Axa China Region Insurance Co Ltd and Another v. Pacific Century Insurance Co Ltd and Others

Read the full judgment text of HCA 9093/2000 on BabelCite. This High Court CFI judgment was delivered on 29 June 2006 before Deputy High Court Judge Poon.

Civil procedure – setting aside default judgment – regular default judgment – test for setting aside – whether defendant has good defence on merits with real prospect of success – application of Premier Fashion Wears Ltd v. Chow Cheuk Man and O Mark Ployethene Products Fty Ltd v. Reap Star Ltd. Insurance – former insurance agent – alleged breach of confidence and conversion of Client Data (White Card and Underwriting Notification) – ownership of Client Data as confidential information/trade secrets – whether agent free to use documents supplied by policyholder – reliance on AXA China Region Insurance Co. Ltd v. Pacific Century Insurance Co. Ltd and AXA China Region Insurance Co. Ltd v. Pacific Century Insurance Co. Ltd (No.2). Evidence – credibility of defendant's explanation and corroborating affirmation of policyholder – inherent implausibility of handing over White Card containing commission rate and pre-policy Underwriting Notification as 'reference'. Outcome – application to set aside default judgment dismissed; costs to plaintiffs to be taxed if not agreed.

Legal issues: Whether default judgment should be set aside for want of a defence with real prospect of success

Outcome: The 40th defendant's application to set aside the default judgment is dismissed.

Cited by 11 cases · Cites 3 cases

Case No.HCA 9093/2000
Court
High Court CFI
Date29 Jun 2006
JudgeDeputy High Court Judge Poon
Case Document
100%Judiciary

HCA9093/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO.9093 OF 2000

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BETWEEN

  AXA CHINA REGION INSURANCE COMPANY LIMITED (formerly known as NATIONAL MUTUAL INSURANCE COMPANY LIMITED and SENTRY INSURANCE COMPANY LIMITED) 1st Plaintiff
  AXA CHINA REGION INSURANCE COMPANY (BERMUDA) LIMITED (formerly known as NATIONAL MUTUAL INSURANCE COMPANY (BERMUDA) LIMITED) 2nd Plaintiff
  and  
  PACIFIC CENTURY INSURANCE COMPANY LIMITED 1st Defendant
  NG WING KEUNG, PAUL 2nd Defendant
  CHAN CHI KIN, JOHNNY 3rd Defendant
  LAI HEUNG WING, DICKY 4th Defendant
  LAU KAI MING, RAYMOND  5th Defendant
  CHUNG KA FONG, JESSICA 6th Defendant
  CHAN CHI KEUNG, JIMMY 7th Defendant
  WOO PAK FAI, ANTHONY 8th Defendant
  CHIU HARK WAN, JAY 9th Defendant
  CHAN SHUI LAN, ANITA 11th Defendant
  CHAN KA YI, CAROL 12th Defendant
  LAU SHUK HAN 13th Defendant
  CHAN WAI LING, STELLA 14th Defendant
  CHOY KIN LUN, ALAN 15th Defendant
  CHAN YICK CHEUNG, FRANCIS 16th Defendant
  KONG MIU YEE 17th Defendant
  LUNG SIU LING, ANITA 18th Defendant
  CHU HAK NAM, KENNETH 19th Defendant
  BISWAKARMA TILBAHADUR 20th Defendant
  MO YUET YI, ANDREA 21st Defendant
  LAU MEI YUK, MAY 22nd Defendant
  CHEUNG KAM FAI, SHINE  23rd Defendant
  LIU HING LUNG, DANIEL 24th Defendant
  POON YUEN KAN 25th Defendant
  LEE LUNG CHEUNG, DEREK 26th Defendant
  LEUNG MEI LING, PHYLLIS  27th Defendant
  LAU LUEN HAN, CANDY 28th Defendant
  CHOI TAT HUNG, BORIS 29th Defendant
  AU-YEUNG WAI MAN, ADA 30th Defendant
  NG LAI LING, CLAIR 31st Defendant
  CHEUNG LAI YI, BECKY 32nd Defendant
  LO MAN YI, WINDY 33rd Defendant
  POON SHUET LING, ICE 34th Defendant
  CHU CHI HEI, EDDIE 35th Defendant
  LO KIN FAI, KELVIN 36th Defendant
  NG KAM MAN, JOE 37th Defendant
  POON KAM LING, STELLA 38th Defendant
  LI PO SZE, ANN 39th Defendant
  CHUI KWAN PING, APPLE  40th Defendant
  CHEUNG SIN YEE, TRACY 41st Defendant
  KWONG CHI WAI, BEN  42nd Defendant
  NG CHUI WAH, JOYCE 43rd Defendant
  CHOW PAK FAI, MICHAEL 44th Defendant
  CHAN SIU YUK, MAGGIE 45th Defendant
  CHUNG NAM SING, ANDY 46th Defendant
  THAPA MOTILAL 47th Defendant
  LAW PO YEE, ANGELA 48th Defendant
  MA KA SHING, FELIX 49th Defendant
  SO HA WAI, VANESSA 50th Defendant
  POON NGAN LING, PAMELA 51st Defendant
  WONG YUK CHING, VIRGINIA 52nd Defendant
  WU FUNG SHAN, CARMAN 53rd Defendant
  (formerly or also known as WU LIN HUNG, CARMEN)  
  NG NAI MAU, BANDY  54th Defendant
  SO CHI KWONG, EDMOND 55th Defendant
  TSOI KI WA, PIERRE 56th Defendant
  CHU LAI YEE, CANDY 57th Defendant
  YEUNG KA FAI, KENNETH 58th Defendant
  TSANG CHI KEUNG, JACKY 59th Defendant
  HUI KIT WAH, FRANCO 60th Defendant

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Before : Deputy High Court Judge Poon in Chambers

Date of Hearing : 2 June 2006

Date of Handing Down Decision : 29 June 2006

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D E C I S I O N

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Introduction

1.This is the 40th defendant's application to set aside the default judgment entered against her on 25 October 2005.  The background leading to this application may be summarized as follows.

2.The plaintiffs are members of the AXA group of companies carrying on the business of insurance underwriting, including the underwriting of life insurance policies.  The 1st defendant is an insurance company carrying on a similar business.  The 40th defendant was one of the plaintiffs' former insurance agents.

3.In 2000, the plaintiff commenced the present action against the 1st to 10th defendants in tort for breach of confidence and unlawful interference of business.  On 24 July 2001, the plaintiffs obtained various interlocutory injunctive relief and delivery up orders against the 1st to 10th defendants.  See AXA China Region Insurance Co. Ltd v. Pacific Century Insurance Co. Ltd and Others [2003] 3 HKC 1.  That order was subsequently varied on 16 November 2001 and 10 January 2002.  Various documents were then delivered to the plaintiffs pursuant to the order on different occasions.  After reviewing the documents, the plaintiffs applied to join 32 additional defendants, including the 40th defendant at the end of 2004.

4.As noted, the plaintiffs obtained a default judgment against the 40th defendant on 25 October 2005 for, inter alia, injunctive relief, damages and consequential discovery orders.

5.By summons dated 23 January 2006, the 40th defendant applied to set aside the default judgment.  Initially, she alleged that the default judgment was irregular but she no longer maintains this ground.  This application therefore proceeded on the basis that the default judgment is a regular one.

The plaintiff's case

6.The plaintiffs' case against the 40th defendant, in gist, is this.

7.The plaintiffs pleaded that they are the owners of “Client Data”, namely, information relating to their policyholders and their policies obtained or derived by an agent in the course of his agency with the plaintiffs, and any documents containing such information, save where the information was known to the agent prior to such obtaining or derivation.  The 40th defendant, as the plaintiffs' insurance agent, had a duty to keep Client Data secret and confidential and must not take away or use or disclose them save for the plaintiffs' business.  However, she acted in breach of such duty.  In particular, she had taken away a White Card and an Underwriting Notification in connection with the policy of a client, Mr Lau Po Kan (“Mr Lau”) and used the same in applying for a policy with the 1st defendant on his behalf.  Further, by taking away the White Card and the Underwriting Notification, which are documents of the plaintiffs, the 40th defendant had converted the same to her own use.

Defence

8.It is not in dispute that the White Card contained details of the policy number, effective date, modal premium, mode of payment, name, address, date of birth, age, sex and telephone numbers of the insured, the insurance amount, the premium (annual); the agency, the agent concerned and the commission rate.  The Underwriting Notification contained details of the application (policy) number, the amount, the name of the (proposed) insured, the agency and the agent concerned and pending requirements for the issue of a policy.  All these details and information plainly falls within the meaning of Client Data, over which the plaintiffs assert ownership.

9.Initially, the 40th defendant took issue on whether the Client Data were confidential information/trade secrets and asserted co-ownership of such data.  However, for the purpose of this application, she is now content to assume that the Client Data were confidential information/trade secrets as alleged by the plaintiffs and that there was no joint ownership of the Client Data as contended by the plaintiffs.  Her only defence is that the White Card and the Underwriting Notification were supplied to her by Mr Lau.  Her evidence is summarized in paragraphs 10 and 11 below.

10.In late 1994, while still with the plaintiffs' agent, she gave Mr Lau a pile of documents relating to his life insurance policy including the White Card and Underwriting Notification for his reference.  In July 2000, she tendered her termination of agency, which was accepted by the plaintiffs.  In August 2000, she returned to the 1st plaintiff's office to pack away her personal belongings in the presence of her supervisor and another colleague.  She had not taken away or retained any documents or printouts of the plaintiffs.  On 23 August 2000, she became the 1st defendant's insurance agent.

11.In August 2000, Mr Lau received a letter from the 1st plaintiff informing him that the 40th defendant had left and another agent would be assigned to follow up with his policies.  Mr Lau therefore rang up and approached the 40th defendant to enquire about the situation.  They met and discussed about his policy with the plaintiffs.  Mr Lau decided to “follow” the 40th defendant and terminate his policy with the plaintiffs.  He wanted to purchase from the 40th defendant insurance policies of the 1st defendant.  The 40th defendant explained to him in detail the differences between the policies of the plaintiffs and those of the 1st defendant.  Mr Lau understood and voluntarily decided to buy the 1st defendant's policies.  The 40th defendant said that it was necessary to have data relating to Mr Lau's policies with the plaintiffs.  After the meeting, Mr Lau handed to her a pile of documents including the policy, the White Card and Underwriting Notification, which she gave to him in about the end of 1994 for his reference.

12.Mr Lau has filed two affirmations and made two statements to corroborate the 40th defendant's case.

13.Mr Law, appearing for the 40th defendant, submitted that what the 40th defendant has advanced above amounts to a complete defence.  He relies on AXA China Region Insurance Co. Ltd v. Pacific Century Insurance Co. Ltd, supra, where Deputy High Court Judge To held at para.84 at p.33G that the agent is at liberty to deal with a policyholder if the policyholder contacts the agent and if the policyholder shows him the documents in question, the agent is at liberty to use them or the information contained therein.  See also a similar remark by Chu J in AXA China Region Insurance Co. Ltd v. Pacific Century Insurance Co. Ltd (No.2) [2005] 3 HKC 359 at para.66 at p.380G-H.

Merits of the defence

14.It is trite that where the default judgment is regular, the defendant must show a good defence on merits with a real prospect of success and not just merely arguable.  The evidence of the defendant must carry some degree of conviction, and must be potentially credible affidavit evidence from the defendant which demonstrated a real likelihood that he will succeed on fact.  The court has to form a provisional view of the probable outcome of the action.  See Premier Fashion Wears Ltd v. Chow Cheuk Man [1994] 1 HKLR 377.

15.Where, however, the outcome of the action very much depends on whose evidence is likely to be accepted and it is not possible to sensibly form a provisional view of the probable outcome of the action, the appropriate test then is to ask whether the defence could well be established at trial and if the defendant's version could well be believed at trial, it follows that the defence has a “real prospect of success”.  See O Mark Ployethene Products Fty Ltd v. Reap Star Ltd [2003] 3 HKLRD 114, L & M Specialist Construction Ltd v. Wo Hing Construction Co. Ltd [2000] 3 HKLRD 262, El Vince Ltd v. Wu Wen Sheng [2001] 3 HKLRD 445.

16.On the evidence before me, I have no difficulty in forming a provisional view of the probable outcome of the action.  I do not think the 40th defendant's case has a real prospect of success.  It is incredible for the 40th defendant to give the original of the White Card and a copy of the Underwriting Notification to Mr Lau for reference or as a summary or handy reminder.  If she indeed intended to provide such assistance or service, I see no reason why she did not prepare a proper summary and give it to Mr Lau.  Further, as noted, the White Card contained her commission rate.  It is inconceivable that she would choose to reveal such information to Mr Lau by providing him the White Card.  For the Underwriting Notification, it came into existence before the issue of the policy.  It was sent to the agent to clarify certain information with the prospective client before a policy was issued.  The information contained therein could not possibly amount to any reference, summary or reminder of the policy later issued.  The 40th defendant alleged that it was stated on the Underwriting Notification that Mr Lau's disability in his right hand would be excluded from the waived premium protection under the policy.  “It was probably because of that particular reason I gave the copy [Underwriting Notification] to [Mr Lau] in 1994,” she said.  Her explanation, in my view, does not make sense.  She needed not give him the copy Underwriting Notification to inform him of the waiver.

17.Mr Law sought to place reliance on the evidence of Mr Lau.  But as I have demonstrated above, the 40th defendant's case is incredible.  I am not going to attach weight to Mr Lau's evidence.

18.Mr Law also drew my attention to the fact that there was no contemporaneous evidence to suggest that the 40th defendant had wrongfully taken away or retained the White Card or the Underwriting Notification at the time.  But it only suggests that the plaintiffs were then not aware of the 40th defendant's wrongful conduct.  No reliance can be placed on it.

Conclusion

19.For the above reasons, the 40th defendant's application must fail.  I will dismiss it accordingly and make an order nisi that the plaintiffs shall have the costs, to be taxed if not agreed.

  (J. Poon)
Deputy High Court Judge

Mr Stewart K.M. Wong, instructed by Messrs Herbert Smith, for the 1st and 2nd Plaintiffs

Mr Law Man Chung, instructed by Messrs Sit, Fung, Kwong & Shum, for the 40th Defendant