LEE KWOK TUNG ALBERT v. CHIYU BANKING CORPORATION LTD

CACV 180/2017
[2018] HKCA 123

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 180 OF 2017

(ON APPEAL FROM DCCJ NO. 2736 OF 2016)

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REASONS FOR JUDGMENT

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Hon Cheung JA (giving the Reasons for Judgment of the Court) :

I. The appeal

1.  On  the  application of  the  plaintiff  H  H Judge K W Wong transferred the present action (DCCJ No. 2736/2016) from the District Court to the Court of First Instance of the High Court so that the case can be dealt with together with another action in the Court of First Instance (HCA 168/2016) brought by the same plaintiff against the same defendant.  The Judge has expressly stated that how the two cases are to be managed after the transfer should be left to be decided by the Judge in the Court of First Instance. Pursuant to leave granted by the Judge, the defendant appealed against the decision.  At the conclusion of the hearing, we dismissed the appeal with costs to the plaintiff.  We now give reasons for our judgment.

II.  Background

2.1.   The background of this case is set out in the judgment below as follows :

‘ 2. Put very briefly, the defendant was a bank carrying on business in Hong Kong. In 1999, it advanced money to the plaintiff and one Madam Lee on the security of a landed property jointly owned by them. They defaulted. The defendant then exercised its mortgagee power. After the sale of their security, there was still a shortfall of slightly less than $1.8 million as at 2008. The defendant and the plaintiff (for reason not apparent from the affirmation evidence, without joining Madam Lee) entered into a written compromise dated 19 January 2009 whereby the plaintiff agreed to pay a total sum of $500,000 by instalments the last to be paid by end of 2010 in full and final settlement of all his liability under the loan agreement. All payments under the said compromise were duly paid. A written release dated 6 January 2011 was signed by the defendant, discharging the plaintiff (but not Madam Lee) from all liabilities under the original loan agreement.

3. It is the plaintiff’s case that despite the said discharge, the defendant had failed and/or refused to update the plaintiff’s credit information provided to a consumer credit reporting company, namely, TransUnion Limited (“TransUnion”) despite repeated requests and demands.  It was not until 16 July 2015 that the credit information was updated.  After the update, his credit rating was improved from Grade G to Grade C.  It is the Plaintiff’s case that there was a delay of 4½ years on the part of the defendant to correct the information provided.  The plaintiff said the defendant’s failure and/or delay to update his credit information with TransUnion has caused him loss and damages.  He has to pay interest at a higher rate when borrowing money from financial institutions and friends during this period.  The total loss quantified by him amounts to about $5.4 million.’

2.2.   The plaintiff first commenced the Court of First Instance action.  The claim was for damages against the defendant for breach of Principle 2 of the Personal Data (Privacy) Ordinance, Cap. 486 (‘PDPO’) and also for breach of the implied terms under the written compromise made between the parties and for breach of duty of care by the defendant. The District Court action was issued later and based on the same facts.  While the same amount of damages and loss was claimed, the cause of action in the District Court is confined to the breach of the PDPO.

2.3.   The defendant objected to the transfer.  The Judge held that the District Court does not have exclusive jurisdiction and the case ought to be transferred to the High Court because there are common issues of fact and law in the two actions.

III.  The issues

3.   The issues in this appeal are whether the District Court has exclusive jurisdiction to hear claims brought under section 66(1) of the PDPO and, second, if not, whether the Judge had properly exercised his discretion to transfer the District Court action to the Court of First Instance.  The second issue, however, is no longer a live one as we will discuss later.

IV.  Jurisdiction

1)  District Court

4.1.   The defendant’s argument that the District Court has exclusive jurisdiction to hear the claim under the PDPO is based on section 66(1) and (5) of the PDPO which provides that :

‘ (1) Subject to subsection (4), an individual who suffers damage by reason of a contravention—

(a) of a requirement under this Ordinance;

(b) by a data user; and

(c) which relates, whether in whole or in part, to personal data of which that individual is the data subject,

shall be entitled to compensation from that data user for that damage.

…

(5) Proceedings brought by an individual in reliance on subsection (1) are to be brought in the District Court but all such remedies are obtainable in those proceedings as would be obtainable in the Court of First Instance.’ (emphasis added)

4.2.   The power to transfer the case to the Court of First Instance is provided by section 42 of the District Court Ordinance, Cap. 336 :

‘ The Court may, either of its own motion or on the application of any party, order at any stage the transfer to the Court of First Instance or the Lands Tribunal of all or part of any action or proceedings before it which are within the jurisdiction of the Court of First Instance or the Lands Tribunal, as the case may be.’

4.3.   In deciding whether the District Court has exclusive jurisdiction, the first point to note is that section 66(5) of the PDPO does not say that the District Court has exclusive jurisdiction in such an action.  Words indicating exclusivity such as ‘only’ is not used. As can be seen from other legislations, where the legislature confers exclusive jurisdiction on a particular court or tribunal, this is done in clear and express terms.  Thus, for example, in respect of the Labour Tribunal, section 7(2) of the Labour Tribunal Ordinance (‘LTO’), Cap. 25 provides:

‘ Save as is provided in this Ordinance, no claim within the jurisdiction of the tribunal shall be actionable in any court in Hong Kong.’  (emphasis added)

4.4.   Section 10(1) and (2) further provides :

‘ (1) The tribunal may, at any stage of proceedings, if it is of the opinion that for any reason the claim should not be heard and determined by it, decline jurisdiction.

(2) The tribunal may, when it declines jurisdiction under subsection (1), transfer the claim to the Court of First Instance, the District Court or the Small Claims Tribunal, in such manner as may be prescribed.’

4.5.   In respect of the Small Claims Tribunal, section 5 of the Small Claims Tribunal Ordinance (‘SCTO’), Cap. 338 provides :

‘ (1) The tribunal shall have jurisdiction to hear and determine the claims specified in the Schedule.

(2) Save as provided in this Ordinance, no claim within the jurisdiction of the tribunal shall be actionable in any other court in Hong Kong.  (emphasis added)

(3) A claim within the jurisdiction of the tribunal may be brought in another court if there is included in such claim a claim for some other relief, redress or remedy, other than a claim for costs.’

4.6.   Both the LTO and SCTO contain express provision for transfer of cases to another court or tribunal.  This is necessary because of the exclusive jurisdiction conferred on these statutory tribunals. The express provision on transfer is to overcome the difficulty with the jurisdictional issue of the other courts and tribunals when the case is to be transferred to them.  The express provision reinforces the existence of exclusive jurisdiction of these statutory specialist tribunals.

4.7.  Mr Cheung for the defendant relied on Lee Chick Choi v Best Spirits Company Ltd, HCA 2045/2012 (unrep., 1 December 2014), in which Deputy High Court Judge Kent Yee at paragraph 17 held that the District Court has exclusive jurisdiction ‘over all claims in reliance on section 66(1) of the PDPO’.  It is of note that on the application for leave to appeal to this Court (HCMP 371/2015, decision 21 May 2015), whilst upholding the Judge’s decision not to allow the plaintiff to substitute a new statement of claim and have the matter transferred to the District Court, this Court expressly held at paragraph 24 that it was not necessary to consider if the District Court has exclusive jurisdiction in respect of a section 66(1) claim. 

4.8.   Mr Cheung also relied on Dr. Alice Li Miu-Ling v Dr Thomas Wong Kwok Shing, HCA 155/2006 (unrep., 6 April 2009) where Master Levy  discussed  the  jurisdiction  of  the District Court to hear a claim for sexual harassment based on section 23(3) of the Sex Discrimination Ordinance, Cap. 480 (‘SDO’).  The Master relying on her earlier decision in Sunny Tadjudin v Bank of America, National Association, (unrep HCA 322 of 2008, 28 October 2008) held that the District Court has exclusive jurisdiction.  In Tadjudin the plaintiff alleged unlawful discriminatory acts based on gender.  The Master held that such a claim falls within the exclusive jurisdiction of the District Court.  The jurisdictional clause in the SDO is section 76(4) which provides :

‘ (4)   By virtue of this subsection and notwithstanding any law, the District Court shall have jurisdiction to hear and determine any proceedings under subsection (1) and shall have all such powers as are necessary or expedient for it to have in order to provide, grant or make any remedy, injunction or order mentioned in this Ordinance.’  (emphasis added)

4.9.   Both the claims in Tadjudin and Dr. Alice Li Miu-Ling are proceedings under section 76(1) of the SDO.  The wording of section 76(4) of the SDO is similar to section 66(5) of the PDPO. Tadjudin went on to appeal ([2010] 3 HKLRD 417).  The part of the Master’s observation on jurisdiction was not the subject matter of the appeal. 

4.10.   There   are   also   other   first   instance  decisions   in   which   the   Courts   have   stated   that  the   District Court   has   exclusive   jurisdiction   to  hear   claims   for   disability   discrimination  under  section  72  of  the  Disability  Discrimination Ordinance  (‘DDO’) (Cap. 487) (see  Yuen Oi Yee Lisa  v Charoen  Sirivadhanabhakdi  DCCJ  1914/2015  (unrep.,  16  November  2015,   paragraph 105(b), Ko DJ);何妙鸞 v 鄺譪慧HCA 2367/2015 (unrep., 6 October 2017, paragraph 48,  To J).  Section 72(4)(a) of DDO is similar to section 76(4) of the SDO.

4.11.   In our view these cases are not authorities in support of the exclusive jurisdiction of the District Court.  The Judges there did not have the benefit of full argument on this issue.  In our view based on the wording of section 66(5) of the PDPO, the District Court does not have exclusive jurisdiction.

2)  Court of First Instance, High Court

4.12.   We now turn to examine whether the jurisdictional provisions in the High Court Ordinance (‘HCO’) (Cap. 4) preclude the Court of First Instance from exercising jurisdiction over a claim under section 66(1) of the PDPO. 

4.13.   Section 3 of the HCO stipulates:

‘ (1) There shall be a High Court of the Hong Kong Special Administrative Region consisting of the Court of First Instance and the Court of Appeal.

(2) Subject to the provisions of this Ordinance, the High Court shall be a court of unlimited civil and criminal jurisdiction.’  (emphasis added)

4.14.   Section 12 further provides :

‘ 12.  Jurisdiction of Court of First Instance

(1) The Court of First Instance shall be a superior court of record.

(2) The civil jurisdiction of the Court of First Instance shall consist of—

(a) original jurisdiction and authority of a like nature and extent as that held and exercised by the Chancery, Family and Queen’s Bench Divisions of the High Court of Justice in England; and

(b) any other jurisdiction, whether original or appellate jurisdiction, conferred on it by any law.’  (emphasis added)

4.15.   It needs to be emphasised that the High Court which comprises of the Court of Appeal and the Court of First Instance is a court of unlimited civil jurisdiction.  The Court of First Instance is expressly stated to be a superior court of record.  As Ms Law for the plaintiff correctly pointed out, the significance  of  the  Court  of  First  Instance as  a ‘superior’ (as opposed to an ‘inferior’) court of record is that the ‘presumption of jurisdiction’ applies.  This means, prima facie, no matter is deemed to be beyond the jurisdiction  of  a  superior  court  unless it  is  expressly shown to be so: Halsbury’s Laws of England (5^th Edn, 2010); paragraph 619; Peacock v Bell and Kendal 85 ER 84, 87‑88; Ex parte White [1948] 1 KB 195, 205‑206 (Wrottesley LJ); Board v Board [1919] AC 956, 963 (Viscount Haldane).

4.16.   Kwan J (as she then was) in the Incorporated Owners of Summit Court v Full Surplus Investment & Anor [2002] 3 HKC 193, (paragraph 18) referred to the ‘presumption against ousting of established jurisdiction’.  At paragraph 19, she cited Maxwell on the Interpretation of Statutes (12^th Edn.), page 153 which provides :

‘ A strong leaning exists against a statute so as to oust or restrict the jurisdiction of the superior courts... ‘the well-known rule that a statute should not be construed as taking away the jurisdiction of the courts in the absence of clear and unambiguous language to that effect.’ ... now rests on a reluctance to disturb the established state of the law or to deny to the subject access to the seat of justice.’

4.17.   In Wong Hing Cheong & Anor v Wah E Investment Ltd & Anor [2002] 2 HKLRD 175 this Court at paragraphs 19 and 24 approved of the statement of Findlay J in Ngan Chor Ying v. Year Trend Development Ltd [1995] 1 HKC 605, 607G‑H :

‘ My understanding of the law in this area is that where an Ordinance creates a right or remedy, that is, the right or remedy has no existence independently of the Ordinance creating it, and, at the same time, the Ordinance lays down a particular method of pursuing it in a particular court or tribunal, the courts will, without more, tend to confine a person in pursuit of that right or remedy to that particular court or tribunal.  But an Ordinance should not be interpreted so as to take away the jurisdiction of the superior courts unless it does so by express words or necessary implication.’  (emphasis added)

4.18.   Ma CJHC observed in So Wing Keung v Sing Tao Ltd & Another [2005] 2 HKLRD 11, paragraph 31(4) that the phrase ‘superior court of unlimited jurisdiction’ means the Court only has the jurisdiction to do everything necessary within the jurisdiction it already had.  In our view, this observation does not assist the defendant because in the first place the District Court does not have exclusive jurisdiction under a section 66(1) of the PDPO claim.  There is nothing in the HCO to show that the unlimited jurisdiction of the Court of First Instance had been taken away by the enactment of the PDPO. 

3)  The proper approach

4.19.   In our view nothing in the PDPO or in the HCO points to the District Court having exclusive jurisdiction of proceedings under section 66(1) of the PDPO or the lack of jurisdiction by the Court of First Instance over the same subject matter.  Accordingly, the Judge was correct on this point.

4.20.   Having said this, does it mean that since the District Court does not have exclusive jurisdiction over a section 66(1) claim, a plaintiff can choose to litigate it in the Court of First Instance despite the clear wording in section 66(5) of the PDPO that such proceedings are to commence in the District Court?  Although section 66(5) does not confer exclusive jurisdiction, it does point towards a requirement that the section 66(1) claim should, in the first instance, be litigated in the District Court.  This claim is a newly created independent statutory remedy to meet the needs of modern society.

4.21.   The proper approach to resolve the tension between, on the one hand, the District Court not having exclusive jurisdiction but expressly empowered by the PDPO to be the Court to commence section 66(1) claims, and, on the other hand, the unlimited jurisdiction of the Court of First Instance, is to require all claims based solely on section 66(1) to commence in the District Court.  But since the Court of First Instance jurisdiction is not ousted, in appropriate circumstances, the present one being an example, the District Court may order the case to be transferred to the Court of First Instance.

4.22.   This approach does not mean the failed exclusive jurisdiction argument is allowed to return by the back door nor does it encroach upon the unlimited jurisdiction of the Court of First Instance, but rather it gives effect to the legislative intent that the section 66(1) claims should commence in the District Court.

4.23.  We, however, will refrain from discussing whether a claim based not only on section 66(1) of the PDPO but also based on other causes of action can be commenced in the first place in the Court of First Instance, as this is not an issue before us and we do not have the benefit of full argument on this. 

4)  Legislative material

4.24.   Ms Law had further referred us to the legislative background material leading to the enactment of the PDPO.  In our view, it is not necessary to refer to this material for the purpose of determining jurisdiction.

V.  Discretion

5.1.   As to the exercise of discretion the Judge held :

‘ 29.   I think the conclusion is obvious.  The facts based upon which the plaintiff pleads his various causes of action are in fact the same.  All claims arose out of the same alleged defaults on the part of the defendant. There are common issues of facts and law.  Although I consider there is no practical difference between the 2 sets of claims, it will be a matter for trial as to whether all these claims are in fact one and the same under s.66(1) PDPO or other causes of action are also available to the plaintiff. It will be more appropriate for the 2 actions to be dealt with together in one go or by the same judge.’

5.2.   Despite the original challenge to the exercise of discretion, Mr Cheung accepted that if we uphold the Judge’s view on jurisdiction, then there is no need for him to argue on discretion because the exercise of discretion is related to the exclusive jurisdiction issue.

5.3.   In our view, the Judge had properly exercised his discretion in ordering the transfer.  If not for the transfer, there will be two proceedings in different Courts between the same parties and based on the same facts and substantially the same law.  The defendant had not applied to strike out either of these proceedings on the basis of abuse before or when the plaintiff applied for transfer. 

VI.  Conclusion

6.   Accordingly, the appeal was dismissed with costs to the plaintiff.