林哲民 對 中國銀行(香港)葛海蛟董事長及另二人

林哲民 對 中國銀行(香港)葛海蛟董事長及另二人

The strike-out decision rests on clear findings that the plaintiff's claims disclose no reasonable cause and are frivolous or an abuse of process: s76 empowers the Commissioner to issue notices to banks without prior s77 court determination and s76(2) indemnifies banks for payment; Bank of China lawfully complied...

Source-derived case information.

Citation
[2024] HKCFI 763
Parties
Plaintiff: Lin Zhen Man; First Defendant: Bank of China (Hong Kong) Chairman Ge Haijiao; Second Defendant: Commissioner of the HKMA Yu Wai Man (Governor); Third Defendant: Commissioner of Inland Revenue Tam Taap Peng
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
20 March 2024
Case Number
HCA936/2023
Procedural Posture
Civil Litigation (judicial) / Appeal Against Interlocutory Striking Out/withdrawal Order
Outcome
Appeal dismissed; earlier interlocutory decision of 20 November 2023 striking out the statement of claim and dismissing claims against first, second and third defendants upheld; costs awarded
Legal Topics
Striking Out (order 18 R19/inherent Jurisdiction), Tax Ordinance S76 Third Party Recovery, Tax Ordinance Ss75 77 and Ss71(5)/(5 A), Bank Service Charges and Banking Ordinance S12(4), Unauthorised ATM Withdrawals, Abuse of Process, Costs (summary Assessment)
Source Language
ch
Tax Law Banking Law Civil Procedure Administrative Law Striking Out (order 18 R19/inherent Jurisdiction) Tax Ordinance S76 Third Party Recovery Tax Ordinance Ss75 77 and Ss71(5)/(5 A) Bank Service Charges and Banking Ordinance S12(4) +3 more

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Parties

Lin Zhen Man

Plaintiff

Bank of China (Hong Kong) Chairman Ge Haijiao

First Defendant

Commissioner of the HKMA Yu Wai Man (Governor)

Second Defendant

Commissioner of Inland Revenue Tam Taap Peng

Third Defendant

Procedural Posture

Civil Litigation (judicial) / Appeal Against Interlocutory Striking Out/withdrawal Order

  1. 1 Whether the plaintiff's statements disclose a reasonable cause of action
  2. 2 Whether the Commissioner of Inland Revenue could issue s76 notices to the bank without prior court adjudication under s77
  3. 3 Whether the bank is civilly liable for complying with s76 notices and for levying service charges alleged by plaintiff

Ratio Decidendi

The strike-out decision rests on clear findings that the plaintiff's claims disclose no reasonable cause and are frivolous or an abuse of process: s76 empowers the Commissioner to issue notices to banks without prior s77 court determination and s76(2) indemnifies banks for payment; Bank of China lawfully complied and is not civilly liable; the bank's service fees did not breach s12(4) because the bank is a 'bank' under the Banking Ordinance; ATM withdrawal allegations lack particularised factual foundation and fail to overcome the contractual allocation of risk; claims against HKMA and IRD similarly fail; the default-judgment application was premature because defence deadlines had been...

Court Disposition

Appeal dismissed; earlier interlocutory decision of 20 November 2023 striking out the statement of claim and dismissing claims against first, second and third defendants upheld; costs awarded

Orders

  • The appeal is dismissed and the decision and orders made by the Master (蘇嘉賢聆案官) on 20 November 2023 are confirmed
  • Plaintiff's statement of claim struck out and all claims by plaintiff against First Defendant are struck out and the action as to First Defendant is dismissed