WOO TAK YAN v. SECRETARY FOR JUSTICE / DEPARTMENT OF JUSTICE

HCSA 39/2022

[2023] HKCFI 2452

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

SMALL CLAIMS TRIBUNAL APPEAL NO 39 OF 2022

(ON APPEAL FROM SMALL CLAIMS TRIBUNAL CLAIM

NO 20747 OF 2021)

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DECISION

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Introduction

1.  On 30 August 2022, in the Small Claims Tribunal proceedings in SCTC 20747/2021, Mr Vincent Kee, deputy adjudicator, dismissed the following:

(1)  the claimant’s application to strike out the defendant’s counterclaim under section 25 of the Small Claims Tribunal Ordinance, Cap 338; and

(2)   the claimant’s application to enter judgment upon the defendant’s failure to comply with court orders under section 26A of the Ordinance.

2.  On the following day, the claimant applied for a review of the above decision.

3.  On 1 November 2022, the deputy adjudicator confirmed the decision and dismissed the review application.

4.  The deputy adjudicator set out his reasons for the substantive decision and the review decision in two written decisions both dated 15 December 2022.  I shall refer to them below as the “first written decision” and “the second decision”, respectively.

5.  The claimant now seeks leave to appeal against the review decision.

The claim and the counterclaim

6.  The claimant was a civil servant working at the Environmental Protection Department.  He was interdicted from duty with effect from 12 April 2021.

7.  Subsequently, the personal belongings which he had placed at his office were removed by the department to mini-storage units rented by the latter.  Those personal belongings remained there since then. 

8.  The claimant claims against the defendant in tort for infringement of his rights, including his legal and beneficial ownership, access and custody, use and enjoyment, in relation to his belongings.

9.  On the other hand, the defendant counterclaims as follows.

10.  Upon his interdiction, the department requested the claimant to remove his personal belongings from the office.  Despite repeated reminders, the claimant failed to do so.  The department made an offer to send the belongings to his home on 23 April 2021 but the claimant refused.  Then the department informed him that the belongings would be temporarily stored in mini-storage units rented by it and requested him to take them back within one month.  The department also warned him that if he failed to do so, it would recover the storage costs from him.  Since then, the department issued a number of reminder letters.  But the claimant did not collect his belongings.

11.  The department was paying a monthly sum of about $7,000 for the mini-storage units.  The defendant now counterclaims against the claimant for the rentals, both incurred and accruing.

The decision on striking out

12.  Section 25 of the Ordinance provides:

“The tribunal may at any time dismiss a claim which it considers to be frivolous or vexatious on such terms as to payment of costs as it may think fit.”

13.  In the first written decision, the deputy adjudicator set out in paras 10 to 12 his reasons for dismissing the claimant’s application to strike out the counterclaim under section 25.

14.  He was of the view that the claim and the counterclaim were closely linked.  (In that decision, he also dismissed the defendant’s application to strike out the claimant’s claim.)

15.  He was of the view that it was arguable that the defendant was an involuntary bailee and that its claim for storage fees was hence arguable.  It was therefore not a plain and obvious case that the counterclaim should be struck out. 

16.  He said:

“11. 被告人是否成為一名非情願受托保管人是有爭辯的空間。若被告人是一名非情願受托保管人，根據Chitty on Contracts – Hong Kong Specific Contracts (5^th edition) 第 3-032段：

“An involuntary bailee is entitled to be paid for the cost of storage or procuring storage.”

12. 明顯地，根據上述案情和法律典據，被告人作為非情願受托保管人能否向申索人反申索在暫托申索人的物品時的租倉費是可以爭辯的，故此本席不認為反申索是一宗「plain and obvious case」以使法庭引用該條例的第25條去剔除反申索。”

17.  In the second written decision, he reiterated this view and set out his reasoning in paras 33 to 42.  He specifically dealt with the claimant’s argument that the counterclaim had no valid legal basis, by re-citing the same passage from Chitty: see para 38.  He maintained the view that there was room for the defendant to mount the involuntary bailee contention as a cause of action, both on the law and on the evidence.

18.  In the review hearing, the claimant submitted that there was no legal basis for the defendant to take away his property in the first place and such act was similar to theft and, further, after it did so illegally, it was unreasonable for it to then demand him to pay the storage fees.

19.  At para 40, the deputy adjudicator held that whether there was justification for the defendant to remove the claimant’s belongings was a matter for trial.  He said:

“申索人指被告人取走申索人的物品，沒有合法基礎，行為好像賊人一樣。他又打個比喻，指被告人的行為好像賊人偷去別人的財物，然後暫存，再到法庭追討代表物主暫存物品的暫存費，這是不合理的。但被告人移走申索人物品的過程是怎樣，是否欠缺理據去移走和追討存倉費，這些事項應留待審訊，聽取所有證據之後才作事實裁斷。”

The decision on entering judgment upon failure to comply with an order

20.  Section 26A of the Ordinance provides:

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

21.  In his application under this section, the claimant relied on the following two orders.

22.  First, the order made on 5 July 2021 (“the July order”):

“被告人須於2021年9月13日或以前，把答辯供詞 / 及其他事實證人的供詞，連同進一步的文件證據副本 / 文件夾目錄送交審裁處存檔，並以掛號郵遞方式送達對方。”

23.  The deadline of 13 September 2021 was later extended to 20 September 2021.

24.  Second, the order made on 29 November 2021 (“the November order”):

“The Defendant do file with the Tribunal and serve on the Claimant by registered post supplemental witness(es) statement(s) on liability and quantum on or before 31 December 2021 …”

25.  In the substantive hearing, the claimant contended that (1) the defendant had failed to comply with the July order because it had failed to submit a “defence” within the deadline, and (2) the defendant had failed to comply with the November order.  Upon such non-compliance, he invited the tribunal to exercise its discretion to enter judgment against the defendant.

26.  In the first written decision, the deputy adjudicator set out his reasons in paras 18 to 20 for dismissing the application to enter judgment under section 26A. 

27.  He found that the defendant had filed with the tribunal documents numbered “D1-64” within time under the July order and documents numbered “D65-230” within time under the November order. 

28.  Moreover, he highlighted that the July order required the defendant to submit defence statements (答辯供詞) and statements of other factual witnesses (其他事實證人的供詞) and that the documents numbered “D1-64” contained defence statements. 

29.  At the substantive hearing, the claimant claimed that he had not received the two batches of documents from the defendant.  The deputy adjudicator had some queries over this assertion.  Nevertheless, he held that in any event, the contents of the documents were relevant to the disputes between the parties and the tribunal had a duty to inquire into any matter which it might consider relevant to a claim under section 16(3).  Hence he would not exercise his discretion to enter judgment against the defendant.  He distinguished the authority relied on by the claimant on the facts.

30.  In the review hearing, the claimant repeated some of his original arguments.  In the second written decision, the deputy adjudicator maintained his ruling and set out his reasoning in paras 16 to 30.

31.  As regards the claimant’s contention that the defendant had failed to file a “defence”, the deputy adjudicator repeated that the July order did not direct the defendant to file a “defence”.  He said, at para 16:

“申索人指被告人沒有依照朱審裁官的指示存檔和送達「defence」。朱審裁官的指示要求被告人提交答辯供詞，不是「defence」，本席認為被告人有跟隨朱審裁官的指示行事。”

32.  The deputy adjudicator also re-confirmed, at para 20, that the documents numbered “D1-64” were defence statements (答辯供詞) and hence the defendant had not violated the July order.

33.  On the issue of whether the defendant had in fact served the two batches of documents on the claimant, the deputy adjudicator was inclined to believe that it had: para 24.  In any event, however, even if it had not, the claimant subsequently had opportunities to review those documents and reply to them.  In the circumstances, it would not be fair to enter judgment based on the non-compliance: paras 28 to 29.

The proposed grounds of appeal

34.  In his Form 9, the claimant put forward the following grounds to say that the review decision is erroneous in point of law:

“1. the order is plainly wrong and/or made out of apparent bias;

2. the order is made against substantive evidence;

3. the order is made without any reference to legal basis purported;

4. the order is made by considering irrelevant factor; and/or

5. the order is made by Adjudicator’s acting as siding with Defendant and even as Defendant’s counsel.”

Discussion

35.  Section 28(1) of the Ordinance 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.”

36.  As is plain from the extract above, the proposed grounds of appeal are not particularised.  They fail to spell out precisely how the deputy adjudicator has made the alleged errors in law.  They are simply blanket assertions of the errors.  For the hearing before me, the claimant had submitted a five-page written submissions.  He sought to explain where and how the deputy adjudicator had gone wrong.  However, he did not do so by express reference to the five grounds of appeal set out in his Form 9.  Some of the submissions are not entirely comprehensible.  It also appears that he was repeating the arguments which he ran before the deputy adjudicator.

Striking out

37.  The submissions made by the claimant in relation to the striking out decision are not comprehensible. 

38.  I reproduce the main paragraphs below:

“15. Accordingly, it was out of Adjudicator’s apparent bias and plainly wrong about paragraph (36) & (41) of Review Judgment that bailment had been rejected by Defendant and trespass to land was unjustified even by Defendant’s own authority in failing due process as required. Further, s16(3) was about any matter relevant to the counterclaim but not counterclaim itself. In short, Adjudicator’s judgment was made without any reference to legal basis purported which should not be made under s16(3) by Adjudicator as alleged therein paragraph (37) of Review Judgment.

16. Also, it was plainly wrong for Adjudicator to assist Defendant at paragraph (38) of Review Judgement to provide any legal basis concerned even if applicable.  After all, it was Defendant’s own burden to identity its basis to proceed with the counterclaim.”

39.  The submissions appear to relate to the first, third and fifth proposed grounds of appeal.

40.  In my view, the reasoning adopted by the deputy adjudicator in refusing the striking out application is plainly sound and valid as a matter of legal analysis. 

41.  Furthermore, as commented by the deputy adjudicator in the second written decision (para 36), the defendant expressly referred the tribunal to three notions in its written submissions – conversion, involuntary bailee and trespass to land.  In light of that, it is not understood why the claimant now says that “bailment had been rejected by Defendant”.

42.  As regards the claimant’s argument that the deputy adjudicator had wrongly assisted the defendant in providing a legal basis for his counterclaim, there is, in my view, nothing in the two written decisions showing that to be the case. 

43.  In his reasoning, the deputy adjudicator quoted a passage from Chitty (see paras 16 and 17 above).  Insofar as the claimant is now saying that the deputy adjudicator ought not to have done so when the defendant did not rely on it in its submissions, there is no merit in this contention. 

44.  As remarked by the deputy adjudicator, the tribunal had a duty to inquire into any matter which was relevant to the claim, even when it had not been raised by a party: see para 37 of the second written decision.  In my view, the deputy adjudicator committed no error when he referred to the passage in Chitty as part of his reasoning in concluding that that cause of action was arguable. 

45.  The intended appeal against the striking out decision is unarguable.

Entering judgment upon failure to comply with an order

46.  As regards the claimant’s application to enter judgment pursuant to section 26A, his present complaint, as revealed by his written submissions, appears to be that the deputy adjudicator’s decision was made out of apparent bias.  First, the claimant points out that in his reasoning, the deputy adjudicator did not refer at all to the claimant’s repeated assertions made in writing throughout the small claims proceedings that the defendant had put forward no defence to resist his claim.  Secondly, what the defendant had submitted were only “witness statements” and that was in violation of the July order.

47.  In my view, there is no merit in this argument. In the two written decisions, the deputy adjudicator explained in plain and clear terms what was required to be submitted by the defendant under the July order and soundly concluded that what the defendant submitted came within the order: see paras 28, 31 to 32 above.  I have also taken a look at the documents numbered “D1-64”.  I agree with the conclusion.  The fact that the claimant had repeatedly made written assertions in the proceedings that there was no defence is beside the point.

48.  In any event, even if the defendant had failed to comply with the July order and/or the November order because it had failed to serve them on the claimant, I agree with the deputy adjudicator’s view that the tribunal should not enter judgment solely for that reason.  His reasons, as set out in paras 29 and 33 above, are plainly correct.  

49.  There is no prospect of success in the intended appeal against the decision under section 26A.

Conclusion

50.  For the above reasons, I dismiss the claimant’s application for leave to appeal.