To Kit Sheung, The Sole Administrator of the Estate of To Shak also known as To Shek Wan and also known as Shick Doo, Deceased and Another v. Chan Shook Fung Nancy and Another
Read the full judgment text of HCA 2340/2019 on BabelCite. This High Court CFI judgment was delivered on 27 January 2023.
1. Section 21 of the Evidence Ordinance, Cap 8 of the Laws of Hong Kong SAR is invoked by the Defendants in this application. It reads as follows:
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HCA 2340/2019 [2023] HKCFI 134 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE ACTION NO 2340 OF 2019 ________________________
________________________ Before: Deputy High Court Judge Kenneth Wong in Chambers (On paper disposal) Closing Date for Written Submissions: 29 April 2022 Date of Decision: 27 January 2023 _________________ DECISION _________________ A. The Defendants’ Application 1.Section 21 of the Evidence Ordinance, Cap 8 of the Laws of Hong Kong SAR is invoked by the Defendants in this application. It reads as follows:
2.By their summons issued on 22 February 2022 (the “Summons”), the Defendants ask for an order that Hang Seng Bank Limited (the “Bank”) do produce to their solicitors copies of (a) its record of the account opening form signed by the 2nd Plaintiff and Madam Chan To Yuk Lin, deceased[1] (the “Deceased”) for their joint account No. 285-7-095950 with the Bank (the “Joint Account”) and (b) entries in its record, corresponding to the following entries in the customers’ bank book for the Joint Account:
(collectively, the “documents sought”) It should be noted that according to the Grant of Probate issued by the Court of First Instance on 28 April 2016 (Grant No. HCAG005724/2016), the Deceased died on 21 February 2015. As can be seen from the above table, all of the documents sought are documents or records of transactions which came into place before the death of the Deceased. B. The Action 3.In a nutshell, in this action, the Plaintiffs seek (1) an account by the Defendants as to the Deceased’s dealings with the estate of Mr To Shak, the late father of the Deceased and the Plaintiffs, and in relation to certain landed properties of the late father, the proceeds of sale and resumption money received by the Deceased and rental income and (2) an order for payment of all sums found due and payable by the Defendants to the Plaintiffs. 4.Allegedly, the proceeds of sale, resumption money and rental income in relation to some of the landed properties under complaint were deposited into certain bank accounts held under the names of the 2nd Plaintiff and the Deceased, one of which is the Joint Account. C. The Plaintiffs’ Position 5.The Plaintiffs do not dispute the relevancy of the documents sought and do not contest the application. In fact, they have been cooperative in assisting the Defendants in obtaining the documents sought from the Bank[2]. As early as in 30 August 2021, the 2nd Plaintiff, who resides in Belgium, has signed[3] an authorization letter confirming his consent for the Bank to provide the Joint Account’s information to the Defendants’ solicitors and authorize the Defendants’ solicitors to collect all relevant documents and account information from the Bank (the “2nd Plaintiff’s authorization letter”). D. The Bank’s Position 6.The resistance came from the Bank. 7.However, the Bank does not take any issue that the documents sought are not necessary or relevant to the purposes of the present proceedings under section 21 of the Evidence Ordinance. The only point that they appear to take is that the signature of the 2nd Plaintiff supplied to them is different from the 2nd Plaintiff’s specimen signature in their record. 8.The following is a chronology of the communication between the Defendants’ solicitors and the Bank:
9.I should add that the Bank’s position is in sharp contrast with the position taken by The Hongkong and Shanghai Banking Corporation Limited (“HSBC”) in respect of similar documents sought under another joint account held by the Deceased and the 2nd Plaintiff with HSBC. In response to the Defendants’ solicitors’ requests for documents, on 2 April 2020, HSBC by letter stated as follows:
10.Upon provision of the documents and payment of service charges that it required by the Defendants’ solicitors, HSBC provided the information and documents requested without any hindrance and in a very cooperative and helpful manner. E. Discussion 11.It is apparently clear that the documents sought are relevant to the Plaintiffs’ claim as to the dealings with those proceeds of sale, resumption money and rental income in relation to those landed properties in dispute which had been deposited into the Joint Account. Section 21 of the Evidence Ordinance is applicable. The Plaintiffs do not oppose this application. The 2nd Plaintiff has indeed assisted the Defendants to obtain the documents sought by producing a signed consent and authorization letter to the Bank. But for the Bank’s refusal, the Defendants should have obtained the documents sought without need to resort to incurring costs to take out the Summons. 12.The Bank’s attitude was uncooperative and unhelpful, and the arguments that it raised are obviously wrong. This has caused delay, and more devastatingly, the irretrievability of the documents sought in paragraph 1(b) of the Summons which was destructed. 13.First, there is no question of confidentiality as alleged by the Bank. The Deceased was one of the holder of the Joint Account with the 2nd Plaintiff. When she lived, of course she was entitled to receive all information of the Joint Account. Upon her passing away, as rightly pointed out by HSBC in its letter dated 2 April 2020 (referred to in paragraph 9 above)[4], by the terms of the Joint Account, the balances of the Joint Account would have vested in the surviving account holder, i.e. the 2nd Plaintiff. From this point onward, the Deceased (or her estate) was no longer the Bank’s customer in relation to the Joint Account. Therefore, the Defendants would not be entitled to obtain the account information after the date of the death of the Deceased. However, at any time before the death of the Deceased, the Deceased was the Bank’s customer in relation to the Joint Account. As the executrix of the Deceased’s estate, the Defendants, like the Deceased herself when she lived, are entitled to all information of the Joint Account prior to her death. As mentioned in paragraph 2 above, the documents sought are documents or records of transactions which came into place before the death of the Deceased. Therefore, the Defendants are entitled to the documents sought as of right. 14.Second, the Bank’s concern of “confidentiality” is all the more misplaced, as the only so-called “third party” involved is the 2nd Plaintiff, being the other holder of the Joint Account, and his solicitors on the Court’s record have already confirmed his agreement of disclosure of the documents sought. 15.Third, the Defendants’ solicitors first wrote to the Bank on 3 March 2020 requesting the documents sought. Unlike HSBC, which had expressly stated in its first reply that customer account information / statement beyond 7-year period may not be provided, the Bank never made such indication to the Defendants’ solicitors. Particularly when it bluntly rejected the Defendants’ solicitors’ request, it never saw fit to indicate that the 7-year deadline was imminent in relation to the documents sought. It was only, after all the blunt refusals, until 10 March 2022, and after service of the Summons on them, that they informed the Defendants’ solicitors for first time that since the entries in the Bank's record, corresponding to entries in the customers' bank book for the Joint Account as set out in the Schedule to the Summons as stipulated in paragraph 1 (b) of the Summons are beyond the retention period of 7 years of the Bank, these records have already been destroyed. With all due respect to the Bank, this attitude towards its customer is most unhelpful, to say the least. 16.Fourth, the unforthcoming conduct of the Bank is further made even more prominent by the fact that when the request was first made to the Bank on 3 March 2020, the entries corresponding to items (v)-(xi) in the Schedule to the Summons (i.e. entries between 8 June 2013 to 30 September 2014) was still within the 7-year period. If the Bank did not raise, fallaciously, the “confidentiality” argument, or if the Bank saw the good sense of keeping the documents pending resolution of the (fallacious as it was) “confidentiality” issue or the “signature” issue thereby arising, or if it, more straightforwardly, told the Defendants’ solicitors that the 7-year period was imminently approaching and it would destroy the documents absent a court order, the documents sought which now the Court is preparing to grant production under section 21 of the Evidence Ordinance would not have been destroyed or this application would not have been necessitated. 17.Fifth, in paragraph 44 of his written submissions and paragraphs 5-13 of his written submissions in reply, the Defendants’ counsel raised the concern as to whether the paper documents, albeit destroyed, would have also been stored electronically or by microfilm; and if so their whereabouts. This question, in my view, is not unreasonable, given that the information is relevant to the issues in question in the Action. The Bank has been taciturn. It did not say a word in response. 18.For the above reasons, I agree with the Defendants’ counsel that the Bank owes the Defendants a more detailed explanation as to the status of the documents sought in paragraph 1(b) of the Summons. The Bank should produce an affirmation as alluded to in paragraphs 5 and 12 of the Defendants’ counsel’s written submissions in reply. F. Production Order 19.I therefore make the following order under section 21 of the Evidence Ordinance:
G. Costs Order 20.Section 21(3) of the Evidence Ordinance provides that the Court shall have the discretion to order the costs of the application to be paid by the Bank, where the application has been occasioned by default or delay on the part of the Bank. 21.For the reasons set out in paragraphs 11-17 above, this Court is of the view that the application has been occasioned by the default and delay of the Bank. Had the Bank not erroneously taken the “confidentiality” argument and provided the documents sought or acted otherwise in a cooperative and constructive manner, this application would not have been necessary, and the documents sought in paragraph 1(b) of the Summons would not have become irretrievable as belatedly submitted by the Bank in its letter to the Court dated 22 April 2022. 22.In the same letter, the Bank submitted that as it is not a party to the proceedings and the Summons is not taken out by it, it should not bear the costs of the application. This submission is misconceived. Section 21(4) of the Evidence Ordinance has stipulated that any order against a bank under section 21 may be enforced as if the bank were a party to the proceeding. Since I have been satisfied that the present application has been occasioned by default as well as delay on the part of the Bank, the Court is justified and entitled to exercise its discretion under section 21(3) to make costs order against the Bank. 23.I therefore make an order that the Bank do pay the Defendants forthwith costs of the Summons, to be taxed if not agreed.
Written Submission by Mr. Wallace CHEUNG, instructed by Choi & Liu, for the Defendants No Written Submission was lodged by the 1st and 2nd Plaintiffs Written Submission by Hang Seng Bank Limited, in person [1] The Defendants are the executrices of the estate of the Deceased and are sued in this capacity. [2] See the Bank’s position described in section D below. [3] per the Bank’s request as referred to in paragraph 8(2) below. [4] This is on the assumption that the terms of the HSBC’s joint account have the same effect as the terms of the Joint Account held with the Bank. It is also regrettable that the Bank has never explained this clearly or made any reference of the relevant terms of the Joint Account, to the Defendants’ solicitors in their communication. | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
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