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CACV 180/2017

[2018] HKCA 123

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 180 OF 2017

(ON APPEAL FROM DCCJ NO. 2736 OF 2016)

BETWEEN

LEE KWOK TUNG ALBERT

Plaintiff

and

CHIYU BANKING

CORPORATION LIMITED

Defendant

Before : Hon Cheung and Yuen JJA in Court

Date of Hearing : 14 February 2018

Date of Judgment : 14 February 2018

Date of Reasons for Judgment : 6 March 2018

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REASONS FOR JUDGMENT

Hon Cheung JA (giving the Reasons for Judgment of the

Court) :

I. The appeal

1. On the application of the plaintiff

H H Judge K W Wong transferred the present action

(DCCJ No. 2736/2016) from the District Court to the Court of

First Instance of the High Court so that the case can be dealt

with together with another action in the Court of First Instance

(HCA 168/2016) brought by the same plaintiff against the same

defendant. The Judge has expressly stated that how the two

cases are to be managed after the transfer should be left to be

decided by the Judge in the Court of First Instance. Pursuant

to leave granted by the Judge, the defendant appealed against

the decision. At the conclusion of the hearing, we dismissed

the appeal with costs to the plaintiff. We now give reasons

for our judgment.

II. Background

2.1 The background of this case is set out in the

judgment below as follows :

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‘ 2. Put very briefly, the defendant was a bank

carrying on business in Hong Kong. In 1999, it

advanced money to the plaintiff and one Madam Lee

on the security of a landed property jointly owned by

them. They defaulted. The defendant then

exercised its mortgagee power. Afte r the sale of

their security, there was still a shortfall of slightly

less than $1.8 million as at 2008. The defendant and

the plaintiff (for reason not apparent from the

affirmation evidence, without joining Madam

Lee) entered into a written compromise dated 19

January 2009 whereby the plaintiff agreed to pay a

total sum of $500,000 by instalments the last to be

paid by end of 2010 in full and final settlement of all

his liability under the loan agreement. All payments

under the said compromise were duly paid. A

writ ten release dated 6 January 2011 was signed by

the defendant, discharging the plaintiff (but not

Madam Lee) from all liabilities under the original

loan agreement.

3. It is the plaintiff’s case that despite the said discharge, the defendant had failed and/or refused to update the plaintiff’s credit information provided to a consumer credit reporting company, namely, TransUnion Limited

(“TransUnion”) despite repeated requests and

demands. It was not until 16 July 2015 that the

credit information was updated. After the

update, his credit rat ing was improved from Grade G

to Grade C. It is the Plaintiff’s case that there was a

delay of 4½ years on the part of the defendant to

correct the information provided. The plaintiff said

the defendant’s failure and/or delay to update his

credit information with TransUnion has caused him

loss and damages. He has to pay interest at a higher

rate when borrowing money from financial

institutions and friends during this period. The total

loss quantified by him amounts to about $5.4 million.’

2.2 The plaintiff first commenced the Court of First

Instance action. The claim was for damages against the

defendant for breach of Principle 2 of the Personal Data

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(Privacy) Ordinance , Cap. 486 (‘PDPO’) and also for breach

of the implied terms under the written compromise made

between the parties and for breach of duty of care by the

defendant. The District Court action was issued later and

based on the same facts. While the same amount of damages

and loss was claimed, the cause of action in the District Court

is confined to the breach of the PDPO.

2.3 The defendant objected to the transfer. The Judge

held that the District Court does not have exclusive jurisdiction

and the case ought to be transferred to the High Court because

there are common issues of fact and law in the two actions.

III. The issues

3. The issues in this appeal are whether the District

Court has exclusive jurisdiction to hear claims brought under

section 66(1) of the PDPO and, second, if not, whether the

Judge had properly exercised his discretion to transfer the

District Court action to the Court of First Instance. The

second issue, however, is no longer a live one as we will

discuss later.

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IV. Jurisdiction

1) District Court

4.1 The defendant’s argument that the District Court

has exclusive jurisdiction to hear the claim under the PDPO is

based on section 66(1) and (5) of the PDPO which provides

that :

‘ (1) Subject to subsection (4), an individual who suffers

damage by reason of a contravention —

(a) of a requirement under this Ordinance;

(b) by a data user; and

(c) which relates, whether in whole or in part, to

personal data of which that individual is the data

subject,

shall be entit led to compensation from that data user

for that damage.

…

(5) Proceedings brought by an individual in reliance on

subsection (1) are to be brought in the District Court

but all such remedies are obtainable in those

proceedings as would be obtainable in the Court of

First Instance.’ (emphasis added)

4.2 The power to transfer the case to the Court of First

Instance is provided by section 42 of the District Court

Ordinance , Cap. 336 :

‘ The Court may, either of its own motion or on the

application of any party, order at any stage the

transfer to the Court of First Instance or the Lands

Tribunal of all or part of any action or proceedings

before it which are within the jurisdic tion of the

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Court of First Instance or the Lands Tribunal, as the

case may be.’

4.3 In deciding whether the District Court has exclusive

jurisdiction, the first point to note is that section 66(5) of the

PDPO does not say that the District Court has exclusive

jurisdiction in such an action. Words indicating exclusivity

such as ‘only’ is not used. As can be seen from other

legislations, where the legislature confers exclusive

jurisdiction on a particular court or tribunal , this is done in

clear and express terms. Thus, for example, in respect of the

Labour Tribunal, section 7(2) of the Labour Tribunal

Ordinance (‘LTO’), Cap. 25 provides:

‘ Save as is provided in this Ordinance, no claim within

the jurisdiction of the tribunal shall be actionable in

any court in Hong Kong . ’ (emphasis added)

4.4 Section 10(1) and (2) further provides :

‘ (1) The tribunal may, at any stage of proceedings, if it

is of the opinion that for any reason the claim should

not be heard and determined by it, decline

jurisdiction.

(2) The tribunal may, when it declines jurisdiction

under subsection (1), transfer the claim to the Court

of First Instance, the District Court or the Small

Claims Tribunal, in such manner as may be

prescribed.’

4.5 In respect of the Small Claims Tribunal,

section 5 of the Small Claims Tribunal Ordinance

(‘SCTO’) , Cap. 338 provides :

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‘ (1) The tribunal shall have jurisdiction to hear and

determine the claims specified in the Schedule.

(2) Save as provided in this Ordinance, no claim

within the jurisdiction of the tribunal shall be

actionable in any other court in Hong

Kong. (emphasis added)

(3) A claim within the jurisdiction of the tribunal

may be brought in another court if there is included in

such claim a claim for some other relief, redress or

remedy, other than a claim for costs.’

4.6 Both the LTO and SCTO contain express provision

for transfer of cases to another court or tribunal. This is

necessary because of the exclusive jurisdiction conferred on

these statutory tribunals. The express provision on transfer

is to overcome the difficulty with the jurisdictional issue of

the other courts and tribunals when the case is to be

transferred to them. The express provision reinforces the

existence of exclusive jurisdiction of these statutory specialist

tribunals.

4.7 Mr Cheung for the defendant relied on Lee

Chick Choi v Best Spirits Company Ltd , HCA 2045/2012

(unrep., 1 December 2014), in which Deputy High Court Judge

Kent Yee at paragraph 17 held that the District Court has

exclusive jurisdiction ‘over all claims in reliance on

section 66(1) of the PDPO’. It is of note that on the

application for leave to appeal to this Court

(HCMP 371/2015, decision 21 May 2015), whilst upholding the

Judge’s decision not to allow the plaintiff to substitute a new

statement of claim and have the matter transferred to the

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District Court, this Court expressly held at paragraph 24 that it

was not necessary to consider if the District Court has

exclusive jurisdiction in respect of a sect ion 66(1) claim.

4.8 Mr Cheung also relied on Dr. Alice

Li Miu-Ling v Dr Thomas Wong Kwok Shing,

HCA 155/2006 (unrep., 6 April 2009) where

Master Levy discussed the jurisdiction of the

District Court to hear a claim for sexual harassment based on

section 23(3) of the Sex Discrimination Ordinance , Cap. 480

(‘SDO’). The Master relying on her earlier

decision in Sunny Tadjudin v Bank of America, National

Association , (unrep HCA 322 of 2008, 28 October 2008) held

that the District Court has exclusive jurisdiction. In

Tadjudin the plaintiff alleged unlawful discriminatory acts

based on gender. The Master held that such a claim falls

within the exclusive jurisdiction of the District

Court. The jurisdictional clause in the SDO is

section 76(4) which provides :

‘ (4) By virtue of this subsection and notwithstanding

any law, the District Court shall have jurisdiction to

hear and determine any proceedings under

subsection (1) and shall have all such powers as are

necessary or expedient for it to have in order to

provide, grant or make any remedy, injunction or order

mentioned in this Ordinance.’ (emphasis added)

4.9 Both the claims in Tadjudin and Dr. Alice Li

Miu-Ling are proceedings under section 76(1) of the

SDO. The wording of section 76(4) of the SDO is similar to

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section 66(5) of the PDPO. Tadjudin went on to

appeal ([2010] 3 HKLRD 417). The part of the Master’s

observation on jurisdiction was not the subject matter of the

appeal.

4 .10 There are also other first instance

decisions in which the Courts have stated

that the District Court has exclusive

jurisdiction to hear claims for disability

discrimination under section 72 of the Disability

Discrimination Ordinance (‘DDO’) (Cap. 487) (see

Yuen Oi Yee Lisa v Charoen Sirivadhanabhakdi

DCCJ 1914/2015 (unrep., 16 November 2015,

paragraph 105(b) , Ko DJ); 何 妙 鸞 v 鄺 譪 慧

HCA 2367/2015 (unrep. , 6 October 2017, paragraph 48,

To J ) . Section 72(4)(a) of DDO is similar to

section 76(4) of the SDO .

4.11 In our view these cases are not authorities in

support of the exclusive jurisdiction of the District

Court. The Judges there did not have the benefit of full

argument on this issue. In our view based on the wording of

section 66(5) of the PDPO, the District Court does not have

exclusive jurisdiction.

2) Court of First Instance, High Court

4.12 We now turn to examine whether the

jurisdictional provisions in the High Court Ordinance

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(‘HCO’) (Cap. 4) preclude the Court of First Instance from

exercising jurisdiction over a claim under section 66(1) of the

PDPO .

4.13 Section 3 of the HCO stipulates:

‘ (1) There shall be a High Court of the Hong Kong

Special Administrative Region consisting of the Court

of First Instance and the Court of Appeal.

(2) Subject to the provisions of this Ordinance, the

High Court shall be a court of unlimited civil and

criminal jurisdiction . ’ (emphasis added)

4.14 Section 12 further provides :

‘ 12. Jurisdiction of Court of First Instance

(1) The Court of First Instance shall be a superior

court of record .

(2) The civil jurisdiction of the Court of First

Instance shall consist of—

(a) original jurisdiction and authority of a like

nature and extent as that held and exercised

by the Chancery, Fam ily and Queen’s Bench

Divisions of the High Court of Justice in

England; and

(b) any other jurisdiction, whether original or

appellate jurisdiction, conferred on it by

any law.’ (emphasis added)

4.15 It needs to be emphasised that the High Court

which comprises of the Court of Appeal and the Court of First

Instance is a court of unlimited civil jurisdiction. The Court

of First Instance is expressly stated to be a superior court of

record. As Ms Law for the plaintiff correctly pointed

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out, the significance of the Court of First Instance

as a ‘superior’ (as opposed to an ‘inferior’) court of

record is that the ‘presumption of jurisdiction’ applies. This

means, prima facie , no matter is deemed to be beyond the

jurisdiction of a superior court unless it is

expressly shown to be so: Halsbury’s Laws of England

(5th

Edn, 2010); paragraph 619; Peacock v Bell and Kendal 85

ER 84, 87-88; Ex parte White [1948] 1 KB 195, 205-206

(Wrottesley LJ); Board v Board [1919] AC 956, 963 (Viscount

Haldane).

4.16 Kwan J (as she then was) in the Incorporated

Owners of Summit Court v Full Surplus Investment & Anor

[2002] 3 HKC 193, (paragraph 18) referred to the

‘presumption against ousting of established

jurisdiction’. At paragraph 19, she cited Maxwell on the

Interpretation of Statutes (12th

Edn.), page 153 which

provides :

‘ A strong leaning exists against a statute so as to oust

or restrict the jurisdiction of the superior

courts... ‘the well -known rule that a statute should not

be construed as taking away the jurisdiction of the

courts in the absence of clear and unambiguous

language to that effect.’ . . . now rests on a reluctance

to disturb the established state of the law or to deny to

the subject access to the seat of justice.’

4.17 In Wong Hing Cheong & Anor v Wah E Investment

Ltd & Anor [2002] 2 HKLRD 175 this Court at paragraphs 19

and 24 approved of the statement of Findlay J in Ngan

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Chor Ying v. Year Trend Development Ltd [1995] 1 HKC

605, 607G-H :

‘ My understanding of the law in this area is that where

an Ordinance creates a right or remedy, that is, the

right or remedy has no existence independently of the

Ordinance creating it, and, at the same time, the

Ordinance lays down a particular method of pursuing

it in a particular court or tribunal, the courts

will, without more, tend to confine a person in pursuit

of that right or remedy to that particular court or

tribunal. But an Ordinance should not be interpreted

so as to take away the jurisdiction of the superior

courts unless it does so by express words or necessary

implication.’ (emphasis added)

4.18 Ma CJHC observed in So Wing Keung v Sing Tao

Ltd & Another [2005] 2 HKLRD 11, paragraph 31(4) that the

phrase ‘superior court of unlimited jurisdiction’ means the

Court only has the jurisdiction to do everything necessary

within the jurisdiction it already had. In our view, this

observation does not assist the defendant because in the first

place the District Court does not have exclusive jurisdiction

under a section 66(1) of the PDPO claim. There is nothing

in the HCO to show that the unlimited jurisdiction of the Court

of First Instance had been taken away by the enactment of the

PDPO .

3) The proper approach

4.19 In our view nothing in the PDPO or in the HCO

points to the District Court having exclusive jurisdiction of

proceedings under section 66(1) of the PDPO or the lack of

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jurisdiction by the Court of First Instance over the same

subject matter. Accordingly, the Judge was correct on this

point.

4.20 Having said this, does it mean that since the

District Court does not have exclusive jurisdiction over a

section 66(1) claim, a plaintiff can choose to litigate it in the

Court of First Instance despite the clear wording in

section 66(5) of the PDPO that such proceedings are to

commence in the District Court? Although

section 66(5) does not confer exclusive jurisdiction, it does

point towards a requirement that the section 66(1) claim

should, in the first instance, be litigated in the District

Court. This claim is a newly created independent statutory

remedy to meet the needs of modern society.

4.21 The proper approach to resolve the tension

between, on the one hand, the District Court not having

exclusive jurisdiction but expressly empowered by the PDPO

to be the Court to commence section 66(1) claims, and, on the

other hand, the unlimited jurisdiction of the Court of First

Instance, is to require all claims based solely on

section 66(1) to commence in the District Court. But since

the Court of First Instance jurisdiction is not ousted, in

appropriate circumstances, the present one being an

example, the District Court may order the case to be

transferred to the Court of First Instance.

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4.22 This approach does not mean the failed exclusive

jurisdiction argument is allowed to return by the back door nor

does it encroach upon the unlimited jurisdiction of the Court

of First Instance, but rather it gives effect to the legislative

intent that the section 66(1) claims should commence in the

District Court.

4.23 We, however, will refrain from discussing

whether a claim based not only on section 66(1) of the PDPO

but also based on other causes of action can be commenced in

the first place in the Court of First Instance, as this is not an

issue before us and we do not have the benefit of full argument

on this.

4) Legislative material

4.24 Ms Law had further referred us to the legislative

background material leading to the enactment of the

PDPO . In our view, it is not necessary to refer to this

material for the purpose of determining jurisdiction.

V. Discretion

5.1 As to the exercise of discretion the Judge held :

‘ 29. I think the conclusion is obvious. The facts

based upon which the plaintiff pleads his various

causes of action are in fact the same. All cl aims

arose out of the same alleged defaults on the part of

the defendant. There are common issues of facts and

law. Although I consider there is no practical

difference between the 2 sets of claims, it will be a

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matter for trial as to whether all these cl aims are in

fact one and the same under s.66(1) PDPO or other

causes of action are also available to the plaintiff. It

will be more appropriate for the 2 actions to be dealt

with together in one go or by the same judge.’

5.2 Despite the original challenge to the exercise of

discretion, Mr Cheung accepted that if we uphold the Judge ’s

view on jurisdiction, then there is no need for him to argue on

discretion because the exercise of discretion is related to the

exclusive jurisdiction issue.

5.3 In our view, the Judge had properly exercised his

discretion in ordering the transfer. If not for the

transfer, there will be two proceedings in different Courts

between the same parties and based on the same facts and

substantially the same law. The defendant had not applied to

strike out either of these proceedings on the basis of abuse

before or when the plaintiff applied for transfer.

VI. Conclusion

6. Accordingly, the appeal was dismissed with costs to

the plaintiff.

(Peter Cheung) (Maria Yuen)

Justice of Appeal Justice of Appeal

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Ms Deanna Law, instructed by Wong & Tang, for the plaintiff

Mr Cheung Kam-wing, Adonis, instructed by K. T. Chan &

Co., for the defendant