張玉珊 v. 高等法院原訟法庭陳嘉信法官

HCAL 566/2022

[2022] HKCFI 2136

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 566 OF 2022

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D E C I S I O N

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1.  By a Form 86 dated 30 June 2022, the Applicant seeks leave to apply for judicial review of the decision of Wilson Chan J dated 31 March 2022 made in HCSA 19/2021.

2.  As the case number identifies, HCSA 19/2021 was an application for leave to appeal against a decision of the Small Claims Tribunal (“Tribunal”).  A party aggrieved by a decision of the Tribunal may seek leave to appeal from the Court of First Instance, but such an application can only be made (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: see section 28(1)  of the Small Claims Tribunal Ordinance, Cap 338 (“SCTO”).

3.  The Applicant was a party aggrieved by a decision of the Tribunal.  Hence his application made in HCSA 19/2021.

4.  However, Wilson Chan J refused to grant the Applicant leave to appeal, on the basis that the Adjudicator in the Tribunal had neither erred in law nor exceeded his jurisdiction.

5.  Wilson Chan J’s decision is final: see section 28(3)  of the SCTO.

6.  Though 29A(1)  of the SCTO provides that an applicant may apply to the Court of Appeal for leave to appeal within 7 days of the decision of the Court of First Instance on an appeal where leave to appeal has been granted under section 28, that has no applicability where leave to appeal has been refused under section 28 (as happened in this case).

7.  But, I do not think that impacts the intended finality of the refusal of leave under section 28.  Small claims are meant to be dealt with, with some expedition and finality in the Tribunal – except where it can be shown to a Judge of the Court of First Instance that leave to appeal should be granted on either (a) the ground involving a question of law alone or (b) the ground that the claim was outside the jurisdiction of the Tribunal.  Where such a suggestion is rejected by the Court of First Instance, the SCTO provides that that is the end of the matter.

8.  This Court does not provide some form of quasi-appeal court from a decision of a Judge of the Court of First Instance, acting a such and whose decision is deemed final.  On that basis, Wilson Chan J’s decision is not amenable to judicial review.  The current application is misconceived, and there is therefore no need to go into the Applicant’s proposed grounds of review.

9.  The application is dismissed, with no order as to costs.