律政司司長 v. HO WING TAT VICTOR

HCSA 58/2017

[2018] HKCFI 322

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

SMALL CLAIMS TRIBUNAL APPEAL NO 58 OF 2017

(ON APPEAL FROM SMALL CLAIMS TRIBUNAL

CLAIM NO 33833 OF 2016)

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D E C I S I O N

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1.  The SCT made an award in favour of the claimant who (SJ acting on behalf of the Director of Social Welfare) in the absence of the defendant, Mr Ho, and dismissed Mr Ho’s counterclaim. Mr Ho has not applied to set aside or review the award. He now seeks leave to appeal against the award.

2.  He has to show that the SCT has erred on a point of law or exceeded its jurisdiction.  The intended grounds of appeal are in substance:

(i) SJ had to provide proof that Mr Ho had over claimed $36,340 and the Tribunal had to rule that evidence provided was sufficient to prove their claim.  This was never been done.  The Tribunal did nothing.

(ii) The Tribunal did not have the statutory power to reverse the verdict reached by the Tuen Mun Court which held that Mr Ho was not guilty of certain charge.

3.  I deal with the second ground first.  Mr Ho was prosecuted in relation to non-disclosure of receipt of two sums of money (tax refund and MPF) which exceeded the limit of disposable assets, during the period when he was receiving Comprehensive Social Security Assistance.  He was found not guilty in the Tuen Mun Court.  The magistrate was, among others, not satisfied as to his dishonest intent.

4.  It was not correct for Mr Ho to suggest that the Small Claim Tribunal had purported to reverse the verdict reached by the Tuen Mun Court.  In paragraph 10 of her reasons for decision, the learned adjudicator has dealt with the difference in standard of proof between a civil and criminal court.  The fact that the defendant was found not guilty by the magistrate did not mean that SJ had no case in the civil court.  There was no error of law committed by the Tribunal.  The second intended ground of appeal is not sustainable.

5.  As to the first intended ground of appeal.  The defendant admitted that the two sums of money for tax refund and MPF had been received.  He claims that the Social Welfare Department (and hence the Tribunal) erred in not considering that he had debts to meet.  He claimed to have applied the two sums of money towards settlement of his debts and living expenses.  At the hearing today, Mr Ho kept repeating that the Tribunal ought to have listened to the compact disc of the trial proceedings in Tuen Mun.  He had never produced the transcript of those proceedings.  In relation to the verdict itself, the Tribunal was provided with one page of that verdict.

6.  Be that as it may, in my view, it was not correct for Mr Ho to say that the Social Welfare Department did not consider he had debts to meet.  In fact, there was evidence before the Tribunal that the Social Welfare Department did consider his debts, did investigate and did give an opportunity for the defendant to explain the whereabouts of the two sums. It was because the defendant’s explanation was not satisfactory that he was sued in the Tribunal.

7.  In her decision, the learned adjudicator of the Tribunal had dealt with the evidence in relation to explanation of the debts and how the two sums received exceeded the limits of disposable assets.  Even though Mr Ho explained that the two sums were spent on living expenses and repayment of debts, there was not sufficient proof before the Social Welfare Department and the Tribunal to correlate those expenses with the two sums.

8.  In one of the documents given in one of the statements given to the Special Investigation Unit dated 5 November 2010, Mr Ho, for example, admitted withdrawing $45,000 and used part of it for repayment of friends, but because of the long lapse of time, he was not able to contact those friends.

9.  The defendant was absent at the hearing before the adjudicator.  Therefore, apart from those documents submitted previously, there was no oral evidence on his part to explain his conduct or to explain away the Social Welfare Department’s evidence.

10.  Having considered the decision of the adjudicator, I can see no error of law.  The conclusion she reached was open to her on the evidence then available. 

11.  The application for leave to appeal is therefore dismissed.