MAIHI LTD v. WO PING INDUSTRIAL PARK LTD AND ANOTHER

HCSA 15/2026

[2026] HKCFI 2507

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

SMALL CLAIMS TRIBUNAL APPEAL NO. 15 OF 2026

(ON APPEAL FROM SMALL CLAIMS TRIBUNAL

CLAIM NO. 46800 OF 2024)

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D E C I S I O N

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1.  This is the 1^st Defendant’s application for leave to appeal against the decision of the Deputy Adjudicator Yung Yuen Hung Clara (“Adjudicator”)  made on 23 January 2026 (“Decision”). 

2.  At the material times, the Claimant was a tenant of a unit (“Premises”)  at Tai Ping Industrial Park in Taipo (“Building”), and had been using the unit for storing and distributing frozen meat.  On 13 May 2023, there was heavy rainfall, and an electricity supply outage (“Outage”)  occurred in the Building which lasted for 35 hours.  The Claimant claimed that the Outage caused spoilage of its food products kept at the Premises.  It sought HK$75,000 against both the 1^st Defendant as the manager of the Building, and the 2^nd Defendant as the contractor who carried out waterproofing works at the rooftop of the Building.  The Adjudicator found the 1^st Defendant liable for breach of its duties to the Claimant, and ordered the 1^st Defendant to pay HK$75,000 to the Claimant with costs.  The Claimant’s claim against the 2^nd Defendant was dismissed.  The Adjudicator gave brief reasons for the Decision on 23 January 2026 (“Brief Reasons”)  and handed down her full reasons on 15 April 2026 (“Full Reasons”).

A.  THE RELEVANT LEGAL PRINCIPLES

3.  Under s.28(1)(a)  of the Small Claims Tribunal Ordinance (“Ordinance”)  (Cap 338), “[a]ny party who is aggrieved by a decision of the tribunal on any ground involving a question of law alone … 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”.

4.  S.28(2)(a)  of the Ordinance further provides that “[a]n application for leave to appeal under this section shall be in the prescribed form, specifying the ground of the appeal and the reasons in support of such ground”.

5.  Where an appeal lies only on questions of law (such as an appeal under s.28 of the Ordinance), the appellate court may intervene in relation to a finding of fact if the finding is perverse or irrational, or where there is no evidence to support it, or it was made by reference to irrelevant factors or without regard to relevant factors: Kwong Mile Services Ltd v Commissioner of Inland Revenue (2004)  7 HKCFAR 275 at [31]-[34] (Bokhary PJ); in the specific context of an appeal from the Small Claims Tribunal, Chow Mee Yee Millie v Hong Kong Mediation Services Ltd (unreported, HCSA 17/2011, 16  February 2012)  at [25] (Au J).

B.  THE “GROUNDS” OF APPEAL

6.  In its application for leave to appeal dated 23 February 2026, the 1^st Defendant set out 13 “grounds” of appeal by asserting that Adjudicator was erroneous in law.  These “grounds” simply turned the ultimate conclusions of the Adjudicator into a series of questions without identifying what the relevant point of law is and without explaining how the Adjudicator’s conclusion is said to be wrong in law.  It is clear that merely turning the tribunal’s conclusion into a form of question does not identify any legal error and is therefore not a proper question of law: cf China Mobile Hong Kong Co Ltd v Commissioner for Inland Revenue [2018] 2 HKLRD 146 at [30(3)] & [30(4)] (Chow J).  The “grounds” also fail to provide any supporting reasons and do not satisfy the requirement set out in s.28(2)(a)  of the Ordinance.  In my view, the 1^st Defendant’s application in the prescribed form is defective.

7.  In its skeleton arguments filed before the hearing, the 1^st Defendant grouped the 13 grounds into 5 grounds of appeal.  Again, the regrouped “grounds” of appeal are merely rolled-up assertions that the Adjudicator was wrong in law in coming to her conclusions without any explanation of why such conclusions are said to be wrong. 

8.  Despite the defectiveness of the 5 “grounds” of appeal advanced by the 1^st Defendant, I will examine each of them.

9.  Before doing that, I should briefly mention the 1^st Defendant’s submission in relation to the Adjudicator’s Full Reasons.  It is said that the Full Reasons should be disregarded by the court because they came outside the 14 days period specified in s.18(3)  of the Ordinance.  In my view, s.18(3)  is concerned with the reduction to writing of an oral award or order made by an adjudicator.  In the present case, this came on 29 January 2026 when the oral decision of the Adjudicator made on 23 January 2026 was transcribed and reduced into the Brief Reasons.  In any event, as will be apparent from my decision, I do not find it necessary to refer to the Full Reasons for the purpose of determining this application.

B1.  Ground 1

10.  The 1^st Defendant’s Ground 1 is that the “Adjudicator made unsustainable factual finding and/or misunderstood [the 1^st Defendant’s] case on the water ingress pathway”.

11.  The 1^st Defendant submits that the parties’ common ground was that the Outage was caused by water flowing from the junction box on the rooftop to the electrical facilities of the Building.  Nonetheless, the 1^st Defendant asserts that the Adjudicator then “erroneously assumed the pre-existing internal defect of the junction box was the source of water leakage, i.e. water went through the junction box to the floors below”.  The 1^st Defendant submits that there was other evidence before the Tribunal to suggest that the Outage was caused by other reasons and that the Adjudicator had erred in failing to take such evidence into account.

12.  The 1^st Defendant’s submission is entirely without merit and must be rejected. 

(1)  The 1^st Defendant has correctly submitted that it was common ground that the Outage was caused by water flowing from the junction box at the rooftop to the electricity meter room of the Building which caused the short circuit.  This common ground is stated in the Brief Reasons at [6].  Indeed, the 1^st Defendant gave evidence and made submissions before the Tribunal to the same effect: see paragraph 5 of Ms Lei’s witness statement filed on behalf of the 1^st Defendant and paragraph 9 of the 1^st Defendant’s supplemental closing submissions. 

(2)  In the light of this common ground, it was entirely correct for the Adjudicator to proceed her determination on this basis.  It is highly unfair and improper for the 1^st Defendant to now suggest that the Adjudicator ought to have departed from that common ground when the 1^st Defendant’s representative gave evidence and made submissions to support it before the Tribunal.

(3)  The evidence which the 1^st Defendant now says the Adjudicator ought to have taken into account includes the tentative opinion of another contractor (Mr Yuen)  as recorded in the Brief Reasons at [16], and the opinions of the loss adjuster appointed by the 1^st Defendant’s insurer.  However, given that the parties’ common position was that the rainwater travelled from the junction box to the meter room which caused the Outage, and that the 1^st Defendant never asked the Tribunal to consider any other cause, the Adjudicator was entirely correct to adopt the common position.   

13.  In my view, Ground 1 is unarguable.

B2.  Ground 2

14.  The 1^st Defendant’s Ground 2 is that the “Adjudicator erred in law and/or made unsustainable factual findings in failing to find [the 2^nd Defendant] acted in breach of its duty of care owed to [the Claimant]”.

15.  The 1^st Defendant submits that the Adjudicator was wrong in law to find that the sealing of the boundary of the junction box was beyond the scope of the 2^nd Defendant’s work.  At [35] of the Brief Reasons, the Adjudicator came to the view that it was not the 2^nd Defendant’s responsibility to work on the junction box.  At [27], [33] and [35] of the Brief Reasons, the Adjudicator referred to the scope of work in the contract between the 1^st and 2^nd Defendants, and that the 2^nd Defendant’s work did not aggravate any pre-existing risk.  These are factual findings that the Tribunal was entitled to make.  Other than seeking to reargue these factual points in this application, the 1^st Defendant has failed to explain how the Tribunal’s factual conclusions may be challenged in the limited ways as mentioned in the authorities. 

16.  In these circumstances, Ground 2 is unarguable.

B3.  Ground 3

17.  The 1^st Defendant’s Ground 3 is that the “Adjudicator erred in law and/or made unsustainable factual findings in finding that [the 1^st Defendant] acted in breach of its duty of care owed to [the Claimant]”.

18.  The 1^st Defendant submits that the Adjudicator misdirected herself as to the nature of duty owed by the 1^st Defendant and that the 1^st Defendant’s duty to the Claimant is not “non-delegable”. 

19.  At [31] of the Brief Reasons, the Adjudicator described the 1^st Defendant’s duties as “non-delegable” in the sense that the 1^st Defendant could not employ the 2^nd Defendant to carry out water proofing work in order to evade its own duty of care.  In this application, the 1^st Defendant relies on certain authorities and appears to argue that the 1^st Defendant’s duty was not “non-delegable”.  In my view, the 1^st Defendant has misunderstood what the Adjudicator said.  As explained by Lord Sumption in Woodland v Essex County Council [2014] AC 537 at [5], the law of negligence is generally fault-based and does not ordinarily impose personal (as opposed to vicarious)  liability for what others do or fail to do.  But this ordinary principle is displaced in certain cases where a defendant’s duty “extends beyond careful, to procuring the careful performance of work delegated to others”.  Such a duty is generally known as a “non-delegable duty”.  In [31] of the Brief Reasons, the Adjudicator clearly did not refer to the 1^st Defendant as having a “non-delegable duty” in this strict legal sense.  In my view, as was made clear in the last phrase of [31], what the Adjudicator meant by “non-delegable duty” was that the 1^st Defendant could not avoid being in breach of its duty of care merely by employing the 2^nd Defendant to carry out the water proofing work.  I am unable to see any legal error in coming to that conclusion. 

20.  The 1^st Defendant further submits that the Adjudicator was wrong to find that it was in breach of duty to the Claimant.  It does so by seeking to challenge the findings of fact concerning (1)  the 1^st Defendant’s knowledge of the water leakage problem and (2)  the fact that the 2^nd Defendant has notified the 1^st Defendant of the risk of water leakage.  Again, other than seeking to reargue the factual points in this application, the 1^st Defendant has failed to demonstrate how the Tribunal’s factual conclusions may successfully be challenged in the limited ways as referred to by the authorities.

21.  For these reasons, I believe that Ground 3 is also unarguable. 

B4.  Ground 4

22.  The 1^st Defendant’s Ground 4 is that the “Adjudicator erred in law and/or made unsustainable factual findings in finding that [the Claimant] has suffered loss of $90,595 as a result of [the 1^st Defendant’s] negligence”.

23.  The 1^st Defendant submits that the Claimant has failed to satisfactorily prove its loss and damage. 

24.  The Adjudicator has set out her reasons on quantum at [36] to [41] of the Brief Reasons. Rather than identifying the errors in the Adjudicator’s reasons, the 1^st Defendant sees fit to put forward lengthy submissions in relation to the adequacy of the evidence placed before the Tribunal.  This approach is wrong.  The appellate court does not reweigh the evidence.  The extent to which a particular piece of evidence should be accepted or rejected, and the weight to be given to it, are matters for the Tribunal and not the court: Commissioner of Inland Revenue v Right Margin Ltd [2017] 5 HKLRD 398 at [10] (G Lam J).

25.  Ground 4 equally has no merit and is unarguable.

B5.  Ground 5

26.  The 1^st Defendant’s Ground 5 is that the “Adjudicator failed its [sic] duty to inquire into relevant matters”.  Specifically, the 1^st Defendant argues that the Adjudicator failed to inquire into the existence of a Deed of Mutual Covenants (“DMC”)  of the Building and the exemption clause in clause 11(c)  of the DMC.

27.  The Claimant is not an owner of any unit in the Building and is therefore not subject to the terms of the DMC.  In these circumstances, I disagree that the Adjudicator was obliged to inquire into the existence of the DMC to ascertain the liability of the 1^st Defendant.

28.  As to the 1^st Defendant’s submission that the Adjudicator has failed to investigate into a host of other matters identified in paragraph 52 of its skeleton, all that has been said is that those matters “go to the central issues that have to be resolved”.  The 1^st Defendant has completely failed to explain how each of the matters should have been resolved, and how they would have had any impact on the Decision. 

29.  Ground 5 is similarly unarguable.

C.  DISPOSITION

30.  For all the above reasons, the 1^st Defendant’s application for leave is wholly without merit.  It is dismissed with no order as to costs.