WOO WAN MAN SUSANA v. SUNFLOWER TRAVEL SERVICE LTD

HCSA 35/2020

[2021] HKCFI 339

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

SMALL CLAIMS TRIBUNAL APPEAL NO 35 OF 2020

(ON APPEAL FROM SMALL CLAIMS TRIBUNAL CLAIM NO 39230 OF 2019)

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JUDGMENT

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INTRODUCTION

1.  The claimant herein applies for leave to appeal against the decisions of Deputy Adjudicator Ms Doris Li (暫委審裁官李英瑜) (“Adjudicator”) in dismissing her claim in the Small Claim Tribunal (“Tribunal”). 

2.  The Adjudicator dismissed the claimant’s claim on 17 July 2020 after a trial and further dismissed the claimant’s application for review on 29 October 2020.  The Adjudicator has handed down reasons for her decision at the trial and for her decision for the review on 11 December 2020, respectively “1^st Reasons” and “2^nd Reasons”. Although the proceedings before the Adjudicator and this Court were conducted orally in Chinese, the Applicant’s application for leave to appeal, grounds and her written submissions were all in English.  Hence, this judgment will be handed down in English.

BRIEF BACKGROUND

3.  Briefly, the claimant is a retired lawyer and she often went on overseas holidays.  On 10 July 2019, she together with a friend paid for the fees of a 9 day escorted package tour to Australia and Brunei organised by the defendant (“Tour”).

4.  The Tour included 6 flights, namely (i) Hong Kong to Brunei (BWN), (ii) Brunei(BWN) to Melbourne, (iii) Melbourne to Launceston, (iv) Hobart to Melbourne, (v) Melbourne to Brunei (BWN)and then (vi) Brunei (BWN) to Hong Kong.  Flights (i), (ii), (v) and (vi) were to be on Royal Brunei Airlines (“RBA”).  On the way from Hong Kong to Melbourne, the participants of the Tour were to spend one night in Brunei, and on the way from Melbourne back to Hong Kong, another night in Brunei.

5.  According to the claimant, at the time of payment for the Tour on 10 July 2019, she had produced a E copy of her passport to the defendant’s staff.  There was a briefing session for the Tour the following day, ie 11 July 2019 (“Briefing Session”) during which, at the request of the defendant’s staff, she handed over the original of her passport for the staff to apply online for a visa for Australia on her behalf and she paid the defendant HKD 150 for the visa fee for Australia.  Brunei does not require a visa for tourists holding HKSAR passports.  What was not disputed was that the defendant’s staff successfully obtained online a visa for Australia on behalf of the claimant.

6.  According to the claimant, the information provided by defendant’s staff at the Briefing Session did not include any advice or any warning that the holder of a passport bearing souvenir stamps (“Non-Immigration Stamps”) could be refused entry to Brunei and/or Australia.  The claimant’s original passport was kept by the defendant from 11 July 2019 until the date of the departure of the Tour on 20 July 2019 (“Departure Date”). 

7.  On the Departure Date, the claimant arrived at the airport and reported to the leader of the Tour, Lau Kwok Ping (“Lau”), who then arranged for check-in for all the participants of the Tour at the RBA counter.  However, Lau was informed by RBA that the claimant’s passport was not accepted for entry into Brunei as it bore Non-Immigration Stamps[1], and RBA refused to issue a boarding pass for the claimant .  As a result, the claimant was not able to go on the Tour.

8.  The claimant later sought a refund of the fees she paid for the Tour from the defendant but was refused.  She then lodged a claim in the Tribunal against the defendant on 10 September 2019 for a total sum of HKD 14,171 being (i) HKD11,998 for the Tour fee; (ii) HKD 1,641 for taxes and administration fees; (iii) HKD 150 for application for the Australian visa; (iv) HKD 361 for insurance; and (v) HKD 21 for a statutory levy.  The claimant also claimed interests and costs. 

9.  On 17 July 2020, after a trial, the Adjudicator dismissed the claimant’s claim, and ordered her to pay costs of HKD 1,930 with interests accrued as from date of the award (“1^st Award”).

10.  Upon the claimant’s application for review, the Adjudicator varied the 1^st Award to that the defendant should pay the claimant the sum of HKD 330 (which was the total sum for the Hong Kong Airport Tax, Security Charges and Airport Construction Fee and which the defendant had agreed to refund to the claimant at the trial) together with interests, and the Adjudicator also varied the amount of costs in the 1^st Award to HKD 1,700 with interests (“2^nd Award”).

THE PARTIES’ RESPECTIVE CASE BEFORE THE ADJUDICATOR

The claimant’s case

11.  In an attachment to the claim form filed on 10 September 2019 (“Form 2 Attachment”), the claimant had set out the “Contract” between her and the defendant (being the contract for the Tour and for the application for the necessary travel visa to Australia)[2] (“Contract”) and the defendant’s breach of the Contract and/or negligence in performing the Contract in failing to advise her on the risk of being refused to board the plane and/or refused entry into destination countries due to the Non Immigration Stamps in her passport.

12.  In paragraph 21 of the Form 2 Attachment, the claimant had further set out her submission that the defendant was in breach of, amongst other things, section 5 of the Supply of Services (Implied Terms) Ordinance, Cap 457 (“SSITO”), to carry out its service with reasonable care and skill, and/or negligent in carrying out its service under any applicable laws under the common law.[3]

13.  The claimant’s claim was thus based on (i) breach of implied terms in contract and/or (ii) negligence.

14.  The claimant had relied on Documents C1 to C68 at the trial and she further produced and relied on Documents C69 to C106 for her application for review. 

The defendant’s case

15.  The defendant denied that it had the duty or any liability towards the claimant, as alleged by the claimant.

16.  The defendant had produced Documents D1 to D22 for the trial, and Documents D23 to D33 for the review. Amongst various documents provided by the defendant, it relied on in particular:

(1)     The last paragraph on page 31 of the HKSAR passport, which states that “This passport is an important document of identity which shall be kept carefully and used properly.  It shall not be mutilated, tampered with or transferred to another person for unlawful use. Any case of loss or destructions should be immediately reported to the nearest issuing authority and the local police or public security authorities.”[4];

(2)     Paragraph 5 of the notice on the back of each official receipt issued by the defendant for tours or cruises (“Official Receipt”), which reads as follows[5]:

“如非經[被告人]代辦之簽證及所有非因簽證而被當地拒絕入境之問題，責任由客人自負”(The customer is to be self responsible for any problems of being refused entry into the destination country, if such problems arise out of non-visa related matters or when the visa was not applied for the customer by the [defendant].)”

(3)     Information issued by the Immigration and National Registration Department of Brunei on its website, namely that “Visa issued by the authority of Brunei Darussalam is a pre-entry approval for a foreigner to travel and enter Brunei Darussalam. The grant of entry to Brunei Darussalem will be determined based on the assessment by the Department of Immigration and National Registration officers at the point of entry….”[6] (“BWN Immigration Web Information”)

(4)     An email sent by the RBA on 22 August 2019, which stated that its airport team had checked with the BWN Immigration and due to the claimant’s passport containing Non Immigration Stamps, which were not proper chops, BWN Immigration refused to accept her passport[7] (“RBA Email”);

(5)     A copy of the General Code of Conduct for members of the Travel Industry Council Hong Kong[8] (“TIC General Code”).

17.  The RBA Email showed that it was the Immigration Department of Brunei which refused to accept the claimant’s passport due to the Non Immigration Stamps.  

THE 1^ST REASONS AND THE 2^ND REASONS

18.  The Adjudicator in paragraph 8 of the 1^st Reasons stated that the claimant’s case was based on (i) the defendant being a professional travel agent had a general duty to remind or warn the claimant that there was a foreseeable risk of her being refused entry into the destination countries due to the Non Immigration Stamps in her passport; and (ii) as the defendant had kept the claimant’s passport for application for a visa, the defendant in applying for such visa had a duty to remind or warn the claimant of the risk of her being refused entry into the destination countries due to the Non Immigration Stamps in her passport.

19.  Then in paragraph 20, the Adjudicator further set out the claimant’s submissions of there being an implied term in the Contract and/or a duty of care on the part of the defendant to advise her of the risk that she could be refused to board a flight or to enter a destination country due to the Non Immigration Stamps in her passport (such duty was referred to by the Adjudicator as “Duty to Advise”).  The Adjudicator pointed out that the burden of proof was on the claimant. 

20.  The Adjudicator set out the 5 conditions and legal principles in 周順鏞 訴 張維新經營廣成建築公司 HCSA 13/1997, in relation to implication of terms in a contract.  The Adjudicator had also set out the legal principles in Luen Hing Fat Coating and Finishing Factory Limited v Waan Chuen Ming [2011] 14 HKCFAR 14 in relation to duty of care.  

21.  The Adjudicator had set out her analysis and reasons for her conclusion as to why that none of the conditions set out in the above 周順鏞 were satisfied in the present circumstances and that she was of the view that there was no implied term of the Duty to Advise in the Contract, ie no duty on the part of the defendant to advise, remind or to warn the claimant of the risk of not being allowed to board or to enter the destination country due to the Non Immigrant Stamps in her passport. 

22.  The Adjudicator also considered section 5 of SSITO, which provides that:

“5. Implied term as to care and skill

In a contract for the supply of a service where the supplier is acting in the course of a business, there is an implied term that the supplier will carry out the service with reasonable care and skill.”

23.  The Adjudicator had stated that the implied term as to “reasonable care and skill” in section 5 in fact was similar to the duty of care in tort.  Having considered the legal principles in Luen Hing Fat Coating and Finishing Factory Limited [2011] 14 HKCFAR 14, and the facts of the present case, the Adjudicator concluded imposing the Duty to Advise on the part of the defendant as submitted by the claimant would not be fair, just or reasonable[9].

24.  In her 2^nd Reasons, the Adjudicator summarised the claimant’s reasons for her application for review of the 1^st Award as follows[10], namely that (i) the defendant had agreed to refund to the claimant during the trial the sum of HKD 330 for the airport tax; (ii) the fact that the defendant kept her passport for 9 days led her to have a reasonable expectation that the defendant would check her passport; (iii) although the claimant has a legal background, she did not have any professional knowledge of immigration matters, which should be within the professional knowledge of the defendant; (iv) the Tour was an escorted tour and the purpose of the claimant joining an escorted tour was that such a tour would provide additional services other than purchase of tickets and booking of hotels, which should include explaining and reminding participants of immigration matters; (v) as for costs, the defendant’s representative was only attending the trial as an employee, there should be no loss in income, and that transportation fee was only HKD 80; (vi) as for witness fee, the witness Lau did not produce any evidence in relation to his loss of income and should only be limited to transportation fee.

25.  During the review hearing, the claimant had relied on passages from two text books, namely (i) paragraphs 3.55 – 3.71 of Saggerson on Travel Law and Litigation ( 6^th Ed)[11] , and (ii) sections 3-035 to 3-038, 11-024 to 11-028, Appendix 3 of Holiday Law (6^th Edition)[12], and also the Travel Industry Act 2002: Ontraio Regulation 26/05[13], and the EU Package Travel Directive ( 2015/2302)[14] in arguing that there was a duty of care on the part of the defendant towards the claimant, to include the Duty to Advise. 

26.  The Adjudicator had considered the passages in two text books.  The Adjudicator further considered the TIC General Code.  She then came to the conclusion that there were no relevant regulations in Hong Kong which would require the defendant to pro-actively provide advice to the claimant in relation to those Non Immigration Stamps in her passport, nor were there special circumstances, nor any evidence that the defendant knew that the claimant’s passport bore the Non Immigration Stamps nor any evidence that in fact Brunei and Australia had more stringent requirements in relation to Non Immigration Stamps in passports[15]. She also found that the claimant did not request the defendant to check her passport[16].

27.  The claimant had argued at the review that as the defendant had kept her original passport for 9 days, she had a reasonable expectation that the defendant ought to have discovered the Non Immigration Stamps in her passport.  The Adjudicator found in paragraph 17 of her 2^nd Reasons that the fact that the defendant had possession of the claimant’s passport for 9 days did not mean that the defendant had the duty to check every page of her passport.  Further, the Adjudicator rejected the claimant’s submission that keeping the claimant’s passport for the purpose of applying for a visa on her behalf would mean that the defendant ought then to have the duty to check and/or to remind the claimant in relation to the Non Immigration Stamps. 

28.  The Adjudicator further pointed out that for an ordinary person, a passport is an important document, and as the claimant has a legal background, she should have complied with the “Notes” in the passport.

29.  As set out earlier, the HKSAR passport clearly states in its “Notes” on page 31 that it is an important document that it should not be “mutilated, tampered with or transferred to another person for unlawful use”[17].

30.  In short, the Adjudicator found that the claimant was only repeating her arguments during the trial, and having considered all the evidence, apart from allowing the sum of HKD 330 which the defendant had agreed to refund, and also varying the costs award to HKD 1,700, the Adjudicator maintained her findings and conclusions during the trial, that there was no duty on the part of the defendant to advise, remind or warn the claimant that there was a risk of her being refused to board a flight and/or to enter the destination country due to the Non Immigration Stamps in her passport.[18]

THE CLAIMANT’S INTENDED GROUNDS OF APPEAL

31.  The claimant has attached 8 pages of intended grounds of appeal (“Grounds”) with her submissions for each of the Grounds in an attachment (“Form 9 Attachment”) to her application for leave to appeal on point of law (Form 9) (“Leave Application”).

32.  In particular, she has set out under Ground 2, 9 sub-paragraphs with her submissions, in connection with how the Adjudicator had erred in her “Brief Reasons” delivered orally on 29 October 2020, the day of the hearing of the claimant’s application for review. 

33.  The 2^nd Reasons are in effect the same as the “Brief Reasons” with the same paragraph numbers.  Thus at the hearing, the claimant simply relied on the Grounds in her Form 9 Attachment. The Grounds are summarised hereinafter. 

Ground 1

34.  Essentially, Ground 1 is that the Adjudicator had erred in her decision that the defendant as the travel agent had no duty to advise the claimant, its customer, on a reasonably foreseeable risk and/or there was no duty of care owed by the defendant to the claimant.

Ground 2(i)

35.  Ground 2 (i) is essentially in relation to paragraph 14 of the 2^nd Reasons.  The claimant’s complaint is that the Adjudicator had erred in finding that there was no evidence that the defendant or Lau knew that Australia and Brunei had more stringent immigration requirements than other countries, which finding was against the evidence produced by the claimant at trial.

Ground 2(ii)

36.  The claimant’s complaint under this Ground is essentially that the Adjudicator had in paragraph 15 of the 2^nd Reasons “twisted/misunderstood” the claimant’s original submission and similarly, in paragraph 19, the Adjudicator’s logic was twisted, and further the Adjudicator had neglected to consider, or had failed to explain the reasons for rejecting the claimant’s submission that the nature of the “escorted tours” and “travel package” was different.

Ground 2(iii)

37.  The claimant’s complaint under this Ground is essentially that in paragraph 16 of the 2^nd Reasons, the Adjudicator had ignored the claimant’s original submission that the TIC General Code is a set of rules that are drafted by the travel industry’s self-regulatory body that are mostly pro market practitioners rather than providing protection to the retail customers and that the Adjudicator was invited to consider whether those rules are up-to-date and equitable to the retail customers.

Ground 2(iv)

38.  The claimant’s complaint is that the Adjudicator had in paragraph 20 of the 2^nd Reasons queried the reasonableness of the claimant’s act to imprint the Non Immigration Stamps in her passport, and she submits that such act may be naïve or childish to some people, but not as weird, odd or ridiculous as suggested by the defendant and that there were also previously reported incidents (namely C31-33, C34 and C62) and that it was a foreseeable risk that a traveller may encounter which the travel agent should advise its customer on.

Ground 2(v)

39.  Under this Ground, the claimant submits that the Court should re-consider if the unnecessary request of provision of the original passport for processing the visa for Australia by the defendant had created a reasonable expectation of the customer that the travel agent would check the original passport.

Ground 2(vi)

40.  The claimant’s complaint under this Ground is in relation to the finding of the Adjudicator in paragraph 18 of the 2^nd Reasons.  In this paragraph the Adjudicator had agreed with the defendant that the 5-day performance pledge of the Immigration Department (ie to renew a passport within 5 days after submission of all necessary documents) was only an estimate and irrelevant.  The claimant complains that the possibility that she would not prepare all documents in time for such application was a wild guess by the Adjudicator and the defendant.  

Ground 2(vii)

41.  In paragraphs 20 and 21 of the 2^nd Reasons, the Adjudicator erred in applying double standard and considering irrelevant information in considering the legal background of the claimant.

Ground 2(viii)

42.  The claimant objected to the costs awarded to the defendant and asked this Court to reconsider the actual loss suffered by the defendant.

Ground 2(ix)

43.  The claimant disagreed with the Adjudicator’s simplified way to “off-set” the actual loss, if any, suffered by the defendant and the claimant appealed against the quantum of the cost award.

DISCUSSION  

Ground 1

44.  As seen in paragraph 3.55 of Saggerson, a travel agent owes duties of care to his customers at common law where he is exercising a ‘consultancy’ or advisory function[19], and as seen in paragraph 3.58 thereof, his advisory functions are those functions in respect of which the reasonable consumer would ordinarily contemplate advice or assistance.[20]

45.  Further, it is stated in section 4-027 of Holiday Law that in English law, terms can be implied into a contract in three ways: by custom, by statute or by the courts, and that terms implied by custom are not relevant to travel contracts but statutory and judicial implied terms are[21]. As set out in section 4-028, a statutory implied term which has sometimes been referred to in holiday cases and is of wider application than simply package holidays is section 13 of the Supply of Goods and Services Act 1982 (now superseded in consumer contracts by s 49 of the Consumer Rights Act 2015). Section 5 of our SSITO is in fact similarly worded as section 13 of the 1982 Act.

46.  In short, a travel agent owes duties of care at common law to his customers where he is exercising an advisory function. Further, terms can be implied into a travel contract by the courts or by statute.  In Hong Kong, under section 5 of the SSITO, there is an implied term that a travel agent supplying his service to a customer under a travel contract will carry out his service with reasonable care and skill. 

47.  However, the issue at the trial in the present case was not whether generally there were duties of care owed by a travel agent towards its customer.  As identified by the Adjudicator in paragraph 7 of her 1^st Reasons, the issue at the trial was essentially whether the defendant as the travel agent had a duty to advise, remind or warn the claimant as its customer, of the risk of her not being allowed to board a plane or to enter the destination country due to the Non Immigration Stamps in her passport, namely specifically, the so called “Duty to Advise”.  In so far as this Court can see, it was not the Adjudicator’s decision that the defendant as the travel agent had no duty or duties of care at all or no duty to advise the claimant as its customer on any reasonably foreseeable risk. 

48.  The finding of the Adjudicator in paragraph 30 of her 1^st Reasons was only that the defendant had no duty to advise, remind or to warn the claimant of the risk of her being denied boarding or entry to the destination country due to the Non Immigration Stamps in her passport.  The finding of the Adjudicator was clearly confined to there being no Duty to Advise, or in short, such risk was not a reasonably foreseeable risk on the part of the defendant, as seen from those reasons given by the Adjudicator in the 1^st and the 2^nd Reasons.

49.  C31-C33 were online reports of Apple Daily and indicated that in May 2019, there was a mother travelling with her daughter to Thailand and her daughter was denied boarding by the airline due to a Santa Claus postage stamp in her passport.  C62 consisted of further online searches of same incident. C34 was a screenshot of an incident in 2015 when a traveller was refused boarding for Taiwan due to a cartoon stamp on passport.  The other incident in 2018 only mentioned a woman almost being denied entry to Humen on the Mainland for same reason.  It appears from the documents produced by the claimant there had been two incidents only from 2015 to 2019 of a traveller being actually denied boarding.  The findings by the Adjudicator included that (i) from the evidence provided by the claimant, different countries had different requirements in relation to Non Immigration Stamps; (ii) there was no evidence that the defendant knew there were Non Immigration Stamps in the claimant’s passport; (iii) notwithstanding that the defendant had kept the claimant’s passport for 9 days, there was no evidence that the defendant would check every page of the claimant’s passport, nor had the claimant requested the defendant to do so; (iv) that it was only an estimate on the part of the claimant that had the defendant not kept her passport for 5 days, she would have time to renew/apply for a new passport.

50.  For (iv), this was only on the basis if the claimant had known of the risk.  As there was no such evidence, the issue was academic anyway.  In any event, the above were findings of fact.  In light of this, I am of the view that the claimant has not been able to demonstrate that Ground 1 has any prospect of success.  

Grounds 2(i) to (vii)

51.  As for Ground 2(i), the claimant’s case in her Form 2 Attachment was based on the defendant having prior knowledge of Brunei and/or Australia having more stringent requirements than other countries[22].  Notwithstanding the defendant and Lau being veterans in the industry, the Adjudicator’s finding in paragraph 14 of her 2^nd Reasons was that there was no evidence that the defendant and Lau had actual knowledge of Brunei and Australia having more stringent requirements and there was also no evidence whether as a fact Brunei and Australia had more stringent requirements.  These were findings of facts.

52.  Under Ground 2(ii), the claimant complains that the Adjudicator had twisted/misunderstood her original submissions in paragraph 15 of the 2^nd Reasons and similarly the Adjudicator’s logic in paragraph 19 is twisted. 

53.  In paragraph 15 of her 2^nd Reasons, the Adjudicator had considered paragraph 3.39 of Saggerson in which it is stated that information about visas, passports and vaccinations is the sort of general information that falls or should fall within the expertise of the travel agent, and on which the customer may legitimately expect some accurate advice. The Adjudicator found that it cannot be said that the travel agent has the duty to advise its customers in relation to all kinds of information in relation to visas, passports and vaccinations and there was no discussion in Saggerson as to what would constitute “general information” and what would constitute specific information and she thus found paragraph 3.39 to be of limited assistance to her in the present case. The Adjudicator had also referred to the terms on a receipt issued in 2011 by another travel agent, which was produced by the claimant[23], and the Adjudicator found that similarly there was also no advice on the receipt of any risks of holders of passports with Non Immigration Stamps being refused entry to destination countries.  The Adjudicator had considered the evidence produced by the claimant and she was entitled to her findings.  She cannot be said to have erred in such findings.

54.  As for paragraph 19 of her 2^nd Reasons, the claimant’s submission was that holding of briefing sessions by travel agents for escorted package tours showed that there had been a long established practice for travel agents to advise their customers of escorted tours.

55.  However, as said earlier, it was not the decision of the Adjudicator that there were no general duties of care owed by a travel agent to its customer.  There may well be various matters that the defendant or a travel agent would need to advise its customers or as submitted by the claimant, that the holding of briefing sessions shows that there has been a long established practice for the travel agents to advise their customers of escorted tours as shown in those briefing materials.  All the Adjudicator stated in paragraph 19 of her 2^nd Reasons was that what was submitted by the claimant about the Briefing Session was not the key issue, or irrelevant, in that if there were the Duty to Advise on the part of the defendant, whether the defendant held any briefing session or not, he would still have to discharge that duty.  I do not agree that “the logic seems to have been twisted” by the Adjudicator, as it is now being submitted by the claimant.

56.  As for Ground 2(iii), as pointed out by the Adjudicator in paragraph 16 of her 2^nd Reasons, the references to the textbook Holiday Law and the regulations and laws in UK, Canada (Ontario) and EU relied on by the claimant are not applicable in Hong Kong, and the Adjudicator further pointed out that in any event there was no mention in those foreign regulations and laws of any information regarding Non Immigration Stamps in passports.  

57.  Indeed, as seen in section 3-038 of Holiday Law, although the information to be provided to the traveller in the “Schedule 1” under the relevant regulation 5 in UK includes “general information” on passport and visa requirements, it appears that the “general information” contemplated includes approximate periods for obtaining visas and information on health formalities of the country of destination.  There is no mention that “general information” should include information on the requirements of each country in relation to passports with Non Immigration Stamps.  This was in fact what the Adjudicator had said in paragraph 15.

58.  The Adjudicator had referred to the TIC General Code in paragraph 16 of her 2^nd Reasons.  In Ground 2(iii), the claimant’s complaint appears to be that the Adjudicator did not deal with her original submission that as the TIC General Code is a set of rules that are drafted by the travel industry’s self-regulatory body, and that they are pro their members rather than providing protection to the retail customers.  The claimant then submits that the Hong Kong travel industry’s regulatory regime falls short of those of its counterparts in UK, EU or other western countries and that the claimant has asked this Court to consider (i) whether it is reasonable and equitable to request a non-professional ordinary man to have the knowledge to raise a professional question to a professional for advice; (ii) the applicability of the case Edward Wong Finance Co Ltd v Johnson, Stokes & Master [1984] AC 296 in that following the regulatory body’s rules and guidelines can be found to be plainly negligent and will be rejected as evidence of reasonableness, (iii) to consider the claimant’s authorities in C48 to C49 that adherence to/compliance with industry practice/industry codes and rules, or even statutory standards does not necessarily render a conclusive proof that reasonable care was taken.

59.  In paragraph 16 of the 2^nd Reasons, the Adjudicator had referred to the TIC General Code, and it is clear by its title “香港旅遊業議會會員作業守則” that it is the professional code of conduct for its members.  It is also stated at the introductory section that the code is to raise the professional standard of commercial conduct and that members should comply with the code in accordance with the regulations of the constitution of the organisation.  The Adjudicator had said it was undisputed that under the TIC General Code, the member would only check the customer’s travel documents and clarify any queries relating thereto, upon request by the customer.

60.  The Adjudicator further found that there were no regulations or legislations in Hong Kong which required the defendant to pro-actively provide advice in relation to Non Immigration Stamps in the customer’s passports, and that further there was no evidence to show that the defendant had known that the claimant’s passport bore Non Immigration Stamps.  The Adjudicator also accepted the defendant’s evidence that had the defendant known about the Non Immigration Stamps, there was no reason for the defendant not to advise the claimant. The Adjudicator further found that in the present case, the claimant did not request the defendant to check her passport.

61.  The TIC General Code was clearly one of the matters which the Adjudicator was entitled to take into account, and her decision was not based on only the TIC General Code.  She had set out all her reasons for her decision. 

62.  Whether the travel industry regulatory regime needs an overhaul may involve policy decisions.  For the purpose of the Leave Application, it is for the claimant to satisfy this Court that the Adjudicator had erred on a point of law.  The claimant however is not able to demonstrate how the Adjudicator had erred in her findings of fact in paragraph 16, in particular that there was no evidence to show that the defendant had known that there were Non Immigration Stamps in the claimant’s passport.

63.  In Grounds 2(iv), 2(v), 2(vi) and 2(vii), the claimant was simply responding and arguing against the Adjudicator’s findings in paragraphs 17, 18, 20 and 21 of the 2^nd Reasons and also repeating her own submissions.  Again, the claimant has not been able to demonstrate how the Adjudicator had erred on a point of law in those paragraphs in the 2^nd Reasons.

Grounds 2(viii) and (ix)

64.  As for Grounds 2(viii) and 2(ix), the claimant objects to the costs awarded by the Adjudicator.

65.  Section 24 of the Small Claims Tribunal Ordinance, Cap 338 states as follows:

“24. Costs

(1)  Subject to subsection (2), 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.

(2)  In making an award of costs under this section, the tribunal shall include a direction as to the amount to be paid by each party who is liable to pay costs.

(3)  An award of costs shall be enforceable in the same manner as any other award of the tribunal.”

66.  During the review, the claimant had argued that the defendant’s representative had attended the trial in his capacity as employee and there was no actual loss suffered, and further Lau did not produce any evidence to prove loss of salary for attending the trial as a witness for the defendant.  Thus the two of them should only be allowed transportation fees.

67.  The Adjudicator had considered two cases in paragraph 23 of her 2^nd Reasons, namely (i) 劉嘉豪 訴 香港房屋委員會 HCSA 45/2018, [2018] HKCFI 2782 and (ii) the 周順鏞 對 律政司 HCSA 5/2000.  

68.  Although the appellant in the case in (i) did not appear to be appealing against the costs award, DHCJ Marlene Ng, as she then was, had set out in paragraph 22 of her judgment the detailed calculations of the adjudicator in the Tribunal in relation to the loss of salary.  No doubt, the Judge was fully aware that the defendant in that case and its witness were Government employees and leave would not have to be taken for attending the trial, and yet she did not point out any issues arising out of those calculations by the adjudicator.  In any event, for an appeal against costs awarded against the Government on similar basis in the case in (ii) above, DHCJ Susan Kwan, as she then was, dismissed the appeal.

69.  It seems clear from the above two cases that the Adjudicator may make an award of costs under section 24 for loss of salary or wages of the defendant’s representative and Lau, as the defendant had suffered a loss by the non-availability of its representative, and also Lau, at work.

70.  Costs are in the discretion of the Adjudicator and the Adjudicator was entitled to adopt a broad brush approach and she cannot be said to be plainly wrong or have erred on a point of law.

CONCLUSION 

71.  Having considered the claimant’s Grounds, I am of the view that the claimant was not able to satisfy this Court that the Adjudicator had erred on a point of law.  I am also not satisfied that the intended appeal has a reasonable prospect of success or there is some other reason in the interests of justice why the appeal should be heard.

72.  I decline to grant leave and dismiss the claimant’s Leave Application.