Standard Chartered Bank (Hong Kong) Ltd v. Lewis Peter John

CAMP 93/2025, [2026] HKCA 505

On Appeal from [2025] HKDC 728

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 93 OF 2025

(ON AN INTENDED APPEAL FROM DCCJ NO 5479 OF 2021)

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BETWEEN

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J U D G M E N T

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Hon Au JA (giving the Judgment of the Court):

A. Introduction

1.This is the Defendant’s (“D”)  renewed application for leave to appeal out of time against the decision of HH Judge G Chow (“the Judge”)  given on 2 December 2024 ([2024] HKDC 2030)  (“the Decision”).

2.By the Decision, the Judge dismissed D’s appeal against the decision of Master Thomas Wong (“the Master”)  dated 16 August 2024 (“the Master’s Decision”), whereby the Master granted summary judgment with costs in favour of the Plaintiff (“P”)  and struck out D’s counterclaim.  On 6 May 2025, the Judge also refused D’s application for leave to appeal the Decision out of time ([2025] HKDC 728)  (“the Leave Decision”).

3.Having considered the papers and the submissions filed by the parties, we consider it appropriate to deal with the application on paper without an oral hearing pursuant to Order 59, rule 2A(5)  of the Rules of the High Court (Cap 4A)  (“the RHC”).

B.  Background

4.The detailed factual and procedural history have been set out in [1] - [33] of the Decision. We will only highlight the salient facts relevant for present purposes.

5.P is the issuing bank of D’s credit card (“the Credit Card”).

6.On 30 November 2021, P commenced this action to recover from D an outstanding balance of HK$1,600,948.25 (“the Sum”)  due under the Credit Card, together with interest and costs.

7.In defence, D claimed:

(1)  He was not bound by P’s Credit Card Terms;[1]

(2)  Despite P’s agreement during the discussions in November 2020 to the terms of an alleged Restructuring Plan (“the Alleged Restructuring Plan”)  to freeze the account and not to apply further interest, fees, penalties or charges, and D’s acceptance of the same, P withdrew its offer on 16 March 2021;[2]

(3)  Thereafter, after further discussions from April to June 2021, P offered a different repayment plan to D, and requested D to first make a “good faith payment” of HK$34,000 in June 2021.  However, before D was able to make the “good faith payment” or accept the new repayment plan, D discovered on 2 June 2021 that P had closed his business account, and refused to reopen the said business account.

(4)  D thus denied the Sum as claimed by P.[3]

8.D also counterclaimed for loss of income and damages against P for acting in bad faith, negligently and in breach of contract in withdrawing the Alleged Restructuring Plan and in failing to give him prior notice before closing his business account.[4]

9.On 4 December 2023, P applied for summary judgment against D and for striking out D’s counterclaim in the D&CC.

10.After hearing, by way of the Master’s Decision, the Master entered summary judgment against D and struck out D’s counterclaim.

11.On 30 August 2024, D appealed against the Master’s Decision.

C.  The Decision

12.The Judge dealt with D’s appeal on paper[5].  By the Decision, the Judge dismissed D’s appeal against the Master’s Decision, and granted summary judgment to P and struck out D’s counterclaim.

13.First, the Judge, in treating the appeal as a rehearing of the matter, found that D’s defences were not credible or believable for the following reasons:[6]

(1)  Being the holder of the Credit Card and having signed, activated and used it, and further having used P’s banking facilities, D’s assertion that he did not agree to be bound by the Credit Card Terms were not credible or believable.  D’s subsequent application for a debt restructuring plan also demonstrated his acknowledgment of the balance due under the Credit Card;[7]

(2)  Transcripts of the relevant telephone conversations between P and D demonstrated that:

(a)  P had told D in clear terms that interest and other charges and fees were accruing notwithstanding that he had applied for a debt restructuring plan (“DRP”);[8]

(b)  P had also made it clear to D that the alleged restructuring proposal in March 2021 had to be submitted to P for approval and must include a good faith payment otherwise P could not offer any DRP.  As P informed D on 16 March 2021 that the DRP application was declined, there was no concluded DRP (ie, the Alleged Restructuring Plan)  as claimed by D;[9]

(c)  There was nothing in D’s allegations in his affirmation that the telephone transcripts provided by P were selective and there was no full disclosure of all calls and documents including emails which would support D’s case.  This is so as there was no legal basis for P to disclose any documents in support of D’s defence and in any event, if D believed there were other relevant documents in P’s possession, D had not applied for specific discovery against P.[10]

14.Second, the Judge struck out D’s counterclaim as D had failed to properly plead the basis of his various claims.  D has also failed to condescend upon particulars as to how the lack of prior notice regarding the closure of his business account caused loss or damage to him or his business as alleged.[11]

15.On 13 January 2025, D applied for leave to appeal out of time the Decision before the Judge.  By the Leave Decision, the Judge dismissed the application as, although D’s 14 days’ delay was not significant[12], his intended grounds of appeal were utterly devoid of merit.

D.  This application

16.By a summons filed on 16 May 2025 (“the Summons”), P reapplied to this Court for leave to appeal out of time.  In the Summons and his Draft Grounds of Appeal, D claimed that the Judge had erred in law and fact based on six broad “grounds of appeal” as follows:

“a. The learned Judge erred in law and fact in dismissing my appeal and in granting summary judgment in favour of the Plaintiff;

b. The learned Judge failed to properly consider the evidence and submissions put forth by me, and failed to deal with or rule upon a substantial and crucial part of my appeal, thereby resulting in a miscarriage of justice;

c. The learned Judge’s decision to strike out my counterclaim was contrary to established legal principles and precedents;

d. The decision under appeal is unjust;

e. The case involves a point of law that requires further consideration by a higher court, and;

f.   There is a substantial question of law or fact, or both, that needs to be addressed.”

17.But as D acknowledges at paragraph 9 of the Draft Notice of Appeal, the grounds of appeal are fundamentally premised “on the non-disclosure of crucial evidence by P and the failure of the Learned Judge to consider this in her judgment, [which] has resulted in an unfair summary judgment and striking out of my counterclaim.”

18.In his written Amended Statement in Support of Leave to Appeal lodged on 27 May 2025 (“D’s Amended Written Statement”)[13], D has elaborated on this complaint, which essentially boils down to this: that there were documents including opening documentation, and/or undertakings and/or guarantees provided by his previous employer to P with regards to his banking facilities (“the Alleged Undertaking”)  which only became available after he had filed his D&CC.  Given that D was not privy to these documents and that these documents were “crucial evidence” “clearly relevant to the case and could change the outcome of the case”[14], the non-provision of these documents by P and the Judge’s failure to properly consider the evidence and address these crucial submissions resulted in errors of law and fact and miscarriage of justice.

19.These proposed grounds of appeal and D’s emphasis on the failure on the part of P to provide “crucial evidence” to D as the underlying fundamental basis of those intended grounds were similarly advanced before the Judge in D’s leave to appeal out of time application.  See: [21] - [23] of the Leave Decision.

E.  Legal principles

20.Under section 63A(2)  of the District Court Ordinance (Cap 336), leave to appeal shall not be granted unless the court is satisfied that the intended appeal has a reasonable prospect of success, or that there is some other reason in the interests of justice that the matter should be heard by the appellate court.

21.To meet the threshold of reasonable prospect of success, it must be shown that the prospect of succeeding is more than fanciful, without having to be probable: SMSE v KL [2009] 4 HKLRD 125 at [17].  In other words, the applicant is required to show more than just an arguable case, although he does not have to demonstrate that the appeal will probably succeed: Wynn Resorts (Macau)  SA v Mong Henry [2009] 5 HKC 515 at [19].

22.Bearing these principles in mind, we now turn to consider the merits of this application.

F.  Discussion

23.As with the Judge, since the delay is not too serious, we will focus on the merits of the intended appeal.

24.In our view, D’s contentions are completely groundless.  In this respect, we fully agree with and adopt the Judge’s reasons at [23] - [37] of the Leave Decision in finding D’s contentions devoid of merit.

25.First, D alleged that the Alleged Undertaking only became available after he filed his D&CC on 22 August 2022.[15]  However:

(1)  Despite bearing the burden to show cause on the merits of his defence[16], D never took out any application for specific discovery or any amendment of pleadings notwithstanding that he had had ample opportunity and time to do so.

(2)  Despite his bare allegation that he “had repeatedly requested [the alleged crucial evidence] to be disclosed to [him]”[17], he failed to show any evidence that he had requested those documents or the Alleged Undertaking from P or his previous employer.

26.Second, as the Judge correctly observed at [27] of the Leave Decision, even if D was not able to obtain those documents, at the very least, D ought to have deposed to the fact that he believed there was an alleged undertaking or guarantee from his previous employer which could afford him an arguable defence.  However, D failed to depose to any facts or particulars regarding the alleged “crucial evidence” in his affirmation opposing P’s application for summary judgment before the Master or the Judge.

27.Third, D failed to provide any particulars as to how the documents “had a significant prejudicial effect on his ability to mount an effective defence”[18]. In fact, D did not even specify what the alleged “effective defence” was, or how the “crucial evidence” could contribute to or substantiate this alleged defence.

28.In the premises, there is plainly no merit in D’s contentions in support of the proposed grounds of appeal.  The Judge had properly considered his case in full and given detailed reasons for rejecting the same. It was not only reasonably but plainly open for the Judge to find on the evidence before her that D did not have a real or bona fide defence to P’s claim, and that D’s counterclaim was bound to fail.  The Judge is clearly correct in dismissing the appeal against the Master’s Decision.

G.  Conclusion

29.For the above reasons, all the proposed grounds of appeal have no merit and are not reasonably arguable.  There is also no other reason in the interests of justice that this matter should be heard by the appellate court.

30.We therefore refuse to grant leave to appeal out of time, and dismiss the Summons.

31.There is no reason why costs should not follow the event.  We further order on a nisi basis that D do pay P costs of the Summons, to be assessed summarily.

32.In this respect, P’s solicitors have filed a Statement of Costs dated 25 June 2025 seeking a sum of HK$45,195.  Having considered the nature of the present application as well as the documents involved, we consider that the amount as sought by P is just and reasonable.  We thus assess the costs summarily at HK$45,195.

33.These costs order and assessment of costs are made on a nisi basis.  Unless any of the parties applies to vary it by summons, they would become absolute 14 days from today.

34.Pursuant to Order 59, rule 2A(8)  of the RHC, as this application is entirely without merit, we also order that no party may request that this determination be reconsidered at an oral hearing inter partes.

Written Submissions by Gallant, for the Plaintiff

Written Submissions by the Defendant, acting in person