Golden Best Investment Ltd v. Secretary for Justice

HCMP 1288/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 1288OF 2016

(ON AN INTENDED APPEAL FROM HCSA NO 39 of 2015)

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JUDGMENT

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Hon Lam VP (giving the Judgment of the Court):

1.On 12 May 2016, To J dismissed an appeal by the Claimant in respect of the decision of the Small Claims Tribunal dismissing its claim. The Claimant applies by a summons of 21 May 2016 for leave to appeal against the judgment of To J.

2.By reason of Section 29A(1) of the Small Claims Tribunal Ordinance [“SCTO”] Cap 338, this court may only grant leave if it involves a question of law of general public importance. Further, as provided in Section 29A(2)(a), the application for leave should set out the question of law.

3.Counsel for the Claimant put forward the following as the ground of appeal and the question of law of general public importance:

“ 1. The mere taking of photos, pasting them onto a piece of paper and adding captions to describe the photos do not suffice to evidence sufficient service by the Building Authority, when it is explicitly provided for by s. 35(2) of the Buildings Ordinance (Cap. 123) that, in order to evidence service of notices, orders, or certificates served under the Buildings Ordinance, “A certificate purporting to be signed by a person who states in that certificate that the person has effected service under subsection (1) is evidence of the facts stated in the certificate relating to the service.” ”

4.With respect, this is not the proper way to formulate a question of law. The photo in question, considered together with the evidence of the surveyor (alluded to by To J at paragraph 31 of his judgment) must be relevant evidence on which a finding of due service can be established. Whether the evidence is sufficient is a matter for the Tribunal bearing in mind Section 23 of the SCTO. This is not a question of law.

5.Insofar as the Claimant is attempting to argue that Section 35(2) of the Buildings Ordinance prescribed the only mode to prove service (as such it may be a question of law), it does not appear to be an argument run before To J. In any event, it is quite plain that Section 35(2) is a permissive provision rather than a mandatory one. The argument to the contrary is plainly unarguable.

6.For these reasons, we refuse to grant leave to appeal.

7.We dismiss the summons and order the Claimant to pay the costs of the Respondent. Having considered the statement of costs prepared by the Government Counsel and the complexity of the matter, we fix the costs of the Respondent at $40,000 (of which $28,000 is counsel’s fees). 

Written submissions by Ms Margaret Tsau, instructed by Messrs Pang, Wan & Choi, for the claimant

Written submissions by Mr Adrian Lai, instructed by the Department of Justice, for the respondent