WALLBANCK BROTHERS SECURITIES (HONG KONG) LTD v. CHENG WAI KONG AND OTHERS

HCSA 1/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

SMALL CLAIMS TRIBUNAL APPEAL NO 1 OF 2015

(ON APPEAL FROM SMALL CLAIMS TRIBUNAL

CLAIM NO 47483 OF 2012)

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J U D G M E N T
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Introduction

1.  This is an application for leave to appeal lodged by the claimant (“Wallbanck”) against an order made on 15 December 2014 by Mr Timon Shum, Adjudicator of the Small Claims Tribunal (“15.12.14 Order”).

2.  The Adjudicator Mr Shum (“Adjudicator Shum”) handed down his reasons for decision on 23 February 2015 (“Reasons”).

3.  The background leading to the claim by Wallbanck had been conveniently set out in the Reasons.

4.  Briefly, the claim by Wallbanck in the Small Claims Tribunal (“Tribunal”) was in relation to 2 sets of contracts, namely hire purchase contracts and servicing contracts, for the supply of 2 photocopying machines by D5 Ricoh Hong Kong Limited (“Ricoh”) to Wallbanck. 

5.  Wallbanck alleged, among other things, that it had terminated the 2 service contracts but Ricoh had failed to retrieve the 2 photocopying machines for about 21 months.

6.  At the material times, D2 was the manager and D3 the managing director of Ricoh.  Wallbanck’s case against D2 and D3 was that, in breach of various duties of care owed to Wallbanck, they had failed to properly deal with its complaints, including concealing them from the Customer Service Department of Ricoh.  Wallbanck alleged it was misled and deceived into believing that its complaints had been handled properly in full compliance with the internal procedures of Ricoh, and Ricoh was vicariously liable.  Wallbanck terminated the contracts with Ricoh due to the misrepresentation and misconduct of the staff of Ricoh, but notwithstanding Wallbanck’s repeated requests, Ricoh had failed to remove the photocopying machines from Wallbanck’s premises.  Wallbanck thus sought outstanding “custodian fees” of the 2 machines for about 21 months, including administrative costs and rental of the area occupied by the 2 machines, totalling a sum of HK$48,800 with interest and costs.

7.  Wallbanck was represented by its chief executive officer, Mr Chan Kin Fung Phil (“Mr Chan”).  Mr Chan is a solicitor and was said by Adjudicator Shum in the Reasons to be the sole proprietor of Phil Chan & Co, a solicitor’s firm.

8.  The application for leave to appeal was lodged by Wallbanck acting in person, and signed by Mr Chan on behalf of Wallbanck.

9.  On 12 January 2015, a firm of solicitors Messrs Phillips filed a Notice to Act on behalf of Wallbanck.  However, on 28 February 2015, Wallbanck initially lodged its written submissions in its own name, as applicant in person.

10.  Anyway, Mr Chan turned up at the hearing before this court, informing that he was then with Messrs Phillips, and it appeared he had become the sole proprietor of a Hong Kong firm of the name Phillips.

Brief Chronology of the proceedings in the Tribunal

11.  It would appear that Ricoh was the first to lodge a claim against Wallbanck in 2011 under SCTC 011439/2011 for the sum of HK$6,319 being excess copying charges under the photocopier service contract/s. Judgment was eventually entered in favour of Ricoh after a trial on 20 February 2012.  Wallbanck applied for a review which was later dismissed on 19 February 2013.  On 7 March 2014, Wallbanck then lodged an appeal but the same had been adjourned, and no further action appeared to have been taken by Wallbanck in relation to the appeal.

12.  In the meantime, prior to its review being dismissed, on 21 December 2012, Wallbanck filed the present subject claim in the Tribunal under SCTC 047483/2012 (“SCT Proceedings”), initially against 5 defendants including Ricoh, and now 3 defendants have remained.

13.  Mr Chan had made a number of interlocutory applications in the SCT Proceedings over the course of two years.  Eventually a pre-trial review hearing was fixed before Adjudicator Shum on 15 December 2014 (“PTR”).

14.  At the PTR, Mr Chan made an application for adjournment  of the PTR and also of the trial (“Adjournment Application”), which was objected to by Mr Lee Ka Lun representing Ricoh, D2 and D3 (“Mr Lee”), and after hearing both sides, Adjudicator Shum refused to adjourn the PTR and the trial was scheduled to start on 12 January 2015. 

15.  At the PTR, Mr Chan had also made an application for witness summonses to be issued against 5 persons (“Witness Application”), including D2 and D3.  After hearing from Mr Chan and Mr Lee, the application was refused by Adjudicator Shum.

16.  Adjudicator Shum then proceeded to give directions as set out in the Reasons, including leave for Ricoh to file Mr Lee’s witness statement.

Grounds of Appeal

17.  Mr Chan had attached “Brief Grounds” to his Notice of Appeal (“Grounds”), and submitted that Adjudicator Shum erred in:

(i) deciding that the Witness Application was delayed without considering the decision of Adjudicator To approving the process of the application made in June 2014;

(ii) refusing the Witness Application;

(iii) refusing the adjournment of the PTR despite the ongoing appeal by Wallbanck in the High Court against the decision of Principal Adjudicator Mr Anthony Chow on 22 October 2014, and evidence that the parties were not ready for trial due to the resignation of D5’s witnesses;

(iv) refusing to adjourn the trial despite the ongoing appeal by Wallbanck in the High Court against the decision of Principal Adjudicator Mr Anthony Chow on 22 October 2014, and evidence that the parties were not ready for trial due to the resignation of D5’s witnesses;

(v) failing to seek Wallbanck’s views in D5’s delayed filing of the witness statement.

The Legal Principles

18.  Section 28 (1) of the Small Claims Tribunal Ordinance, Cap 338, states as follows:

“Any party who is aggrieved by a decision of the tribunal-

(a) On any ground involving a question of law alone; or

(b) On the ground that the claim was outside the jurisdiction of the tribunal,

may apply to the Court of First Instance for leave to appeal and the Court of First Instance may grant such leave if it thinks fit.”

19.  Further, it had been emphasised by Kwan JA in Mimi Kar Kee Wong Hung v Severn Villa Limited,HCMP 2192/2011, 12 January 2012 that generally, an appellate court will not interfere with a judge’s exercise of discretion unless the judge has misunderstood the law or the evidence or the exercise of his discretion was plainly wrong such that it was outside the generous ambit within which a reasonable disagreement is possible[1].  As further said by Kwan JA in the Hung case, case management decisions are in the exercise of the discretion of the trial judge, and are only subject to appeal in rare circumstances and the appellant faces a “very high hurdle” and must show that the judge “has gone clearly wrong and made orders which will clearly involve an injustice or an inability for the trial court to carry out its task”, or if the judge “erred in principle or the order was irrational having regard to the issues that had to be resolved”.

The Adjournment Application

20.  As mentioned earlier, the Adjournment Application was made by Mr Chan on the ground that Wallbanck was appealing against another decision made by the Principal Adjudicator on 22 October 2014 refusing to adjourn the hearing that day and refusing to issue witness summonses as requested by Wallbanck on that day.  Wallbanck’s application for leave to appeal (“Leave Application”) was originally fixed for hearing on 5 February 2015, but apparently the hearing had been adjourned by Mr Justice To in order to seek relevant transcript of the hearing of 22 October 2014.

21.  Adjudicator Shum had given his reasons for refusing the Adjournment Application.  He had said, among other things, that the Leave Application in so far as it related to the Principal Adjudicator’s refusal to adjourn the hearing on 22 October 2014, this had no bearing on the PTR; and in so far as it related to the Principal Adjudicator’s refusal to grant the application for witness summonses, the refusal was because Wallbanck had failed to file the proper application forms in the first place.

22.  In any event, as pointed out by Adjudicator Shum, by the time of the PTR, Wallbanck had on 5 December 2014 filed the proper forms for the Witness Application, and the matter was before Adjudicator Shum for consideration anyway at the PTR.

23.  Mr Chan claimed that the parties were not ready for trial due to the resignation of D5’s witness.  The Adjournment Application was made by Mr Chan on behalf of Wallbanck, and not by the defendants.  In fact, Mr Lee on behalf of all the defendants opposed the Adjournment Application.  There was no evidence that by the time of the commencement of the scheduled trial date, the defendants would not be ready for trial.  

24.  As further stated by Adjudicator Shum in the Reasons, the SCT Proceedings were started by Wallbanck back in December 2012, and by the time of the PTR, there had been 15 mention hearings, and that it would be undesirable that there should be any further delay of the PTR or the trial.

25.  The decision not to adjourn was clearly a matter of discretion for Adjudicator Shum, and in my view, there was nothing to indicate that Adjudicator Shum was plainly wrong in exercising his discretion.  The burden was on Mr Chan to demonstrate that there was an error in law, he was unable to identify any arguable question of law, or otherwise discharge the burden on him.

The Witness Application

26.  As Adjudicator Shum had pointed out, out of the 5 persons against whom Mr Chan was seeking to summon, 2 of them were in fact D2 and D3.  As they are parties in the SCT Proceedings and Mr Lee had informed Adjudicator Shum that they would be testifying at the trial, there was no need to summon them.

27.  One of the remaining 3 persons was one Winnie Sum, who was originally named as the 1^st defendant in the SCT Proceedings, but as Wallbanck’s claim form could not be served on her, the claim against her had already been struck out on 19 December 2013. 

28.  Adjudicator Shum did not refuse the Witness Application merely on ground of delay, as Mr Chan seemed to have stated under the first of his Grounds, although it would appear that Mr Chan did not file the proper application forms until 5 December 2014.  Anyway, Adjudicator Shum had given his reasons for refusing to summon Winnie Sum and the other two persons. Mainly, the issues in the SCT Proceedings were whether D2 and D3 owed any duty of care to Wallbanck and whether the defendants would be liable.  The burden of proof fell on Wallbanck to demonstrate why Wallbanck would need to call the other three persons and Adjudicator Shum said Wallbanck had failed to do so. 

29.  Mr Chan had further mentioned at the PTR that he would like to summon other witnesses including Mr Lee, the representative of the defendants at the PTR and Ma Tat Sang Kenneth, the finance director of Ricoh and solicitor acting for Ricoh in another case in the District Court DCCJ 2454/2013 issued by Ricoh against Wallbanck.

30.  Adjudicator Shum had pointed out that as there were no proper application forms, he did not see the need to consider the same. Having said this, he did direct that the statement of claim and Mr Lee’s witness statement in DCCJ 2454/2013 be added to Wallbanck’s list of documents for trial in the SCT Proceedings.  Further, he gave leave for Ricoh to file Mr Lee’s witness statement in the SCT Proceedings.

31.  Anyway, in relation to the Witness Application, Mr Chan had again failed to satisfy the court that there had been any error in law on the part of Adjudicator Shum.

Filing of further witness statement of Mr Lee 

32.  The final ground for leave to appeal was that Adjudicator Shum had failed to seek Mr Chan’s views in D5’s delayed filing of the witness statement.

33.  It would appear from the Reasons that Mr Chan had himself also raised the issue on summoning Mr Lee as a witness, and further Mr Lee had also indicated that he would be a witness for Ricoh at the trial.

34.  I see no reasonable grounds for Mr Chan’s complaint.  Again, Mr Chan had failed to identify any error in law in Adjudicator Shum making those directions at the PTR.

Conclusion

35.  In light of the above, Wallbanck’s application for leave to appeal is dismissed.