Cheung Sau Chu Rosanna v. Bank of Communications (Hong Kong) Ltd

HCA 2185/2019

[2021] HKCFI 3474

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 2185 OF 2019

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BETWEEN

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Before:  Madam Recorder Rachel Lam, SC in Chambers

Date of Hearing:  16 November 2021

Date of Reasons for Decision:  24 November 2021

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REASONS FOR DECISION

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1.This appeal concerns a case management decision made by Master Hui on 19 July 2021. The parties came before me on 16 November 2021. After hearing both sides, I declined the appeal. These are my reasons for decision.

2.This action was commenced by the Plaintiff (“Ms Cheung”)  on 26 November 2019 against the Defendant (“the Bank”). In essence, she claims that the Bank is inter alia liable to refund a sum of $759,656.21 Canadian dollars (“the Sum”)  to her with interest. She also seeks damages. 

3.In the Statement of Claim dated 7 December 2020 (drafted by Ms Cheung herself), she avers that she had given instructions to the bank on 16 October 2019 to remit the Sum by telegraphic transfer to a bank account with OCBC Wing Hang Bank Limited (“OCBC”). The following day, Ms Cheung says that she gave instructions to cancel the remittance. She indicates that she filled in a form for refund of the remittance. In the Statement of Claim, she goes on to make claims of fraudulent misrepresentation, fraud and deception, amongst other matters. Her primary contention is that the Bank is liable to return the Sum to her. For the purposes of the present decision it is unnecessary to go into further particulars.

4.The Bank denies liability. In essence, its case is that the remittance was effected and that OCBC had informed the Bank on 31 October 2019 that OCBC had relayed the refund request to its client (i.e. Ms Cheung)  and that they were still waiting for the debit authorisation. The Bank’s position is that (1)  they had carried out Ms Cheung’s instructions in accordance with the general terms and conditions which governs the banking relationship, (2)  to the best of their knowledge the sum remains with OCBC, (3)  they understood the refund would be processed upon Ms Cheung’s approval of such debit authorisation, and (4)  she has not suffered any loss. They deny the claims of misrepresentation, fraud or deception.

5.On 9 May 2021, the Plaintiff took out a Case Management Summons (“CMS”). Parties filed their timetabling questionnaires accordingly.

6.On 29 June 2021, the Bank took out a summons for striking out of Ms Cheung’s claim in its entirety (“Striking Out Summons”).

7.On 19 July 2021, Master Hui heard the parties on the CMS. In view of the Striking Out Summons, he made orders for further steps to be taken in relation to the striking out application, and then also ordered that pending the determination of the said Striking Out Summons, all proceedings against the Bank be stayed. A further direction was given that the result of the striking out application be reported to the Court within 14 days after disposal of the same, together with proposed directions on paper thereafter.

8.By Notice of Appeal dated 2 August 2021, Ms Cheung appeals those parts of the order whereby the Striking Out Summons is to be fixed for substantive hearing, and the action itself is stayed pending the hearing thereof. She further asks the Court to give directions for the usual exchange and inspection of documents, and filing of witness statements. 

9.An appeal from a master’s decision proceeds by way of rehearing.

10.By its submissions, the Bank:

(1)  Draws attention to §25/1A/14 of Hong Kong Civil Procedure 2022, which provides that insofar as case management decisions are concerned, it must be shown that the Judge (in this case, the Master)  has gone clearly wrong and made orders which will involve an injustice or an inability for the trial court to carry out its task, or alternatively that the Judge erred in principle or the order was irrational having regard to the issues that had to be resolved.

(2)  References Practice Direction 5.2, which makes clear that case management decisions are within the discretion of the master or the judge and are generally not susceptible to appeal.

(3)  Also references the case of Atlantic Link Ltd v The Incorporated Owners of Yen Ying Building & Ors [2019] 5 HKLRD 703 at §§18-20, where the District Court echoed these principles. (The decision is not binding at this level of Court, of course, but the soundness of the reasoning is nonetheless noted).

11.As to the above, I further note that §25/1A/14 in Hong Kong Civil Procedure 2022 concludes with the observation that “It seems that a judge may exercise the case management discretion afresh in the usual way on appeal from a Master (O.58, r.1)”. For the avoidance of doubt, I will expressly state here that I have exercised this discretion afresh, after having reviewed all the relevant circumstances of the case.

12.In the present case, I consider a stay pending the determination of the Striking Out application to be a reasonable course of action.

(1)  If the striking out succeeds, then there would be no need for further steps to be taken. If it fails, then parties can proceed with the action per usual. There would be a wastage of costs incurred if further steps are taken now, but the action were eventually struck out.

(2)  In terms of timing, I also note that Ms Cheung had been content to wait a considerable length of time between filing of the Writ on 26 November 2019 and service of the same; and subsequently the Statement of Claim on 7 December 2020. The taking out of the Case Management Summons on 9 May 2021 thus took place over one year from the issuance of the original writ. At the hearing I made inquiries with Ms Cheung as to why this was the case. Her explanations, insofar as could be discerned, seemed to be that she had been waiting for the Bank to agree to pay her back. On the whole, it does not seem that Ms Cheung was particularly keen on progressing matters urgently.

(3)  The Striking Out Summons is due to be heard on 14 January 2022, which is just under two months’ away. 

(4)  On balance, therefore, I consider it appropriate to stay the proceedings pending the hearing of the Striking Out Summons.

13.For the reasons above the appeal was dismissed, with costs to be summarily assessed. The Bank’s Statement of Costs was handed up by those acting for the Bank at the hearing, and directions have been given for Ms Cheung to make any further submissions on this by 7 December 2021.

The plaintiff appearing in person

Mr Steven Yuen, of Eversheds Sutherland, for the defendant