Tang Chi Yuen v. 陳金洪 Transliterated As Chan Kam Hung and Others

DCCJ 674/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 674 OF 2016

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DECISION

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Introduction

1.This is the plaintiff’s application for summary judgment against the 1^st – 9^th defendants.

The plaintiff’s claim

2.The plaintiff is a Lantau taxi driver. The 1^st – 9^th defendants are committee members of the Lantau Taxi Association (“the Association”).  The Association is a society registered under the Societies Ordinance, Cap 151.  Almost all Lantau taxi drivers are its members.  Every member of the Association is required to pay $100 monthly fee and to abide by the articles of association of the Association (“the Articles”).  The plaintiff and his wife, also a taxi driver, are members of the Association.  The plaintiff complains the Association was in breach of the Articles and had commenced this action against the committee members, namely, the 1^st – 9^th defendants.

3.The Association provides, inter alia, radio service for placing orders for hire for its members at a fee.  An operator will coordinate phone call requests from passengers by broadcasting the request to members via telecommunication devices.  Once a member responded, the operator will inform the taxi driver the identity of the passenger and where to pick up that passenger.  

4.The dispute arose because the plaintiff implemented a smartphone application (“the APP”) to replace the traditional radio service provided by the Association.  The APP is a more convenient and economical means for passengers to hire taxis.  Instead of placing orders by phone, the passengers can hire a taxi via the APP directly.  Taxi drivers can respond to the request without the need to communicate with an operator.  The APP is beneficial to both passengers and taxi drivers because a lower service fee will be charged.

5.The Association was dissatisfied because its income plunged with a decreasing number of requests made by passengers. On 21December 2015, the Association issued a letter to the plaintiff demanding him to cease operating the APP, or to surrender the APP to the Association, failing which the plaintiff’s membership will be canceled. On 28December 2015, the plaintiff wrote an open letter to the Association, with a view to promulgate the APP and to benefit all members, he counter proposed to the Association to replace the traditional radio service by the APP.

6.On 26 January 2016, the Association passed the following resolution[1], inter alia, 

“(4) According to paragraph 22(b) of Part 5 of the Articles, it was resolved to suspend the Services to Mr. Tang Chi Yuen (the plaintiff), commencing from 9 February 2016 (00:00 hours) until the review made by the Committee in the next meeting. The membership subscription fee paid by him shall not be refunded. Result of Votes: All attending members voted for the resolution.

(5) If any member who receives order for taxi service through the Apps of “Blue Taxi Association, the radio services shall be suspended for one week as sanction, on the taxi driven by him (on the basis of 24 hours for one day suspension).” (“the Resolution”)

7.Paragraph 22 of Part 5 of the Articles provides[2],

“If any member commits or breaches any of the following provisions and upon the written request of 50% (or more) of the members, the Committee may send warning to the member concerned (or suspend the radio services to him, the suspension period shall be determined by the Committee), or to expel him from the Association in case of serious breach.”

8.Without further ado, in a purported meeting held by the Association held on 28January 2016, the Association notified the plaintiff and his wife of the Resolution in that meeting. The plaintiff claimed the Resolution was  ultra-virus because (i) the plaintiff and his wife were never being notified of the alleged general meeting; (ii) the Resolution did not state the alleged wrongful act committed by the plaintiff; and (iii) the Resolution was not passed with no less than 50% of the members of the Association.

9.The Resolution was also in breach of section 6 of the Competition Ordinance, Cap 619.  The plaintiff was never given an opportunity to be heard in the meeting.  The Resolution was passed against the rule of natural justice. 

10.The plaintiff thereby seeks summary judgment against the 1^st – 9^th defendants for a declaration that the Resolution was null and void; an injunction to restrain the Association from interfering him to operate the APP and the right to enjoy the radio service provided by the Association.  The plaintiff also seeks an order that damages to be assessed due to loss of income from 9 February 2016 thereof; damages arising from both psychological and psychiatric injures as a result of the Resolution.

Analysis

11.The applicable legal principles in granting summary judgment are that it should be a clear and crisp legal case.  The court shall not embark on a mini trial on affidavits. In event the defendant is able to raise triable issues or should the defendant be able to provide believable evidence in affidavits, or there are other reasons for trial, summary judgment should not be granted. (See commentaries of the Hong Kong Civil Procedure 2016, paragraphs 14/4/3 & 14/4/4)

12.In light of the applicable principles, this is case where summary judgment should not be granted.  The reasons are multifold.

13.As evidenced by a minute of the Association dated 10 March 2016, the Association passed another resolution that paragraphs 4 and 5 of the Resolution shall be set aside temporarily. The Association has uplifted the suspension of the radio service on the filing date of the plaintiff’s summons.  The plaintiff took no steps to dispose of this application upon concession of the Association.

14.The plaintiff challenges the Resolution was passed without support no less than 50% of the members of the Association. I find the 1^st – 9^th defendants are capable of demonstrating triable issues with believable evidence in the Affirmation of Chan Kam Hung filed on 7 April 2016.  A document contained 83 out of 154 members signed in support of the Resolution was exhibited.  The plaintiff further complains those signatures were obtained improperly. These are exactly issues to be heard at trial.

15.The plaintiff is seeking summary judgment for declaration.  Mr Chui, solicitor for the plaintiff agreed, relief in terms of declarations should not normally be granted by way of summary judgment.  Mr Chui urged me to depart from the general rule for reason of urgency of the matter. The Resolution is affecting the plaintiff continuously. As paragraphs 4 and 5 of the Resolution have been set aside, albeit “temporarily”, there is no urgency.

16.Moreover, in a summary judgment application, the commentary of the Hong Kong Civil Procedure 2016, paragraph 14/1/1 succinctly stated,

“Where declaratory relief sought in a summary judgment application cannot realistically be separated from other relief which must go to trial in any event, it would be inappropriate to grant summary judgment”.

17.Mr Wong, counsel for the 1^st – 9^th defendants, has correctly pointed out, a court may grant declaration in application for summary judgment when there is a genuine need to do so.  In Great Rock Asset Management LLC t/a Capitol Seniors Housing v Yulong International (HK) Limited (HCA 402/2016, unreported, DHCJ Saunders, 16 June 2016), the court granted the same because of a clear case of fraudulent email.  Declarations are therefore necessary in the circumstance.

18.Mr Wong submitted, the 1^st – 9^th defendants’ solicitors are willing to give solicitors’ undertaking that paragraphs 4 and 5 of the Resolution shall not be reinstated at anytime prior to the conclusion of this action in the District Court. I do not think it is necessary.  

19.As at the date of hearing, the suspension of radio service has been uplifted; paragraphs 4 and 5 of the Resolution has been set aside temporarily, it is therefore redundant for the plaintiff to seek injunctive relief against the 1^st – 9^th defendants at this stage.

20.The plaintiff conceded the provisions of the Competition Ordinance, Cap 619 is inapplicable, no further discussion is necessary.

21.I am satisfied there are triable issues and plaintiff’s claim shall proceed to trial. Summary judgment should not be granted.

Conclusion

22.I therefore make the following orders:-

(i) The plaintiff’s summons filed on 10 March 2016 be dismissed.

(ii) The 1^st – 9^th defendants be granted unconditional leave to defend the plaintiff’s claim.

(iii) Leave be granted to the 1^st – 9^th defendants to file and serve a Defence within 28 days from the date of this decision.

(iv) The plaintiff do file and serve a Reply, if so advised, within 28 days thereafter.

(v) The costs of the plaintiff’s summons filed on 10March 2016 to be paid by the plaintiff to the 1^st – 9^th defendants, with certificate for counsel, to be taxed if not agreed.

Mr Chui Pak Ming, of Chui & Lau, for the plaintiff

Mr Timothy Y H Wong, instructed by Chiu, Szeto & Cheng, for the 1^st to 9^th defendant