李智慧 v. TARGET INSURANCE CO LTD AND ANOTHER

[English Translation - 英譯本]

CAMP 325/2023, [2024] HKCA 111

ON AN INTENDED APPEAL FROM: [2023] HKDC 1239

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 325 OF 2023 (CIVIL)

(ON AN INTENDED APPEAL FROM DCCJ NO 288 OF 2023)

___________________

___________________

J U D G M E N T

Hon Chu VP (giving the Judgment of the Court):

Introduction

1.  The plaintiff brought this case to the Court of Appeal to appeal against the decision made by Deputy District Judge Gary CC Lam (“the judge”) on 29 September 2023, under which her application for leave to appeal was refused.

2.  However, this is not the proper course of action. Under Order 58, rule 2(4A) of the Rules of the District Court, Cap. 336H of the Laws of Hong Kong, the plaintiff may make a further application for leave to appeal to the Court of Appeal within 14 days from the date on which the judge refused the application for leave to appeal. Hence, the plaintiff should have made a fresh application to the Court of Appeal for leave to appeal against the judge’s decision made on 6 September 2023, under which her summons dated 15 June 2023 was dismissed, instead of lodging an appeal against the decision made on 29 September 2023.

3.  As the plaintiff is unrepresented and acting in person, to save time and costs, we shall regard the summons in this case as an application for leave to appeal against the decision made on 6 September 2023.

4.  Having examined the documents submitted by the parties, we consider it appropriate to deal with this application by way of paper disposal pursuant to Order 59, rule 2A(5) of the Rules of the High Court, Cap. 4A of the Laws of Hong Kong.

Background

5.  The plaintiff filed a claim in the District Court in 2023 against the 1^st defendant, Target Insurance Company Limited (“TI”), and the 2^nd defendant, the Insurance Authority (“the IA”). The plaintiff’s case as pleaded in the Statement of Claim are set out in paragraph 8 of the judge’s Decision dated 6 September 2023 ([2023] HKDC 1239, “the Appeal Decision”), which will not be repeated here.

6.  In short, the plaintiff took out a travel insurance with TI. She claimed that when she was travelling in February 2020, she was stranded in the Caribbean as a result of the Covid-19 pandemic. The plaintiff claimed that TI had failed to perform its duties under the travel insurance policy and therefore she filed a claim for compensation. The plaintiff’s claim against the IA in the Statement of Claim is as follows:

“Starting from the time when the Plaintiff paid the insurance levy (1 April 2019), the premium levy rate would be adjusted to 0.06% of the annual premium per policy year. The insurance levy was a double protection for the policyholder (the Plaintiff). However, it is not within the power of the 2^nd Defendant, the Insurance Authority (IA).

It is a breach of trust and public confidence.”

7.  On 27 February 2023, the IA took out a summons applying to strike out the claim against it in the statement of claim and to dismiss the action relating to it. On 14 March 2023, the summons was heard before Mr Dominic Pun, Master of the District Court. The plaintiff did not attend the hearing. Master Pun ordered that the claim against the IA in the Statement of Claim be struck out, the plaintiff’s action against the IA be dismissed, and the costs be paid by the plaintiff to the IA. A copy of Master Pun’s order was sealed, signed and issued by the court on 4 April 2023.

8.  On 2 June 2023, the plaintiff took out a summons applying to a master of the District Court to set aside Master Pun’s order. On 12 June 2023, Mr Timon Shum, Master of the District Court, upon hearing the submissions of both the plaintiff and the IA, refused the plaintiff’s application and dismissed her summons.

9.  On 15 June 2023, the plaintiff applied to a District Judge for a “re-hearing of this case” in respect of Master Shum’s order. On 6 September 2023, after a hearing the judge dismissed the plaintiff’s summons.

10.  On 14 September 2023, the plaintiff applied to the judge for leave to appeal. By a decision handed down on 29 September 2023 ([2023] HKDC 1332, “the Decision on Leave to Appeal”), the judge dismissed the plaintiff’s application for leave to appeal.

The present application

11.  On 12 October 2023, the plaintiff issued the summons in this action.

12.  Summing up the plaintiff’s draft grounds of appeal and written submissions, one would find that the grounds of appeal and arguments she advanced are almost the same as those in her written submissions in her previous application to the judge for leave to appeal. The plaintiff essentially seeks a re-hearing of her case and applies for summary judgment. The plaintiff’s grounds of appeal can be summarised as follows:

(1)  The plaintiff had notified the IA in advance of her absence from Hong Kong between 28 February and 30 May 2023. She was unable to receive the summons from the IA in time. Hence, Master Pun should not have proceeded to deal with the IA’s application at the hearing on 14 March 2023. The plaintiff did not have a fair hearing and therefore she made an “application for a re-hearing of this case”. (“Ground of Appeal 1”)

(2)  Pursuant to sections 4AAA and 4B of the Insurance Ordinance, Cap. 41 of the Laws of Hong Kong, the IA “has a duty to protect the plaintiff”. (“Ground of Appeal 2”)

(3)  Pursuant to section 41P(2)(e) of the Insurance Ordinance, the IA is empowered to impose a fine on TI and may exercise its power to credit the fine into the plaintiff’s account. (“Ground of Appeal 3”)

(4)  Pursuant to section 265(1)(e) of the Companies (Winding Up and Miscellaneous Provisions) Ordinance, Cap. 32 of the Laws of Hong Kong, the plaintiff, as a policyholder, is accorded priority to claim compensation. (“Ground of Appeal 4”)

Reasons for decision of this court

13.  Section 63A(2) of the District Court Ordinance, Cap. 336 of the Laws of Hong Kong provides that leave to appeal shall not be granted unless the applicant satisfies the court that her intended appeal has a reasonable prospect of success, or that there is some other reason in the interests of justice why the appeal should be heard.

14.  For the reasons set out below, we are of the view that the plaintiff’s intended appeal is without merit and legal basis, and has no prospect of success.

15.  As mentioned above, the plaintiff in the present application is essentially repeating the arguments already advanced in her earlier application for leave to appeal. In the Decision on Leave to Appeal, the judge had already considered these arguments, analysed each of them and pointed out how they were unsubstantiated. We concur with the judge’s analysis and reasons for decision. In the present application, the appellant is merely repeating the arguments rejected by the judge without specifically identifying any error in the judge’s decision. This does not help her application.

16.  Regarding Ground of Appeal 1, we concur with the analysis in paragraphs 2 to 5 of the Appeal Decision and that in paragraphs 5 and 6 of the Decision on Leave to Appeal.

17.  Order 32, rule 5 of the Rules of the District Court provides as follows:

“(1) Where any party to a summons fails to attend on the first or any resumed hearing thereof, the Court may proceed in his absence if, having regard to the nature of the application, it thinks it expedient so to do.

(2) Before proceeding in the absence of any party the Court may require to be satisfied that the summons or, as the case may be, notice of the time appointed for the resumed hearing was duly served on that party.

(3) Where the Court hearing a summons proceeded in the absence of a party, then, provided that any order made on the hearing has not been perfected, the Court, if satisfied that it is just to do so, may re-hear the summons.

(4) Where an application made by summons has been dismissed without a hearing by reason of the failure of the party who took out the summons to attend the hearing, the Court, if satisfied that it is just to do so, may allow the summons to be restored to the list.”

18.  On 17 February 2023, in accordance with paragraph 5 of Practice Direction 19.1, the solicitors for the IA sent a letter to the plaintiff notifying her of their intention to apply to strike out the writ of summons and the statement of claim and outlining the grounds on which the application was based. The letter was served on the plaintiff by email and by post.

19.  According to the affirmation of the clerk to the solicitors for the IA dated 10 March 2023, the IA’s summons for the application to strike out the statement of claim and the action (the “Summons for Striking Out Application”) was delivered by post to the address stated in the plaintiff’s Statement of Claim on 27 February 2023, and has not been returned.

20.  In the above circumstances, under Order 32 rule 5, Master Pun is entitled to conduct the hearing on the Summons for Striking Out Application in the absence of the plaintiff. Under Order 32 rule 5(3), the plaintiff may after the hearing apply to a master of the District Court for a re-hearing of the summons, provided that Master Pun’s order has not been perfected.

21.  However, Master Pun’s order was sealed, signed and issued on 4 April 2023, by which time the order was perfected and the Summons for Striking Out Application was disposed of. Thus, Order 32, rule 5(3) of the Rules of the District Court does not apply.

22.  Furthermore, legally, the District Court master was by then functus officio and no longer had jurisdiction to deal with the Summons for Application for Striking Out. In addition, no master of the District Court would have the jurisdiction to stay or set aside the order made by Master Pun, who was of the same rank. After Master Pun’s order has been perfected, if the plaintiff is discontented with Master Pun’s order, the only course open to her is to appeal to a District Judge, but not to apply to a master by way of a summons.

23.  Therefore, the plaintiff’s submission that the master did not re-hear the case by way of re-fixing and an adjournment in accordance with the legislation is legally unsustainable and unsound. Master Shum’s dismissal of the plaintiff’s application by way of the summons dated 2 June 2023 is consistent with the legal principles.

24.  Similarly, the judge’s dismissal of the plaintiff’s application against Master Shum’s decision is also correct. Moreover, the judge had made further consideration, treating the plaintiff’s summons as an application for extension of time for appeal against Master Pun’s decision. After analysing the law and the plaintiff’s claim, the judge was of the view that the plaintiff did not have any cause of action to claim compensation from the IA and did not have any ground of appeal. We are of the view that the judge’s decision and disposal of the case could not be faulted. Ground of Appeal 1 fails.

25.  In respect of Ground of Appeal 2, as pointed out by the judge in paragraphs 9 to 15 of the Appeal Decision and paragraphs 7 and 8 of the Decision on Leave to Appeal, the express provisions of the Insurance Ordinance have not specifically provided for the right for policyholders to make a civil claim against the IA. The plaintiff contended that sections 4A and 4B of the Insurance Ordinance protect policyholders, but these provisions only set out the functions and powers of the IA, which do not include compensation to policyholders or payment of compensation on behalf of insurers, nor do they empower policyholders to claim against the IA. This ground of appeal fails.

26.  Regarding Ground of Appeal 3, we concur with the analysis in paragraph 9 of the Decision on Leave to Appeal. Even if the IA were to impose a fine on TI, the fine received would have been paid into the general revenue of the government and could not have been used to compensate the plaintiff. This ground of appeal has no legal basis at all.

27.  As for Ground of Appeal 4, the priority of a policyholder’s right to be compensated as against other creditors in the winding up of an insurer under section 265(1) of the Companies (Winding Up and Miscellaneous Provisions) Ordinance is wholly irrelevant to the plaintiff’s entitlement to claim compensation from the IA. Similarly, this ground of appeal lacks legal basis.

28.  The plaintiff also applies for summary judgment in the present application. The plaintiff has not made an application for summary judgment in the lower court and she is not entitled to make such an application at the stage of application for leave to appeal.

29.  For the above reasons, the plaintiff’s intended appeal has no reasonable prospect of success, nor is there any other reason in the interests of justice why the intended appeal should be heard. Accordingly, we refuse the plaintiff’s application for leave to appeal and dismiss the summons of 12 October 2023.

30.  Furthermore, since the plaintiff’s application for leave to appeal is totally without merit, pursuant to Order 59 rule 2A(8) of the Rules of the High Court, it is ordered that no party may under rule (7) of that Order request the determination to be reconsidered at an oral hearing inter partes.

Costs

31.  According to the usual civil procedure, the plaintiff’s application fails and she should bear the costs of the successful party. Accordingly, it is ordered that the plaintiff do pay the IA’s costs of the present application, to be taxed by summary assessment on a party and party basis.

32.  We have considered the IA’s bill of costs dated 7 December 2023. We are of the view that there is a possibility of duplication of work in respect of item D1 (preparation of documents) and Item D2 (perusal of documents) and therefore the number of hours spent should be adjusted downwards. The amount of the IA’s costs is assessed at HK$42,000.

Orders

33.  It is ordered that:

(1)  The summons filed by the plaintiff on 12 October 2023 be dismissed;

(2)  The plaintiff do pay the 2^nd defendant’s costs of the present application, assessed at HK$42,000; and

(3)  No party may, under Order 59 rule (7) of the Rules of the High Court, request the determination to be reconsidered at an oral hearing inter partes.

Translated by the Court Language Section of the Judiciary and vetted by Ms Jenny Chung, Solicitor.