TSE TIN SANG v. NG KWOK CHEUNG

HCSA 17/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

SMALL CLAIMS TRIBUNAL APPEAL NO. 17 OF 2012

(ON APPEAL FROM SCTC 25428/2011)

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J U D G M E N T

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1. On 5 July 2012, leave was granted by Deputy Judge Au-Yeung (as she then was) to the defendant to appeal against two orders of the Small Claims Tribunal. Firstly, an order made on 10 November 2011 whereby the defendant was ordered to pay the claimant a sum of HK$4,000 with interest and costs of HK$192.80. By the same order, the defendant’s counterclaim against the claimant was dismissed. Secondly, an order made on 14 June 2012 by which the defendant’s application to review the aforesaid order was dismissed with costs of HK$1,692.80 (“the Orders”). This is the judgment on the appeal.

2. The dispute between the parties arose from a taxi hire agreement.  It is common ground that by a written agreement (“the Agreement”) dated 1 December 2011 (the year should have been 2010) the claimant hired a taxi from the defendant at a per shift rent of HK$350. Pursuant to clause 8 of the Agreement, the claimant was required to give a 7-day notice to the defendant for the termination of hire.

3. The claimant’s case, which was accepted by the Adjudicator, was that on 10 January 2011 he told the defendant that he would only continue to hire the taxi for 10 more days.  On the next day, at the end of his shift he met the defendant who was in the company of the night shift driver.  He was asked by the defendant to collect his belongings from the taxi, and after that was done the taxi was driven away by the night shift driver. The defendant then asked the claimant for the return of the taxi key which was kept by the latter.  In reply, the claimant asked the defendant for the return of the deposit he had paid under the Agreement.  An argument then ensued between the two men.  Later, the police became involved and the key was eventually handed over to the defendant via one of the police officers. However, the deposit, in the sum of HK$4,000, was not returned to the claimant.  By his claim in the Small Claims Tribunal, the claimant sought the return of the deposit.

4. The defendant’s case was as follows.  He said that prior to the signing of the Agreement an oral agreement was reached between him and the claimant that the latter would continue to work during the Chinese New Year in 2011 (“the Oral Agreement”).  There was no controversy concerning the conversation of the 10 January 2011.  However, the defendant’s position was that the termination was contrary to the Oral Agreement.  He was unable to let out the taxi at that time of the year and had thereby suffered financial loss.  Hence the defendant’s counterclaim for such loss.  What is difficult to understand is that the counterclaim was based on the maximum liability (HK$8,000) which the claimant had for accidental damage to the taxi under clause 5 of the Agreement.  The counterclaim was for the sum of HK$4,000 taking into account the deposit of an equal sum which was held by the defendant.

5. The Adjudicator rejected the defendant’s case on the Oral Agreement.  It was held that the claimant had fulfilled his notice obligation under clause 8 of the Agreement.  Further, the defendant had waived his right to the notice period by reason of his action in taking back the key. There was no reason for not refunding the deposit.  Accordingly, the claim was upheld and the counterclaim dismissed.

6. A number of grounds were advanced in the defendant’s application for leave to appeal against the Orders.  However, leave was granted in respect of only two such grounds, namely:

1.    The learned Adjudicator erred in law in holding that the Defendant had waived the notice requirement on 11^th January 2011 and given the circumstance of the meeting of 11^th January 2011, the learned Adjudicator ought to have found that the Defendant accepted the return of the taxi against his wishes; and

2.    Alternatively, the learned Adjudicator erred in law that he failed to investigate the question whether the Defendant had waived the contractual 7-day notice requirement.

7. The issue here concerns the events of the 11 January.  The following evidence from the defendant bears upon the issue of waiver:

“官：你有冇叫佢交番條匙出嚟？

答：冇。

官：最終你有收佢條匙嘛，係嘛？

答：係個警員問我，佢有冇咩嘢財物喺佢嗰度，咁我就話條匙，咁個警員叫佢畀番我。

官：即係你嘅講法係佢應該起碼要到農曆新年喇，係咪呀？

答：要--係，嗰個能夠協議，當然，當然係起碼過埋年，過埋年正月十幾喇，你做開呢行嘅，你都知喇，正月十幾，啲人都開始返嚟，先至有心機，先開始搵工，先搵番車 ，咁如果你有好發展，其實都唔會阻你發達嘅，我都盡量安排嘅，都唔會話咩嘢。

官：如果係咁，咁當日警員畀條匙你嘅時候，你係咪應該唔好接條匙，即係話「佢根據合約，佢仲要同我租，每日畀租我喎，佢唔可以話唔 就唔喎。」你有冇咁樣同警員表達過？

  答：嗱，警員，就佢叫嚟，我唔知佢同佢咩嘢關係，嗰日個警員，我亦都唔係同佢講好多嘢，簡單講咗少少情形，我話唔可以--我同佢傾就係佢唔可以話走就走，話唔做就唔做，跟住佢個警員話佢而家佢就話唔做喇，要走喇，佢問我有冇咩嘢財物，即係我唔知佢係指我拆咗我啲車嗰啲嘢，定係其他啲嘢喇，抑或係攞走埋啲倒後鏡定其他啲嘢，我唔知佢咩嘢意思，咁佢有冇咩嘢財物呢？咁肯定起碼佢有一條匙係袋住我嘅，佢--嗰個警員同我講，佢話佢而家就話唔做喇，要走喇，要攞按金，問我畀唔畀，恐嚇--哄埋我咁添，咁我話「你有冇理由咁樣幫佢，咁過嚟哄我呢？」係咪走--係咪佢今日話走，我即刻要畀佢呢？我架車有冇--佢有冇損毀過、有冇整過、有冇搞過、聽日嗰副偈會唔會冧咗呢、有冇告票呢，咁所以點解我話行規有啲會四十日、三十日、四十五日或者有啲六十日，點解有啲--點解話佢辭工又會要七日、要十日，點解車主收車會一日呢？第一，因為街唔會話冇車；第二，點解會--點解唔通知你，會畀錢你呢？驚你搞我架車呀。”

8. The following cross-examination of the claimant by the defendant is also relevant:

“問：咁你知唔知你--如果你嗰日--第二日唔開工嘅，我已經有機會架車冇人開喇，你知唔知？

官：停一停。你知唔知如果--你係講緊1月12號，係嘛？

被告人：係。

官：1月12號即係第二日，你唔開工，架車冇人喎，你知唔知？

 答：唔知，唔知，呢啲唔係我嘅問題。”

9. With respect to the Adjudicator, it is clear that he had in mind the issue of waiver when he asked the defendant whether he should have refused to accept the key from the claimant.  On any view, the evidence given by the defendant in this regard was not free from ambiguity.  On the other hand, it was open to a reasonable tribunal to infer from the evidence that the defendant did not have a choice in taking back the key.  However, the matter was not clarified and was left in an unsatisfactory state.  More importantly, the Adjudicator did not consider or deal with this part of the evidence in coming to the conclusion that the defendant had waived the notice requirement.

10. The point is clearly an important one.  There was no dispute about the notice obligation on the part of the claimant.  The claimant was required to hire the taxi for a further 7 days from 10 January 2011.  The only reason why he was not held to the bargain and was allowed to terminate the hire on the next day was the waiver of the notice by the defendant.  It is perhaps stating the obvious that if the circumstances were such that the claimant had no real intention to fulfil his notice obligation the acceptance of the key from him would not constitute a waiver by the defendant.  In legal terms, the claimant could have behaved in such a way that he had repudiated the Agreement in which case it was open for defendant to accept the repudiation and to sue for damages.  The tribunal below was required to consider the relevant circumstances and to reach a finding of fact in that regard.  Unfortunately, that exercise appears to have been omitted.  In these circumstances, the Orders cannot be allowed to stand and this appeal must succeed.

11. As regards the proper order which should be made as a consequence of allowing this appeal, it is suggested in the defendant’s Notice of Originating Motion that he should refund a sum of HK$1,550 to the claimant instead of the full deposit of HK$4,000 to reflect the loss of hiring fee which could have been earned over 7 days (HK$4,000 ‑ HK$2,450).

12. Whilst it is certainly not the wish of this court to see any prolongation of this dispute, I am unable to make the order suggested because the issue of waiver had not been properly adjudicated upon.

13. In these circumstances and with some reluctance, I set aside the Orders and remit this case to the Small Claims Tribunal for retrial before another Adjudicator.  I make an order nisi that the costs of this appeal be to the defendant.