LI SHEONG TEK v. CHEUNG KIU CHUN

HCSA 30/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

SMALL CLAIMS TRIBUNAL APPEAL NO 30 OF 2017

(ON APPEAL FROM SCTC 11606 OF 2016)

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D E C I S I O N

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1.  On 15 March 2017, the Adjudicator of the Small Claims Tribunal (“Adjudicator”) dismissed the claim made by the Claimant against the Defendant (“Decision”). The Claimant applied for review of the Decision, and on 25 May 2017, the Adjudicator by her order dismissed such application (“Order”).

2.  On 15 June 2017, the Claimant applied for leave to appeal against the Order, on the stated grounds that the Adjudicator was oblivious of the evidence by which the Defendant had allegedly admitted his liability for the claims made by the Claimant, was oblivious of the evidence which showed that the Defendant was fully aware of the terms and conditions of the competition which was the subject matter of the claim, that the Adjudicator’s reasons for her decision were not in line with the evidence, and that the Adjudicator had not considered the fresh evidence produced on the review.

3.  The claim made by the Claimant in the proceedings is on the basis of an agreement made between himself and the Defendant, as evidenced by the “Wechat” messages (“Messages”) sent by the Defendant to the Claimant on 7 January 2016 (“Agreement”), whereby the Claimant alleges that the Defendant had agreed to share with the Claimant profits to be received from the Defendant’s participation in a forex trading competition (“Competition”) organized by Saxo Bank or the relevant company within the Saxo Group (“Saxo”).  The Claimant claims that he is entitled to 80% of the amount of $10,000 received by the Defendant in the Competition, interest and expenses incurred.

4.  The Defendant denies that there was any agreement as alleged, claiming instead that the Messages relate to an agreement between the Claimant and the Defendant in respect of the Defendant’s acquisition and sale of Amway products, and the sharing of profits or commission from such sale with the Claimant.

5.  After a hearing of the evidence, the Adjudicator dismissed the Claimant’s claims.  In the Reasons for her Decision handed down on 13 July 2017 (“Reasons for Decision”), the Adjudicator pointed out (in paragraphs 21 - 27) that she did not accept the explanations given by the Claimant for the Messages evidencing the Agreement, and preferred the evidence of the Defendant. 

6.  In reaching her Decision, which she refused to set aside (by dismissing the application of review), the Adjudicator had referred to and considered the Messages, the explanations given by the Claimant and the Defendant respectively with regard to the Messages, the documents produced by the Defendant in relation to the order for and purchase of Amway products, the “Wechat” messages of 15 January 2016, and the Defendant’s explanation as to why he had failed to set up the necessary account with Saxo and did not collect the prize money of $10,000. 

7.  Under s 28 of the Small Claims Tribunal Ordinance, any party who is aggrieved by a decision of the Tribunal on any ground involving a question of law alone, or 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.

8.  The Claimant’s instant application for leave to appeal is only on the ground that the Order is erroneous in point of law. 

9.  Having considered the Reasons for Decision, I do not accept that there is any basis to grant leave to appeal.  The Claimant is seeking to challenge the findings made by the Adjudicator on the basis of her rejection of the Claimant’s credibility and evidence, and her preference for the evidence given by the Defendant as to the Messages, the making of the Agreement, and what the Agreement related to.  I fail to see how it can be said that the Adjudicator had ignored any evidence which would have any effect on the Decision or on the Order.  Nor can I find any point of law on which the Adjudicator can be said to have erred, to raise any arguable appeal. 

10.  For the above reasons, I am not satisfied that the Claimant has established any reasonable ground of appeal which has any reasonable prospects of success, and refuse to grant leave.