CHEUNG MOON HOI JEFF v. 陳志華經營音樂琴行

HCSA 3/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

SMALL CLAIMS TRIBUNAL APPEAL NO 3 OF 2014

(ON APPEAL FROM SMALL CLAIMS TRIBUNAL CLAIM NO 19543 OF 2012)

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D E C I S I O N

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1.  This is an application for leave to appeal on point of law against a decision of the Small Claims Tribunal pursuant to s. 28 of the Small Claims Tribunal Ordinance (Cap 338).

Background

2.  The applicant was the claimant in the Tribunal. He brought a claim there against one Mr Chan Chi Wah trading as “Piano Music” for the refund of certain sums paid for Liuqin lessons for the applicant’s son.  The claim arose as follows.

3.  On 7 March 2012 the applicant paid $1,430 to Piano Music as advance payment for four Liuqin lessons for his son together with a registration fee of $30.  The first lesson on 8 March was uneventful, following which the applicant filled in a registration form as requested by Piano Music.

4.  On 9 March, Friday, the applicant requested that the second lesson be arranged for 12 March, Monday, evening.  Piano Music replied that the lesson might have to take place at that time in the small piano room, instead of a bigger room.  The applicant replied by email stating “Ok. Thanks”.  On 11 March, Sunday, at 2:36 pm, however, the applicant changed his mind and sent an email to ask the studio to cancel the appointment on Monday and re-schedule the lesson to a time when a larger room was available.

5.  The adjudicator of the Tribunal (Mr Wong Sze-cheung, Colin) found, as a fact, that there was no relevant telephone communication between the parties over the weekend (as alleged by the applicant and his wife) and that Piano Music only saw the 11 March email after 3 pm on 12 March. 

6.  At 5:33 pm on that day, shortly before the scheduled lesson, Piano Music replied that the lesson could not be cancelled and had to be paid for.  The applicant was dissatisfied and immediately replied by email to terminate the relationship, seeking a refund of $1,050 being the fees for three lessons.

7.  There was further email correspondence between the parties with them being at one stage very close to a settlement (as can be seen from the emails quoted below), but no money was in the end refunded by the studio.  The applicant brought his claim in the Tribunal on 29 May 2012 for $1,050.

8.  At the hearing of the case on 27 February 2013, the applicant called his wife as his witness and the defendant Mr Chan gave evidence for the defence.  The adjudicator was not impressed by the applicant’s wife as a witness and said in his reasons for decision that where there was a dispute between the parties on the fact, he accepted the defendant’s version as the truth.

9.  The registration form contained a clause that cancellation of a lesson had to be made with two working days’ notice.  The adjudicator held, however, that since the registration form was only signed after the first lesson, the terms printed on it were not binding on the applicant.  He found that the contract was an entire contract for four lessons.  He held that the applicant was not entitled to cancel a lesson by notice received by the studio only on the day.  The studio was therefore entitled to charge the full fee for the second lesson.  The applicant’s purported termination of the contract and demand for a refund of the sum of $1,050 was itself a repudiation of the contract, which the studio was entitled to accept.  He found that there was no concluded settlement agreement between the parties subsequently.  On the basis that the studio’s profit on each lesson was 40% of the fees, the adjudicator ordered it to return 60% of the fees for the third and fourth lessons to the applicant in the total sum of $420.  He declined to make any order as to costs.

10.  On 29 November 2013, upon a review requested by the applicant, the adjudicator maintained his decision.

11.  By an application dated 10 January 2014, the applicant sought leave from this court to appeal on a point of law.  The grounds of the appeal and alleged errors of law are to be found in the affirmation of the applicant made in English on 9 January 2014.

Grounds of appeal

12.  As far as I can ascertain from the applicant’s affirmation, the grounds put forward for the intended appeal are as follows.  First, the applicant stated that the adjudicator “erred in law that [the applicant] must pay the Defendant’s profit margin, that is HK$140 for each hour, for the remaining 3 unused hours, total HK$140 x 3 = HK$420 to the Defendant.”  The applicant contends there was no agreement that his son must finish all four lessons.  I take this to be a challenge against the adjudicator’s finding that there was an entire contract for four lessons.  The adjudicator dealt with this in paragraph 17 of his reasons for decision.  He relied on the fact that a student must take four lessons at a minimum and that the fees were collected in lump sums of four lessons’ fees in aggregate.  As I see it this is a conclusion entirely open to the adjudicator to reach.  I do not think the applicant has been able to identify any error of law in this finding.

13.  The studio decided not to provide any further lessons to the applicant’s son only after the applicant purported to terminate the agreement.  As the adjudicator held that the applicant was in repudiation of the contract, the studio was entitled to damages assessed as a measure of the lost income.  I do not see any error in the decision to award damages.

14.  Secondly, the applicant contends that the adjudicator erred in not relying on a previous cancellation of lesson on 25 February 2012, when Piano Music accepted the applicant’s cancellation of a lesson only several hours before the lesson.  The applicant says that it was a precedent agreed and accepted by both parties.  As the adjudicator pointed out in paragraph 5 of his reasons, however, the studio allowed the cancellation because the applicant’s son was sick on that occasion and it was the first time the applicant cancelled a lesson.  I think that the adjudicator was entitled to find that, on the facts, the applicant had no right to cancel the lesson at short notice.

15.  Thirdly, the applicant referred to some letters written by him or his wife stating that his wife had been told by the management company of the premises where Piano Music was located that the studio opened on Sundays.  By that, the applicant presumably wished to attack the adjudicator’s finding that the shop did not see the cancellation email until the afternoon of 12 March 2012.  As the adjudicator stated in his reasons for decision on the review, the applicant failed to adduce any concrete evidence that the studio opened on the Sunday of 11 March 2012.  Furthermore, the adjudicator considered that even if the cancellation notice was received by the studio on Sunday, it would not have been early enough.  I am unable to detect any arguable error of law in these findings.  Further, the applicant cannot demonstrate any error of law by adducing new evidence.  Under the Small Claims Tribunal Ordinance (Cap 338), even where leave is given, no further evidence may be received by the court: see s. 29(2).

16.  Fourthly, the applicant contends that the adjudicator was wrong to find that the studio had paid the music tutor for the second lesson, as it did not produce any documentary evidence.  This is a finding of fact which the adjudicator was entitled to make on the basis of any admissible evidence including oral evidence.  There is no error of law identified by the applicant.

17.  Fifthly, the applicant contends that there is a discrepancy between the defendant’s evidence on his profit margin and that the adjudicator should not have accepted his oral evidence that it was 40% of the fee (i.e. $140) per hour.  Again, this is a finding of fact that the adjudicator was entitled to make on the basis that he accepted the defendant’s oral evidence at the hearing.  The applicant has failed to raise any point of law that requires investigation.

18.  Sixthly, the applicant says that the studio had, in the parties’ pre-action correspondence, agreed on 28 March 2012 to refund $1,050 to him but never did.  He says that the studio had breached a binding settlement agreement and that the adjudicator erred in law in failing so to hold.

19.  This requires an examination of the relevant emails between the parties, which I set out as follows:

(1) From applicant to defendant on 12 March 2012

“If we do not receive the refund on or before 14 March 2012, we shall commence legal proceedings against your company and your company will be responsible for the legal proceedings That I have incurred.”

(2) From applicant to defendant on 12 March 2012

“your company will be responsible for the cost of legal proceedings That I have incurred”

(3) From defendant to applicant on 13 March 2012

“見到到您們這樣，賓在非常無奈。

我們沒有做錯事外，全心想幫您們小朋友安排好導師，換來這樣。(可問張先生就知道)

當然我們不喜歡浪費時間，但都要對導師和公司負責。

1．12/3（MON）那堂是要計算的，您們有責任預早通知我們取消，可給導師安排。

他也是改了其他學生的時間，才可給您們這時間。

2．負責出票同事下星期回來。（應該22/3前)

3. 不能郵寄，需要您們到來簽收。

如您們接受，我們會安排$700的支票，下星期弄好再通知。

待覆!”

(4) From applicant to defendant on 13 March 2012

“我已在下面的email說得很清楚，我已一早通知要取消三月十二目的課堂。如我在三月十四日前收不到HK$1,035我便會進行追數行動。

費用由公司負責。”

(5) From defendant to applicant on 15 March 2012

“張先生/張太太您們好，

有關您們要求退回已繳學費的事，經公司商討後，有以安排。

首先要強調，退款不是我們因為出錯或做不好，只不想雙方為數百元帶來不必要的麻煩和浪費時間。

除了兩堂未上的學費（$700）加上12/3一堂內我司的利潤（$100）共$800

如果可以接受，我們會即時安排支票，請您們到來取。”

(6) From applicant to defendant on 15 March 2012

“因今天收不到HK$1,035的退款，我們會開始追討程序”

(7) From defendant to applicant on 21 March 2012

“張先生/張太太您們好，

我們已經安排好有關退款，如您們不方便到取，可以寄上，但不負責郵寄所致的失誤。

再次強調，我們絕不願意為數百元煩惱，更不會覺得在正常法律程序下需要負上任何責任。

當然，您們所指“進行追數行動”如有損害我們公司，定必追究或報警求助。”

(8) From applicant to defendant on 27 March 2012

“Dear Sir,

I put it on record that as of today, I still haven’t received your cheque of HK$1,035. As I have already allowed sufficient time for you to post the cheque of HK$1,035 to my address, legal actions (to claim for legal charges as well) will be taken without further notice.

regards”

(9) From defendant to applicant on 28 March 2012

“真系怕...左你地，三堂比返你地，系1050，吾好話我地呃多15。

可以過里攞，如寄失你地負責，郵費你地負責。

而家十二点，24小時吾見回覆就當要寄。1048.6

再吾鐘意米去小額，調解員都吾啋你，就比個官鬧醒你地都好。”

(10) From applicant to defendant on 28 March 2012

“Your email will be shown to the small claims tribunal as evidence. The cheque should be of the amount of HK$1,050 with nothing less.”

(11) From defendant to applicant on 28 March 2012

“吾明，要寄定吾寄，無回覆，就寄。”

(12) From applicant to defendant on 28 March 2012

“唔明就查字典”

(13) From defendant to applicant on 28 March 2012

“甘就請你地到來取。”

(14) From applicant to defendant on 28 March 2012

“I shall go to the Small Claims Tribunal tomorrow. See you there.”

(15) From applicant to defendant on 1 April 2012

“這是一個記錄再次證明你們沒有退還總數HK$1,050. 我們到今天依然沒有收到退款”

(16) From applicant to defendant on 11 April 2012

“This serves as an evidence that as of today, we still haven't received your cheque of HK$1,050. No doubt that you have tried to avoid refund the sums to us. In these circumstances, we shall tell the small claims tribunal that you have never mailed the cheque to us as promised. We shall claim the amount with interests from the first date of cancelling the lessons.”

20.  The applicant did not collect the cheque for the refund and the defendant did not respond to the last few emails of the applicant.

21.  The adjudicator found that no binding settlement agreement was concluded because the applicant never reverted to say whether he would bear the postage and agree to forbear from instituting proceedings.  I do not see any error of law in this conclusion.  As can be seen from the defendant’s email of 28 March 2012, the most that the defendant offered was a refund of $1,050 if collected by the applicant in person, or $1048.60 if sent to the applicant by post (presumably the postage was $1.40).  The applicant then insisted on the studio bearing the postage and sending him by post the full sum of $1,050 “with nothing less”, but this was never agreed to by the defendant. In my view, on the true and proper construction of the correspondence, the adjudicator’s finding that there was no concluded settlement agreement was correct.

22.  Seventhly, the applicant contends that the adjudicator erred in not awarding him costs given that he succeeded in recovering $420.  He submits that the defendant ignored his correspondence, resulting in the need to bring the claim.  Costs are in the discretion of the Tribunal: see s. 24(1) of the Ordinance.  Having regard to the fact that the applicant had claimed $1,050 but only recovered $420 and that much of his case on the facts and on the nature of the contract was rejected, and having regard to the email exchanges set out above, I think there was ample material on the basis of which the adjudicator could exercise his discretion to make no order as to costs as he did.  No error of law exists in relation to the exercise of that discretion.

Conclusion

23.  There is no appeal as of right from the Small Claims Tribunal.  An appeal lies from the Small Claims Tribunal to the Court of First Instance with leave of the court only on a ground involving a question of law alone or on the ground that the claim was outside the jurisdiction of the tribunal: s. 28 of the Ordinance.  Even where leave is given, the appeal does not operate as a complete rehearing.  For the reasons stated above, I have come to the conclusion that none of the matters raised by the applicant even arguably discloses an error made by the adjudicator that can be appealed.  The application for leave to appeal must therefore be dismissed.