HO KA MAN t/a BODY BASICS v. HUTCHISON TELECOMMUNICATIONS (HK) LTD

HCSA 26/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

SMALL CLAIMS TRIBUNAL APPEAL NO. 26 OF 2003

(ON APPEAL FROM SMALL CLAIMS TRIBUNAL CLAIM
NO. 32936 OF 2002)

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J U D G M E N T

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1. This is an application by the Claimant for leave to appeal against the award made by the Small Claims Tribunal on 27 February 2003.

2. In the proceedings below, the Claimant successfully sued the Defendant for breach of contract. She claimed damages in respect of various items of loss and damage, as well as costs. She was only partially successful in relation to quantum and her claim for costs.

3. In this application, the Claimant takes several points.

4. First, the Claimant argues that the Presiding Officer wrongly allowed a legal counsel in the employ of the Defendant to represent the Defendant at the proceedings below as its officer or servant. She argues that this is prohibited by the provisions in the Small Claims Tribunal Ordinance (Cap. 338), particularly section 19.

5. Section 19 of the Ordinance reads as follows:

"19. Right of audience

(1) The following persons shall have a right of audience before the tribunal -

（a） any party;

（b） an officer or servant of a corporation, if the corporation is a party;

（c） a member of a partnership, if the persons comprising the partnership are parties;

（d） with the leave of the tribunal, any person, other than counsel or a solicitor, who is authorized in writing by a party to appear as his representative.

(2) Except for the purposes of proceedings under section 35A for insulting behaviour, no barrister or solicitor, including a barrister or solicitor who is a public officer whether or not qualified to practise in a court in Hong Kong, shall have a right of audience before the tribunal unless he is acting on his own behalf as a claimant or defendant. (amended 28 of 1999 s. 9)"

6. I do not agree with the Claimant's argument. A similar argument has been raised in relation to section 23 of the Labour Tribunal Ordinance (Cap. 25) regarding the right of audience before the Labour Tribunal. Section 23 of the Labour Tribunal Ordinance reads as follows:

"23. Right of audience

(1) The following persons shall have a right of audience before the tribunal -

(a) a claimant or defendant;

(b) a tribunal officer;

(c) an authorized officer;

(d) an officer or servant of an unincorporated or incorporated company or a member of a partnership, if the company or partnership is a party; and

(e) with the leave of the tribunal, an office bearer of a registered trade union or of an association of employers who is authorized in writing by claimant or defendant to appear as his representative. (Amended 101 of 1997 s. 24; 135 of 1997 s. 14)

(2) A barrister or solicitor shall have a right of audience before the tribunal only if he is -

(a) acting on his own behalf as a claimant or a defendant; or

(b) appearing before the tribunal on behalf of an offender for the purpose of section 42. (Replaced 25 of 1999 s. 8)"

7. In Century City Holdings Limited v Siu Tat-yin, Eddie [1995] 1 HKLR 297, Yam J considered and rejected an argument that an employed solicitor in her capacity as an officer or servant of a company, being a party to the proceedings, could not represent her company in the proceedings before the Labour Tribunal. His Lordship analysed the position as follows (at pp. 298-299):

"There are quite a number of sub-sections in the Labour Tribunal Ordinance which are expressly provided to be subject to another sub-section. Mr. Horace Wong for the appellant has summarised them as follows:

" (a) Section 4(2) which is subject to s. 4(3);

(b) Section 9(1) which is subject to s. 9(2);

(c) Section 11(2) which is subject to s. 11(3);

(d) Section 11(4) which is subject to s. 11(5);

(e) Section 25(1) which is subject to s. 25(2);

(f) Section 28(1) which is subject to s. 28(2)."

In other words, the legislature has been using consistent language or explicit expression where it is intended that an earlier provision is to be construed as subordinate or subject to a subsequent provision. I accept Mr. Wong's submission that in the case of s. 23, the very fact that sub-s (1) is not expressly said to be subject to sub-s (2), is clear indication that the legislature did not intend that to be the case. It has been said in Halsbury's Law of England, Vol. 44 at para.873:

"Where in the same statute, and in relation to the same subject matter, different words are used, there is a presumption that the alteration has been made intentionally."

I accept Mr. Wong's submission that the omission to use the words "subject to" in s. 23(1)(d) must be intentional.

Section 23(2) is intended to prevent a barrister or solicitor from having a right of audience when he is acting for a lay client or client. The sub-section is enacted with a view to prevent professional legal representation from being engaged in Labour Tribunal proceedings. However, it is not the case when a person, who is not practicing as a barrister or solicitor, is acting on his own behalf or for his own employer. In the present case, Miss Ty is qualified as a servant of the company. Similarly, it would be the case if a solicitor or barrister is an officer of an unincorporated or incorporated company, or a member of a partnership if the company or partnership is a party to the proceedings in the Labour Tribunal. In other words, if a solicitor or barrister is not practicing as such but appearing as any of those persons as provided in s. 23(1)(d), he would be entitled to the usual right of audience in the Tribunal. The question whether a person acts as a solicitor or barrister is a simple question of fact as decided in the recent case of City West Investment Ltd. v. The Hong Kong Bar Association [1994] 2 HKLR 39, 11th March 1994 per Litton, Bokhary, JJ.A. and Mayo, J. I do accept Miss Ty was not acting as a solicitor but an employee of the appellant.

From the notes of proceedings in the court below, I can see that the learned Presiding Officer was very concerned that should Miss Ty be entitled to represent her employer, it would be unfair to the claimant since the claimant himself is not a qualified lawyer. Apparently, the learned Presiding Officer was over zealous in making the ruling, as an endeavour to protect the employee. However, it should be remembered that the company has the same right as any other person when it saw fit to employ an in-house lawyer to protect its legal interests in all matters. Should the learned Presiding Officer consider that the matter involved some complications or the employee would be at a disadvantage in not being able to deal with the matter himself as against a qualified lawyer, he could always transfer the case to the District Court so that the employee could either (a) instruct his own solicitor; or (b) apply for Legal Aid. With the recently revised means test of the Legal Aid Ordinance, most employees would be entitled to ask for the assistance of legal aid should such a situation arise."

8. A similar exercise conducted in relation to the Small Claims Tribunal Ordinance reveals that no less than seven sections or sub-sections in the Ordinance are expressed as being "subject to" some other provisions in the same Ordinance or in another ordinance: sections 4(4), 5(4), 12(2), 21(1), 24(1), 29(3) and 30.

9. Moreover, the similarities in wording between section 19 of the Small Claims Tribunal Ordinance and section 23 of the Labour Tribunal Ordinance are many. More importantly, there are obvious similarities (although there are differences as well) in terms of legislative aim and statutory framework between the two Tribunals and between the two Ordinances.

10. In the circumstances, I am satisfied that what Yam J has said in relation to the right of audience in the Labour Tribunal of an employed solicitor or barrister applies with equal force to that in the Small Claims Tribunal. In other words, I hold as a matter of construction of the Small Claims Tribunal Ordinance and in particular section 19 of the Ordinance that a barrister or solicitor in the employ of a corporation has a right of audience before the Small Claims Tribunal as the corporation's officer or servant, if the corporation is a party to the proceedings before the Tribunal.

11. In short, I am of the view that this ground of intended appeal is unarguable.

12. Secondly, the Claimant argues that she should be awarded the costs of reproducing a MD disk recording certain telephone conversation as an item of costs. She says that the copy MD disks were produced for the use by the Tribunal and by her opponent pursuant to a direction by the Tribunal at the call-over hearing.

13. The Tribunal rejected this claim on the ground that the telephone conversation was immaterial to the main issues of dispute between the parties (paragraph 16 of the reasons for decision). This was a question of fact and in this type of applications and intended appeals, this Court cannot lightly disturb the Tribunal's conclusion on questions of fact unless they involve a question of law: see section 28(1)(a), and section 29(2)(i) & (ii) of the Small Claims Tribunal Ordinance. I can see no error of law involved in the Tribunal's conclusion.

14. Since the MD disk was immaterial to the issues in question, and since costs was in the discretion of the Tribunal, I am of the view that the Tribunal was entitled, in the exercise of its discretion, not to award the costs of reproducing the MD disk as part of the costs payable by the losing Defendant. The fact that they were reproduced pursuant to the Tribunal's direction is of itself insufficient to ground any entitlement to costs. (In an event, I do not accept the amount claimed - $4,493.60).

15. Thirdly, the Claimant challenges the Tribunal's assessment of her costs and expenses in attending the proceedings at only $1,600. She argues that she is the sole proprietress of a certain business but has no tax return and similar documents to prove her income or loss of income resulting from her attendance of the proceedings. She says the Tribunal should not have rejected her claim just because of her lack of (documentary) proof.

16. In my judgment, again this was a question of fact. The Tribunal was entitled to come to its conclusion on the material before it. No error of law was involved. This ground of appeal is rejected.

17. Finally, the Claimant takes issue with the Tribunal's rejection of her claim for medical expenses said to have been incurred by her for treatment of distress and so forth resulting from the Defendant's beach of contract.

18. Yet again, this was a question of fact. The Tribunal, having heard the evidence from both sides, and having borne in mind the burden and standard of proof, was of the view that the Claimant had not discharged her burden of proof in establishing a causal connection between the alleged loss and the breach of contract (paragraph 12 of the reasons for decision). The Tribunal was entitled to come to such a conclusion on the evidence before it. No error of law was involved. I also reject this ground of intended appeal.

19. In conclusion, I dismiss the application for leave to appeal. I make no order as to costs.

20. Since this judgment clarifies and indeed confirms the general understanding that a barrister or solicitor in the employ of a corporation has a right of audience before the Small Claims Tribunal as the corporation's officer or servant, if the corporation is a party to the proceedings before the Tribunal, and as I am not aware of any direct authority on this point, I would adjourn this hearing to open court so that this judgment may be handed down in court.