LI ALAN SEE LONNG v. MUDASSAR, HUSSAIN AND ANOTHER

HCSA 33/2022

[2022] HKCFI 3378

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

SMALL CLAIMS TRIBUNAL APPEAL NO. 33 OF 2022

(On appeal from Small Claims Tribunal Claim No. 13201 of 2022)

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BETWEEN

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D E C I S I O N

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1.  This is the 1st and 2nd Defendants’ application for leave to appeal against the order of 31st August 2022 (“the Order”) made by the Deputy Adjudicator (“the Deputy Adjudicator”) that, in essence:

1.1 by consent between the Claimant and the 1st Defendant, without admission of any liability, the 1st Defendant do pay the Claimant the sum of $30,000 in full and final settlement of the claim (and intended counterclaim) herein including any claim for interest and costs, with payment to be made by instalments as stipulated in the Order;

1.2 the 2nd Defendant having admitted liability, the 2nd Defendant do pay the Claimant the sum of $45,000, costs of $1,045, and post judgment interest on the aforesaid judgment sum (including costs) from the date of the Order until satisfaction.

2.  The background to the claim is the Claimant and the Defendants were involved in a traffic accident. The 1st Defendant was the owner of a vehicle and the 2nd Defendant was the driver at the time of the accident. The 2nd Defendant was convicted of careless driving on 1st March 2021 in relation to the accident. The Claimant made a claim against the Defendants for $75,000 for repair costs and various fees.

3.  The Deputy Adjudicator’s reasons for making the Order were set out in his Reasons for Decision of 3rd October 2022 (“the Reasons”). The key ones for present purposes are as follows.

3.1 At the second hearing of 31st August 2022 (“the Hearing”), the 1st Defendant settled with the Claimant and agreed to pay $30,000 to the Claimant by instalments.

3.2 The 1st Defendant could speak Cantonese and English. The settlement agreement was explained to him and signed by him. He also confirmed in open court that he understood and agreed to the terms.

3.3 The 2nd Defendant could speak English and communicate with the Tribunal in English. He indicated that he did not dispute the claim, but he had no money. He is a refugee in Hong Kong. Judgment was entered against him on his admission, for the balance of the $45,000 and fees of $1,045.

3.4 Neither of the Defendants asked for an interpreter.

3.5 It was not mentioned at the hearing that the Claimant should bear at least 35% of the loss on the grounds of contributory negligence.

4.  By an application for leave to appeal on point of law dated 15th September 2022, the Defendants seek leave to appeal, putting forward a number of grounds of intended appeal, which may be summarised as follows.[1]

4.1 No interpreters were provided for the Defendants at the Hearing. The 2nd Defendant is Pakistani and does not understand English and Chinese well. The Defendants “repeatedly mentioned” that they did not understand the Claimant, court clerk or the judgment.

4.2 The Defendants admitted that there was a traffic accident, but asserted that the Claimant should bear “at least 35% of the contribution negligence of the accident”.

4.3 The claim for $75,000 was disagreed as the Claimant failed to provide all the relevant receipts for repairs. The 1st Defendant would offer $5,000 as full and final settlement of the Claimant’s claim as he failed to produce any receipts.

4.4 The trial was unfair and the Defendants would seek judicial review.

4.5 The court only asked the 1st Defendant to sign a document which he did not understand (namely the terms of settlement with the Claimant).

4.6 The 2nd Defendant did not have any job. The 1st Defendant was unable to pay more than $5,000.

5.  Section 28(1) of the Small Claims Tribunal Ordinance (Cap.338), provides as follows:

“Any party who is aggrieved by a decision of the tribunal –

(a) on any ground involving a question of law alone; or

(b) on the ground that the claim was outside the jurisdiction of the tribunal,

may apply to the Court of First Instance for leave to appeal and the Court of First Instance may grant such leave if it thinks fit.”

6.  Leave will not be granted unless there is a reasonable prospect of success: Tse Kwok Wai v San Wui Commercial Society YMCA of Hong Kong Christian School [2022] HKCFI 3287 at [13].

Interpreter

7.  I have read the transcript of the proceedings at the Hearing. As was pointed out at [9] of the Reasons, the Defendants did not ask for an interpreter. On the contrary, the transcript indicated that they understood the Deputy Adjudicator and were able to communicate with him.

7.1 The Deputy Adjudicator first addressed the 2nd Defendant, who was the driver of the car at the time of the accident. When asked whether he spoke English, the 2nd Defendant answered “Yes, little bit”. The Deputy Adjudicator then briefly outlined that the case related to a traffic accident, that the 2nd Defendant had been convicted of careless driving, and that the Claimant was now seeking damages. When asked whether he understood, the 2nd Defendant said “Yes, yes, yes”. The Deputy Adjudicator then asked whether he had any defence, and the 2nd Defendant said that he did not have any defence, but he had no money to pay. The 2nd Defendant was able to further explain that he did not have a job and was not allowed to work as he was a refugee; he had a Hong Kong driving licence and was driving the 1st Defendant’s car to see various parts of Hong Kong; insurance had been taken out in respect of the car and the accident had been reported to the insurance company but the company had refused to pay the claim.

7.2 The 1st Defendant spoke Cantonese. The Deputy Adjudicator said that the clerk to the Tribunal had told him that the 1st Defendant was thinking of paying $30,000 by instalments. The 1st Defendant confirmed that this was the case, and explained that at most he could compensate the Claimant $30,000, and paid by way of instalments –$20,000 in October 2022 and $10,000 by way of two further instalments over two months. The Deputy Adjudicator asked for further particulars of the proposed settlement from the 1st Defendant, and then arranged for a settlement agreement to be drawn up in accordance with the dates and amounts indicated by the 1st Defendant. The clerk to the Tribunal read the settlement agreement to all parties and asked whether there was anything unclear, to which the 1st Defendant replied that it was clear. Before the document was signed, the clerk asked the 1st Defendant once more whether it was clear and he understood, and the 1st Defendant said yes, it was clear. The clerk also asked whether he agreed and accepted it, and the 1st Defendant confirmed that he did.

7.3 The Deputy Adjudicator then explained to the 2nd Defendant in English that the Claimant had settled with the 1st Defendant for $30,000, but was proceeding with the balance of his claim against the 2nd Defendant, for $45,000 and fees. He noted that according to the 2nd Defendant, he had no defence, and that the Tribunal would enter judgment against him if he admitted the amount, but whether or not the Claimant could recover it was unknown. The 2nd Defendant asked the Deputy Adjudicator to explain the situation again, as he did not understand, so the Deputy Adjudicator did so. In particular, the Deputy Adjudicator explained that the Tribunal would enter judgment if the 2nd Defendant admitted the amount of $45,000. The 2nd Defendant was asked whether he understood and whether he agreed, and he said “yes” to both.

7.4 There were a few occasions on which the Defendants asked for clarification. The Deputy Adjudicator gave the clarifications, and checked that the Defendants understood before proceeding.

8.  I do note that towards the end of the Hearing when the Deputy Adjudicator came to enter judgment formally against the 2nd Defendant, he asked the 2nd Defendant whether he admitted the sum of $45,000 and fees in the sum of $1,045, and no audible answer from the 2nd Defendant is recorded in the transcript. The 1st Defendant said “yes”. However, the 2nd Defendant had earlier indicated at two separate points during the course of the Hearing that he had no defence to the Claimant’s claim and did not seek to defend it. The 2nd Defendant was able to speak at least simple English, and the transcript shows that he did not “repeatedly mention” that he did not understand the Claimant, the Tribunal’s clerk or the judgment.

9.  I do not see that this proposed ground of appeal has any proper basis in fact, and much less that it raises any question of law.

Contributory negligence; lack of receipts

10.  The Defendants never raised, as a defence to liability at the Hearing, that the Claimant was partly to blame for the accident. Nor did they challenge the amount being claimed by the Claimant, whether on the grounds of lack of receipts, or otherwise.

11.  In such circumstances, it cannot be said that the Deputy Adjudicator erred in law in entering judgment against the 2nd Defendant without regard to these matters.

Offer of $5,000 in settlement; impecuniosity

12.  The offer of $5,000 in settlement by the 1st Defendant and the impecuniosity of either of the Defendants cannot constitute valid grounds of appeal. They do not go to whether the Deputy Adjudicator was right in finding that the 2nd Defendant was liable to the Claimant for the damage caused in the traffic accident.

13.  At the hearing before me, the 1st Defendant explained that whilst he was willing to pay the $30,000 under the settlement, he could not afford to make the instalments as originally provided for and asked for adjustments to the quantum and timing of the instalments. As explained to the 1st Defendant, this is a matter between the 1st Defendant and the Claimant, rather than a ground of appeal to challenge the Decision.

Signing document

14.  At the hearing, the 1st Defendant says that he was asked to sign a document in Chinese, which he said was the terms of settlement between him and the Claimant. I note from the transcript that, as mentioned above, the terms were read out, and the 1st Defendant indicated his understanding and acceptance of them before signing.

15.  There is therefore no factual basis to support any ground of appeal under this head.

Unfairness

16.  No other specific ground of unfairness has been raised in the notice of application for leave to appeal.

17.  At the hearing before me, the 1st Defendant says that he had told the clerk to the Tribunal, before the hearing, that he was willing to pay $30,000 to settle the claim, inclusive of the 2nd Defendant’s liability, but that somehow this turned out not to be the case at the Hearing itself – the 1st Defendant settled but judgment was still entered against the 2nd Defendant.

18.  Leaving aside the point that no leave has been obtained to rely on any additional ground of appeal, I would make the observation that the options of putting forward $30,000 to settle either the 1st Defendant’s liability alone or both Defendants’ liability were canvassed at the Hearing at some length. Part of the exchanges, prior to the 1st Defendant signing the settlement agreement, were as follows (translated from Cantonese).

D1: Okay, fine (with me). So, that means, I, that means, it’s settled when I pay $30,000?

Coram: Yes, you…

D1: My case settled?

Coram: That’s right.

D1: So you – his – his matter, the second defendant, if he is unable to pay it, whatever it is, it is his own matter, right?

Coram: That’s right, yes.

D1: Fine (with me).

Coram: It’s up to him to pursue the second defendant.

D1: Fine (with me), fine (with me), fine (with me).

19.  From this and other parts of the transcript, it is clear that the difference between settling the 1st Defendant’s liability and both Defendants’ liability was explained to the 1st Defendant.

20.  I therefore do not see any factual basis for a complaint of unfairness, leaving aside the issue of whether any question of law is raised.

Conclusion

21.  There is no merit in the intended grounds of appeal. Accordingly, I dismiss the application for leave to appeal, and make no order as to costs.