CHAN TUNG CHI v. SURYANI

HCSA 5/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

SMALL CLAIMS TRIBUNAL APPEAL NO. 5 OF 2012

(ON APPEAL FROM SMALL CLAIMS TRIBUNAL CLAIM

NO. 10420 OF 2011)

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BETWEEN

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J U D G M E N T

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1.  This is an application by the defendant for leave to appeal against the following decisions made by the Adjudicator, Mr Jason Wan, on 2 February 2012:

(i)  refusal to allow the defendant to have a representative to appear on her behalf in the review hearing; and

(ii)  refusal to re-fix the review hearing on 3 February 2012.

2.  This is a claim in the sum of $11,000 as the outstanding balance of a loan advanced by the claimant to the defendant who was her domestic helper.  The trial took place before the Adjudicator in the Small Claims Tribunal on 2 December 2011.  On 13 December 2011, the Adjudicator granted judgment in favour of the claimant.

3.  On 15 December 2011, the defendant applied for a review of the decision.  The review hearing was originally scheduled on 10 January 2012.  However, the claimant, who is a policeman by profession, applied to the Tribunal on 28 December 2011 to re-fix the review hearing because of his work arrangement.  The Adjudicator allowed the application and re-fixed the review hearing to 3 February 2012.

4.  On 1 February 2012, the Registry of the Small Claims Tribunal received a fax from an organisation known as “Christian Action”. According to such fax, Christian action had been authorised to make 2 applications on behalf of the defendant:

(i)  the application to adjourn the review hearing for at least 10 days (“the Adjournment Application”); and

(ii)  the application for leave to allow the defendant’s representative, Mr Joshua Baker, to appear on her behalf in the review hearing (“the Representation Application”).  According to the content of the fax, Mr Baker is a holder of a law degree in the United Kingdom but he is not a practising lawyer anywhere in the world.

5.  On 2 February 2012, the Registry of the Small Claims Tribunal notified the defendant that her applications were refused by the Adjudicator because they were made too late.

6.  On 3 February 2012, the Adjudicator conducted the review hearing as scheduled.  However, the defendant notified the Adjudicator that her lawyer had already lodged an appeal against the aforesaid decisions of the Adjudicator, and so the Adjudicator adjourned the review hearing pending the result of this appeal.

7.  As the Adjudicator has actually adjourned the review hearing pending this appeal, the defendant has, in substance, obtained the adjournment she wanted.  In such circumstances, it is unnecessary for me to consider the appeal relating to the Adjournment Application.

8.  In the written decision wrongly dated 23 March 2012 (presumably the correct date should be 23 February 2012), the Adjudicator gave the full reasons as to why he disallowed the defendant to have a representative.  Firstly, the defendant had not explained why she needed to have a representative to appear for her in the review hearing.  The defendant had all along appeared by herself in the conduct of the case.  She had not made any previous request to have a representative to appear for her and she did not appear to have any difficulty in conducting the case by herself at the trial. Secondly, to allow the defendant to have someone with legal training to appear for her may give her an unfair advantage over the claimant.

9.  Ms Wong, counsel for the defendant, submits that it is unfair for the Adjudicator to give the full reasons nearly 3 weeks after the decision, and she queries whether these reasons were in the mind of the Adjudicator when he decided the Representation Application on 2 February 2012.

10.  Under section 18 of the Small Claims Tribunal Ordinance (Cap  338), an adjudicator of the Tribunal can give his or her reasons for the decision either orally or in writing.  Given the shortness of time and the way that the defendant made the application, I do not accept that the reply given by the Adjudicator on 2 February 2012 constituted the full reasons of the decision, and so in my judgment, it was quite proper for the learned Adjudicator to give the full reasons at a subsequent time.

11.  The right of audience in the Small Claims Tribunal is expressly stipulated in section 19 of the Small Claims Tribunal Ordinance.  Unless the representative is someone related to the litigant as provided for in sections 19(1)(a), (b), (c) and (e), other person has no right of audience in the Tribunal unless leave of the Tribunal is obtained under section 19(1)(d).  The discretion under section 19(1)(d) is a wide one, though such discretion has to be exercised judiciously.

12.  In my judgment, there is simply no justification for the appellate court to interfere with the exercise of discretion on the part of the Adjudicator.  Although the defendant filed an affirmation in these appeal proceedings, deposing that she wanted Mr Baker to be her representative because Mr Baker can speak more clearly in English and she does not need to suffer the stress and anxiety in the proceedings, no such explanation had been given to the Adjudicator when the Representation Application was made on 1 February 2012.

13.  In the short reason given on 2 February 2012, the Adjudicator was of the view that the Representation Application was made too late.  I agree.  According to the affirmation of the defendant filed on 3 February 2012, she had benefitted from the assistance of Christian Action since March 2011.  If she wanted a representative to help her, why did the defendant not make the Representation Application before the commencement of the trial on 2 December 2011?  If the Adjudicator allows the Representation Application, it would encourage litigant to fight the case by himself or herself, and if he or she loses the case, the relevant litigant can then seek the assistance of someone who has the benefit of legal training to reargue the case for him or her and to present new evidence before the Tribunal.  Although Civil Justice Reform is not applicable to the proceedings in the Small Claims Tribunal, such kind of practice should not be encouraged.  This is not efficient use of judicial resources, and it would also confer an unfair advantage on the person who seeks to make such application at such a late stage.  Hence, the timing and lateness of the application are certainly valid considerations in refusing the Representation Application.

14.  Ms Wong has referred me to a number of authorities dealing with the right of legal representation.  In my judgment, these decisions are quite irrelevant to our present case.  By reason of the small amounts involved in the claims in the Small Claims Tribunal, legal representation is not allowed for the proceedings in the Tribunal.  Ms Wong does not seek to argue that the right of ordinance provision in section 19 of the Small Claims Tribunal Ordinance contravenes Article 35 of the Basic Law.  Indeed, disallowing legal representation is necessary in order to ensure that the costs of the litigations in the Tribunal remain low, and section 19 of the Small Claims Tribunal Ordinance was drafted in such away to ensure that there would be level playing field for all the parties in the proceedings in the Tribunal.

15.  Although Mr Baker is not a practising lawyer, his legal training would possibly offer the defendant an unfair advantage over the claimant.  If the defendant had made the application before the commencement of the trial, the consideration might be different.  However, the defendant made the application at a very late stage of proceedings.  Coupled with the fact that the proposed representative does have the benefit of legal training, the Adjudicator was certainly entitled to exercise the discretion to refuse the defendant’s Representation Application.  There is simply no room for the appellate court to interfere with such exercise of discretion and so the defendant’s intended appeal has no reasonable prospect of success.

16.  I therefore refuse the defendant’s application for leave to appeal against the decisions of the Adjudicator made on 2 February 2012.