CHAN TSZ CHUN v. ZHANG JINGEN

HCSA 43/2025 & HCSA 44/2025

(Heard Together)

[2026] HKCFI 651

HCSA 43/2025

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

SMALL CLAIMS TRIBUNAL APPEAL NO 43 OF 2025

(ON APPEAL FROM SMALL CLAIMS TRIBUNAL

CLAIM NO 38680 OF 2023)

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AND

HCSA 44/2025

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

SMALL CLAIMS TRIBUNAL APPEAL NO 44 OF 2025

(ON APPEAL FROM SMALL CLAIMS TRIBUNAL

CLAIM NO 13796 OF 2024)

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DECISION

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A.      Introduction

1.  These proceedings arose from disputes over a tenancy.

2.  The Claimant was the tenant, and the Defendant was the landlord.

3.  The trial of the proceedings at the Small Claims Tribunal took place before Deputy Adjudicator Austin Yiu.

4.  In SCTC 38680/2023, the Deputy Adjudicator fully allowed the Claimant’s claim against the Defendant, and the Defendant was ordered to pay (i) a sum of HK$32,000; (ii) costs of HK$31,900; and (iii) interest on the said sum of HK$32,000 and costs of HK$31,900.

5.  In SCTC 13796/2024, the Deputy Adjudicator partially allowed the Claimant’s claim against the Defendant, and the Defendant was ordered to pay: (i) a sum of HK$40,184; (ii) costs of HK$10,200; and (iii) interest on the said sum of HK$40,184 and costs of HK$10,200.

6.  The Claimant was discontented with: -

(1)     the Deputy Adjudicator’s findings on quantum in SCTC 13796/2024; and

(2)     the Deputy Adjudicator’s decision on costs in both SCTC 38680/2023 and SCTC 13796/2024.

7.  On 20 November 2025, the Claimant applied for leave to appeal.

B.      The Respective Case of the Parties

B1     Undisputed Facts

8.  The following facts are not in dispute.

9.  By a tenancy agreement signed on 15 May 2019, the Defendant leased a residential property (the “Property”) together with a car parking lot (the “Car Parking Lot”) to the Claimant.

10.  On 17 May 2021, the parties signed a further tenancy agreement (the “2^nd Tenancy Agreement”) for the period from 15 June 2021 to 14 June 2023. Under the 2^nd Tenancy Agreement, the monthly rental was HK$32,000, and the rental deposit paid by the Claimant to the Defendant was HK$64,000.

11.  Due to financial hardship, the Claimant failed to pay rents to the Defendant during the last 2 months of the terms of the tenancy under the 2^nd Tenancy Agreement.

12.  In the circumstances, on 24 May 2023, the Claimant’s access cards (the “Access Cards”) were deactivated. As a result, the Claimant was unable to access the Property and the Car Parking Lot.

13.  Whilst the Claimant found an alternative accommodation, he reached out to the Defendant. On 10 June 2023, the Claimant paid the rental of 1 month to the Defendant, and the Access Cards were reactivated.

14.  On 14 June 2023, the Claimant delivered vacant possession of the Property to the Defendant. Thus, the tenancy under the 2^nd Tenancy Agreement came to an end.

B2     The Claimant’s Case

15.  The Claimant contended that despite his failure to pay the monthly rental, the Defendant had kept the 2^nd Tenancy Agreement alive, and there was an oral agreement (the “Oral Agreement”) between himself and the Defendant that: -

(1)     He should pay rental of 1 month (ie HK$32,000) to the Defendant immediately;

(2)     The rental of the remaining month (ie HK$32,000) should be set off against the rental deposit of HK$64,000; and

(3)     Upon delivery of the vacant possession of the Property, the Defendant should refund the remaining part of the rental deposit (ie HK$32,000).

In the premises, since vacant possession of the Property was delivered to the Defendant on 14 June 2023, he was entitled to the remaining part of the rental deposit in the sum of HK$32,000.

16.  The Claimant contended that there was no basis for the Defendant to deduct the rental deposit as the Property was kept in good and tenantable condition. In this connection, the Claimant had adduced a video that was taken at the time when vacant possession of the Property was delivered as well as a report from an expert who opined that any alleged damage in the interior of the Property was ascribed to ordinary wear and tear.

17.  Further, the Claimant also contended that due to the Defendant’s act of deactivating the Access Cards, he had been prohibited from exercising the rights as a tenant to access the Property and the Car Parking Lot.  As a result, he suffered loss and damage.

B3     The Defendant’s Case

18.  At the trial before the Deputy Adjudicator, the Defendant conceded that the Oral Agreement asserted by the Claimant existed.

19.  However, whilst the Defendant emphasized that 1 month’s rental of HK$32,000 had remained outstanding, he also contended that the Claimant had caused significant damage to the Property that went beyond ordinary wear and tear. In this connection, it was the Defendant’s case that the reinstatement or repair costs would be HK$72,000. Thus, after giving credit for the remaining part of the deposit (ie HK$32,000), the Claimant still owed him a net sum of HK$40,000 (ie HK$72,000 less HK$32,000).

20.  As regards the deactivation of the Access Cards, at trial, the Defendant contended that the Claimant had abandoned the Property. As such, he was entitled to deactivate the Access Cards.

C.      The Deputy Adjudicator’s findings 

21.  The parties’ disputes in relation to the refund of the remaining part of the rental deposit in the amount of HK$32,000 and the alleged damage done to the Property were the subject matters of SCTC 38680/2023.

22.  The parties’ disputes in relation to the alleged loss and damage arising from the Defendant’s act of deactivating the Access Cards were the subject matters of SCTC 13796/2024.

23.  In SCTC 38680/2023, the Deputy Adjudicator made the following findings:-

(1)     The Oral Agreement asserted by the Claimant existed.

(2)     The damage in the interior of the Property was ascribed to ordinary wear and tear. The Claimant was not liable for the damage.

(3)     Accordingly, the Defendant was liable to repay the outstanding part of the rental deposit (ie HK$32,000) to the Claimant.

24.  As regards SCTC 13796/2024, the Deputy Adjudicator made the following findings: -

(1)     Despite the Claimant’s failure to pay rent, the Defendant had affirmed the 2^nd Tenancy Agreement. The tenancy in favour of the Claimant thereunder had not been forfeited.

(2)     As a lawful tenant of the Property under the 2^nd Tenancy Agreement, the Claimant was entitled to the full benefit of the right to have unimpeded access to the Property and the Car Parking Lot. By deactivating the Access Cards, the Defendant had violated the Claimant’s right.

(3)     The Claimant was entitled to general damages of HK$30,019 in respect of the inability to access the Property, the Car Parking Lot, the broadband services installed in the Property, and the chattels in the Property.

(4)     The Claimant was entitled to special damages of HK$9,965 in respect of the expenses incurred for obtaining alternative accommodation.

(5)     The Claimant was entitled to special damages of HK$200 in respect of the expenses incurred in arranging additional broadband services.

(6)     The Claimant had failed to prove that the food and beverage in the Property were spoiled.

(7)     The Claimant had failed to prove that he incurred expenses on travelling as a result of the inability to access his vehicle at the Car Parking Lot.

(8)     The Claimant had failed to prove that he incurred expenses in taking care of his dog, which could not live together with him in the alternative accommodation.

(9)     The Claimant had failed to prove that as a result of the fact that the Access Cards were deactivated during the period from 24 May 2023 to 10 June 2023, he incurred additional expenses in the amount of HK$5,500 for moving the chattels in the Property.

(10)     Accordingly, the Claimant was only entitled to damages in the total amount of HK$40,184.00 (ie HK$30,019 plus HK$9,965 plus HK$200).

D.      The Claimant’s Complaints   

25.     The Claimant raised 2 grounds of appeal: -

(1)     First, the Claimant contended that in SCTC 13796/2024, the Deputy Adjudicator applied incorrect legal principles in disallowing him to recover the additional moving expenses of HK$5,500.

(2)     Second, the Claimant contended that in both SCTC 38680/2023 and SCTC 13796/2024, the Deputy Adjudicator determined the question of costs without giving him an opportunity to be heard.

E.      Legal Principles

26.  Under section 28 of the Small Claims Tribunal Ordinance (Cap 338), any party who is aggrieved by a decision of the Tribunal may apply to the Court of First Instance on a ground involving a question of law alone, or on the ground that the claim was outside the jurisdiction of the Tribunal.

27.  It has been suggested that:

(1)     If an aggrieved party wishes to challenge a finding of fact by the Small Claims Tribunal, he must convince the Court of First Instance that the Small Claims Tribunal erred in law in making such a finding of fact. Otherwise, it cannot be said that an error of law is involved: see鄧偉良 & Anor v 楊若薇 [2024] HKCFI 762 at para 10 (per DHCJ Phoebe Man).

(2)     Finding of facts by the Small Claims Tribunal is generally immune from challenge as it involves no error of law, unless the finding is perverse or irrational or where there is no evidence to support the decision or where the decision is made by reference to irrelevant factors or without regard to relevant factors: see Ko Pui Yee & Ors v Jones Lane Lasalle Management Services Ltd [2023] 2 HKLRD 1382 at para 42 (per DHCJ Winnie Tsui, as she then was).

28.  The party who seeks leave to appeal must show that his or her intended appeal is arguable and has a reasonable prospect of success: Tsui Koon Wah v Ip Mei Ho [2021] HKCFI 3437 at para 65 (per Marlene Ng J); and 楊小彥及鄭家明[2020] HKCFI 2977 at para 28 (per Lisa Wong J).

F.      Deliberation

F1     Ground 1: Alleged Additional Moving Expenses of HK$5,500

29.  At trial, the Claimant’s case on the alleged additional moving expenses of HK$5,500 was as follows: -

(1)     Whilst the Claimant paid HK$11,300 to engage Wing Fat Mover Ltd (“Wing Fat”) for moving all the chattels in the Property to his new address on 11 June 2023, HK$5,500 of the fee charged by Wing Fat was a direct consequence of the Defendant’s wrongdoing of deactivating the Access Cards.

(2)     The Claimant suggested that his chattels consisted of large items. As such, had the Defendant not deactivated the Access Cards, he would have sufficient time to prepare for moving out, and thus could have avoided paying HK$5,500 to Wing Fat for moving the large items.

30.  For the following reasons, the Deputy Adjudicator rejected the Claimant’s assertions, and he found that the fee of HK$5,500 was not ascribed to the Defendant’s wrongdoing:-

(1)     The Deputy Adjudicator pointed out that the Access Card was only deactivated for 18 days during the period from 24 May 2023 to 10 June 2023. In his view, a reasonable tenant who was in the Claimant’s position would have planned and arranged the moving out long before the final month of the tenancy.

(2)     More importantly, the Deputy Adjudicator also pointed out that the tenancy only expired on 14 June 2023, and there was no good reason why the Claimant insisted on moving out on 11 June 2023. This was a matter of personal choice.

(3)     In any event, the Deputy Adjudicator took the view that there was sufficient time for the Claimant to plan and/or arrange the moving out during the period from 10 June 2023 to 14 June 2023.

31.  In my view, the question of whether the alleged additional moving expenses of HK$5,500 charged by Wing Fat were ascribed to the Defendant’s wrongdoing of deactivating the Access Cards was simply a factual dispute on causation.

32.  Having considered the judgment of the Deputy Adjudicator carefully, I cannot see how it can be said that he erred in principle in dealing with this factual question of causation.

33.  In any event, it appears to me that the Deputy Adjudicator’s factual findings and conclusion were plainly correct and in accordance with good common sense. He had considered and analyzed, inter alios, the inherent probabilities, the objective circumstances, and the Claimant’s assertions.  I am unable to see any room to find fault with the Deputy Adjudicator. I am not convinced that the Deputy Adjudicator’s finding was irrational, unsupported by evidence, and/or based on irrelevant consideration: see Ko Pui Yee (supra) at para 42.

34.  In the premises, ground 1 is unarguable.

F2     Ground 2: Costs

35.  As evidenced by the judgment of the Deputy Adjudicator, the Claimant had lodged 2 tables in respect of the costs claimed in both SCTC 38680/2023 and SCTC 13796/2024. It is obvious that the Claimant had the opportunity to articulate his position, and that the Deputy Adjudicator had considered the same.

36.  At the present hearing, the Claimant complained that before the Deputy Adjudicator delivered his judgment, he was not given an opportunity to make “updated” submissions on the question of costs. However, based on what the Claimant told the court, it appears what happened was that before the Deputy Adjudicator delivered his judgment and explained his reasons in regard to his decision on costs, the Claimant did not inform the Deputy Adjudicator that he wished to make further submissions on the question of costs. In my view, it cannot be said that the Deputy Adjudicator did not give the Claimant opportunities to be heard.

37.  In any event, in his judgment, the Deputy Adjudicator, in detail, explained the bases of his decision on costs: -

(1)     Applying the principle of costs follow the event, the Deputy Adjudicator acknowledged that the Claimant was the winner of the 2 sets of proceedings.

(2)     However, whilst the Claimant was fully successful in SCTC 38680/2023, the Claimant was only partially successful in SCTC 13796/2024. As pointed out, the Deputy Adjudicator rejected various heads of claims pursued by the Claimant, and, as such, the Deputy Adjudicator only allowed the Claimant to recover 50% of the reasonable costs incurred in SCTC 13796/2024. Meanwhile, the Deputy Adjudicator allowed the Claimant to recover 100% of the reasonable costs incurred in SCTC 38680/2023.

(3)     Insofar as the quantum of the costs is concerned, the Deputy Adjudicator, in detail, explained, inter alios, the reasons why he did not allow the Claimant to claim the time incurred for preparing the trial as well as the reasons why he took the view that the fee charged by the Claimant’s expert was disproportionate.  

38.  The Deputy Adjudicator had wide discretion on matters relating to costs. In my view, he applied the correct legal principles and duly considered the full circumstances of the case, including the relative success achieved by the parties and questions relating to proportionality.  His approach was plainly correct. Whilst the Claimant alleged that the Deputy Adjudicator’s factual determination was erroneous, I am unable to discern any error of law on the part of the Deputy Adjudicator. I am not of the view that the Deputy Adjudicator’s exercise of discretion was irrational, unsupported by evidence, and/or based on irrelevant consideration, such that it was justifiable for the Court of First Instance to interfere: see Ko Pui Yee (supra) at para 42.

39.  In the premises, ground 2 is also unarguable.

G.      Disposition

40.  For all the above reasons, I am not persuaded that the Claimant’s intended appeal has a reasonable prospect of success.

41.  I accordingly dismiss the Claimant’s application for leave to appeal.

42.  I make no order as to costs.