董小英 v. 曾玉玲 AND ANOTHER

HCSA 16/2023

[2023] HKCFI 3058

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

SMALL CLAIMS TRIBUNAL APPEAL NO 16 OF 2023

(On appeal from Small Claims Tribunal Claim No 22701/2022)

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DECISION

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1.  The Applicant Dr Tung Siu Ying Margaret (“Dr Tung”) is a practicing medical doctor. On 8 August 2022, she commenced SCT0022701/2022 in the Small Claims Tribunal claiming against Madam曾玉玲 (“D1”) a sum of HK$49,850 being the total fees for services rendered between 5 to 10 July 2022.

2.  After two call-over hearings and on or around 27 January 2023, Dr Tung joined Society for Innovative Healthcare Hong Kong Limited (“D2”) as the 2^nd Defendant.

3.  On 13 February 2023, D2 by a written application applied to pay into the Tribunal HK$49,850 for full and final satisfaction of the claim.

4.  By a written notice of acceptance dated 24 February 2023, Dr Tung indicated that she wished to accept D2’s proposed payment into the Tribunal as full satisfaction of her claim with the issues of filing fee, costs and interest to be dealt with at the adjourned hearing.

5.  The 3^rd call-over hearing was then held on 21 June 2023 before Adjudicator Dominic Pun (respectively “the Adjudicator” and “the Hearing”). At its conclusion, the Adjudicator gave the following order/directions (“the Subject Order”):

“ 1. 批准第二被告人於2023年6月28日或之前向本審裁處繳存49,850.00元作為解決申索人的申索之全部款項 (包括入稟費及訟費) (簡稱 “附帶條件和解付款”) ，有關款項未得法庭批准不得發放給任何人。

2. 申索人於2023年6月21日確認不接受附帶條款和解付款。

3. 訴訟雙方明白審裁處行使酌情權裁定訟費事，亦會考慮第二被告人所繳存的附帶條款和解存款，可能對申索人未能取得比附帶條款和解付款更佳的判決時發出對申索人不利的訟費命令。

4. 案件押後至2023年10月26日下午2時30分在第22 號法庭提訊。

5. 本次聆訊的訟費保留待決。”

6.  Written reasons for the Subject Order were provided by the Adjudicator on 12 July 2023 (“the Reasons”). The Adjudicator explained that an attempt to reach settlement at the hearing failed, that Dr Tung insisted to claim against D1 and D2 costs of the whole action and interest per her Statement of Costs totalling to HK$18,863.64 (costs at HK$15,872.64 and interest at HK$2,991), and thus the Subject Order was made adjourning the matter to be heard on 26 October 2023.

7.  On 28 June 2023, Dr Tung lodged an Application for Leave to Appeal on Point of Law in which the sole ground of appeal is stated to be:

“ 1. Obvious error of facts

(i) Regarding the said order item number one, the 2^nd defendant clearly chosen [sic] the first tick box, which excluding filing fee and costs. [see attachment “A”]

(ii) Regarding the set order number 2, The Claimant clearly chosen [sic] the tick box, which indicated she “accepts” [see attachment “B”]

The trial Adjudicator failed to address the evidence correctly.”

8.  Section 28(1) of the Small Claims Tribunal Ordinance sets out when leave to appeal may be granted :

“ 28. Leave to appeal on point of law

(1) Any party who is aggrieved by a decision of the tribunal—

(a) on any ground involving a question of law alone; or

(b) on the ground that the claim was outside the jurisdiction of the tribunal,

may apply to the Court of First Instance for leave to appeal and the Court of First Instance may grant such leave if it thinks fit.”

9.  Thus, leave to appeal would only be granted where the subject decision involves a question of law. Moreover, it is clear and trite law that leave to appeal shall not be granted unless the Court is satisfied that the intended appeal has a reasonable prospect of success.

10.  It is also clear and trite law that case management decisions are exercises of discretion by the trial court and only subject to appeal in rear circumstances, and the appellant faces a very high hurdle if one seeks to overturn such decisions, as elucidated by Kwan JA (as the learned VP then was) in Wong Kar Gee Mimi v Severn Villa Ltd [2012] 1 HKLRD 887 at §31:

“ It must also be borne in mind that the orders made by the Judge in the intended appeal are case management decisions in the exercise of the discretion of the trial judge. Case management decisions are only subject to appeal in rare circumstances. The appellant faces a “very high hurdle” and must show that the judge “has gone clearly wrong and made orders which will clearly involve an injustice or an inability for the trial court to carry out its task”[17], or if the judge “erred in principle or the order was irrational having regard to the issues that had to be resolved”[18]. It need hardly be emphasised that generally, an appellate court will not interfere with a judge’s exercise of discretion unless the judge has misunderstood the law or the evidence or the exercise of his discretion was plainly wrong such that it was outside the generous ambit within which a reasonable disagreement is possible [19].” (quoted without the footnotes)

11.  When this application was first heard on 18 August 2023, the court explained to Dr Tung (a) briefly the above-mentioned principles, (b) the Subject Order was a case management decision, and (c) it was not clear from what she wrote in the Application what her ground of appeal was. As Dr Tung had not filed her written submissions, she asked that she be given an opportunity to file her written submissions to argue her application. I acceded to her request.

12.  On 11 September 2023, Dr Tung lodged her written submissions (“the Written Submissions”). One day before this hearing, Dr Tung lodged her supplement submissions (“the Supplemental Submissions”).

13.  In the meantime on 26 October 2023, the Tribunal adjourned the claim to 5 April 2024 for another call-over hearing.

Discussion

14.  The Subject Order was evidently a case management decision, which was an exercise of discretion that is subject to appeal only in the rare situations as explained by Kwan JA (as she then was) above.

15.  Point 1 in the Written Submissions disputed that there was “no application” at the time of the Hearing and that therefore paragraph 1 of the Subject Order was made in error. Evidently, the application referred to in paragraph 1 of the Subject Order was D2’s written application mentioned in paragraph 3 above.

16.  The remaining Points in the Written Submissions were couched in rather strong language in which Dr Tung essentially complained rather unfocusedly that the Subject Order was unjust and was made in disregard of the situation at hand. There was a suggestion that the Adjudicator has fallen into error by miscomprehending the respective positions of the parties as shown by D2’s written application for payment into the Tribunal and Dr Tung’s written notice of acceptance dated 24 February 2023.

17.  Dr Tung’s main and real contention was made clearer and more focused in the Supplemental Submissions. As I understand it, her complaint is that her claim was evidently undisputed by D2, the sum of HK$49,850 paid into the Tribunal should have been released to her; and it is unjust that she has already been deprived of the money since July 2022, and in light of the fact that the hearing on 5 April 2024 would only be yet another call-over hearing, there would be “no ending in sight” and she did not know when she could recover the sum.

18.  To begin with, in the Small Claims Tribunal Ordinance Cap 338 or the Small Claims Tribunal (General) Rules Cap. 338A there is no provisions like those contained in Order 22 of the Rules of the High Court Cap 4A or Order 22 of the Rules of the District Court Cap. 336H governing and regulating the procedures, rights and entitlements of a party who offers to settle and to pay money into court in settlement of the claim. Section 16 of the Small Claims Tribunal Ordinance Cap 338 stipulates that the hearing before the Tribunal shall be conducted in an informal manner and during which the Tribunal shall inquire into any matter which it may consider relevant to a claim, which should include, no doubt, whether a party accepts the claim or is willing to settle it, and if so, on what terms, and whether the terms are acceptable by the claimant.

19.  This the Adjudicator in the Hearing was trying rather hard to do. The Hearing lasted 1 hour 18 minutes. I have read its transcript. At the Hearing and in light of D2’s willingness to pay the claimed sum into the Tribunal to settle the claim, the Adjudicator tried to ascertain Dr Tung’s positions regarding her claim for costs vis-à-vis D1 and D2 and to ascertain the respective positions of D1 and D2 generally and in relation to costs matters. The Adjudicator also tried to explain to Dr Tung that there might be different considerations regarding the costs position against D1 as compared to D2. In trying to help the parties hopefully to come to an early resolution, the Adjudicator along the way also tried hard to explain certain principles relating to the award of costs, and what their differences in costs position would entail in terms of way forward of resolving the claim.

20.  The above tasks turned out to be rather difficult. The parties were quick and keen to air their respective side of story and perspective. There were allegations of facts mixed with arguments raised piece-meal to the Adjudicator, and at times apparently rather heatedly. I note that at the Hearing the Adjudicator did not have the benefit of the parties’ witness statements or narratives of any sort regarding the parties’ factual case. He was thus not equipped to handle those allegations/arguments though the parties seemed to expect their respective case to be readily and favourably received.

21.  At some point in the Hearing, Dr Tung said she would accept nominal costs at HK$1, which after some discussions D1 and D2 agreed to pay. However, after the Hearing was adjourned for a few minutes for the preparation of the written settlement agreement, Dr Tung refused to go through with the settlement and insisted that both D1 and D2 had to pay her the claimed costs. Dr Tung said to the Adjudicator : “… 如果佢哋真係唔知錯到咁交關呢，我諗要--真係要畀佢 go through呢件事”[1]. The Adjudicator then explained to Dr Tung, among other things, that the Tribunal would not adjudicate on parties’ own perspective of “right” or “wrong” or whether a party should apologize to the other. Dr Tung then said to the Adjudicator : “咁你等佢go through 嗰件事，等佢自己慢慢諗下，原來其實佢哋都錯過囉 …”[2]. In the ensuing part of the Hearing, the Adjudicator understood from D2 that it wished to pay the sum into the Tribunal as full and final settlement of, not just the claim, but the whole claim including filing fee and costs (which was refused as such by Dr Tung). The Adjudicator also discussed with the parties the scheduling of the next hearing.

22.  The Adjudicator then gave the Subject Order. Moreover, he explained to the parties what they should include in their witness statements and then also gave directions to the parties to file their respective witness statements.

23.  Accordingly and as can be seen from the transcript, the Adjudicator in fact was keenly aware of the parties’ respective positions when he made the Subject Order. I do not accept Dr Tung’s contention that the Adjudicator has in any way failed to comprehend the parties’ positions correctly.

24.  In my view, the Subject Order as a case management decision has not fallen into any of the errors set out in paragraph 10 above. Thus, Dr Tung has failed to show any ground of appeal on a point of law.

Disposal

25.  I would therefore dismiss this application with no order as to costs.