LEUNG CHUNG LAN LORRAINE v. HANG SENG BANK LTD

HCA 428/2018

[2018] HKCFI 1738

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 428 OF 2018

____________

____________

______________________

D E C I S I O N

______________________

1.  This is the plaintiff’s appeal against the order of Master A Ho made on 28 March 2018 whereby Master Ho dismissed the plaintiff’s summons filed on 16 March 2018 (“the summons”) with costs to the defendant to be paid by the plaintiff.

2.  An appeal operates by way of a rehearing and the judge considers the evidence afresh.  No further evidence can be adduced in the appeal except on special grounds, none of which are shown.  See Order 58, rule 1(5).

3.  In the summons, the plaintiff alleged that someone had used her lost ID card to open a bank account and stole her money from the bank.  She further alleged that the defendant had issued a credit card with incorrect name, ie missing out her English name, “Lorraine”.  She also said that someone had stolen her documents from the Small Claims Tribunal and “this is the case appeal from HCSA 43/2017”.

4.  The plaintiff did not specify either in the summons or her supporting affirmation what relief she was seeking by way of the summons.  On this ground alone, the summons ought to be dismissed and Master Ho rightly dismissed it.

5.  If the summons was intended to be an appeal against HCSA 43/2017, Deputy High Court Judge Keith Yeung had on 9 February 2018 refused leave to appeal against that case in HCSA 43/2017.  According to section 28(3) of the Small Claims Tribunal Ordinance, Cap 338, a refusal by the Court of First Instance to grant leave to appeal shall be final.  Accordingly, the plaintiff could not use the summons to lodge an appeal against the decision in HCSA 43/2017.

6.  In her notice of appeal filed on 29 March 2018, the plaintiff stated as follows:

(1)   She would like to claim back the “settlement benefits”;

(2)   She only knew at the hearing on 28 March 2018, that Master A Ho, instead of Master S Lo, would hear the summons and she was not notified in advance;

(3)   She only knew at the hearing on 28 March 2018 that the defendant had instructed Mayer Brown JSM and she was not notified in advance; and

(4)   Master A Ho did not understand the summons.

7.  With regard to ground (1), the plaintiff’s claim for the settlement benefits had already been adjudicated in a Small Claims Action in SCTC 46908/2016.  She sought leave to appeal against it in HCSA 43/2017.  As I have mentioned, she has not got leave to appeal in HCSA 43/2017.

8.  With regard to ground (2), change of Master hearing the matter cannot be a ground for appeal.  The court in the administration of justice can assign any Master available to dispose of a summons without informing the parties beforehand.

9.  Similarly, with respect to ground (3), it is up to the defendant to decide which lawyers to instruct without notice to the plaintiff.

10.  With regard to ground (4), there is no basis to assert that Master A Ho did not understand the summons.

11.  In today’s hearing, the plaintiff referred to a number of matters in her oral submission.  By way of example, she referred to a summons, which does not concern the present appeal, that was not sealed or chopped by the Registrar.  She also mentioned having received some judgments not sealed by the court; and there were other documents she had discovered recently.  None of these matters mentioned in her oral submission would assist her in overturning the decision of Master A Ho.

12.  In summary, the order of Master A Ho was plainly correct. I therefore dismiss the appeal.

(Discussion re costs)

13.  This appeal is probably a re-run of the arguments before the Master, so I make an order for costs to be borne by the plaintiff, summarily assessed in the sum of $10,000.