LEE CHICK CHOI v. BEST SPIRITS COMPANY LTD

HCMP 371/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 371 OF 2015

(ON AN INTENDED APPEAL FROM HCA NO. 2045 OF 2012)

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DECISION
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Hon Kwan JA (giving the decision of the court):

1.  On 12 February 2015, the plaintiff Lee Chick Choi issued a summons seeking leave to appeal against the judgment of Deputy High Court Judge Kent Yee made on 1 December 2014 out of time. This summons was fixed for hearing on 31 March 2015.

2.  On 26 February, the plaintiff wrote to the court requesting that his summons be dealt with on paper.  The solicitors for the defendant, Best Spirits Co Ltd, agreed to this on 3 March.  Hence, an order was made that day vacating the hearing date and directions were given to the parties to file and serve written submissions.  Each was allowed to serve one submission of no more than five pages, by the timetable laid down by the court.

3.  The plaintiff did not comply with the court’s directions.  Apart from serving a submission on 6 March, he served another submission on 8 April 2015 purportedly in reply to the defendant’s submission which he received on 2 April.  He also wrote to this court on 7 March and copied to this court the letters he sent to the Chief Judge of the High Court on 7 and 16 March 2015.  His wife Ms Yuen Oi Yee Lisa also copied to this court various letters she sent to the Chief Judge in March 2015.

4.  In the plaintiff’s submission of 8 April 2015, he requested this court to send his present application to the Chief Judge claiming that the Chief Judge was considering other applications of his and of Ms Yuen so that the Chief Judge could consider all of them at one go.  We decline to do this.  Nor do we take into account the letters written to the court by him and Ms Yuen in March 2015 as they are not relevant to the present application.  We will consider his reply submission on 8 April 2015 notwithstanding it was lodged without the leave of the court.

The judgment below

5.  The judgment of 1 December 2014 was given in an application of the defendant to strike out the writ and statement of claim in HCA 2045/2012 for being obviously unsustainable in light of issue estoppel and res judicata, and are vexatious and oppressive and an abuse of the process of the court.  The day before the hearing on 17 November 2014, the plaintiff took out a summons for leave to abandon the statement of claim and replace it with a new draft pleading.  The proposed amended statement of claim was a totally new pleading.

6.  At the hearing, the plaintiff made clear he did not wish to defend the existing statement of claim, so the question for the judge was whether he should exercise his discretion to allow the plaintiff to amend the statement of claim with a completely new pleading.

7.  By the proposed new pleading, the plaintiff is to claim damages against the defendant, his former employer, under section 66(1)[1] of the Personal Data (Privacy) Ordinance, Cap 486 (“PDPO”).  According to the draft pleading, the plaintiff discovered that his personal data and his wife’s stored in his laptop computer, which was returned to the defendant when the plaintiff left his employment, were stolen by the defendant.  In May 2011, Ms Yuen lodged a complaint against the defendant to the Privacy Commissioner for Personal Data.  The plaintiff also lodged a separate complaint in April 2013.  On 20 November 2013, the Privacy Commissioner confirmed to the plaintiff that the defendant had contravened Data Protection Principle 5 (“DPP5”) in Schedule 1 to PDPO.

8.  The material paragraphs of the draft pleading read as follows:

“22. Due to the contravention of DPP5 of PDPO committed by the Defendant leading to the Defendant’s turnover of Plaintiff’s resignation being accepted by them on 4^th November, 2010 to an instant dismissal due to misconduct, the Plaintiff could not find a comparable job with his monthly income of HK$89,000.00 for the rest of his life. It was because no employers in town would like to hire a top position like a General Manager/Director for their companies if the Plaintiff was found NOT to have resigned in his own accord but terminated/dismissed due to misconduct which was not true.

23. The Plaintiff is therefore entitled to claim his loss of income and other benefits as for his damages under section 66 of PDPO.

PARTICULARS

Please refer to attached “ANNEX 1” for the calculation of loss of income and other benefits for the Plaintiff from 5^th November, 2010 to 4^th December, 2019 of HK$14,475,849.00.”

9.  Whether the plaintiff’s employment was validly terminated for misconduct was the subject of a six-day trial in the Labour Tribunal in July and August 2011. The tribunal found in favour of the defendant in October 2011. The plaintiff’s application for leave to appeal was dismissed by M Chan J in June 2013.

10.  The judge declined to exercise his discretion to permit the plaintiff to amend his statement of claim with a completely new draft for two reasons.

11.  The first reason is on jurisdictional grounds. Section 66(5) of PDPO provides as follows: “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 available in the Court of First Instance.”

12.  The judge held by section 66(5), the District Court has exclusive jurisdiction over all claims in reliance on section 66(1) including those involving monetary claims in excess of the jurisdiction of the District Court.  So this means that the plaintiff’s claim albeit involving over $14 million should be dealt with in the District Court.

13.  The second reason is as stated in §18 of the judgment:

“Jurisdiction issue aside, I fail to see any causal link between the alleged breach of DPP5 on the one hand and the alleged income loss sustained on the other. The alleged breach had nothing to do with the dismissal of Mr Lee to start with. It is also far-fetched to attribute his inability to secure a similar job to his dismissal by the Company. As the proposed/draft Statement of Claim now stands, I am convinced that it would also be doomed to failure.”

14.  Subsequent to the hearing, the plaintiff wrote to the judge on 19 November 2014 asking the judge to transfer his new claim to the District Court.  The judge declined to accede to this suggestion, given his “dim view” of the merits of the new claim.  The judge struck out the existing writ and statement of claim and dismissed the plaintiff’s application to amend the statement of claim.  The plaintiff was ordered to pay the defendant’s costs on both summonses.

What happened after judgment

15.  Thinking that the judge’s order was an interlocutory order for which leave to appeal was required, the plaintiff issued a summons on 15 December 2014 returnable before the judge for leave to appeal against his judgment on 1 December to the Court of Appeal.

16.  On 10 February 2015, the judge dismissed the application for leave to appeal as it was misconceived.  By virtue of Order 59 rule 21(2)(i), “an order refusing to allow an amendment of a pleading to introduce a new claim or defence or any other new issue” is treated as an order determining in a summary way the substantive rights of a party so that section 14AA(1) of the High Court Ordinance, Cap 4 (leave to appeal required for interlocutory appeals) does not apply and accordingly an appeal lies as of right.

17.  Under Order 59 rule 4(1)(c), a notice of appeal must be served within 28 days from the date of the judgment or order concerned.

18.  The plaintiff is out of time in filing and serving his notice of appeal.  Hence, the present summons was issued on 12 February 2015.

The legal principles

19.  The legal principles regarding an application to extend time for an appeal are well established.  In the exercise of its discretion, the court will take into account the length of the delay, the reasons for the delay, the chances of the appeal succeeding if an extension of time is granted, and the degree of prejudice to the other party if the application is granted.  Where the delay is substantial and not wholly excusable, the applicant must show a real prospect of success on the merits, not merely a reasonable prospect of success.  In other words, he would need to demonstrate a strongly arguable case (Secretary for Justice v Hong Kong & Yaumati Ferry Co Ltd & Anr [2001] 1 HKC 125 at 127D to 128D, 132F; KNM v HTF, HCMP 288/2011, 7 September 2011, §§2, 19, 20; YN v NA [2014] 5 HKC 49 at §§16, 17).

20.  Here, there was a delay of more than six weeks, counting from 29 December 2014 to 11 February 2015 when the plaintiff claimed he served a notice of appeal on the defendant’s solicitors (without leave as he was out of time).  He issued his summons for extension of time on 12 February.  This delay is substantial.

21.  The plaintiff did not proffer any or any proper explanation for the delay in his supporting affirmation or his submissions for this application, merely asserting that the application to strike out was an “Interlocutory Summons in [his] eyes” and that the judgment did not mention it was “Summary” at all.  We note in his submission before the judge for the hearing on 10 February, he asserted that he “strongly believed” leave to appeal was required, notwithstanding the other side had pointed out to him Order 59 rule 21(2)(i).  The reason for his belief would appear to be based on his experience in an appeal against an interlocutory order in HCLA 19/2013, for which leave to appeal to the Court of Appeal was required.  He cited a statement in the judiciary website to the effect that to appeal a judge’s decision in an interlocutory matter requires leave.

22.  The order the plaintiff sought leave to appeal in HCLA 19/2013 was not an order within Order 59 rule 21(2)(i), i.e. “an order refusing to allow an amendment of a pleading to introduce a new claim or defence or any other new issue”, as he well knew.  Whether leave to appeal is required for what kinds of interlocutory orders made in the Court of First Instance is clearly set out in table form in a leaflet of the judiciary made available to members of the public.  The plaintiff adamantly asserted his belief in the face of clear statements to the contrary.  We do not find his delay excusable.

23.  The threshold test he is required to satisfy for the court to exercise its discretion to extend time in his favour is a real prospect of success on the merits of the intended appeal.

The proposed grounds of appeal

24.  It is unnecessary to consider if the District Court does have exclusive jurisdiction in respect of a claim brought under section 66(5) of PDPO.  The judge refused to transfer the claim to the District Court because he was convinced it was “doomed to failure”.  The material consideration is the second of the two reasons given by the judge.  It would not avail the plaintiff to bring proceedings in the District Court if his claim is patently bad.

25.  We find the judge’s reasoning in §18 of his judgment unassailable.  He is obviously right there is no conceivable causal link between the defendant’s breach of DPP5 and the events which led to the defendant maintaining the stance that the plaintiff was dismissed for misconduct.  He is right to say that it is far-fetched to attribute the plaintiff’s failure to secure a similar job in future to his dismissal by the defendant.  Besides, the Labour Tribunal had decided the plaintiff was dismissed for valid reasons because it was dissatisfied with the plaintiff’s performance and his rude outburst during a meeting on 4 November 2010.  The plaintiff cannot re-litigate an issue already decided against him.

26.  The plaintiff contended that the judge should not have formed his view on the draft pleading without giving him an opportunity to substantiate his claim with proofs and evidence.  We do not think there is any error in the judge’s approach, as it is clear beyond peradventure that the claim for damages for loss of earnings for the rest of the plaintiff’s working life is unsustainable at law as being far too remote.

27.  The plaintiff pointed to §§10, 11 and 13 of the judgment in which the judge mentioned a letter dated 16 May 2013 from the Privacy Commissioner to Ms Yuen and set out the contents of that letter in those paragraphs of the judgment.  The plaintiff said the judge was in error as that letter, which was adduced by the defendant in other proceedings between the parties (HCLA 19/2013) in October 2014, was addressed to the defendant, not to Ms Yuen.  He claimed that the Privacy Commissioner did not inform Ms Yuen the defendant had contravened DPP5 at all in another letter of the Commissioner to Ms Yuen also dated 16 May 2013.  The judge had confused the two letters of the same date.

28.  Even if the judge had made an error here, this is irrelevant and immaterial and does not affect the correctness of his holding in §18 of his judgment.  The lack of a causal link between the contravention of DPP5 and the damages allegedly suffered in the new claim is still an insurmountable hurdle.

29.  For the above reasons, we are firmly of the view that the plaintiff does not have reasonable prospects of success on appeal, let alone real prospects of success.  We decline to exercise our discretion to extend time to appeal against the judgment of 1 December 2014.  We further order under Order 59 rule 2A(8) that no party may under rule 2A(7) request the determination to be reconsidered at an oral hearing inter partes, as this application is entirely without merits.

30.  We make a costs order nisi with gross sum assessment.  As the unsuccessful party, there is no reason why the plaintiff should not pay the defendant’s costs.  We order the plaintiff to pay the defendant’s costs assessed at $50,000, of which $20,000 is in respect of counsel’s fees.

31.  Any party seeking to vary the above order nisi and gross sum assessment shall lodge a written submission within seven days hereof, with leave to the other party to reply in writing within seven days thereafter.

[1] Section 66(1) reads: “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.”