BRIAN ALFRED HALL v. SECRETARY FOR JUSTICE AND ANOTHER

HCSA 26/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

SMALL CLAIMS TRIBUNAL APPEAL NO. 26 OF 2007

(ON APPEAL FROM SMALL CLAIMS TRIBUNAL CLAIM
NO. 43467 OF 2006)

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J U D G M E N T

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1.  This is an appeal brought pursuant to s. 28(1)(a), Small Claims Tribunal Ordinance (Cap. 338).  Leave to appeal was given on 30 July 2007 in respect of one of the five grounds of appeal.

2.  That ground was stated in para. (7)(i) of the Application for Leave to Appeal (“Form 9”).  It reads:-

“The adjudicator have failed to demonstrate a cogent and objective rationale for the award of $300 for my 4 missing items of clothing he find [sic] were missing … -

Wrangler jeans costs up to US$100 and more … ”.

3.  The background leading to, and the reasons for, the application and the giving of leave to appeal were set out in my decision handed down on 30 July 2007.  The relevant parts are para. 4 to 6, 14 to 15 and 29 to 30 thereof.  They are quoted below for ease of reference:-

“4.     The applicant is a prisoner serving an 18-year prison sentence imposed against him in June 1998 for trafficking in dangerous drugs.  He was arrested at the airport in Hong Kong in September 1997 for the said offence by the Customs & Excise Department.

5.  He alleged in the tribunal that compensation in the sum of $50,000 should be paid by the two defendants.  The first defendant (“D1”) was the law enforcement department which arrested him and seized some of his clothing while the second defendant (“D2”) was the exhibit officer.

6.  The seized items were returned to the applicant in July 2006.  Of the six or seven items returned, he refused to accept 3 items on the ground those were not his.  In the Form 2 lodged with the tribunal, he listed 11 lost items of clothing, including shirts, pants, jeans, polo shirts, a tie and shorts.

…

14.    The tribunal however accepted the following items were lost, based again on the second photograph: a pair of jeans, three shirts and a tie.

15.    The tribunal also rejected the applicant’s claimed value of the lost items.  Three of the shirts were assessed to be worth $50 each while the remaining one was valued by the tribunal at $100.  The tie was assessed to worth $50.

…

29.    [Para. (7)(i) of Form 9] complains in essence that the tribunal failed to demonstrate a proper reason for awarding $300 when (according to the applicant) the pair of jeans was worth ‘up to US$100 and more’.

30.    The tribunal considered the pair of jeans to be one of the lost items.  But it failed totally to consider its value in the written reasons for decision.  The award of $300 could not have included any value for the lost jeans.”

4.  The respondents sensibly and correctly concede this appeal.  It is pointed out in the skeleton submissions:-

“… discrepancies may be found in the [Tribunal’s] Decision in two respects.  First, the Tribunal failed to make any assessment of the value of the pair of jeans (item 2) after holding that the same was one of the 5 lost items.  Secondly, it appears that item 8 [a wool chequered, long-sleeve shirt] had been counted twice and assessed at $100 and $50 respectively” (para. 7 thereof).

5.  The above submission was based on the findings made in para. 16, 18 and 19 of the Tribunal’s written decision.  The gist of those paragraphs is:-

(a) 5 items were lost; namely, a pair of Wrangler jeans, a short-sleeve shirt, the above-mentioned long-sleeve shirt, a long-sleeve khaki shirt and a tie;

(b)  a “Hip Hop” shirt was valued at $100, “three missing shirts” were valued at $50 each and the tie was also valued at $50.

As stated in the above quote, the total amount awarded was $300.

6.  Despite the earlier observation in para. 15 of my decision of 30 July 2007 (quoted above), I agree with the respondents’ above submission regarding the ambiguity in the value of the shirts.

7.  S. 29, Cap. 338 sets out my powers on appeal.  S. 29(1) provides that I may allow the appeal and:-

“…remit the matter to the tribunal with such directions as it thinks fit, which may include a direction to the tribunal for a new hearing”: s. 29(1)(c).

However, I cannot reverse or vary the Tribunal’s determination on questions of fact: s. 29(2)(b)(i), Cap. 338.

8.  The appellant argues during today’s hearing that:

(1) the whole matter should be remitted to the Tribunal and re-considered by another adjudicator afresh;

(2)  alternatively, I should determine the value of the lost items, especially the Wrangler jeans.

9.  The reason given in support of para. 8(1) above is that the appellant has recently discovered that the tortfeasor had failed to act in accordance with internal regulations when handling the appellant’s properties.  He contends that this shifts the burden of proof to the tortfeasor.

10.  The appellant’s claim is based on bailment (as the Tribunal correctly found).  Whether there has been a breach of the internal regulations, the burden of proof rests with him to prove which of his properties have been placed in the tortfeasor’s custody by way of bailment.

11.  Hence, not only is it not open to the appellant to raise the new argument in view of the limited scope of the leave to appeal given earlier (see para. 2 above), it in fact has no merit.

12.  The argument set out in para. 8(b) above involves a determination which goes beyond my power: see para. 7 above and s. 29(2), Cap. 338 generally.

13.  To conclude, I agree with the respondents that the appeal should be allowed and the matter should be remitted to the Tribunal for the purpose of reconsidering only:-

(a) the value of the shirts;

(b)    the value of the Wrangler jeans.

[After hearing the parties’ arguments on costs]

14.  As to costs, having heard the parties, I think this is one of those exceptional cases where there should be no order as to the costs of the appeal because:-

(1) the Tribunal’s error clearly was not caused by the respondents;

(2) the respondents have conceded the appeal as early as reasonably practicable ; and

(3)    the appellant’s arguments raised at today’s hearing have been found to be unmeritorious.