IAN MICHAEL BROUGHTON v. JAMES TERENCE FFITZROY

HCSA 56/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

SMALL CLAIMS TRIBUNAL APPEAL NO. HCSA 56 OF 2015

(On appeal from Small Claims Tribunal Claim No. SCTC 261 of 2015)

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D E C I S I O N

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INTRODUCTION

1. On 1 September 2015, Ms Michelle Soong, Adjudicator of the Small Claims Tribunal, made a decision (“the Decision”) refusing the defendant’s application for the transcript of a review hearing before her which took place on 20 August 2015.

2. The defendant now applies for leave to appeal against the Decision pursuant to section 28 of the Small Claims Tribunal Ordinance, Cap 338 (“the Ordinance”).

Background facts

3. The basic facts of this case have been set out in the Reasons for Decision of the Adjudicator dated 2 November 2015.  The following brief summary should suffice for the present purpose.

4. The claimant’s claim against the defendant is for the outstanding instalment in the sum of HK$50,000 in respect of the shareholdings in a company known as International Tutors Limited which had already been transferred by the claimant to the defendant.

5. The claimant commenced the present claim in the Small Claims Tribunal on 2 January 2015, and the defendant filed his defence on 13 February 2015.  In that defence, in addition to dealing with the claim on the merits, the defendant also made a number of procedural applications, including one for the striking out of the claim on the ground that it had no legal basis.

6. On 20 May 2015, the defendant’s strike out application was refused by the Adjudicator.

7. On 27 May 2015, the defendant made an application pursuant to section 27A(2)(b) of the Ordinance for a review of the Adjudicator’s decision refusing to strike out the claim.

8. On 20 August 2015, the defendant’s review application was refused by the Adjudicator.

9. On 24 August 2015, the defendant applied for the transcript of the review hearing. The grounds of his application were:-

(1)  his oral submissions at the review hearing lasted for about 2 hours;

(2)  the bulk of his oral submissions related to his defence to the claim;

(3)  it was essential that he had the transcript to defend both the claim and some other legal proceedings (DCCJ 2715/2015) and to formulate his counterclaim.

10. On 1 September 2015, a letter was issued by the Small Claims Tribunal informing the defendant that his application for the transcript of the review hearing was refused.

11. The Adjudicator’s reason for refusing the defendant’s application for the transcript of the review hearing appeared in a letter from the Small Claims Tribunal to the defendant dated 22 September 2015, as follows:-

“ The Adjudicator did not consider it justifiable that the Court’s time and efforts should be spent in preparing the transcript of the hearing on 20 August 2015 (re. review in relation to the application to strike out) in order to provide the Defendant with a record of what he had orally submitted or said during the hearing for the purpose of facilitating the Defendant to defend in SCTC 000261/2015 and DCCJ 2715/2015 or to formulate any counterclaim. The Defendant should defend in the relevant proceedings and/or make counter claim based on his own knowledge, information and evidence. The Defendant’s application for the transcript of the review was, therefore, refused.”

Grounds of proposed appeal

12. The following main grounds appear in the defendant’s present application for leave to appeal dated 29 September 2015:-

(1)  he had requested for the transcript at the review hearing on 20 August 2015 and was told to make the application in writing; at no time did the Adjudicator indicate that his application would be refused;

(2)  he was suffering from long term ill health and required the transcript to help him prepare a full defence without which he could not defend himself properly;

(3)  he found the issues relating to the claim traumatic to recall and the refusal to provide the transcript gave rise to additional trauma in addition to being unhelpful and deeply prejudicial;

(4)  the refusal was prejudicial because, if the defendant should forget any part of the defence as presented in his oral argument or should be unable, in future, to articulate his defence as effectively (due to ill health or any other reason), he would not have been allowed the opportunity to make his best defence;

(5)  he was unaware of any reason to justify the refusal to provide the transcript other than to impose further stress and difficulty upon him;

(6)  he made the oral submissions at the review hearing on the understanding and belief that he would receive the transcript; otherwise he would have the right to apply for review or seek leave to appeal against the refusal to postpone the original review application.

13. On 30 October 2015, the defendant submitted some medical notes or reports to this court as proof that he was suffering from “acute stress reaction with anxiety and psychosomatic symptoms triggered by recent legal litigation”, and his conditions were consistent with “migraine type headache and tension type headache” with the recommendation that he should “consider medications to prevent the occurrence of headache and to avoid precipitating factors including stress.”

Discussion

14. Whether to accede to a request for the provision of the transcript of a hearing in a court or tribunal generally involves an exercise of discretion by the judge or officer presiding at the hearing.  Considerations relevant to the exercise of the discretion would include, amongst other things:-

(1)  the nature of the hearing (eg whether it relates to oral evidence given by a witness or legal submissions made by a lawyer);

(2)  the length of the hearing, or the relevant part of the hearing, in respect of which the transcript is sought;

(3)  whether the hearing took place recently or a long time ago; and

(4)  the reason(s) advanced for seeking the transcript of the hearing (eg the precise evidence given by a witness may be relevant to a ground of appeal, or the applicant for the transcript was absent in an ex parte application made by the opposite party).

15. It is self evident that the preparation of the transcript of a hearing could take time and involve expenses. Depending on the circumstances of the case, the application by a party for the transcript of a hearing may be satisfied by the provision of a digital copy of the audio recording of the hearing which, I believe, could generally be prepared more quickly and cheaply.  Indeed, when this possibility was raised by the court in the course of the present hearing, the defendant indicated that he would be content with being given a compact disc containing the audio recording of the hearing on 20 August 2015 instead of the transcript of the hearing.  I shall come back to this matter later in this decision.

16. I shall assume, without deciding, that a decision to refuse to provide a transcript involves an exercise of judicial discretion which can properly form the subject matter of an appeal.  The question which I have to decide is whether the Adjudicator’s decision to refuse to provide the defendant with the transcript of the hearing on 20 August 2015 raises any point of law in respect of which it would be appropriate to grant leave to appeal under section 28 of the Ordinance.

17. It is significant that the defendant is here seeking the transcript of his own submissions made to the Adjudicator.  He ought to be fully aware of nature and substance of the submissions that he had made.  It has not been shown that the precise way in which he put his submissions at the review hearing would be material to his defence to the claimant’s claim.  Also, the review hearing took place recently.  It is not suggested that the defendant has in fact forgotten what he said at the review hearing.  Neither am I satisfied, on the materials before me, that the defendant will be unable to properly present his defence in the absence of the transcript of the review hearing.

18. As regards the defendant’s understanding or belief that he would be given the transcript, the defendant informed the court that what happened was that, at the review hearing on 20 August 2014, he said to the Adjudicator, before he made his oral submissions setting out his defence (which the defendant said took some 2 hours), that he would need the transcript, and the Adjudicator, in response, told him that he could make an application for the transcript but did not say anything to indicate that the application would be, or might, be refused.  On the other hand, the Adjudicator, in the Reasons for Decision, stated the following:-

(1)  she had no recollection of the defendant having applied or having indicated any intention to apply for the transcript of the review hearing whether before, at the time or immediately after she refused to adjourn the review hearing;

(2)  if the defendant had asked for the transcript at the hearing, she would have asked him to formally apply to the Small Claims Tribunal in writing with the reason set out for her consideration; and

(3)  the review hearing proceeded purely as a result of her decision refusing to adjourn the review hearing but not as a result of any consent or concession on the defendant’s part to proceed based on any understanding that he would be provided with a transcript of the review hearing for reference subsequently.

19. For the present purpose, I am prepared to assume, in the defendant’s favour, that he did indicate at the review hearing of his wish to obtain the transcript of the hearing.  The Adjudicator’s reply that the defendant could make an application for the transcript was not incorrect.  While the Adjudicator could have further explained to the defendant that an application for a transcript was not granted as a matter of course and would need to be justified, I do not consider that the absence of such explanation could give rise to an arguable point of law for the purpose of granting leave to appeal.

20. In all, I consider that the Adjudicator’s decision to refuse the defendant’s application for the transcript of the review hearing is one which she could properly make within her broad discretion.  No arguable point of law has been raised against the Decision.  Accordingly, the defendant’s application for leave to appeal is dismissed, with no order as to costs.

21. These having been said, I consider that the defendant ought to be given a digital copy, in the form of a compact disc, of the audio recording of the hearing on 20 August 2015, and I shall leave it to the defendant to make the relevant application to the Small Claims Tribunal for the same.