WOO TAK YAN v. SECRETARY FOR JUSTICE

HCSA 67/2024

[2025] HKCFI 664

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

SMALL CLAIMS TRIBUNAL APPEAL NO 67 OF 2024

(ON APPEAL FROM SMALL CLAIMS TRIBUNAL

CLAIM NO 20747 OF 2021)

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J U D G M E N T

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A.  Introduction

1.  By a judgment dated 10 October 2024 (the “Judgment[1]”), Deputy Adjudicator Mr Amos Ma in the Small Claim Tribunal dismissed the Claimant’s claims against the Defendant with costs.

2.  By an extemporary decision on 29 November 2024 (the “Review Decision”), the Deputy Adjudicator further dismissed the Claimant’s application for review with costs.

3.  On 19 December 2024, the Claimant applied for leave to appeal against the Review Decision.

B.  Material Background

4.  The proceedings in the Small Claims Tribunal had a chequered procedural history. For present purposes, it suffices to set out the following matters succinctly.

5.  The Claimant was a senior inspector employed by the Environmental Protection Department (the “EPD”).

6.  On 12 April 2021, the Claimant was interdicted from duties and asked to leave EPD’s office at 34/F of Hopewell Centre (the “Office”).

7.  The dispute between the parties concerned the 230 boxes or pieces of personal belongings (the “Belongings”), which the Claimant left behind in EPD’s Office.

8.  In gist:-

(1)  It was the Claimant’s case that the Belongings were relocated despite his objection. The EPD also breached its promise that the Claimant would have unlimited access to the mini storage facilities where the Belongings were kept (see Judgment at paras 29-45).

(2)  It was EPD’s case that when the Claimant was informed of the interdiction on 12 April 2021, he was (i) asked to pack his essential belongings and (ii) told that he would be informed of the arrangement for collecting the remaining Belongings. It transpired that the Claimant rejected EPD’s reasonable proposals for collecting his Belongings (see Judgment at paras 46-79).

9.  The Deputy Adjudicator held that the main issues in dispute were, inter alios, whether the Defendant was liable to the Claimant for conversion and/or trespass of the Belongings and whether the EPD was entitled to relocate the Claimant’s Belongings (see Judgment at para 83)

10.  Having considered the evidence from the parties, the Deputy Adjudicator took the view that the Claimant was a dishonest and unreliable witness whose evidence was unreasonable and illogical (see Judgment at paras 96-100). In contrast, the evidence from the Defendant’s witnesses (who were EPD’s employees) was logical and reasonable (see Judgment at paras 101-109).

11.  In the premises, the Deputy Adjudicator rejected the Claimant’s case. As the Deputy Adjudicator accepted the Defendant and/or EPD’s case, he found, inter alios, that (see Judgment at paras 96-111):-

(1)  The Claimant was never denied access to his Belongings.

(2)  It was reasonable for EPD to propose that the Belongings be sent to the Claimant’s home at the Claimant’s costs. However, the Claimant unreasonably rejected EPD’s proposal.

(3)  The Claimant’s conduct was unreasonable all along. For instance, at the occasions on 21 and 22 April 2021, the Claimant even refused to collect his medicine and home keys from the Office.

(4)  EPD’s staff repeatedly attempted to contact the Claimant for collecting and/or retrieving his Personal Belongings. To this end, the EPD had already exercised its endeavor.

(5)  However, the Claimant was uncooperative. He evaded the EPD such that he could mount a claim based on alleged conversion and/or trespass to goods.

12.  In light of his factual findings, the Deputy Adjudicator held that:-

(1)  The acts of EPD did not amount to conversation as it did not seek to deny the Claimant’s title over the Belongings. On the contrary, the EPD endeavored to contact the Claimant seeking to return the Belongings to him (see Judgment at paras 154-161, applying Clerk & Lindsell on Torts (24^th Ed) at paras 16-06 to 16-10 and 16-12).

(2)  The EPD did what was reasonable in the circumstances as an “involuntary bailee”, and as such it could not be liable to the Claimant (see Judgment at paras 162-164, applying Desir Anthony C v Knight Frank (Services) Ltd & Ors (HCSA 36/2013) at para 82 (per DHCJ Marlene Ng, as she then was)).

(3)  The acts of EPD did not amount to trespass to goods as EPD did not exercise a sufficient degree of physical intromission. In this connection, not all intentional touching of another’s goods constituted trespass. In the circumstances of the present case, EPD’s conduct was reasonable and acceptable (see Judgment at paras 165-167, applying Clerk & Lindsell on Torts (24^th Ed) at para 16-134).

C.  Legal Principles governing Appeals from the Small Claim Tribunal

13.  Under section 28 of the Small Claims Tribunal Ordinance (Cap 338), any party who is aggrieved by a decision of the Tribunal may apply to the Court of First Instance on a ground involving a question of law alone, or on the ground that the claim was outside the jurisdiction of the Tribunal.

14.  It has been suggested that:

(1)  If an aggrieved party wishes to challenge a finding of fact by the Small Claims Tribunal, he must convince the Court of First Instance that the Small Claims Tribunal erred in law in making such finding of fact. Otherwise, it cannot be said that an error of law is involved: see 鄧偉良 & Anor v 楊若薇 [2024] HKCFI 762 at para 9 (per DHCJ Phoebe Man).

(2)  Finding of facts by the Small Claims Tribunal is generally immune from challenge as it involves no error of law, unless the finding is perverse or irrational or where there is no evidence to support the decision or where the decision is made by reference to irrelevant factors or without regard to relevant factors: see Ko Pui Yee & Ors v Jones Lane Lasalle Management Services Ltd [2023] 2 HKLRD 1382 at para 42 (per DHCJ Winnie Tsui, as she then was).

D.  Deliberation

15.  The Claimant raises six grounds of appeal.

D1.  Ground 1

16.  The Claimant complains that the Deputy Adjudicator wrongly considered defences that was not the Defendant’s case, and the same was neither indicated nor pursued during cross-examination.

17.  With respect, there is no substance in this complaint.

18.  Under section 16(3) of the Small Claims Tribunal Ordinance, the Small Claims Tribunal “shall inquire into any matter which it may consider relevant to a claim, whether or not it has been raised by a party”.

19.  In Ko Pui Yee (supra) at para 44, DHCJ Winnie Tsui (as she then was) stated:-

“On the duty to investigate, I adopt the principles set out in A Workshop Communications Ltd v Tam Heung Man [2018] HKCFI 332 at paras 35 to 42. Relevantly, they are:

(1) The manner of investigation is a matter of discretion to be exercised by the adjudicator in view of the facts of the case.

(2) The adjudicator is only duty bound to investigate matters that are relevant to the claim.

(3) If the adjudicator discerns relevant matters which the parties have not explored, he is obliged to look into it and should invite the parties to comment and guide them to produce further evidence or documents.

(4) The duty to investigate does not mean that the tribunal should take over the role of an advocate for a litigant. It must remain neutral and impartial.

(5) Not every failure to adequately investigate a relevant matter will give rise to an appeal for a failure to discharge a statutory duty. The failure must be of such a nature that the lack of investigation will give rise to injustice in that a fair and proper determination of the claim cannot be attained. All the circumstances of the case as well as all other findings must be given all due regard before such a complaint can be upheld.

(6) The appellate court should not interfere with the discretion of the adjudicator merely because it would have exercised it in a different manner.”

20.  Having considered the Judgment and the Review Decision, I am of the view that the Deputy Adjudicator duly discharged his duties in identifying the issues in dispute. Having identified the issues in dispute and made factual findings based on the available evidence, he applied the legal principles on his factual findings. I am unable to see any room to find fault on the part of the Deputy Adjudicator. In my view, his approach was correct.

21.  In any event:-

(1)  I cannot see how the Claimant could pretend as if he did not know the Defendant and/or EPD’s case. In their witness statements, the staff of EPD, in details, explained, inter alios, (i) the way in which they handled the Claimant’s Belongings; (ii) their effort in liaising with the Claimant for returning the Belongings; and (iii) the Claimant’s obstructive behavior. The Claimant knew the case that he was expected to meet. He did put forward another version of events, which the Deputy Adjudicator rejected.

(2)  In this connection, in paragraphs 144 to 145 of the Judgment, the Deputy Adjudicator pointed out that whilst there was no strict rule in the Small Claims Tribunal requiring the Defendant to file defence, the Defendant filed lengthy witness statements and extensive submissions.

(3)  As the Claimant fairly pointed out, the issue of involuntary bailment was identified by another adjudicator at a call-over hearing.

(4)  In the premises, I am of the view that the Claimant must know the Defendant’s case, and he was not caught by surprise at all. I am not persuaded that the Claimant suffered an injustice.

22.  To sum up, the first ground of appeal does not concern any point of law at all. In any event, the same is unmeritorious and unarguable.

D2.  Ground 2

23.  The Claimant complains that in light of the documentary evidence, the Deputy Adjudicator was wrong to reject his case and evidence and to accept EPD’s case and evidence.

24.  The Claimant’s complaint does not involve a point of law at all. The present appeal procedure is not an avenue for the Claimant to regurgitate the factual allegations that the Deputy Adjudicator rejected at trial.

25.  In any event, I cannot see how the Claimant may challenge the Deputy Adjudicator’s factual findings. As evidenced by the Judgment (see paras 97-98), the Deputy Adjudicator carefully considered the memos and letters that were written by the Claimant. The Deputy Adjudicator pointed out despite his allegation that the letters and/or correspondence to the Defendant were returned, the Claimant could have easily contacted the Defendant in person or by phone. However, this was not done. In paragraphs 148 to 150 of the Judgment, the Deputy Adjudicator further pointed that the Defendant’s memos and letters were long-winded and difficult to understand, and as such it was understandable as to why the Defendant’s witnesses did not respond to them. Furthermore, the Claimant was found to be dishonest and unreliable. In these premises, the Deputy Adjudicator held that the contents of the correspondence and documents that were generated by the Claimant were unreliable and the same carried no weight at all.

26.  In my view, the Deputy Adjudicator had duly considered the relevant factors, including the inherent probabilities as well as the reliability of the documents in question. I am unable to discern any error on the part of the Deputy Adjudicator.

27.  To sum up, the second ground of appeal does not involve a point of law at all. It is anyhow unmeritorious and unarguable.

D3.  Ground 3

28.  The Claimant says that the Deputy Adjudicator failed to administer justice and consider his case and assertions fairly.

29.  In the Judgment and the Review Decision, the Deputy Adjudicator set out the reasons why he did not accept the Claimant’s case. In coming to this conclusion, he carefully canvassed the evidence, the inherent probabilities, the objective circumstances as well as legal principles.

30.  Further, the mere fact that the Deputy Adjudicator criticized the Claimant’s litigation conduct could not constitute miscarriage of justice. The Deputy Adjudicator was entitled to take the view that whilst the Claimant’s litigation conduct was deplorable, the Defendant’s litigation conduct was acceptable

31.  In my view, the Claimant’s accusation is unwarranted.

32.  The third ground of appeal has no substance and is unarguable.

D4.  Ground 4

33.  The Claimant complains that the Deputy Adjudicator was apparently biased. In this connection, the Claimant asked the Deputy Adjudicator to rescue himself at the hearing in respect of his review application (which took place on 29 November 2024).

34.  In WSSA v SYH [2024] 4 HKLRD 325 at paras 19-22, Kwan VP stated:-

19. The “reasonable apprehension” test for apparent bias is well settled. “The Court must first ascertain all the circumstances which have a bearing on the suggestion that the judge was biased. It must then ask whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility, or a real danger, the two being the same, that the tribunal was biased” (GM-SA aka DG, M-S v DDPJ (Recusal) [2022] HKFLR 493 at §10).

20. Bias means a prejudice against one party or his case for reasons unconnected with the merits of the case. The mere fact that a judge had commented adversely on a party would not, without more, found a sustainable objection. An expression of scepticism is not suggestive of bias unless the judge conveys an unwillingness to be persuaded of a factual proposition whatever the evidence may be (In re AZ (A Child) [2002] 4 WLR 78 at §§56(6) to (8)).

21. The notional reasonable, fair-minded and informed observer is the sort of person who always reserves judgment on every point until he has seen and fully understood both sides of the argument. He is not unduly sensitive or suspicious, nor is he complacent. He knows that fairness requires that a judge must be, and must be seen to be, unbiased. Although not a lawyer, he is not wholly uninformed and uninstructed about the law in general or the issue to be decided and would sought to be informed on at least the most basic considerations relevant to arriving at a conclusion. He would be taken to know that adjudicators sometimes say or do things they might later wish they had not without necessarily disqualifying themselves, and may properly adopt reasonable efforts to confine proceedings within appropriate limits. He would not reach a hasty conclusion based on the appearance evoked by an isolated episode of temper or remarks to the parties taken out of context[5].

22. It is common ground that the refusal by a judge to recuse himself from hearing a case is an exercise of discretion. The Court of Appeal will only overturn the decision and exercise the discretion afresh if the judge proceeded on wrong principles or his exercise of discretion was plainly wrong (GM-SA aka DG at §12).

35.  As evidenced by the Review Decision, the Deputy Adjudicator applied the “reasonable apprehension” test in determining whether there was apparent bias on his part, and he held that the test was not satisfied.

36.  I am unable to discern any error of law on the part of the Deputy Adjudicator. In this connection:-

(1)  It is not in dispute that the Deputy Adjudicator rejected the Claimant’s case and he made adverse comment in respect the Claimant’s credibility as well as litigation conduct.

(2)  However, these adverse findings, observations and comments were not reasons for a fair-minded and informed observer to conclude that there was a real possibility or a real danger of bias.

(3)  The Claimant falls short of showing that the Deputy Adjudicator ruled against him based on matters that were unrelated to the merits of the case or that the Deputy Adjudicator was unwilling to be persuaded.

37.  The fourth ground of appeal has no merits and is unarguable.

D5.  Ground 5

38.  Under the fifth ground of appeal, the Claimant complains that the Deputy Adjudicator wrongly ordered costs against him.

39.  I am unable to discern any error on the part of the Deputy Adjudicator when he exercised discretion on costs.

40.  Whilst there was no reason why costs should not follow the event, the Deputy Adjudicator duly considered the fact that the Defendant’s counterclaim was discontinued at an earlier stage and that minimal costs arose therefrom.

41.  The fifth ground of appeal has no substance and is unarguable.

D6.  Ground 6

42.  Under the sixth ground of appeal, the Claimant complains that when the Deputy Adjudicator dealt with his review application, he (i) did not allow him to complete submissions; and (ii) refused to consider new evidence and new authorities.

43.  I do not accept the Claimant’s assertions.

44.  In the Review Decision, the Deputy Adjudicator pointed out that by a letter dated 6 November 2024, the Claimant applied to adjourn the hearing on 29 November 2024. The Deputy Adjudicator then explained why he dismissed the Claimant’s application for adjournment.

45.  The Deputy Adjudicator’s decision on case management was sensible. The Claimant is unable to show that the Deputy Adjudicator committed an error of law. There is no room for this court to interfere with the Deputy Adjudicator’s exercise of case management powers

46.  In any event:-

(1)  I do not accept the Claimant’s suggestion that he was deprived of the opportunity to persuade the Deputy Adjudicator to allow his review application. On his own assertions, the Claimant was aware of the hearing on 29 November 2024 as early as 6 November 2024. In my view, he had ample time to prepare and lodge submissions for the purpose of persuading the Deputy Adjudicator.

(2)  I do not accept that the Deputy Adjudicator erred in failing to consider the new materials at all. In the Review Decision, apart from considering whether there was apparent bias on his part, the Deputy Adjudicator also considered whether the findings and conclusion set out in the Judgment were correct. Whilst I am of the view that the findings and conclusion in the Judgment were correct, I am also of the view that it was open to the Deputy Adjudicator to exercise his case management powers to exclude the new materials that did not emerge at trial. I disagree that the Claimant had suffered an injustice.

47.  The sixth ground of appeal also has no substance and is unmeritorious.

E.  Conclusion

48.  None of the grounds of appeal pursued by the Claimant has a reasonable prospect of success.

49.  I accordingly dismiss the Claimant’s application for leave to appeal.

50.  I make no order as to costs.