LAM POON SHING v. 陳露怡

HCAL 262/2024

[2024] HKCFI 864

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 262 OF 2024

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REASONS FOR DECISION

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A.  Introduction

1.  This case exemplifies the unwarranted drain on or use of limited Court resources which can be the result of a litigant’s apparent inability to ‘see the wood for the trees’.

2.  I recognise that it is one of the key functions of any civil society is that public funds are used to provide a dispute resolution service in the Courts. But, that does not seem to me to require providing an individual litigant unlimited use of Court resources or the public funds necessarily incurred in the provision of them.

3.  In this case, the Applicant has brought repeated applications before various levels of Court starting from the Small Claims Tribunal (“Tribunal”) then to the Court of First Instance (“CFI”) twice, the Court of Appeal (“CA”) and the Court of Final Appeal (“CFA”), before going back to the Tribunal – and now back to the CFI.

4.  The Applicant was the plaintiff to claims made in the Tribunal, in proceedings SCTC 14327/2021. At this point, it may helpfully be remembered that claims in the Tribunal are governed by the provisions of the Small Claims Tribunal Ordinance Cap 338 (“SCTO”). The SCTO makes clear, amongst other things, that:

(1)  the Tribunal has exclusive jurisdiction over small claims, subject only to other provisions of the SCTO: see section 5;

(2)  the Tribunal has the power to transfer proceedings to the Labour Tribunal, Lands Tribunal, District Court or CFI, whereby the practice and procedure in the place of transfer shall apply: see section 7;

(3)  proceedings before the Tribunal are intended to be conducted informally: see section 16;

(4)  representation of a party by Counsel or solicitor is not permitted: see section 19;

(5)  the strict rules of evidence do not apply: see section 23;

(6)  the Tribunal may award to a party costs and expenses, which may include any reasonable expenses necessarily incurred and any loss of salary or wages suffered by that party, or any witness, in attending the hearing: see section 24;

(7)  except where a party has filed an application for leave to appeal and does not withdraw the application, an adjudicator may, within 14 days from the date of an award or order given or made by him, review the award or order; see section 27A;

(8)  a party aggrieved by a decision of the Tribunal on any ground involving a question of law alone, or on the ground that the claim was outside the jurisdiction of the tribunal, may apply to the CFI for leave to appeal: see section 28(1);

(9)  a refusal by the CFI to grant leave to appeal shall be final: see section 28(3).

5.  The Applicant is registered owner of a flat in Skyline Mansion, 51 Conduit Road, Mid-Levels, Hong Kong (“Property”). The 2^nd Defendant in SCTC 14327/2021 was the property management company of the Property (i.e. the 1^st Putative Interested Party in this application). The 4^th Defendant in SCTC 14327/2021 was the 1^st Putative Interested Party’s employee, a security guard working at the Property (i.e. the 2^nd Putative Interested Party in this application).

6.  On 10 February 2022, the Applicant’s claims were dismissed by Deputy Adjudicator Lam Tsz Hong Kestrel (“Deputy Adjudicator”). The Applicant was also ordered to pay the 2^nd Defendant’s costs of HK$521 and the 4^th Defendant’s costs of HK$125.40 (“Costs Order”).

7.  The Applicant subsequently applied to the CFI for leave to appeal against the dismissal and the Costs Order. That application was refused by DHCJ Herbert Au-Yeung on 1 June 2022: HCSA 12/2022, [2022] HKCFI 1561 (judgment in Chinese). Though the Deputy Judge thought the Deputy Adjudicator had arguably fallen into legal error, he considered it inappropriate to grant leave to appeal, because even if the Applicant were to win on appeal he would at most be awarded nominal damages and he had been ordered to pay only around HK$600 in costs, which made it disproportionate to incur the costs of legal proceedings at the CFI and the necessary allocation of Court resources.

8.  Under the SCTO, that decision was final.

9.  Nevertheless, the Applicant then filed an application for leave to apply for judicial review against the decision of the Deputy Judge, which application was dismissed by K Yeung J on 9 August 2022: HCAL 681/2022, [2022] HKCFI 2410 (judgment in Chinese).

10.  The Applicant’s appeal against the decision of K Yeung J was dismissed by the CA on 19 January 2023 (“CA Decision”): CACV 338/2022, [2023] HKCA 82 (judgment in Chinese). The Applicant’s further applications for leave to appeal from the CA Decision were dismissed by the CA and the CFA on 14 March 2023 and 1 August 2023 respectively.

11.  Note that by this time, and even ignoring the hearings before the Tribunal, the Applicant had had two applications dealt with at the CFI, two at the CA and one at the CFA – with all the use of the judicial resources that entailed.

12.  During this attempted review/appeal process, on 22 September 2022, the Applicant applied to put the Costs Order ‘on hold’, for reasons which included that he had applied to the CA to remove the Costs Order, and if he were to succeed on the appeal, it might be difficult to recover costs. The holdover (more properly termed as a stay of execution) was granted. I note that, though it may not have been expressly relied upon in granting the stay, the Applicant had said in making the application that he would abide by the final Costs Order after exhaustion of the judicial process.

13.  On 19 July 2023, the Applicant further sought the Costs Order to be ‘postponed’ until after the decision of the CFA. It seems that postponement (again more properly termed as a stay) was granted.

14.  After the CFA decision of 1 August 2023, the Applicant wrote to the Tribunal on 6 November 2023 to request for a review of the Costs Order. That application was dismissed by Adjudicator Chan Lo Yee Louise (“Adjudicator”) on 10 November 2023. The Adjudicator took the view that (1) though there had been the request for postponement of the Costs Order, there had also been the attempt to remove the Costs Order via appeal, (2) now that the CFA had refused the leave for any further appeal in the case, the case had come to a ‘full stop’, including as regards the Costs Order, (3) therefore, the new request for a review was not appropriate and the Adjudicator did not have jurisdiction over it.

15.  By his Form 86, the Applicant seeks leave to apply for judicial review to challenge the Adjudicator’s refusal to review the Costs Order. The Adjudicator is named as the Putative Respondent. The thrust of the application lies in the Applicant’s claim that the Tribunal conducted the hearing on 10 November 2023 with improper procedures and then made an inappropriate decision.

16.  The Applicant seeks the following relief:

(1)  quashing of the Tribunal’s decision on 10 November 2023 to refuse to review the Costs Order; and

(2)  quashing of the Tribunal’s Costs Order.

17.  The Applicant requested an oral hearing, which I fixed for 20 March 2024. At the end of the hearing, dealt with ex parte, I dismissed the application, with the reasons for my decision to be handed down.

18.  These are my Reasons for Decision. Though the Form 86 was in Chinese, most of the submission material filed by the Applicant was in English, and the hearing was conducted in English. Therefore, these Reasons for Decision are written in English.

B.  The Basis of the Application

19.  By his Form 86 and his 1^st Affirmation dated 1 February 2024, the Applicant sought to raise three issues for this application:

(1)  whether the request made to the Tribunal in relation to the Costs Order has changed substantially, or is inconsistent or incoherent;

(2)  whether the basis of the higher Courts’ refusal to grant leave to appeal and leave for judicial review amount to a reason why it is beyond the Tribunal’s jurisdiction to review Costs Orders;

(3)  whether the basis on which the Tribunal made the Costs Order is compliant with the regular legal principles and laws on human rights and the Articles of the Basic Law.

20.  In a 2^nd Affirmation dated 14 March 2024, the Applicant set out his written submission for the hearing and supplemented his previous submissions as set out in his 1^st Affirmation. He posed another question, namely whether the costs decision serves the High Court’s objectives as per RHC Order 1A, presuming that these are common objectives throughout the judiciary.

21.  There are also four attachments to the Applicant’s 2^nd Affirmation: (1) an email of 15 February 2024 from the 1^st Putative Interested Party to the Applicant; (2) an email of 19 February 2024 from the Applicant to the 1^st Putative Interested Party, members of the management committee (“MC”) of the Incorporated Owners of the Property and owners of the Property; (3) a notice dated 20 February 2024 from the MC to all owners of the Property (including the Applicant); and (4) a letter dated 26 February 2024 from the Applicant to all owners of the Property. As those attachments do not actually concern the subject of this application, I make no comment on them.

22.  After the oral hearing, the Applicant wrote a further letter to the Court to “recap some of the main points” dealt with at the hearing – as regards what he described as “our three main disagreements” – in the hope that they would also be addressed in this judgment. Subject to the particular focus of the points made in the letter, I have also taken that material into account.

23.  In my summary of his written and oral submissions overall, the Applicant stated that:

(1)  The decisions of the higher courts did not interfere with his rights to apply for a review of the Costs Order.

(2)  Nor does it come within the power or responsibilities of the Tribunal to disallow reviewing its own Costs Order.

(3)  Therefore, the decision not to grant leave to appeal to the CFI should not impact the right to apply to the Tribunal for a review of the Costs Order.

(4)  The suggested finality of a refusal by the CFI to grant leave to appeal from the Tribunal’s decision should not preclude an application for review of the Costs Order.

(5)  The judicial review application and consequent appeals were relating to a different matter, not directly impacting the Costs Order or preventing an application for its review.

(6)  Costs are in the discretion of the Adjudicator at the Tribunal, but the Adjudicator did not pay regard to the common law principles underlying decisions on costs when she simply adopted the practice of costs following the event from the initial hearing.

(7)  Justice must not only be done, it must be seen to be done.

(8)  Justice seen to be done occurs after justice is done and is “holistic, unfettered by rules of evidence and time limitation”, where ordinary people enjoy the right to appraise judicial decisions.

(9)  Evidence is ‘crystallised’ at the Tribunal or CFI, and post-original application events are likely to be dismissed as irrelevant.

(10)  The Tribunal rulings in the present case have clear and present messages to the HKSAR community about residential estates management, not just affecting the estate where the case arose.

(11)  Where the Deputy Adjudicator who dismissed the small claim and made the Costs Order has been found to have been in legal error, the Applicant should not have to pay costs.

(12)  To put it another way, the Applicant should not have to pay costs to the defendants for errors made by the Tribunal, and requiring the Applicant to pay for the trouble of taking the defendants to the tribunal is unfair.

(13)  The present proceedings are about costs, which do not necessarily follow the event, and in this particular case should not.

(14)  The costs which the Applicant has been ordered to pay the defendants do not arise out of a contract, or any commercial or business relationship, or a tort – but arise from the exercise of a decision made by the Tribunal exercising its public duty and powers in the public domain. This makes the issue a matter of public law, not private law.

(15)  The Tribunal has been created specifically to deal with small claims, where the statute sets a maximum and not minimum monetary limit of a claim which the Tribunal can handle, but that does not mean that small claims are unimportant or that the Tribunal can ignore proper procedure.

(16)  Justice does not vary in size, and whilst small claims should be less complicated than large claims they should not be processed through empty formalities that disregard substance.

(17)  The Applicant has been denied his BOR rights in failing to have a fair trial or hearing, when the Adjudicator unconditionally and uncritically adopted the decision on costs made by the Deputy Adjudicator.

(18)  Every trial is a ‘Procrustean bed’ process. If material background and real consequences are cut off, the court would be trying a dead cause.

(19)  The effect of the Costs Order and the refusal to review it must be viewed not against the Adjudicator’s “uninformed imagination, or uncritical adherence to precedents, but against the ruling’s real background and consequences”.

24.  The Applicant set out what he said were the relevant background and consequences, focusing on the particular factual matters said to ground his original small claim and what he says is the consequence of the decision made on it. With respect, this application is not concerned with the merits of the original claim made to the Tribunal, and the dismissal of it, or the refusal of leave to appeal from that dismissal. As already stated, the refusal of leave to appeal was final.

25.  The Applicant also made submissions as to why the Costs Order should be changed upon a review, but that is also not the question with which I am dealing in these proceedings.

26.  I acknowledge that the Applicant further made a number of other points in writing, but they seem to me to have been directed mainly at the decisions in the higher courts, not the decision of the Tribunal the intended subject-matter of these proceedings, namely the refusal to review the Costs Order.

27.  In so far as they seem to me to be potentially relevant to his application for leave to apply for judicial review, I have taken all of the Applicant’s various submissions into account.

C.  Any Merits for Grant of Leave?

28.  Posing questions or issues for discussion in the form adopted by the Applicant, rather than stating actual allegations of public law errors, is not a good starting point for an application for leave to apply for judicial review. Rather, it is incumbent upon an applicant for leave to identify specific grounds of review, which can be shown to be reasonably arguable with a realistic prospect of success.

29.  But the simple answer to the application can be found in the following statements:

(1)  The Applicant’s small claim brought in the Tribunal has been dismissed, and it is no part of this Court’s role exercising its judicial review jurisdiction to interfere with that order for dismissal.

(2)  Indeed, the CFI has already heard and refused the Applicant’s application for leave to appeal from that order for dismissal.

(3)  Nor is it any part of this Court’s role to decide, as if sitting as an appellate court, whether there is a basis for interfering with the Costs Order.

(4)  In any event, the Applicant sought leave to appeal so as to challenge not just the order for dismissal but also the Costs Order, and that was refused.

(5)  That decision was final.

(6)  The SCTO makes the distinction between seeking a review and seeking to appeal, and precludes seeking a review if an application for leave to appeal is being pursued. In this case, the Applicant had not only made his application for leave to appeal but had pursued it.

(7)  During the intended appeal or judicial review process, the Applicant – having sought to challenge the Costs Order by way of appeal then judicial review – obviously did not seek a review of the Costs Order.

(8)  Instead, he asked for the Costs Order to be held over or postponed. Though the language of ‘holdover’ or ‘postponement’ was used, the application was plainly made for, and would have been understood as being made for, and resulted in an order of, a stay of execution of the Costs Order pending the outcome of further proceedings being pursued elsewhere.

(9)  Once those further proceedings had been exhausted, the stay of execution came to an end.

(10)  In any event, those further proceedings brought to an end the Applicant’s attempt to challenge the dismissal of his small claim and the Costs Order made upon that dismissal.

(11)  Therefore, far from identifying any public law error, the Adjudicator was plainly correct in her view that subsequently to seek a review of the Costs Order was inappropriate.

(12)  It may not matter whether the Adjudicator was correct in thinking that she had no jurisdiction for a review, because she plainly exercised her discretion not to conduct the review and/or not to change the Costs Order in the circumstances which she outlined.

(13)  However, I consider the Adjudicator was correct in thinking that she no longer had jurisdiction to conduct the requested review, as the Applicant had instead pursued an application for leave to appeal – and the refusal of that application was a final decision.

(14)  There is no reasonably arguable public law error on the part of the Adjudicator which could conceivably justify the grant of leave to apply for judicial review.

(15)  In any event, dissatisfaction with an order made by the Tribunal does not and should not lead to an application for leave to apply for judicial review.

30.  I might also point out that I think the Applicant’s reference to a ‘Procrustean bed’ process is misplaced. The proverb or metaphor suggests forcing someone or something to fit into or conform exactly to an arbitrary standard. In this case, no person or thing has been forced to fit into or conform exactly to an arbitrary standard, and indeed there has been no arbitrary standard imposed.

31.  Lastly, even if I had thought there might be any reasonably arguable ground of review, I would have had no hesitation at all in refusing leave to apply for judicial review on the basis that it is inconceivable that any discretionary judicial review relief would ever be granted. The Applicant is concerned with one costs order made in the particular circumstances of one small claim made in the Tribunal, in an amount barely exceeding HK$600, which order he has already sought to challenge through various levels of the Courts – when costs are in any event dealt with within a broad discretion.

32.  I expressly echo the sentiments of the Deputy Judge who dismissed the application for leave to appeal from the Tribunal (see above). The potential time and effort and costs and use of any further Court resources would be wholly disproportionate to the Applicant’s situation or any matter arising in the public interest. Any concern that the decision in the Tribunal – which has been at least legally doubted – might form an unwelcome precedent is obviously not well-founded.

33.  Put bluntly, it is neither necessary for justice to be done nor for justice to be seen to be done for the Applicant’s present application to be allowed.

D.  Result

34.  The Applicant’s application for leave to apply for judicial review is dismissed.

35.  Further, in the circumstances I have outlined above – and bearing in mind the extraordinary use of limited Court resources already afforded to the Applicant, including by this Court, at the expense of other far more deserving litigants – it is with some regret that I can only make no order as to costs.

36.  I can only express the hope that this litigation saga has come to an end.