DCCJ 408/2007

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 408 OF 2007

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BETWEEN

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REASONS FOR DECISION

1.  The Defendant (“Liu”), was an Agency Manager of the Plaintiff, Pacific Century Insurance Company Limited (“the Company”) which has subsequently become Fortis Insurance Company (Asia) Limited. The Company has terminated the relationship with Liu and commenced this action to recover the advanced payments made when recruiting her. Liu denied liability and made a counterclaim for wrongful termination.

2.  On 31 December 2009, I handed down written judgment in this case (“the Judgment”) whereby I found for the Company and dismissed Liu’s counterclaim. The Company was awarded costs of this action with certificate for counsel.

3.  By summons dated 13 January 2010, Liu applied for leave to appeal. At the end of the hearing on 8 February 2010, I dismissed the application with costs to be taxed, if not agreed. I now state my reasons.

4.  Leave to appeal shall not be granted unless the intended appeal has a reasonable prospect of success or that there are issues which should be heard before the appellate court in the interests of justice: see section 63A(2) of the District Court Ordinance.

5.  I do not intend to repeat the background of the dispute which is set out in paragraphs 2 to 27 of the Judgment. As far as liability is concerned, this court’s analysis and findings of fact are contained in paragraphs 28 to 53 of the Judgment.

6.  In her affirmation in support of the application, Liu essentially made 5 points:

(1)  The Company has never actually specified that it refused her husband’s first application for medical insurance due to his being diabetic.

(2)  There was no dishonesty behind the decision to reduce the proposed insured amount from HK$300,000 to HK$200,000.  The policy approved has lapsed and the Company has suffered no loss.

(3)  Being diabetic would not have necessarily disqualified an applicant for insurance from obtaining the approval from the Company.

(4)  The Reinstatement Application was made in view of her husband’s improving health condition.  No dishonesty was involved.

(5)  The Company was making excuse (or in her words “莫須有”) in order to avoid having to pay her upon the termination of the contract.

7.  Regarding point (1) above, the Company never suggested otherwise. Nor did this court make any finding other than what was stated in paragraph 32 of the Judgment. Regarding point (3) above, the Company also never suggested otherwise. Nor did this court make any contrary finding. These points simply do not have a direct bearing, if at all, on the question of whether the Company was entitled to invoke clause 10.2(e) of the Agent’s Contract. Regarding points (2), (4) and (5) above, Liu was effectively repeating her arguments advanced during the trial.

8.  At the hearing, Liu raised 2 further points. First, she suggested for the first time that the Reinstatement Application was not her idea but that of her senior’s at the Company. There is of course no explanation by way of affidavit why this suggestion has never come out before or what it was about. This also does not sit well with point (4) above that she is still making. This allegation in any event provides no answer to the undisputed false declaration of her husband’s health condition in the Reinstatement Application.

9.  Secondly, she alleged that she recently managed to locate witnesses who would testify for her. It is trite that where there has been a trial on the merits, fresh evidence cannot be admitted before the court of appeal unless special circumstances have been established. To establish the special circumstances, the intended appellant must satisfy the conditions laid down in Ladd v Marshall [1954] 1 WLR 1489, namely:

(1)  the evidence could not have been obtained with reasonable diligence for use at the trial;

(2)  the evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive; and

(3)  the evidence must be such as is presumably to be believed, or, in other words, it must be apparently credible through it need not be incontrovertible.

See Hong Kong Civil Procedure 2010 (Vol.1) at 59/10/8; 59/10/10-13.

10.  Liu has not mentioned at all in her affirmation such attempt to adduce fresh evidence. Liu tried but did no better in court either.

11.  In conclusion, I am not satisfied that the intended appeal has any reasonable prospect of success or should for any other reason be heard by the appellate court. Leave to appeal was therefore refused.

12.  Like the trial, the hearing of this application was conducted in Chinese for the benefit of Liu and the decision is handed down in English. If necessary, interpreter’s assistance to Liu may be arranged.