CENTALINE PROPERTY AGENCY LTD v. W

HCSA 62 & 63/2018

[2020] HKCFI 772

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

SMALL CLAIMS TRIBUNAL APPEAL NOS 62 AND 63 OF 2018

(ON APPEAL FROM SMALL CLAIMS TRIBUNAL
CLAIM NO 20808 OF 2018)

______________

______________

____________________

DECISION

____________________

Introduction

1.  These are the Applicant’s applications for leaves to appeal against (1) the decision of Deputy Adjudicator Toh (the “Deputy Adjudicator”) of 27 November 2018 (the “27/11/18 Decision”), and (2) the decision of Registrar Ho on 10 December 2018 (the “10/12/18 Decision”).  Those Decisions are not the award or judgment of the underlying claim and counterclaim between the Claimant and the Applicant.  In fact, the trial of the dispute has yet to take place.  Those Decisions, or at least the part of the Decisions which the Applicant is seeking leave to appeal, are principally case management or administrative decisions made by the Deputy Adjudicator and the Registrar relating to certain what the Applicant has described as “accessibility requests”.

Factual background

2.  The underlying claim was brought by the Claimant against the Applicant for certain commissions allegedly payable under an estate agency agreement.  The Applicant has counterclaimed.  We are not concerned with the details of the underlying claim and counterclaim.

3.  The Applicant has visual impairment.  She says that she has been issued with a card of “Person with Disabilities” by the Labour and Welfare Bureau.   For the purpose of these applications, I accept the Applicant’s words for that.

4.  The Applicant’s position is that because of her visual impairment, she needs documents to be in bold print (or of higher contrast) and of larger font size (at least 20) so that she can properly read them.  She also says that because of her visual impairment, it takes her longer time to read any document and photograph provided to her.

5.  On 5 October 2018, a pre‑trial review was held before the Deputy Adjudicator.  Directions were given on the filing by the Applicant of a further witness statement to deal with a particular event, and for the Claimant to file on or before 19 October 2019 a witness statement in reply (and to deal with certain other matters).  No directions were given as to the print or font size of the documents to be filed by the Claimant.

6.  The trial was scheduled to take place on 24 October 2018 with that whole day reserved.  It did commence as scheduled.  On that day:

(a)  before evidence was called, the Applicant made a number of applications before the Deputy Adjudicator:

(i)  she wanted leave to have a person she intended to call as a witness to be her assistant in the trial;

(ii)  if she was successful with (i), she sought an order that the Claimant should bear the salary of her assistant irrespective of the result of the trial;

(iii)  she objected to the admissibility of those documents filed by the Claimant pursuant to the directions given during the pre‑trial review (namely C28‑C37), on the basis that the fonts were too small and too light, and that they were only served upon her on 19 October 2018; and

(iv)  a certain representative of the Claimant be called or cross‑examined;

(b)  having heard parties, the Deputy Adjudicator on the same day:

(i)  allowed (i) with certain conditions;

(ii)  refused (ii) on the basis that costs matters would be dealt with at the end of the trial in accordance with section 24 of the Small Claims Tribunal Ordinance, Cap 338 (“Cap 338”);

(iii)  refused (iii) on the basis that the documents were served in accordance with directions previously given and that they were relevant.  When the directions were given, the Applicant did not indicate that she would not have enough time to prepare for the trial.  The Deputy Adjudicator further did not accept that the fonts were too small or too light, and that they were of sizes similar to other documents filed earlier;

(iv)  refused (iv).

(c)  after the dismissal of the said applications, the Applicant made further applications to the Deputy Adjudicator and repeated her request for documents with larger font size;

(d)  the Deputy Adjudicator indicated that she (the Deputy Adjudicator) could entertain further submissions from the Applicant. The Deputy Adjudicator therefore withdrew her earlier relevant rulings.  She told the Applicant that if she had any further applications, she could make them in writing;

(e)  the Applicant sought costs against the Claimant in respect of a number of earlier hearings.  The Deputy Adjudicator declined, stating again that costs were to be dealt with at the end of the trial;

(f)  as the allocated time for the trial had been used up, the trial was adjourned to 14 February 2019.

7.  After the hearing but on the same day, the Applicant in writing made again a request that the Claimant should provide the documents it had filed in fonts enlarged to 20 or above.  She also complained about how her previous requests for documents with enlarged fonts had been allegedly ignored by the Tribunal.

8.  Upon receipt of the written request, the Deputy Adjudicator directed that even though she had indicated that she had withdrawn her relevant ruling, the more appropriate step to take in her view was to deal with the Applicant’s further requests by way of a review.  27 November 2018 was fixed for that purpose.

9.  The Applicant subsequently issued further letters to the Tribunal (two dated 11 November 2018).  Amongst other things, she repeated her objection to the admissibility of C28‑C37.  She said that they were not readable by her.  They were sent late to ambush her.  She expressed “serious doubt” on the accuracy of the records in the Tribunal files.  She sought costs sanction against the Claimant.  She “further request[s] the [Small Claims Tribunal] to send ALL letters to the defence in readable fonts, i.e. solid black and a size of at least 20”.  She also made a request in respect of the “accessibility of the claimant’s documentary evidence”, that all of the Claimant’s documents should “be printed in solid black of a font size of not less than 20”.  She alleged discrimination contrary to the Disability Discrimination Ordinance.    

The 27/11/18 Decision and 10/12/18 Decision

10.  The review took place as scheduled on 27 November 2018.  The Applicant did not show up.  The Deputy Adjudicator considered the Applicant’s written correspondence with the Tribunal.  She recited what happened during the hearing on 24 October 2018.  She checked the Tribunal’s records and confirmed that the Applicant did not make any similar “accessibility requests” during the earlier hearings on 27 June 2018, 31 July 2018, and 5 September 2018.  She also confirmed that the Applicant did not make similar requests or complaints during the pre‑trial review on 5 October 2018.  She observed that the documents provided by the Claimant were of font size similar to certain letters issued by the Applicant herself.  She also observed that the Applicant could enlarge any documents provided by the Claimant herself, and that would not do injustice on her.  The Deputy Adjudicator on the same date affirmed her original orders (ie the 27/11/18 Decision, with written decision handed down on 11 February 2019).

11.  Separately, given the Applicant’s written request that “the [Small Claims Tribunal] to send ALL letters to the defence in readable fonts, i.e. solid black and a size of at least 20”, the Registrar in that capacity was invited to consider that specific request.  On 10 December 2018, the Registrar refused the request (ie the 10/12/18 Decision).  In his written decision dated 24 January 2019, he stated, amongst other things, that:

“ 13. Having conducted this balancing exercise, I had no hesitation in coming to the conclusion that the cost of entertaining the Request would be disproportionate to the relative ease on the [Applicant’s] part to obtain assistance at minimal cost to read the Tribunal’s documents, hence the decision to refuse the Request.”

In respect of the “points of law” raised by the Applicant relating to the Disability Discrimination Ordinance and the Applicant’s fair trial right under the Basic Law and the International Covenant on Civil and Political Rights, the Registrar did not see the need to address them save observing that the Applicant had not been discriminated against.

The Applicant’s Forms 9

12.  On 21 December 2018, the Applicant filed her Forms 9 seeking leave to appeal both the 27/11/18 Decision and 10/12/18 Decision.  In gist, she claims that both the Deputy Adjudicator and the Registrar have taken into account irrelevant considerations, that she (the Applicant) has been discriminated against contrary to the Disability Discrimination Ordinance, that the duties on the part of the Tribunal in providing her with special measures have been ignored, that her fair trial right has been infringed, and that “the Tribunal has intentionally not allowed reasonable and sufficient time for [the applicant] to prepare [her] defence”.

13.  Subsequently, the Applicant placed before me for the purpose of the applications a 22‑page submissions with reference to various cases and enactments.

The application in respect of the 10/12/18 Decision

14.  I deal with the Applicant’s application in respect of the 10/12/18 Decision first.

15.  Section 28(1) of Cap 338 stipulates that:

“ (1) 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.”

16.  The word “tribunal” is defined in s 2 as meaning “the Small Claims Tribunal established by section 3”.

17.  Sections 3 and 4 of Cap 338 provides that:

“ 3. Establishment of tribunal

(1) There is hereby established a tribunal to be known as the Small Claims Tribunal and to be known in the Chinese language as “小額錢債審裁處”.

(2) The tribunal, which shall consist of such adjudicators and deputy adjudicators as may be appointed under this Ordinance, shall be a court of record with such jurisdiction and powers as are conferred on it by this or any other Ordinance.

(3) All proceedings in the tribunal shall be heard and determined by an adjudicator or a deputy adjudicator sitting alone.

(4) The tribunal shall have a seal of a design approved by the Chief Justice, and all awards, orders, summonses, and other processes of the tribunal shall be sealed therewith.

4. Appointment of adjudicators

(1) The Chief Executive shall appoint such number of adjudicators as he considers necessary.

(2) (Repealed 10 of 2005 s. 151)

(3) An adjudicator shall be known in the Chinese language as “審裁官”.

(4) Subject to subsection (5), an appointment made under subsection (1) may be given retrospective effect.

(5) No person appointed as an adjudicator shall discharge any judicial function before the date of the instrument by which he is appointed or before the requirements of section 17 of the Oaths and Declarations Ordinance (Cap. 11) have been fulfilled.”

18.  On the other hand, the word “registrar (司法常務官)” is defined in s 2 of Cap 338 as meaning the “Registrar of the District Court”.

19.  Reading the above sections together, I hold that it is clear that the word “tribunal’ in s 28 of Cap 338 does not include the Registrar.

20.  The result of the above is that the 10/12/2018 Decision by the Registrar is outwith the scope of s 28 of Cap 338. This Court has no jurisdiction to grant leave thereunder.

21.  The Applicant’s application for leave against the 10/12/18 Decision is dismissed.

22.  In her written submissions, the Applicant, perhaps realizing the legal hurdle she faces, says that if she is wrong in submitting that the word “tribunal” includes the Registrar, she seeks clarifications from this Court as to how to appeal against the 10/12/18 Decision.

23.  With respect, that is not the function of this Court.  Giving any advice along the line the Applicant seeks potentially hampers the impartiality of this Court, and ultimately affects the rule of law.  I decline the Applicant’s request in this regard.

The application in respect of the 27/11/18 Decision

24.  I have considered the Applicant’s application carefully and anxiously.  I have set out above in some details the factual background leading to these applications.  I did so as in my view they are crucial in my consideration of these applications.  I explain.

25.  24 October 2018 was the trial of the dispute between the Claimant and the Applicant.  It duly commenced before the Deputy Adjudicator.

26.  In the course of that trial, the Applicant made a number of applications leading to the decisions the Deputy Adjudicator made on that day.

27.  The trial was only adjourned (to 14 February 2018) because the time reserved on that day for the trial was depleted as a result of the need to deal with the Applicant’s applications.

28.  The 27/11/18 Decisions were made in review (but in affirmation) of the decisions the Deputy Adjudicator made on 24 October 2018 in the course of the trial.

29.  The trial was due to resume on 14 February 2019, but was only adjourned as a result of the Applicant’s applications for leave herein.

30.  There has been no trial of the dispute between the Claimant and the Applicant.

31.  The Applicant claims that she would be (or even has been) prejudiced in the preparation of her trial as a result of the 27/11/18 Decision, that her fair trial right infringed, and that she has been discriminated against.

32.  But at the moment, and before the conclusion of the trial and the result known, all of the Applicant’s claims could only be considered (if they could properly be considered at all) in a vacuum.  In the course of any trial, the courts or tribunals have plenty of inherent powers and measures to ensure fairness.  Documents for example could be explained to the litigants or witnesses if they claim they could not comprehend them.  Unfairness cannot be assumed before the process has been undertaken.

33.  Also, and importantly, if ultimately the Applicant is successful in defending the Claimant’s claim and establishing her counterclaim, her allegations of unfairness may, in the context of the trial, become entirely academic.

34.  In addition to the considerations above, allowing interlocutory appeal of decisions made in the course of a trial has the effect of truncating and fragmenting a trial, and is adverse to the due administration of justice.   As has been explained by Recorder Lisa Wong SC (as her Ladyship then was) in Daimler AG (formerly known as Mercedes-Benz AG) v Leiduck, Herbert Heinz Horst and Another,HCA 4089/1994 (unrep, 2 April 2013):

“ 7.  While I agree with Mr John Yan SC for the Plaintiff that each case turns on its own facts, in particular, the nature and effect of the interlocutory order sought to be appealed against and its bearing on the issues to be decided, it can be stated as a matter of general principle that appeals to the Court of Appeal in the course of trials of actions or other substantial hearings of applications are highly undesirable and greatly discouraged.  Apart from disrupting the trial or hearing and adding to the workload of the Court of Appeal, many such interlocutory appeals might eventually turn out to be academic having regard to the final outcome of the trial or hearing.  Consequently, the Court of Appeal may hear an interlocutory appeal in the course of a trial or hearing but only in exceptional circumstances.  See Hong Kong Civil Procedure 2013, Volume 1, p 458, §20/8/12 (citing the English Court of Appeal’s judgment in McGarry (E) Electrical v Burroughs Machines, unreported, 14 April 1986, Transcript No 346).  An example of exceptional circumstances given by the learned authors is where the trial is likely to be lengthy and an application for amendment to pleading is made to the trial judge which is substantial or crucial and which, whether granted or refused, will or may affect the final outcome of the action or is likely to be decisive after litigation.  In such a situation, the trial judge may rule on the application and give the parties leave to appeal, and then adjourn the trial before him to enable the parties to appeal with due expedition to the Court of Appeal who may in its discretion hear the appeal speedily, and thereafter the parties will return before the judge to resume the trial in the light of the decision of the Court of Appeal on the proposed amendment.

8.  The same statement of principle at p 369, §20/5‑8/12 of the Annual Practice was cited with approval by the Court of Appeal in Lam Choi King v Yeung Fook Chi [1991] 1 HKC 219 at 226G‑227B, which involved an interlocutory appeal against a ruling made in the course of a trial excluding the evidence of a witness called by the plaintiff on the ground that it was irrelevant to the issues for trial.  The Court of Appeal considered the views expressed by the editors of the Annual Practice as to the undesirability of interlocutory appeals in the course of trials to be apposite to the situation before it, although those views were expressed in the context of amendments to pleadings in a system of litigation which envisaged the grant or refusal of leave to bring interlocutory appeals. 

9.  The general disapproval of interlocutory appeals during trial save in exceptional circumstances was said by the Court of Appeal in To Kan Chi v Pui Man Yau [1998] 3 HKC 371 at 387 per Nazareth VP to be ‘not in doubt’ and to have been ‘reinforced by the increasing emphasis by this court upon case management by the trial judge’ (see further paragraph 11 below).  See also CKW Company Limited v Secretary for Justice [2005] 1 HKC 96, an interlocutory appeal against a decision made by a trial judge on the first day of trial refusing to revisit his earlier decision for a split trial of the issues of liability and quantum, at 109A‑H per Woo VP citing Lam Choi King and To Kan Chi.”

35.  I see no exception circumstances in the present case for me to entertain any interlocutory appeal.  The trial of the claim between the Claimant and the Applicant is not going to be long.  It will be far more appropriate for the trial to proceed.  In the course of the trial, I have no doubt that the Deputy Adjudicator will, as all judicial officers would, adopt all measures which the Deputy Adjudicator deems appropriate that are within her power and in her discretion to ensure fairness.  At the end of the trial, should the Applicant lose her defence and/or her counterclaim, and should she hold or maintain the view that she has not had a fair trial (because of the matter she is now complaining about or otherwise), she may then, should she deem appropriate, seek leave to appeal.  All the matters which the Applicant has raised in these applications, which potentially raise important and far-reaching issues, may then be properly considered in their proper context.

36.  I come back to s 28 of Cap 338.  The Court has a discretion in deciding whether to grant leave.  This is clear from the word “may” in that section.  In the circumstances of this case, on its facts, and for the reasons set out above, I refuse the Applicant leave to appeal against the 27/11/18 Decision.

Costs of some earlier hearings

37.  In the course of the hearing before me, the Applicant requested me to direct the Deputy Adjudicator to consider the issue of costs in respect of a number of hearings that had taken place before the Tribunal.  I do not have the jurisdiction to do so.  In any event, the approach of the Deputy Adjudicator of dealing with all costs at the end of the trial is clearly correct.  I decline the Applicant’s request.

Disposition

38.  For the reasons set out above, I refuse the Applicant leave in respect of both applications.  I make no order as to costs.