A WORKSHOP COMMUNICATIONS LTD v. TAM HEUNG MAN

HCSA 46/2017

[2018] HKCFI 332

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

SMALL CLAIMS TRIBUNAL APPEAL NO 46 OF 2017

(ON APPEAL FROM SMALL CLAIMS TRIBUNAL CLAIM

NO SCTC 7133 OF 2017)

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JUDGMENT

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I. INTRODUCTION

1.  The claimant (“C”) was/is a public relation (“PR”) service provider. By an oral agreement in early November 2016, the defendant (“D”) engaged C to provide PR services (“Services”) from 5 November to 19 December 2016 (“Service Period”) for D’s 4-person team (“Team”) (one of whom was Yeung Chi Leung Raymond (“Yeung”)) for the accountancy subsector in the 2016 Chief Executive Election Committee Subsector Elections (“Elections”) for a service fee of $100,000 (“Fee”).

2.  On 15 November 2016, at D’s request, C emailed to D a written agreement based on the aforesaid oral agreement. Subsequently, D requested C to correct the subject title of such written agreement. On 1 December 2016, D paid C the initial instalment of the Fee in the sum of $50,000 (“1^st Instalment”). On 5 December 2016, C emailed D the corrected written agreement, but D did not sign the same. On 11 December 2016, the Team was successfully elected.

3.  On 4 January 2017, D gave C a cheque dated 3 January 2016 for the balance instalment of the Fee (“2^nd Instalment”) in the sum of $50,000 (C88, “Cheque”), and C issued a receipt for the Team to declare their election expenses. The Cheque was dishonoured for being “out of date”.

4.  On 9 January 2017, D sent whatsapp messages to C’s director Gloria Ho (“Ho”) that “the cheque I have to your partner the other day bounced as the date is out-of-date. I will deposit another cheque to your bank’s account” and “must be I put Jan 2016” (C87). In short, D claimed the Cheque was dishonoured due to her clerical error, and D also promised to deposit a replacement cheque for the 2^nd Instalment into C’s bank account, but she did not do so.

5.  At 12:46pm on 19 January 2017, Ho issued a whatsapp message asking D to “[pls] settle the balance $50,000 at your earliest convenience” (C90). Later on the same day, D’s assistant (議員助理) Wong Yuk Ling (“Wong”) sent a whatsapp message to C as follows: “在是次選舉工程中, 你們的工作安排只能達到我們要求的一半, 是在水準以下, 很多相關的工作都要譚議員代勞, 她非常不滿貴公司的工作和效率, 相信閣下都有同感, 有可能你不是選舉工程的專才, 故請65折收費, 譚議員亦樂意繳付餘下的$15,000, 並會於7天內存入閣下戶口 ……” (C90).

6.  C claimed she met with D on 20 January 2017, and D was only willing to pay a further sum of $35,000 for the Services, which proposal C rejected. Thereafter, Yeung deposited $5,554.38 into C’s bank account being his share of the Fee.

7.  On 21 February 2017, C commenced SCTC7133/2017 (“SCT Case”) in the Small Claims Tribunal (“Tribunal”) against D to claim for outstanding balance of the Fee in the sum of $44,445.62 (ie the 2^nd Instalment of $50,000 less payment of $5,554.38 received from Yeung).

8.  D denied the claim, and on 28 April 2017 filed her Statement of Defence. D claimed Ho’s sister Lauren Ho introduced Ho to her. D further claimed that after meeting Ho she considered Ho was “…… not really up to the standard for the PR work”, but nevertheless decided to engage C for the Services and told the Team she would be responsible for the Fee. The written agreement C emailed D on 15 November 2016 “incorrectly stated as for “Medical” profession, instead of Accountancy profession. [D] found this quite a careless mistake for a PR firm to use incorrect profession in the Agreement”. On 5 December 2016, C emailed D the corrected written agreement, but “[D] did not sign the contract as [D has] found [C] did not render the services adequately in a professional manner and most importantly not in accordance with the Agreement”. D claimed she was dissatisfied with C’s services, so during the Service Period she sought and C agreed to reduce the “photo-taking cost” from $10,000 to $8,000. D further claimed that during the Elections she complained about C’s poor services as detailed in her Statement of Defence. D agreed she was prepared to pay $35,000 to settle the matter, but C refused such proposal. D also alleged C should not have asked Yeung for payment, and should not have declined to provide a statement of services rendered.

9.  On the same day, D filed her Counterclaim. D reiterated the averments in her Statement of Defence, and alleged C failed to render or deliver the Services in the manner as agreed. As summarised in the Reasons referred to in paragraph 15 below, “[D]的案情則是, [C]提供的選舉公關服務貨不對辦, 有多項工作達不到合約的要求, 因此, 她額外付出了時間和人手作出補救。[D]指稱, 這些額外付出的人手和時間, 總值$40,000元有多[ie $40,649.38]。另外, [D]也指團隊另一成員[Yeung]支付了[C]的金額中有$554.38元是多付了, 因此也要求[C]退回這筆款項給[D]”.

10.  On 26 May 2017, C filed its Defence to Counterclaim to deny D’s allegations and to aver C had satisfactorily performed its Services. On 26 June 2017, D filed her Reply to Defence to Counterclaim to deny C’s allegations, and to assert D had to do most of the work personally and had to spend time and money to mitigate her loss.

11.  On 7 September 2017, D applied to the Deputy Presiding Officer (“DPO”) for leave to adduce expert evidence from Liz Liu (廖麗濤, “Liu”) as “公關專家證人” (ie PR expert witness) to “提供「公關」報告, 並以經營一個完整的選舉活動為原則及可證明「公關」在選舉委員會選舉中一般的工作範疇及理想的做法為證, 並會圍繞以下範疇作供 ……”[1] On 8 September 2017, the DPO gave written directions that “有關專家證人口供事宜留待聆訊當天處理”.

12.  On 12-13 September 2017, the trial of the Case was heard by the DPO (“Trial”). The DPO first dealt with D’s application to adduce expert evidence, but dismissed such application after hearing arguments.

13.  I should point out the written submissions of Mr Deng, counsel for D, stated that D’s application to adduce PR expert evidence was made on 7 July 2017, and complained that such application “was only considered on the first day of trial [ie 2 months later] despite [it] being made as early as 7 July 2017”. But in fact such application was made on 7 September 2017 that was just 5 days (with an intervening weekend) before the Trial.[2] There was no delay at all on the part of DPO, and any criticism to such effect was without merit.

14.  At the Trial, C called Ho and Yeung as witnesses. D herself gave evidence, and also called Antonio Luk (陸靈中, “Luk”) whom C engaged to provide some of the Services during the Service Period and Wong to give evidence on her behalf. The DPO considered there were 2 issues in dispute at the Trial: (a) “[D]對[C]貨不對辦的指控是否成立?”, and (b) “如果成立或者部份成立, [D]的損失是甚麼? 賠償金額應該是多少?”.

15.  On 3 October 2017, the DPO (a) granted judgment in favour of C against D for the sum of $44,445.62 and costs in the sum of $464 with interest on both sums at judgment rate from the date of judgment until payment and (b) dismissed D’s Counterclaim (collectively, “Judgment”), and the DPO also gave brief oral reasons for the Judgment. On 22 November 2017, the DPO handed down his written Reasons for Judgment (“Reasons”).

16.  On 10 October 2017, D lodged an Application for Leave to Appeal on Point of Law (“Application”) for leave to appeal against the Judgment. On 4 December 2017, JCC Cheung & Co filed Notice to Act for D. On 12 January 2018, D filed her Amended Application for Leave to Appeal on Point of Law (“Amended Application”). At the hearing of the Application on 18 January 2018 (“Hearing”), Mr Deng confirmed D would not rely on any of the grounds originally specified in the Application.

II.   FINDINGS IN THE REASONS

17.  Agreement As to the agreement between C and D for provision of the Services for payment of the Service Fee (“Agreement”), the DPO made the following findings of fact in the Reasons:

“17. 第二個相關事項, 是本案服務合約的範圍。雙方雖然沒有簽訂書面合約, 但雙方沒有爭議的是有文件C62至C64(即一份只有[C]代表簽名, 沒有[D]簽名的協議書)。這個協議書列出予各項[C]會提供的選舉公關服務, [D]一方亦都有根據此協議書的內容, 指[D]未能做到合約的要求。因此, 本席接納這份協議書內所列出的服務項目為今次合約的範圍。

……

19. 基於以上討論, 本席在處理[D]貨不對辦的指控時, 只會以未簽名的協議書 …… 列出的項目作為服務範圍, ……” (my emphasis)

18.  Mr Deng referred to the document in C62-64 as the “Term Sheet” being the corrected written agreement that D did not sign as referred to in paragraphs 2 and 8 above. For convenience, I shall adopt Mr Deng’s abbreviation. The Term Sheet stated as follows:

“本公司曾於2008及2016年的立法會選舉, 為功能組別 – 醫學界的候選人出任選舉公關, 對於選舉條例及選舉公程均有深入認識及經驗。本司提供的選舉公關服務包括:

1. 選舉條例咨詢及聯絡選舉主任辦公室

2. 以代理人角色, 為候選人處理及遞交選舉文件(不包括郵費): ……

3. 團隊形象顧問 ……

4. 團隊選舉公關 ……

服務時間: 由2016年11月5日至2016年12月19日。(投票日11/12後一星期)

服務收費: 譚香文團隊須支付HK$100,000.- 港幣十萬元正

其他服務, 費用按性質及時問另行收費:

團隊宣傳 ……

……

付款方法:

第一期 : 請於18/11/2016 支付50% HK$50,000.- 港幣五萬元正

第二期 : 請於18/12/2016 支付50% HK$50,000.- 港幣五萬元正

……” (my emphasis)

19.  In my view, the DPO did not find the entirety of the Term Sheet to be part and parcel of the Agreement. Rather, it was the DPO’s finding that the items of Services listed in the Term Sheet (that set out the scope of the Services to be rendered by C) to be part of the Agreement. There was no finding that the words at the beginning of the Term Sheet (which D refused to sign) as italicised in paragraph 18 above (“Words”) were either a contractual term or warranty.

20.  Contractual performance  The DPO found C’s prior oral “promises” to enhance D’s image/reputation were “mere puffs” which did not form part of the Agreement. As to the required performance of the Services within the scope discussed in paragraphs 17-19 above, the DPO made the following findings:

“16. …… 本案的合約是服務合約, 根據《服務提供(隱含條款)條例》第5條, [C]須以合理程度的謹慎及技術作出服務。換句話說, 服務的標準不是完美, 只要是以合理程度的謹慎和技術作出的就可以了。

……

19. 基於以上討論, 本席在處理[D]貨不對辦的指控時, 只會 …… 用合理程度的謹慎和技術作出服務, 作為服務標準。”

21.  Breach of Agreement?  In paragraphs 20-34 of the Reasons, the DPO rejected D’s various complaints in relation to C’s services. Mr Deng drew particular attention to paragraphs 25 and 30 of the Reasons which dealt with the 3^rd and 7^th complaints as follows:

“25. 第三個指控是有關[D]要額外付出$6,000元代郵寄選舉報的費用。根據書面協議書列出的服務內容, [C]要負責投寄三份宣傳刊物範本, 以及在指定郵局投寄選舉郵件。[D]的指控是, [C]「似乎並不熟悉程序, 幸好我們(即[D])����用另一公司Magic Production負責, 要多耗費6,000元」(見文件D0，第(三)段) 。另外，在文件D38第46(e) 段，[D]就表示「但只得選舉代理人[Luk]一人之力是難於應付，而[C]又不增加人手。蘇家豪(這位是Magic Production的員工)恐怕萬一出錯會影響選情, 所以設計及印刷好選舉郵件後, 便將兩份指定郵局投寄的選舉聲明書交予[Luk]簽署,然後安排郵寄」。至於[Luk]的供詞(見文件D59 第16段)則指,「我跟印刷公司的負責人Billy So傾過，他說他就郵寄選舉郵件有經驗, 只要我在相關的表格C17及C18簽妥了名, 他可代勞到郵局辦理相關的申請及投寄手續」。很明顯, 無論是[D]抑或[Luk], 都不是說[C]拒絕或者未能把郵件送到郵局郵寄, 他們二人的證供只是說, 是Magic Production的蘇先生主動代勞。更奇怪的是, 蘇先生的書面供詞是沒有提及為何他要收取[D]$6,000元,處理這項工作。基於以上幾點, 本席裁定[D]這項指控不成立。

……

30. 第七個指控, 是有關[C]只派出[Luk]作為負責街站宣傳的[C’s]員工或者是����請的人士, 而[Ho]是沒有參與(見文件D0 第(七)段、D4第13(c)、(d)、(m)及(n) 段、D8第10-13段、D21第4(d)段)。這個指控本席不接納。合約方是[C]這間公司, 不是[Ho]本人, 合約亦沒有指定[C]要派出那一位員工提供服務, 或者做街站宣傳。[D]沒有提出任何說法, 指由於只有[Luk]一人, 所以街站宣傳方面出了亂子。另外, 合約服務範圍是「派員陪同候選人擺街站」, 而並不是要[C]一手包辦街站所有事宜。因此, [D]自己有另外����請臨時工幫手做街站宣傳, 與是否符合合約要求沒有關係。”

22.  In paragraph 35 of the Reasons, the DPO concluded “最後, 是[D]在文件D20至D22指出了多個[C]未能按合約做好這次服務的內容, 這些指控大部份已經在之前的討論提到。其餘的指控, 本席認為都只是[D]自己覺得[C]做的工作並非物有所值, 不值得$100,000元這個費用。但本席不可以代雙方重新訂立合約, 尤其是代價方面。本席考慮了本案雙方提出的證據以及理據, 認為[C]已經做了的工作是以一個合理程度的謹慎和技術作出”. The DPO gave 2 further examples to illustrate the above conclusion in paragraphs 35-36 of the Reasons.

23.  The DPO also noted in paragraph 37 of the Reasons that D failed to adduce evidence on some of her complaints: “另外, 就一些[D]不滿的地方, 例如是沒有政治分析或提供選舉策略, [D]是沒有提出證據, 指[D]有向[C]投訴過, 但[C]仍然沒有改善”.

24.  For all the above reasons, the DPO “不認為[C]的服務在這些方面是有未達標準的地方”.

25.  Damages The DPO did not deal with the issue of damages and related matters as he found no breach of the Agreement between C and D.

26.  PR expert evidence  In refusing D’s application to adduce expert evidence from Liu, the DPO gave the following reasons:

「(a) [D]同意文件D17、D18係雙方就住呢個服務嘅協議內容嘅文件證據, 喺法律上, 法庭只要詮釋呢份文件, 就可以決定雙方協議嘅服務內容是甚麼, 有否呢個所謂提升形象或指係知名度呢個嘅要求。

(b) 而[D]想證明嘅係[C]未能夠提升佢嘅團隊嘅形象、知名度等等¸但係呢一個係有關事實方面嘅層面, 因為如果呢個係[D]嘅指控, 法庭只需要[D]或者佢嘅團隊接受[C]提供服務前同埋後, 佢哋嘅形象同理知名度嘅客觀嘅數據或者係一啲嘅證據即可, 不需專家嘅證供。

(c) 所以而家[D]申訴加入專家證供, 係同案件看來係無相關嘅。

(d) 至於[D]有提過, 佢話[C]嘅[Ho]冇親自提供今次嘅公關服務, 呢個就係牽涉雙方個協議要咁樣做, 呢個亦都係事實方面嘅證供, 亦都唔係專家證供嘅範疇。

(e) 最後, 至於[D]就話對方([C]一方), 職員又好, [C’s][Ho]又好, 對方冇做一啲例如係訓練等等嘅指控, 呢個亦都係法律層面嘅問題, 可以根據香港法例第457章《股務提供(隱含條款)條例》嚟到去判斷嘅。」

III.   INTENDED GROUNDS OF APPEAL

27.  The Amended Application set out 6 intended grounds of appeal. According to Mr Deng, 3 were primary grounds of appeal:

(a) Jurisdiction (item 6 of the Amended Application) – whether on proper construction of D’s Counterclaim which “complained in effect that [C] had negligently provided services amounting to a breach of the implied term of reasonable skill and care in the provision of services pursuant to s.5 of the Supply of Services (Implied Terms) Ordinance, Cap. 457 [“SSITO”]”, such complaint amounted to repudiation of the Agreement that “would enable [D] to rescind the Agreement and entitle her to refund of the $50,000 already paid to [C]”, which together with D’s claim for “damages arising from the repudiatory breaches of the Agreement” in the sum of $40,649.38 would result in a total monetary counterclaim of $90,649.38 that would fall outside the jurisdiction of the Tribunal in the absence of waiver of the excess by D;

(b) Words (item 1 of the Amended Application) – whether the DPO having “接納這份協議書內所列出的服務項目為今次合約的範圍” failed to construe or properly construe the Term Sheet as containing “express representations of warranty as to the quality of service to be provided, namely, [the Words]”, and “erred in law in finding that the test for whether reasonable skill and care in the provision of services was only pursuant to s.5 of the [SSITO] as applied to the present case and not the express terms as contained in the Term Sheet”; and

(c) Expert evidence (item 2 of the Amended Application) – whether the DPO erred in law and wrongly exercised his discretion in refusing D’s application to adduce expert evidence from Liu (i) to provide evidence on industry standards/practice “as to what a reasonable service provider for an Election Committee election campaign [PR] services provider, having 8 years of experience in providing [PR] services for election campaigns and possessed in‑depth knowledge and expertise in relation to election laws, and election campaigning, would provide”, and (ii) “to enable the Court to establish the relevant standard of care and skill in the [PR] services industry serving a client in an Election Committee election campaign, in respect of each and every item of work expressly agreed upon, namely, the items set out in Paragraphs 2, 3 and 4 of the Term Sheet and including Other Services …… (for example, the requirements under paragraphs 2f) and 2h) in relation to postal of election materials requirements and declarations therein) ……”, and in doing so erroneously disabled himself from (1) determining the standard of service as required by the oral agreement by reference to the Words which could only be properly construed with the aid of such expert evidence, or alternatively (2) considering the test in Bolam v Friern Hospital Management Committee[3] by comparing C’s impugned conduct with the ordinary skill of an ordinary competent PR company exercising that particular art in the context of PR and campaigning services for candidates in an Elections campaign, and assessing whether the implied term of reasonable skill and care in the provision of services was breached in light of such expert evidence.

28.  D raised 3 other intended grounds of appeal which Mr Deng conceded at the Hearing were dependent upon the intended grounds in paragraph 27(b)-(c) above:

(a) cumulative breaches (item 3 of the Amended Application) – whether the DPO failed to consider as a matter of law the cumulative effect of the manner in which “the contracted services were or were not provided in the present case” had the effect of breaching the implied term that C as the supplier would carry out the Services with reasonable care and skill, and whether “providing such negligent and sub-standard services …… amounts to a repudiatory breach of contract”;

(b) mitigation of loss (item 4 of the Amended Application) – whether the DPO’s findings that C was not in breach of contract “because [D] had obtained alternative service providers on her own volition and without providing an opportunity to [C] to do so, or had performed the services on her own without complaint”[4] were irrational and perverse in that “at all material times, [D] was not under any obligation to monitor, supervise or press for the performance of the Agreement which [C] had contractually agreed to, but was required as a matter of law to take such steps to mitigate her loss and damage upon repudiatory breach of contract or breach of warranty”; and

(c) construction (item 5 of the Amended Application) – whether the DPO in concluding at paragraph 30 of the Reasons that the requirement in paragraph 4d) of the Term Sheet of “派員陪同候選人擺街站” did not require more than 1 worker erred in law in that he failed to (i) apply usual canons of construction for proper construction of such provision since the ordinary meaning of “派員” could/did incorporate the plural and “must be construed as providing more than one worker”, and the purposive construction of “派員” in the context of an election campaign would require the contracting party to provide a reasonable number of PR officers to accompany each candidate at each street booth, and (ii) consider whether C’s arrangement to only send 1 worker to assist in the street booth was in breach of the implied term of reasonable skill and care in the provision of the Services under the agreement.

IV.   LEGAL PRINCIPLES

29.  Appeal Section 28 of the Small Claims Tribunal Ordinance Cap 338 (“SCTO”) provides that leave to appeal may be granted by the Court of First Instance 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 Tribunal. The threshold onus on the applicant is to show that the intended appeal has arguable grounds of appeal.

30.  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 Court of First Instance 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 Tribunal on questions of fact, or (ii) receive further evidence.

31.  It is trite that findings of fact by the Tribunal 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.[5]

32.  Bokhary PJ in Kwong Mile Services Ltd v Commissioner of Inland Revenue said:[6]

“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 ……”

33.  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.[7] 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.[8]

34.  Further, Order 55 rule 7(7) of the Rules of the High Court (“RHC”) provides that the Court of First Instance 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.

35.  Duty to investigate  Hearings at the Tribunal are conducted in an informal manner (section 16(1) of the SCTO). The presiding officer may summon any witnesses and require the production of any document, record, book of account or other thing, which is relevant in any proceedings (section 16(2) of the SCTO), and shall inquire into any matter which it may consider relevant to a claim, whether or not it has been raised by a party (section 16(3) of SCTO).

36.  The statutory duty to investigate set out in section 16(3) of the SCTO is akin to a similar duty in section 20(3) of the Labour Tribunal Ordinance Cap 25. The underlying principles that underlie the Labour Tribunal’s statutory duty to investigate as summarised in Chan Suk Bing Angie v Harbour Phoenix Ltd & anor[9] are also applicable to the Tribunal:

“Section 20 of the Ordinance provides that hearings at the tribunal shall be conducted on an informal manner. This is mainly due to the prohibition against legal representation in the tribunal. This in turn, brought about s 20(3) which provides that ‘the Presiding Officer shall investigate any matter which he may consider relevant to the claim, whether or not it has been raised by a party’. ...... Presiding Officers should not allow themselves to derogate from this statutory duty under any circumstances, if a fair and just disposition of the claim is to be ensured. The requirements of justice in a judicial system such as the tribunal is such that, the Presiding Officers are required to assume an active inquisitive role in the proceedings. ......” (my emphasis)

37.  In Chan Yat San v Future Lucky (296) Ltd, Mimmie Chan J said as follows:[10]

“14. Further, the inquisitorial role of the Presiding Officer under s.20 of the Ordinance involves the duty to investigate relevant matters. Incidental to its performance of such a role and its duty to ensure a fair trial, in cases where there are disputes on facts and the credibility of witnesses is essential to the Presiding Officer’s determination, the Presiding Officer has the duty to raise with a party matters that require its clarification or elaboration, on which the Presiding Officer has queries and which may be determined against the party. This is in order to give the party an opportunity to deal with these matters and to call evidence on such matters.”

38.  Lam J (as he then was) in Le Thi Bich Thuy Kitty v Sheraton International (Hong Kong) Ltd trading as Sheraton Hong Kong Hotel & Towers explained that the manner of investigation is a matter of discretion to be exercised by the presiding officer in view of the facts of the case before him. Regard can be taken as to the issues in dispute, the incontrovertible evidence before the Tribunal, and the material placed before the Tribunal by the parties after inquiry by the presiding officer.[11] But the presiding officer is obliged to remain neutral and impartial in carrying out his duty to investigate, and not play the role as advocate for one litigant.[12]

39.  The statutory duty to investigate is not an absolute one. In Chan Suk Bing Angie, it is said that:[13]

“...... the Presiding Officers ...... are only bound to investigate matters they ‘may consider relevant’. ...... Firstly, very often ...... no conscious express determination of relevance would be made by the Presiding Officers, in which case no question of any prohibition under s 35(2) can arise. It is then, for the appellate court to determine if the matter alleged is a relevant matter which ought to have been investigated. Secondly, the relevance of a matter would inevitably depend on the issues of law and facts involved. The application of legal principles or the failure to do so in reaching a determination on the relevance, is a matter upon which an appeal can lie.

It is obvious that not every failure to investigate a relevant matter will give rise to an appeal for a failure to discharge a statutory duty. The relevant matter forming the subject matter of the complaint must not only be relevant but be of such a nature that the lack of investigation will give rise to injustice, in that, a fair and proper determination of the claim cannot be attained. All the circumstances of the case as well as all other findings must be given all due regard before such a complaint can be upheld. Further, not only is the total absence of investigation a ground of complaint, totally inadequate or useless investigation which amount to no investigation at all will also suffice. It is however, never sufficient for the appellate court to conclude that it would have preferred to approach the matter differently or that there is a better way to investigate the claim. It is not open to the appellate court to prefer its own views to that of the Presiding Officer’s as to the manner of investigation. To suffice, it must be a clear and obvious case that the inadequacy of the investigation will render an ordinary reasonable man on the tram to Shaukeiwan to conclude that injustice has resulted in that a fair and proper determination of the claim cannot be attained.

...... The insufficiency of evidence to support a finding or the inconsistency of a finding with the evidence, are matters that the appellate court can properly take into account to determine whether there has been a failure to conduct any or any adequate investigation of material facts relevant to such a finding. ...... They are only matters which may give rise to a need for further investigation before a determination should be made. If there has been a proper and adequate investigation of the claim, no complaint can be made against any such findings of fact.” (my emphasis)

40.  In applying the above principles, Lam J (as he then was) in Le Thi Bich Thuy Kitty said:

“11. Hence, the duty to investigate cannot replace a party’s right to cross-examine witnesses called by others and to challenge the case of the others ......

12. The duty to investigate does not empower the Presiding Officer to compel a party to give evidence against his own wishes, thereby exposing him to cross-examination (as distinct from summoning a witness). However, the Presiding Officer does have a duty to invite a party to consider giving evidence on relevant matters when it is apparent that he could give relevant evidence on important issues in the case ......

13. If the Presiding Officer discerns that there are relevant matters which the parties have not explored, he is obliged to look into it and should invite the parties to comment and guide (and if necessary, direct) them to produce further evidence or documents ......

14. There is nothing wrong for a Presiding Officer to lead a witness through his evidence in chief or to adopt his witness statement as evidence in chief ......

15. The duty to investigate should not be confused with the power to summon witnesses. A Presiding Officer can still decide a case by reference to burden of proof and there is no duty on the part of the Presiding Officer to summon witnesses to fill the gaps in the evidence of a litigant, particularly when a Presiding Officer had already reminded a party of the significance of the evidence of a particular witness. A litigant should bear the primary responsibility in the preparation and procurement of evidence in support of his case. ......

16. However, if the Presiding Officer had not explained adequately the significance of the evidence of a witness, and a party had no reason to suspect that the other evidence adduced by him would be open to doubt if a witness is not called, the Presiding Officer should not solely rely on the failure to call such a witness to disbelieve the other evidence before the court.”

41.  Chung J in James Manuel Ho & anor v Grand Pacific Vacation (Hong Kong) Limited adopted the above principles in dealing with an application for leave to appeal against a decision by the Tribunal.[14]

42.  Mr Deng referred this court to Wan Tim Fuk v Glory Sky Precious Metals Ltd[15] in which Jeremy Poon J (as he then was) discussed the steps the adjudicator should take in performing his inquisitorial duty if he  raised a matter relevant to the claim of his own accord but was not raised by any of the parties. But such judicial guidance does not detract from the principles discussed above as to under what circumstances and how the presiding officers should carry out their duty to investigate.

43.  Jurisdiction Section 10 of the SCTO provides as follows:

“(1) Where any counterclaim or set-off and counterclaim in proceedings in the tribunal is a monetary claim which is not within the jurisdiction of the tribunal, the tribunal shall order that the proceedings on the counterclaim or set-off and counterclaim be transferred to …… the District Court ……

……

(3) Where a defendant has a counterclaim or set-off and counterclaim, which exceeds the monetary amount mentioned in paragraphs 1 and 2 of the Schedule and which, but for the excess, would be within the jurisdiction of the tribunal, the defendant may abandon the excess and thereupon the tribunal shall have jurisdiction to hear and determine the counterclaim or set-off and counterclaim, so, however, that the defendant shall not recover in the counterclaim or set-off and counterclaim an amount exceeding that mentioned in paragraphs 1 and 2 of the Schedule.”

In other words, the Tribunal has jurisdiction if the counterclaim or set-off and counterclaim is $50,000 or below, or if the defendant waives and abandons the excess over $50,000.

V.   JURISDICTION (ITEM 6 OF THE AMENDED APPLICATION)

44.  D’s Counterclaim pleaded that C was in breach of the Agreement in that the Services “貨不對辦, 有多項工作達不到合約的要求”, that D therefore had no obligation to pay the outstanding balance of the Fee in the sum of $50,000, and that D counterclaimed for damages in the sum of $40,649.38 she incurred for “額外付出了時間和人手作出補救”.

45.  Mr Deng submitted that on proper construction of the evidence/ pleadings of the SCT Case and the requirement on the part of D to mitigate loss, had D’s Counterclaim succeeded it would have amounted to “a total failure to provide satisfactory services pursuant to the PR Services Agreement”, so the DPO would not have jurisdiction to (a) grant relief of rescinding the Agreement and order repayment of the 1^st Instalment in the sum of $50,000 already paid to C and/or (b) assess damages for reasonable mitigation of loss upon C’s repudiation (and D claimed she had spent $40,649.38 for such purpose),[16] and should have transferred D’s Counterclaim to the District Court.

46.  At the Hearing, Mr Deng agreed with the trite principle that an innocent party, faced with a repudiatory breach, is given a choice: he can either treat the contract as continuing (“affirmation” of the contract), or he can bring it to an and (“acceptance” of the repudiation), and he must “elect” or choose between these options.[17]

47.  As explained in Chitty on Contracts, where there is an anticipatory breach, or breach of an executory contract, and the innocent party wishes to treat himself as discharged, he must “accept the repudiation”. An act of acceptance of repudiation requires no particular form, and is usually done by communicating the decision to terminate to the party in default, although it may be sufficient to lead evidence of any clear unequivocal overt act which is inconsistent with the subsistence of the contract. Mere inactivity or acquiescence will generally not be regarded as acceptance for this purpose. In other words, the acceptance of repudiation must be real in the sense that there must be a “conscious intention to bring the contract to an end, or the doing of something that is inconsistent with its continuation”.[18] But unless and until the repudiation is accepted, the contract continues in existence for “an unaccepted repudiation is a thing writ in water”.[19]

48.  As Mr Deng rightly conceded at the Hearing, despite a detailed 5-page Counterclaim, there was no express plea by D of (a) any repudiation of the Agreement, (b) any claim for return of the 1^st Instalment in the sum of $50,000 already paid by D to C and/or (c) any acceptance of repudiation. In her Counterclaim, D expressly sought (i) a declaration that “[the] service is different from [C’s] contract description” (ie my emphasis), and (ii) damages in the sum of $40,649.38 being expenses she incurred as a result of C’s breach.

49.  In my view, in the absence of any plea of (a) repudiation, (b) acceptance of repudiation and/or (c) relief for refund of the 1^st Instalment in the sum of $50,000 already paid by D to C, it was plain and obvious that D’s Counterclaim was not a claim premised on acceptance of repudiation but rather it was a claim for damages for breach of contract, which of itself was (as a matter of pleadings) a proper and viable claim based on the material facts as pleaded. Indeed, in the absence of any plea of the material facts in (a)-(b) above and the relief in (c) above, there was no basis to raise or maintain any claim that had to rest on D’s acceptance of C’s repudiatory breach. I am unable to see how the DPO could be faulted in considering he had jurisdiction to deal with D’s Counterclaim.

50.  However, Mr Deng went further to submit the DPO erred in law in failing to discharge his duty to investigate (as explained in paragraphs 35‑42 above) notwithstanding D had not raised/pleaded the matters in paragraph 49(a)-(c) above.

51.  Mr Deng submitted that had the DPO properly investigated and considered the matter, he would have come to the view that (a) D’s refusal to pay the balance of the Fee in the sum of $50,000 and (b) D’s assertion as to C’s repudiatory breach of the Agreement arguably amounted to acceptance of C’s repudiation whereupon the DPO should have canvassed the matters in paragraph 49(a)-(c) above, and gone on to consider whether he had jurisdiction to hear D’s Counterclaim.

52.  In my view, there was no merit to this contention. First, the duty to investigate is not absolute. Secondly, D’s Counterclaim (as a matter of pleadings) contained a sufficient and viable cause of action, ie a counterclaim for damages for breach of contract. Thirdly, the duty to investigate is limited to a duty to inquire into any matter “which [the Tribunal] may consider relevant to a claim”. On the basis of D’s Counterclaim as pleaded, there was nothing further that was “relevant” to investigate. Fourthly, the duty to inquire does not mean the Tribunal should take over the role of an advocate for a litigant. I see no reason for the DPO, who had to remain neutral or impartial, to raise a speculative claim in respect of which the material elements had not been asserted at all.

53.  Fifthly, it must be remembered the manner of investigation is matter of discretion for the Tribunal dependent on the facts of the case before it, and regard can be taken of matters such as the issues in dispute, the incontrovertible evidence before the Tribunal, and materials placed before the Tribunal by the parties prior to trial. I am not persuaded the 2 matters in paragraph 51(a)-(b) above amounted to any unequivocal act of acceptance of repudiation. Rather, such acts were equally consistent with a claim for damages for breach of contract (ie the Services provided was “貨不對辦” and different from what was contracted for) without acceptance of repudiation. A refusal to pay the balance of the Fee without demand for repayment of the 1^st Instalment that had been paid was equally consistent with a complaint of breach of contract, ie the value of the services actually rendered was not worth the entire Fee.

54.  Further, it was D’s pleaded case that during the Service Period she already knew that the services C had rendered were not up to standard, and she had expressed her dissatisfaction (see paragraph 8 above), but there was no suggestion of any unequivocal overt act or express communication to C that the Agreement was at an end.

55.  Rather, the objective facts showed that:

(a) on 4 January 2017, ie about 2 weeks after the expiry of the Service Period and after C had already rendered the Services (which according to D was of an unsatisfactory standard), D gave the Cheque to C in purported payment of the balance of the Fee, and C gave D a receipt therefor (see paragraph 3 above);

(b) on 9 January 2017, D sent whatsapp messages to Ho to the effect that the Cheque was dishonoured due to her clerical error in relation to the date, and she promised to re-issue a replacement cheque to D (see paragraph 4 above); and

(c) on 19 January 2017, D’s assistant Wong sent a whatsapp message to Ho as follows: “在是次選舉工程中, 你們的工作安排只能達到我們要求的一半, 是在水準以下, 很多相關的工作都要譚議員代勞, 她非常不滿貴公司的工作和效率, 相信閣下都有同感, 有可能你不是選舉工程的專才, 故請65折收費” (see paragraph 5 above).

56.  D did not dispute the facts and matters in paragraph 55(a) and (c) above save that in paragraphs 78-79 of D’s witness statement dated 12 July 2017 she stated “選舉完結, 未出支票前, [D]向[Luk]指出[C]的服務不達水準, 不願意支付尾數。後來[C]的助手來[D’s]辦事處收取尾數, 當時[D] 因公務太繁忙(職員放假, 只剩下[D]在辦事處工作), 忙亂中開出支票並寫錯日期, 其實[D]是不應開出支票給她的” and “[D]與證人[Wong]經商議後, 大家都同意不應付款[ie the balance of the Fee]”. But these matters were D’s personal deliberations and/or her internal discussions with her assistant Wong, and could not amount to any unequivocal overt act or express communication to C that she accepted C’s repudiation. In my view, D’s issuance of the Cheque (albeit with clerical error over the date and notwithstanding D’s awareness and/or complaint of C’s poor services) was objective evidence of affirmation of the agreement between C and D. More importantly, despite D’s complaint that she ought not to have issued the Cheque (which she said she did in haste), she offered no explanation in her witness statement for her whatsapp message 5 days later when the Cheque and its erroneous date were specifically brought to her attention. Not only did D not inform C she would accept repudiation, she informed C by whatsapp message to Ho she would re-issue a replacement cheque. This was also clear evidence of affirmation of the agreement with knowledge of alleged poor quality of the Services C had rendered. Indeed, even after D claimed she was aware of the extent and ramifications of C’s alleged repudiation, she through Wong informed C inter alia that C had performed half of the Services that D required, and asked C for “65折收費”. In my view, in making a subsequent open offer to pay $35,000 on top of the 1^st Instalment in the sum of $50,000 that had been paid to C, D was plainly affirming the Agreement (irrespective of any claim for damages for breach thereof) rather than accepting any repudiation.

57.  In my view, there was no reasonable or arguable basis at all for the DPO to carry out the investigation Mr Deng suggested. Quite simply, the question of repudiation and acceptance of repudiation were not matters of relevance on the facts of the SCT Case before the DPO.

58.  Mr Deng made a last ditch effort at the Hearing by referring to Gartell & Son v Yeovil Town Football & Athletic Ltd.[20] In that case, a football club contracted with G for works on its pitches to be brought up to Championship standard. The work was done in wet conditions which meant  the treatment did not work satisfactorily. The club complained the work had not been done to the requisite standard and withheld payment. G sued for the contract price. The club denied liability by relying on a breach of the implied term of using reasonable care and skill, and counterclaimed for the cost of remedial works to the pitches by seeking payment of an invoice submitted by a 2^nd contractor who followed an alternative method of improving the pitches. The judge held that G had been in breach of contract as alleged, and that as a result the pitches’ standard was worse than if G had done no work, so there was total failure of consideration. The significance of such total failure of consideration was that the club was discharged from its obligation to pay the price. On such basis, the club was only entitled to the cost of restoring the pitches to the condition they would have been in had G done nothing, but the club could not require G to pay the full costs of works subsequently carried out on the pitches. Thus, the most the club could recover on the counterclaim was the amount by which the cost of the 2^nd contractor’s works reasonably exceeded the contract price. Consequently, the award at 1^st instance for the full amount of the 2^nd contractor’s invoice could not stand. But on appeal the club did not ask to substitute a judgment for the amount by which the contract price was exceeded, so the counterclaim was dismissed.

59.  In my view, the facts in Gartell & Sons were wholly different from those in the SCT Case. There was no plea in D’s Counterclaim for total failure of consideration. All D alleged in her Counterclaim was that the Services “貨不對版”, and she sought a declaration that the Services were “different from” C’s “contract description”.  D’s pleadings and witness statements admitted C did perform some Services, eg C assigned Luk to perform the Services, and the whatsapp message from Wong to Ho dated 19 January 2017 acknowledged “在是次選舉工程中, 你們的工作安排只能達到我們要求的一半 ……”, and there was no suggestion (as the club in Gartell & Sons alleged and as the judge in that case found) the Services C rendered were worse than if C had done no work at all. There was no basis for alleging total failure of consideration, and Mr Deng’s reliance on Gartell & Sons was misplaced.

60.  In my view, item 6 of the Amended Ground could not be any arguable ground of appeal against the Judgment.

VI.   MISCELLANEOUS GROUNDS (ITEMS 3-5 OF AMENDED APPLICATION)

61.  Before I turn to items 1-2 of the Amended Application, it is perhaps easier that I quickly dispose of items 3-5 of the Amended Application.

(a) Cumulative breaches (item 3 of the Amended Application)

62.  Mr Deng submitted that the DPO failed to see the wood from the trees in that whilst the DPO took a detailed item-by-item approach in dealing with C’s various alleged breaches and came to the view there was no breach in relation to each item, he failed to consider whether as a matter of law, the cumulative breaches in fact amounted to repudiatory breach of the Agreement between C and D. Mr Deng referred to Rice v Great Yarmouth Borough Council in support for the proposition that as a matter of law cumulative breaches may amount to repudiatory breach if their combined effect is sufficiently serious to justify the innocent party in bringing the contract to a premature end or if the non-breach party is “deprived of substantially the whole benefit of what it had contracted for”.[21]

63.  Mr Deng submitted Recorder Kwok SC applied the principle in Rice in Secretary for Justice v Yu’s Tin Sing Enterprises Company Limited.[22] However, in that case the government terminated the contract for service on the basis of breach of clause 15 which was expressly provided to be material. Even though it was unnecessary for the learned judge to go further, he held obiter that the cumulative effect of the defendant’s various conviction(s) demonstrated it was in breach of clause 19:

“65. The materiality of the defendant’s breaches under the Contract is a matter for me, not for the magistrate. In my judgment, the cumulative effect of the defendant’s breaches and the conviction records was sufficiently material entitling the Government to terminate the Contract as it did.”

64.  Mr Deng suggested that “the principle of cumulative breach must apply to the present situation in which almost each and every item of work has been challenged as being sub-standard from any objective view. As such, [the DPO] fell into an error of law to consider whether the cumulative effect of the breaches would cause D to be substantially deprived of the whole benefit of the Service Agreement”.

65.  I have difficulty in understanding this intended ground of appeal.  Even accepting without debate for present purpose the principle Mr Deng extracted from Rice which he said was applied in Yu’s Tin Sing Enterprises Company Limited, this principle only applies to cumulative “breaches” which on their own may not be material breaches but cumulatively may amount to repudiatory breach. But as Mr Deng noted in his written submissions, after a detailed item-by-item approach in dealing with C’s various alleged breaches, the DPO came to the view there was no breach in relation to each item (see paragraphs 21-24 above). I find it impossible to appreciate how a series of non-breaches would somehow cumulatively become a repudiatory breach.

66.  Since Mr Deng’s submissions in respect of this intended ground of appeal did not challenge the DPO’s findings of fact, such contention plainly could not succeed unless D was able to satisfy the court the intended grounds of appeal in items 1-2 of the Amended Application were arguable. But then if the intended grounds in items 1-2 of the Amended Application were arguable and leave to appeal were to be granted on such basis, it remained for D to satisfy the court on the appeal proper that the Judgment should be set aside and that the case be remitted to the Tribunal for retrial. The “cumulative breaches” contention would not be pertinent absent such retrial, and could not amount to any arguable ground of appeal.

(b) Mitigation of loss (item 4 of the Amended Application)

67.  Mr Deng submitted that in paragraphs 25 and 30 of the Reasons (see paragraph 21 above) the DPO found “although D had obtained alternative service providers, she did so on her own volition”, and “ruled that C was not in breach as the D did not provide it with the opportunity to remedy the breach”.

68.  Mr Deng submitted such finding was wrong as a matter of law as it ignored D’s duty to mitigate her loss and not to take any step which would be unreasonable to increase such loss. It was said that given the imminence of the Elections and the narrow window of the Service Period, “it would not be prudent for [D] to “sit and wait” for damage to be done by C’s breaches of the Service Agreement. On the contrary, the fact that remedial actions had been undertaken tended to suggest D failed to provide satisfactory services. In particular, considering the overall circumstances including [Luk’s] evidence that C committed an error in the postage of promotional mails on behalf of the candidates in the medical constituency ……, it was reasonable for [D] not to count on C for performance. As such, the finding of the [DPO] was wrong in law, and perverse and irrational”.

69.  Again, there was no merit to this intended ground of appeal. Paragraph 25 of the Reasons dealt with D’s allegation that she had to pay an extra sum of $6,000 “代郵寄選舉報的費用”. D complained that C appeared to be unfamiliar with the relevant procedure, and alleged it was fortunate that D engaged Magic Production to deal with the matter at an extra cost of $6,000. The DPO noted D alleged “但只得選舉代理人[Luk]一人之力是難於應付，而[C]又不增加人手。蘇家豪(這位是Magic Production的員工)恐怕萬一出錯會影響選情，所以設計及印刷好選舉郵件後，便將兩份指定郵局投寄的選舉聲明書交予[Luk]簽署，然後安排郵寄”, and Luk alleged “我跟印刷公司的負責人Billy So傾過，他說他就郵寄選舉郵件有經驗，只要我在相關的表格C17及C18簽妥了名，他可代勞到郵局辦理相關的申請及投寄手續”, so the DPO concluded that neither D nor Luk claimed C refused or was unable “把郵件送到郵局郵寄” as they only asserted Mr So of Magic Production took the initiative to take up such task (but quite strangely Mr So’s witness statement did not explain why he would charge $6,000 for doing so). The DPO concluded “[D’s]這項指控不成立” as he found there was no breach by C who did not refuse and/or who was not unable to perform the relevant task, and it was just Magic Production who took the initiative to do so.

70.  As for paragraph 30 of the Reasons which concerned D’s complaint that C only assigned Luk to be C’s staff or employee responsible for “街站宣傳” and that Ho herself did not participate, the DPO rejected such contention because (a) the contracting service provider was C (and not Ho) with no contractual requirement that C must assign any particular staff “提供服務，或者做街站宣傳”, (b) there was no allegation by D that with only Luk “所以街站宣傳方面出了亂子”, and (c) the scope of the Services under the Agreement was “派員陪同候選人擺街站” and not C “一手包辦街站所有事宜”, so the fact D “自己有另外����請臨時工幫手做街站宣傳, 與是否符合合約要求沒有關係”.

71.  I disagree with Mr Deng’s suggestion that the DPO found there was no breach because D did not provide it with the opportunity to “remedy the breach”. Rather, the DPO found there was no breach for the reasons in paragraph 70(a)-(c) above, so the fact D engaged other temporary workers for promotion purpose had nothing to do with C’s contractual obligations. In short, the DPO’s findings concerned an anterior issue, ie there was no breach and hence there was no default to be remedied.

72.  Thus, Mr Deng’s contentions in paragraph 67 above that rested on C’s “breach” that required remedial action was not supported by the DPO’s findings. The reference to mitigation of loss itself presupposed there was a breach of contract that caused loss to the innocent party who therefore had a duty to mitigate. But given the DPO’s findings that there was no breach of contract by C, I do not understand how D’s duty to mitigate would be relevant or how the DPO’s findings were perverse or irrational. As the DPO found there was no breach by C, how Magic Production took the initiative to “代勞到郵局辦理相關的申請及投寄手續” and how D took the initiative to “另外����請臨時工幫手做街站宣傳” were neither here nor there. In my view, the DPO’s findings were reasonably open to him on the facts and evidence before him, and could not be assailed in light of the principles discussed in paragraphs 30-34 above.

73.  It appeared Mr Deng’s above contentions depended upon whether the intended grounds of appeal in items 1-2 of the Amended Application were arguable. But even if such grounds of appeal were arguable and leave to appeal were to be granted on such basis, it would not be for D to raise such contentions absent a re-trial of the SCT Case upon setting aside the Judgment at the appeal proper. The aforesaid contentions could not amount to any arguable ground of appeal.

(c) Construction (item 5 of Amended Application)

74.  In paragraph 30 of the Reasons, the DPO rejected D’s complaint that C was in breach of the Agreement by only assigning Luk for “街站宣傳” and Ho herself failing to participate for the reasons set out in paragraph 70(a)‑(c) above. Mr Deng submitted such finding was tantamount to a finding that item 4d) of the Term Sheet (ie “派員陪同候選人擺街站”) did not require C to send more than 1 worker, and since the rule of contra proferentum was applicable given that C drafted the Term Sheet, the DPO erred in law in failing to apply the usual canons of construction before coming to such conclusion:

(a) the ordinary meaning of “派員” was capable of and did incorporate the plural meaning and must be construed as providing for situations that more than 1 worker might be required;

(b) the standard of contractual performance required under the Agreement should be construed by references to C’s express warranty of specialised knowledge/experience (ie the Words);

(c) on the evidence Luk (whom C hired to assist D in the Elections campaign) did complain to C about insufficient number of workers assigned to street stalls; and

(d) so in applying the ordinary canons of construction, the DPO should have decided that in sending 1 worker to street stalls C failed to meet the required standard of contractual performance under the Agreement.

75.  Upon careful reading of paragraph 30 of the Reasons, I am unable to see any specific finding by the DPO that item 4d) of the Term Sheet did not require C to send more than 1 worker. Even though Luk was the one whom C assigned to “陪同候選人擺街”, the 3 reasons put forward by the DPO for concluding there was no breach of contract (see paragraph 70(a)-(c) above) did not involve any specific finding that item 4d) of the Term Sheet did not require C to send more than 1 worker. The DPO held that the fact Ho did not personally participate at the street stalls was irrelevant as there was no contractual promise to assign any particular staff to “陪同候選人擺街”.[23] The DPO also held that item 4d) of the Term Sheet only meant C would send staff to accompany the election candidates to “擺街站”, which did not mean C’s staff would “一手包辦街站所有事宜”.  Thus, the question was whether in assigning Luk to “陪同候選人擺街” C had discharged its obligation of “派員陪同候選人擺街站”, and in this respect the DPO made a finding C had discharged its obligations, especially when there was no suggestion such arrangement caused “街站宣傳方面出了亂子”. In short, the DPO held that given the nature of C’s obligation and in the relevant context and circumstances, in assigning Luk to “陪同候選人擺街” C had sufficiently performed its obligation.

76.  In paragraphs 10 and 12 of his witness statement dated 31 May 2017, Luk complained that (a) Ho had to liaise with D to excuse Luk from accompanying the Team at a street stall in Central at 1-2pm on 30 November 2016 because he was assigned to handle other matters, but Luk attended the Team’s street stall at 6pm that evening, and (b) Luk had difficulty in carrying all the equipment for setting up street stall so D arranged for her assistant Steven to help carry some of the equipment. In respect of (a) above, I note there was no suggestion D did not agree to excuse Luk from the day-time street stall on 30 November 2016, and Ho in paragraph 6 of her witness statement dated 12 July 2017 (C/385) confirmed Luk did accompany D/Team “一天走2個街站甚至6個街站”. Indeed, Luk in his witness statement dated 28 July 2017 admitted “在整個選舉期間, 「誠、會計師團隊」絕大部份時間都是每天做一至二個街站; 印象中, 一天內做超過兩個街站的日子只有2017年12月6日及7日, 這兩天每日做四至五個站, 但部份街站只做很短時間, 例如半小時或一小時。就街站事宜, [Luk]基本上每日都有在「誠、會計師團隊」的Whatsapp群組預告/提醒當天或翌日街站的位置及時間, 方便各人士了解及/或參與 ……; 另外, 在完成街站的當晚, 大致上[Luk]都會做一篇報導, 放在Whatsapp群組內 ……, 最後文章在譚香文看過後, [Luk]便會安排上載至團隊的Facebook專頁”. In respect of (b) above, Ho in her witness statement dated 12 July 2017 (C/385) stated it was D who provided the street stall equipment, but D did not rent any transport equipment or pay any transport charges, so Ho instructed Luk to let D’s personal assistant to carry some of the street stall equipment and Ho later paid an extra $5,000 to Luk for his trouble. In my view, given Luk’s admission as to the services he rendered (on behalf of C) in relation to the street stalls, and Ho’s explanation about the street stall equipment, it was reasonably open on the factual evidence for the DPO to reach the findings of fact that he did in paragraph 30 of the Reasons.

77.  In my view, there is no merit to this intended ground of appeal, which I do not find to be arguable. As for the point Mr Deng made in paragraph 74(b) above, I shall deal with it in Part VII below.

VII. WORDS AND EXPERT EVIDENCE (ITEMS 1-2 OF AMENDED APPLICATION)

78.  Mr Deng asked this court to consider the intended grounds of appeal in items 1-2 of the Amended Application together. Mr Deng submitted that in paragraph 17 of the Reasons the DPO “confirmed that the Term Sheet was evidence of the Service Agreement and its terms”, and “[having] made such a finding, it would be obvious that all the words in the Term Sheet would be relevant and important for the purpose of construing the meaning of each and every term”.

79.  In fact, the DPO made no such finding. As explained in paragraphs 17-19 above, the DPO only found the Term Sheet (signed by C but not by D) “列出予各項[C]會提供的選舉公關服務，[D]一方亦都有根據此協議書的內容，指[D]未能做到合約的要求。因此，本席接納這份協議書內所列出的服務項目為今次合約的範圍”. The DPO’s finding was that the items of Services listed in the Term Sheet set out the scope of the Services under the Agreement between the parties. There was no finding that the entirety of the Term Sheet (which D refused to sign despite correction of a clerical error), including the Words, was part and parcel of the Agreement between the parties. That being the case, it was not obvious, as Mr Deng would have this court find, the Words would be relevant and important for the purpose of construing the meaning of each and every item of Service provided for in the Term Sheet.

80.  Mr Deng next argued on the premise of his contentions in paragraph 78 above that the plain/ordinary meaning and natural language of the Words showed it was an express warranty that C’s skill, experience and knowledge would be applied towards the Services to be rendered as set out in Items 1-4 and under the heading “Other Services” in the Term Sheet. But even if the Words were not an express warranty but only a recital with no legal/binding effect, Mr Deng submitted they would provide the necessary context and commercial purpose for the Agreement, ie that each and every item of Service in items 2-4 and under the heading “Other Services” in the Term Sheet would be “carried out by a [PR] company with reasonable care and skill with the relevant experience”. Mr Deng referred to Crouch v Crouch[24] for the proposition that any ambiguity over the proper contractual standard as to the quality of services provided for would be governed by the recital.

81.  Mr Deng also submitted that in construing whether the Words would have legal effect on the construction of the terms of the Agreement for the Services “as set out in the Term Sheet”, one had to bear in mind the following uncontroversial evidence: (a) D engaged C for the specific purpose of conducting an election campaign for the Elections, (b) the Service Fee was $100,000 for a brief Service Period of about 6 weeks, and (c) the cost of hiring a personal assistant to provide the same Services as C[25] was considerably less than $100,000.

82.  But here D’s pleadings claimed that (a) even though she considered Ho “is not really up to the standard for the PR work”, she decided to engage C for the Services, (b) D’s poor view of C was affirmed when the Term Sheet C emailed to her on 15 November 2016 incorrectly stated as for the medical constituency, which D found to be quite “a careless mistake for a PR firm”, and (c) after C corrected such clerical error, “[D] did not sign the contract as [D has] found [C] did not render the services adequately in a professional manner and most importantly not in accordance with the Agreement.” D also claimed that even during the Service Period she made complaints and pressed for discount in relation to some poorly executed Services.

83.  In my view, the starting point was that D never signed the Term Sheet. I am unable to see how the Words could be any warranty as Mr Deng suggested. As explained in Chitty on Contracts,[26]

“The word “warranty” has been described as “one of the most ill-used expressions in the legal dictionary”. In many older cases, it will be used in the sense of “condition” and today it is very frequently used simply in the sense of a contractual undertaking or promise. In its most technical sense, however, it is to be understood as meaning a term of the contract, the breach of which may give rise to a claim for damages, but not to right to treat the contract as repudiated. The use of the word “warranty” in this sense is reserved for the less important terms of a contract, or those which are collateral to the main purpose of the contract, the breach of which by one party does not entitle the other to treat his obligations as discharged. But the emergence of the new category of “intermediate” terms seems likely to have reduced the number of occasions when a term will be classified as a warranty in this sense almost to vanishing point, save in the very exceptional circumstances where a term has been specifically so classified by statute.”

As explained in paragraph 79 above, according to the DPO’s findings, the Words were not contractual. D claimed she refused to sign because she

already knew “[C] did not render the services adequately in a professional manner and most importantly not in accordance with the Agreement”. On such basis, the Words could not have been understood by D to be an express contractual warranty that C’s skill, experience and knowledge would be applied towards the Services to be rendered. Further, the Words were a mere statement, and not any contractual undertaking or promise.

84.  I am also unable to see how the Words amounted to a recital having the effect as Mr Deng suggested. Crouch turned on the construction of a deed executed between a husband and wife. Both parties accepted the deed was an agreement binding on them, and the recital was an agreed recital. It was on such binding contractual foundation that question arose as to whether the covenant in the deed stood unaffected by the recital or whether the recital governed the terms of the covenant. But here D refused to sign the Term Sheet, and there was no agreed recital. More importantly, D plainly did not rely on the Words because she refused to sign the Term Sheet for the reason that “[C] did not render the services adequately in a professional manner and most importantly not in accordance with the Agreement”. Indeed, D’s pleadings averred that during the Service Period she pressed for discount for poor service in photo-taking, and D’s witness statements asserted she had been making complaints during the Service Period.

85.  In my view, it was reasonably open for the DPO to find that in respect of the Term Sheet (which D refused to sign) “這份協議書內所列出的服務項目為今次合約的範圍” without reference to the Words whether as warranty or recital, and to rely on the test in section 5 of SSITO, ie whether the Services were rendered with reasonable skill and care, rather than on the Words in the Term Sheet. In the circumstances, the DPO could not be faulted, as Mr Deng would have me do, for not directing the parties to give evidence or to cross-examine on the meaning of the Words or make any independent inquiries in relation to the same. In my view, this ground of appeal is not arguable.

86.  Mr Deng then submitted the yardstick by which the Services rendered by C were to be measured should have been spelled out by an expert, and it was erroneous for the DPO to have rejected D’s application to adduce expert evidence from Liu to explain the relevant standards of performance to be expected of C.

87.  Mr Deng submitted that expert evidence is admissible even in the absence of a body of expertise (see So Kai Hau v YSK2 Engineering Company Limited & ors[27] and Midland Bank Trust Co Ltd & anor v Hett, Stubbs & Kemp (a firm)[28]), and that trade customs are common subject matters for expert evidence (see Haynes v Dorman).[29] It was said that under the Bolam test expert evidence from Liu would be relevant to assist the DPO to determine the standard of reasonable care and skill which is the ordinary care and skill of an ordinary competent man “exercising that particular art”, which is objective. Mr Deng submitted that by dismissing D’s application for adducing expert evidence, the DPO failed to come to his own view as to the standard C had to meet as a PR service provider, and disabled himself from properly considering D’s Counterclaim in that:

(a) the DPO failed to appreciate the relevance of expert evidence was not to explain a certain outcome that D desired, and wrongly held the issue in the SCT Case could be resolved by comparison of “objective data or evidence” of D’s image/reputation before and after the provision of the PR services; and

(b) the DPO failed to appreciate the need to apply the Bolam standard of reasonable care and skill, and wrongly held D’s claims could be resolved by the SSITO “in abstract”.

88.  In relation to the scope of the Services under the Agreement as itemised in the Term Sheet, the starting point was that questions of construction or meaning of a contractual document is a matter of law and not of fact.[30] In construing such contractual document, the court makes an objective judgment in the context of the agreement between the parties, the parties’ relationship and all the relevant facts surrounding the transaction so far as known to the parties, and gives the terms their natural and ordinary meaning.[31] Thus, it is for the court to ascertain what was contracted for from the words used and the relevant factual matrix, and the court does not do so “in abstract”.

89.  The burden lies on the party seeking to adduce expert evidence to show it will be of assistance to the tribunal.[32] In Wong Hoi Fung v American International Assurance Company (Bermuda) Ltd & anor,[33] Chu J articulated the principles for admission or exclusion of expert evidence and on the requirement of “relevance” as follows :

“12.  In deciding whether certain proposed expert evidence should be received, the relevant test has been stated to be a two-stage one. Firstly, the evidence has to be admissible as “expert evidence” for the purpose of s.58 of the Evidence Ordinance (Cap.8). Secondly, the evidence must be relevant, in the sense that it is helpful to the court in arriving at its decision on one or more of the issues to be resolved : Barings plc (in liquidation) & Another v Coopers and Lybrand & Others (unrep., 9 February 2001), Evans-Lombe J at paras.44-45.”

In Barings plc (in liquidation) & anor v Coopers and Lybrand & ors,[34] Evans-Lombe J stated the following propositions:

“……expert evidence is admissible under section 3 of the Civil Evidence Act 1972 in any case where the court accepts that there exists a recognised expertise governed by recognised standards and rules of conduct capable of influencing the court’s decision on any of the issues which it has to decide and the witness to be called satisfies the court that he has a sufficient familiarity with and knowledge of the expertise in question to render his opinion potentially of value in resolving any of those issues. Evidence meeting this test can still be excluded by the court if the court takes the view that calling it will not be helpful to the court in resolving any issue in the case justly. Such evidence will not be helpful where the issue to be decided is one of law or is otherwise one on which the court is able to come to a fully informed decision without hearing such evidence.” (my emphasis)

Thus, expert evidence is not necessary (a) where on the proven facts of the case the tribunal can form his/her own conclusions without the help of an expert, and (b) where the matter is not a matter for expert evidence at all but an issue of fact where the parties themselves (as witnesses as to fact) are capable of giving the relevant evidence themselves.[35]

90.  The expert evidence in each of So Kai Hau, Midland Bank Trust Ltd and Bolam concerned opinion based an undoubted branch of specialised knowledge by an expert professional within his field of particular training or experience, ie an authorised person, a conveyancing solicitor and a doctor. In Haynes, the alleged expert evidence was held to be inadmissible. It must also be remembered that So Kai Hau, Midland Bank Trust Ltd and Bolam are claims in tort for professional negligence, but D’s Counterclaim was a claim for breach of contract.

91.  Here the scope of the Services set out in the Term Sheet could not be said to be brief or vague. For each item of Service in items 2-4 and under the heading “Other Services” in the Term Sheet, there were numerous sub-items that explained and clarified the scope of the Services and what was required. These Services had been orally discussed/agreed between the parties and reduced into writing in the Term Sheet. In my view, the parties would be in a position to give evidence as to the scope of Services as agreed, and the DPO would be able to determine whether the Services were performed at all and/or if so, whether they were performed with reasonable care and skill in the factual context and circumstances of the Elections campaign and in light of what was discussed and agreed without the aid of any expert evidence, especially when the Services were not of such scientific or technical character that was outside the realm of understanding of the tribunal as to fact. It could not be said that the DPO’s findings were made “in abstract”.

92.  Two further matters are of note. First, this ground of appeal was made against an exercise of discretion by the DPO. In an application for leave to appeal on point of law against an exercise of discretion, it has to be shown there was arguable basis for saying that the conclusion which the tribunal reached in the exercise of its discretion was “outside the generous ambit within which a reasonable disagreement is possible”.[36] For all of the above reasons, I am not persuaded the decision by the DPO to refuse expert evidence fell outside such generous ambit.

93.  Secondly, Order 55 rule 7(7) of the RHC provides inter alia that the Court of First Instance shall not be bound to allow the appeal only on the improper rejection of evidence unless in the opinion of the court substantial wrong or miscarriage has thereby occasioned (see paragraph 34 above). I am not persuaded there was an arguable basis to suggest there was substantial wrong or miscarriage. It must be remembered the application was made at the eve of the Trial, and even D herself acknowledged it was late, so late that D envisaged that if she were allowed to adduce expert evidence, either Liu would have to give oral evidence at the Trial without letting C know what she was going to say (as there would be no expert report) or the Trial would have to adjourned to enable Liu to be prepare an expert report (see footnote 2 above). On either scenario there would be prejudice to C (by having to meet expert evidence in the dark or by having its day in court delayed), and having regard to all the circumstances, including the potential disruption to the Trial, the prejudice to C and the lateness of the application, there is no basis to say that DPO’s exercise of discretion was substantially wrong or there was miscarriage.

94.  I am not persuaded items 1-2 of the intended grounds of appeal in the Amended Application were arguable.

VIII. CONCLUSION

95.  In the circumstances, D’s application for leave to appeal on point of law against the Judgment is dismissed with no order as to costs.