關炳松 v. 林輝慶及另一人

HCSA 17/2019

[2019] HKCFI 2525

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

SMALL CLAIMS TRIBUNAL APPEAL NO 17 OF 2019

(ON APPEAL FROM SMALL CLAIMS TRIBUNAL

CLAIM NO 25712 OF 2018)

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D E C I S I O N

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1.  Mr Kwan was the claimant in Claim No. 25712 of 2018 in the Small Claims Tribunal. He claimed compensation in the sum of $5,040 for minor damage to the rear bumper of his car allegedly caused by another car, which was apparently in the control of the 1^st defendant (Lin) and the 2^nd defendant (Chow) at the time. There were two pre-trial hearings on 5 and 20 December 2018 respectively and the trial of the claim took place on 10 January 2019, at the end of which the Adjudicator (Mr Lawrence Ngai) reserved his decision to a hearing on 25 January. Without waiting for the outcome, however, Mr Kwan filed a notice of discontinuance of his claim on 11 January. On the same date, the Adjudicator granted leave to discontinue.

2.  The defendants applied for costs from Mr Kwan. That application was heard by the Adjudicator on 15 February.  In the result, he ordered Mr Kwan to pay Lin $19,830.50 and to pay Chow $1,483.60 as costs and expenses.  In doing so, the Adjudicator accepted their claims for lost salaries incurred for 3 hearings and the transportation costs (except that he rejected Lin’s claims for higher transportation costs on 5 December 2018 and 10 January 2019 — see the Tribunal’s reasons for decision, §§11 & 12).  The breakdown of the sums are as follows:

Lin

-  5 December 2018 ($6,560 lost salary + transport costs $240.50)

-  20 December 2018 ($6,560 lost salary + transport costs $240.50)

-  10 January 2019 ($5,989 lost salary + transport costs $240.50)

Chow

-  5 December 2018 ($500 lost salary + $9.20 MTR fares)

-  20 December 2018 ($500 lost salary + $9.20 MTR fares)

-  10 January 2019 ($456 lost salary + $9.20 MTR fares)

3.  An application by Mr Kwan for review was heard on 16 April and 17 May.  Chow attended on behalf of both herself and Lin.  Dismissing the application, the Adjudicator on 17 May ordered Mr Kwan to pay Chow additional costs for the review hearings in the sum of $951.40.

4.  Mr Kwan now seeks leave of the Court of First Instance to appeal against the costs orders.  His grounds, as set out in the appendix to his Application for Leave to Appeal on Point of Law, are that (i) on 15 February the Adjudicator approved the defendants’ claims for costs based only on photocopies of the documents they relied upon, without asking for the originals, (ii) on 16 April Chow did not bring her own original documents to the review hearing, (iii) the original of the employment contract of Lin submitted by Chow on 16 April was not convincing because he might have left the company afterwards, (iv) on 17 May Chow submitted the original letter from the Inland Revenue Department only, but not her employer’s approval of her leave applications, and (v) overall, the defendants’ claims for costs have not been verified.  At the hearing, Mr Kwan reiterated that that the Tribunal should not have been satisfied with the evidence of costs and expenses provided by the defendants.

5.  As provided in s 28(1)(a) of the Small Claims Tribunal Ordinance (Cap 338) (“Ordinance”), an appeal lies against a decision of the Tribunal, with leave of the Court of First Instance, on any ground involving a question of law alone.  It is therefore necessary for Mr Kwan to identify an error in the Adjudicator’s decision that raises a question of law.

6.  The Tribunal has jurisdiction to award costs by virtue of s 24 of the Ordinance, which provides:

“ (1) …the tribunal may award to a party costs and expenses, which may include—

(a) any reasonable expenses necessarily incurred and any loss of salary or wages suffered by that party; and

(b) any reasonable sum paid to a witness for expenses necessarily incurred and any loss of salary or wages suffered by him,

in attending the hearing.”

7.  Rules of evidence do not apply in the Tribunal and the Tribunal may receive any evidence which it considers relevant: see s 23(2) of the Ordinance.  In this connection, To J in Golden Best Investment Ltd v Secretary for Justice (unrep, HCSA 39/2015, 12 May 2016)[1] at §12 observed that:

“ The Claimant’s ground of appeal based on lack of evidence to support the tribunal’s finding has to be viewed in the context of proceedings in the tribunal to which the rules of evidence do not apply by virtue of section 23 of the Small Claims Tribunal Ordinance. The underlying objectives of the Small Claims Tribunal as well as the Labour Tribunal are the speedy, cost effective and just resolution dispute of the controversies in dispute between the parties (快、廉、美). The last objective does not warrant an adjudicator to depart from the well‑established legal principles in receiving and weighing evidence. Any finding of fact must be supported by credible evidence. What that section dispenses with is formal proof, such as proof of chain of evidence and formal production of exhibits etc. This section is not to be applied rigidly. If a factual issue can be proved relatively easily without a party having to incur much costs or effort, there is less reason to dispense with formal proof. If a factual issue has a very serious impact on the ultimate decision of the tribunal, more cogent evidence is required. How this section is to be applied in a particular case is a matter of discretion for the tribunal based on consideration of proportionality, costs and common sense. The overall guiding principle is justice in the resolution of the parties’ dispute.”

8.  As to Mr Kwan’s criticism of the Tribunal for not verifying the relevant documents, this is in substance a challenge against the Tribunal’s finding of fact.  The purpose of verification is to ascertain the authenticity of the evidence submitted. Ultimately, Mr Kwan’s complaint goes into the quality of the evidence.  He has not advanced a positive case or any matters that suggest that the documents supplied by the defendants were forgeries or otherwise unauthentic.  The Tribunal has examined copies of the relevant documents at the hearing on 15 February and later the originals on 17 May (Lin’s employment contract and salary slips: see Tribunal’s reasons for decision at §§10 & 26).  It accepted the documents as authentic, and accepted the defendants’ statements of their losses.

9.  Mr Kwan said at the hearing that his main point was that the Tribunal awarded costs on 15 February without seeing the originals.  I acknowledge that there may be circumstances in which the Tribunal should not act on photocopies and should require production of the originals even at the first instance.  But in any event the originals and further documents were produced in the review hearings in this case.  Lin’s employment contract bore a company’s stamp, signatures and his fingerprint.  The salary slips also had the company’s stamp.  Lin had also earlier submitted a copy of the business licence of the employer company. 

10.  According to the Tribunal’s reasons at §18, the main point taken by Mr Kwan at the review hearing on 16 April was that the defendants should produce the notice of assessment to tax issued to them by the Inland Revenue Department.  On 17 May Chow produced a letter from the Inland Revenue Department (marked as D18) showing that no notice was issued to her as she did not have to pay tax for the relevant year, and showing that her annual income reported was the same as that stated in the copy employer’s return submitted to the Tribunal on 15 February.  Chow also adduced a salaries tax report of the employer (D17) showing the monthly breakdown of the annual figure which evidenced the deductions made for days of absence during the months in which the relevant hearings in the Tribunal took place.

11.  On the basis of the available materials, I am unable to detect any error of law in the Adjudicator’s decision. Nor can it be said that the Tribunal’s findings and awards were irrational. For these reasons, while one regrets that Mr Kwan has found himself in the unfortunate position of having to pay costs in an amount exceeding his withdrawn claim, the application for leave to appeal has to be dismissed.