sum of HK$128,654.15) to the 242 Account.  A notice to that effect had also been posted to the address which according to the Bank’s records belonged to Ms Leung.

10.  Ms Leung said that as it was not she who had opened the 242 Account, that it was not her who instructed the Bank to change the direct debit account to the 242 Account, that the instructions to transfer the settlement benefits to that account were not given by her, and that she had never received the settlement benefits.  It was those settlement benefits which she was claiming from the Bank.

11.  The Bank’s defence was straightforward.  It said that the 242 Account was properly opened with the usual identity verification procedure followed.  No irregularity, whether in relation to the account opening procedure or otherwise in respect of the handling of the accounts concerned, had been detected.

Dismissal of the claim

12.  Ms Leung gave evidence before the Deputy Adjudicator.  In the judgment delivered on 10 August 2017, the Deputy Adjudicator summarized, considered and analyzed the evidence.  She rejected Ms Leung’s evidence.  She gave reasons for her decision.  She referred to a “Certificate of Registered Particulars” issued by the Immigration Department which Ms Leung produced before the Tribunal in an attempt to prove the loss of her Identity Card.  She noted that according to that Certificate, Ms Leung reported loss of her Identity Card on 15 December 2011.  The Deputy Adjudicator pointed out a number of factual inconsistencies in Ms Leung’s evidence. Importantly, she pointed out that Ms Leung on 24 May 2013 applied for another insurance policy with the Bank.  At that time, according to Ms Leung’s case, she still had no knowledge about the existence of the 242 Account.  Yet, in the application form for this new policy, the 242 Account was put down as the debit account for future premium payments. Ms Leung’s explanation was that the particulars were filled out by the salesperson.  But by that time, the 385 Account had already been cancelled, and when being asked about how the future payment of this new policy premium would be handled if she had no other account with the Bank, Ms Leung replied that she thought at that time that the 385 Account had not been closed, and that she did not pay attention to the account number on the form.  The Deputy Adjudicator found Ms Leung’s evidence to be entirely unreasonable.  In the end, she rejected the entirety of Ms Leung’s evidence.  The Deputy Adjudicator’s conclusions in her own words were:

「 本席對於申索人梁小姐所指，佢對於242戶口開啟嘅事宜不知曉嘅說法，本席係並不接納嘅。

    本席係基於以上所講，並不會接納梁小姐所講有人冒認佢嘅證供，亦都係包括其他證供，佢話佢已經係棄用手提電話某一個號碼、郵寄服務同埋地址，收唔到被告信件嘅說法。」

13.  As can be seen from the above, there was no point of law involved in the Deputy Adjudicator’s findings and conclusions.

The law

14.  Section 28 of the Ordinance provides that whilst any party aggrieved by a decision of the tribunal can appeal, he or she can only do so (a) on any ground involving a question of law alone; or (b) on the ground that the claim was outside the jurisdiction of the tribunal, and that such an appeal is subject to leave having been granted. 

15.  Section 29 of the Ordinance is also important.  It provides that even if leave has been granted and the matter proceeds to the substantive appeal, the Court of First Instance “may not (i) reverse or vary any determination made by the tribunal on questions of fact; or (ii) receive further evidence.”

The Form 9

16.  By a Form 9 dated 5 September 2017, Ms Leung sought leave to appeal against the Deputy Adjudicator’s decision.  Quite a number of grounds have been put forward.  Not all are readily comprehensible.  Doing the best I can, I summary them as follows: (1) she had “lost ID record”; (2) there was “incorrect name with the credit card account”; (3) she did not receive the annual statements for the Policy; (4) she always only received copies of her credit card statements but not the originals; (5) she did not go to the Diamond Hill Branch to apply for the Policy; (6) the records kept by the Bank in respect of her report of the loss of Identity Card not being accurate; (7) certain application forms relating to her credit cards were not filled out by her; (8) “Bank Staff always check my ID with my mouth mask.”

17.  For the purpose of the application, Ms Leung has further filed two affidavits, one dated 24 November 2017, and the other 15 December 2017.  They concerned what Ms Leung alleged to be bad conduct of certain staff members of the Bank.  I have read them.  They are factual, and are of little relevance.  A lot of the contents were fresh and further evidence (as they took place after the hearing before the Tribunal) which the court has no power to admit.

The hearing

18.  As said above, during the hearing on 23 January 2018, Ms Leung appeared in person. She repeated to me and expanded on some of the factual points she raised before the Deputy Adjudicator, Form 9, and her affidavits.  She placed particular emphasis upon what she alleged to be bad conduct on the part of certain staff members of the Bank.  A lot of her complaints related to matters which took place after the trial.  I see little relevance in them.

Disposal

19.  I have considered carefully the Deputy Adjudicator’s reasons for decision.  I have considered the papers adduced before her.  Her decision was based on her assessment of Ms Leung’s credibility and finding of facts.  No point of law, or any jurisdictional issues, was involved.  I have considered also very carefully Ms Leung’s Form 9, her affidavits, and her submissions before me.  Again, no point of law, or any jurisdictional issue, has been raised. 

20.  In the circumstances, the court has no power to grant leave to appeal. I dismiss Ms Leung’s application.

21.  I make no order as to costs.