Lau Chi Ching Karen Alias Lau Lai Yin v. Wing Hang Bank Ltd

HCA 103/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 103 OF 2014

----------------------------

----------------------------

------------------------

DECISION

------------------------

Introduction

1.Wing Hang Bank Ltd (“the Bank”) by summons dated 23 April 2014 applies to strike out Madam Lau’s Statement of Claim and to dismiss the present action on the ground that her pleading raises no reasonable cause of action, that her claim is scandalous, frivolous, vexatious and may prejudice, embarrass or delay the fair trial of the action and/or is an abuse of process.  

2.In reply, Madam Lau took out a summons dated 4 July 2014. Its content is however not immediately comprehensible to this court. At the hearing, Madam Lau clarified that she was not asking for a stay of proceedings despite the fact that a stay was alluded to in the first paragraph of the summons. She confirmed that the matters stated in her summons were merely further particulars to substantiate her claim against the Bank now totalling HK$65 billion. Mr Tsang, counsel for the Bank, agrees that this court should also take into account those matters set out in her summons to ascertain whether her claim should be struck out.

3.The legal principles relating to a striking out application is well-established and this court should only exercise its discretion to strike out a claim in a plain and obvious case. The claim to be struck out must be thoroughly bad and it must be impossible, not just improbable, for the claim to succeed. Further, any disputed facts should be taken in favour of the party whose pleading is under attack.

No reasonable cause of action

4.Madam Lau has amended her Statement of Claim twice by herself without legal assistance. It is a two-page document consisting of eight paragraphs written in the English language. I first consider whether her claim should be struck out on the basis that her pleading discloses no reason cause of action.

5.Madam Lau’s first complaint is contained in the first two paragraphs. In the first paragraph, Madam Lau complains that one senior executive officer of the Bank improperly lobbied her to purchase a residential property by the use of her fund originally earmarked for her education and her business purposes. In the second paragraph, she goes on to complain that her life in all respects including her marriage and her well-being became miserable after the purchase of her property.

6.In her answer to the Bank’s request for further and better particulars, Madam Lau gives more particulars about the foregoing complaint. The senior executive officer of the Bank is identified to be one Mr Ho Chi Wai (“CW Ho”) and the property she purchased after CW Ho had improperly lobbied her was Flat B, 20/F., 118 Broadway, Mei Foo Sun Chuen, Kowloon (“the Flat”). The sale took place in 1997. She alleges that she did not like the flat, which was old and without clubhouse facilities.

7.However, according to Madam Lau, CW Ho said to her that the Flat had a good location and it was situated just above the MTR station. He further intimated to her that he himself grew up in that area and his parents still resided there. He explained to Madam Lau that the selling price of the Flat was always below the market price as it was torn and not well maintained.

8.Madam Lau also gives examples of such business that she might have otherwise carried on with her fund but for the purchase of the Flat. She lastly discloses that she has worked as an estate agent herself.

9.In my judgment, Madam Lau’s complaint cannot be translated into any identifiable cause of action by any stretch of the imagination. The remarks allegedly made by the officer of the Bank are apparently innocuous and in any event Madam Lau makes no allegation about the nature of such remarks. I fail to see how they can give rise to any actionable claim.

10.In his written submission, Mr Tsang relied on the Limitation Ordinance and submitted that Madam Lau’s claim is time barred since the alleged improper lobbying must have taken place before the purchase of the Flat in 1997. At the hearing, Mr Tsang accepts that Madam Lau’s claim cannot be properly characterized and hence the Limitation Ordinance does not assist the Bank.  

11.Madam Lau’s second compliant in the third to sixth paragraphs is about the Bank’s alleged use of her motto “Think Positive” and her hedonistic lifestyle without her consent. My understanding of her complaint is that the Bank was inspired by her motto and lifestyle in many of its marketing projects since 1993 such as its car loan, credit card and mortgage businesses. She feels that the Bank’s success in such projects was attained at her expense.

12.Doing the best he can, Mr Tsang submits that the closest legal complaint that can be made out of these allegations is copyright infringement. However, he points out that there can be no copyright subsisting in her ideas and/or life attitude. He is, of course, right as a matter of law. I in fact cannot make any sense out of this complaint and I do not think there can be a copyright issue at all. I am of the view that it cannot be actionable.

13.Accordingly, I am of the view that it is plain and obvious that her pleading discloses no reasonable cause of action and it must, together with all the particulars given subsequently, fall to be struck out.

Abuse of process?

14.Having reached this conclusion, it is, strictly speaking, not necessary to consider other grounds advanced on behalf of the Bank. For the sake of completeness, I should add that I do not accept Mr Tsang’s submission that Madam Lau’s claim is also liable to be struck out on the ground that it is an abuse of process based on res judicata in the wider sense.

15.The contention of the Bank is that Madam Lau should have made the allegations in these proceedings in the mortgagee action under HCMP 1616/1999. Mr Tsang relies on Chiang Lily v Secretary for Justice [2009] 6 HKC 234 and submits that the present action is an abuse of process on the application of res judicata in the Henderson v Henderson sense (i.e. the wider sense).

16.Without going into unnecessary details, I should point out that mortgagee action did not concern the Flat or its purchase at all. The mortgagee action was commenced after the sale of the Flat by an auction arranged by the Bank in October 1998 owing to Madam Lau’s default in repayment of the mortgage loan secured by a legal charge dated 31 May 1997.

17.On the other hand, the mortgagee action was commenced in March 1999 and it actually related to another legal charge dated 19 July 1996 over both a property in Tin Shui Wai, New Territories and another property in Mei Foo. These two properties were registered in the joint names of Madam Lau and one Wong Hing Chu. By the mortgagee action, the Bank sought to enforce the legal charge and sell the Tin Shui Wai property to recover the outstanding mortgage loan from Madam Lai and Wong Hing Chu. Master Barnes (as her ladyship then was) eventually made an order for sale dated 10 March 2000 in the absence of Madam Lau and Wong Hing Chu. It can be seen from the order of Master Barnes that neither Madam Lau nor Wong Hing Chu took any part in the mortgagee action.

18.At the hearing, Madam Lau explained to this court that she was at a loss at that time and did not know how to deal with the mortgage action. I do not think that it is plainly and obviously an abuse of process that Madam Lau did not raise the allegations in the mortgagee action by way of counterclaim to claim unliquidated damages arising out of an unrelated transaction.

Conclusion and orders

19.For the reasons given above, I conclude that Madam Lau’s pleadings should be struck out and I so order. I further order that the action be dismissed. I see no reason why costs should not follow the event. I thus make an order nisi that Madam Lau should pay the Bank costs of this action including these two summonses and all such costs reserved if any, to be taxed if not agreed. In the absence of any application to vary the costs order nisi, it will become absolute after 14 days. I do not consider summary assessment suggested by Mr Tsang appropriate and costs of the Bank should be taxed in the conventional manner if necessary.

The plaintiff appeared in person

Mr Alvin Tsang, instructed by Messrs Siao, Wen and Leung, for the defendant

Please refer to HCMP2517/2014 for the relevant appeal(s) to the Court of Appeal.