YAN FU KUEN, JOHNNY v. CHONG KUNG CHONG

IN THE SUPREME COURT OF HONG KONG

SMALL CLAIMS APPEAL NO. 31 OF 1991

(Claim No. H3737/91)

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J U D G M E N T

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1. This is an appeal by the defendant from the decision of Adjudicator, Miss Betty Kwan, made on 1st October 1991 leave to appeal having been granted by Chan, J. on 26th May 1992.

2. The claim arose out of a collision at the junction of Wongnaichong Road and Sports Road outside the Royal Hong Kong Jockey Club at Happy Valley between the claimant's taxi and the defendant's goods vehicle. The parties gave evidence by way of their statements and oral testimony before the learned Adjudicator. The defendant also called two witnesses in support of his version of the events.

3. After the conclusion of the evidence, the learned Adjudicator in giving her decision said that she dial not. accept the claimant's evidence fully. On the other hand, she did not accept the defendant's evidence either, and she did not believe the defendant's witnesses. She concluded that she found both parties at fault, and she attributed one-third of the blame to the claimant and two-thirds to the defendant. In her Reasons for Decision dated 13th November 1991, after briefly setting out the evidence of the parties and the witnesses and without mentioning if she accepted such evidence, she stated:-

"5. Even if the traffic lights were faulty and allowed the competing lanes of traffic into that junction at, the same time, both drivers were at fault in that they both failed to keep a proper lookout.

6. The defendant was more to blame than the taxi driver because, in addition to his failure to keep a proper lookout, he also failed to take any evasive action at all. He accelerated into the path of the taxi. For those reason, I found him mone culpable and held him 2/3 to blame for this accident.

4. With respect to the learned Adjudicator, no where on record did she make any finding as to facts. She made her decision purely on the basis of an argumentative premise or assumption that the traffic lights facing both parties were faulty and allowed the competing lanes of traffic into that junction at the same time. It seems to me that she was not justified to base her decision on that or any such premise or assumption. She might be justified on the evidence to find that as a fact, but she did not do so. She must find facts upon which she could reach her conclusion; without such facts as found, then there could have been no legitimate basis for her to enter into the exercise of apportioning the blame. She had therefore erred in law.

5. Although I am empowered by section 29 of the Small Claims Tribunal Ordinance to draw any inference of fact, I have no jurisdiction to reverse or vary any determination of the tribunal on questions of fact. Further, I am not in a position to observe the demeanour of the parties and the witnesses, and I cannot be in a position as good as that the learned Adjudicator to evaluate the truthfulness and reliability of the witnesses and their evidence. What makes it impossible for me to draw inferences of fact from the evidence is that the learned Adjudicator said expressly that she did not believe the defendant and his witnesses, con did she believe the claimant fully. Had she disbelieved all the evidence of the parties and the witnesses, then the claim would simply have failed. However, she did not accept the claimant's story fully, and there was no indication anywhere how far and what part of the claimant's evidence she accepted.

6. In the circumstances, the only satisfactory way of dealing with this matter is to remit it bark to the learned Adjudicator for her to make express findings of fact. In order to be fair to the parties, who have both presented to me many arguments on how the facts should be looked at, they should be allowed to present at the hearing and be allowed to tender any further evidence, call any other witness and make any further representations to the learned Adjudicator before she makes her findings of fact and reaches a determination.