HUNG TAT INDUSTRIAL CO V. WAI TAT WATCH CASE MFY

1992, SCT NO. 26

IN THE SUPREME COURT OF HONG KONG

SMALL CLAIMS TRIBUNAL APPEAL

(CLAIM NO. 1003/92)

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REASONS FOR DECISION

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1. This is an appeal by the claimant against the order made by the learned adjudicator of the Small Claims Tribunal on 3rd December 1992 dismissing his claim against the defendant for the sum of $12,954 for goods alleged sold and delivered to the defendant. Application for leave to appeal was made on grounds of lack of impartiality and evidence. Leave was granted on 28th January 1993 on the sole ground that the learned adjudicator had failed to consider the issue relating to the return of goods - a ground substituted by the learned deputy judge granting leave.

2. The claimant's claim was founded solely on an alleged sale of goods which the learned adjudicator dismissed, after refusing to accept the evidence of the claimant as being unreliable. No other or alternative claim for a return of the goods, agreed by the defendant to have been delivered by the claimant, was made by the claimant in the proceedings before the learned adjudicator. It was in fact the defendant who raised the issue. It was the defence of the defendant that the said goods were delivered by the claimant to the defendant for processing. Such goods were duly processed and redelivered to the claimant. However, as the claimant failed to pay the processing charges as promised upon the redelivery of the goods, the defendant withheld the goods from the claimant. Thus, the defence raised a lien on the goods for the processing charges, No findings were made by the learned adjudicator on this allegation of the defendant, or his allegation for processing charges, upon her dismissal of the claimant's claim.

3. Though the issue about the obligation to return the goods upon a discharge of the lien by payment of processing charges had not been made part of the claimant's claim, it was nevertheless an issue before the tribunal when raised by the defendant. It was thus obligatory for the learned adjudicator to make a determination in respect thereof. Even if the matter had not been expressly raised, an adjudicator is obliged to inquire into it so long as it is relevant to the claim (see s.16(3) of the Ordinance). A failure by the learned adjudicator to resolve a matter expressly raised before her amounted to an error in law. Thus the issue ought to be remitted back to her for a proper determination. And I have so ordered.

4. It is, however, to be noted that the said issue involves a matter which is beyond the jurisdiction of the tribunal as set out under s.5 and the schedule to the Ordinance. The tribunal has jurisdiction over monetary claims only. There is no jurisdiction to entertain claims for return of goods, or to make any order in respect thereof. In the premises, when the matter is placed before the learned adjudicator again, she should make a determination as to whether she would decline to determine the matter for want of jurisdiction and leave it to the parties to litigate in the appropriate forum; or make an order pursuant to s.7 of the Ordinance for a transfer of the proceedings to the appropriate court (s.10 has no application as that provision operates in respect of a monetary claim only).

5. I note en passant that it is unwise for the learned adjudicator to determine and dismiss the claimant's claim when she cannot also deal with the matter relating to the return of the said goods due to want of jurisdiction. By dismissing the claimant's claim and leaving the case raised by the defendant and the return of the goods unresolved, she is creating a situation that is potentially capable of resulting in another court, when dealing with those other matters, making findings of fact inconsistent to those found by her. This would have been most undesirable. It would have been more appropriate for the learned adjudicator to decline jurisdiction pursuant to s.5(3) and s.7, and ordered a transfer of the entire proceedings including the claim for goods sold and deliver to the appropriate forum.

6. Since both parties are unrepresented and that the claimant, though succeeded in obtaining the order I made, did not initiate the issue of return of goods at all at the trial or at the application for leave to appeal; and that the defendant did not resist this appeal at all; I have made no order as to costs of the appeal.