Shan Ahmed v. Mox Bank Ltd and Another

DCCJ 7268/2024

[2025] HKDC 1743

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 7268 OF 2024

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DECISION

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A.  Introduction

1.This is P’s appeal against Master Bianca Yu’s decision dated 25 July 2025 (the “Decision”) ordering, inter alia, that the Statement of Claim indorsed on the Writ of Summons filed on 9 December 2024 against D2 be struck out on the ground that the Statement of Claim discloses no reasonable cause of action and/or is frivolous or vexatious.

2.In these proceedings, P claims that in around March 2023, a fraudster used his personal data to open a bank account with D1 in P’s name. The fraudster obtained a credit card and bank loans with the said bank account.

3.In August 2023 and June 2024, P lodged complaints about the alleged fraud with the North Point Police Station and Tseung Kwan O Police Station respectively.

4.On 27 June 2024, P attended an identity parade conducted by the police and identified the alleged fraudster, who was subsequently arrested by the police.

5.P claimed against D2 for its alleged severe inaction, slow and inefficient investigation and unserious approach towards the alleged fraud and fraudster, causing trouble, loss, acute hardship, and physical, mental, financial and emotional loss and stress to P. P sought damages of $3 million from D2.

6.On 20 January 2025, D2 applied to strike out the parts of the Statement of Claim concerning it and for the dismissal of the action as against it. On 25 July 2025, the learned master made the Decision, striking out the parts of the Statement of Claim concerning D2 and dismissing P’s claim against D2.

7.On 11 August 2025, P lodged an appeal against the Decision. On 1 September 2025, P wrote to the Court and stated that he would not be able to attend the appeal hearing but urged the Court to continue hearing the appeal in his absence.

8.At today’s hearing, D2 invited the Court to proceed with hearing the appeal in P’s absence pursuant to Order 32 rule 5 of the Rules of the District Court (Cap 336H) (“RDC”).

9.Having considered the nature of the application, I find it appropriate and expedient to proceed with the hearing in P’s absence.

B.  Applicable legal principles

10.The relevant legal principles applicable to a striking out application are well established. It is only in plain and obvious cases that the court should strike out a claim. To succeed in a striking out application, the claim must be obviously unsustainable, the pleadings unarguably bad, and it must be impossible, not just improbable, for the claim to succeed. If the court does not think the matter to be clear beyond doubt, or if it fails to be satisfied that there is no reasonable cause of action or that the proceedings are frivolous or vexatious, then there should be no striking out. See, eg, Thapa Kamala v Tong Ming-Kay & ors [2021] HKCFI 2371, paragraphs 24-28.

11.In a striking out application relying on the ground that the statement of claim discloses no reasonable cause of action under Order 18 rule 19(1)(a) of RDC, no evidence is admissible under rule 19(2). The Court will simply assume the facts as pleaded in the statement of claim to be proved and determine, on that basis, whether the pleading discloses a reasonable cause of action: Lau Ming Lee v Secretary for Justice [2017] 5 HKC 214, paragraph 9.

12.In respect of the tort of negligent investigation, the Court of Appeal held in Liu Mei Huei v Government of the HKSAR [2016] 2 HKLRD 249, paragraphs 62-65 & 70 , that the police do not generally owe victims involved in criminal investigative work any civil duty of care. It is necessary for the claimant to show that the circumstances of the case were such that they owed him a duty of care under the common law by proving that: (1) the harm the claimant suffered was a reasonable consequence of the defendant’s negligence; (2) there existed between the claimant and the defendant a relation of sufficient proximity; and (3) it was fair, just and reasonable to impose the duty of care the claimant clams to have existed on the defendant. See also: Leung Chun Fu v Commissioner of Police [2025] HKCFI 2675, paragraphs 13-17.

C.  Analysis

13.In the present case, the Plaintiff complains about alleged severe inaction, slow and inefficient investigation and unserious approach on D2’s part. However, first, there is no plea of any duty of care allegedly owed to P by D2, not to mention the absence of any plea as to why it was fair, just and reasonable to impose any (unpleaded) duty of care on D2. Secondly, there is no mentioning of any negligence on the part of D2. Thirdly, there is no mentioning of how the above complaints against D2 had led to the alleged unparticularised damage suffered by P.

14.By reason of the above, the matters pleaded in the Statement of Claim simply could not give rise to any reasonable cause of action of negligence on the part of D2. The Statement of Claim should be struck out on this ground alone.

15.Further, the only substantive factual basis for P’s allegation that D2 had been slow and inefficient is that the alleged fraudster has not been brought to justice or put in jail. However, according to the letter sent on or around 27 August 2024 from the Commissioner of Police to P, an identity parade was conducted in P’s presence on 27 June 2024 and the alleged fraudster has been arrested by the police. Investigation by the police was also ongoing.

16.In the premises, I am of the view that P’s claim simply has no foundation, cannot possibly succeed, and is frivolous.

17.Finally, P stated that he could not afford to comply with the costs order made by Master Yu in the Decision. However, that is not a reason for overturning the costs order.

18.By reason of the above, I dismiss the appeal. Costs should follow the event, and I make an order that P do pay D2’s costs of the appeal, summarily assessed at $11,000.

The Plaintiff was not represented and did not appear

Mr Mike Yau of Department of Justice, for the 2^nd Defendant