LI YUNHUA v. WONG CHUNG LING AND ANOTHER

[English Translation － 英譯本]

HCSA 31/2025

[2025] HKCFI 4613

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

SMALL CLAIMS TRIBUNAL APPEAL NO 31 OF 2025

(ON APPEAL FROM SMALL CLAIMS TRIBUNAL CLAIM NO 8551 OF 2022)

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J U D G M E N T

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I.  INTRODUCTION

1.  On 15 September 2025, Deputy Adjudicator Mr George Lam of the Small Claims Tribunal (“the Deputy Adjudicator”) ordered that the claim lodged by the Claimant be transferred to the District Court (“the Transfer Decision”) pursuant to Section 7 of the Small Claims Tribunal Ordinance (“the Ordinance”). On 17 September 2025, the 1^st and 2^nd Defendants applied to the Court of First Instance of the High Court for a review of the Transfer Decision pursuant to Section 27 of the Ordinance. Mr Joseph To, Counsel for the 1^st and 2^nd Defendants, was of the view that, according to Section 7(1) of the Ordinance, this Court ought to decide on the review within 14 days of the Transfer Decision (i.e. 29 September 2025), which I queried. Whilst Section 7(1) of the Ordinance requires the Court of First Instance of the High Court to review the decision within 14 days, it does not specify that the review ought to be decided within 14 days. In any event, Mr To did not prepare detailed submissions in this regard. Thus, to err on the side of caution, I adopted 14 days as the time limit for giving this judgment.

II.  BACKGROUND

2.  The claim lodged by the Claimant is a tort of personal injury. The 1^st Defendant is the husband of the 2^nd Defendant. The incident took place at about 7:45 p.m. on 8 August 2023, and subsequently the Claimant and the 1^st and 2^nd Defendants were all charged with the offence of Fighting in a Public Place. The 1^st and 2^nd Defendants pleaded guilty in Tuen Mun Magistrates’ Courts on 22 August 2023, whereas the Claimant pleaded not guilty. After trial, Magistrate Mr Raymond Wong found that the 1^st Defendant first aggressively provoked, then even assaulted the Claimant on her body, whereas the 2^nd Defendant also joined in on the assault on the Claimant at a later stage. Therefore, Magistrate Mr Raymond Wong found that the incident was not fighting among themselves, and the Claimant was acquitted.

3.  On 28 February 2024, the Claimant filed a claim with the Small Claims Tribunal. She alleged that she had originally intended to make a claim for “mental distress”, “loss of earnings”, and “damages”. However, as she had no knowledge of the law, she only mentioned in the claim form the claim for loss of wages and income since her unemployment, the amount of which was HK$64,800.

4.  On 18 June 2025, a pre-trial review was held for the Claimant’s case. The trial commenced on 26 June 2025, and the relevant CCTV footage was played during trial. In his Reasons for Ruling (Transfer to District Court), the Deputy Adjudicator described a clip of the CCTV footage (“the CCTV footage”) and made subsequent observations as follows before making the Transfer Decision:

“24. At the timestamp of 20:04, after the court has watched the video footage which lasted for 2-3 minutes, I am of the view that the violence inflicted by the 1^st Defendant was extremely brutal and the scenes were appalling. The footage shows, inter alia, that the 1^st Defendant forcibly grabbed the Claimant’s neck and lower jaw with his hands, almost suffocating her. He then punched and kicked her, and when eventually the Claimant fell down, the 1^st Defendant forcefully kneed her in the face…

25. I noticed that the Claimant had a vacant expression on her face in court. She kept crying after watching the footage of being battered, and kept asking herself ‘why did [I] have to be hit by a man?’ I advised the Claimant not to watch such video footage if she did not wish to do so, in order not to cause harm to her emotionally and mentally again.

26. I have re-watched the relevant video footage multiple times. I am of the view that the facts of this case are extremely serious. Even when one watches the footage of the scene until 20:15, it shows that the Claimant was still crying and her body was shaking. The Claimant is a female who was aged about 50 at that time. In my view, the level of harm (including physically and mentally) caused to the Claimant by the battery inflicted by the Defendants is beyond what the Small Claims Tribunal can deal with. I am of the opinion that this case shall be transferred to a higher court to be heard formally as a case of damages for personal injury. The Claimant indicated that she agreed.

27. I believe the damages for the PSLA item (including mental distress) of personal injury alone will already amount to approximately $200,000 to $300,000, before even factoring in the actual and future loss of income. For personal injury cases heard in higher courts, the victim will receive independent medical assessment, and the court will be provided with medical expert reports. The Claimant should not restrict her claim to the loss of half a year’s income due to her lack of legal knowledge. In my view, the $75,000 cap for claims in the Small Claims Tribunal is extremely inadequate, and the claim form had yet to reflect the three items of claim the Claimant demanded. The Claimant confirmed that she agreed.

28. I explicitly indicated that the case would be transferred to the District Court. However, taking into account the possibility of both parties incurring legal fees after the transfer of the case, I first adjourned the case to 9 July 2025 for a social worker to attend the hearing for directions, who could then assist the Claimant in having a better understanding and applying for legal aid. I also took into consideration the fact that the adjournment of the case and the transfer procedure would take time. To avoid delay which might then engage the limitation of action, I allowed the Claimant to amend the claim form forthwith and add the claim for PSLA, that is, damages for personal injury.

29. On 9 July 2025, social worker Madam Tang accompanied the Claimant in attending the hearing. Since the social worker said that she previously had had no opportunity to watch the video recording, the court played again the footage of the Claimant being battered, so that the social worker could understand the severity of the situation. I adjourned the case to give the social worker time to assist the Claimant in applying for legal aid.

30. In a letter sent by the Claimant to the court on 15 August 2025, she stated that she, accompanied by the social worker, made an application with the Legal Aid Department on 16 July 2025. However, as the case had not been formally transferred, the Legal Aid Department could not accept her application. The Legal Aid Department advised the Claimant to first obtain a certificate that proved the conviction of the Defendants from the Tuen Mun Magistrates’ Courts before making the application.

31. In the adjourned hearing on 15 September 2025, Madam Tang said that she had assisted the Claimant in submitting the legal aid application form successfully, and the Legal Aid Department indicated that an interview would be arranged later on.

32. Pursuant to Section 7 of the Small Claims Tribunal Ordinance, I now formally transfer the case (including the main claim and the counterclaim) to the District Court. I remind both parties that after the transfer of the case, they may have legal representation and may apply for legal aid (subject to approval by the Legal Aid Department). The Claimant will receive medical assessment from expert(s), and there will be expert witness(es) at trial. Further directions will be given by the Personal Injury Master and Judge in the District Court for dealing with the case.

33. Based on the authority of Luk Sung Fei Veronica v Chau Chung Shun (HCPI 392/2009, 29 June 2012), which was a High Court case on the damages for personal injury, the damages for PSLA in similar cases were already $200,000. That case was also transferred from the Small Claims Tribunal to a higher court. In my view, the facts of the present case are even more serious. I allow the Claimant to amend the claim form in order to pursue a claim for damages for personal injury.”

III.  LEGAL PRINCIPLES OF REVIEW

5.  Mr To conceded that he did not have sufficient time to make submissions on the legal principles of review, as the time limit for review was relatively short. I was originally minded to adjourn the hearing to give sufficient time to Mr To in assisting the Court, but given the 14-day limit stated in Section 27 of the Ordinance and to err on the side of caution, I could only attempt to clarify the applicable legal principles through discussions with Mr To during the hearing.

6.  In my view, a review is not a retrial. The legal principles governing the review of the transfer of a case should be the same as those governing the appeal or the application for leave to appeal against the transfer of such case, i.e. the appeal court will not easily overturn the decision of an adjudicator unless it is manifestly wrong in legal principle or that no reasonable adjudicator would have made such a decision. The reasons, in my view, are:

(1)  According to Section 7 of the Ordinance, adjudicators of the Small Claims Tribunal may decide to transfer the proceedings at any stage of the claim. In the present case, the Deputy Adjudicator made the Transfer Decision during trial. If the Court of First Instance of the High Court has to retry the case, the presiding judge will have to hear all the evidence, just like what the Deputy Adjudicator did. I am of the view that the legislative intent of the Ordinance definitely will not be requiring the Court of First Instance of the High Court to conduct a trial for a small claim so as to determine whether the relevant decision to transfer should be made; it simply does not accord with the legislation.

(2)  If the principles of review are similar to that of appeal, then why is there a section distinctly for the review of decision concerning transfer? This is because, in my view, a decision to transfer is a case management decision, which is only a small part in the claim procedure and has no substantive bearing on the claim itself. Keeping in line with the legislative principles, only the section on the review of decision concerning transfer distinctly provides for a rather short timeframe for dealing with the matter (i.e. application for review to be made within 7 days, review or even the decision of the review to be made by the Court of First Instance within 14 days), so as to avoid unnecessary delay caused by the procedure to the claim.

(3)  Given such a short timeframe, if the court has to retry the case, it will cause immense difficulties to the applicant, the respondent and the court, and will also be unfair to all parties.

(4)  In contrast, the adjudicator of the Small Claims Tribunal has the advantage of handling the case at first hand and the first-hand experience of managing cases in the Small Claims Tribunal. As such, the adjudicator understands the need to strike a balance between the duty to inquire and maintaining impartiality of the Small Claims Tribunal when both parties interact without legal representation.

7.  I shall deal with the three grounds for review raised by the 1^st and 2^nd Defendants one by one.

IV.  FIRST GROUND FOR REVIEW

8.  The first ground for review is that a reasonable and informed observer would think that the Deputy Adjudicator had descended into the arena. Both the 1^st and 2^nd Defendants submitted that the Claimant had been advised many times that she should seek legal advice, but she insisted on claiming only for the alleged loss of wages and not for any other heads of damages. Furthermore, when the case was listed for trial, both parties were informed that no fresh evidence could be adduced without the court’s permission. However, it was only during the trial that the Deputy Adjudicator considered the Claimant’s PSLA claim (i.e. damages for personal injuries) to be beyond the jurisdiction of the Small Claims Tribunal. The decision to transfer the case could give the parties the impression of actual or apparent bias.

9.  Mr To examined the Small Claims Tribunal using the standards of a criminal court, which I do not find entirely applicable. What needs to be understood is that proceedings in the Small Claims Tribunal should be conducted in an informal manner, the parties are unrepresented, and the standard of proof is the balance of probability. Adjudicators of the Small Claims Tribunal will generally offer more procedural assistance. Insofar as there is no prejudgement or unreasonable barring of either party from making a speech, it is entirely normal even for the parties to be offered assistance during cross-examination. In the circumstances, I see nothing improper.

10.  In the present case, under Section 16(3) of the Ordinance, “the tribunal shall inquire into any matter which it may consider relevant to a claim, whether or not it has been raised by a party”. Further, under Section 7, the Tribunal may, at any stage of proceedings, of its own motion transfer the proceedings to the District Court. If an adjudicator is obligated to make inquiries into a case but subsequently fails to take any follow-up action after inquiries are made, or is perceived to be biased as a result, the duty to make inquiries would be rendered meaningless.

11.  On the contrary, here the Deputy Adjudicator, having exercised his duty to make inquiries into the case, provisionally considered that the Claimant’s claim exceeded the jurisdiction of the Small Claims Tribunal. He therefore explained this to the Claimant and adjourned the case to afford both parties an opportunity to consider his provisional view. During the adjournment, the Claimant confirmed she would apply to the Legal Aid Department for legal aid to assist her in handling the District Court proceedings.

12.  Although the transfer of the Claimant’s application to the District Court took place only at the trial stage, I fully understand the Deputy Adjudicator’s reasons for doing so at that juncture: he could only evaluate the relevant evidence in detail, particularly the CCTV footage at the stage of trial. Upon reviewing the CCTV footage, he inquired and was informed by the Claimant that she had originally intended to claim for “mental distress”, “loss of earnings”, and “damages”, but due to her unfamiliarity with the procedures, had only listed “loss of earnings” in her claim form. If her originally intended claims are substantiated, the quantum of claim to which she should be entitled would exceed the jurisdiction of the Small Claims Tribunal. The Deputy Adjudicator therefore adjourned the case to allow the Claimant to communicate with a social worker on matters which she considered to be suitable for transferring to the District Court. During the adjournment, nothing prevented the 1^st and 2^nd Defendants from seeking legal advice or making submissions in response to the Deputy Adjudicator’s view. This view was clearly a provisional one, as the Deputy Adjudicator made no conclusive findings on the merits of the case when the transfer decision was made. I also consider that there was sufficient basis for this provisional view to be formed. In these circumstances, I see no impression of bias, actual or apparent, let alone any instance of the adjudicator having descended into the arena.

13.  As to the 1^st and 2^nd Defendants’ allegation that the comments made by the Deputy Adjudicator on a related and reviewed criminal case indicated serious bias against them, I disagree. The Deputy Adjudicator merely referred to the facts of the criminal case as a context for the present proceedings.

14.  The first ground for review therefore fails.

V.  SECOND GROUND FOR REVIEW

15.  The second ground for review is that the 1^st and 2^nd Defendants asserted they had no opportunity to seek legal advice or make submissions before the Deputy Adjudicator made the transfer decision, and that he failed to remind the Claimant of her right to abandon part of her claim under section 9 of the Ordinance. However, the fact remained that at trial the Deputy Adjudicator indicated he was considering a transfer and then adjourned the case. During this period of adjourment, the 1^st and 2^nd Defendants had an opportunity to seek legal advice and prepare submissions, had they genuinely needed to do so.

16.  In any event, even before this Court, the 1^st and 2^nd Defendants failed to state if they had had an opportunity to seek legal advice or make submissions, what decisive impact would it have on the transfer decision.

17.  The second ground for review therefore fails.

VI.  THIRD GROUND FOR REVIEW

18.  The third ground for review is that there was no medical evidence before the Deputy Adjudicator to support a more than nominal award for PSLA damages.

19.  Although the Claimant never alleged having sustained any serious physical injury, and there was no evidence of hospitalization or medical leave being granted, the Deputy Adjudicator formed a provisional view based on the evidence before him, including the CCTV footage and testimony of the parties, that the claim exceeded the jurisdiction of the Small Claims Tribunal. As such, I find no error, or any grave error, sufficient to overturn the transfer decision.

20.  The third ground for review therefore fails.

VII.  OVERALL CONSIDERATION

21.  I have also considered the above three grounds for review collectively. Ultimately, the Claimant’s claim was her own decision. The Deputy Adjudicator did not, as Mr To (suggested), “instruct” the Claimant on what to claim. On the contrary, as noted in paragraph 27 of the Reasons for Ruling on the transfer decision, the Claimant herself confirmed and agreed that she intended to claim for “mental distress”, “loss of earnings” and “damages”. Had the Claimant initially submitted a claim form seeking an amount over HK$75,000, as Mr To conceded, no one could have prevented her from instituting a claim in the District Court. The difference here is only that the amount the Claimant originally intended to claim was above HK$75,000, but she failed to make a full claim due to her unfamiliarity with the procedures. When the Deputy Adjudicator discovered this at the trial stage, the Claimant confirmed that she did intend to claim for an amount over HK$75,000, and there was sufficient basis for her to do so, I see no substantive distinction between the two scenarios.

22.  Accordingly, even upon a holistic consideration of all three grounds, I find no error, or grave error, that would justify overturning the transfer decision.

VIII.  CONCLUSION

23.  For the foregoing reasons, I uphold the transfer decision. There shall be no order as to costs given the Claimant’s non-attendance at the review hearing.  

24.  I thank Mr To for his assistance to the Court.