TSUI KOON WAH v. IP MEI HO t/a MICHELLE IP & CO, SOLICITORS

HCSA 10/2021

[2021] HKCFI 3437

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

SMALL CLAIMS TRIBUNAL APPEAL NO 10 OF 2021

(ON APPEAL FROM SMALL CLAIMS TRIBUNAL CLAIM

NO SCTC 14172 OF 2020)

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JUDGMENT

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I. INTRODUCTION

1.  Tsui Koon Wah (“C”) was a former employee of Ip Mei Ho (“Ip”) trading as a solicitors’ firm known as Michelle Ip & Co (“MIC”) (collectively, “D”).

2.  On 1 June 2020, C sent a pre-action demand letter to D (“Demand Letter”, C9) claiming inter alia that:

(a)	on 10 October 2019, C had a telephone conversation with D’s staff Peggy Lai (“Lai”) who told C (i) D had placed C’s personal properties in a cabinet in the conference room at D’s place of business at Unit 903, 9/F, Sam Cheong Building, 216-220 Des Veoux Road Central, Hong Kong (“Office”), and (ii) C was to telephone Lai before collecting his personal properties so she could take them out of the cabinet when the conference room was not in use, and C replied to say he would later go to the Office to collect his personal properties;
(b)	on 27 May 2020, C telephoned to inform Lai he would collect the suit jacket he bought from Marks & Spencer on 9 October 2018 (“Jacket”) from the Office later that day, but Lai told C that D might have thrown it away and that she was unable find it at the Office;
(c)	later on the same day, C returned Lai’s telephone call, and Lai told him he could attend the Office to find the Jacket himself, but C said he would instead issue a demand letter;
(d)	C claimed D disposed of his personal properties being the Jacket and a blue necktie (“Necktie”) without notice to him and without his authorisation;
(e)	C held D liable for the loss of his Jacket ($1,200) plus alteration fee ($125) and his Necktie ($100) totalling $1,425, and he demanded D to deposit the aforesaid damages into his specified bank account within the following 5 days.

3.  On 29 June 2020, C commenced SCTC14172/2020 (“SCT Case”) in the Small Claims Tribunal (“SCT”) against D for damages in the sum of $1,425 with costs as a result of D’s disposal of his personal properties at the Office being (a) the Jacket ($1,200) with loss of alteration fee ($125) and (b) the Necktie ($100) without notice to him and without his authorisation, and he only came to know of such disposal in May 2020.

4.  In her Defence dated 4 August 2020 (D1-8), D admitted (1) C was her employee from 2 July to 6 September 2019 pursuant to a written employment contract dated 2 July 2019, (2) she terminated C’s employment by a termination letter dated 30 August 2019, and (3) she received the Demand Letter. But D did not admit C’s alleged loss/damage and/or causation thereof, and denied C’s loss (if any, which D did not admit) was due to D’s alleged fault. In short, D denied liability, and further averred as follows:

(a)	C’s written employment contract had no contractual provision regarding liability for loss/damage to C’s personal properties, and D as C’s ex-employer had no obligation to bear the cost of C’s personal properties that were said to have been lost;
(b)	C failed to show that D owed him any duty of care, that D breached such duty of care (if any), and that he suffered loss as a result;
(c)	if C suffered the alleged loss/damage (which D did not admit), they were due to C’s failure to mitigate loss in (i) failing to attend the Office since 10 August 2019 to collect his personal properties (if any), (ii) choosing not to collect his personal properties (if any) from the Office before/after the termination of his employment on 6 September 2019, and (iii) not making appropriate arrangements with D for safe-keeping his personal properties (if any) before/after 6 September 2019.

5.  On 25 August 2020, the parties attended a call-over hearing before the Adjudicator Ms Chu (“Ms Chu”), who granted directions for filing/serving witness statements, and adjourned the SCT Case for another call-over hearing on 13 October 2020. C filed his witness statement dated 15 September 2020 (C1-13), and D filed a reply thereto dated 8 October 2020 (D9-11).

6.  The call-over hearing on 13 October 2020 was cancelled due to the hoisting of No 8 typhoon signal, and was adjourned to the following day. On 14 October 2020, C did not attend such adjourned call-over hearing, but he faxed his letter dated 13 October 2020 to the SCT asking to re-fix the call-over hearing. Ms Chu adjourned the call-over hearing to 27 November 2020, and the SCT notified C of the same by letter dated 14 October 2020.

7.  At the call-over hearing on 27 November 2020, Ms Chu granted leave for C to amend D’s address in Form 1 to Office A, 10/F, 88 Connaught Building, Nos 28-34 Wing Lok Street, Sheung Wan, Hong Kong (“New Office”). C filed some screen captures of social media communications with Lai and some recordings/transcripts of conversation(s) with Lai (C14-20), so Ms Chu granted leave for D to file witness statement in response thereto and for C to file witness statement to give grounds for his intended application for leave to issue summons to witness to Lai. The parties were also directed to file respective statement of costs with income proof documents. Further, D confirmed Ip would give evidence at trial and she was ready for trial except for her aforesaid witness statement in response (if any) (D12), and C confirmed he would give evidence at trial and he was ready for trial except for his aforesaid witness statement to give the grounds for his intended application for leave to issue summons to witness to Lai (C21). The pre-trial review (“PTR”) and trial of the SCT Case were fixed to be heard on 20 January and 22 February 2021 respectively.

8.  On 4 January 2021, C filed a witness statement in support of his application for leave to issue summons to witness to Lai (C22-23), his submissions on costs for the call-over hearing on 14 October 2020 (C29-32), and his statement of costs for use at the trial (C33), which was later replaced by a revised statement of costs dated 8 February 2021 (C39 and see paragraph 13 below). C also filed further documents, including (a) extract from the webpage of The Law Society of Hong Kong giving information about MIC (C34), (b) social media communications concerning Lai (C35-36), and (c) emails by Lai (C37-38).

9.  At the PTR on 20 January 2021, the Deputy Adjudicator Ms Ho (“Ms Ho”) discussed the STC Case (eg pleadings and issues) with the parties. Ms Ho noted part of the 1^st recording (C20) was not audible. Ip confirmed D would not file any witness statement by Lai, and C applied for leave to issue summons to witness for Lai to attend the trial and to give evidence. Ms Ho granted the following directions:

(a)	leave for C to issue summons to witness on/before 27 January 2021 for Lai to attend the trial to give evidence;
(b)	leave for the parties to file/serve list of authorities on/before 8 February 2021;
(c)	the SCT Case be adjourned for trial on 22 February 2021;
(d)	the parties shall arrange for all witnesses to attend the trial;
(e)	costs be reserved.

10.  On 21 January 2021, a Praecipe for Summons to Witness and a Summons to Witness addressed to “Peggy Lai” at the New Office was filed/issued to summons Lai to attend the trial on 22 February 2021 to give evidence as to C’s claim in the SCT Case (“Lai SW”), and C paid $55 to the SCT as witness fee.

11.  On 3 February 2021, the relevant bailiff’s assistant (“BA”) filed affirmation of non-service confirming that:

(a)	at 11:53am on 3 February 2021, the BA called at the New Office for the purpose of serving the Lai SW on “Peggy Lai”;
(b)	on arrival, the BA was informed by a female staff of MIC “there was no such named witness Peggy Lai thereat”.

12.  By a letter dated 5 February 2021 to the Bailiff’s Office (“BO”), C claimed he was informed that during the attempted service of the Lai SW by the BA on 3 February 2021 no such person was found at the New Office, which result C considered to be prima facie evidence of D having perverted the course of justice because Ip had told Ms Ho at the call-over hearing on 20 January 2021 that Lai still worked at the New Office. The letter went on (a) to say that C had asked the BO for particulars of such attempted service, and (b) to remind that D as the occupant of the New Office was the only authority who could have said “no such person”. C urged the BO to arrange another attempt to serve the Lai SW, and indicated he was willing to accompany the BA to identify Lai.

13.  On 8 February 2021, C wrote to the SCT to say the law of bailment was relevant to his claim and to enclose his legal authorities (C40-112), and to apply to amend Form 1 by adding the following alternative relief (with draft revised claim form): “Or alternatively, [D] is liable for the loss or missing of [C’s] personal properties held in [D’s] possession (law of bailment)”. On the same day, C also lodged revised statement of costs dated 8 February 2021 (C39) that claimed a total sum of $2,110.50.

14.  On 9 February 2021, there was a 2^nd attempt to serve the Lai SW at the New Office, which was unsuccessful (see paragraphs 15-17 below). On the same day, C wrote to the BO enclosing a photograph of Lai and saying he had already identified Lai to be present at the New Office, so he asked the BO to “continue to try to serve the [Lai SW] on [Lai] until the Court gives directions on [BO’s] report of today’s incident [ie the 2^nd attempt to serve the Lai SW] or on substituted service of the [Lai SW]. [C] enclose a photo of [Lai] for [BO’s] identification”.

15.  On 10 February 2021, the relevant BA filed affirmation of non-service as to the 2^nd attempt to serve the Lai SW on Lai:

(a)	at 11:05am on 9 February 2021, the BA, accompanied by C, called at the New Office for the purpose of serving the Lai SW “Peggy Lai”;
(b)	on arrival, the BA was informed by Mr Ho, a staff member thereat, there was no named witness “Peggy Lai”;
(c)	after the BA and C left the New Office, C showed the BA a print-out copy of a photograph, and claimed the lady shown therein was “Peggy Lai” whom C insisted was inside the New Office;
(d)	the BA then repeatedly knocked on the door of the New Office but nobody answered his call;
(e)	due to C’s insistence on the presence of “Peggy Lai” inside the New Office, the BA made report to his supervisor who instructed him to call the police for assistance;
(f)	2 policemen and the BA’s supervisor arrived at about 12:10pm, and at the police’s request Mr Ho opened the door and allowed them entry to the New Office, “but [C] could not find the said witness on spot. Subsequently [they] were demanded to leave the premises by a lady whom Mr Ho introduced her being the boss in the premises. Hence, service could not be effected”;
(g)	for the aforesaid reasons, the BA was unable to serve the Lai SW.

16.  By a letter dated 10 February 2021 to the SCT, C referred to the 2^nd attempt to serve the Lai SW on 9 February 2021 and enclosed his letter dated 5 February 2021 to the BO (see paragraph 12 above) and 2 audio files that recorded the 2^nd attempt to serve the Lai SW. C claimed he accompanied the BA to the New Office “and Ms Peggy Lai was present to answer the door. The bailiff told her that he was to serve [Lai SW] on one Peggy Lai for her to give evidence on 22 February 2021 at 9:15am at Court 32 of the [SCT]. Right after hearing that, Ms Peggy Lai went back to the office and closed the door. One Mr Ho then came out in an attempt to send the bailiff away”, but when 2 police officers and a senior bailiff came to assist, Mr Ho allowed all of them to enter D’s New Office to “find Peggy Lai but [Ip] finally came out from her room to ask all of [them] to leave”.

17.  In such letter, C claimed D (a) orchestrated the whole process, including instructing her staff to mislead the bailiffs on 3 and 9 February 2021, and (b) perverted the course of justice by interfering with service of the Lai SW (particularly when the bailiffs and police officers had entered D’s New Office to find Lai) with the ill intent of preventing Lai (whom C claimed was “a kind person and will not lie at Court”) from giving evidence at trial to corroborate C’s evidence. C by such letter urgently applied for substituted service of the Lai SW by personally serving the same on D at the New Office with a penal notice to D, or by any other method as the SCT might direct.

18.  On 11 February 2021, Ms Ho directed C’s application be dealt with at the trial hearing on 22 February 2021.

19.  On 16 February 2021, C wrote to the SCT to say his letter dated 10 February 2021 was a complaint against D for perverting the course of justice as well as an ex parte application for substituted service of the Lai SW. C inter alia (a) urged the SCT to take necessary action against D “who obstructed bailiffs to execute their duties and wasted the time of public officers”, (b) enclosed 2 audio files in relation to the 2^nd attempt to serve the Lai SW on 9 February 2021 claiming D “had been dominating over [Lai] and aiding and abetting [Lai] to evade service of the [Lai SW]”, and (c) urged the SCT to give directions to the BO for service of the Lai SW as soon as possible either by substituted service on D personally with penal notice, or by waiting outside the New Office for Lai to come out when she needed to use the toilet facilities.

20.  On 17 February 2021, the Acting Principal Adjudicator Mr S P Yip (“Mr Yip”) gave the following written directions:

“(1) Having considered all the circumstances, in particular, the two failed attempts of personal service of the [Lai SW] on 3^rd and 9^th February 2021 and our bailiff being informed that there no such named witness at the address appearing on the [Lai SW], I consider [C’s] application for re-service or substituted service of the [Lai SW] in such manner as suggested in [C’s] letter dated 16 February 2021 as inappropriate and I therefore refuse such application.

(2) Regarding the other matters raised in [C’s] aforesaid letter, the [SCT] is not in a position to comment or advise. [C] is at liberty to seek independent legal advice on those matters.”

21.  On 18 February 2021, Ms Ho granted written directions that C’s amendment application (see paragraph 13 above) be dealt with at the trial hearing on 22 February 2021.

22.  On 22 February 2021, the SCTC Case was tried and heard by Ms Ho[1] with judgment reserved. On the same day, D lodged her statement of costs for the total sum of $14,983.00 with supporting documents.

23.  On 23 February 2021, C wrote to inform the SCT (with copy to D) that he made an inaccurate statement (ie that there was no denial of the existence of the Jacket and the Necktie) in his closing speech at the trial when the correct position should be there was no denial of the existence of the Jacket, Necktie “and the White Bag” (referred to in paragraph 51 below) as C was not sure whether D had seen the Jacket and Necktie, but “she must have seen the White Bag which contains the [Jacket] and [Necktie]”.

24.  On 26 February 2021, C lodged supporting documents for his revised statement of costs (C39 – see paragraph 13 above) that claimed a sum of $2,110.50. On the same day, Ms Ho orally delivered her judgment with brief reasons (“Oral Reasons”), and granted the following award/order (“26/2/21 Order”):

(a)	C partially succeeded in his claim in the SCT Case, and D shall pay him $100 and interest thereon at judgment rate from the date of judgment to the date of payment;
(b)	there be no order as to costs (“Cost Order”).

25.  On 1 March 2021, C wrote to the SCT (with copy to D) saying he wished to address the court on the issue of costs before the 26/2/21 Order was sealed, and he raised various contentions that were eventually repeated as his grounds for the Review Application referred to in paragraph 27 below.

26.  On 3 March 2021, Mr Yip granted written directions that if C was not satisfied with the 26/2/21 Order, C could apply to the SCT for review or apply to the Court of First Instance of the High Court (“CFI”) for leave to appeal.

27.  On 5 March 2021, C filed his Application for Review of an Award/Order by a Party (Form 8C) in respect of the Cost Order (“Review Application”) pursuant to section 27A of the Small Claims Tribunal Ordinance Cap 338 (“SCTO”) on the following grounds (C114-115):

(a)	C claimed he had done whatever he could to prove his case against D, and whilst the SCT might “deduct certain percentage of his costs” because he could not produce (i) the receipt for the Jacket and (ii) the evidence to prove the Necktie, he should not be denied all costs when costs would normally follow event.
(b)	Before the commencement of the trial, Ms Ho said the trial would proceed since C did not apply to change the name of the witness on the Lai SW. But C pointed out the SCT must have received the report of non-service of the Lai SW from the BO, and C understood the BAs were merely told there was “no such person” without having actually located Lai for her to produce her identity card to show the name in the Lai SW was wrong, so there was no evidence before the court the name “Peggy Lai” on the Lai SW was wrong. Instead, D at the PTR and during the trial admitted Lai was still working for her at the New Office being D’s place of business as evident from D’s business registration record. Further, C accompanied the BA to identify Lai (which he did) upon the 2nd attempt to serve the Lai SW on 9 February 2021. So C claimed he had done whatever he could to discharge his duty to prove his case, and there was no reason to deny him his costs.
(c)	C claimed D’s conduct justified an award of costs in C’s favour. D could have chosen to let C prove his case, but she denied liability and positively defended C’s claim in her Defence and witness statement. Although D did not deny the existence of the Jacket, the Necktie and/or the White Bag before the trial, she denied the existence of the White Bag when she gave evidence at trial. Since D as the sole occupant of the Office was found liable for C’s loss of the Jacket, she should likewise be held responsible for obstructing service of the Lai SW (at the New Office), “i.e., for someone informing bailiff “no such person””.
(d)	D in her reply to C’s witness statement claimed the value of the Jacket was $0, and at the PTR D offered $1 for C’s loss, but the award of $100 under the 26/2/21 Order in C’s favour was 100-fold of D’s offer. C claimed he had successfully beaten D’s offer, so he should have been awarded costs (and on even higher scale had the SCT Case been “normal civil proceedings”).
(e)	The SCT had not given opportunity for C to make submissions on costs and had not considered the above matters before granting the Cost Order, so C urged the SCT to award costs against D under the Review Application.

28.  On the same day, the SCT issued a Notice of Review by an Adjudicator on the Application of a Party (Form 8B) pursuant to section 27A(2)(b) of the SCTO (“Form 8B”) that gave notice to C and D that C had made the Review Application under section 27A of the SCTO, and that the review would be heard at the SCT (Court No 29) on 13 April 2021.

29.  On 8 March 2021, Mr Yip granted written directions that (a) the Review Application was fixed to be heard at the SCT (Court No 29) on 13 April 2021, and (b) D was to file and serve reply (if any) with supporting documents on/before 31 March 2021.

30.  On the same day, C wrote to the SCT (with copy to D) to apply for “paper disposal” of the Review Application in lieu of any oral hearing, and to suggest no costs would be generated by the parties under the SCTO if the Review Application could be dealt with by written submissions.

31.  On 9 March 2021, Mr Yip by written directions refused C’s application for “paper disposal” of the Review Application.

32.  On 12 March 2021, the SCT refunded witness fee of $55 to C.

33.  On 15 March 2021, D filed their reply pursuant to Mr Yip’s written directions dated 8 March 2021 (D13-14). D noted C had not proved the value of the Jacket, its alteration fee and the Necktie even if he did buy them, so only partial judgment was awarded in C’s favour. D claimed the SCT had discretion in granting no order as to costs, and D accepted such Cost Order. D submitted C’s grounds for review were misconceived as he had not considered he only recovered partial judgment in his favour. But D did not object to C’s proposal for “paper disposal”, and asked the SCT to let her know the result if paper disposal of the Review Application was considered appropriate.

34.  On 19 March 2021, the SCT wrote to inform D that Mr Yip had on 9 March 2021 directed that C’s application for “paper disposal” of the Review Hearing be refused.

35.  On 26 March 2021, the SCT sent written notice to both C and D to remind the parties that the Review Application would be heard at the SCT (Court No 12) on 13 April 2021, and asked them to note that the time and date of such hearing remained unchanged.

36.  On 29 March 2021, D wrote to the SCT (with copy to C) saying that unless she could be of further assistance to the SCT, “kindly excuse [her] absence for the Review”. On 31 March 2021, Ms Chu granted written directions to D that if D failed to attend the hearing of the Review Application, the SCT might make such order in her absence as the SCT would think fit.

37.  On 31 March 2021, C wrote to the SCT (with copy to D) enclosing his written submissions for the Review Application (“Review Submissions”, C116-120), and claimed his attendance at the review hearing was unnecessary as he had nothing else to submit to the SCT, so “[to] save [C’s] cost and the Court’s time, please kindly excuse [C] for not attending the hearing of 13 April 2021. [C] should be grateful if [SCT] would let [C] have [SCT’s] written decision by post”.[2]

38.  On 12 April 2021, the SCT wrote to inform C that Ms Ho had on 9 April 2021 granted directions to refuse his “[application] for being absent” at the hearing of the Review Application on 13 April 2021. If [C] does not attend the hearing, his application for review will be dismissed, with costs if applicable”.

39.  On 13 April 2021, both C and D were absent at the hearing of Review Application (“Review Hearing”) before Ms Ho who made the following award/order (“13/4/21 Order”):

(a)	the Review Application be dismissed for C’s failure to appear at the Review Hearing;
(b)	the 26/2/21 Order do stand;
(c)	there be no order as to costs for the Review Application.

40.  On 16 April 2021, C wrote to the SCT asking for Ms Ho’s written decision as the parties had only 7 days to consider whether to appeal against the 13/4/21 Order.

41.  On 20 April 2021, Mr Yip granted the following written directions as follows:

(a)	Ms Ho had refused C’s application by letter dated 31 March 2021 for paper disposal of the Review Application without oral hearing, and C had been reminded to attend the Review Hearing fixed on 13 April 2021, failing which the Review Application would be dismissed with costs if applicable (see paragraph 38 above);
(b)	as such, no written decision had been handed down in the manner suggested in C’s letter dated 31 March 2021;
(c)	instead, transcript of the proceedings at the Review Hearing on 13 April 2021 would be prepared and provided to C in due course subject to his undertaking to pay the prescribed fees;
(d)	C was reminded it usually took about 3 weeks to prepare such transcript of proceedings.

42.  On 22 April 2021, D paid the judgment sum of $100 into the SCT, and the SCT forwarded such sum to C.

43.  On the same day, C filed application for leave to appeal on point of law (“Application”) in the present proceedings at the CFI to appeal against the Cost Order. In the Application, C claimed if he were granted leave to appeal against the Cost Order, he would in such appeal (a) ask the CFI to determine the appeal by paper disposal and issue a written decision to the parties, (b) seek costs of his claim in the SCT Case as per his revised statement of costs dated 8 February 2021 (C39 and see paragraph 13 above), and (c) ask for no order as to costs for the Review Application and for the appeal no matter the outcome of the appeal.

44.  On 28 April 2021, C wrote to the CFI to say he had no more submissions or authorities to put forward (other than the grounds set out in the Application), so he applied for “paper disposal” of the Application to save time and costs.

45.  On 10 May 2021, this court by written directions to C pointed out as follows:

“2. The court notes that pursuant to directions dated 20/4/21 by the Registrar, [SCT] that transcript of the proceedings on 13/4/21 will be provided in due course upon [C’s] payment of prescribed fees.

3. It is the usual practice and procedure for the relevant adjudicator to reduce his/her reasons for the decision into writing if and when an application for leave to appeal is lodged by a party (whether claimant or defendant) to the [CFI]. Such reasons for decision are made available to the applicant and the [CFI] prior to the hearing of the application for leave to appeal.

4. In this case, the [CFI] has not received the written decision by the adjudicator, which may be, as is usual, under preparation in view of the hearing of the applicant’s application for leave to appeal is on 3/6/21.

5. This court will consider the applicant’s application for paper disposal, ie to see whether it is a fit matter to be determined by paper disposal, upon sight of the written reasons for decision by [Ms Ho].”

46.  On 17 May 2021, Ms Ho handed down her Reasons for Decision in respect of the SCT Case / 26/2/21 Order (“Trial Reasons”) and her Reasons for Decision in respect of the Review Application / 13/4/21 Order (“Review Reasons”). On 20 May 2021, the SCT sent copies of the Trial Reasons and the Review Reasons to C and D.

47.  On 26 May 2021, this court granted written directions that C’s Application be reserved for paper disposal, and that the hearing of the Application on 3 June 2021 be vacated.

48.  On 27 May 2021, C lodged written submissions and list of authorities in support of the Application on matters arising from the Trial and Review Reasons (“Leave Submissions”).

II.  TRIAL REASONS

49.  In the Trial Reasons, Ms Ho set out C’s pleaded claim and D’s pleaded defence, and stated it was for C to prove his claim on the balance of probabilities. Ms Ho then analysed the relevant law, the statement/oral evidence of the witnesses C and Ip, the documents and the submissions.

50.  It was common ground that C was employed by D from 2 July to 6 September 2019. Ms Ho identified the issues in dispute to be: (a) whether C had left his personal properties at the Office, (b) if so, what were those personal properties, (c) whether D had disposed of those personal properties, (d) whether D was liable to compensate C for those personal properties, and (e) what was the value of (or damages for) those personal properties.

51.  On (a)-(c) above, C in his witness statement (C1-2) and oral evidence claimed that when he was employed by D he kept his Jacket and blue Necktie at the Office in a white bag (“White Bag”) placed on the floor at the corner of the cabinet behind his seat and the right window, so he could take out and wear the Jacket and Necktie if there was sudden need for him to attend court hearings. In July/August 2019, C had worn the Jacket and the Necktie to attend court hearings, and he then put them back in the White Bag. C claimed Ip and her secretary Lai knew of his practice.

52.  C estimated the size of the Office was about 150 sq ft (but did not deny D’s suggestion that it was about 400 sq ft), and claimed D also employed a summer trainee as well as a part-time filing clerk to handle out of office work 3 times a week, so for most of the time only Ip, Lai, the summer trainee and C were at the Office. C drew a sketch of the Office’s layout (C113) showing 2 rooms (Ip’s room and conference room) and an open office area where C, Lai and the summer trainee sat. C said from Ip’s vantage in her room she had a clear view of C’s seated position and the White Bag, and her seat was about 10 odd feet away from D’s seat.

53.  C admitted the filed social media messages he had with Lai (C14-16) did not mention his personal properties, but he claimed there was no particular need for him to leave social media messages to request D/Lai to preserve his personal properties as he believed (and it was his experience from working at law firms for many years) persons in the legal field would have known they should not casually dispose of others’ properties. C also claimed that employees would normally keep some personal properties at office premises, so D who was not an “outsider” should have known not to casually dispose of his personal properties.

54.  Ms Ho noted C filed the audio recordings/transcript of his alleged telephone conversations with Lai on 10 October 2019 and 27 May 2020 (C17-20). In the telephone conversation on 10 October 2019, C asked Lai whether he could collect the Jacket later, but Lai’s reply was unclear and the transcript could not record what Lai said. In the Demand Letter dated 1 June 2020 (see paragraph 2 above), C claimed Lai in that telephone conversation told him D had put his personal properties in the cabinet in the conference room. C agreed this was from his recollection, and was not reflected in the transcript. C explained (a) he had not intended to record his conversation with Lai, but (b) his mobile telephone had an automatic recording function, and (c) only his side of the telephone conversation was clearly recorded as he did not switch on the amplifier.

55.  C claimed that likewise he had not intended to record his conversation with Lai on 27 May 2020, but it was recorded in such audio recording that he said he would later attend D’s Office to collect the Jacket, and Lai said she did not know whether or not it had been disposed of. Ms Ho agreed with C’s closing submissions that although part of Lai’s response in the audio recording was unclear and the transcript did not record the entirety of what Lai said, the recording showed Lai did not deny C’s Jacket was left at D’s Office, and Lai even mentioned the Jacket might have been thrown away. But C did not mention his other personal properties (including the Necktie) in the 2 conversations. C tried to explain this by saying the Necktie was kept in the breast pocket of the Jacket.

56.  According to C’s witness statement, C took the Jacket and the Necktie home when he left his last employment in March 2019 before he joined D (C2) as he resigned on his own accord. But D terminated his employment during his sick leave (for injury to his collarbone above his left shoulder), so his personal properties were left at the Office. Further, C could not wear the Jacket due to his injury, so there was no urgency for him to collect the same, and as the sub-divided flat where he lived was small he preferred to leave the Jacket at D’s Office for later collection when would find another job at a law firm and would have need to wear the Jacket. C found such job in May 2020, so he contacted Lai on 27 May 2020 with a view to attend the Office to collect the Jacket and the Necktie, and at the same time to hand over the key and access card to D’s Office that he had kept.

57.  According to the chronology of events in C’s witness statement (C4), C in his telephone conversation with Lai on 27 May 2020 said he would attend the Office later that day to collect the Jacket (C18), and Lai later told him by telephone D had asked him to return to the Office to look for his Jacket.[3] C did not do so because on 10 October 2019 Lai had told him D had placed his personal properties in the cabinet in the conference room at the Office, and on 27 May 2020 Lai had told him his personal properties could not be found, so he felt there was no need for him to attend the Office to look for the Jacket and the Necktie, and he sent the key and access card to D by registered post.

58.  Ms Ho referred to the audio recordings of C’s mobile telephone and the date/time of the relevant email (C36-38), and accepted C did have the telephone conversations with Lai on those 2 dates (and in fact D did not deny the same). Ms Ho noted the transcripts of the telephone conversations and the Demand Letter referred to or showed C had conversations with Lai about his Jacket / personal properties left at D’s Office. In the circumstances, the SCT was entitled to draw adverse inference against D for failing to call Lai to give evidence as to whether she was aware C had left the Jacket at the Office and whether she had those conversations with C, or for failing to offer reasonable explanation for not calling Lai to rebut C’s case. Ms Ho therefore found P did leave the Jacket at the Office and D’s staff Lai knew about it, but Ms Ho considered there was insufficient evidence to prove C left the Necktie at D’s Office.

59.  On (d) above, D testified she could not remember having seen the White Bag or Lai having told her C’s personal properties were kept in the cabinet in the conference room. D denied she knew C left his personal properties at the Office. Ms Ho found there was insufficient evidence to show D actually, knowingly or deliberately disposed of C’s personal properties, but as Ms Ho accepted C left the Jacket at D’s Office, D became an involuntary bailee with obligation to take reasonable care of the Jacket under the law of bailment. Ms Ho found D’s staff Lai had notice that C had left the Jacket at D’s Office, so D should in good faith take reasonable care of the Jacket. There was no evidence D or her staff made any arrangements for reasonable care of the Jacket. Also, D did not contact/request C to collect the Jacket. In the circumstances, since D could not restore the Jacket to C, she was liable to pay damages to him.

60.  On (e) above, C claimed he bought the Jacket from the Marks & Spencer shop in Central on 9 October 2018, and the White Bag had the logo of such shop. C filed a credit card statement in support of his allegation that the price of the Jacket was $1,200 with alteration fee of $125. But Ms Ho found it was not established that the alleged item on such credit card statement was referrable to the Jacket and alteration fee. Ms Ho also expressed doubt over the value of the Jacket as a result of C’s delay in attending D’s Office to collect the Jacket. Even if C did buy a jacket and pay for the alteration fee in October 2018, Ms Ho found the evidence was insufficient to establish it was the Jacket that C left at D’s Office. Since C had not discharged his burden to prove the quantum of damages, Ms Ho awarded him nominal damages in the sum of $100.

61.  As for the issue of costs, Ms Ho referred to section 24(1) of the SCTO which provides as follows:

“Subject to subsection (2), the tribunal may award to a party costs and expenses, which may include –

(a) any reasonable expenses necessarily incurred and any loss of salary or wages suffered by that party; and

(b) any reasonable sum paid to a witness for expenses necessarily incurred and any loss of salary or wages suffered by him,

in attending the hearing.”

62.  Ms Ho in paragraph 31 of the Trial Reasons held: “[Ms Ho]考慮到[C]的訟費申請, 但由於[C]其實並未能證實其申索金額, 只獲象徵式賠償, [Ms Ho]不批准他的訟費申請, 不作訟費命令”. Consequently, Ms Ho granted the 26/2/21 Order (see paragraph 24 above).

III.  REVIEW REASONS

63.  Ms Ho noted the Review Application concerned the Cost Order under the 26/2/21 Order. Ms Ho reiterated the matters in paragraphs 29-31, 33-34 and 36-39 above. Thus, the 13/4/21 Order was made in the absence of C and D. In the Review Reasons, Ms Ho noted C did not apply under section 32A of the SCTO to set aside the 13/4/21 Order granted in his absence. Ms Ho gave the following reasons for the 13/4/21 Order:

“15. 純粹基於[C]存檔的覆核理由及書面陳述, [Ms Ho]認為[C]提出的論點不足以改變[Ms Ho]原來的訟費決定。

16. 根據[SCTO]第24(1)(a)條，[SCT]可裁斷任何一方獲償訟費及開支。

17. 本案中, [C]雖然證明[D]有責任就[Jacket]作出賠償, 但[C]未能證明[Jacket]之價值, [Ms Ho]只命令[D]對[C]作象徵式賠償$100。[Ms Ho]認為[C]在本案作金錢索償, 卻並未能證明其索償之金額。[Ms Ho]頒令的象徵式賠償只是[C]在本案申索金額很少比例之等額。在此情形下, [Ms Ho]認為有理由不要求[D]向[C]作訟費賠償。

18. [C]聲稱[D]在審訊前只願意向[C]賠償$1作為和解條件, 而法庭命令[D]支付的象徵式賠償$100是該金額之100倍。但[Ms Ho]理解[C]根本並無接受[D]以$1作為和解條件, [C]從無表示或同意只收取[D]$1以完全並最終解決其在本案所作包括訟費之申索。

19. [Ms Ho]並未如[C]指稱，因[C]未能完成對被告人職員[Lai]派證人傳票而拒絕[C]之訟費申請。反之，在本案裁決中，[Ms Ho]已清楚指出，[D]沒有傳召[Lai]就她是否知悉[C]有留下[Jacket]在[D’s Office]及就她是否有與[C]作有關之電話對話作供, 亦未能提出合理之解釋為何不傳召[Lai]作供反駁，法庭有權對[D]作出不利推斷。[Lai]在本案沒有出庭作供並非[Ms Ho]拒絕申索人訟費申請的原因。至於[C]就其對[Lai]派證人傳票之有關投訴及要求, 署理主任審裁官已於審裁署發給被告人日期為2021年2月17日之信件中處理及回應。

20. [C]在向[Ms Ho]作訟費申請時其實已有機會作出其認為有關的陳述, [Ms Ho]亦已考慮[C]的各項訟費申請。

21. 由於[C]缺席覆核聆訊, [Ms Ho]未有機會要求[C]作進一步口頭陳述或/及回應以讓[Ms Ho]確定以上之看法, [Ms Ho]因此以[C]缺席聆訊的基礎撤銷其覆核申請。”

IV.  LEGAL PRINCIPLES

64.  I have set out the legal principles for the Application in Adhoc Media Company Limited v Chan Lai Lun[4] and A Workshop Communications Ltd v Tam Heung Man,[5] which I adopt but do not propose to repeat here (save for the brief summary below).

65.  Appeal  Section 28 of the SCTO provides that leave to appeal may be granted by the CFI as it thinks fit where the proposed ground of appeal involves a question of law alone or is on the ground that the claim was outside the jurisdiction of the SCT. The threshold onus on the applicant is to show that the intended appeal has arguable grounds of appeal.[6]

66.  Findings of fact  Section 29(2) of the SCTO provides that on an appeal for which leave was granted under section 28 of the SCTO, the CFI may (a) draw an inference of fact, and (b) make any such order as to costs and expenses as it thinks fit, but may not (i) reverse or vary any determination made by the SCT on questions of fact, or (ii) receive further evidence.

67.  It is trite that findings of fact by the SCT are generally immune from challenge as they involve no error of law unless it is perverse or irrational, or where there is no evidence to support the decision, or where the decision was made by reference to irrelevant factors or without regard to relevant factors.[7]

68.  Bokhary PJ in Kwong Mile Services Ltd v Commissioner of Inland Revenue said:[8]

“37. In any appeal on law only the appellate court must bear in mind what scope the circumstances provide for reasonable minds to differ as to the conclusion to be drawn from the primary facts found. If the fact-finding tribunal’s conclusion is a reasonable one, the appellate court cannot disturb that conclusion even if its own preference is for a contrary conclusion. But if the appellate court regards the contrary conclusion is the true and only reasonable one, the appellate court is duty-bound to substitute the contrary conclusion for the one reached by the fact-finding tribunal ……”

69.  In Kaifull Investments Ltd v Commissioner of Inland Revenue, it was held that the fact other inferences might just as plausibly be drawn from the available material was insufficient to establish that the first instance court/tribunal acted unreasonably and had come to a conclusion that no court/tribunal acting judicially could reasonably have made.[9] It is only where the lower court’s/tribunal’s decision exceeds the generous ambit within which reasonable disagreement is possible and is in fact plainly wrong that an appellate court is entitled to interfere.[10]

70.  Further, Order 55 rule 7(7) of the Rules of the High Court (“RHC”) provides that the CFI shall not be bound to allow the appeal on the ground merely of misdirection, or of the improper admission or rejection of evidence, unless in the opinion of the court substantial wrong or miscarriage has been thereby occasioned.

71.  Appeal on exercise of discretion on costs The SCT has jurisdiction to award costs by virtue of section 24(1) of the SCTO (see paragraph 61 above). In Yu Wing Kei v Chan Tak Kwong, DHCJ Au-Yeung (as she then was) said such provision “confers power on the [SCT] to award costs and gives examples of the type of costs to be awarded”, but does not prevent the applicability of general legal principles on costs for deciding the incidence of liability for costs in the SCT.[11] Such general principles on costs for deciding the incidence of liability for costs will be discussed in greater detail below.

72.  As provided in section 28(1)(a) of the SCTO (see paragraph 65 above), an appeal lies against a decision of the SCT (including a decision on costs by the SCT), with leave of the CFI, on any ground involving a question of law alone. It is therefore necessary for an applicant seeking leave to appeal to identify an error in the decision on costs by the SCT that raises a question of law.

73.  The approach of courts sitting in appellate jurisdiction towards challenges against exercises of discretion on costs is well established, and has been usefully summarised by the Court of Appeal in Progetto Jewellry Company Limited v Lau Chiu Ying & anor as follows:[12]

“36. The threshold for reversing discretionary decisions on costs, as in the case at bar, is high. As this Court pointed out at [34] in Poon Ching Man v Lam Hoi Pun, [2016] 3 HKLRD 815:

“34. This court has stressed repeatedly that costs is very much a matter of discretion for the trial judge and the Court of Appeal would be very circumspect in intervening with such a decision with high discretionary content: see Ho Shu Kwong v Chiang Chun Yuan [2002] 3 HKLRD 419; IO of King Yip Factory Building v Kwun Wah Flower and Plant Manufactory Ltd CACV 128/2003, 13 November 2003; Hung Fung Enterprises Holdings Ltd v Agricultural Bank of China [2012] 3 HKLRD 679; Bonnie Blair Ltd v Witmore Ltd HCMP 1546/2015, 7 August 2015; Chan Shun Kei v Hong Kong Construction (HK) Ltd CACV 192/2014, 7 March 2016. In the last case, the court said at [22]:

‘22. It must be stated at the outset that this court should acknowledge that costs is very much a matter of discretion of the judge and we should be circumspect in interfering with the same. The established approach is that this court will only interfere when it is satisfied that the decision of the judge is either wrong in principle or plainly wrong, see Ho Shu Kwong v Chiang Chun Yuan [2002] 3 HKLRD 419. The rationale for this approach was explained by Woo JA (as he then was) in Ho Shu Kwong. The trial judge is the best person to exercise the discretion on costs because he is most familiar with the conduct of the case at the trial and the impact of the success and failure on each issue canvassed before him. In a way it is like an appeal against findings of fact. As explained in numerous judgments (see e.g. China Gold Finance Ltd v CIL Holdings Ltd CACV 11 of 2015, 27 November 2015), an appellate court is institutionally disadvantaged from re-assessing a decision of this nature as if it is hearing the matter in the first instance. Thus, this court should examine whether a primary judge committed any palpable error in the exercise of the discretion on costs. In the absence of such an error, the mere fact that the appellate judges might have exercised the discretion in a different manner is not a sufficient ground to warrant interference with the decision of the primary judge.’ ”

……

38. As noted above in Poon Ching Man, supra, costs are very much a matter of discretion, and this Court will only interfere when it is satisfied that the decision of the first instance judge is either wrong in principle or plainly wrong.  In other words, in the absence of any palpable error in the exercise of discretion on costs, the mere fact that appellate judges might have exercised the discretion differently is not sufficient to interfere with the decision of the judge below.”

74.  These principles are relevant and applicable to an appeal against a decision on costs by the SCT. Yu Wing Kei concerned a tenancy dispute. In that case, the SCT (a) allowed the defendant’s counterclaim for the security deposit, (b) ordered the claimant to pay the defendant a sum of $28,934.86 after setting off the damages awarded to the claimant against the security deposit, and (c) granted no order as to costs. DHCJ Au-Yeung (as she then was) said the applicable principles in an appeal against a decision of the SCT on costs only are as follows (and they echo the guidance in Poon Ching Man):

“6. Costs are matters of discretion though the discretion must be exercised judicially. An appellate court should intervene only where the judge has either erred in principle in his approach, or has left out of account, or taken into account, some feature that he should, or should not, have considered, or that the exercise of his discretion was wholly wrong because the court is forced to the conclusion that he has not balanced the various factors fairly in the scale: Roache v News Group Newspaper Ltd [1998] EMLR 161 at 172; Choy Yee Chun v Bond Star Development Ltd [1997] HKLRD 1327.”

75.  Case management decision  The CFI should be slow to interfere with case management decisions by the SCT. It was held by the Court of Appeal in Mimi Kar Kee Wong Hung v Severn Villa Ltd & ors as follows,[13] which principles are also relevant to appeal against case management decision of the SCT:[14]

“31. It must also be borne in mind that the orders made by the Judge in the intended appeal are case management decisions in the exercise of the discretion of the trial judge. Case management decisions are only subject to appeal in rare circumstances. The appellant faces a ‘very high hurdle’ and must show that the judge ‘has gone clearly wrong and made orders which will clearly involve an injustice or an inability for the trial court to carry out its task’, or if the judge ‘erred in principle or the order was irrational having regard to the issues that had to be resolved’. It need hardly be emphasised that generally, an appellate court will not interfere with a judge’s exercise of discretion unless the judge has misunderstood the law or the evidence or the exercise of his discretion was plainly wrong such that it was outside the generous ambit within which a reasonable disagreement is possible.”

V.  DISCUSSION

76.  In the Application, C put forward various intended grounds of appeal against the Cost Order. By the Leave Submissions, C added various contentions in relation to the Trial and Review Reasons.

77.  I start by considering whether there were any arguable grounds of appeal in respect of the Cost Order, ie there be no order as to costs. If there were such arguable grounds of appeal, then leave to appeal ought to be granted irrespective of the merits or otherwise of C’s complaints against the 13/4/21 Order / Review Reasons (although I would have to go on to consider whether the further complaints against the 13/4/21 Order / Review Reasons would also constitute arguable grounds of appeal). If there were no such arguable grounds of appeal, then leave to appeal ought not to be granted notwithstanding C’s criticisms against the 13/4/21 Order / Review Reasons. After all, the outcome of the Review Application merely resulted in the Cost Order being unshaken and upheld. Whatever point of law error the 13/4/21 Order / Review Reasons might suffer from (as C alleged), they would not have aided him if the Cost Order was unassailable. On this, I bear in mind Order 55 rule 7(7) of the RHC when considering whether or not to grant leave to appeal (see paragraph 70 above). As seen in paragraph 43 above, C’s Application expressly sought leave to appeal against the Cost Order (so that if leave to appeal were granted C would seek his costs for the SCT Case in the sum of $2,110.50 as per his revised statement of costs (C39) and see paragraph 13 above), but C would not seek to disturb the cost order under the 13/4/21 Order (see paragraph 39(c) above) or ask for his costs of the appeal), which clearly demonstrated C’s recognition that the crux of the issue was the vitality or otherwise of the Cost Order.

78.  C’s intended grounds of appeal that alleged Ms Ho erred in law in granting the Cost Order could be grouped under 6 broad heads, some of which C had previously raised as grounds for review in his Review Application:

(a)	C, who had not been wholly successful in his claim, was awarded damages in the sum of $100, and:
	(i)	$100 was not a nominal award (“Ground (a)(i)”);
	(ii)	Ms Ho became functus officio upon assessment of damages in the sum of $100 in C’s favour by her delivery of the Oral Reasons on 26 February 2021, yet she turned to describe such award as “nominal damages” in the Trial Reasons (and later in the Review Reasons) although such award was not so described in the 26/2/21 Order (“Ground (a)(ii)”);
	(iii)	costs would normally follow event unless there were exceptional circumstances to justify departure from such general rule (“Ground (a)(iii)”) (see also paragraph 27(a) above).
(b)	The award of $100 was insufficient to even compensate C for what he had spent on court fee, travelling expenses and postage let alone his cost of taking annual leave for 4 court attendances in respect of the SCT Case (“Ground (b)”).
(c)	Ms Ho took into account irrelevant matters as follows:
	(i)	at the end of her Oral Reasons, Ms Ho stated C failed to prove his case, so there be no order as to costs (“Ground (c)(i)”);
	(ii)	at the beginning of the trial on 22 February 2021, Ms Ho said the trial would proceed because C did not apply to change the name of the witness “Peggy Lai” (presumably on the Lai SW), but in fact C never applied to amend the Lai SW, and in view of the efforts made to serve the Lai SW, C had done all he could to discharge his duty to prove his claim (“Ground (c)(ii)”) (see also paragraph 27(b) above).
(d)	Ms Ho failed to take into account D’s conduct as follows:
	(i)	“inside the Courtroom” D chose to resist C’s claim by denying liability in her Defence and by adducing documentary and witness evidence in opposition, and it was implicit from Ms Ho’s findings of fact that D lied (“Ground (d)(i)”) (see also paragraph 27(c) above);
	(ii)	“outside the Courtroom” D (1) as the “sole occupant” of the New Office must be held responsible for telling the BAs who attempted to serve the Lai SW there was “no such person” and thereby for obstructing service of the Lai SW, and (2) in refusing Ms Ho’s suggestion at the PTR on 20 January 2021 to have Lai give a witness statement, deprived Ms Ho of crucial evidential material for the exercise of her judicial function (“Ground (d)(ii)”) (see also paragraph 27(c) above).
(e)	D’s offer of $1 to settle C’s claim for damages on condition that (1) C would pay D’s costs ($14,983 – see paragraph 22 above) and (2) D would pay C’s costs ($2,110.50 – see paragraph 13 above) was “totally ridiculous” so “no settlement could be made”, but ultimately the award of $100 in C’s favour under the 26/2/21 Order had beaten D’s aforesaid offer by 100-fold, so C was entitled to his costs (and would have been so entitled on indemnity basis had the SCT Case been any “normal civil proceedings”) (“Ground (e)”) (see paragraph 27(d) above).
(f)	Ms Ho in the Review Reasons had not denied that the parties were not given opportunity to address her on the issue of costs after her delivery of the Oral Reasons on 26 February 2021 (“Ground (f)”) (see paragraph 27(e) above).

79.  Ground (a)(i)  C argued the award of $100 under the 26/2/21 Order was not nominal because he had sufficiently proved loss of the Jacket, which clothing, the Leave Submissions alleged, was “wearable and presentable”. C claimed that by comparing (a) the damages of $100 awarded in the SCT Case which amounted to 8.33% of C’s claim for the Jacket ($1,200), 7.02% of his total claim ($1,425) and 500% of his court fee ($20 filing fee) with (b) the nominal damages of $100 awarded in Liu Kwok Chuen v Liu Kwok Chun[15] (said by C to be “a real case of award of nominal damages”) which amounted to 0.20% of the defendant’s counterclaim for 4 types of converted chattels ($49,000 for 6 air-conditions ($36,000), 7 tyres ($3,500), 9 trees ($4,500) and 2 mattresses ($5,000)) and 7.9% of his court fee ($1,200 for filing fee ($630) and setting down fee ($630)) (see paragraph 86(c) below), (a) above could not have been nominal damages and was instead “an assessment of a piece of used clothing”. C further submitted that (a) above (despite the smallness in amount) could not have been nominal when the SCTO did not set any minimum monetary threshold (in contra-distinction to the jurisdictional limit of $75,000) for monetary claims founded in contract, quasi-contract or tort in the SCT.

80.  In my view, Ground (a)(i) raised 2 matters: (a) what is the nature of nominal damages, and (b) whether Ms Ho in awarding $100 under the 26/2/21 Order in C’s favour was awarding nominal damages of $100 or assessing/quantifying damages in the sum of $100.

81.  Generally, 2 circumstances give rise to an award of nominal damages: (a) where there is iniuria sine damno, and (b) where loss is shown but its amount is not sufficiently proved.[16]

82.  For (a) above, it is said technically the law requires not damage (more accurately, a remediable consequence) but an iniuria or wrong upon which to base a judgment for the claimant. Therefore, an actionable iniuria, although without some consequence, will entitle the claimant to judgment. Since a judgment awarding money is practically the only judgment which the common law can bestow, a judgment for a nominal sum of money or for “nominal damages” will be given.[17] Thus, nominal damages may be awarded in all cases of breach of contract and in torts actionable per se (eg trespass to land).[18] A useful statement of the meaning and incidence of nominal damages in this respect is found in the speech of Lord Halsbury LC in The Mediana as follows:[19]

“…… “Nominal damages” is a technical phrase which means you have negatived anything like real damage, but you are affirming by your nominal damages that there is an infraction of a legal right which, though it gives you no right to any real damages at all, yet gives you a right to the verdict or judgment because your legal right has been infringed. ……”

83.  For (b) above, “[nominal] damages may also be awarded where the fact of a loss is shown but the necessary evidence as to its amount is not given. This is only a subsidiary situation, but it is important to distinguish it from the usual case of nominal damages awarded where there is a technical liability but no loss or other remediable consequence [ie the situation in (a) above]. In the present case the problem is simply one of proof, one not of absence of loss but of absence of evidence of the amount of loss”.[20] As DDJ Simon Ho said in Liu Kwok Chuen, nominal damages may be awarded where the fact of a loss is shown but the necessary evidence as to its amount is not adduced or sufficiently proven (paragraph 125).[21]

84.  For the situation in (b) above, it is necessary to distinguish between a symbolic, arbitrary and/or token sum given for nominal damages from a sum similar in amount which is awarded as compensation calculated, quantified and/or assessed for a trifling loss.[22] As Lord Halsbury LC in The Mediana explained (and as cited by C):[23]

“…… But the term “nominal damages” does not mean small damages. The extent to which a person has a right to recover what is called by the compendious phrase damages, but may also be represented as compensation for the use of something that belongs to him, depends on a variety of circumstances, and it certainly does not in the smallest degree suggest that because they are small they are necessarily nominal damages. ……”

85.  Since C had referred this court to some legal authorities, it is useful to consider a few cases to illustrate the difference between nominal damages and small damages.

86.  In the following cases, a symbolic, arbitrary and/or token sum of $100 was awarded as nominal damages when evidence of loss was not adduced or was not sufficiently proven despite success in establishing liability:

(a)	In Elpe International (Far East) Limited v Hewlett Packard Hong Kong Limited,[24] the plaintiff by a hire purchase agreement acquired 2 sets of computer systems in respect of which the defendant was the local agent, but such computer systems failed to provide the promised feature. The first instance court found (i) the defendant did promise and warrant the feature would be provided, and (ii) the effect of the settlement agreement between the parties was defeated as there was “no VAR contract”, so “[as] far as liability is concerned, the plaintiff is entitled to succeed ……” On the question of damages, it was held on appeal that the plaintiff failed to make out a case for substantial damages, ie the notice of appeal did not put forward any sum(s) as representing damages which the plaintiff said should have been awarded in its favour, which sum or alternative sum one would have expected to see “[if] there was indeed evidence on which the plaintiff was entitled to substantial damages”. In short, the plaintiff established liability but failed to prove its loss. So, the Court of Appeal set aside the order of the first instance court, and “[entered] judgment for the plaintiff for nominal damages in the sum of $100.00”.
(b)	In Union Knopf (HK) Limited v Marcel Sossnoski & anor,[25] the plaintiff’s ex-employee being the 1st defendant incorporated the 2nd defendant before he left the plaintiff’s service. The 2nd defendant was engaged in business similar to that of the plaintiff. DDJ R Lai (as he then was) found that the non-solicitation clause in the 1st defendant’s employment agreement with the plaintiff was reasonable and enforceable after it was blue-pencilled to cross out the offending parts, and that the 1st defendant was in breach of such blue-pencilled clause in soliciting business for the 2nd defendant from the plaintiff’s customers from December 2008 to 31 May 2009 (paragraph 211). On the question of damages, the learned judge held that the plaintiff failed to adduce evidence at trial to establish that its customers ceased to do business with it, reduced trading volume with it, or transferred purchase orders for it to the 2nd defendant, and thus failed to prove loss due to such breach (paragraphs 260-261), so nominal damages of $100.00 was awarded to the plaintiff (paragraph 262).
(c)	In Liu Kwok Chuen, two brothers disputed over the beneficial ownership of the suit property which was in their names in joint tenancy. Apart from the ownership dispute, the defendant also counterclaimed inter alia for mesne profits for the plaintiff’s alleged trespass onto the suit property, and for the value of the defendant’s goods and chattels in the sum of $158,150 that the plaintiff converted during his wrongful possession of the suit property (paragraph 4). Apart from 4 items, DDJ Simon Ho was not satisfied the defendant could successfully discharge the burden to prove the plaintiff converted the claimed goods or chattels (paragraphs 105-109). Of the 4 converted items, there were just “the defendant’s bare allegations – whereby he claimed HK$36,000 for the 6 air-conditioners, HK$3,500 for the 7 tyres, HK$4,500 for the 9 trees at the backyard (which [the learned judge] found two were converted only), and HK$5,000 for the 2 mattresses in two bedrooms – there is really no objective evidence for this court to properly assess the values of these converted items” (paragraph 119). On analysis of the evidence, the learned judge also held it would not be proper for him to take the defendant’s allegations just on their face value (paragraphs 120-123). Since there was no proper evidential basis for the court to award substantial damages for the items of goods or chattels found to be converted by the plaintiff, only an award for nominal damages against the plaintiff for such converted items was justified (paragraph 124). Hence, the learned judge ordered the plaintiff to pay “nominal damages of HK$100 to the defendant in respect of the plaintiff’s conversion of the 6 air-conditioners, the 7 tyres, the 2 mattresses and the two chopped down trees (as chattels)” (paragraph 128).

87.  In the following cases, the court awarded small damages as compensation calculated, quantified or assessed for trifling loss:

(a)

In Yeung Ping Hung trading as Alfred Yeung & Co v Ha Chiu Ping & ors,[26] the plaintiff, a professional accountant, claimed professional fees for his services rendered to the defendants as their tax representative. DHCJ To dismissed substantial parts of the plaintiff’s claim save for a claim for disbursement of $15,000 for counsel’s fee that was admitted by the 1st defendant when he gave evidence and was later confirmed by his counsel after taking full instructions (paragraph 2), and DHCJ To further dismissed the defendants’ counterclaim (paragraph 3), so the learned judge entered judgment in favour of the plaintiff’s claim for counsel’s fee and dismissed the defendants’ counterclaim (paragraph 4). DHCJ To found (i) on the facts counsel’s fee was not admitted in the pleadings and was not paid at all, and it was only admitted by the 1st defendant under cross-examination, and further the fee could not be disputed despite the court’s unfavourable view of the plaintiff’s credibility, and (ii) on the law counsel’s fee of $15,000 was “a reimbursement and quantified sum” and not “a small sum or token amount, though it was insignificant when compared with the amount claimed by the Plaintiff” (paragraph 6). DHCJ To went on to say that “[if] the Defendants failed to reimburse the Plaintiff of his expenses, the Plaintiff suffered damage. This is not the case that the Plaintiff could not quantify his damage which makes it necessary for the court to arbitrarily award a nominal amount. The amount is determined by the sum that the Plaintiff had paid or was obliged to pay counsel and is awarded on that basis. I am firmly of the view that the award is not an award of nominal damages” (paragraph 7).

(b)

In Wai Chun Incorporation Ltd v 羅民基,[27] the dispute was whether the defendant, an employed driver, owed any common law duty of care to his employer (the 1st plaintiff) and the owner of the 2 cars (the 2nd plaintiff) that were driven by the defendant in the course of his employment, and whether the defendant was liable for the loss of the cars as a result of theft by a third party (page 371). DDJ Elaine Liu held that the defendant did owe a duty of care to the 2nd plaintiff (pages 380-382). The defendant was not in breach of such duty in respect of the 1st car (pages 384-385), but he breached his duty of care in respect of the 2nd car (page 386). The learned judge held as follows at page 387: “I find in favour of the plaintiffs only on their claim in respect of the 2nd car. The amount claimed is HKD5,895.20 and this quantum is not in dispute. After setting off the sum of HKD300 paid by the defendant upon the termination of his employment, the defendant is liable to pay the plaintiffs the sum of HKD5,595.20”. In her decision on costs,[28] DDJ Elaine Liu said “[the] amount awarded to the plaintiffs in this case is insignificant as compared with the amount they have claimed. However, the damages awarded is not nominal or trivial at law. …… The plaintiffs have successfully recovered the full amount of damages on the loss of the 2nd Car. This is a quantified sum. It is not nominal and is not a token damage. ……” (paragraphs 14 and 17).

88.  With the above legal principles and illustrations in mind, I turn to Ms Ho’s findings in the Trial Reasons (see paragraphs 59-60 above):

“24. 因此, 由於[Ms Ho]裁定[D’s]職員[Lai]有留意到[Jacket]仍留在[D’s Office], [D]有責任真誠地及合理謹慎地為[C]保管[Jacket]。但本案中沒有證據[D]或其職員曾作出任何安排保管[Jacket], [D]亦沒有聯絡[C]取回[Jacket]。在此情形下, [D]現在不能向[C]歸還[Jacket],有責任向[C]作出賠償。

……

27. [C]存檔了一張信用卡月結單支持他聲稱[Jacket]之價值為$1,200加修改費$125。但該月結單未能顯示有關金額是與[Jacket]及更改費有關。[Ms Ho]亦從[C]遲遲未有回到[D’s Office]取回[Jacket], 對[C]聲稱[Jacket]之價值表示懷疑。就算[C]確是於2018年10月在馬莎百貨購買了一件西裝外套及支付了更改費, 證據不足以證明[C]留下在[D’s Office]的[Jacket]便是該西裝外套。

28. 由於[C]未能完成其舉證責任證明其申索金額, [Ms Ho]只判他獲得象徵性賠償$100。”

89.  It is plain from the above findings of fact by Ms Ho that C had established loss of the Jacket and breach of duty by D as involuntary bailee in relation thereto, but the necessary evidence as to the amount of such loss was not sufficiently proven. Ms Ho did consider the credit card statement that C adduced, but found insufficient correlation to the Jacket and its alteration fee. Since C had been slow to collect the Jacket from D’s Office, Ms Ho doubted the claimed value of the Jacket ($1,200). Ms Ho further held there was insufficient evidence to establish the Jacket was the jacket (if any) he bought from the Marks & Spencer shop in October 2018. Having considered such evidence, Ms Ho tellingly found C failed to discharge his burden to prove the amount of his loss in respect of the Jacket. Quite simply, this meant Ms Ho found there was no proper evidential basis for her to award compensatory damages in a calculated, quantified and/or assessed amount that reflected the value of the loss of the Jacket. Rather, Ms Ho awarded an arbitrary or token sum of $100 as symbolic nominal damages to vindicate C for her finding that D was in breach of her duty as involuntary bailee and hence liable to C for the loss of the Jacket. I reject C’s suggestion that Ms Ho’s award of $100 under the 26/2/21 Order was “an assessment for a piece of used clothing”.

90.  C in his Leave Submissions suggested the buying power of $100 should be taken into account because one might probably be able to buy a suit jacket for $100 in the flea market and/or as shown in C’s research (see various computer screen capture documents for online sale of new and used jackets by H&M Store ($499), Uniqlo ($499), Carousell.com.hk ($100) and Taobao (¥100 and ¥50.73) in annexures AP6 – AP11 to the Leave Submissions (“Jacket Price Documents”)). C submitted this was in contrast to Liu Kwok Chuen where $100 could not have bought 6 used air-conditioners, 7 used tyres, 2 mattresses and 2 chopped down trees.

91.  In my view, C’s arguments in the above paragraph had no merits:

(a)	There was nothing to show C had adduced evidence at the trial of the SCT Case to prove (i) the price of a used suit jacket sold in a flea market or sold online, and/or (ii) the lowest price of a new suit jacket. The Jacket Price Documents were not part of C’s bundle of documents adduced for the trial of the SCT Case.
(b)	The CFI on an appeal from a decision of the SCT (if leave to appeal has been granted) “may not …… receive further evidence” (see section 29(2)(ii) of the SCTO).
(c)	More importantly, Ms Ho did not calculate or assess the quantum of loss of the Jacket by drawing on evidence as to the price of a used suit jacket or at all, and instead her finding was that C failed to discharge his burden of proof in establishing the amount of loss (see paragraphs 88-89 above).
(d)	I disagree with C’s reading/interpretation of Liu Kwok Chuen. In awarding nominal damages of $100 for the 4 converted items, DDJ Simon Ho did not consider the buying power of $100 as relation to the 4 converted items. Rather, he found (i) there was no objective evidence for the court to properly assess the values of the 4 converted items, and (ii) it was not proper to take the defendant’s allegations just on their face value, which findings grounded his token award of $100 to vindicate the defendant’s property right having been infracted (ie liability was established against the plaintiff for the 4 converted items) (see paragraph 86(c) above). This was even more clearly borne out by the learned judge’s decision not to award individual “nominal damages” for each of the 4 converted items: “126. In awarding the nominal damages, I did not award a token sum for each individual item of good or chattel converted in this case. As I see it, nominal damages is essentially symbolic and means a sum of money that may be spoken of but has no existence in point of quantity.  (Beaumont v Greathead (1846) 2 C.B. 494, per Manule J at 499). In my view, in reflecting the fact that the defendant has failed in his proof of damages, it does not seem particularly meaningful to award a separate token sum of nominal damages for each converted item. Otherwise, the more items of claim that he could have but fails to provide the necessary proof, the more token sums of nominal damages would be obtained by him irrespective of the actual worth of each converted item. 127. Speaking in terms of vindicating the claimant’s property right being infracted, I think so long as the court make clear what items of goods or chattels converted are covered by the award of the nominal damages in question, the purpose of awarding nominal damages can also be served without the need to award a separate token sum for each individual converted item.” (my emphasis)

92.  C next argued it was evident from the following quantifiable comparison between the SCT Case and Liu Kwok Chuen as explained in paragraph 79 above that Ms Ho’s award of $100 under the 26/2/21 Order was not “nominal”:

	SCT Case	Liu Kwok Chuen
Award / Claim percentage	7.02%	0.20%
Award / Court fee percentage	500%	7.9%

93.  I do not find C’s contentions in the above paragraph arguable. In my view, the distinction between small damages and nominal damages does not turn on the amount of the award. As explained in McGregor on Damages[29] (see also paragraph 84 above), a “token sum given for nominal damages is to be distinguished from a sum similar in amount which is awarded as compensation calculated for a trifling loss” (my emphasis). This clearly clarifies that the true nature of an award of damages does not turn on the amount. Whether an award of a small sum of a same/similar amount is small damages in one case or nominal damages in another turns on whether (a) it is compensation properly assessed, quantified and/or calculated by the court on the basis of sufficient evidence adduced to prove the amount of a trifling loss, or (b) it is a symbolic, arbitrary and/or token sum to vindicate the infarction of the claimant’s right (ie his success on the issue of liability) when necessary evidence as to the amount of loss has not been adduced or sufficiently proven. The exercise of arithmetical comparison of the quantum of awards in individual cases that C adopted in paragraphs 79 and 92 above was wrong in approach, and demonstrated misunderstanding as to the fundamental nature of and distinction between small damages and nominal damages. Here, it was plain from Ms Ho’s findings (see paragraphs 88-89 above) that the award of $100 under the 26/2/21 Order was nominal damages explained in (b) above.

94.  Further, although I agree with C the SCTO does not prescribe a minimum monetary threshold for the SCT’s jurisdiction in relation to monetary claims founded in contract, quasi-contract or tort, it is immaterial since the distinction between small damages and nominal damages (as explained in the above paragraph) turns on its true nature and not (as C alleged) on the amount or on the “buying power” of the amount.

95.  In my view, it was obvious from Ms Ho’s findings that the outcome of C’s claim in the SCT Case was the scenario in paragraphs 80(b) and 83 above (and not the scenario in paragraphs 80(a) and 82 above) with award of nominal damages and not small damages. Ground (a)(i) was unarguable and had no merits.

96.  Ground (a)(ii)  Under this intended ground of appeal, C claimed Ms Ho became functus officio upon delivery of her Oral Reasons and upon granting the 26/2/21 Order (which did not describe the award of $100 thereunder as nominal damages), so she erred in law by later describing such award in the Trial Reasons (and still later describing such award in the Review Reasons) as “nominal damages”. I am not persuaded such intended ground of appeal was arguable for C to be granted leave to appeal against the Cost Order:

(a)	C did not place the transcript of the Oral Reasons before this court to show Ms Ho did not refer to the award of $100 as “nominal damages” in her Oral Reasons to arguably demonstrate Ms Ho was functus officio as C alleged. Although Mr Yip’s written directions on 20 April 2021 and this court’s written directions dated 10 May 2021 (see paragraphs 41(c)-(d) and 45 above) concerned transcript of the proceedings at the Review Hearing on 13 April 2021, C would have known from such written directions he could have obtained transcript of hearings of the SCT Case upon application to the SCT and payment of prescribed fees.
(b)	The above discussions (see paragraphs 84-91 above) showed it was not the label/description of “nominal damages” but the substantive nature of the award of $100 under the 26/2/21 Order as found by Ms Ho that mattered. So even if one were to put aside the label/ description of “nominal damages” in the Trial Reasons (and in the Review Reasons), it was still plain and clear from Ms Ho’s findings (see paragraphs 27-28 of the Trial Reasons and paragraphs 60 and 88 above) that whilst C proved loss of the Jacket and D’s breach of duty, he failed to sufficiently prove the amount of loss, so Ms Ho could not have made any assessment, quantification and/or calculation of C’s loss and damages. It was obviously clear from Ms Ho’s substantive findings that the award of $100 was token/symbolic nominal damages rather than quantified/assessed small damages. Given Ms Ho’s findings, I find no escape from the conclusion that her award of $100 was nominal damages irrespective of any such label/description.
(c)	Indeed, C acknowledged he did prove and Ms Ho did accept he suffered loss of the Jacket, and he also understood inter alia he “could not produce receipt of the suit jacket ……”[30] Quite clearly, C knew he successfully proved loss of the Jacket, but failed to sufficiently prove the amount of his loss. Since assessment, quantification or calculation of loss was impossible, nominal damages was appropriately awarded to vindicate C’s success on the issue of liability.
(d)	As it was plain from Ms Ho’s findings that her award of $100 in C’s favour was actually nominal damages, any alleged failure by her to coin the label/description of “nominal damages” in the Oral Reasons (which failure C had not arguably demonstrated – see (a) above) would not have prevented her from describing such award as “nominal damages” in the Trial and/or Review Reasons for there was no spin or departure from her findings. The argument that Ms Ho became functus officio had no merit.
(e)	One had to draw a careful distinction between formal order (eg the 26/2/21 Order) and reasoned judgment (eg the Trial Reasons), the former was to set out the directive terms of the decision and the latter was to elaborate the reasons for the decision. It was sufficient for a formal order (ie 26/2/21 Order) to direct a party (ie D) to pay a monetary sum without describing its nature.

97.  Ground (a)(iii) In this intended ground of appeal, C submitted he was the successful (albeit not wholly successful) party in the SCT Case, and therefore should be entitled to his costs as per his revised statement of costs (C39) because costs would normally follow event unless there were exceptional circumstances to justify departure from such general rule. C suggested such general rule is set out in paragraphs 75-79 of my judgment in Lam Po Yee & anor v Dr Chan Yee Shing also known as Dr Chan Yee Shing Alvin,[31] and in paragraph 86 therein this court said as follows:

“…… Costs is a matter of discretion of the court. The starting point is that costs are to follow event. Hong Kong Civil Procedure 2018 states as follows:[32]

“A successful plaintiff who recovers more than nominal damages against the defendant should in normal circumstances have an order for costs against the defendant. ……”

Such starting point does not cease to apply simply because the successful party raises issues or make allegations on which he fails although in appropriate cases he may be deprived of any costs increased significantly because of failing such issues. As explained above, the burden is on the losing party to show there is good reason to depart from the general rule and to deprive a successful party of costs of his failure on a discrete issue which has significantly increased the costs. ……” (my emphasis)

C claimed Ms Ho desperately tagged/labelled the award of $100 under the 26/2/21 Order as “nominal damages” in the Trial Reasons (and later in the Review Reasons) so as to avoid/displace the above general rule as to costs.

98.  I should start with the general principles on the incidence of liability for costs applicable to cases in the SCT. It has been held that the guidance in the Elgindata principles (summarised in Lam Po Yee & anor in the above paragraph) are applicable.[33] In In re Elgindata Ltd (No 2),[34] Nourse LJ set out 4 principles governing the award of costs:

(a)	Costs are in the discretion of the court (“1st Elgindata principle”).
(b)	They should follow the event, except where it appears to the court that in the circumstances of the case some other order should be made (“2nd Elgindata principle”).
(c)	The general rule does not cease to apply simply because the successful party raises issues or makes allegations on which he fails, but where that has caused a significant increase in the length or costs of the proceedings he may be deprived of the whole or part of his costs (“3rd Elgindata principle”).
(d)	Where the successful party raises issues or makes allegations “improperly or unreasonably”,[35] the court may order him to pay the whole or a part of the unsuccessful party’s costs (“4th Elgindata principle”).

DHCJ Au-Yeung (as she then was) in Yu Wing Kei went on to explain that “[in] considering these principles under Re Elgindata, the Hong Kong Courts have emphasized again and again that (a) due and significant weight must be given to the general principle that costs should follow event and any departure from this rule must be treated with circumspection [2^nd Elgindata principle], and (b) it is important not to decide costs according to a score sheet on how many issues had gone one way or the other ……” (paragraph 8). Further, Bokhary PJ in Mariner International Hotels Ltd v Atlas Ltd (No 2) held that “[a] party seeking to displace the general rule that costs should follow event naturally bears the burden of showing that the circumstances justify the exceptional course of such displacement”.[36]

99.  In my view, bearing in mind the above principles, there was no merit to Ground (a)(iii). I repeat the discussions/conclusion in paragraph 96 above, and disagree there was any improper “tagging” or labelling of the award of $100 as nominal damages by Ms Ho. Indeed, quite irrespective of any “tag”, description or label, Ms Ho’s findings made clear that the award of $100 in the SCT case was in the nature of nominal damages (see paragraphs 88-89 above). Thus, C’s reliance on the general rule on costs on the basis that he was a successful claimant “who recovers more than nominal damages” (my emphasis) could not be supported.

100.  Ms Ho was correct that the starting point on the issue of costs would be section 24(1) of the SCTO (see paragraph 61 above). As explained in Yu Wing Kei (see paragraph 74 above), costs of proceedings in the SCT are in the discretion of the tribunal, and such discretion, like any other discretion, must be exercised judicially (see also the 1^st Elgindata principle).

101.  Where nominal damages are awarded, it has been said (a) the court or tribunal ought not exercise the discretion against the successful party except for some reason connected with the case,[37] but (b) “to deprive a claimant of their costs and to order them to pay those of the defendant in a case where they have been awarded nominal damages but have had no good reason for suing, is surely an exercise of the discretion for a reason connected with the case”.[38] Hong Kong Civil Procedure 2022 also stated that “[where] a plaintiff is successful on the issue of liability but recovers nominal damages only, the normal order for costs is in the defendant’s favour ……”[39] Thus, it is not unusual (or unknown) in a case where the claimant succeeds on liability but fails to sufficiently prove quantifiable or substantial damages (ie he recovers only token or nominal damages) for a cost order to be made for the claimant to pay costs to the defendant or, at least, for no order as to costs.

102.  The essential point that calls for consideration is who actually is the “successful party” (ie the real winner of the case) when only nominal damages are awarded. In Anglo-Cyprian Trade Agencies, Ltd v Paphos Wine Industries, Ltd, Devlin J said as follows:[40]

“No doubt, the ordinary rule is that, where a plaintiff has been successful, he ought not to be deprived of his costs, or, at any rate, made to pay the costs of the other side, unless he has been guilty of some sort of misconduct. In applying that rule, however, it is necessary to decide whether the plaintiff really has been successful, and I do not think that a plaintiff who recovers nominal damages ought necessarily to be regarded in the ordinary sense of the word as a “successful” plaintiff. ……”

Where the object of the claimant’s action is to establish a legal right that is wholly irrespective of whether substantial remedy is obtained (ie the situation referred to in paragraphs 80(a) and 82 above), there may still be room to argue that the claimant who recovers nominal damages in such scenario is to be regarded as the successful party. But C’s claim in the SCT Case was not such case (see paragraph 95 above). Rather, the award of $100 under the 26/2/21 Order in the SCT Case fell into the usual scenario that the claimant has effectively lost, ie being unable to effectively recover the quantum of damages he claims (see paragraphs 80(b), 83 and 95 above), such that “the awarding of nominal damages may be seen as a pointless exercise, given the courts’ powers and practice on costs”.[41]

103.  Alltrans Express Ltd v CVA Holdings Ltd[42] was a case in which the plaintiffs obtained summary judgment for breach of warranty, but was only awarded nominal damages of £2 even though they aimed to recover £82,500. The first instance court awarded costs to the plaintiffs, but it was reversed on appeal with costs ordered in favour of the defendants. The English Court of Appeal considered the defendants to be the real winner or the successful party even though the plaintiffs were awarded nominal damages, and they placed emphasis on the practical improbability of acceptance of a “ritual” payment into court.

104.  Stephenson LJ expressly approved Anglo-Cyprian Trade Agencies, Ltd even though it was not a case of nominal damages, and held that “what Devlin J said is of great weight and does apply forcibly to the facts of this case” (page 402). Stephenson LJ (with whom Griffiths LJ and Purchase LJ agreed) went on to say as follows (pages 401-403):

“…… I think that the weight to be given first of all to an award of nominal damages and secondly to the absence of any payment into court depends on all the circumstances of the case. ……

But the event of an award of £2 was not the event at which the plaintiffs were aiming. They were aiming at £82,500, and the mere fact that they ultimately got something – token or nominal damages – does not enable me to regard them as remaining successful plaintiffs.

……

…… To have paid £2, or possibly £5 or £10, into court in this case would have been very near to a “ritual” act. It would not have been taken out; the plaintiffs would have gone on with their mouth opened wider for a much larger sum; they did go on, having established a breach of contract, in the hope of getting a large sum of damages for that breach; in pursuit of that object they took up the time of the court and, more important from the point of view of this appeal, put themselves and the defendants to considerable expense over, as I have said, 15 working days; and at the end they came away empty-handed, because I cannot think that £2 in the hand disqualifies them from that description.”

As Griffiths LJ also said, “…… As a general rule a successful party is entitled to his costs, expressed by the lawyer’s phrase “costs follow the event”. Who was the successful party in the issue, or lis, tried by the judge in this case? Undoubtedly it was the defendants. …… The contest between the parties was whether the plaintiffs were entitled to more than nominal damages, and on this, the only issue tried by the judge, the defendants succeeded. …… A payment of nominal damages into court would have been wholly irrelevant to the lis, and in my view the absence of such a payment is no justification for regarding the plaintiffs as the successful party in the proceedings before the judge. The truth is that it was the defendants who were the successful party” (pages 403-404).

105.  These English authorities were considered and adopted as the proper approach in Hong Kong when considering which party is the successful party or the real winner when nominal damages have been awarded.[43]

106.  In Elpe International (Far East) Limited, a case in which nominal damages were awarded (page 11 and see paragraph 86(a) above), Bokhary JA (as he then was) in giving the decision of the Court of Appeal on costs said as follows:

“…… No premium should be put on a nominal and therefore ritual payment into court. So the courts do not proceed on the basis that a party who recovers anything, even if only nominal damages, is prima facie entitled to costs provided he is not confronted with a payment into court of as much or more than what he has recovered. Rather, the courts, looking at the realities, ask themselves the question, “who really won? And the matter then proceeds on the general rule which Lord Justice Nourse stated in these terms as the second of the four principles which he identified in his judgment in Re Elgindata Ltd (No 2) [1993] 1 All ER 232 at p237f: costs “should follow the event, except when it appears to the court that in the circumstances of the case some other order should be made.”

Lord Justice Nourse stated the third principle thus (ibid.): “The general rule does not cease to apply simply because the successful party raises issues or makes allegations on which he fails, but where that has caused a significant increase in the length or cost of the proceedings he may be deprived of the whole or a party of his costs.”

……

As a matter of reality, it seems to us that the defendant remains the real winner even with an award of nominal damages against it. But the defendant had taken up more time on issues on which it was wrong …… We reduce [the first instance] award to the defendant of half its costs below to one-third of its costs below.

As far as the costs of the appeal are concerned, this is the position. The defendant remains the real winner, because the litigation was really about money; the plaintiff sought substantial damages; and it has recovered nominal damages only. But once again, Lord Nourse’s third principle comes into play. The defendant raised and failed on two issues which between them caused a significant increase in the length and cost of the appeal. Those issues are: whether a VAR contract had been sent; and whether the plaintiff was entitled to even nominal damages.

And of course the plaintiff has managed to reduce the [first instance] award of costs against it. All things considered, we think that each party should be left to bear its own costs of appeal; and we leave them to do that.” (my emphasis)

107.  In Union Knopf (HK) Limited,[44] again a case in which nominal damages were awarded (see paragraph 86(b) above), DDJ R Lai (as he then was) approved the views of Jacob J in Hyde Park Residence Ltd v Yelland that “[a] plaintiff who recovers only nominal damages has in reality lost and in reality the defendant has established a complete defence to the entire claim” (paragraph 46).[45] As explained in paragraph 86(b) above, whilst the plaintiff in Union Knopf (HK) Limited succeeded in establishing the 1^st defendant’s breach of the blue-pencilled non-solicitation clause in his employment contract, it failed to adduce evidence to prove it suffered substantial damages, so only nominal damages of $100 were awarded to the plaintiff (ie the scenario in paragraphs 80(b) and 83 above). Thus, DDJ R Lai (as he then was) did not consider that the plaintiff’s claims against the 1^st defendant for breach of the restrictive covenants of the Employment Agreement after the restraint period had long expired was for a creditable purpose of protecting the plaintiff’s rights (ie the scenario in paragraphs 80(a) and 82 above). In the circumstances, the learned judge held as follows:

“51. …… The underlying objectives of the CJR as set out in Order 1A, rule 1 of the RDC [Rules of the District Court] include to promote a sense of reasonable proportion and procedural economy in the conduct of proceeding and to ensure that the resources of the court are distributed fairly. To encourage unnecessary litigation can hardly be considered as furthering the underlying objectives of the CJR.

52. The learned editors of the Hong Kong Civil Procedure 2014 Vol 1 pointed out in para 62/3/4 at p1117 that:

“Where a plaintiff is successful on the issue of liability but recovers nominal damages only, the normal order for costs is in the defendant’s favour.”

53. In the post-CJR era, a plaintiff recovers nominal damages shall prepare to bear the defendant’s costs unless the verdict for nominal damages is a means to establish, determine or protect a legal right. The plaintiff’s claim herein for breach of the restrictive covenants in the Employment Agreement was not such claim. The costs order relating to such claim should be in favour of the defendants.”

In that case, the plaintiffs failed to prove some other claims, but succeeded on still other claims for which the learned judge directed the defendants to account for the profits made by them (paragraphs 54-55). Taking into account the Elgindata principles (see paragraph 98 above), considering all the circumstances/evidence and adopting a practical/ pragmatic approach in assessing the plaintiffs’ costs entitlements and liabilities (paragraphs 55-57), DDJ R Lai (as he then was) found “the plaintiff’s costs entitlements and liabilities in this action will be about the same and an order of “no order as to costs” is a fair costs order in the circumstances of this case” (paragraph 57).

108.  Turning to the SCT Case, on (a) the findings by Ms Ho which led to her award of nominal damages of $100 in C’s favour under the 26/2/21 Order, (b) the aforesaid legal principles, and (c) a broad overview of the practical realities/justice of the matter, it is, in my view, plain and obvious that D should be treated as the real winner or successful party. The SCT Case was about money, and C hoped to recover substantial damages in the sum of $1,425 (or at least $1,200 for loss of the Jacket). But D succeeded on the contest as to whether or not C was entitled to more than nominal damages. In recovering only symbolic, token and/or nominal damages of $100, C ultimately failed to recover anything that was of real value to him, which was borne out by Ground (b) whereby C alleged the award of $100 under the 26/2/21 Order was insufficient even to cover the court fee, travelling expenses and postage he had incurred, ie it was not worth the effort to pursue C’s claim. In my view, Ms Ho was correct on the question of costs to take into account the fact that C failed to (i) sufficiently prove his claim for substantial damages (ie he only recovered symbolic, token and/or nominal damages), and (ii) prove his remaining claim for loss of the Necktie altogether (ie he only recovered partial judgment).

109.  With D being regarded as the real winner or the successful party in the SCT Case, the matter would proceed (as Bokhary JA (as he then was) said in Elpe International (Far East) Limited or indeed as C said) on the general rule that the winner is in general entitled to be paid his costs.[46] Here, D being the real winner or the successful party was prima facie entitled to her costs on such basis unless the circumstances of the SCT Case called for some other order to be made (see the 2^nd Elgindata principle referred to in paragraph 98(b) above). Ms Ho’s findings showed D disputed C’s claim on liability as well as on quantum but failed on the issue of liability. But the 3^rd Elgindata principle reminded that the general rule costs should follow the event in favour of the real winner or the successful party does not cease to apply “simply because the successful party raises issues or make allegations on which he fails” (see paragraph 98(c) above). The burden was on C (who wished to displace such general rule) to show that the circumstances justified such exceptional course, ie D as the real winner or the successful party failed on certain allegations and thereby “caused a significant increase in the length or cost of the proceedings” (see the 3^rd Elgindata principle and paragraph 98(c) above). Here, in displacing the general rule on costs in favour of D as the real winner or successful party,[47] and in arriving at the Cost Order that deprived D of the entirety (and not just part) of her costs of the SCT Case, Ms Ho must necessarily have accepted D was wrong on her contentions on the issue of liability, which contentions increased the length and cost of the proceedings in the SCT Case. It could not be said that Ms Ho failed to take into account her overall findings in the SCT Case (including D’s failure on the Necktie and on the issue of liability in relation to the Jacket – see paragraphs 50-59 above).

110.  Similar approach was seen in Tai Yip Dyeing Factory Limited (in Liquidation) v Kong Hoi Sang, which was an action for slander of title.[48] In that case, Saunders J held after trial that by attempting to register a writ by way of lis pendens against certain real estate owned by the plaintiff in circumstances where he was not entitled to register the writ, the defendant slandered the plaintiff’s title to that property (paragraph 1), so the learned judge made a declaration that the defendant’s attempted registration in the Land Registry of the writ against the plaintiff’s property was wrongful, and he awarded nominal damages in the sum of $100 together with costs in the plaintiff’s favour (paragraph 2). Saunders J held the plaintiff could not be said to be a successful claimant:

“17. In the present case the establishment of the right is in relation to something that has occurred in the past and will not occur again. The establishment of the right was an essential step in the progress towards the resolution of the issue of damages. In cases such as this, it is open to argument that the plaintiff who succeeds with a declaration and an award of nominal damages is not, to use the expression in Anglo-Cyprian, a successful plaintiff ……” (my emphasis)

But the learned judge went further “because, as Devlin J. said in Alltrans, it is necessary to examine the facts of each particular case” (paragraph 17). He noted (a) the plaintiff established a slander of title had occurred, and (b) the defendant did not make any concession, raising 3 lines of attack that eventually failed (paragraphs 18-19 and 21) and 2 other lines of attack based on the coincidence of subsequent events that eventually succeeded (paragraphs 20 and 25-26). Saunders J found the defendant’s conduct in choosing to resist liability (and not admitting his malicious falsehood and confining the conduct of his defence to the claim for damages) lengthened the trial (paragraphs 22-24), and was satisfied the proper order for costs should be no order as to costs (paragraph 27) on the basis that “[the plaintiff] has been successful in establishing its assertion that [the defendant’s] actions constituted a slander of title”, which “assertion …… was resisted right through trial”, but by “the coincidence of subsequent events [the defendant] has been successful in resisting the claim for damages” (paragraph 26).

111.  I bear in mind that costs is very much a matter for the discretion of the presiding adjudicator, who is the best person to exercise this discretion, and the appellate court should be very circumspect in interfering with it (see paragraphs 73-74 above). I am not persuaded it could be arguably suggested that in granting no order as to costs (ie the Cost Order) in the circumstances of the SCT Case Ms Ho’s exercise of discretion on costs was outside the guidance under the Elgindata principles and/or she erred in law in the manner alleged in Grounds (a)(i)-(iii). I see no valid basis for granting leave to appeal for intervention in respect of Ms Ho’s exercise of discretion on costs on such intended grounds.

112.  Ground (b)  Under Ground (b), C contended the award of $100 under the 26/2/21 Order would be insufficient to compensate him for what he had spent on court fee, travelling expenses and postage let alone to cover the cost to him in taking annual leave for 4 court attendances in the SCT Case. I find no merit in this intended ground of appeal. The award of $100 under the 26/2/21 Order was by nature “nominal damages” to vindicate C on the proven loss of the Jacket when he failed to adduce evidence to sufficiently prove the amount of such loss. Such award of $100 was not meant to be compensation for C’s incurred costs and disbursements, and C attempt to draw the comparison as he did was flawed.

113.  Ground (c)(i)  By this intended ground of appeal, C claimed Ms Ho erred in law by taking into an irrelevant matter, ie Ms Ho said at the end of her delivery of the Oral Reasons that C failed to prove his case, so there was no order as to costs. C did not provide the transcript for the Oral Reasons and/or for the proceedings at the hearing on 26 February 2021 to show Ms Ho said as he alleged so as to demonstrate this intended ground of appeal was arguable. This was important because C’s allegation flied against Ms Ho’s findings which C did not disagree. Ms Ho found C had proved the loss of the Jacket and D’s liability for such loss (see paragraphs 51-59 above), but found C failed to sufficiently prove his claimed quantum of damages in respect of the lost Jacket (see paragraph 60 above). In granting the Cost Order, Ms Ho took into account C’s failure prove the substantial damages he claimed (ie he was only awarded nominal damages) (see paragraph 31 of the Trial Reasons and paragraph 62 above).In my view, apart from C’s bare assertion in Ground (c)(i), there was simply no arguable basis to say Ms Ho ignored her own findings in favour of C on the issue of liability and instead she claimed C to have failed to prove his case entirely (even though in practical/ pragmatic terms D rather than C was the successful party or the real winner in the SCT Case – see paragraphs 97-111 above), I am not persuaded Ground (c)(i) is an arguable ground of appeal.

114.  Ground (c)(ii)  C claimed Ms Ho took into account another irrelevant matter in granting the Cost Order, ie that at the beginning of the trial on 22 February 2021 Ms Ho said the trial would proceed as C did not apply to change the name “Peggy Lai” on the Lai SW, but C had never applied to amend the Lai SW, so C claimed Ms Ho appeared to have thought (a) the name “Peggy Lai” on the Lai SW was “wrong”, and (b) C failed to summons Lai to give evidence to collaborate his case. C then referred to the 2 attempts to serve Lai SW (see paragraphs 11-20 and 27(b) above), and claimed he had done whatever he could to discharge his duty to prove his case.

115.  I am not persuaded this is an arguable ground of appeal against the Cost Order:

(a)	C did not provide this court with the transcript of the proceedings at the trial on 22 February 2021, and was therefore unable to arguably demonstrate that at “the beginning of the trial” Ms Ho said the trial would proceed because C did not apply to change the name “Peggy Lai” on the Lai SW. It is not enough for C to merely say (as he did in the Leave Submissions) that Ms Ho had not denied she had made such observation as he alleged.
(b)	But even if Ms Ho said so (which this court do not accept in view of (a) above), it was merely to point out the Lai SW as it was (ie addressed to “Peggy Lai”) had not been served, but the trial would nevertheless proceed without further effort by C to arrange for Lai to attend trial as his witness (eg changing name on the Lai SW and re-serving the summons). In my view, there was no arguable basis to suggest Ms Ho formed the view the name “Peggy Lai” was wrong, and even less basis to infer Ms Ho thought C was at fault in failing to summons Lai as witness. Lai was C’s intended witness, and there was no arguable basis to say Ms Ho was privy to any fact or information that showed whether the name “Peggy Lai” on the Lai SW was “wrong” or not, or that would lead her to surmise that such name was wrong. At best, Ms Ho’s observation said to have been made at the beginning of the trial (but see the reservation in (a) above) was merely to underline the fact that the trial would proceed despite the status of the Lai SW, and the trial did proceed on 22 February 2021.
(c)	In any event, whether or not Ms Ho made the observation as C alleged was immaterial because there was simply no arguable basis to surmise that Ms Ho thought C failed to summons Lai to give evidence at the trial to collaborate his case. On the contrary, even in the absence of Lai as C’s corroborating witness at the trial, Ms Ho found in favour of C on the issue of liability, and Ms Ho even drew adverse inference against D for not calling Lai to give evidence on whether she was aware C had left the Jacket at the office and whether she had the conversations with C as he alleged, or for failing to credibly explain why she did not call Lai as witness to rebut C’s case.
(d)	As alluded to in (b) above, even if Ms Ho made the observation as C alleged at the beginning of the trial (but see the reservation in (a) above), such observation was directed to why the trial would proceed despite non-service of the Lai SW, but it was not a factor Ms Ho took into account in arriving at her findings on the disputed issues (see (c) above) and/or in granting the Cost Order. As explained in paragraph 62 above and the discussions in relation to Grounds (a)(i)-(iii) and (c)(i) above, Ms Ho’s reasons for granting no order as to costs was not because C failed to prove the entirety of his claim at all (but he did fail to prove his claim for loss of the Necktie), but rather he succeeded in establishing liability and failed to prove substantial damages (ie he was awarded nominal damages) for loss of the Jacket.

116.  Ground (d)(i) For this intended ground of appeal, C claimed Ms Ho erred in law in failing to take into account D’s conduct “inside the courtroom”, ie D chose to actively resist his claim by filing a defence to deny liability, and by adducing documentary/witness evidence against his case. C reminded that D denied the existence of the White Bag at trial, which added further dimension to the trial and further issue for determination.

117.  In my view, Ground (d)(i) had no arguable merits. As seen in the discussions in relation to Grounds (a)(i)-(iii) above, D was the real winner or the successful party in the SCT Case, and under the general rule was entitled to costs of the proceedings, ie C should pay D’s costs (see the 2^nd Elgindata principle and paragraphs 98(b) and 109 above). But on the basis of her findings, including C’s success on the issue of liability (ie the loss of the Jacket and D’s breach of duty) and D’s failure on such issue, which necessarily increased the length and cost of the proceedings, Ms Ho deprived D of her costs such that C (who had failed to prove his claim in respect of the Necktie and who had effectively lost his claim albeit having been awarded nominal damages) was not required to pay D’s costs at all (see the 3^rd Elgindata principle and paragraphs 98(c) and 109 above). In such circumstances, bearing in mind that costs were very much a matter of Ms Ho’s discretion (see the 1^st Elgindata principle and paragraph 98(a) above) and the CFI should be circumspect in interfering with the same unless it was wrong in principle or plainly wrong (see paragraphs 71-74 above), I see no arguable basis for saying Ms Ho’s cost decision as properly understood and explained above was arguably either wrong in principle or plainly wrong.

118.  But C went on to suggest D did not conduct her defence in a reasonable manner, and it was implicit from Ms Ho’s rejection of D’s defence on liability that D lied. Presumably, C was trying to pray in aid the 4^th Elgindata principle (see paragraph 98(d) above) that where the successful party raises issues or makes allegations “improperly or unreasonably”, the court may order him to pay the whole or a part of the unsuccessful party’s costs. But I disagree with C’s suggestion that it was arguably implicit from Ms Ho’s findings that D’s conduct of her defence was unreasonable and/or that she lied. The relevant findings of fact were that (a) C left the Jacket at D’s Office and D’s staff Lai knew about this (see paragraph 19 of the Trial Reasons and paragraph 58 above), and (b) under the law of bailment D became an involuntary bailee who “有責任真誠地及合理謹慎地為[C]保管[Jacket]” since D’s staff Lai was found to have been aware that the Jacket was left at D’s Office (see paragraph 24 of the Trial Reasons and paragraph 59 above). Thus, Ms Ho found against D on the above 2 matters on the issue of liability on the basis of D’s implied/vicarious knowledge through her staff Lai that the Jacket was left at D’s Office, and not because Ip herself had lied. Significantly, Ms Ho made the following finding that “本案未有足夠證據證明[D]實際、明知或故意棄置了[C]之個人物品” (see paragraph 20 of the Trial Reasons and paragraph 59 above). Deliberate lying is a serious matter, but there was no express finding that D lied, and in my view also no justifiable basis for such implication from Ms Ho’s findings. I find there was no arguable basis to invoke the 4^th Elgindata principle to have D pay all or part of C’s costs, and there was no merit in C’s suggestion it would have been a crucial factor for Ms Ho’s exercise of discretion on costs that D lied.

119.  Ground (d)(ii) For this intended ground of appeal, C claimed Ms Ho erred in law in failing to take into account 2 aspects of D’s conduct “outside the courtroom”.

120.  First, it was suggested D must have obstructed service of the Lai SW on Lai because her law firm was the “sole occupant” of the New Office and she must be held responsible for the BAs being told there was “no such person”. In the Leave Submissions, C claimed this had been raised in his letter dated 10 February 2021 to the SCT (see paragraphs 16-17 above), but Ms Ho “has not denied she had not adjudicated by herself the matter raised in [C’s] letter dated 10 February 2021”, so it was for the CFI “to consider whether the conduct of [D] outside the Court Room should be considered when making an order for costs”.

121.  I do not accept this amounted to any arguable point of law for appeal. As seen in paragraphs 15-17 above, there were factual differences as to the accounts given in the BA’s affirmation of non-service and in C’s letter dated 10 February 2021 to the SCT as to the 2^nd attempt on 9 February 2021 to serve the Lai SW. C claimed Lai was present to answer the door but when Lai heard the BA said he/she was there to serve the Lai SW, Lai went back to the Office and closed the door, and then a Mr Ho came out to send the BA away (see paragraph 16 above), but the BA’s affirmation of non-service did not mention about Lai answering/ closing the door and only stated that on arrival at the New Office the BA was informed by a Mr Ho there was no “Peggy Lai” (see paragraph 15(a)-(b) above). It was, however, common ground that Lai was not at the New Office (and could not be served) when C, the BA, his supervisor and the police later gained entry to the New Office. The CFI could not receive evidence and make factual findings on appeal (see section 29(2) of the SCTO), so it not for the CFI to make findings to determine the relevance of D’s conduct “outside the courtroom” for making an order for costs.

122.  Anyway, in my view, the non-service of the Lai SW (and D’s involvement in relation thereto, if any) had no material impact on the outcome of the SCT Case because Ms Ho (a) drew adverse inference against D for not calling Lai as witness to give evidence as to whether she was aware that C had left the Jacket at the Office and whether she had the conversations with C as C alleged, or for failing to credibly explain why Lai was not called to rebut C’s case (see paragraph 58 above), (b) found as a fact Lai was aware that C had left the Jacket at D’s Office (see paragraphs 19 and 24 of the Trial Reasons and paragraphs 51-58 above), and (c) held there was no evidence D’s staff (which necessarily included Lai) took any steps to keep the Jacket in proper custody (see paragraph 24 of the Trial Reasons and paragraph 59 above), and as a result Ms Ho determined the issue of liability in C’s favour (ie the Jacket kept at the Office was lost and in relation thereto D was in breach of her duty as involuntary bailee and hence liable for such loss).

123.  Further, on the matter of costs, Ms Ho granted no order as to costs notwithstanding that under the general rule costs should follow event (and I have explained that D was in fact the real winner or the successful party for such purpose) (see the 2^nd Elgindata principle and paragraphs 98(b) and 109 above). The 3^rd Elgindata principle provides that the general rule does not cease to apply simply because the successful party (ie D in the SCT Case) raises issues or makes allegations on which he fails, but if he has caused significant increase in the length or cost of the proceedings he may be deprived of the whole or a part of his costs (see paragraphs 98(c) and 109 above). Here, Ms Ho in depriving the entirety and not just part of D’s costs plainly must have considered D’s overall conduct in the SCT Case had significantly increased the length and cost of the proceedings. In my view, there was no arguable basis to suggest Ms Ho was wrong in principle or plainly wrong in granting such Cost Order.

124.  Secondly, it was said that Ms Ho failed to take into account D’s refusal (despite Ms Ho’s suggestion at the PTR on 20 January 2021) to have Lai make a witness statement, which deprived Ms Ho of crucial evidential material for the exercise of her judicial function. I disagree this would raise any arguable point of law for appeal. It is for each party to decide whether or not to call witness to support his/her case or to rebut the other party’s case, and a party has no duty to call witness to bolster the other party’s case. Plainly, D (who was a qualified solicitor and who, according to C, had heard what Ms Ho said at the PTR) decided not to call Lai to give evidence, so she had to face the consequences of her decision, ie Ms Ho drew adverse inference against her for failing to call Lai as witness to give relevant evidence or for failing to credibly explain why Lai was not so called, and went on to find the issue of liability in C’s favour and to deprive D of the entirety her costs even though in the end she was the real winner or the successful party in relation to the Jacket and also defeated C’s claim in relation to the Necktie. In any event, neither C as opposing party nor Ms Ho as presiding tribunal should compel D to call or not call Lai as her witness (and/or consequently to file or not file Lai’s witness statement).

125.  Ground (e)  For this intended ground of appeal, C claimed Ms Ho in granting the Cost Order failed to take into account the award of $100 under the 26/2/21 Order had beaten D’s settlement offer made at the PTR on 20 February 2021, ie D’s offer to pay C $1 on condition that C and D would pay each other’s costs, bearing in mind D’s claimed costs ($14,983) exceeded C’s claimed costs ($2,110.50). But, again, I do not find this to be an arguable point of law for appeal.

126.  Ms Ho stated in the Review Reasons she understood C did not accept D’s settlement offer of $1, and did not indicate willingness to accept such offer as final settlement of C’s claim including claim for costs (see paragraph 63 above), so I proceed on the basis that D did make such settlement offer. But Ms Ho must be correct that C did not accept the offer, otherwise there would not have been any trial and/or any grant of the 26/2/21 Order.

127.  I have explained that the real winner or the successful party in the SCT Case was D and not C. As explained in Alltrans Express Ltd (and adopted by Bohkary JA (as he then was) in Elpe International (Far East) Limited), the court looks at the realities to ask itself who really won, and would not put weight on any ritualistic payment into court (or, in the present context, “ritualistic” settlement offer) by the defendant (see paragraphs 101-104 and 106 above). As Stephenson LJ said, “[to] have paid £2, or possibly £5 or £10, into court in this case would have been very near to a “ritual” act. It would not have been taken out; the plaintiffs would have gone on with their mouth opened wider for a much larger sum; they did go on …… in the hope of getting a large sum of damages ……” (pages 402-403 and see paragraph 104 above). In my view, such observations had resonance in respect of D’s “ritual” offer of $1 in the SCT case, and little weight should be attached to D (ultimately the real winner or the successful party) having made such offer when (as Ms Ho noted) it would not have been accepted by C who would have gone on to seek a much larger sum, and C did go on in the hope of getting substantial damages. The fact C ultimately got token or nominal (and not quantified or assessed) damages ($100) when he aimed for substantial damages ($1,425 or, at least, $1,200 for the Jacket) would not have made him a successful claimant.

128.  Further, consistent with the 2^nd and 3^rd Elgindata principles (see paragraph 98(b)-(c) above), Ms Ho plainly took note that C only enjoyed nominal damages (which meant D was the real winner or the successful party) and that she must also have taken into account D’s overall conduct in the SCT Case that increased the length and cost of the proceedings in depriving D the entirety and not just part of her costs. In my view, there was no arguable basis to suggest Ms Ho had erred in law (ie wrong in principle or plainly wrong) in granting the Cost Order, and I find there is no merit to Ground (e).

129.  Ground (f)  For this intended ground of appeal, C claimed Ms Ho did not in the Review Reasons deny the parties were not given opportunity to address her on the issue of costs after her delivery of the Oral Reasons on 26 February 2021. Actually, in paragraph 20 of the Review Reasons, Ms Ho refuted such allegation and stated that “[C]在向[Ms Ho]作訟費申請時其實已有機會作出其認為有關的陳述, [Ms Ho]亦已考慮[C]的各項訟費申請” (see paragraph 63 above). Further, C did not provide the transcript of the proceedings at the hearing in 26 February 2021 to this court to demonstrate the arguability of his contention. In my view, Ground (f) had no arguable merits.

130.  Summary on Cost Order  For all of the above reasons, I am unable to detect any arguable error of law in Ms Ho granting the Cost Order. Nor could it be said that Ms Ho’s findings were irrational or her exercise of discretion on costs either wrong in principle or plainly wrong. I see no arguable basis to suggest any palpable error for granting leave to appeal against the Cost Order.

131.  Having come to such conclusion, it is unnecessary for me to go on to consider C’s intended grounds of appeal against the 13/4/21 Order / Review Reasons. As explained in paragraph 77 above, even if C were able to successfully challenge the 13/4/21 / Review Reasons, it would not have availed him as there was no arguably viable basis to challenge or disturb the primary Cost Order. This was in line with C’s stance in the Application that essentially he sought leave to appeal against the Cost Order. But for the sake of completeness, I shall briefly consider C’s intended grounds of appeal against the 13/4/21 Order / Review Reasons.

132.  C contended Ms Ho erred in law in granting the 13/4/21 Order in that:

(a)	Ms Ho had no power to grant the 13/4/21 Order (ie to dismiss the Review Application for C’s failure to attend the Review Hearing and to order the 26/2/21 Order do stand) on 13 April 2021 (ie 46 days after the 26/2/21 Order) when section 27A(1) of the SCTO only conferred power on the adjudicator to review the award or order “within 14 days from the date of an award or order or made by him” (“Ground (g)”).
(b)	Ms Ho had no jurisdiction to “dismiss” C’s Review Application due to C’s absence at the Review Hearing on 13 April 2013 and to order the 26/2/21 Order “do stand” because the SCTO (including section 27A thereof[49]) and the Small Claims Tribunal (General) Rules Cap 338A (“SCTGR”) (including rule 6A thereof[50]) do not confer power on an adjudicator to dismiss an application for review by reason of the applicant’s absence:
	(i)	section 27A of the SCTO required Ms Ho to determine the Review Application by confirming, varying or reversing the cost order under the 26/2/21 Order, and not simply to order the 26/2/21 Order “do stand”[51] (“Ground (h)(i)”);
	(ii)	rule 6A of the SCTGR was inapplicable to any application for review since the review procedure is also available to a defendant who does not have any claim to be struck out even if he is absent at the hearing, but even if rule 6A of the SCTGR would confer power on Ms Ho to “dismiss” the Review Application as she would think just, Ms Ho erred in law as her dismissal of the Review Application was not a just one (“Ground (h)(ii)”).
(c)	alternatively, even if Ms Ho could rely on section 26A of the SCTO or had inherent jurisdiction to set her own rules and thereby dismiss the Review Application if C failed to attend the Review Hearing on 13 April 2021, C could not have complied with her directions made on 9 April 2021 and sent by post to C by way of a letter dated 12 April 2021, which letter C did not receive until 15 April 2021, ie 2 days after the Review Hearing on 13 April 2021 (“Ground (i)”).

133.  Grounds (g) and (h)(i)-(ii) essentially contended Ms Ho had no jurisdiction to grant the 13/4/21 Order to “dismiss” the Review Application and to order the 26/2/21 Order “do stand”. In my view, such contentions would not have aided C because if the 13/4/21 Order were a nullity for want of jurisdiction, the Cost Order would still stand, and (as seen in paragraphs 78-130 above) leave to appeal would not have been granted as the Cost Order did not suffer from any arguable error of law. Thus, I will deal with Grounds (g), (h)(i) and (i) briefly below. There is no need for me to deal with Ground (h)(ii) as the Review Application was made under section 27A of the SCTO (see Forms 8B/8C and paragraph 27-28 above), and Ms Ho did not rely on rule 6A of the SCTGR.

134.  Ground (g)  C’s Review Application (Form 8C) was filed and the SCT’s Notice of Review of an Adjudicator on the Application by a Party (Form 8B) was issued both on 5 March 2021, ie well within the prescribed period under section 27A(1) of the SCTO. In my view, the 14-day time limit under section 27A(1) of the SCTO was the applicable period for C to invoke the SCT’s review jurisdiction by filing Form 8C, and the SCT exercised the power conferred by section 27A(1) of the SCTO by issuing Form 8B. The aforesaid 14-day time limit was not the applicable period for hearing/determining the application for review. This is borne out by section 27A(1) of the SCTO itself which provides that the adjudicator may, on a review of an award or order, “re-open and re-hear the claim wholly or in part and may call or hear fresh evidence”, ie the adjudicator will have the same powers at the review as he/she has at the trial. Re-opening and re-hearing the whole or part of the claim as well as calling or hearing fresh evidence can hardly happen within 14 days of the award or order under review, especially if the applicant chooses to file his application for review at the tail-end of the 14-day period from the date of the award or order. Under C’s interpretation (ie the review must be determined within the 14-day period), the adjudicator’s powers expressly conferred under section 27A(1) would become circumscribed by time constraints, which in turn would mean that the adjudicator’s other procedural powers (eg adjourning the case to allow further evidence to be adduced, directing that further witness statements to be prepared or further discovery to be made, issuing summons to existing/fresh witnesses) will also be restricted as a result of such time constraints. Further, on C’s contention, all decisions as to (a) payment into the tribunal, (b) giving of security or otherwise and/or (c) transfer of the hearing/consideration of the review to another adjudicator under section 27A(3)-(4) of the SCTO (which decisions should logically be made before determining the review) and the review proper itself (which may entail the adjudicator exercising the powers conferred under section 27A(1) of the SCTO and/or other procedural powers as aforesaid) would have to happen within 14 days from the date of the award or order. In my view, C’s interpretation of section 27A(1) of the SCTO could not be supported as it reflected incorrect understanding of its ordinary meaning, and it would also render such statutory provision practically unworkable and the legislative intent futile. Whilst I do not disagree with C’s suggestion that one of the legislative intents of the SCTO is for “the daily life disputes of small claim nature must be disposed of quickly”, the legislation would not have intended such haste as to make its provisions practically unworkable.

135.  The aforesaid proper understanding of section 27A(1) of the SCTO was borne out in a case C cited, ie Fairview Park Property Management Ltd v Lee Yuen-yau.[52] In that case, the claimant was the manager of the Fairview Park Estate, and the defendant was the owner of a property on that estate. The manager complained that the defendant committed breaches of covenants, and consulted solicitors for advice followed by correspondence with the defendant and his solicitors. A writ was issued in the District Court. Later, all the alleged breaches were rectified, and the proceedings were not pursued. The claimant incurred legal fees in the sum of $2,610, and sought to recover such legal fees against the defendant in the SCT. The adjudicator found in favour of the claimant on 16 May 1986. After his decision, the adjudicator had second thoughts, and on 23 May 1986 he gave notice of his intention to review his decision.[53] On 10 June 1986, the adjudicator set aside his decision on 16 May 1986 and proceeded to implement his intention to review by giving directions (see footnote 53 above), which included (a) granting an order that the claim made on 16 May 1986 be set aside, (b) giving leave for the claimant to amend his claim form, (c) waiving service of the amended claim form, and (d) adjourning the claim to a date to be fixed by the SCT officer for hearing or otherwise. But before the adjudicator sat in review, the defendant took the claimant to a judge (ie Hooper J) on appeal (see footnote 53 above). Liu J in Lee Yuen-yau v Fairview Park Property Management Limited summarised the procedural history as follows:[54]

“The learned judge [Hooper J] concluded that the Adjudicator had acted prematurely in overturning his own previous decision [see (a) above] before the determination of the intended review [see (d) above]. The appeal was allowed and proceedings were restored and transmitted back to the Adjudicator who, I am told, on the 21^st January, this year [ie 1987], held a full review of his decision and came down in favour of the management company.” (my emphasis)

This was echoed on appeal by Hunter JA who said as follows:[55]

“…… The claim took a somewhat chequered course before the [SCT]. The first adjudication on 16^th May was in the respondent’s favour. The adjudicator then sought to review it but got himself into procedural difficulties which had to be corrected on appeal by Hooper J. A full review then followed and was completed on 21^st January 1987. The adjudicator then found that the respondent had committed four specific breaches of covenant; that the claimants had incurred the legal costs claimed in order to enforce the said covenants; and that such costs were recoverable from the claimant as damages. He gave judgment for the claimant for $2,160 in respect of the said fees, $300 for a collection charge payable pursuant to the deed, and $308 expenses before the [SCT].” (my emphasis)

Although the power of review on the adjudicator’s own motion was exercised on 23 May 1986, which was well within the 14-day period from the date of his decision on 16 May 1986, the review was not completed and the review decision was not made until half a year later on 21 January 1987 because the review was adjourned to enable the claimant to amend his claim form, to await the outcome of the appeal to Hooper J and to conduct the full review. The adjudicator’s review decision was allowed on appeal by Liu J but was restored by the Court of Appeal with no criticism that the adjudicator had no jurisdiction to conduct the review outside the 14-day period.

136.  C then drew attention to section 11A of the Lands Tribunal Ordinance Cap 17 (“LandsTO”) as follows:

“(1) The Tribunal may, within 1 month from the date of any decision by it, decide to review that decision and, on such grounds as it may think sufficient, may set aside, reverse, vary or confirm it.

......

(3) If the Tribunal shall have decided, within 1 month from the date of any decision, to exercise its power of review in respect thereof, such power may be exercised at any time thereafter whether within such period of 1 month or otherwise.

(4) The Tribunal may, in any review, hear and receive any evidence, if it thinks fit for the purpose of determining the issue between the parties.

……” (my emphasis)

C claimed that, unlike the Lands Tribunal (“LandsT”) which was expressly empowered by the LandsTO to exercise its power of review beyond the period of 1 month, the SCT enjoyed no such jurisdiction after expiry of 14 days from the date of the award or order. C further argued that jurisdiction could not be conferred on Ms Ho by the issuance of the Form 8B on 5 March 2021.

137.  I disagree. C filed the Review Application (ie Form 8C or “the application of a party for a review under this section” as referred to in section 27A(4) of the SCTO) on 5 March 2021 well within 14 days from the date of 26/2/21 Order (see paragraph 27 above). The power to review was exercised by issuance of the notice in prescribed form to all other parties under section 27(2)(b) of the SCTO, ie Form 8C issued on the same day on 5 March 2021 (see paragraph 28 above). But the regime under the LandsTO was quite different for the LandsT has to first decide whether or not to review within 1 month from the date of decision (see section 11A(1) of the LandsTO), and it is only if the LandsT decides within that 1 month to exercise the power to review that such power may thereafter be exercised. There is no such requirement under section 27A of the SCTO for the adjudicator to decide within a specified period whether or not to review, and instead the power of review is exercised by the issuance of Form 8B. So there is no need for any statutory provision (as in section 11A(3) of the LandsTO) as to the exercise of the power to review after the tribunal decides “ within 1 month from the date of any decision, to exercise its power of review”. There is no merit to this argument.

138.  Ground (i)  In my view, Ground (i) is also unarguable. Plainly, the SCT (including Mr Yip and Ms Ho) had case management powers to decide whether to deal with the Review Application by oral hearing or paper disposal. Section 37 of the SCTO provides that “[where] no provision is made by [the SCTO] or rules made under section 36, the practice and procedure in the [SCT] shall be such as the [SCT] may determine, either generally or in any particular proceeding”. In Chow Kwong Wah Oliver v Pasche Hans-Joachim, A Chung J held as follows:[56]

“36. 申請人在本申請指，由於覆核聆訊並不涉及新證據或論據，審裁處不應進行聆訊，而應以書面陳述方式處理。

37. 是否以聆訊方式處理覆核申請，屬審裁處酌情權範圍。以本申請而言，申請人在聆訊時所作的口頭陳述，前後長達約1個半小時。他在陳述完結前表示，本席在他發言期間從未發問，令他感覺聆訊過程並不公平。依此可以推論，假如審裁處當時改為僅以書面陳述方式處理他的覆核申請，申請人極可能感覺司法程序更為不公。

38. 故此，審裁處的處理方式，亦不涉及與法律問題相關的錯誤。……”

Here, given that C raised 5 grounds for review in respect of the Cost Order (see paragraph 27 above) and that the SCT had invited D to respond thereto (see paragraph 29 above), it was unsurprising that Mr Yip on 9 March 2021 declined C’s request on 8 March 2021 for “paper disposal” of the Review Application (see paragraphs 30-31 above). By 15 March 2021 D responded to indicate she would oppose the Review Application (see paragraph 33 above), so it was again unsurprising that the SCT wrote to inform D that on 19 March 2021 Mr Yip had directed C’s application for “paper disposal” of the Review Application be refused (see paragraph 34 above). On 26 March 2021, the SCT again wrote to the parties to remind them the Review Hearing would be heard at the SCT on 13 April 2021 and to ask them to note the venue and time of hearing (see paragraph 35 above). When D wrote to the SCT on 29 March 2021 to ask to be excused from attending the Review Hearing (see paragraph 36 above), Ms Chu by written directions to D warned that the SCT might make such order as it thought fit if D failed to attend the Review Hearing (see paragraph 36 above). I cannot say there was any arguable error of law in requiring oral hearing of the Review Application in the first place, in declining C’s request for “paper disposal”, and in reiterating the scheduled oral hearing. To seek leave to challenge such case management decisions, there must be arguable basis for demonstrating the “very high hurdle” that such case management decisions were clearly wrong (see paragraph 75 above), and I am not satisfied C had demonstrated such basis.

139.  More importantly, the parties were already notified as early as on 5 March 2021 by Form 8B that there would be an oral hearing of the Review Application at the SCT on 13 April 2014. Thus, C and D were required to appear at the Review Hearing on 13 April 2021 to prosecute or to oppose the Review Application unless the SCT expressly granted any subsequent order to vacate the oral Review Hearing on 13 April 2021 in favour of paper disposal of the Review Application. This explained why on 31 March 2021 Ms Chu by written directions warned D that the SCT might make such order it thought fit if D failed to attend the Review Hearing (see paragraphs 36 and 138 above). Thus, quite irrespective of the developments during 8-31 March 2021 referred to in paragraphs 29-37 and 138 above, the SCT never granted any directions to vacate the oral Review Hearing on 13 April 2021, and all its written directions were consistent with maintaining the oral Review Hearing on 13 April 2021 as already directed.

140.  C claimed that after he wrote to the SCT on 31 March 2021 to submit his 5-page Review Submissions to support the Review Application and to ask the SCT to excuse him for not attending the Review Hearing (see paragraph 37 above), he did not receive Ms Ho’s written directions of 9 April 2021 that refused his “[application] for being absent” at the Review Hearing until 2 days after the review hearing on 13 April 2021 (see paragraph 38 above). But in my view, whether C received such written directions before or after the Review Hearing was neither here nor there. As explained in the above paragraph, in the absence of any express order/directions by the SCT for revoking and/or vacating the oral Review Hearing, the directions and requirement by the SCT for oral hearing in Form 8B as affirmed in the SCT’s written notice dated 26 March 2021 were still valid and effective (see paragraphs 28 and 35 above). In my view, Ground (i) had no merits.

141.  Ground (h)(i)  As regards the suggestion that Ms Ho had no jurisdiction to “dismiss” the Review Application and to order the Cost Order “do stand” due to C’s absence and that she was required under section 27A of the SCTO to determine the same by confirming, varying or reversing the Cost Order, I again see no merit in this argument.

142.  C referred to Hooper J’s judgment in Fairview Park Property Management Ltd in support of Ground (h)(i). As explained in paragraph 135 above, on 23 May 1986 the adjudicator in that case gave notice of his intention to review his decision on 16 May 1986 in favour of the defendant, and on 10 June 1986 he set aside the decision made on 16 May 1986 and granted directions to implement his intention to conduct a full review. It was in such particular context that the defendant argued that the adjudicator’s directions made on 10 June 1986 were outside the jurisdiction of the SCT in that (a) section 27A of the SCTO “empowered no jurisdiction for an adjudicator to order that the Claim Form II be amended” and the adjudicator’s powers on review were confined to those granted by virtue of section 27A of the SCTO, and (b) the adjudicator had no power to waive service of the amended claim. But Hooper J did not think there was anything in such jurisdiction point because once the adjudicator decided to re-open the matter he would have power to amend the claim and to waive service of the amended claim. However, Hooper J accepted that strictly speaking the adjudicator should first conduct the review after re-opening and re-hearing the claim (which review the adjudicator adjourned by his directions made on 10 June 1986 pending amendment of the claim form) before he would decide whether or not to reverse his previous order of 16 May 2016 and in effect to set it aside, even though it was apparent to Hooper J from “the other orders that [the adjudicator] made [on 10 June 1986] that the real intention was to exercise his power of review and reopen the matter and to determine the claim after further consideration”. But in the SCT Case, Ms Ho never adjourned the Review Hearing scheduled on 13 April 2012 (whether for amendment of the claim form or for any other reason). The parties knew the Review Hearing on 13 April 2012 was scheduled for the review proper, but C as applicant did not attend such Review Hearing to prosecute his Review Application which was the very application before Ms Ho that day. There was no putting the cart before the horse as in Fairview Park Property Management Ltd in the sense of prematurely unholding the 26/2/21 Order before the review proper itself. I am not persuaded Fairview Park Property Management Ltd took C’s contentions about lack of jurisdiction any further.

143.  Further, section 27A(1) of the SCTO provides that the adjudicator “may” re-open and re-hear the claim wholly or in part, “may” call or hear fresh evidence, and “may” confirm, vary or reverse his previous award or order. Thus, the adjudicator has the discretion on how to review, and in my view he can dismiss the review application, which naturally and obviously means the previous award or order continues to stand and is thereby confirmed.

144.  On this, I draw analogy with section 31(1)-(2) of the Labour Tribunal Ordinance Cap 25 (“LTO”) which is in similar terms as section 27A(1)-(2) of the SCTO:

“(1) Except where a party has filed an application for leave to appeal and does not agree to withdraw the application, a presiding officer may, within 14 days from the date of an award or order given or made by him, review the award or order and on such review may re-open and re-hear the claim wholly or in part and may call or hear fresh evidence and may confirm, vary or reverse his previous award or order.

(2) The power conferred by subsection (1) may be exercised –

(a) by a presiding offer of his own motion, on notice in the prescribed form to all parties;

(b) on the application of a party within 7 days, on notice in the prescribed form to all other parties.”

145.  In Yung Mei Chun Jessi v Merrill Lynch (Asia Pacific) Limited,[57] the applicant sought to review (a) the decision of the presiding officer on 25 July 2011 that dismissed her application to disqualify him and (b) the refusal by the presiding officer to restore an application for review due to her sickness. The presiding officer considered her application an abuse of process (as she had sought to review every decision by the presiding officer and to put forth repetitive grounds), and dismissed the applicant’s application without hearing her. At issue was whether the Labour Tribunal (“LT”) has jurisdiction to dismiss the applicant’s application for review. DHCJ Au-Yeung (as she then was) said as follows:

“80. …… According to section 31(b) LTO [should be section 31(2) of the LTO], a presiding officer has the discretion to review or not. According to 張建明v. 源昌棧紙業有限公司HCLA109/2003, at para 24 a presiding officer may review the whole or part of his decision; and the Ordinance did not prescribe how he should deal with it.[58] According to 周廣華v. Paschehans-Joachim HCSA2/2010, at para 37, a presiding officer has the discretion to decide whether or not the review should be conducted by way of an oral hearing. ……” (my emphasis)

Whilst the factual context and the reasons for dismissal of a review may be different in different cases and may not necessarily be borrowed in other cases, the above clearly shows that on the matter of fundamental jurisdiction the LT (and by analogy the SCT) has jurisdiction to dismiss a review where appropriate. Even though the applicant in that case claimed that review was the parties’ fundamental statutory right, especially when the reviews were all on different subjects, DHCJ Au-Yeung (as she then was) found the presiding officer had correctly directed himself on the law, and rightly dismissed the applicant’s application.

146.  I therefore disagree with C’s contention under Ground (h)(i) that Ms Ho was confined by section 27A of the SCTO to determine the Review Application only by confirming, varying or reversing the Cost Order. In my view, section 27A of the SCTO did not prescribe how Ms Ho should deal with the Review Application, and I do not agree she had no jurisdiction or discretion to dismiss the Review Application and/or to order the Cost Order “do stand”. In any event, even if I were wrong, the court will consider the substance and not the semantics of the 13/4/21 Order. Plainly, by dismissing the Review Application and ordering the Cost Order “do stand”, Ms Ho was in effect confirming the Cost Order, and the 13/4/21 Order did not travel outside the ambit of section 27A of the SCTO. There is no merit to Ground (h)(i).

147.  Further, section 26A of the SCTO provides as follows:

“Where the [SCT] directs a party to comply with an order within a specified time and the party fails to do so, the [SCT] may dismiss the claim or counterclaim filed by the party, stay the proceedings or enter judgment against the party, as the case may be, on such terms as it thinks just.” (my emphasis)

Once the power of review is exercised, the adjudicator will be able to exercise the power under section 26A of the SCTO. Here, even if one would put aside for the moment Ms Ho’s written directions of 9 April 2021 (see paragraph 38 above), the SCT by the Form 8B (see paragraph 28 above), Mr Yip’s written directions dated 9 March 2021 (see paragraph 31 above) and the SCT’s written notice dated 26 March 2021 (see paragraph 35 above) firmly directed C and D to attend the oral Review Hearing at the SCT on 13 April 2021 (which directions had never been revoked and which Review Hearing had never been vacated), but C failed to attend the Review Hearing on 13 April 2021 to prosecute his Review Application (see paragraphs 138-140 above). There was clearly jurisdiction to enter judgment against C on the Review Application, ie to dismiss such application, for his absence at the Review Hearing, in which event the Cost Order would inevitably “do stand”. Ms Ho plainly relied on the jurisdiction in section 26A of the SCTO because she noted in paragraph 14 of the Review Reasons that C did not apply under section 32A of the SCTO to set aside the 13/4/21 Order which was made in his absence (see paragraph 63 above).

148.  But apart from disputing jurisdiction for granting the 13/4/21 Order, C’s Leave Submissions raised other contentions to say Ms Ho erred in law in granting the 13/4/21 Order and giving the Review Reasons:

(a)	C’s letter dated 31 March 2021 to the SCT (received by fax on 1 April 2021) (see paragraph 37 and footnote 2 above) was not “asking for leave for [his] absence but was seeking understanding for [his absence]”, so Ms Ho erred in saying (i) the SCT “在發給[C]日期為2021年4月12日之信件[see paragraph 38 above]中, 向[C]發出指示, 拒絕[C]要求缺席其覆核判決申請之聆訊 ……” and (ii) before the Review Hearing on 13 April 2021 “[C]並無首先確定[SCT]就他要求缺席該聆訊之指示及答覆” because C did not apply to be excused from attending such review hearing, and it was a poor attempt to shift the blame on C (“Ground (j)”).
(b)	Ms Ho erred in law because Mr Yip refused C’s application for paper disposal of the Review Application “before [Ms Ho] was officially assigned to sit for the Review hearing” (“Ground (k)”).
(c)	Ms Ho on 9 April 2021 directed that if C did not attend the hearing on 13 April 2021 the Review Application would be dismissed with costs if applicable, and such direction was given effect to by the 13/4/21 Order that ordered C’s Review Application be dismissed for C’s failure to appear at such hearing. This was the only reason for granting the 13/4/21 Order to dismiss the Review Application, ie C’s absence at the Review Hearing and not the merits of the Review Application. But Ms Ho must determine the merits of the Review Application before she could dismiss the Review Application and confirm the Cost Order (“Ground (l)”).
(d)	Ms Ho’s dismissal of the Review Application on 13 April 2021 was unlawful, and the Review Reasons were an impermissible attempt to turn such unlawful dismissal into reasoned determination after she became functus officio (“Ground (m)”).

149.  Ground (j)  I have dealt with Ground (j) in paragraphs 138-140 above, and see no basis for C to say there was any shifting of blame to C by Ms Ho. As explained above, the SCT required an oral hearing Review Hearing and refused C’s application for paper disposal, which directions were never revoked and which meant C was required to personally attend the Review Hearing to prosecute his Review Application.

150.  C’s letter dated 31 March 2021 stated inter alia as follows:

“As I have nothing to submit other than the enclosed one, my attendance at the Review hearing becomes unnecessary. To save my cost and the Court’s time, please kindly excuse me for not attending the hearing of 13 April 2021. I should be grateful if you would let me have your written decision by post.” (my emphasis)

In my view, in saying that his presence at the Review Hearing was unnecessary, in asking to be excused for attending the Review Hearing, and in requesting for the eventual written decision, C was essentially seeking leave from the adjudicator not to attend the Review Hearing and re-newing his already refused application for paper disposal notwithstanding the SCT’s directions all along that maintained an oral Review Hearing which, unlike the ex-parte Application, was an inter partes hearing for the inter partes Review Application. In my view, Ms Ho was correct to describe C’s letter dated 31 March 2021 in the following terms in the Review Reasons:

“[C]在其發給[SCT]日期為2021年3月31日之信件中，附上就其[Review Application]所作之書面陳詞，並表示由於他並無其他陳詞，因此不需要出席聆訊，要求[SCT]容許他不出席2021年4月13日之聆訊及以郵寄方式向他發出書面裁決。”

In my view, Ms Ho also properly understood the practical effect of C’s letter dated 31 March 2021 and replied accordingly by her directions dated 9 April 2021 as follow:

“Application for being absent in the 8C Application hearing, fixed on 13 April 2021, be refused. If Claimant does not attend the hearing, his application for review will be dismissed, with costs if applicable”,

she also correctly described her above directions in the Review Reasons as follows:

“11. [SCT]在發給[C]日期為2021年4月12日之信件中，向[C]發出指示，拒絕[C]要求缺席其[Review Application]之聆訊，並指出如果[C]不出席該聆訊，其[Review Application]將被撤銷，[SCT]亦在適當時會發出訟費命令。”

151.  On such analysis, there was no shifting of blame to C. In any event, even if C merely sought understanding for his absence at the Review Hearing, it would not have availed him because unless otherwise expressly directed by the court, he would have to attend the oral Review Hearing to prosecute the inter partes Review Application, failing which he would have to bear the consequences of his non-attendance. I find ground (j) had no arguable merits.

152.  Ground (k)  For this intended ground of appeal, I am also persuaded there were no arguable merits. Section 27A(1) of the SCTO expressly provides it is the adjudicator of “an award or an order given or made by him” who may review such award or order. This is echoed in section 27A(5) of the SCTO which provides that “[an] adjudicator may transfer the hearing and consideration of a review to another adjudicator who shall have all the powers and functions he would have if he had originally heard the claim and had prepared the record of proceedings”. Thus, section 27A of the SCTO statutorily provided for Ms Ho to hear the review pursuant to the Review Application without need for any express assignment and no directions were ever granted for transfer of the review proper to another adjudicator. All that was needed was the issuance of Form 8B to notify the parties the Review Hearing would be heard at the SCT on 13 April 2021. In any event, as explained in paragraphs 138 above, the SCT (including Mr Yip) had power under section 37 of the SCTO to deal with its own practice and procedure, so Mr Yip had power to grant his written directions dated 9 March 2021 to refuse C’s application for “paper disposal” of the Review Application (see paragraph 31 above).

153.  Ground (l)  In my view, Ms Ho did dismiss the Review Application by reason of C’s failure to attend the Review Hearing on 13 April 2021. This was apparent from the 13/4/21 Order and the Review Reasons (see also paragraph below). For reasons explained in paragraphs 141-147 above, there was no straightjacket requirement under section 27A of the SCTO, as C suggested, that Ms Ho must determine the merits of the Review Application before she could “dismiss” the same. I am not persuaded Ground (l) amounted to any arguable ground of appeal.

154.  Ground (m)  In my view, Ground (m) reflected a misunderstanding of the Review Reasons, and was not an arguable ground of appeal. First, C did not provide the transcript of the proceedings at the Review Hearing on 13 April 2021 to demonstrate that upon granting the 13/4/21 Order she became functus officio vis-à-vis the Review Reasons. Secondly, I do not accept C’s suggestion that dismissal of the Review Application was unlawful (see paragraphs 141-147 and 153 above). Thirdly, paragraph 13 of the Review Reasons set out the terms of the 13/4/21 Order, and paragraph 21 of the Review Reasons firmly echoed the 13/4/21 Order that the Review Application was dismissed due to C’s absence at the Review Hearing on 13/4/21. Fourthly, paragraphs 1-13 of the Review Reasons set out the procedural background that led to the Review Hearing on 13 April 2021, and paragraphs 15-19 of the Review Reasons (see paragraph 63 above) set out the concerns that exercised Ms Ho notwithstanding C’s grounds for review (as supported by the Review Submissions) and that Ms Ho considered would require C to allay by way of oral submissions at the Review Hearing in order to overcome or reverse the Cost Order, but as C was absent at the Review Hearing (and therefore unavailable to assist Ms Ho by addressing such concerns) Ms Ho dismissed the Review Application (see paragraph 21 of the Review Reasons and paragraph 63 above). In my view, Ms Ho did not stray into any functus officio territory. Fifthly, I have particularly dealt with Ms Ho’s concerns in paragraphs 18-19 of the Review Reasons for which she required oral addresses from C (see paragraph 63 above) when I discussed Grounds (a)(i)-(iii) and (e) above, and find no arguable merits as to C’s contentions in relation to these intended grounds of appeal. For all such reasons, Ground (m) is not arguable.

155.  Last but not least, I note Grounds (j)-(m) sought to attack the 13/4/21 Order / Review Reasons. But as explained in paragraphs 77 and 131 above, these intended grounds of appeal (even if they were arguable which I disagree) would not have aided C as the Cost Order was unassailable. Any successful effort to set aside the 13/4/21 Order / Review Reasons would still leave the Cost Order standing as I have found there was no arguable basis to reverse or challenge the Cost Order.

VI.  CONCLUSION

156.  The intended appeal against the Cost Order has no prospect of success. Even if the intended appeal also attacks the 13/4/21 Order (given the various grounds/submissions that C raised in relation to the 13/4/21 Order / Review Reasons), still there was no arguable basis for this court to grant leave to appeal. In all the circumstances, the Application is dismissed, and there be no order as to costs.