NG KWOK MING RICMAN v. LI YIN YEE

HCSA 16/2024

[2024] HKCFI 1165

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

SMALL CLAIMS TRIBUNAL APPEAL NO 16 OF 2024

(On appeal from Small Claims Tribunal Claim No 38062/2022)

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DECISION

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1.  The Claimant (“C”) applies for leave to appeal against the decision of the learned Deputy Adjudicator dated 19 February 2024 (“Decision”) in SCTC 38062/2022.

2.  On 17 January 2024, the learned Deputy Adjudicator dismissed the C’s claim (“17/1/24 Order”) pursuant to section 25 of the Small Claims Tribunal Ordinance Cap 338 (“Ordinance”), as he considered C’s claim to be frivolous and vexatious. At the review hearing on 19 February 2024, the learned Deputy Adjudicator confirmed his order made to dismiss C’s claim.

3.  As described in the learned Deputy Adjudicator’s written reasons dated 18 April 2024 (“Reasons”), C’s claim arose out of a dispute between members of the owners’ committee of o a residential estate (“OC”). It is C’s case that his removal as a member of the committee was wrongful for a number of reasons, including breaches of the DMC, negligence, misrepresentation, dishonesty and libel. Prior to the commencement of the proceedings in the Small Claims Tribunal, C had engaged a firm of solicitors (“Firm”) to issue correspondence to the OC. He claims as damages the fees paid to the Firm in the sum of HK$11,000.

4.  In making the 17/1/24 Order, the learned Deputy Adjudicator was of the view that C’s claim was outside the jurisdiction of the Small Claims Tribunal, in that, under Schedule 1 of the Ordinance, the Tribunal did not have jurisdiction to hear and determine any action in respect of:

(1)  Any action in respect of defamation (Schedule §1(a)); and

(2)  any action or proceeding for an order for the costs of and incidental to a dispute in relation to which no proceedings have been commenced in the tribunal (Schedule §1(f)) (“Reason 2”)

5.  For Reason 2, the learned Deputy Adjudicator carried out an extensive analysis of the authorities, noting in particular that Fairview Park Property Management Ltd v Lee Yuen Yau, CACV 75 of 1987, 14 October 1987 is a Court of Appeal authority in support the proposition that a party before the Small Claims Tribunal may seek to recover reasonable costs by way of damages (Fairview §§9-14). However, the learned Deputy Adjudicator in his very detailed analysis observed that Fairview was decided a long time ago, and came to the conclusion that, in the light of the legislative amendments after Fairview, C’s claim fell within Schedule §1(f) of the Ordinance.

6.  By the present leave application, C seeks leave to appeal on the basis that the learned Deputy Adjudicator had erred in law in his analysis in respect of Reason 2.

7.  Having carefully considered the threshold test for granting leave to appeal, I consider that the grounds that C has put forward have reached the threshold test of being arguable in the sense that it is not fanciful that the learned Deputy Adjudicator may have erred in law in reaching his conclusion. I therefore grant leave to appeal.

8.  In my view, C’s grounds should be amended slightly. I grant leave on the following ground:

“ Whether C’s claims, as a matter of law, falls within Schedule §1(f) of the Small Claims Tribunal Ordinance Cap 338.”

9.  Since the matter is to proceed to appeal proper it is inappropriate for me now to dwell on the merits but I should remind C, who is acting in person, that the granting of leave to appeal does not necessarily indicate success at the appeal proper since the court has yet to be persuaded by both parties at the appeal on the merits of the points of law put forward against the detailed analysis of the learned Deputy Adjudicator.

10.  I also order that the costs of this leave application be the costs in the cause of the appeal.