GOLDEN BEST INVESTMENT LTD v. SECRETARY FOR JUSTICE

HCSA 39/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

SMALL CLAIMS TRIBUNAL APPEAL NO 39 OF 2015

(ON APPEAL FROM SMALL CLAIMS TRIBUNAL

CLAIM NO 820 OF 2015)

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J U D G M E N T

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INTRODUCTION

Introduction

1.  This is the Claimant’s appeal against the decision of the deputy adjudicator of the Small Claims Tribunal dismissing its claim against the Defendant for damages caused by the Building Authority over-charging it cost of repairs to its property (“the said costs”) occasioned by an emergency and interest for late payment.

The facts

2.  The Claimant is a company incorporated in Hong Kong and the sub-lessee of a ground floor unit (the “Claimant’s property”) in an estate development (the “estate”) in Cheung Chau.  The owner of the Claimant’s property is Wong Wai Tsak Tong (the “Tong”).  The estate was damaged in a typhoon in September 2008.  In the opinion of the Building Authority, the estate was rendered dangerous or liable to become dangerous within the meaning of section 26 of the Buildings Ordinance.  Pursuant to section 26(4), the Building Authority decided a case of emergency was created by the dangerous state of the estate and instructed a building contractor registered with the Building Authority (“registered contractor”) to carry out emergency work on the estate between 24 September and 2 December 2008.  The Building Authority apportioned the total costs of repairs to each of the owners of the estate according to his undivided shares in the interest in the estate and charged the Claimant the said costs in the amount of $98,642.

3.  On 6 November 2009, the Building Authority issued a demand note to the Claimant at its registered office in Provident Centre in North Point by ordinary mail demanding payment of the said costs.  The Claimant did not pay.  The Claimant’s case is that it never received the said demand note.

4.  On 26 January 2010, pursuant to section 33(1) of the Buildings Ordinance, the Building Authority issued a certificate (the “Certificate”) and caused a copy to be posted on the notice board of the incorporated owners of the estate and a copy under a cover letter sent to the Claimant at its registered office by registered post. The Claimant’s case is that it never received the cover letter and copy of the Certificate and never saw the copy of the Certificate in the notice board of the incorporated owners.  The Claimant said that the Claimant’s property was left vacant and it seldom visited it.

5.  Pursuant to section 33(4) of the Buildings Ordinance, the Building Authority claimed interest at the rate of 10% per annum from the expiry of one month after service of the copy of the Certificate on the Claimant.

6.  On 4 March 2010, the Building Authority registered the Certificate against the registered particulars of the Claimant’s property in the Land Register of the Land Office.

7.  On 6 January 2015, the Claimant filed a claim with the Small Claims Tribunal claiming damages.  Its grounds of claim are in essence that the said costs were excessive and unreasonable; that it did not receive the demand note; and that no opportunity was given to the owners to effect the repairs.  It alleged that it suffered much damage, but only claimed the sum of $50,000, waiving the surplus, so as to keep the claim within the jurisdiction of the Small Claims Tribunal.

8.  On 12 March 2015, the Claimant paid the said costs and interest in the total amount of $148,314.33.

9.  On 26 June 2015, the learned deputy adjudicator dismissed the Claimant’s claim.

The grounds of appeal and applicable legal principles

10.  The Claimant advanced seven grounds of appeal. Five are aimed at the said costs; one is at the interest charged by the Building Authority and one is founded on bias.  Apart from the last one, the grounds revolve around lack of evidence and the deputy adjudicator’s breach of duty to inquire. 

11.  In essence, the majority of these grounds of appeal are merely attacks on the finding of fact and inference drawn from those finding of fact by the tribunal framed as error of law.  Specifically, the Claimant alleges that the cost of repairs were excessive and unreasonable and that the Certificate had not been duly served on the Claimant.  Under section 28 of the Small Claims Tribunal Ordinance, a party aggrieved by a decision of the tribunal may only appeal on any ground involving a question of law alone or on the ground that the claim was outside the jurisdiction of the tribunal.  The tribunal’s finding of fact is not appealable unless the determination is based on a finding of fact or inference from those facts which is perverse or irrational, or where there is no evidence to support the decision or where the decision was made by reference to irrelevant factors or without regard to relevant factors.  In an appeal on law only, the appellate court must bear in mind what scope the circumstances provide for reasonable minds to differ as to the conclusion to be drawn from the primary facts found.  If the conclusion found by the fact-finding tribunal is reasonable, that is one which is within the scope for reasonable minds to differ, the appellate court cannot disturb that conclusion, even if its own preference is for a contrary conclusion.  But if the appellate court regards the contrary conclusion as the true and only reasonable one, the appellate court is duty-bound to substitute the contrary conclusion for the one reached by the fact-finding tribunal: per Bokhary PJ in Kwong Mile Services Limited And Commissioner of Inland Revenue [2004] 3 HKLRD 168 and adopted in Guido Ferrando and Hua Dao Shipping (Far East) Limited, HCLA 44 of 2007.  This is the test I shall apply in deciding whether to overturn the finding of fact by the learned deputy adjudicator.

12.  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 commonsense.  The overall guiding principle is justice in the resolution of the parties’ dispute. 

13.  Another challenge launched by the Claimant is that the learned deputy adjudicator was in breach of his duty to inquire into relevant matters.  Section 16 of the Small Claims Tribunal Ordinance imposes a statutory duty on the tribunal to inquire into any matter which it may consider relevant to a claim, whether or not it has been raised by a party.  Ms Tsau, counsel for the Claimant refers to the principles governing the duty to inquire under section 20(3) of the Labour Tribunal Ordinance laid down in Chan Suk Bing Angie v Harbour Phoenix Ltd & Anor[1]. Those principles have been regarded as equally applicable to the adjudicator’s duty to inquire under the Small Claims Tribunal Ordinance as the regime under the two tribunals are similar.  In Chan Suk Bing Angie, Deputy High Court Judge Jerome Chan (as he then was) said[2]: 

“ … I accept … such a statutory duty [to investigate] is not an absolute one in the sense that the Presiding Officers do have a ‘discretion’ in the matter. They are only bound to investigate matters they ‘may consider relevant’. …

It is obvious that not every failure to investigate a relevant matter will give rise to an appeal for a failure to discharge a statutory duty. The relevant matter forming the subject matter of the complaint must not only be relevant but be of such a nature that the lack of investigation will give rise to injustice, in that, a fair and proper determination of the claim cannot be attained. All the circumstances of the case as well as all other findings must be given all due regard before such a complaint can be upheld. Further, not only is the total absence of investigation a ground for complaint, totally inadequate or useless investigation which amount to no investigation at all will also suffice. It is however, never sufficient for the appellate court to conclude that it would have preferred to approach the matter differently or that there is a better way to investigate the claim. It is not open to the appellate court to prefer its own views to that of the Presiding Officer’s as to the manner of investigation. To suffice, it must be a clear and obvious case that the inadequacy of the investigation will render an ordinary reasonable man on the tram to Shaukiwan to conclude that injustice has resulted in that a fair and proper determination of the claim cannot be attained.

A complaint of a failure to discharge the statutory duty to investigate is not to be confused with an attack on a finding on the basis that it is contrary to the weight of evidence.  The latter is not a ground for appeal for a labour dispute in the tribunal.  The insufficiency of evidence to support a finding or the inconsistency of a finding with the evidence, are matters that the appellate court can properly take into account to determine whether there has been a failure to conduct any or any adequate investigation of material facts relevant to such a finding. But that is as far as the relevance of these matters go in relation to the failure to discharge the statutory duty. They do not per se prove a failure to discharge the statutory duty. …”

14.  The principles applicable to an adjudicator’s duty to inquire arose in James Manuel Ho & Anor v Grand Pacific Vacation (Hong Kong) Limited[3], which is an appeal from the Small Claims Tribunal.  After referring to Chan Suk Bing Angie, Chung J summarised the principles applicable to the adjudicator’s duty to inquire as follow:

“ 14. The extent to which the duty imposed on the Tribunal … to inquire must depend on the individual circumstances of each case. However, the following legal principles can be gathered from the relevant judgments:-

(a) the duty to inquire is limited to a duty to inquire into any matter “which it may consider relevant to a claim”;

(b) the duty is not absolute;

(c) not every failure to inquire a relevant matter gives rise to a valid ground of appeal. The failure must be of such a nature that it gives rise to injustice in that a fair and proper determination cannot be attained;

(d) “matter … relevant to a claim” can cover matters of various degrees of relevance to a claim. The Tribunal has no duty to inquire into all matters of relevance irrespective of whether they have a reasonable basis;

(e) the manner of investigation is a matter of discretion for the Tribunal dependent on the facts of the case before it. The appellate court should not interfere with that discretion merely because it would have exercised it in a different manner. Regard can be taken of matters such as the issues in dispute, the incontrovertible evidence before the Tribunal and materials placed before the Tribunal by the parties prior to the trial before the Tribunal;

(f) on the other hand, the duty to inquire does not mean the Tribunal should take over the role of an advocate for a litigant. The Tribunal must remain neutral and impartial. Thus, litigants must still be allowed to cross-examine witnesses for the other side, and litigants cannot be compelled to testify against their wishes. But the Tribunal has a duty to invite litigants to consider giving evidence when it is apparent he could give evidence on important matters in issue;

(g) the duty to inquire can include the Tribunal inviting the parties to comment on matters, or, if necessary, directing them to produce evidence or documents, relating to matters which the Tribunal discerns to be important.”

These principles are all pertinent.  The duty to inquire depends on the individual circumstances of each case.  It is not an absolute duty.  It is only limited to inquire into any matter which the tribunal may consider relevant to the claim before it.  How that duty is to be carried out is a matter of discretion for the tribunal having regard to the circumstances of the case.  For the appellate court to intervene, it has to be satisfied that the lack of investigation will give rise to injustice, in that, a fair and proper determination of the claim cannot be attained.

DISCUSSION

Ground 1:   excessive cost of repairs

15.  Under this ground, the Claimant complains that the learned deputy adjudicator erred in dismissing Claimant’s evidence that the total cost of repairs charged by the Building Authority was excessive by focussing solely on whether the legality of charging cost as indicated in page 14L-N of the transcript.  There was no or no sufficient analysis of whether the total cost charged was excessive.  The basis of its complaint is that it was able to produce two quotations from Kwan Kee Decoration Eng Co dated 15 May 2014 for $70,000 and from Nga Tao Decoration Engineering Co dated 17 May 2014 for $38,000 for all the repair work.  These two quotations totalled $108,000 stand in stark contrast to the total cost of repairs of $393,854.80 paid by the Building Authority. 

16.  Indeed it is recorded in the transcript that the deputy adjudicator explained to the parties that the issue was not whether the cost was reasonable but whether the Building Authority had statutory authority to charge cost in a case of emergency.  Be that as it may, as pointed out by Mr Lai, counsel for the Defendant, that was an exchange between the deputy adjudicator and the parties during a pre-trial review on 8 June 2015 when the deputy adjudicator explained the issues to the parties.  However, as reflected in his speech when delivering his oral reasons, the deputy adjudicator did not take that approach: see page 2 of the transcript.  At paragraphs 25 and 26 of his Reasons for Decision, he gave full reasons.  It is clear from these paragraphs that the deputy adjudicator had considered the question of reasonableness of the cost of repairs.  He gave the following reasons for not relying on the two quotations.  First, the scope of work covered by the two quotations tendered by the Claimant was different from the work actually executed by the registered contractor employed by the Building Authority.  Second, the quotations were obtained in 2014, six years after the incident.  Third, the total repair cost charged was calculated according to standard rates under the Buildings Department’s contract with its registered contractors and quantities based on actual measurements on work done.  That is supported by documentary evidence presented by the Building Authority at trial.  It is not the Claimant’s case that the quotations obtained by the Building Authority were false or the measurements overstated or that the Building Authority did not actually incur such costs.  Obviously the  Claimant’s contractors giving the quotations six years later had no idea of the state of the estate after the typhoon, the damage done and the extent of work required.  Under these circumstances, the deputy adjudicator is entitled to give more weight to the Defendant’s opinion on the reasonableness of the total cost of repairs.

17.  It is unfortunate that the deputy adjudicator had misdirected himself and the parties at the pre-trial review.  However, he made full and proper inquiries at trial.  It is clear from pages 31P to 35B of the transcript that he explored the issue of reasonableness of the cost of repairs from both the Claimant and the Building Authority’s representative.  In my view, he carefully weighed the evidence of both parties and reached a conclusion in paragraphs 25 and 26 of his Reasons for Decision which is unquestionable.  There is nothing in this ground of appeal.

Ground 2:   reasonableness and legality for charging cost of repairs

18.  This ground is part and parcel of the first ground.  The Claimant complains that the deputy adjudicator erred in relying on the power given to the Building Authority under section 26(4) of the Buildings Ordinance to recover cost of repairs to buildings incurred in a state of emergency from their owners as the basis to determine that such cost was not excessive.  This subsection provides as follows:

“ In cases of emergency the Building Authority may carry out or cause to be carried out such work as may appear to him to be necessary either without notice to the owner, or before or after such notice, and so far as it is in the opinion of the Building Authority attributable to such emergency the cost thereof shall be recoverable from the owner. The decision of the Building Authority that the particular case is one of emergency shall be final and binding on all persons.”

19.  This is an unfair criticism.  The deputy adjudicator referred to this section for the purposes of dealing with (a) the legal authority of the Building Authority to determine whether a particular case is one of emergency (see paragraphs 19-20 of the Reasons for Decision); and (b) the authority of the Building Authority to carry out repair work without giving prior notice to the owners.  He did not rely on it as the basis to dismiss the Claimant’s complaint of excessive cost of repairs.

Ground 3:   rejecting the Claimant’s evidence

20.  This ground is also part and parcel of the first ground.  In essence, the Claimant complains that the deputy adjudicator erred in rejecting the Claimant’s evidence on the cost of repairs merely because there was a tender procedure to hire a “qualified contractor” to carry out work and that the quotations were prepared by his witnesses who were not professionals.  He complains, for example, that the cost charged by the Building Authority’s contractor for replacing the iron railing was $55,220.73, which was grossly higher than the quotation of $15,000 by Kwan Kee Decoration Eng. Co.  He also complains that the deputy adjudicator erred in rejecting his quotations because they were made subsequent to the execution of the repair work and for failing to take inflation over the years into account.

21.  I have dealt with these complaints in paragraphs 15 and 16 above.  It is all a question of weight and fact finding by the deputy adjudicator.  For reasons as given in those paragraphs, there is no reason to interfere with the finding of the deputy adjudicator.

Ground 4:   allowing claims for non-urgent work

22.  The Claimant refers to the quotation prepared by the Building Authority’s registered contractor which listed only one item as “very urgent work” attributable to the Claimant’s property, which was hoarding board of 2.7 metres, occasioning cost of $404.  The Claimant argues that the deputy adjudicator erred in ruling that the Building Authority had been entitled to carry out all other repair work on account of emergency and charge the Claimant a share of the total cost of repairs.

23.  This ground is frivolous.  First, emergency is not confined to “very urgent work” only.  As explained by the Building Authority’s representative at the hearing before the tribunal, “very urgent work” only indicated the degree of emergency in carrying out the repair work.  The application of this term to a particular item of work does suggest that the other items of work fell outside the scope of emergency.  Second, under section 26(4) of the Buildings Ordinance, the decision of the Building Authority that a particular case is one of emergency shall be final and binding on all persons. Whether the state of the estate was a case of emergency was beyond dispute.  The deputy adjudicator’s duty to inquire cannot be overstretched to query that decision of the Building Authority.  Third, all owners of units in the estate are co-owners of undivided share in the entire estate.  They were all jointly liable for the cost of repairs.  There is no basis for the Claimant to argue that he was only liable for the cost of the hoarding board for his surrounding the Claimant’s property only and not other cost of repairs. 

Ground 5:   failure to conduct the proceedings in an informal manner

24.  The Claimant complains that the deputy adjudicator failed to conduct the hearing in an informal manner and erred in rejecting his quotations as not having been prepared by professionals and for his inability to show and/or substantiate, and/or not allowing him to provide the qualifications and/or professionalism of the contractors from whom his quotations were obtained.

25.  Relying on page 33 of the transcript, the Claimant accuses the deputy adjudicator of not allowing him the opportunity to provide evidence of the professional qualification of his contractors who provided the quotations.  This is a based on a misreading of the transcript.  From the transcript, it is clear that the deputy adjudicator made inquiries from the Claimant’s representative and ascertained from him that its contractors had electrician licence and plumber licence, but the Claimant’s representative confirmed that he could not produce evidence whether those contractors were “accredited by the government（合資格的承建商）”.  Presumably, by that term, the deputy adjudicator and the Claimant meant “registered general building contractor” within the meaning of section 2 of the Buildings Ordinance, ie “a person whose name is for the time being on the register of general building contractors maintained under section 8A (of that Ordinance)”.  The transcript shows that the deputy adjudicator did not stop the Claimant from adducing evidence as to its contractors’ professional qualification.  The deputy adjudicator went as far as the Claimant’s representative could go at the hearing until he confirmed that he could not provide further information.  The deputy adjudicator could have gone further by adjourning the hearing and ask the Claimant to obtain further information from its contractors.  He did not.  That is a matter of discretion for him.  I do not think the adjudicator erred in not exercising his discretion to inquire in the circumstances.  The contractors had no opportunity to see the state of the damage six years ago and the scope of work covered by their quotations was not the same as that covered by the government contractor.  For reasons as explained in paragraph 16, it would be a futile exercise to inquire.  It was unfortunate that the deputy adjudicator included the lack of professional qualification as a ground for rejecting their quotations, which was wholly unnecessary and uncalled for.  But for reasons as explained above, that blemish has no bearing on the conclusion reached by the deputy adjudicator.

Ground 6:   overpaid interest

26.  Overpaid interest is the most rigorously argued ground of appeal.  The Building Authority charged the Claimant interest on the cost of repairs from 26 February 2010 up to 11 March 2015.  The Building Authority has statutory authority under section 26(4) of the Buildings Ordinance to carry out urgent repair work on a building which was rendered dangerous and recover the cost of such work from its owner.  The Building Authority’s basis for charging interest is section 33(4) of the Buildings Ordinance which provides that interest at the rate of 10% per annum from the expiry of one month from the date of service of the Certificate on the owner.  Thus the focal point of the parties’ argument is when, if at all, was the Certificate served on the Claimant.  The Building Authority relies on service by registered post and by posting of a copy of the Certificate on a conspicuous part of such premises or land, namely the notice board of the incorporated owners, under section 35(1)(b) and (c) of the Buildings Ordinance.  The Claimant denies having received the Certificate by registered post or had notice of the copy of the Certificate on the notice board.

27.  Prior to issuing the Certificate, the Building Authority had on 6 November 2009 issued a demand note for the cost of repairs and sent it by ordinary post to the Claimant’s registered office in Provident Centre.  According to a copy of the demand note produced by the Building Authority, the name and address of the Claimant as shown on the copy are correct. The Building Authority produced a copy of its office minute presumably from a clerical officer responsible for accounting matters confirming that demand notes had been sent by post to all owners of the estate.  The Claimant denies having received the demand note.  Ms Tsau criticises the Building Authority’s evidence on the basis that that officer had not been called and no evidence of posting had been adduced.  In my view, this is precisely the sort of situation which is covered by section 23 of the Small Claims Ordinance which dispenses with formal rules of evidence for proceedings in the tribunal.  I also consider the evidence of posting credible.  The deputy adjudicator conducted further inquiry and was informed by the Building Authority’s representative that the demand note had not been returned by post.  Having heard the Claimant’s evidence, the deputy adjudicator held that the Claimant had not rebutted that issue, ie that the demand note had not been returned by post.  Then he reached the conclusion that the Building Authority had issued and posted the demand note and the Claimant had duly received it.  I would consider the evidence of non-return by post somewhat flimsy without any evidence from the accounting officer dealing with such matters.  I would also not place much significance on the non-return of the demand note as it was not sent by registered post.  However this is a finding of fact which was open to the adjudicator to make on the totality of the evidence.  It was within the realm of reasonable disagreement.  Basically, that boils down to whether he believed the Claimant and that the demand note had, for some reasons, not reached the Claimant’s registered office by the usual course of delivery by post.  The adjudicator chose not to.  This is a finding of credibility which an appellate court will not interfere.  However, whether the Claimant had received the demand note is not a material issue.  It is only part of the factual background.

28.  At trial, the Claimant relied on a reminder dated 18 June 2010 issued by the Department of Justice demanding payment of the cost of repairs.  It was addressed to the managers of the Tong and not the Claimant which is the sub-lessee from the Tong.  He argued that as the reminder was issued to the Tong, the demand note would also have been issued to the Tong and not the Claimant.  That argument was rejected by the deputy adjudicator.  That must be correct as the copy shows that it was addressed to the Claimant at the correct address of its registered office and not to the Tong.  In any event, as I say, the issue and receipt of the demand note is not material to this claim.

29.  I now return to the crucial issue of service of the Certificate.  First, the Building Authority relies on posting of a copy of the Certificate on the notice board of the incorporated owners under section 35(1)(c) of the Buildings Ordinance as evidence of service of the Certificate on the Claimant.  It produced a statement from its surveyor, who presumably had conduct of the repair work, alleging that its staff had posted a copy of the Certificate on a conspicuous part of the estate and exhibited a number of photographs with captions.  One of the photographs with a caption “s.33 certificate @ f(39) and f(40) were posted on the notice board of the IO” purportedly shows a copy of the Certificate posted on the notice board of the incorporated owners.  Another photograph with a caption “Notice for s.33 certificate to the owner of Flat B, G/F, Block 1 is posted” purportedly shows some papers posted on the iron grille of a building.  It is the submission of the Building Authority’s representative before the deputy adjudicator that that photograph showed a notice posted at the iron grille of the Claimant’s property and that notice drew the Claimant’s attention to the copy of the Certificate posted on the notice board of the incorporated owners. 

30.  The Claimant disputed that he had ever seen any paper posted on the iron grille of the Claimant’s property.  Its closing submission before the adjudicator was that by arguing that the Certificate was posted in a conspicuous place in the Block 1 and Block 3 of the estate, the Building Authority failed to prove that the Certificate was posted at the Claimant’s property.  Obviously, he missed the issue.  It was not the Building Authority’s case that the Certificate was posted on the Claimant’s property or at a conspicuous place on the Claimant’s property.  The Building Authority’s case was that a copy of the Certificate was posted in a conspicuous place of the premises or the land of which the Claimant’s property formed part, pursuant to section 35(1)(c) of the Buildings Ordinance which renders such posting effective service on the Claimant.

31.  Ms Tsau submits that the above evidence is insufficient proof of service of the Certificate.  Neither the surveyor nor the representative of Building Authority was the person who posted the notice or a copy of the Certificate on the notice board.  She also refers to page 28 of the transcript in which the deputy adjudicator said that he could not see from the photograph what was actually posted.  The above evidence is indeed not sufficient proof in proceedings where the usual rules of evidence apply. However, this is again precisely the kind of situation covered by section 23 of the Small Claims Tribunal Ordinance.  The surveyor gave a witness statement after examining the official records of the Buildings Department and produced the photographs.  There is no dispute that the notice board depicted in the photograph was the notice board of the incorporated owners.  Though the process server was not called to testify about posting of the copy of Certificate on the notice board and the caption on the photographs, what the surveyor said was according to the official record of the Buildings Department which must have been prepared by staff of the department whose duty it was to keep an accurate record of the procedures.  Though the process server was not called to testify or to make a witness statement, the fruits of his work, ie the photographs, were before the tribunal.  This is not a case of no evidence, but a case of a missing link in the production of evidence.  The evidence is credible.  Insofar as the deputy adjudicator’s remarks are concerned, it is obvious from his advice to the representative of the Building Authority that in future a close up photograph should be taken that he accepted that the photograph was a photograph of the copy of the Certificate posted on the notice board.  On the evidence available and having regard to section 23, it was open to the deputy adjudicator to find as he did that a copy of the Certificate was posted on the notice board of the incorporated owners.  It is all a matter of proportionality and common sense.  On the facts, it can hardly be disputed that the notice board was a sufficiently conspicuous part of such premises or land of which the Claimant’s property formed part.  Hence, the posting was sufficient service on the Claimant.

32.  The Claimant went on to argue, based on the photographs that the notice of posting of the Certificate was posted on the wrong iron grille.  In other words, he disputed the captions in the photographs relating to the posting of the notice of the posting of a copy of the Certificate, but not the posting of a copy of the Certificate on the notice board of the incorporated owners.   

33.  This is a matter of credibility for the deputy adjudicator.  Again, the deputy adjudicator chose to believe the surveyor and not the Claimant.  In the absence of evidence from the process server, there is nothing to contradict the live evidence of the Claimant.  As the Building Authority bears the burden of proof, I would respectfully differ from the adjudicator’s finding.  However, as I have said, the posting of this notice is not necessary for proving service.  This issue has no impact on the proof of service of the Certificate on the Claimant. 

34.  Second, the Building Authority relies on service by registered post addressed to the last known place of business or residence of the Claimant under section 35(1)(b) of the Buildings Ordinance.  The Building Authority’s surveyor produced a copy of a covering letter dated 26 January 2010 addressed to both the Tong and the Claimant at the registered office of the Claimant.  The letter allegedly enclosed a copy of the Certificate and, in addition, informed the Claimant that a copy of the Certificate had been posted in a conspicuous place in the premises or land of the Claimant.  The letter bears the typed words “registered mail” and a chop dated 27 January 2010, which the Building Authority relied on as evidence of posting by registered mail on 27 January 2010.  The Claimant’s evidence was that it never received this covering letter or a copy of the Certificate.  Its representative claimed that he only saw the covering letter for the first time in the tribunal.  The adjudicator held that the Claimant failed to adduce substantial evidence to rebut the Building Authority’s case and found that a copy of the Certificate was duly served on the Claimant by registered post on 27 January 2010.

35.  Ms Tsau raises the same objections to the sufficiency of the evidence of posting of the registered mail.  I agree with Ms Tsau that the evidence produced by the Building Authority was unsatisfactory.  The officer who issued or posted this letter was not called.  No evidence of posting or office routine in posting registered mail was adduced.  Unlike the conclusion I reached in paragraph 31 in which the photographs of the process server were produced, the fruits of the officer who posted the registered mail were not produced.  The posting of any registered mail would be supported by a certificate of posting.  None is produced.  Not even a minute in the office record of such posting was produced.   It is incredible that a government department would have failed to keep such record.  It would take little effort to retrieve such a record for production.  If no such record is available, the Building Authority could have called some responsible officer to explain why and how according its receiving and despatch routine the registered mail would have been sent.  Such evidence should be available and could be easily adduced. Service is a very important issue.  It has a serious consequence of creating heavy penalty on the Claimant.  Proportionality requires some evidence of posting to be adduced.  This is a case of total absence of evidence of posting and not the case of a missing link in the production of exhibit supporting the posting of the registered mail.  With respect to the deputy adjudicator, his finding in this respect is not supported by any evidence.

36.  However, for the reasons as given in paragraph 31, the deputy adjudicator was correct in finding that the Certificate was duly served on the Claimant by posting of a copy on the notice board of the incorporated owners. 

Ground 7:   bias

37.  The Claimant’s allegation of bias is founded on its allegation that the adjudicator talked to its representative in a “high volume” which frightened the representative.  It had applied for both the transcript and recording of the proceedings before the tribunal, but for some reason was only given the transcript but not the recording.  Ms Tsau submits that this fear or bias could not be demonstrated without the recording.  She refers to some passages in which the deputy adjudicator sought confirmation from the Claimant’s representative for details of the Claimant’s case as evidence of coercion and undue pressure.  I am unable to agree with that submission.  I offered Ms Tsau an adjournment to obtain the recording so as to substantiate the Claimant’s case.  However, after taking instruction from the Claimant, Ms Tsau declined my offer.  In the circumstances, I have to dismiss this ground of appeal as frivolous and unsubstantiated.

Conclusion

38.  In conclusion, for the above reasons, I find there is no substance in any of the grounds of appeal.  The appeal is therefore dismissed with costs to the Defendant.

39.  While upholding the finding of the deputy adjudicator, I cannot refrain from criticising the irresponsible manner in which evidence of posting of a copy of the Certificate was presented before the tribunal.