Law Lai Kwan v. Intrend Finance Ltd

DCCJ 1035/2015

IN THE DISTRCT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO.1035 OF 2015

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Coram: Deputy District Judge Daniel Tang in Court

Date of Hearing: 5 and 6 September 2016, 7 October 2016

Date of Judgment: 29 May 2017

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J U D G M E N T

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The issue

1.The plaintiff, Ms Law (“Law”), claims for damages against the defendant, Intrend Finance Ltd. (“Intrend”), a licenced money lender, for negligence and in breach of the Personal Data (Privacy) Ordinance, Cap.486 (the “Ordinance”).  Law employed her former foreign domestic helper, Ms Utami (“Utami”), under a domestic helper contract no. J443459 dated 19 May 2013 (the “DH Contract”). Her case, in a nutshell, is that when Intrend tried to collect a debt (the “Loan”) from Utami, its servants and/or agents and/or employees (collectively known as the “Debt Collectors”) ^[1], intimidated and harassed Law; and collected and distributed her personal data unlawfully, causes her loss and damage.

2.Intrend defences that the Debt Collectors did not relate to it and it had no knowledge about them.  Pursuant to a 借貸合同買賣合約 with agreement number IFLFw150201 dated 28 February 2015 (the “Loan Assignment Agreement”), Intrend assigned the Loan to one Foon Wan Trading Company (“Foon Wan”); since then, Intrend has no further knowledge on the development of the Loan.

3.The court is required to answer 3 questions:

a. If Law has suffered harassment and intimidation created by the Debt Collectors and/or if her personal data has been collected and distributed unlawfully;

b. Should Intrend be responsible for the Debt Collectors’ act; and

c. If so, what are the damages.

The relationship between the Debt Collectors and Intrend

4.This is the central issue and I will deal with it first.

5.Intrend only called one Mr Yip Cheuk Yin Ryan (“Yip”), to give evidence.  According to Yip, Intrend signed the loan contract with Utami on 25 January 2015 and the loan amount was $3,000 with interest rate of 48% per annum; which should be repaid by one instalment on or before 23 February 2015 at the sum of $3,120 (the “Loan Contract”).  The Loan Contract, together with other overdue loans, was then assigned to Foon Wan by the Loan Assignment Agreement.  Since the execution of the Loan Assignment Agreement, Intrend had no further knowledge on the development of the Loan, particularly the dealings with Utami and/or Law. Intrend received the letters from Law’s solicitors, Messrs Fung, Wong, Ng & Law (“FWNL”) dated 3, 4 and 9 March 2015, concerning Law’s complaints; however, as Intrend verily believed that the dealings regarding the Loan Contract had already been assigned to Foon Wan and was no longer related to it, Intrend then made no response.

6.Intrend also produced the Loan Assignment Agreement in AB/131^[2]. According to the Loan Assignment Agreement, inter alia, that:

a. Intrend sells its overdue loans between 1 February 2015 to 28 February 2015 to Foon Wan;

b. Foon Wan agrees to pay Intrend $422,347.5 as 75% of the total outstanding loan amount of $563,130;

c. Both parties agree Foon Wan will pay Intrend that sum of $422,347.5 at the last day of the month by cash or by cheque;

d. This agreement requires Foon Wan to collect the bad debts legally (“此合約要求受託之壞賬處理公司以合法的方式追收壞賬”);

e. This agreement is made according to the Ordinance that:

i. Policy of this agreement – This agreement requires Foon Wan follows the requirement and liability in the Ordinance.  Foon Wan undertakes to respect the clients’ privacy when collecting, storing and transmitting the personal data;

ii. Collecting personal data – This agreement requires Foon Wan only collect the necessary personal data sufficient for its commercial activities.

7.Pursuant to the Loan Assignment Agreement, Intrend’s defence is bound to fail, as Intrend bears a positive contractual duty towards Foon Wan’s act.

8.The Defence dated 16 April 2015 mentions that:

“4. … The Defendant further says that pursuant to (the Loan Assignment Agreement), the Defendant had assigned the debt to (Foon Wan). Since then the Defendant has had no further knowledge on the development of the debt, particularly the dealings with Utami and/or the Plaintiff in relation to the debt.”

9.However, the Loan Assignment Agreement says otherwise as it imposes a positive contractual duty on Intrend to require Foon Wan to collect the Loan legally and to compile with the Ordinance when handling personal data.  Hence Intrend cannot simply turn a blind eye to the action carried out by Foon Wan; nor hides behind the Loan Assignment Agreement to escape any liability caused by Foon Wan’s act after the assignment.

10.Further, I accept Law is an honest and truthful witness whose evidence was not really challenged by Intrend.  According to Law, on 3 March 2015, she was contacted by a Debt Collector who identified himself as Mr Wong (“Wong”).  Then on the same day, Utami confirmed that she had borrowed money from Intrend and stolen Law’s letters with her personal data to provide to Intrend when Utami was raising the Debt.  Utami also provided Law a copy of a loan repayment note (the “Loan Repayment Note”) via WhatsApp with the following particulars (AB/108 – 110):

NAME	UTAMI
HKID	WX018030(9)
CONTRACT NO	ST28942205
DUE AMOUNT	$3120-
DUE DATE	Feb.24, 2015/
NO GRACE PERIOD
Repayment Method
Hang Seng Bank
A/C# 383-387511-883
A/C Name:  Intrend Finance Limited
(Please Write Down Your FULL NAME & HKID# On The Receipt And Fax to 8133-0032)
…
Causeway Bay:  15A, 15/F, Causeway Ban Centre, 15-23 Sugar St, Causeway Bay, HK
Tel:  3576 3651
Central:  Suite 1106-8, Hong Kong Chinese Bank Building, Central
Tel:  3576 3578

11.The Loan Repayment Note does not tally with Intrend’s Defence and shows the Debtor Collectors were in fact acting for Intrend.

12.The particulars of the Loan Repayment Note all refer to Intrend, instead of Foon Wan.  It requires Utami to deposit money into Intrend’s account in the Hang Seng Bank numbered 383-387511-883.  In AB/164, the bank statement confirms that this bank account belongs to Intrend, instead of Foon Wan.  If Utami paid, she should fax the receipt to 8133 0032 as a proof.  If we read AB/141, 8133 0032 is the fax number of Intrend, but not of Foon Wan.  Likewise, AB/141 also shows Intrend’s business address and telephone number of its Central office that tally with the Loan Repayment Note.

13.Further, according to the Loan Assignment Agreement, Foon Wan purchased the Loan (and other overdue loans) and should pay Intrend 75% of all the loans on the last day of the month by cash or by cheque (AB/131).  However, according to the Loan Repayment Note, Utami was required to pay the full sum to Intrend’s bank account directly.

14.I also accept on 6 March 2015, Law received another loan repayment note (the “2^nd Loan Repayment Note”) dated 3 March 2015, inter alia, that (AB/111 – 112):

Contact Mr Hung

5463-1236 ǁ 5463 1237

追收欠款

聯絡  洪先生

Pay Money Back!!

Hubungi Mr Hung at

5463-1236 ǁ 5463 1237

債仔姓名 (Borrower): UTAMI

身份証號碼 (HKID#):WX018030 (9)

總額 (Amount):   $3386.0-

03rd March 2015

15.When we compare the 2^nd Loan Repayment Note with the first one, we can find the contact person now becomes Mr Hung (“Hung”) with his contact numbers; the repayment amount is now increased to $3,386.  However, there is no update for the repayment method or the repayment account as mentioned in the original Loan Repayment Note, which means repayment still has to be deposited into Intrend’s bank account.

16.I conclude that the Debtors Collectors, both Wong and Hung, were in fact acting as agents for Intrend, but not Foon Wan, accordingly Intrend is liable for their action.

The harassment and intimidation

17.Law calls no witness other than herself.  I fully accept her evidence that she has been harassed and intimidated by the Debt Collectors.

18.I accept:

a. Utami was Law’s foreign domestic helper between 19 May 2013 and 7 March 2015.  Law used to live peacefully with her mother, at the age over 90, and Utami, at her residence address at Barker Road, the Peak, Hong Kong.  Utami owed the Loan to Intrend under the Loan Contract, at the sum of $3,120 as at 24 February 2015, then the Loan increased to $3,386 as at 3 March 2015.

b. At about 12:32 p.m. on 3 March 2015, while Law was working at her office, a person left a message at her mobile mentioned, inter alia, “財務公司 52913775”.  Then Law called the number.  The other side identified himself as Wong who worked for Intrend, and demanded Law to cause Utami to repay the Loan.  Over the phone, Wong used foul language shouted at Law continuously. Law said Utami stole some of her letters with her personal data thereon.  Wong threatened Law that he could bombard her with calls that she had to stop using her current mobile service until she repay the Loan or caused Utami to repay the same.  Law expressly told Wong that his calls would not be welcomed.  Wong kept on yelling foul language to Law who then hung up the phone.  At about 1:18p.m., Wong called Law and yelled foul language to her again, Law then hung up the phone.  About 1 minute later, Wong called again and intimidated Law expressly that he would continue to make nuisance calls to her until the Loan was settled or Law terminated Utami’s employment.  On the same day, Law received at least 12 phone calls between 1:22 p.m. to 1:29 p.m. in hidden number.  In order to avoid those nuisance calls, Law had to divert all her phone calls to paging service.  Wong also left message to Law’s phone that:  財務公司:   請盡快還錢

c. Law then confirmed with Utami that she had borrowed money form Intrend and had stolen Law’s letters with her personal data to give to Intrend when Utami was raising the Loan.  Utami also provided a copy of the Loan Repayment Note to Law.

d. Law then immediately instructed Mr David Tang (“Tang”) of FWNL to handle this matter.  Tang then contacted Wong, confirmed Wong was a debt collector of Intrend, and warned Wong not to intimidate, harass or conduct any nuisance to Law.  FWNL also faxed and posted a letter to Intrend that it should stop causing any intimidation, harassment or nuisance act to Law (AB/121, 122) and Intrend made no reply. 

e. However, shortly after the said letter was faxed to Intrend, Law started receiving nuisance message like 伍律師:  28697531 or 伍律師:  我現在被你害死.  Law contacted Tang and confirmed that Mr Ng was not involved in this case and did not call her; and FWNL’s office was also bombarded by phone calls.  The intimidation, harassment and nuisance calls and messages continued even after office hours, including: 伍律師:  請立刻致電我/ 世紀殯儀館:  你媽媽等緊你/ 李先生:  你媽媽入左瑪麗醫院深切治療部, 請盡快到醫院 etc.  Those messages eventually alarmed Law’s paging service provider and upon her confirmation at about 7:30p.m., her paging service provider began to filter out those doubtful messages.

f. On 4 March 2015, FWNL sent another letter to Intrend’s office at Causeway Bay by fax and by post, to complain Wong’s action and warned again about the illegal consequence of his action.  Intrend made no response to it.  Wong’s messages continued, including 陳先生:  你媽媽現在瑪麗醫院深切治療部, 請快點去見她最後一面/ 兒子:  我好驚, 好多收數佬來了屋企. 

g. Since the evening of 3 March 2015, Wong’s message concerned the safety of Law’s family that intensified her distress and anxiety. 

h. On 5 March 2015, Law received a letter addressed to her residential address together with a pile of spirit money (溪錢) with the words “LAW LAI KWAN 包庇工人 後果自付” and:

i. a copy of the DH Contract with Law’s personal data stated thereon with the words “包庇工人 後果自付!” written thereon;

ii. a copy of HKT Bill dated 15 December 2014 with Law’s personal data stated thereon and the words “包庇工人 後果自付!” written thereon;

iii. a copy of Law’s Hang Seng Credit Card Statement, dated 7 November 2014 with her personal data thereon and words “包庇工人再不還錢更多資料全大廈住戶各單位每人一份!  YouTube 全世界分享” written thereon;

iv. a copy of HSBC letter dated 16 January 2015 with Law’s personal data stated thereon and the words “YouTube 全世界分享” written thereon.

i. Law has never given those documents to Wong or Intrend or consented Utami to pass the same to them.

j. On 6 March 2015, Law made a report to the police.  On the same date, she received the 2^nd Loan Repayment Note dated 3 March 2015 to demand her to made payment; the contact person was Hung.  Law terminated Utami on 7 March 2015 and paid her one month salary of $3,920 as wages in lieu of one month’s notice. 

k. On 9 March 2015, Wong still made phone calls and shouted foul language to whoever picked up the phone.  Law taped one of such phone calls.  On 31 March 2015, Wong still sent Law message that “瑪麗醫院:  你有屋企人入左急症 請覆 23887214”

19.As Chinese, we all know that spirit money is to be used in the underworld; which relates to death, physical torture or other horrible or unpleasant experience. The Debt Collectors simply wanted Law to associate such feelings when she received the spirit money with her name and the words “包庇工人 後果自付” on it.

20.When the Debtor Collectors sent the documents with Law’s personal data to her, of cause, they wanted to show her they had such documents in their hands. Further, they also threatened her that they would disclose her personal information to the whole building or even the whole world, for they wrote “包庇工人再不還錢更多資料全大廈住戶各單位每人一份!  YouTube 全世界分享”.

21.The Debt Collectors sent messages like “陳先生:  你媽媽現在瑪麗醫院深切治療部, 請快點去見她最後一面/ 兒子:  我好驚, 好多收數佬來了屋企” or “後果自付”.  These messages related to the physical well-being of Law’s elderly mother, her son and herself.

22.Finally, it is the duration, frequency and the manner of the message bombardment. According to Law, she received the first message on 3 March 2015, Wong used foul language to shout at her over the phone continuously.  Then she received so many phone calls that she had to divert all of them to paging service.  She then instructed her solicitors, FWNL, to handle this matter.  Then, both Law and FWNL received phone calls and messages even after office hours.  Such situation lasted until 9 March 2015. On 31 March 2015, Law still received message form Wong that “瑪麗醫院:  你有屋企人入左急症 請覆 23887214”.

23.The message bombardment lasted from 3 to 31 March 2015, for almost a month.  In this period, a lot of phone calls and messages were sent to Law and FWNL. Those messages were so alarming that eventually Law’s paging service provider had to filter out those doubtful messages.

24.FWNL were also bombarded.  No doubt, by bombarding Law’s lawyers, the Debt Collectors intended to show that it would be no use to engage lawyers; that they did not want to resolve the issues by legal method; that they were not bound by our legal system and that they could not be reasoned with.  It also shows the Debt Collectors acted indifferently and simply did not care if innocent parties were affected.

25.Those messages include “陳先生:  你媽媽現在瑪麗醫院深切治療部, 請快點去見她最後一面/ 兒子:  我好驚, 好多收數佬來了屋企” or “後果自付”, obviously, the Debt Collectors knew Law lived with her elderly mother and had a son.

26.Putting all the evidence together, I confirm that Law, a senior civil servant who originally lived peacefully with her elderly mother and her son studying aboard; suffered from distress, mental disturbance, humiliation, fear, anxiety and injury to feelings by the Debt Collectors’ repetitive abusive phone calls, false messages and threatening letters, while they were acting as agents of Intrend.

The legal principles

27.In Lin Man Yuan v. Kin Ming Holdings International Ltd and Another HCA216/2008, Hon Mr Justice Lok rules that:

“206. There is some dispute between the parties as to: (i) whether Mr Kho has established all the ingredients of the tort of intimidation; and (ii) whether the tort of harassment exists in common law. I will deal with these issues in turn.

207. There are 3 elements for a claim based on the tort of intimidation:

(i) unlawful threat;

(ii) intention to cause harm to the claimant with the threat; and

(iii) damage to the claimant.

208. Based on Mr Kho’s evidence, I accept that he has established all these elements of the tort. The agents of Madam Lin and Mr Huang Rui-fu had made unlawful threats to Mr Kho, meaning to harm Mr Kho and his family members. There was certainly intention to cause harm to Mr Kho with such threats. As Mr Kho had suffered mental distress as a result of the threats, all the 3 elements of the tort are present.

209. However, Mr Fung submits that there is an additional ingredient of the tort of intimidation that the person under threat must yield to the demand of the tortfeasor. In support of such contention, Mr Fung relies on the following passage in Clerk and Lindsell:

‘In the tort of intimidation, ‘it is essential to the cause of action that the person threatened should comply with the demand’. If A says to B: ‘I will hit you unless you give me £5’, and B resisted saying: “you can do your worst. I am not going to pay you £5’, at that point B has no cause of action for damages.’

210. Further, Mr Fung relies on the dicta of Lord Denning in Morgan v Fry and Stratford v Lindley in supporting such additional element of the tort.

211. In my judgment, these authorities show no more than the proposition that damage to the claimant is a necessary ingredient of the tort. In some of the economic tort cases involving the making of unlawful threats, for example in the trade union cases like Morgan v Fry and Stratford v Lindley, if the claimant does not yield to the demand, that particular claimant has actually suffered no damage which would be a necessary ingredient of the tort. In Stratford v Lindley, the defendant, being the trade union, was being sued by the plaintiff, a company that carried on the business of letting out barges on hire and as repairers of vessels, for the tort of intimidation by the defendant asking its trade union members not to continue to hire barges from the plaintiff. In such circumstances, the plaintiff obviously would not have suffered any loss unless the union members or its customers yielded to the defendant’s demand. In that particular context, Lord Denning observed that the party threatened must comply with the demand rather than risk the treat being carried into execution, in which case that the party damnified can sue for damages.

212. However, loss may be suffered by the mere infliction of a treat. As long as damage is caused, an act of intimidation may be actionable regardless of the yielding to the demand. In Rookes v Barnard, Lord Evershed said the following:

‘I take the case of A, engaged in some profession or business. I assume that B, from motives of intense personal dislike of A, uses threats of personal violence to A of real coercive force intended (and effective) to interfere with A’s business. If, as a result of B’s threats, A is compelled to abandon his business or profession he will, according to the view of the Court of Appeal as well as your Lordships, have a cause of action against B and such cause of action will be founded upon the tort of intimidation … … But clearly the damage to A might not be so confined – he might well, as a consequence of B’s intimidation, suffer in many ways including health, and if he did, then, as I conceive, his cause of action against B would be founded on the tort of intimidation and would not be confined, by reference to the damage suffered, to interference with his business.’

213. If Mr Fung’s proposition is right, in all debt-collector cases, in order to be actable under the tort of intimidation, the debt-collector must successfully have collected the debt before an action is maintainable. This simply cannot be right. In Chang Ming Fang Jacqueline v Zhang Zi Qiang, the defendant had a bad gambling habit and he kept on making unlawful threats to the plaintiff for money. The plaintiff did not yield to the defendant’s demand but she suffered serious distress as a result. Mr Recorder A Chan, SC (as he then was) concluded that the acts of the defendant clearly constituted assaults and intimidations. In Wong Wai Hing v Hui Wei Lee, the debt-collector did not successfully recover the purported debt which the defendant claimed the plaintiff owed her, and yet the court held that the defendant was liable for assault and intimidation caused by the defendant’s debt-collector.

214. Hence, Mr Kho has made out a case of intimidation.

215. The second issue relating to liability under the Counterclaim is whether the tort of harassment exists in common law. In view of my decision on tort of intimidation, this particular issue now becomes academic. However, since counsel have addressed me extensively on the issue, I feel obliged to give my view on such question of law.

216. There are conflicting decisions as to whether such tort exists:

(i) Lau Tat Wai v Yip Lai Kuen Joey, followed by DHCJ E Fung SC in Shen Xing v Li Jun, confirming that the tort of harassment exists under the law of Hong Kong;

(ii) Pong Seong Teresa & Ors v Chan Norman, in which DHJC Linda Chan SC held that no such tort exists under the law of Hong Kong;

(iii) at the Court of Appeal level, 朱祖永訴香港警務處, Yuen JA held that there is no tort of harassment under the common law; whereas in the later decision of Wong Tai Wai David v The Hong Kong SAR Government, A Cheung J (as he then was) and with whom Yuen JA agreed, observed that it is quite impossible to say that, given the present state of the law and its possible development in Hong Kong, the tort of harassment is unknown to the law as a cause of action.

217. The question as to whether the tort of harassment exists in common law has haunted the courts for many years. The position in England has been governed by statute since the enactment of the Protection from Harassment Act in 1977. In Hong Kong, there is no equivalent or similar legislation outside the spheres of sexual and disability harassment. The position is therefore governed by common law.

218. If necessary, I would find that the tort of harassment exists as part of the common law in Hong Kong and Madam Lin and Mr Huang Rui-fu are liable to Mr Kho for the commission of such tort.

219. As I see it, DHCJ Linda Chan SC considered herself bound by the decision of the Court of Appeal in朱祖永, and that was why the learned judge ruled that no such tort exists in common law. Despite the clear statement in 朱祖永 that such tort does not exist, as observed by DHCJ Linda Chan SC in Pong Seong Teresa and A Cheung J in Wong Tai Wai David, there were conflicting decisions in England and it is arguable that a tort of harassment per se, or as part of the tort of intentional (or reckless) infliction of injury (physical or mental), exists at common law. In Wong Tai Wai David, A Cheung J did not rule out the existence of such tort. As the Court of Appeal has not shut the door for the development of the tort of harassment, the existence of such tort remains an open question. In particular, Yuen JA was sitting together A Cheung J in Wong Tai Wai David and they delivered a unanimous decision in refusing to strike out the plaintiff’s claim on harassment.

220. As to whether such tort should exist in common law, I agree with the reasoning of A Chan J in Lau Tat Wai that the tort of harassment should exist ‘to protect the people of Hong Kong who live in a small place and in a world where technological advances occur in leaps and bounds’. In particular, intrusion on privacy is difficult to prevent and it is hard for the victim to escape harassment. Further, a claimant in a claim for harassment has to establish the various ingredients of the tort as mentioned in the next paragraph, and I cannot see the reason as to why a person, who knows that his harassment would cause worry, emotional distress or annoyance to another person, or reckless as to whether the victim would suffer injury as a result of the harassment, should not be liable for damages caused to the victim as a result. So long as there is intention to inflict harm on the victim, there should be no difference between damages caused by a physical act of violence or a series of harassing conducts. Hence, if there is a need for Kin Ming or Mr Kho to rely on such cause of action, I accept that the tort of harassment exists as part of the common law in Hong Kong.

221. In Lau Tat Wai, A Chan J set out the principles and the elements of the tort of harassment as follows:

(i) “harassment” means a course of conduct by a person, whether by words or action, directly or through third parties, sufficiently repetitive in nature as would cause, and which he ought reasonably to know would cause worry, emotional distress or annoyance to another person;

(ii) the mental element required is reckless as to whether the victim would suffer injury from the defendant’s conduct; and

(iii) the plaintiff must have suffered damage as a result of the harassment; anxiety would suffice, though the defendant must take the victim as he finds him; financial loss is also recoverable.

222.Again I find that these elements exist in the present case.  There were repeated and persistent telephone calls threatening to do harm to Mr Kho and his family members, and also repeated and persistent unsolicited visits by the agents to Mr Kho’s office with intimidating and threatening demeanour.  These conducts were sufficiently repetitive in nature, which Madam Lin and Mr Huang Rui-fu should have known would cause worry, emotional distress and annoyance to Mr Kho.  As a result of such harassment, Mr Kho had suffered mental distress.  Hence, Madam Lin and Mr Huang Rui-fu are also liable for damages for harassing Mr Kho.”

28.I fully adopt and rely on Hon Mr Justice Lok’s reasoning respectfully.

29.Accordingly, I find Intrend should be liable for the loss and damage suffered by Law.

Contravention against the Personal Data (Privacy) Ordinance

30.In the Statement of Claim, §§37, Law claims:

“In breach of Personal Data (Privacy) Ordinance Cap.486 the Defendant unfairly and unlawfully collect the personal data of the Plaintiff (i.e. the Unlawful Obtained Personal Data) and passed them to its debt-collectors to threaten the Plaintiff in distributing, sending, emailing, transmitting or otherwise publishing Unlawful Obtained Personal Data to the neighbour of the Plaintiff or the whole world through Youtube.”

31.Mr Bok, counsel for Law, does not specify in the Statement of Claim which section of the Ordinance that he relies on.  Further, there is no evidence to show the Debt Collectors or Intrend had ever distributed her personal data to any third party.

32.In the final submission, Mr Bok mentions he relies on Sections 4, 65 and 66 of the Ordinance.  However, as I have already ruled that the Debt Collectors were acting as agents of Intrend, and Law fails to prove there is any disclosure of her personal data to any third party, I do not think she can rely on those sections.

The damages

33.Law claims the following damages:

1.	1 month wages in lieu of notice for early termination of Utami for providing Law’s personal data to the Debt Collectors when raising the Loan	$3,920
2.	Legal costs for issuing 3 cease-and-decease letters from FWNL and consultation	$12,000
3.	Compensation for mental disturbance, humiliation, damage to dignity and fear	$300,000
4.	Injury to feelings for unlawful collection and using of Law’s personal data	$120,000

and aggravated and exemplary damages to be assessed.

34.For item 1, according to Law, as Utami admitted that she stole some of her letters for the purpose of raising the Loan from Intrend, so Law terminated the DH Contract at once by paying Utami $3,920 as one month wages in lieu of notice. I am of the view that Law would terminate Utami anyway once she found Utami had stolen her letters; and pursuant to S.9 of the Employment Ordinance (Cap.57), Law was quite entitled not to pay Utami wages in lieu of notice if Utami committed dishonesty act.  I disallow this item accordingly.

35.For item 2, the costs of issuing those letters should be covered by the legal costs of this case, I also disallow it.

36.Item 3 overlaps with aggravated damages.

37.In Lau Oi Kiu v. Man Chun Shing and another HCA1930/2012, the plaintiff, an old lady, suffered trespass, private nuisance and breach of statutory duty carried out by the defendants for about two months’ time, the court granted an award of $200,000 in 2015 after quantifying the shock and mental stress experienced by her, but no evidence that she had suffered any significant or diagnosable psychological or psychiatric problem as a result.

38.In Sheck Gee Qun v. Wong Wai Kuen and another HCA4455/2002, the court awarded $300,000 to the plaintiff in 2005 for the wrongs committed by the defendant’s agents or servants for 3 days, including nuisance calls and car tracking for 20 minutes.

39.In Wong Kwai Fun v. Li Fung HCA5810/1986, the defendant became horrified, distressed and depressed after the plaintiff and his agents assaulted and threated him, to collect a loan with an effective interest rate exceeding 400% per annum.  The defendant’s pride and dignity as a husband, father and uncle, and as a businessman and a person, were severely battered.  He felt a grave sense of guilt towards his family.  He attempted twice to take his own life. For 3 or 4 years, he had suffered insomnia, loss of appetite, loss of weight, and multiple bodily complaints such as dizziness and chest discomfort.  He was diagnosed to be suffering from reactive depression, and as late as March 1992, he still tended to be anxious and tense when faced with stresses especially in financial and family problems.  In 1994, the court awarded $200,000 as aggravated damages.

40.In view of the above authorities and the factual background of this case, I am of the view that $300,000 should be awarded to Law as item 3 and aggravated damages.

41.For item 4, as Law cannot prove her case under the Ordinance, I dismiss it.

42.Law also claims for exemplary damages. 

43.In Wong Kwai Fun (supra), Woo J. ruled in §§117 – 118 that:

“117. Aggravated damages are to compensate the victim for his sufferings in his feelings, dignity and pride, for his mental discomfort and distress, and they must be justifiable on the basis of compensation. Exemplary damages, on the other hand, are punitive in nature and are awarded to teach the culprit that "tort does not pay" and to deter him and others from similar conduct. See Clerk & Lindsell, ibid., paras. 5-36 and 5-37.

118. In Rookes v. Barnard [1964]A.C. 1129, 1226-7, Lord Devlin was of the opinion that apart from statutory authorisation, exemplary damages should only be awarded in 2 specific categories of cases. He said:

“...

Cases in the second category are those in which the defendant's conduct has been calculated by him to make a profit for himself which may well exceed the compensation payable to the plaintiff. ... Where a defendant with a cynical disregard for a plaintiff's rights has calculated that the money to be made out of his wrongdoing will probably exceed the damages at risk, it is necessary for the law to show that it cannot be broken with impunity. This category is not confined to moneymaking in the strict sense. It extends to cases in which the defendant is seeking to gain at the expense of the plaintiff some object--perhaps some property which he covets--which either he could not obtain at all or not obtain except at a price greater than he wants to put down. Exemplary damages can properly be awarded whenever it is necessary to teach the wrongdoer that tort does not pay.”

The court awarded $200,000 as exemplary damages.

44.In Lau Oi Kiu (supra), the court awarded $100,000 as exemplary damages and ruled that:

“119. … Awards of exemplary damages are governed by a principle of moderation and restraint; they are analogous to a criminal penalty so principles require that an award of exemplary damages should never exceed the minimum sum necessary to meet the purpose underlying such damages, that of punishing the defendant, showing that tort does not pay and deterring others, see Allan at §56.”

45.I am of the view that $200,000 should be awarded as exemplary damages.

Conclusion

46.I award $300,000 as aggravated damages and $200,000 as exemplary damages to Law; both with interest from the date of judgment at the judgment rate until payment.

47.I grant certificate for counsel.

48.I also made a costs order nisi that Intrend do pay Law costs of this action (including all costs reserved).  If there is no application to vary the costs order nisi within 14 days after this judgment is handed down, it shall become an order absolute.

49.I thank the assistance from both counsel.

Mr Bok Tin Yuen, instructed by Fung Wong Ng & Lam LLP Solicitors, for the plaintiff

Mr Lam Shun Chiu, instructed by Kwok, Ng & Chan, for the defendant