LEE YEE WAH v. MP HONG KONG LTD

HCSA4/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

SMALL CLAIMS TRIBUNAL APPEAL NO.4 OF 2003

(ON APPEAL FROM SCTC037115/2001
CONSOLIDATED WITH SCTC066571/2002)

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(HEARD TOGETHER)

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J U D G M E N T

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1. These appeals were heard together. Miss Jennifer Ng appeared for the appellant, MP Hong Kong Limited, the defendant in the Small Claims Tribunal ("the Tribunal"). The respondents who were the claimants below appeared in person.

2. These appeals arose out of the sale of certain bed sheets or mattresses ("bed sheets") by the appellant to the respondents.

3. It is common ground that the bed sheets were sold by description and that the description is to be found in the leaflet in the promotion catalogue of the appellant :

"MP Health Products

MP Far-Infrared (FIR) Mattress Protector and Pillow Pad help to relax tired muscle and ease pain and headaches. Lying on this mattress processor will enable you to sleep soundly and wake up feeling relaxed, fresh and revitalized.

MP FIR Mattress Protector and Pillow Pad is your insurance to a very sound, peaceful sleep and thus, you wake up relaxed, fresh and revitalized. Due to its new deep heating feature that improves blood flow, it relieves stiff and tired muscles, eases pain and headaches, as well as activating digestive organs, etc.

Continued use of the MP FIR Mattress Protector and Pillow Pad can be said to be the simple solution to a variety of health problems."

4. It is the appellant's case that the bed sheets contained bio-ceramic which when warmed by the human body would emit FIR which would penetrate deep into the skin and stimulate blood circulation and body metabolic rates. In that way the bed sheets would promote health.

5. The bed sheet has a pattern of black dots on a white background printed on the surface. These dots are roughly 2 mm x 3 mm in size. It seems to be the appellant's case that the black dots contained bio-ceramic material. The white region on the bed sheet supposedly consists of normal bedding material.

6. To succeed in these appeals, the appellant must show that the Tribunal has erred in law.

7. Three grounds were advanced in support of the appeal.

8. The 1st ground is that on the evidence adduced by the respondents, the adjudicator erred in law in drawing the inference from the opinion of expert witnesses that the bed sheets did not conform with its description as health product and was not fit for its purpose in promoting health, and thus not of merchantable quality.

9. The 2nd ground of appeal is that :

"In failing to appreciate the impropriety of the assumptions made by the expert witnesses, the conclusion of the learned adjudicator adopted in this exercise of discretion, namely the bed sheet would not be effective in promoting health, and was therefore not in conformity with its description and not fit for its purpose, was plainly wrong and outside the generous ambit within which a reasonable disagreement is possible."

10. The 1st and 2nd grounds should be considered together because the thrust of the argument is that the conclusions of Dr Ho Pui Ho, Aaron, a Ph.D. in electrical engineering and a university lecturer and Dr Cheung Ho Fai, a Ph.D. in physics and an associated professor at the City University of Hong Kong in the Physics Faculty, were based on erroneous assumptions, and hence there was no evidence to support the conclusion that the bed sheets were not "health products".

11. The 3rd ground of appeal related to the rejection of the evidence of the book "Far-Infrared and The Medical Revolution" by one Dr Maeda.

12. In order to succeed on the 1st and 2nd grounds, Miss Ng must demonstrate that there was no evidence on which the Tribunal could reasonably have come to the conclusion that the bed sheets did not correspond with the description and were not of merchantable quality.

13. The Tribunal had the benefit of a report by Dr Ho and Dr Cheung ("the Report"), both then lecturers in the Physics Faculty of the City University of Hong Kong, which was commissioned by the Consumer Council.

14. Their evidence was summarized by the learned tribunal officer at para.20 of the judgment :

".... According to the report (Exhibit Ca-4) prepared by and the testimonies given by Dr. Ho and Dr. Cheung at the trial, the bed sheet could emit FIR, especially under a high temperature. They gave evidence that in fact, every matter including the human body could also emit FIR provided it has temperature. However, the temperature of a human body was always higher than or equal to that of the bed sheet when a person rested on it. The amount of FIR emitted by the human body was higher than the bed sheet, so energy via FIR always transfers from the human body to the bed sheet. Hence, the human body could not gain any FIR from the bed sheet. In other words, the body had no net gain of FIR from the bed sheet. They also gave evidence that the bed sheet could not stop the human body from losing FIR. As a result, they made the conclusion that if FIR is desirable to the human body, the bed sheet is not effective in promoting the health."

15. In the Report, Dr Cheung and Dr Ho came to the conclusion that :

".... The conclusion is that using that particular bed-sheet will result in a person getting less infrared radiation when compared to using an ordinary bed-sheet."

Their main findings were :

"(a) The black dots on the bed-sheet emit a greater amount of far-infrared when the bed-sheet is hotter. (Refer to paragraph 4.)

(b) A hotter object such as a human body cannot gain any far-infrared energy from the bed-sheet at all. (Refer to paragraph 5.)

(c) A person using this bet-sheet actually lose energy via far-infrared at a higher rate than that without the black dots. (Refer to paragraph 6.)

Under normal use, this bed-sheet is not effective in stopping a person from losing far-infrared energy. If far-infrared is desirable to our health, then this bed-sheet is not effective in promoting our health."

16. In order to arrive at such conclusion, they conducted experiments including taking thermal videograph of a bed sheet when it was at room temperature which shows that no additional far-infrared is emitted in comparison to the background.

17. They found that :

".... The thermal videograph also shows that at room temperature, there is no temperature difference between the black dots and the white area."

And it is their view that according to the theory of heat transfer by radiation, since the bed sheet does not have any internal energy source it emits thermal radiation only.

18. They then went on to compare the black dots with the white background when the bed sheet was at a higher temperature than the room. The bed sheet is heated to roughly 70°C and allowed to cool down slowly. Several thermal videographs were then taken. Their conclusion is that the black dot on the bed sheet emits a greater amount of far-infrared when the bed sheet is hotter than the ambient. In technical terms, the black dots have a higher emissivity in the far-infrared region. So according to them :

"Consequence: According to the theory of heat transfer by radiation, emissivity is equal to absorption coefficient. So the black dot is expected to absorb comparatively larger amount of far-infrared radiation when its [sic] is at a temperature lower than its surrounding."

19. Also, with the use of a hot plate, they simulated the situation of a person resting on the bed sheet. They concluded :

".... When a hotter object such as a hot plate or a person is placed next to the bed-sheet, heat is transferred via far-infrared from the hot object to the bed-sheet. In other word, a hotter object such as a person cannot gain any far-infrared energy from the bed-sheet at all."

20. They then went on to consider whether the bed sheet can effectively reduce the rate of heat lost. In that respect they considered which material is a better far-infrared absorber, and they came to the conclusion at page 327 of the bundle :

"The conclusion is that the black dots absorb a larger amount of far-infrared when a hotter object is nearby. The hot object, after having emitting the far-infrared radiation, receives little far-infrared return from the black dots. The hot object actually recovers more far-infrared from the white area.

Consequence: The manufacturer of this bed-sheet made a critical technical error. If the bed-sheet is intended to give the human body a larger amount of far-infrared, then adopting the materials with higher emissivity actually results in the opposite effect. A person using this bed-sheet actually losses energy via far-infrared at a higher rate. "

21. This, according to Miss Ng, is irrelevant because the healthy effect of the FIR does not depend on any net gain. But given that FIR can be emitted by any number of objects, Miss Ng accepted that what is critical is that the bio-ceramics embedded in or contained in the bed sheet would emit FIR at a particular beneficial wave length, namely, 8 to 14 microns. There is however no evidence that the bio-ceramic in the bed sheets emits FIR at this wave length at all. However, it should be noted that emission of FIR at 8 to 14 microns was not relied on by Mr Yong of the appellant. In the attachment to Mr Yong's witness statement, he relied on FIR at the wave length of 8 to 12 microns.

22. For the proposition that FIR at this wave length is beneficial to health. The appellant relied on certain claims made in an U.S. patent application, namely, U.S. Patent Number 4,680,822 dated 21 July 1987. The Patent relates to certain bedding which is said to contain far-infrared radiator. The abstract reads :

"A bedding incorporates a piece or pieces of an alumina, zirconium, silicon or other specified far infrared radiating ceramic which radiates electromagnetic waves with a peak wavelength of 8 to 14 um when heated, particularly to a temperature approximately equal to the human body temperature."

23. It is not Miss Ng's case that the bed sheets contain the same far-infrared radiating ceramic, but this is relied on to show that the bio-ceramic used in the bed sheets would radiate FIR at wave length of 8 to 14 microns. Given that it is not the appellant's claim that the same material was used in the bed sheet, the learned tribunal officer's conclusion at paragraph 32 of his judgment dated 20 March 2003 :

".... Since the bed sheet is not the subject matter of these Patents, I consider these Patent Registrations are irrelevant to this case. Even relevant, they bear very little weight on evidence."

cannot be faulted.

24. The appellant also relies on a certain publication by Karo Maeda, Ph.D., M.D., Far-Infrared and The Medical Revolution, at page 335 of the bundle. The learned tribunal officer refused to have regard to this publication. This is the subject of the 3rd ground of appeal. From what I can gather from this publication which runs to 173 pages, at page 172 in the section headed "Conclusion" (page 342 of the bundle), Dr Maeda said :

"

Conclusion

All the plants and animals on earth live under the blessings of the sun. The sun's rays contains harmful ultraviolet and beneficial warming infrared light. One of the members of the infrared group is far-infrared, which has the same wavelength as the far-infrared that earth's animals emit.

When small animals that are more sensitively attuned to nature, like mice, cats, dogs, pigeons are exposed to far-infrared alone, they become captivated by its pleasant feeling. When plants are exposed to far-infrared as the photographs in the beginning of this book show, they grow much faster and more luxuriantly than plants exposed to direct sunlight on the window sill.

Seen in this way, the use of far-infrared is almost like recreating the environment that existed when plants and animals first appeared on the earth, an environment filled with negative ions.

An additional action that occurs under far-infrared light is the activation of enzymes (SOD) that rid the body of active oxygen. Progress is now being made on obtaining evidence for these assertions, evidence that will be made known in the future. I want to continue researching the questions of whether the anti-carcinogenic mechanism of comparatively low temperature (about the same as basking in the sun) far-infrared repetitive radiation activates normal cells and kills cancer cells directly or secondarily and, genetically, whether this is the result of activating cancer suppresser genes and DNA recovery enzyme genes. I would also like to take advantage of the many experiences given here and apply far-infrared treatment to a much wider range of illnesses."

25. I have to say I do not know in what way this publication is supposed to help the appellant's case. It does not prove that far-infrared is good for a person's health. Nor does it say that the bio-ceramic (if any) in the bed sheet will emit any FIR which is beneficial to a person's health. So the learned adjudicator was entitled to refuse reliance on this publication.

26. On the other hand, the experiments conducted by Dr Ho and Dr Cheung show not only there would be no net gain in FIR, the result of the experiment is that according to the theory of heat transfer, FIR would pass from the person to the bed sheet and not vice versa (see page 103 of the transcript). That is because as Dr Ho said at page 104I, the temperature of the bed sheet could not be higher than the temperature of the human body using the bed sheet, and therefore heat would be transferred from the body to the bed sheet.

27. On the evidence, the learned adjudicator has concluded that the bed sheet is not a health product and that it has no "new deep heating feature that improves blood flow".

28. I am of the opinion that the conclusion by the adjudicator is permissible on the evidence adduced before him, both on behalf of the respondents as well as on behalf of the appellant. Insofar as it is the appellant's case that the bed sheet promotes health in a particular way, it is sufficient for the respondents to show that the bed sheet does not promote health in that particular way. In this case, the respondents have shown by the Report and by the evidence of Dr Ho and Dr Cheung that there is no heat transfer from the colder object, namely the bed sheet, to the warmer object, namely the person using the bed sheet.

29. It does not matter that the experts called by the respondents knew nothing about bio-ceramic or that they knew nothing about the U.S. Patent Registration. What they were qualified to do is to show whether the bed sheet is capable of emitting FIR so as to heat or deep heat the person using the bed sheet.

30. Miss Ng argues that it erroneous to assume that any net gain of FIR by a human body is necessary in order to promote health. But there is no evidence how otherwise the bed sheet could improve the health of the user. Insofar as it is the appellant's case that it was the transfer of FIR from the bed sheet to the person using the bed sheet which promoted health, the evidence of Dr Ho and Dr Cheung is not simply based on the fact that there is no net gain, their evidence is that there would be a net loss of FIR from the person to the bed sheet.

31. It is said that the experts did not know whether it is necessary for a net gain of FIR by the body in order to have health benefit. The only evidence that the Tribunal had on which it was entitled to act was that the bed sheet would do nothing for the person. Although the burden of proof is on the respondents, that does not mean that the burden is on the respondents to eliminate all possibilities, however fanciful. Despite or because of the informality of proceedings in the Tribunal, the learned adjudicator was perfectly entitled to deal with the matter on the basis upon which the appellant contended that the bio-ceramic in the bed sheet would or could promote health. If that is not accepted or proved, then on the basis of the evidence adduced by the respondents, the Tribunal was entitled to find as a fact that the bed sheet did not correspond with description and was not of merchantable quality.

32. In my opinion, the decision of the learned adjudicator turned on the evidence. In other words, no issue of law was involved. He found on the facts that the bed sheet did not correspond with description and were not of merchantable quality.

33. There is no appeal from findings of fact from the Small Claims Tribunal. Indeed, on the evidence, with respect, the learned adjudicator was plainly right.

34. All the appeals are dismissed.

35. I make an order nisi for costs in favour of each of the respondents.