ELIJAH SAATORI v. BARRY JOSEPH YEN AND ANOTHER

HCSA 43/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

SMALL CLAIMS TRIBUNAL APPEAL NO. 43 OF 2007

(On appeal from Small Claims Tribunal Claim No. SCTC 75358 of 2005)

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D E C I S I O N

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Introduction

1.  This is the 2^nd Claimant’s, Mr Saatori’s, application for leave to appeal against the order of Mr Adjudicator Anthony Chow, dismissing all the seven claimants’ claim against the Defendants.  Mr Saatori represented all the claimants at the hearing before the Adjudicator.  The Defendants, Mr Yen and Mr Tse, were respectively the former chairman and one of the supervisors of the school management committee (“SMC”) of Christian Alliance P.C. Lau Memorial International School (“CAIS”).  In about June 2005, the then SMC decided to replace Mr Enns, the headmaster of CAIS, with Mr Ip.  Mr Saatori and a group of parents did not agree with the SMC’s decision because they thought Mr Ip would teach their children the theory of evolution and preferred keeping Mr Enns who had been teaching the students biblical creationism.  On Friday, 29 April 2005, the parents staged a protest demonstration outside CAIS.  In aid of the protest, Mr Saatori and the six other claimants had made some placards which the parents used during the demonstration.  They intended to use the placards again during a further demonstration outside the Christian Alliance Church on the following day.  With the permission of the vice-principal, Mrs Reeves, they stored the placards in the garage of CAIS.  On the following day, when the parents arrived at CAIS, they found the placards had been disposed of as rubbish.  As a result of what they were informed by a school janitor, the claimants thought that both Defendants had ordered the janitor to dispose of the placards.  The claimants lodged a claim against the two Defendants in the Small Claims Tribunal in the total sum of $18,207.40, being the costs of material and labour for making the placards and for filing a police report.  Subsequent to the incident, the board of deacons of CAIS replaced the SMC, including Mr Yen and Mr Tse.

2.  Mr Yen’s defence is that he had no knowledge about the placards and did not order their disposal.  Mr Tse’s defence is that he ordered the disposal of the placards thinking that they were abandoned property.  He confirmed that he had not consulted Mr Yen before ordering the disposal of the placards.  Both Mr Yen and Mr Tse relied on section 40BI(2) of the Education Ordinance, Cap 279, which exempts a manager of the incorporated management committee from civil liability in the performance of any function of his office as manager.

3.  The Adjudicator accepted Mrs Reeves’ evidence that she granted permission to the parents to store the placards in the garage and that she had not informed anybody, including the Defendants, of her decision.  He also found Mrs Reeves had the actual and apparent authority to give such permission.

4.  The Adjudicator accepted Mr Yen’s evidence and found as a fact that Mr Yen took no part in the disposal of the placards.  He also accepted Mr Tse’s evidence.  He went on to consider whether Mr Tse’s decision to dispose of the placards was a personal decision or one made as a manager of the SMC.  He found it was the latter.  Then he considered whether the decision was made in good faith as to avail Mr Tse of the defence under section 40BI(2).  He also found in favour of Mr Tse.  Accordingly, he dismissed the claim against both Defendants with costs.

5.  Under section 28 of the Small Claims Tribunal Ordinance, Cap 338, a party may only appeal against the decision of the tribunal on any ground involving a question of law or on the ground that the claim was outside the jurisdiction of the tribunal.  The claimants brought the claim in the Small Claims Tribunal and Mr Saatori was not launching his appeal on the jurisdictional ground.  In my view, the approach adopted by the Adjudicator was proper and correct.  On his finding of fact, his decision could not be assailed at all.  On the face, the intended appeal is essentially an attack on the finding of fact by the Adjudicator.  However, Mr Saatori argued that the intended appeal was on grounds involving questions of law.  I now turn to the various grounds advanced by Mr Saatori in his application for leave to appeal.

The Adjudicator was an evolutionist

6.  Mr Saatori started his application by arguing that the Adjudicator believed in evolution and that evolution should be taught to the exclusion of creation.  He argued that the Adjudicator’s belief provided the motivational emotion which explained the Adjudicator’s bias in favour of the Defendants and his preference to the Defendants’ evidence.  The basis of his complaint was the Adjudicator’s final observations in paragraphs 38 to 41 of his decision in which the Adjudicator said:

“38.  Totally unrelated to my judgment, I would like to say I was astounded to find this arcane dispute on whether schools should be teaching the theory of evolution or creationism is still with us.

  39.  Hong Kong in the year 2007 is a far cry from the American deep south of 1925.  I thought the tunnel vision of what constituted a proper education, as represented by the drafters of the Bulter Act, 1925 from the American State of Tennessee, made infamous by Scopes v States, 152 Tenn. 424 278 S.W. 57 (Tenn. 1925) and the fictionalized account of the trial in the 1955 play and subsequent movie Inherit The Wing, was long behind us.

  40.  I believe in God and I believe in the teachings of the bible; however, I also believe in a modern education, where a student must be taught a wide array of subjects.  A modern education system has to offer students, inter alia, languages, geography, history, mathematics, the sciences and theology.

  41.  Evolution is a scientific topic and creationism, as are other teachings of the bible, belongs squarely in the realm of theology.  Science should not be offered to the exclusion of theology, as creationism should not be taught to the exclusion of evolution.  Each has its place in a modern education system.  To insist on one to the exclusion of the other, is to deprive our children of a well-rounded modern education that they sorely need in today’s competitive society.”

7.  I quoted the above dicta in full for the purpose of dealing with Mr Saatori’s complaint.  As the Adjudicator said, his observations were totally unrelated to his judgment.  The observations were made after the Adjudicator had reached his conclusion on the merit of the claim.  Those observations were indeed irrelevant and unnecessary for his judgment.  But, I think his observations presented a balanced view.  The Adjudicator never suggested, as Mr Saatori alleged, that evolution should be taught to the exclusion of creationism, which was the basis of Mr Saatori’s attack on the Adjudicator’s motive.  Creationism and evolution are conflicting theories as are many other religious doctrines and scientific principles.  The miracles performed by Jesus Christ and his disciples, the immaculate conception and the holy Trinity, to say a few, are irreconcilable with science.  The Adjudicator was saying no more than that students should be given a balanced education and should not be taught creationism to the exclusion of evolution and vice versa.  He openly pronounced his Christian faith.  Obviously, with his Christian faith he was able to reconcile the difference between religion and science.  Mr Saatori’s complaint about bias and motive started on false premises.

8.  It appears to me that at the heart of the demonstration, as Mr Saatori openly put it in his submission, was his belief that Mr Yen and Mr Tse had conspired together to replace superior English leadership by inferior non-English speaking leadership rather than a difference between creationism and evolution.  The difference between creationism and evolution was just a pretext.  Likewise, Mr Saatori’s belief about the Adjudicator’s bias and motive is not a genuinely held belief.

The Adjudicator’s attitude at the hearing

9.  Mr Saatori complained that the Adjudicator’s attitude towards the claimants was oppressive.  He submitted that the Adjudicator attacked on the claimants’ witnesses in a neurotic and violent manner such that he was extremely intimidated and his lines of questioning and submission were shut down.

10.  The hearing in the Small Claims Tribunal is informal.  The parties are not legally represented.  The adjudicator has a complex function to perform.  Apart from having to adjudicate, he has to discharge his duty of investigation.  He has to adduce evidence from the opposing parties and investigate into the merit of the claim as well as the merit of the defence.  He has to control the proceedings before him.  He has to cut down unnecessary and irrelevant evidence and direct the parties to the controversy in dispute.  Very often, in adducing evidence from a witness or during cross-examination, the witness and the parties would become engaged in spontaneous verbal and sometimes heated exchanges, making it impossible for the adjudicator to take notes of the evidence or even to understand the evidence.  It would then become necessary for the adjudicator to interrupt and assume control over the proceeding.  It might even be necessary for the adjudicator to shout at the witness or parties so as to put a stop to the heated exchange.  Such scenario does not exist where the parties are legally represented.  In the performance of his complex duty, an adjudicator is often misunderstood by the losing party as being partial and biased in favour of the successful party.  In the discharge of his complex function, the adjudicator has to interrupt witnesses and put questions to them.  Such interruption and questions are often misinterpreted as signs of hostility or favouritism.  In considering whether such complaints of partiality and favouritism are well found, an appellate court has to bear in mind the circumstances of the hearing before the adjudicator and the complex function the adjudicator has to perform.  The appellate court has to consider whether the conduct of the proceedings by the adjudicator was such that there was a denial of justice in that the aggrieved party was prevented from presenting his case.  The test is whether the adjudicator’s conduct was such that it would have caused an informed bystander listening to the case, to say that the aggrieved party did not have a fair trial.  Hostile attitude of the adjudicator or the likelihood of bias without actually establishing bias is prima facie evidence of deprivation of a fair trial.  If there was evidence to suggest such denial of justice, there is a ground for appeal involving a question of law.  The quality of the interruptions as they related to the attitude of the adjudicator and the effect those interventions had upon the conduct of the claim or the defence were critical.  The quantity and quality of the interruptions could not be considered in isolation.

11.  Mr Saatori referred me to various parts of the transcript in which his questions were stopped by the Adjudicator.  The followings are some examples.  He relied on the highlighted parts, in particular, as evidence of hostile attitude or interruption by the Adjudicator.

At pages 17 to 18 of the transcript:

“Mr Yen: I’m trying to say on two points.  I’m sorry if I’m not being clear.

  … (exchanges between the Tribunal, Mr Yen and Mr Saatori)

  Tribunal: … deems as being frivolous and vexatious into that application.

  Mr Saatori:    Well, first of all …

  Tribunal: Wait, wait, wait …

  Mr Saatori:    Yes.

  Tribunal: …  Mr Saatori, wait, wait, wait.  Stop.  Okay.  Let me just make sure that Mr Yen has finished his summation first before your response.  All right?  Mr Yen, are you done?”

At pages 40 to 41 of the transcript:

  Tribunal: …  then you may ask him now.

  Mr Saatori:    Before I do, I think this gentleman here with the silly grin on his face wants to say something.

  Tribunal: Mr Saatori …

  Mr Saatori:    M’m.

  Tribunal: … this gentleman has a name.

  Mr Saatori:    Yes.  Mr Yen.

  Tribunal: Would you like him …

  Mr Saatori:    You see, I think he wants …

  Tribunal: … to refer to you as the …

  Mr Saatori: He wants to ask …

  Tribunal: … person who has got a moustache and glasses?

  Mr Saatori:    It doesn’t matter to me.

  Tribunal: Well, wait, wait, wait.  It does matter to me though.

  Mr Saatori:    I think …

  Tribunal: This is a court of law …

  Mr Saatori:    … he wants to say something.

  Tribunal: … Mr Saatori.

  Mr Saatori:    M’m.

  Tribunal: This is a court of law.  This is my court.

  Mr Saatori:    M’m.

  Tribunal: Anybody - and I mean anybody - who sits in my court would have to adhere to some decorum …

  Mr Saatori:    M’m.

  Tribunal: … which is to respect …

  Mr Saatori:    Well, perhaps you could ask …

  Tribunal: … all persons involved.

  Mr Saatori:    Yes.  You might like to ask him why he keeps laughing at me.

  Tribunal: Mr Saatori …

  Mr Saatori:    M’m.

  Tribunal: … I can’t stop people from laughing.

  Mr Saatori:    M’m.

  Tribunal: I can, however, stop people from making indecorous remarks against the other party.  Now, Mr Saatori, can I have your assurance that we can adhere to …

  Mr Saatori:    Absolutely.

  Tribunal: … a minimum amount of decorum …

  Mr Saatori:    M’m.

At pages 42 to 44 of the transcript, while leading evidence from the 4^th Claimant:

  Mr Saatori:    (question put by Mr Saatori)

  Dr Shurr:    I …

  Mr Saatori:    Did you form an opinion of the …

  Tribunal: Would you please let the …

  Mr Saatori:    Yes, sorry.

  Tribunal: … witness answer the question …

  Dr Shurr:    Yes.

  (Mr Saatori’s questions and Dr Shurr’s answers)

  Mr Saatori:    And just for the court …

  Tribunal: Wait, wait, wait, hang on a second.

  Mr Saatori:    Yes.

  Tribunal: Please let me have a chance to catch up.

  Mr Saatori:    Sorry.

  Tribunal: So let me just clarify this, okay.  The demonstration itself was not directed to the two defendants?

  Dr Shurr:    No.

  Tribunal: But these two defendants became a subject of disenchantment because of the destruction of the placards?

  Dr Shurr:    Yes.  They were …

  (Mr Saatori’s questions and Dr Shurr’s answers)

  Mr Saatori:    And during this relationship did you manage to have any -- did you form any observations on the character of Mr Yen and Mr Tse during your relationship with them?

  Dr Shurr:    I’ve had three opportunities …

  Tribunal: Excuse me, Mr Saatori.

  Mr Saatori:    M’m

  Tribunal: The characters of the two defendants are not an issue here.

  (Further exchanges between the Tribunal and Mr Saatori)

  Tribunal: … and Dr Shurr’s opinion of it is not relevant.”

At pages 112 to 113 of the transcript, during the course of Mr Saatori’s evidence:

  Mr Saatori: After meeting Mr Yen and later Mr Tse several times and having several conversations, it was my distinct observation that they had deliberately lied and deceived both myself, the teachers and some of the parents.

  Tribunal: Mr Saatori, okay, stop right there, right now.

  Mr Saatori:    Why?  I’m going to …

  Tribunal: Stop.  You’ve asked me a question of why, I am going to give it to you.  …

  (Exchanges between the Tribunal and Mr Saatori)

  Tribunal:    Wait.  If you said that outside of this courtroom it is defamatory and it’s actionable.

  Mr Saatori:    I have proof.

  Tribunal: Wait.

  Mr Saatori:    Don’t shout at me.

  Tribunal: You have to wait until I am finished.

  Mr Saatori:    Well, be polite.  I’m listening to you.

  Tribunal: You are not.

  Mr Saatori:    I am.

  Tribunal: You are interrupting me, Mr Saatori.  You have to wait until I finish.  I have to shout at you because you interrupted me, and interruption is impolite.  Now, …”

12.  Mr Saatori, in particular, referred to pages 40 to 41 of the transcript and submitted that as an example that the Adjudicator was extremely aggressive towards him.  I do not agree with his opinion.  It might well be that Mr Yen was responding with a contemptuous smile which Mr Saatori did not feel happy.  However, Mr Saatori made a verbal remark which was clearly offensive.  It was only appropriate that the Adjudicator should take steps to put an end to such retribution to maintain the solemnity of the proceeding before the Tribunal.  I do not think the Adjudicator could be criticised as having acted in a biased or hostile manner to the claimants.

13.  I have read the transcript carefully.  There were indeed many occasions in which the Adjudicator interrupted Mr Saatori or his witness in the course of their submission or evidence.  The quality of the interruptions as they related to the attitude of the Adjudicator and the effect those interventions had upon the conduct of the defence were critical.  The quantity and quality of the interruptions could not be considered in isolation.  On a fair reading of the transcript, I am satisfied that the attitude of the Adjudicator was not hostile and his interruptions were not oppressive.  He was seeking clarification from the witness or asking for time to enable him to take notes of the evidence or to make a ruling on admissibility of evidence.  It also appears that Mr Saatori’s reaction was calm, relaxed and undisturbed.  He even had the ease to make an offending remark on Mr Yen calling him “this gentleman here with the silly grin on his face”. 

14.  At page 113 of the transcript, Mr Saatori even argued vigorously with the Adjudicator.  He was giving evidence that Mr Yen and Mr Tse deliberately lied on other occasions which have no bearing on the controversy in dispute and the Adjudicator tried to direct him to the issues in dispute.  Apparently, Mr Saatori had interrupted the Adjudicator repeatedly during the course of his speech, and the Adjudicator had to shout at Mr Saatori to stop interrupting.  Mr Saatori retorted unhesitatingly.  I do not think Mr Saatori was at all intimidated by the attitude of the Adjudicator.  Quite on the contrary, I find that he had fearlessly pursued his point.

15.  Applying the informed bystander’s test, I do not think the claimants did not have a fair trial.

Suppression of the claimants’ evidence

16.  Mr Saatori complained that the Adjudicator suppressed the claimants’ evidence.  He complained that he was prevented from adducing evidence that Mr Yen and Mr Tse were subsequently dismissed from the SMC.  The Adjudicator took the view that such evidence was irrelevant to the controversy in dispute.  The issues were whether Mr Yen and Mr Tse ordered the disposal of the placards and whether when they did so they were discharging their duties as members of the SMC in good faith.  Whether they were subsequently dismissed from the SMC by the board of deacons of CAIS and for whatever reasons held by the board of deacons were neither here nor there.  I agree with the Adjudicator.  

17.  Mr Saatori submitted that while the hearing in the Small Claims Tribunal is informal and the strict rules of evidence are not applicable, the Adjudicator excluded the claimants’ evidence on pure technicality as if he was conducting proceedings in the High Court.  Mr Saatori was referring to Mrs Saatori’s evidence that she was present during a conversation in Chinese between a janitor and another parent, Mrs Tanner and that Mrs Tanner informed Mrs Saatori that the janitor said that Mr Yen and Mr Tse instructed him to dispose of the placards.  On the other hand, Mr Saatori’s evidence contradicted Mrs Saatori’s.  According to him, Mrs Tanner said that the janitor stated that both Mr Yen and Mr Tse were at the school premises, but only Mr Tse ordered him to dispose of the placards.  Mrs Tanner is a Chinese lady and the 7^th Claimant in the claim, but she did not give evidence at the hearing.  Neither Mr Saatori nor Mrs Saatori could speak or understand Chinese.  Mr Saatori was not even physically present when the conversation between the janitor and Mrs Tanner took place.

18.  The claimants’ difficulties with this piece of evidence are that what the janitor had allegedly told Mrs Tanner was hearsay.  Even assuming as a matter of common sense that Mrs Tanner being of Chinese origin and married to an English speaking person is fluent in English and Chinese, there was an irreconcilable inconsistency between the evidence of Mr Saatori and Mrs Saatori as to what was precisely said by Mrs Tanner of what she had heard from the janitor.  Most fatally, in Mrs Tanner’s own statement, there was no mention by the janitor of Mr Yen at all.  Neither the janitor nor Mrs Tanner was available for cross-examination.  There was no way that the accuracy of her translation or the correctness of what she had heard from the janitor could be tested.  There was also no way the accuracy of the janitor’s hearsay evidence could be tested.  This is a critical piece of evidence on which the claimants’ case against Mr Yen was based.  Given the inherent defect in this piece of evidence, it was appropriate that the Adjudicator refused to admit the evidence, which even if admitted could be accorded no weight.

19.  Mr Saatori also complained about the Adjudicator’s refusal to admit an unsigned statement by another janitor, Ms Fung.  I think the English translation of that statement was actually admitted by the Adjudicator as it was referred to in his reasons for decision.  That statement was supportive of the Defendants’ case but not the claimants’.  In that translation, Ms Fung allegedly said that she had seen Mr Tse with another janitor, Mr Cheung.  Ms Fung then asked Mr Cheung where he was going and Mr Cheung replied that Mr Tse had instructed him to go to the car park to throw the placards away.  There was also no mention of Mr Yen. 

20.  There were other trivial and unmeritorious complaints about suppression of evidence which I do not find it necessary to deal with.  Upon reading the transcript, I am satisfied that no admissible evidence had been excluded by the Adjudicator.  How he assessed the weight to be attached to the evidence admitted is a matter for the Adjudicator and is not a matter which the appellate court will interfere.  There is no merit in this ground of appeal.

That the Defendants did not act in good faith

21.  Whether the Defendants acted in good faith in ordering disposal of the placards is essentially a finding of fact for the Adjudicator.  The gist of Mr Saatori’s complaint is that the board of deacons of CAIS would consider the SMC’s recommendation of appointment of Mr Ip on Saturday 30 April 2005.  The parents had told Mr Ip of their objection to his appointment and of the intended demonstration outside the church on Saturday.  Hence, Mr Saatori submitted that by inference, Mr Ip must have told the Defendants of the intended demonstration on Saturday and further that when the Defendants ordered disposal of the placards on Saturday with the knowledge of the demonstration later that morning, they could not have done so in good faith.  There was no dispute that the parents had not told the Defendants of their intended protest on Saturday.  Thus, the inference of bad faith was premised on another inference that because the SMC recommended Mr Ip to the board of deacons, Mr Ip must have told the Defendants of the intended demonstration on Saturday.  The Adjudicator refused to draw the multiple inferences.  That was a matter for the Adjudicator and not one which the appellate court will intervene.

22.  Mr Saatori also complained against the Adjudicator’s accepting Mr Yen’s evidence that he did not drive to CAIS that morning and hence had no knowledge of the placards stored in the garage.  He submitted that Mr Yen’s evidence was not credible as Mr Yen drove regularly and he had seen Mr Yen driving to CAIS on a number of occasions.  He also criticised Mr Yen’s answer under cross-examination as evasive.  The Adjudicator had seen and considered the demeanour of Mr Yen.  It was open to the Adjudicator to accept Mr Yen’s evidence.  His finding was a finding of fact which the appellate court will not intervene.  Furthermore, the burden of proof was on the claimants to show that Mr Yen had ordered the disposal of the placards.  There was no such evidence either in witness statements or at the hearing before the Adjudicator.  Thus, even if the Adjudicator had found that Mr Yen did drive to CAIS that morning and even if the Adjudicator had rejected all of Mr Yen’s evidence, it could not lead to the conclusion that Mr Yen had ordered the disposal of the placards.

Conclusion

23.  The grounds of the intended appeal are directed at the Adjudicator’s finding of fact, his assessment of the evidence and credibility of witnesses.  These are findings of fact which the appellate court will not interfere.  There is no substance in Mr Saatori’s criticism of the Adjudicator’s attitude and bias.  There is no ground involving any point of law disclosed in the intended appeal.  The application for leave to appeal is therefore dismissed.  I should add that by virtue of section 28(3) of the Small Claims Tribunal Ordinance, my decision refusing Mr Saatori leave to appeal is final.