LEUNG CHUNG LAN LORRAINE v. MERCER (HONG KONG) LTD

CACV 44/2018

[2018] HKCA 926

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CVIAL APPEAL NO. 44 OF 2018

(ON APPEAL FROM HCA No. 627 OF 2017)

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JUDGMENT

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Hon Chu JA (giving the judgment of the Court):

1.  On 21 September 2018, this Court handed down our judgment (“the Judgment”) dismissing the plaintiff’s appeal against the judgment of B Chu J given on 2 February 2018. By her judgment, the Judge dismissed the plaintiff’s appeal against the order of Master M Wong striking out the Statement of Claim and dismissing her action against the defendant with costs.

2.  By a Notice of Motion filed on 27 September 2018, the plaintiff applies for leave to appeal to the Court of Final Appeal against the Judgment.  Pursuant to the directions given by the Registrar of Civil Appeals, the plaintiff and the defendant had lodged written submissions on 11 and 25 October 2018 respectively.

3.  Under paragraph 3 of Practice Direction 2.1, this Court’s practice is to determine applications for leave to appeal to the Court of Final Appeal on paper without an oral hearing.  We see no reason to depart from the practice in this case and have proceeded to consider and determine this application on paper.

4.  Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484 provides that leave to appeal to the Court of Final Appeal may be granted if the question involved in the appeal is one which, by reason of its great general or public importance, or otherwise, ought to be submitted to the Court of Final Appeal for decision.

5.  The Notice of Motion has an attachment setting out the following, which we take to be the applicant’s proposed grounds of appeal:

(1)   Under the Limitation Ordinance, Cap. 347, actions founded on contract or tort shall not be brought after the expiration of six years from the date on which the action accrued.

(2)   Although the defendant did not issue the Cheque, it arranged Merrill Lynch Wealth Management to issue the Cheque to the plaintiff.  The defendant knew the plaintiff’s full name but instructed Merrill Lynch Wealth Management to issue the Cheque to “Leung Chung Lan”.  Even if the plaintiff had received the Cheque, she could not have cashed it as all her bank accounts are in the name of “Leung Chung Lan Lorraine”.

(3)   The defendant had used “Leung Chung Lan Lorraine” in some of its documents and “Leung Chung Lan” for the Cheque and other documents.  The defendant violated its duty as administrator under section 20 of the Occupational Retirement Schemes Ordinance (“ORSO”), Cap. 426 to maintain a proper record of the members of the ORSO scheme it administered.

(4)   With reference to §40 of the Judgment, the plaintiff had checked with various banks and was told the payee’s name and the name of bank account holder should match the name on the identity card.  If it is said that the common practice of administrators is to issue benefit cheques without the first name or the English name, this is not made known to the ORSO scheme members, and is not shown in the Banking Ordinance.      

(5)   With reference to §27 of the Judgment, the plaintiff had already sent the supporting documents to the Registrar before the appeal hearing.  HSBC staff told the plaintiff that they would not allow clients to have so many Premium accounts with the same account number and under the same name. The plaintiff had four Premium accounts.  Someone opened the accounts without her authority, and had also used her account to buy securities.

(6)   The plaintiff did not inform the defendant’s solicitors to prepare the summons for her on 8 May 2017 and 2 June 2017.  The defendant’s solicitors had not served on the plaintiff the affirmations annexed to the attachment to the Notice of Motion.

(7)   The defendant’s solicitors sometimes used plastic tape to seal letters sent to the plaintiff, which are confidential in nature.  This is not secure and violates the Personal Data (Privacy) Ordinance, Cap. 486.

(8)   It is not fair that until the hearing the plaintiff still did not know whether her bundle would be used or not, and that the Court only used the bundle prepared by the defendant.

(9)   According to the evidence shown at the appeal hearing, the Cheque was issued by the defendant.

(10)   The evidence shown to the Court at the appeal hearing is not new evidence. With reference to §29 of the Judgment, the documents had been shown to the defendant’s solicitors, and they had seen them previously.  They had no complaint or objection and had thus accepted the plaintiff’s explanation on them

(respectively “Ground 1” to “Ground 10”).     

6.  The plaintiff’s written submission essentially repeated what was contained in the attachment to the Notice of Motion.

7.  The matters advanced by the plaintiff in the Notice of Motion and written submission all relate to the circumstances of her case. They do not involve any question of great general public importance.

8.  Further, for the reasons given in the Judgment, Ground 1 to 3, 5, 9 and 10 are not arguable.  Ground 4 is new issue that was not raised in the Notice of Appeal or at the appeal hearing.  In an application for leave to appeal to the Court of Final Appeal, it is not permissible for the plaintiff to advance new issue not previously argued at the appeal.  In relation to the complaints against the defendant’s solicitors in Grounds 6 and 7, they bear no apparent relevance to the Judgment.  In any case, the affirmations referred to are affirmations of service of documents on the plaintiff.  The affirmations are not required to be served on the plaintiff.  As for the complaint about the hearing bundle in Ground 8, the Registrar of Civil Appeals had on 4 September 2018 directed that the bundle prepared by the defendant’s solicitors shall be used as the bundle for the appeal hearing. The direction was communicated to the plaintiff by the Court’s letter dated 4 September 2018.

9.  There is also no other reason for submitting the appeal to the Court of Final Appeal for determination.        

10.  As the condition for granting leave to appeal under section 22(1)(b) is not met, the Notice of Motion is dismissed.

11.  Applying the usual rule of costs follow event, the plaintiff, having failed in the application, should pay the defendant’s costs of the application.  We have considered the defendant’s statement of costs for summary assessment.  We summarily assess the defendant’s costs of the application at HK$20,000.