Tsui Koon Wah v. Ip Mei Ho t/a Michelle Ip & Co, Solicitors
Read the full judgment text of HCSA 10/2021 on BabelCite. This High Court CFI judgment was delivered on 25 November 2021.
1. Tsui Koon Wah (“ C ”) was a former employee of Ip Mei Ho (“ Ip ”) trading as a solicitors’ firm known as Michelle Ip & Co (“ MIC ”) (collectively, “ D ”).
Cited by 5 cases · Cites 14 cases
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HCSA 10/2021 [2021] HKCFI 3437 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE SMALL CLAIMS TRIBUNAL APPEAL NO 10 OF 2021 (ON APPEAL FROM SMALL CLAIMS TRIBUNAL CLAIM NO SCTC 14172 OF 2020) ____________________
____________________ Before: Hon Marlene Ng J in Chambers Date of Written Submissions: 28 April and 27 May 2021 Date of Handing Down Judgment: 25 November 2021 (by paper disposal) ____________________ JUDGMENT ____________________ I. INTRODUCTION 1.Tsui Koon Wah (“C”) was a former employee of Ip Mei Ho (“Ip”) trading as a solicitors’ firm known as Michelle Ip & Co (“MIC”) (collectively, “D”). 2.On 1 June 2020, C sent a pre-action demand letter to D (“Demand Letter”, C9) claiming inter alia that:
3.On 29 June 2020, C commenced SCTC14172/2020 (“SCT Case”) in the Small Claims Tribunal (“SCT”) against D for damages in the sum of $1,425 with costs as a result of D’s disposal of his personal properties at the Office being (a) the Jacket ($1,200) with loss of alteration fee ($125) and (b) the Necktie ($100) without notice to him and without his authorisation, and he only came to know of such disposal in May 2020. 4.In her Defence dated 4 August 2020 (D1-8), D admitted (1) C was her employee from 2 July to 6 September 2019 pursuant to a written employment contract dated 2 July 2019, (2) she terminated C’s employment by a termination letter dated 30 August 2019, and (3) she received the Demand Letter. But D did not admit C’s alleged loss/damage and/or causation thereof, and denied C’s loss (if any, which D did not admit) was due to D’s alleged fault. In short, D denied liability, and further averred as follows:
5.On 25 August 2020, the parties attended a call-over hearing before the Adjudicator Ms Chu (“Ms Chu”), who granted directions for filing/serving witness statements, and adjourned the SCT Case for another call-over hearing on 13 October 2020. C filed his witness statement dated 15 September 2020 (C1-13), and D filed a reply thereto dated 8 October 2020 (D9-11). 6.The call-over hearing on 13 October 2020 was cancelled due to the hoisting of No 8 typhoon signal, and was adjourned to the following day. On 14 October 2020, C did not attend such adjourned call-over hearing, but he faxed his letter dated 13 October 2020 to the SCT asking to re-fix the call-over hearing. Ms Chu adjourned the call-over hearing to 27 November 2020, and the SCT notified C of the same by letter dated 14 October 2020. 7.At the call-over hearing on 27 November 2020, Ms Chu granted leave for C to amend D’s address in Form 1 to Office A, 10/F, 88 Connaught Building, Nos 28-34 Wing Lok Street, Sheung Wan, Hong Kong (“New Office”). C filed some screen captures of social media communications with Lai and some recordings/transcripts of conversation(s) with Lai (C14-20), so Ms Chu granted leave for D to file witness statement in response thereto and for C to file witness statement to give grounds for his intended application for leave to issue summons to witness to Lai. The parties were also directed to file respective statement of costs with income proof documents. Further, D confirmed Ip would give evidence at trial and she was ready for trial except for her aforesaid witness statement in response (if any) (D12), and C confirmed he would give evidence at trial and he was ready for trial except for his aforesaid witness statement to give the grounds for his intended application for leave to issue summons to witness to Lai (C21). The pre-trial review (“PTR”) and trial of the SCT Case were fixed to be heard on 20 January and 22 February 2021 respectively. 8.On 4 January 2021, C filed a witness statement in support of his application for leave to issue summons to witness to Lai (C22-23), his submissions on costs for the call-over hearing on 14 October 2020 (C29-32), and his statement of costs for use at the trial (C33), which was later replaced by a revised statement of costs dated 8 February 2021 (C39 and see paragraph 13 below). C also filed further documents, including (a) extract from the webpage of The Law Society of Hong Kong giving information about MIC (C34), (b) social media communications concerning Lai (C35-36), and (c) emails by Lai (C37-38). 9.At the PTR on 20 January 2021, the Deputy Adjudicator Ms Ho (“Ms Ho”) discussed the STC Case (eg pleadings and issues) with the parties. Ms Ho noted part of the 1st recording (C20) was not audible. Ip confirmed D would not file any witness statement by Lai, and C applied for leave to issue summons to witness for Lai to attend the trial and to give evidence. Ms Ho granted the following directions:
10.On 21 January 2021, a Praecipe for Summons to Witness and a Summons to Witness addressed to “Peggy Lai” at the New Office was filed/issued to summons Lai to attend the trial on 22 February 2021 to give evidence as to C’s claim in the SCT Case (“Lai SW”), and C paid $55 to the SCT as witness fee. 11.On 3 February 2021, the relevant bailiff’s assistant (“BA”) filed affirmation of non-service confirming that:
12.By a letter dated 5 February 2021 to the Bailiff’s Office (“BO”), C claimed he was informed that during the attempted service of the Lai SW by the BA on 3 February 2021 no such person was found at the New Office, which result C considered to be prima facie evidence of D having perverted the course of justice because Ip had told Ms Ho at the call-over hearing on 20 January 2021 that Lai still worked at the New Office. The letter went on (a) to say that C had asked the BO for particulars of such attempted service, and (b) to remind that D as the occupant of the New Office was the only authority who could have said “no such person”. C urged the BO to arrange another attempt to serve the Lai SW, and indicated he was willing to accompany the BA to identify Lai. 13.On 8 February 2021, C wrote to the SCT to say the law of bailment was relevant to his claim and to enclose his legal authorities (C40-112), and to apply to amend Form 1 by adding the following alternative relief (with draft revised claim form): “Or alternatively, [D] is liable for the loss or missing of [C’s] personal properties held in [D’s] possession (law of bailment)”. On the same day, C also lodged revised statement of costs dated 8 February 2021 (C39) that claimed a total sum of $2,110.50. 14.On 9 February 2021, there was a 2nd attempt to serve the Lai SW at the New Office, which was unsuccessful (see paragraphs 15-17 below). On the same day, C wrote to the BO enclosing a photograph of Lai and saying he had already identified Lai to be present at the New Office, so he asked the BO to “continue to try to serve the [Lai SW] on [Lai] until the Court gives directions on [BO’s] report of today’s incident [ie the 2nd attempt to serve the Lai SW] or on substituted service of the [Lai SW]. [C] enclose a photo of [Lai] for [BO’s] identification”. 15.On 10 February 2021, the relevant BA filed affirmation of non-service as to the 2nd attempt to serve the Lai SW on Lai:
16.By a letter dated 10 February 2021 to the SCT, C referred to the 2nd attempt to serve the Lai SW on 9 February 2021 and enclosed his letter dated 5 February 2021 to the BO (see paragraph 12 above) and 2 audio files that recorded the 2nd attempt to serve the Lai SW. C claimed he accompanied the BA to the New Office “and Ms Peggy Lai was present to answer the door. The bailiff told her that he was to serve [Lai SW] on one Peggy Lai for her to give evidence on 22 February 2021 at 9:15am at Court 32 of the [SCT]. Right after hearing that, Ms Peggy Lai went back to the office and closed the door. One Mr Ho then came out in an attempt to send the bailiff away”, but when 2 police officers and a senior bailiff came to assist, Mr Ho allowed all of them to enter D’s New Office to “find Peggy Lai but [Ip] finally came out from her room to ask all of [them] to leave”. 17.In such letter, C claimed D (a) orchestrated the whole process, including instructing her staff to mislead the bailiffs on 3 and 9 February 2021, and (b) perverted the course of justice by interfering with service of the Lai SW (particularly when the bailiffs and police officers had entered D’s New Office to find Lai) with the ill intent of preventing Lai (whom C claimed was “a kind person and will not lie at Court”) from giving evidence at trial to corroborate C’s evidence. C by such letter urgently applied for substituted service of the Lai SW by personally serving the same on D at the New Office with a penal notice to D, or by any other method as the SCT might direct. 18.On 11 February 2021, Ms Ho directed C’s application be dealt with at the trial hearing on 22 February 2021. 19.On 16 February 2021, C wrote to the SCT to say his letter dated 10 February 2021 was a complaint against D for perverting the course of justice as well as an ex parte application for substituted service of the Lai SW. C inter alia (a) urged the SCT to take necessary action against D “who obstructed bailiffs to execute their duties and wasted the time of public officers”, (b) enclosed 2 audio files in relation to the 2nd attempt to serve the Lai SW on 9 February 2021 claiming D “had been dominating over [Lai] and aiding and abetting [Lai] to evade service of the [Lai SW]”, and (c) urged the SCT to give directions to the BO for service of the Lai SW as soon as possible either by substituted service on D personally with penal notice, or by waiting outside the New Office for Lai to come out when she needed to use the toilet facilities. 20.On 17 February 2021, the Acting Principal Adjudicator Mr S P Yip (“Mr Yip”) gave the following written directions:
21.On 18 February 2021, Ms Ho granted written directions that C’s amendment application (see paragraph 13 above) be dealt with at the trial hearing on 22 February 2021. 22.On 22 February 2021, the SCTC Case was tried and heard by Ms Ho[1] with judgment reserved. On the same day, D lodged her statement of costs for the total sum of $14,983.00 with supporting documents. 23.On 23 February 2021, C wrote to inform the SCT (with copy to D) that he made an inaccurate statement (ie that there was no denial of the existence of the Jacket and the Necktie) in his closing speech at the trial when the correct position should be there was no denial of the existence of the Jacket, Necktie “and the White Bag” (referred to in paragraph 51 below) as C was not sure whether D had seen the Jacket and Necktie, but “she must have seen the White Bag which contains the [Jacket] and [Necktie]”. 24.On 26 February 2021, C lodged supporting documents for his revised statement of costs (C39 – see paragraph 13 above) that claimed a sum of $2,110.50. On the same day, Ms Ho orally delivered her judgment with brief reasons (“Oral Reasons”), and granted the following award/order (“26/2/21 Order”):
25.On 1 March 2021, C wrote to the SCT (with copy to D) saying he wished to address the court on the issue of costs before the 26/2/21 Order was sealed, and he raised various contentions that were eventually repeated as his grounds for the Review Application referred to in paragraph 27 below. 26.On 3 March 2021, Mr Yip granted written directions that if C was not satisfied with the 26/2/21 Order, C could apply to the SCT for review or apply to the Court of First Instance of the High Court (“CFI”) for leave to appeal. 27.On 5 March 2021, C filed his Application for Review of an Award/Order by a Party (Form 8C) in respect of the Cost Order (“Review Application”) pursuant to section 27A of the Small Claims Tribunal Ordinance Cap 338 (“SCTO”) on the following grounds (C114-115):
28.On the same day, the SCT issued a Notice of Review by an Adjudicator on the Application of a Party (Form 8B) pursuant to section 27A(2)(b) of the SCTO (“Form 8B”) that gave notice to C and D that C had made the Review Application under section 27A of the SCTO, and that the review would be heard at the SCT (Court No 29) on 13 April 2021. 29.On 8 March 2021, Mr Yip granted written directions that (a) the Review Application was fixed to be heard at the SCT (Court No 29) on 13 April 2021, and (b) D was to file and serve reply (if any) with supporting documents on/before 31 March 2021. 30.On the same day, C wrote to the SCT (with copy to D) to apply for “paper disposal” of the Review Application in lieu of any oral hearing, and to suggest no costs would be generated by the parties under the SCTO if the Review Application could be dealt with by written submissions. 31.On 9 March 2021, Mr Yip by written directions refused C’s application for “paper disposal” of the Review Application. 32.On 12 March 2021, the SCT refunded witness fee of $55 to C. 33.On 15 March 2021, D filed their reply pursuant to Mr Yip’s written directions dated 8 March 2021 (D13-14). D noted C had not proved the value of the Jacket, its alteration fee and the Necktie even if he did buy them, so only partial judgment was awarded in C’s favour. D claimed the SCT had discretion in granting no order as to costs, and D accepted such Cost Order. D submitted C’s grounds for review were misconceived as he had not considered he only recovered partial judgment in his favour. But D did not object to C’s proposal for “paper disposal”, and asked the SCT to let her know the result if paper disposal of the Review Application was considered appropriate. 34.On 19 March 2021, the SCT wrote to inform D that Mr Yip had on 9 March 2021 directed that C’s application for “paper disposal” of the Review Hearing be refused. 35.On 26 March 2021, the SCT sent written notice to both C and D to remind the parties that the Review Application would be heard at the SCT (Court No 12) on 13 April 2021, and asked them to note that the time and date of such hearing remained unchanged. 36.On 29 March 2021, D wrote to the SCT (with copy to C) saying that unless she could be of further assistance to the SCT, “kindly excuse [her] absence for the Review”. On 31 March 2021, Ms Chu granted written directions to D that if D failed to attend the hearing of the Review Application, the SCT might make such order in her absence as the SCT would think fit. 37.On 31 March 2021, C wrote to the SCT (with copy to D) enclosing his written submissions for the Review Application (“Review Submissions”, C116-120), and claimed his attendance at the review hearing was unnecessary as he had nothing else to submit to the SCT, so “[to] save [C’s] cost and the Court’s time, please kindly excuse [C] for not attending the hearing of 13 April 2021. [C] should be grateful if [SCT] would let [C] have [SCT’s] written decision by post”.[2] 38.On 12 April 2021, the SCT wrote to inform C that Ms Ho had on 9 April 2021 granted directions to refuse his “[application] for being absent” at the hearing of the Review Application on 13 April 2021. If [C] does not attend the hearing, his application for review will be dismissed, with costs if applicable”. 39.On 13 April 2021, both C and D were absent at the hearing of Review Application (“Review Hearing”) before Ms Ho who made the following award/order (“13/4/21 Order”):
40.On 16 April 2021, C wrote to the SCT asking for Ms Ho’s written decision as the parties had only 7 days to consider whether to appeal against the 13/4/21 Order. 41.On 20 April 2021, Mr Yip granted the following written directions as follows:
42.On 22 April 2021, D paid the judgment sum of $100 into the SCT, and the SCT forwarded such sum to C. 43.On the same day, C filed application for leave to appeal on point of law (“Application”) in the present proceedings at the CFI to appeal against the Cost Order. In the Application, C claimed if he were granted leave to appeal against the Cost Order, he would in such appeal (a) ask the CFI to determine the appeal by paper disposal and issue a written decision to the parties, (b) seek costs of his claim in the SCT Case as per his revised statement of costs dated 8 February 2021 (C39 and see paragraph 13 above), and (c) ask for no order as to costs for the Review Application and for the appeal no matter the outcome of the appeal. 44.On 28 April 2021, C wrote to the CFI to say he had no more submissions or authorities to put forward (other than the grounds set out in the Application), so he applied for “paper disposal” of the Application to save time and costs. 45.On 10 May 2021, this court by written directions to C pointed out as follows:
46.On 17 May 2021, Ms Ho handed down her Reasons for Decision in respect of the SCT Case / 26/2/21 Order (“Trial Reasons”) and her Reasons for Decision in respect of the Review Application / 13/4/21 Order (“Review Reasons”). On 20 May 2021, the SCT sent copies of the Trial Reasons and the Review Reasons to C and D. 47.On 26 May 2021, this court granted written directions that C’s Application be reserved for paper disposal, and that the hearing of the Application on 3 June 2021 be vacated. 48.On 27 May 2021, C lodged written submissions and list of authorities in support of the Application on matters arising from the Trial and Review Reasons (“Leave Submissions”). II. TRIAL REASONS 49.In the Trial Reasons, Ms Ho set out C’s pleaded claim and D’s pleaded defence, and stated it was for C to prove his claim on the balance of probabilities. Ms Ho then analysed the relevant law, the statement/oral evidence of the witnesses C and Ip, the documents and the submissions. 50.It was common ground that C was employed by D from 2 July to 6 September 2019. Ms Ho identified the issues in dispute to be: (a) whether C had left his personal properties at the Office, (b) if so, what were those personal properties, (c) whether D had disposed of those personal properties, (d) whether D was liable to compensate C for those personal properties, and (e) what was the value of (or damages for) those personal properties. 51.On (a)-(c) above, C in his witness statement (C1-2) and oral evidence claimed that when he was employed by D he kept his Jacket and blue Necktie at the Office in a white bag (“White Bag”) placed on the floor at the corner of the cabinet behind his seat and the right window, so he could take out and wear the Jacket and Necktie if there was sudden need for him to attend court hearings. In July/August 2019, C had worn the Jacket and the Necktie to attend court hearings, and he then put them back in the White Bag. C claimed Ip and her secretary Lai knew of his practice. 52.C estimated the size of the Office was about 150 sq ft (but did not deny D’s suggestion that it was about 400 sq ft), and claimed D also employed a summer trainee as well as a part-time filing clerk to handle out of office work 3 times a week, so for most of the time only Ip, Lai, the summer trainee and C were at the Office. C drew a sketch of the Office’s layout (C113) showing 2 rooms (Ip’s room and conference room) and an open office area where C, Lai and the summer trainee sat. C said from Ip’s vantage in her room she had a clear view of C’s seated position and the White Bag, and her seat was about 10 odd feet away from D’s seat. 53.C admitted the filed social media messages he had with Lai (C14-16) did not mention his personal properties, but he claimed there was no particular need for him to leave social media messages to request D/Lai to preserve his personal properties as he believed (and it was his experience from working at law firms for many years) persons in the legal field would have known they should not casually dispose of others’ properties. C also claimed that employees would normally keep some personal properties at office premises, so D who was not an “outsider” should have known not to casually dispose of his personal properties. 54.Ms Ho noted C filed the audio recordings/transcript of his alleged telephone conversations with Lai on 10 October 2019 and 27 May 2020 (C17-20). In the telephone conversation on 10 October 2019, C asked Lai whether he could collect the Jacket later, but Lai’s reply was unclear and the transcript could not record what Lai said. In the Demand Letter dated 1 June 2020 (see paragraph 2 above), C claimed Lai in that telephone conversation told him D had put his personal properties in the cabinet in the conference room. C agreed this was from his recollection, and was not reflected in the transcript. C explained (a) he had not intended to record his conversation with Lai, but (b) his mobile telephone had an automatic recording function, and (c) only his side of the telephone conversation was clearly recorded as he did not switch on the amplifier. 55.C claimed that likewise he had not intended to record his conversation with Lai on 27 May 2020, but it was recorded in such audio recording that he said he would later attend D’s Office to collect the Jacket, and Lai said she did not know whether or not it had been disposed of. Ms Ho agreed with C’s closing submissions that although part of Lai’s response in the audio recording was unclear and the transcript did not record the entirety of what Lai said, the recording showed Lai did not deny C’s Jacket was left at D’s Office, and Lai even mentioned the Jacket might have been thrown away. But C did not mention his other personal properties (including the Necktie) in the 2 conversations. C tried to explain this by saying the Necktie was kept in the breast pocket of the Jacket. 56.According to C’s witness statement, C took the Jacket and the Necktie home when he left his last employment in March 2019 before he joined D (C2) as he resigned on his own accord. But D terminated his employment during his sick leave (for injury to his collarbone above his left shoulder), so his personal properties were left at the Office. Further, C could not wear the Jacket due to his injury, so there was no urgency for him to collect the same, and as the sub-divided flat where he lived was small he preferred to leave the Jacket at D’s Office for later collection when would find another job at a law firm and would have need to wear the Jacket. C found such job in May 2020, so he contacted Lai on 27 May 2020 with a view to attend the Office to collect the Jacket and the Necktie, and at the same time to hand over the key and access card to D’s Office that he had kept. 57.According to the chronology of events in C’s witness statement (C4), C in his telephone conversation with Lai on 27 May 2020 said he would attend the Office later that day to collect the Jacket (C18), and Lai later told him by telephone D had asked him to return to the Office to look for his Jacket.[3] C did not do so because on 10 October 2019 Lai had told him D had placed his personal properties in the cabinet in the conference room at the Office, and on 27 May 2020 Lai had told him his personal properties could not be found, so he felt there was no need for him to attend the Office to look for the Jacket and the Necktie, and he sent the key and access card to D by registered post. 58.Ms Ho referred to the audio recordings of C’s mobile telephone and the date/time of the relevant email (C36-38), and accepted C did have the telephone conversations with Lai on those 2 dates (and in fact D did not deny the same). Ms Ho noted the transcripts of the telephone conversations and the Demand Letter referred to or showed C had conversations with Lai about his Jacket / personal properties left at D’s Office. In the circumstances, the SCT was entitled to draw adverse inference against D for failing to call Lai to give evidence as to whether she was aware C had left the Jacket at the Office and whether she had those conversations with C, or for failing to offer reasonable explanation for not calling Lai to rebut C’s case. Ms Ho therefore found P did leave the Jacket at the Office and D’s staff Lai knew about it, but Ms Ho considered there was insufficient evidence to prove C left the Necktie at D’s Office. 59.On (d) above, D testified she could not remember having seen the White Bag or Lai having told her C’s personal properties were kept in the cabinet in the conference room. D denied she knew C left his personal properties at the Office. Ms Ho found there was insufficient evidence to show D actually, knowingly or deliberately disposed of C’s personal properties, but as Ms Ho accepted C left the Jacket at D’s Office, D became an involuntary bailee with obligation to take reasonable care of the Jacket under the law of bailment. Ms Ho found D’s staff Lai had notice that C had left the Jacket at D’s Office, so D should in good faith take reasonable care of the Jacket. There was no evidence D or her staff made any arrangements for reasonable care of the Jacket. Also, D did not contact/request C to collect the Jacket. In the circumstances, since D could not restore the Jacket to C, she was liable to pay damages to him. 60.On (e) above, C claimed he bought the Jacket from the Marks & Spencer shop in Central on 9 October 2018, and the White Bag had the logo of such shop. C filed a credit card statement in support of his allegation that the price of the Jacket was $1,200 with alteration fee of $125. But Ms Ho found it was not established that the alleged item on such credit card statement was referrable to the Jacket and alteration fee. Ms Ho also expressed doubt over the value of the Jacket as a result of C’s delay in attending D’s Office to collect the Jacket. Even if C did buy a jacket and pay for the alteration fee in October 2018, Ms Ho found the evidence was insufficient to establish it was the Jacket that C left at D’s Office. Since C had not discharged his burden to prove the quantum of damages, Ms Ho awarded him nominal damages in the sum of $100. 61.As for the issue of costs, Ms Ho referred to section 24(1) of the SCTO which provides as follows:
62.Ms Ho in paragraph 31 of the Trial Reasons held: “[Ms Ho]考慮到[C]的訟費申請, 但由於[C]其實並未能證實其申索金額, 只獲象徵式賠償, [Ms Ho]不批准他的訟費申請, 不作訟費命令”. Consequently, Ms Ho granted the 26/2/21 Order (see paragraph 24 above). III. REVIEW REASONS 63.Ms Ho noted the Review Application concerned the Cost Order under the 26/2/21 Order. Ms Ho reiterated the matters in paragraphs 29-31, 33-34 and 36-39 above. Thus, the 13/4/21 Order was made in the absence of C and D. In the Review Reasons, Ms Ho noted C did not apply under section 32A of the SCTO to set aside the 13/4/21 Order granted in his absence. Ms Ho gave the following reasons for the 13/4/21 Order:
IV. LEGAL PRINCIPLES 64.I have set out the legal principles for the Application in Adhoc Media Company Limited v Chan Lai Lun[4] and A Workshop Communications Ltd v Tam Heung Man,[5] which I adopt but do not propose to repeat here (save for the brief summary below). 65.Appeal Section 28 of the SCTO provides that leave to appeal may be granted by the CFI as it thinks fit where the proposed ground of appeal involves a question of law alone or is on the ground that the claim was outside the jurisdiction of the SCT. The threshold onus on the applicant is to show that the intended appeal has arguable grounds of appeal.[6] 66.Findings of fact Section 29(2) of the SCTO provides that on an appeal for which leave was granted under section 28 of the SCTO, the CFI may (a) draw an inference of fact, and (b) make any such order as to costs and expenses as it thinks fit, but may not (i) reverse or vary any determination made by the SCT on questions of fact, or (ii) receive further evidence. 67.It is trite that findings of fact by the SCT are generally immune from challenge as they involve no error of law unless it is perverse or irrational, or where there is no evidence to support the decision, or where the decision was made by reference to irrelevant factors or without regard to relevant factors.[7] 68.Bokhary PJ in Kwong Mile Services Ltd v Commissioner of Inland Revenue said:[8]
69.In Kaifull Investments Ltd v Commissioner of Inland Revenue, it was held that the fact other inferences might just as plausibly be drawn from the available material was insufficient to establish that the first instance court/tribunal acted unreasonably and had come to a conclusion that no court/tribunal acting judicially could reasonably have made.[9] It is only where the lower court’s/tribunal’s decision exceeds the generous ambit within which reasonable disagreement is possible and is in fact plainly wrong that an appellate court is entitled to interfere.[10] 70.Further, Order 55 rule 7(7) of the Rules of the High Court (“RHC”) provides that the CFI shall not be bound to allow the appeal on the ground merely of misdirection, or of the improper admission or rejection of evidence, unless in the opinion of the court substantial wrong or miscarriage has been thereby occasioned. 71.Appeal on exercise of discretion on costs The SCT has jurisdiction to award costs by virtue of section 24(1) of the SCTO (see paragraph 61 above). In Yu Wing Kei v Chan Tak Kwong, DHCJ Au-Yeung (as she then was) said such provision “confers power on the [SCT] to award costs and gives examples of the type of costs to be awarded”, but does not prevent the applicability of general legal principles on costs for deciding the incidence of liability for costs in the SCT.[11] Such general principles on costs for deciding the incidence of liability for costs will be discussed in greater detail below. 72.As provided in section 28(1)(a) of the SCTO (see paragraph 65 above), an appeal lies against a decision of the SCT (including a decision on costs by the SCT), with leave of the CFI, on any ground involving a question of law alone. It is therefore necessary for an applicant seeking leave to appeal to identify an error in the decision on costs by the SCT that raises a question of law. 73.The approach of courts sitting in appellate jurisdiction towards challenges against exercises of discretion on costs is well established, and has been usefully summarised by the Court of Appeal in Progetto Jewellry Company Limited v Lau Chiu Ying & anor as follows:[12]
74.These principles are relevant and applicable to an appeal against a decision on costs by the SCT. Yu Wing Kei concerned a tenancy dispute. In that case, the SCT (a) allowed the defendant’s counterclaim for the security deposit, (b) ordered the claimant to pay the defendant a sum of $28,934.86 after setting off the damages awarded to the claimant against the security deposit, and (c) granted no order as to costs. DHCJ Au-Yeung (as she then was) said the applicable principles in an appeal against a decision of the SCT on costs only are as follows (and they echo the guidance in Poon Ching Man):
75.Case management decision The CFI should be slow to interfere with case management decisions by the SCT. It was held by the Court of Appeal in Mimi Kar Kee Wong Hung v Severn Villa Ltd & ors as follows,[13] which principles are also relevant to appeal against case management decision of the SCT:[14]
V. DISCUSSION 76.In the Application, C put forward various intended grounds of appeal against the Cost Order. By the Leave Submissions, C added various contentions in relation to the Trial and Review Reasons. 77.I start by considering whether there were any arguable grounds of appeal in respect of the Cost Order, ie there be no order as to costs. If there were such arguable grounds of appeal, then leave to appeal ought to be granted irrespective of the merits or otherwise of C’s complaints against the 13/4/21 Order / Review Reasons (although I would have to go on to consider whether the further complaints against the 13/4/21 Order / Review Reasons would also constitute arguable grounds of appeal). If there were no such arguable grounds of appeal, then leave to appeal ought not to be granted notwithstanding C’s criticisms against the 13/4/21 Order / Review Reasons. After all, the outcome of the Review Application merely resulted in the Cost Order being unshaken and upheld. Whatever point of law error the 13/4/21 Order / Review Reasons might suffer from (as C alleged), they would not have aided him if the Cost Order was unassailable. On this, I bear in mind Order 55 rule 7(7) of the RHC when considering whether or not to grant leave to appeal (see paragraph 70 above). As seen in paragraph 43 above, C’s Application expressly sought leave to appeal against the Cost Order (so that if leave to appeal were granted C would seek his costs for the SCT Case in the sum of $2,110.50 as per his revised statement of costs (C39) and see paragraph 13 above), but C would not seek to disturb the cost order under the 13/4/21 Order (see paragraph 39(c) above) or ask for his costs of the appeal), which clearly demonstrated C’s recognition that the crux of the issue was the vitality or otherwise of the Cost Order. 78.C’s intended grounds of appeal that alleged Ms Ho erred in law in granting the Cost Order could be grouped under 6 broad heads, some of which C had previously raised as grounds for review in his Review Application:
79.Ground (a)(i) C argued the award of $100 under the 26/2/21 Order was not nominal because he had sufficiently proved loss of the Jacket, which clothing, the Leave Submissions alleged, was “wearable and presentable”. C claimed that by comparing (a) the damages of $100 awarded in the SCT Case which amounted to 8.33% of C’s claim for the Jacket ($1,200), 7.02% of his total claim ($1,425) and 500% of his court fee ($20 filing fee) with (b) the nominal damages of $100 awarded in Liu Kwok Chuen v Liu Kwok Chun[15] (said by C to be “a real case of award of nominal damages”) which amounted to 0.20% of the defendant’s counterclaim for 4 types of converted chattels ($49,000 for 6 air-conditions ($36,000), 7 tyres ($3,500), 9 trees ($4,500) and 2 mattresses ($5,000)) and 7.9% of his court fee ($1,200 for filing fee ($630) and setting down fee ($630)) (see paragraph 86(c) below), (a) above could not have been nominal damages and was instead “an assessment of a piece of used clothing”. C further submitted that (a) above (despite the smallness in amount) could not have been nominal when the SCTO did not set any minimum monetary threshold (in contra-distinction to the jurisdictional limit of $75,000) for monetary claims founded in contract, quasi-contract or tort in the SCT. 80.In my view, Ground (a)(i) raised 2 matters: (a) what is the nature of nominal damages, and (b) whether Ms Ho in awarding $100 under the 26/2/21 Order in C’s favour was awarding nominal damages of $100 or assessing/quantifying damages in the sum of $100. 81.Generally, 2 circumstances give rise to an award of nominal damages: (a) where there is iniuria sine damno, and (b) where loss is shown but its amount is not sufficiently proved.[16] 82.For (a) above, it is said technically the law requires not damage (more accurately, a remediable consequence) but an iniuria or wrong upon which to base a judgment for the claimant. Therefore, an actionable iniuria, although without some consequence, will entitle the claimant to judgment. Since a judgment awarding money is practically the only judgment which the common law can bestow, a judgment for a nominal sum of money or for “nominal damages” will be given.[17] Thus, nominal damages may be awarded in all cases of breach of contract and in torts actionable per se (eg trespass to land).[18] A useful statement of the meaning and incidence of nominal damages in this respect is found in the speech of Lord Halsbury LC in The Mediana as follows:[19]
83.For (b) above, “[nominal] damages may also be awarded where the fact of a loss is shown but the necessary evidence as to its amount is not given. This is only a subsidiary situation, but it is important to distinguish it from the usual case of nominal damages awarded where there is a technical liability but no loss or other remediable consequence [ie the situation in (a) above]. In the present case the problem is simply one of proof, one not of absence of loss but of absence of evidence of the amount of loss”.[20] As DDJ Simon Ho said in Liu Kwok Chuen, nominal damages may be awarded where the fact of a loss is shown but the necessary evidence as to its amount is not adduced or sufficiently proven (paragraph 125).[21] 84.For the situation in (b) above, it is necessary to distinguish between a symbolic, arbitrary and/or token sum given for nominal damages from a sum similar in amount which is awarded as compensation calculated, quantified and/or assessed for a trifling loss.[22] As Lord Halsbury LC in The Mediana explained (and as cited by C):[23]
85.Since C had referred this court to some legal authorities, it is useful to consider a few cases to illustrate the difference between nominal damages and small damages. 86.In the following cases, a symbolic, arbitrary and/or token sum of $100 was awarded as nominal damages when evidence of loss was not adduced or was not sufficiently proven despite success in establishing liability:
87.In the following cases, the court awarded small damages as compensation calculated, quantified or assessed for trifling loss:
88.With the above legal principles and illustrations in mind, I turn to Ms Ho’s findings in the Trial Reasons (see paragraphs 59-60 above):
89.It is plain from the above findings of fact by Ms Ho that C had established loss of the Jacket and breach of duty by D as involuntary bailee in relation thereto, but the necessary evidence as to the amount of such loss was not sufficiently proven. Ms Ho did consider the credit card statement that C adduced, but found insufficient correlation to the Jacket and its alteration fee. Since C had been slow to collect the Jacket from D’s Office, Ms Ho doubted the claimed value of the Jacket ($1,200). Ms Ho further held there was insufficient evidence to establish the Jacket was the jacket (if any) he bought from the Marks & Spencer shop in October 2018. Having considered such evidence, Ms Ho tellingly found C failed to discharge his burden to prove the amount of his loss in respect of the Jacket. Quite simply, this meant Ms Ho found there was no proper evidential basis for her to award compensatory damages in a calculated, quantified and/or assessed amount that reflected the value of the loss of the Jacket. Rather, Ms Ho awarded an arbitrary or token sum of $100 as symbolic nominal damages to vindicate C for her finding that D was in breach of her duty as involuntary bailee and hence liable to C for the loss of the Jacket. I reject C’s suggestion that Ms Ho’s award of $100 under the 26/2/21 Order was “an assessment for a piece of used clothing”. 90.C in his Leave Submissions suggested the buying power of $100 should be taken into account because one might probably be able to buy a suit jacket for $100 in the flea market and/or as shown in C’s research (see various computer screen capture documents for online sale of new and used jackets by H&M Store ($499), Uniqlo ($499), Carousell.com.hk ($100) and Taobao (¥100 and ¥50.73) in annexures AP6 – AP11 to the Leave Submissions (“Jacket Price Documents”)). C submitted this was in contrast to Liu Kwok Chuen where $100 could not have bought 6 used air-conditioners, 7 used tyres, 2 mattresses and 2 chopped down trees. 91.In my view, C’s arguments in the above paragraph had no merits:
92.C next argued it was evident from the following quantifiable comparison between the SCT Case and Liu Kwok Chuen as explained in paragraph 79 above that Ms Ho’s award of $100 under the 26/2/21 Order was not “nominal”:
93.I do not find C’s contentions in the above paragraph arguable. In my view, the distinction between small damages and nominal damages does not turn on the amount of the award. As explained in McGregor on Damages[29] (see also paragraph 84 above), a “token sum given for nominal damages is to be distinguished from a sum similar in amount which is awarded as compensation calculated for a trifling loss” (my emphasis). This clearly clarifies that the true nature of an award of damages does not turn on the amount. Whether an award of a small sum of a same/similar amount is small damages in one case or nominal damages in another turns on whether (a) it is compensation properly assessed, quantified and/or calculated by the court on the basis of sufficient evidence adduced to prove the amount of a trifling loss, or (b) it is a symbolic, arbitrary and/or token sum to vindicate the infarction of the claimant’s right (ie his success on the issue of liability) when necessary evidence as to the amount of loss has not been adduced or sufficiently proven. The exercise of arithmetical comparison of the quantum of awards in individual cases that C adopted in paragraphs 79 and 92 above was wrong in approach, and demonstrated misunderstanding as to the fundamental nature of and distinction between small damages and nominal damages. Here, it was plain from Ms Ho’s findings (see paragraphs 88-89 above) that the award of $100 under the 26/2/21 Order was nominal damages explained in (b) above. 94.Further, although I agree with C the SCTO does not prescribe a minimum monetary threshold for the SCT’s jurisdiction in relation to monetary claims founded in contract, quasi-contract or tort, it is immaterial since the distinction between small damages and nominal damages (as explained in the above paragraph) turns on its true nature and not (as C alleged) on the amount or on the “buying power” of the amount. 95.In my view, it was obvious from Ms Ho’s findings that the outcome of C’s claim in the SCT Case was the scenario in paragraphs 80(b) and 83 above (and not the scenario in paragraphs 80(a) and 82 above) with award of nominal damages and not small damages. Ground (a)(i) was unarguable and had no merits. 96.Ground (a)(ii) Under this intended ground of appeal, C claimed Ms Ho became functus officio upon delivery of her Oral Reasons and upon granting the 26/2/21 Order (which did not describe the award of $100 thereunder as nominal damages), so she erred in law by later describing such award in the Trial Reasons (and still later describing such award in the Review Reasons) as “nominal damages”. I am not persuaded such intended ground of appeal was arguable for C to be granted leave to appeal against the Cost Order:
97.Ground (a)(iii) In this intended ground of appeal, C submitted he was the successful (albeit not wholly successful) party in the SCT Case, and therefore should be entitled to his costs as per his revised statement of costs (C39) because costs would normally follow event unless there were exceptional circumstances to justify departure from such general rule. C suggested such general rule is set out in paragraphs 75-79 of my judgment in Lam Po Yee & anor v Dr Chan Yee Shing also known as Dr Chan Yee Shing Alvin,[31] and in paragraph 86 therein this court said as follows:
C claimed Ms Ho desperately tagged/labelled the award of $100 under the 26/2/21 Order as “nominal damages” in the Trial Reasons (and later in the Review Reasons) so as to avoid/displace the above general rule as to costs. 98.I should start with the general principles on the incidence of liability for costs applicable to cases in the SCT. It has been held that the guidance in the Elgindata principles (summarised in Lam Po Yee & anor in the above paragraph) are applicable.[33] In In re Elgindata Ltd (No 2),[34] Nourse LJ set out 4 principles governing the award of costs:
DHCJ Au-Yeung (as she then was) in Yu Wing Kei went on to explain that “[in] considering these principles under Re Elgindata, the Hong Kong Courts have emphasized again and again that (a) due and significant weight must be given to the general principle that costs should follow event and any departure from this rule must be treated with circumspection [2nd Elgindata principle], and (b) it is important not to decide costs according to a score sheet on how many issues had gone one way or the other ……” (paragraph 8). Further, Bokhary PJ in Mariner International Hotels Ltd v Atlas Ltd (No 2) held that “[a] party seeking to displace the general rule that costs should follow event naturally bears the burden of showing that the circumstances justify the exceptional course of such displacement”.[36] 99.In my view, bearing in mind the above principles, there was no merit to Ground (a)(iii). I repeat the discussions/conclusion in paragraph 96 above, and disagree there was any improper “tagging” or labelling of the award of $100 as nominal damages by Ms Ho. Indeed, quite irrespective of any “tag”, description or label, Ms Ho’s findings made clear that the award of $100 in the SCT case was in the nature of nominal damages (see paragraphs 88-89 above). Thus, C’s reliance on the general rule on costs on the basis that he was a successful claimant “who recovers more than nominal damages” (my emphasis) could not be supported. 100.Ms Ho was correct that the starting point on the issue of costs would be section 24(1) of the SCTO (see paragraph 61 above). As explained in Yu Wing Kei (see paragraph 74 above), costs of proceedings in the SCT are in the discretion of the tribunal, and such discretion, like any other discretion, must be exercised judicially (see also the 1st Elgindata principle). 101.Where nominal damages are awarded, it has been said (a) the court or tribunal ought not exercise the discretion against the successful party except for some reason connected with the case,[37] but (b) “to deprive a claimant of their costs and to order them to pay those of the defendant in a case where they have been awarded nominal damages but have had no good reason for suing, is surely an exercise of the discretion for a reason connected with the case”.[38] Hong Kong Civil Procedure 2022 also stated that “[where] a plaintiff is successful on the issue of liability but recovers nominal damages only, the normal order for costs is in the defendant’s favour ……”[39] Thus, it is not unusual (or unknown) in a case where the claimant succeeds on liability but fails to sufficiently prove quantifiable or substantial damages (ie he recovers only token or nominal damages) for a cost order to be made for the claimant to pay costs to the defendant or, at least, for no order as to costs. 102.The essential point that calls for consideration is who actually is the “successful party” (ie the real winner of the case) when only nominal damages are awarded. In Anglo-Cyprian Trade Agencies, Ltd v Paphos Wine Industries, Ltd, Devlin J said as follows:[40]
Where the object of the claimant’s action is to establish a legal right that is wholly irrespective of whether substantial remedy is obtained (ie the situation referred to in paragraphs 80(a) and 82 above), there may still be room to argue that the claimant who recovers nominal damages in such scenario is to be regarded as the successful party. But C’s claim in the SCT Case was not such case (see paragraph 95 above). Rather, the award of $100 under the 26/2/21 Order in the SCT Case fell into the usual scenario that the claimant has effectively lost, ie being unable to effectively recover the quantum of damages he claims (see paragraphs 80(b), 83 and 95 above), such that “the awarding of nominal damages may be seen as a pointless exercise, given the courts’ powers and practice on costs”.[41] 103.Alltrans Express Ltd v CVA Holdings Ltd[42] was a case in which the plaintiffs obtained summary judgment for breach of warranty, but was only awarded nominal damages of £2 even though they aimed to recover £82,500. The first instance court awarded costs to the plaintiffs, but it was reversed on appeal with costs ordered in favour of the defendants. The English Court of Appeal considered the defendants to be the real winner or the successful party even though the plaintiffs were awarded nominal damages, and they placed emphasis on the practical improbability of acceptance of a “ritual” payment into court. 104.Stephenson LJ expressly approved Anglo-Cyprian Trade Agencies, Ltd even though it was not a case of nominal damages, and held that “what Devlin J said is of great weight and does apply forcibly to the facts of this case” (page 402). Stephenson LJ (with whom Griffiths LJ and Purchase LJ agreed) went on to say as follows (pages 401-403):
As Griffiths LJ also said, “…… As a general rule a successful party is entitled to his costs, expressed by the lawyer’s phrase “costs follow the event”. Who was the successful party in the issue, or lis, tried by the judge in this case? Undoubtedly it was the defendants. …… The contest between the parties was whether the plaintiffs were entitled to more than nominal damages, and on this, the only issue tried by the judge, the defendants succeeded. …… A payment of nominal damages into court would have been wholly irrelevant to the lis, and in my view the absence of such a payment is no justification for regarding the plaintiffs as the successful party in the proceedings before the judge. The truth is that it was the defendants who were the successful party” (pages 403-404). 105.These English authorities were considered and adopted as the proper approach in Hong Kong when considering which party is the successful party or the real winner when nominal damages have been awarded.[43] 106.In Elpe International (Far East) Limited, a case in which nominal damages were awarded (page 11 and see paragraph 86(a) above), Bokhary JA (as he then was) in giving the decision of the Court of Appeal on costs said as follows:
107.In Union Knopf (HK) Limited,[44] again a case in which nominal damages were awarded (see paragraph 86(b) above), DDJ R Lai (as he then was) approved the views of Jacob J in Hyde Park Residence Ltd v Yelland that “[a] plaintiff who recovers only nominal damages has in reality lost and in reality the defendant has established a complete defence to the entire claim” (paragraph 46).[45] As explained in paragraph 86(b) above, whilst the plaintiff in Union Knopf (HK) Limited succeeded in establishing the 1st defendant’s breach of the blue-pencilled non-solicitation clause in his employment contract, it failed to adduce evidence to prove it suffered substantial damages, so only nominal damages of $100 were awarded to the plaintiff (ie the scenario in paragraphs 80(b) and 83 above). Thus, DDJ R Lai (as he then was) did not consider that the plaintiff’s claims against the 1st defendant for breach of the restrictive covenants of the Employment Agreement after the restraint period had long expired was for a creditable purpose of protecting the plaintiff’s rights (ie the scenario in paragraphs 80(a) and 82 above). In the circumstances, the learned judge held as follows:
In that case, the plaintiffs failed to prove some other claims, but succeeded on still other claims for which the learned judge directed the defendants to account for the profits made by them (paragraphs 54-55). Taking into account the Elgindata principles (see paragraph 98 above), considering all the circumstances/evidence and adopting a practical/ pragmatic approach in assessing the plaintiffs’ costs entitlements and liabilities (paragraphs 55-57), DDJ R Lai (as he then was) found “the plaintiff’s costs entitlements and liabilities in this action will be about the same and an order of “no order as to costs” is a fair costs order in the circumstances of this case” (paragraph 57). 108.Turning to the SCT Case, on (a) the findings by Ms Ho which led to her award of nominal damages of $100 in C’s favour under the 26/2/21 Order, (b) the aforesaid legal principles, and (c) a broad overview of the practical realities/justice of the matter, it is, in my view, plain and obvious that D should be treated as the real winner or successful party. The SCT Case was about money, and C hoped to recover substantial damages in the sum of $1,425 (or at least $1,200 for loss of the Jacket). But D succeeded on the contest as to whether or not C was entitled to more than nominal damages. In recovering only symbolic, token and/or nominal damages of $100, C ultimately failed to recover anything that was of real value to him, which was borne out by Ground (b) whereby C alleged the award of $100 under the 26/2/21 Order was insufficient even to cover the court fee, travelling expenses and postage he had incurred, ie it was not worth the effort to pursue C’s claim. In my view, Ms Ho was correct on the question of costs to take into account the fact that C failed to (i) sufficiently prove his claim for substantial damages (ie he only recovered symbolic, token and/or nominal damages), and (ii) prove his remaining claim for loss of the Necktie altogether (ie he only recovered partial judgment). 109.With D being regarded as the real winner or the successful party in the SCT Case, the matter would proceed (as Bokhary JA (as he then was) said in Elpe International (Far East) Limited or indeed as C said) on the general rule that the winner is in general entitled to be paid his costs.[46] Here, D being the real winner or the successful party was prima facie entitled to her costs on such basis unless the circumstances of the SCT Case called for some other order to be made (see the 2nd Elgindata principle referred to in paragraph 98(b) above). Ms Ho’s findings showed D disputed C’s claim on liability as well as on quantum but failed on the issue of liability. But the 3rd Elgindata principle reminded that the general rule costs should follow the event in favour of the real winner or the successful party does not cease to apply “simply because the successful party raises issues or make allegations on which he fails” (see paragraph 98(c) above). The burden was on C (who wished to displace such general rule) to show that the circumstances justified such exceptional course, ie D as the real winner or the successful party failed on certain allegations and thereby “caused a significant increase in the length or cost of the proceedings” (see the 3rd Elgindata principle and paragraph 98(c) above). Here, in displacing the general rule on costs in favour of D as the real winner or successful party,[47] and in arriving at the Cost Order that deprived D of the entirety (and not just part) of her costs of the SCT Case, Ms Ho must necessarily have accepted D was wrong on her contentions on the issue of liability, which contentions increased the length and cost of the proceedings in the SCT Case. It could not be said that Ms Ho failed to take into account her overall findings in the SCT Case (including D’s failure on the Necktie and on the issue of liability in relation to the Jacket – see paragraphs 50-59 above). 110.Similar approach was seen in Tai Yip Dyeing Factory Limited (in Liquidation) v Kong Hoi Sang, which was an action for slander of title.[48] In that case, Saunders J held after trial that by attempting to register a writ by way of lis pendens against certain real estate owned by the plaintiff in circumstances where he was not entitled to register the writ, the defendant slandered the plaintiff’s title to that property (paragraph 1), so the learned judge made a declaration that the defendant’s attempted registration in the Land Registry of the writ against the plaintiff’s property was wrongful, and he awarded nominal damages in the sum of $100 together with costs in the plaintiff’s favour (paragraph 2). Saunders J held the plaintiff could not be said to be a successful claimant:
But the learned judge went further “because, as Devlin J. said in Alltrans, it is necessary to examine the facts of each particular case” (paragraph 17). He noted (a) the plaintiff established a slander of title had occurred, and (b) the defendant did not make any concession, raising 3 lines of attack that eventually failed (paragraphs 18-19 and 21) and 2 other lines of attack based on the coincidence of subsequent events that eventually succeeded (paragraphs 20 and 25-26). Saunders J found the defendant’s conduct in choosing to resist liability (and not admitting his malicious falsehood and confining the conduct of his defence to the claim for damages) lengthened the trial (paragraphs 22-24), and was satisfied the proper order for costs should be no order as to costs (paragraph 27) on the basis that “[the plaintiff] has been successful in establishing its assertion that [the defendant’s] actions constituted a slander of title”, which “assertion …… was resisted right through trial”, but by “the coincidence of subsequent events [the defendant] has been successful in resisting the claim for damages” (paragraph 26). 111.I bear in mind that costs is very much a matter for the discretion of the presiding adjudicator, who is the best person to exercise this discretion, and the appellate court should be very circumspect in interfering with it (see paragraphs 73-74 above). I am not persuaded it could be arguably suggested that in granting no order as to costs (ie the Cost Order) in the circumstances of the SCT Case Ms Ho’s exercise of discretion on costs was outside the guidance under the Elgindata principles and/or she erred in law in the manner alleged in Grounds (a)(i)-(iii). I see no valid basis for granting leave to appeal for intervention in respect of Ms Ho’s exercise of discretion on costs on such intended grounds. 112.Ground (b) Under Ground (b), C contended the award of $100 under the 26/2/21 Order would be insufficient to compensate him for what he had spent on court fee, travelling expenses and postage let alone to cover the cost to him in taking annual leave for 4 court attendances in the SCT Case. I find no merit in this intended ground of appeal. The award of $100 under the 26/2/21 Order was by nature “nominal damages” to vindicate C on the proven loss of the Jacket when he failed to adduce evidence to sufficiently prove the amount of such loss. Such award of $100 was not meant to be compensation for C’s incurred costs and disbursements, and C attempt to draw the comparison as he did was flawed. 113.Ground (c)(i) By this intended ground of appeal, C claimed Ms Ho erred in law by taking into an irrelevant matter, ie Ms Ho said at the end of her delivery of the Oral Reasons that C failed to prove his case, so there was no order as to costs. C did not provide the transcript for the Oral Reasons and/or for the proceedings at the hearing on 26 February 2021 to show Ms Ho said as he alleged so as to demonstrate this intended ground of appeal was arguable. This was important because C’s allegation flied against Ms Ho’s findings which C did not disagree. Ms Ho found C had proved the loss of the Jacket and D’s liability for such loss (see paragraphs 51-59 above), but found C failed to sufficiently prove his claimed quantum of damages in respect of the lost Jacket (see paragraph 60 above). In granting the Cost Order, Ms Ho took into account C’s failure prove the substantial damages he claimed (ie he was only awarded nominal damages) (see paragraph 31 of the Trial Reasons and paragraph 62 above).In my view, apart from C’s bare assertion in Ground (c)(i), there was simply no arguable basis to say Ms Ho ignored her own findings in favour of C on the issue of liability and instead she claimed C to have failed to prove his case entirely (even though in practical/ pragmatic terms D rather than C was the successful party or the real winner in the SCT Case – see paragraphs 97-111 above), I am not persuaded Ground (c)(i) is an arguable ground of appeal. 114.Ground (c)(ii) C claimed Ms Ho took into account another irrelevant matter in granting the Cost Order, ie that at the beginning of the trial on 22 February 2021 Ms Ho said the trial would proceed as C did not apply to change the name “Peggy Lai” on the Lai SW, but C had never applied to amend the Lai SW, so C claimed Ms Ho appeared to have thought (a) the name “Peggy Lai” on the Lai SW was “wrong”, and (b) C failed to summons Lai to give evidence to collaborate his case. C then referred to the 2 attempts to serve Lai SW (see paragraphs 11-20 and 27(b) above), and claimed he had done whatever he could to discharge his duty to prove his case. 115.I am not persuaded this is an arguable ground of appeal against the Cost Order:
116.Ground (d)(i) For this intended ground of appeal, C claimed Ms Ho erred in law in failing to take into account D’s conduct “inside the courtroom”, ie D chose to actively resist his claim by filing a defence to deny liability, and by adducing documentary/witness evidence against his case. C reminded that D denied the existence of the White Bag at trial, which added further dimension to the trial and further issue for determination. 117.In my view, Ground (d)(i) had no arguable merits. As seen in the discussions in relation to Grounds (a)(i)-(iii) above, D was the real winner or the successful party in the SCT Case, and under the general rule was entitled to costs of the proceedings, ie C should pay D’s costs (see the 2nd Elgindata principle and paragraphs 98(b) and 109 above). But on the basis of her findings, including C’s success on the issue of liability (ie the loss of the Jacket and D’s breach of duty) and D’s failure on such issue, which necessarily increased the length and cost of the proceedings, Ms Ho deprived D of her costs such that C (who had failed to prove his claim in respect of the Necktie and who had effectively lost his claim albeit having been awarded nominal damages) was not required to pay D’s costs at all (see the 3rd Elgindata principle and paragraphs 98(c) and 109 above). In such circumstances, bearing in mind that costs were very much a matter of Ms Ho’s discretion (see the 1st Elgindata principle and paragraph 98(a) above) and the CFI should be circumspect in interfering with the same unless it was wrong in principle or plainly wrong (see paragraphs 71-74 above), I see no arguable basis for saying Ms Ho’s cost decision as properly understood and explained above was arguably either wrong in principle or plainly wrong. 118.But C went on to suggest D did not conduct her defence in a reasonable manner, and it was implicit from Ms Ho’s rejection of D’s defence on liability that D lied. Presumably, C was trying to pray in aid the 4th Elgindata principle (see paragraph 98(d) above) that where the successful party raises issues or makes allegations “improperly or unreasonably”, the court may order him to pay the whole or a part of the unsuccessful party’s costs. But I disagree with C’s suggestion that it was arguably implicit from Ms Ho’s findings that D’s conduct of her defence was unreasonable and/or that she lied. The relevant findings of fact were that (a) C left the Jacket at D’s Office and D’s staff Lai knew about this (see paragraph 19 of the Trial Reasons and paragraph 58 above), and (b) under the law of bailment D became an involuntary bailee who “有責任真誠地及合理謹慎地為[C]保管[Jacket]” since D’s staff Lai was found to have been aware that the Jacket was left at D’s Office (see paragraph 24 of the Trial Reasons and paragraph 59 above). Thus, Ms Ho found against D on the above 2 matters on the issue of liability on the basis of D’s implied/vicarious knowledge through her staff Lai that the Jacket was left at D’s Office, and not because Ip herself had lied. Significantly, Ms Ho made the following finding that “本案未有足夠證據證明[D]實際、明知或故意棄置了[C]之個人物品” (see paragraph 20 of the Trial Reasons and paragraph 59 above). Deliberate lying is a serious matter, but there was no express finding that D lied, and in my view also no justifiable basis for such implication from Ms Ho’s findings. I find there was no arguable basis to invoke the 4th Elgindata principle to have D pay all or part of C’s costs, and there was no merit in C’s suggestion it would have been a crucial factor for Ms Ho’s exercise of discretion on costs that D lied. 119.Ground (d)(ii) For this intended ground of appeal, C claimed Ms Ho erred in law in failing to take into account 2 aspects of D’s conduct “outside the courtroom”. 120.First, it was suggested D must have obstructed service of the Lai SW on Lai because her law firm was the “sole occupant” of the New Office and she must be held responsible for the BAs being told there was “no such person”. In the Leave Submissions, C claimed this had been raised in his letter dated 10 February 2021 to the SCT (see paragraphs 16-17 above), but Ms Ho “has not denied she had not adjudicated by herself the matter raised in [C’s] letter dated 10 February 2021”, so it was for the CFI “to consider whether the conduct of [D] outside the Court Room should be considered when making an order for costs”. 121.I do not accept this amounted to any arguable point of law for appeal. As seen in paragraphs 15-17 above, there were factual differences as to the accounts given in the BA’s affirmation of non-service and in C’s letter dated 10 February 2021 to the SCT as to the 2nd attempt on 9 February 2021 to serve the Lai SW. C claimed Lai was present to answer the door but when Lai heard the BA said he/she was there to serve the Lai SW, Lai went back to the Office and closed the door, and then a Mr Ho came out to send the BA away (see paragraph 16 above), but the BA’s affirmation of non-service did not mention about Lai answering/ closing the door and only stated that on arrival at the New Office the BA was informed by a Mr Ho there was no “Peggy Lai” (see paragraph 15(a)-(b) above). It was, however, common ground that Lai was not at the New Office (and could not be served) when C, the BA, his supervisor and the police later gained entry to the New Office. The CFI could not receive evidence and make factual findings on appeal (see section 29(2) of the SCTO), so it not for the CFI to make findings to determine the relevance of D’s conduct “outside the courtroom” for making an order for costs. 122.Anyway, in my view, the non-service of the Lai SW (and D’s involvement in relation thereto, if any) had no material impact on the outcome of the SCT Case because Ms Ho (a) drew adverse inference against D for not calling Lai as witness to give evidence as to whether she was aware that C had left the Jacket at the Office and whether she had the conversations with C as C alleged, or for failing to credibly explain why Lai was not called to rebut C’s case (see paragraph 58 above), (b) found as a fact Lai was aware that C had left the Jacket at D’s Office (see paragraphs 19 and 24 of the Trial Reasons and paragraphs 51-58 above), and (c) held there was no evidence D’s staff (which necessarily included Lai) took any steps to keep the Jacket in proper custody (see paragraph 24 of the Trial Reasons and paragraph 59 above), and as a result Ms Ho determined the issue of liability in C’s favour (ie the Jacket kept at the Office was lost and in relation thereto D was in breach of her duty as involuntary bailee and hence liable for such loss). 123.Further, on the matter of costs, Ms Ho granted no order as to costs notwithstanding that under the general rule costs should follow event (and I have explained that D was in fact the real winner or the successful party for such purpose) (see the 2nd Elgindata principle and paragraphs 98(b) and 109 above). The 3rd Elgindata principle provides that the general rule does not cease to apply simply because the successful party (ie D in the SCT Case) raises issues or makes allegations on which he fails, but if he has caused significant increase in the length or cost of the proceedings he may be deprived of the whole or a part of his costs (see paragraphs 98(c) and 109 above). Here, Ms Ho in depriving the entirety and not just part of D’s costs plainly must have considered D’s overall conduct in the SCT Case had significantly increased the length and cost of the proceedings. In my view, there was no arguable basis to suggest Ms Ho was wrong in principle or plainly wrong in granting such Cost Order. 124.Secondly, it was said that Ms Ho failed to take into account D’s refusal (despite Ms Ho’s suggestion at the PTR on 20 January 2021) to have Lai make a witness statement, which deprived Ms Ho of crucial evidential material for the exercise of her judicial function. I disagree this would raise any arguable point of law for appeal. It is for each party to decide whether or not to call witness to support his/her case or to rebut the other party’s case, and a party has no duty to call witness to bolster the other party’s case. Plainly, D (who was a qualified solicitor and who, according to C, had heard what Ms Ho said at the PTR) decided not to call Lai to give evidence, so she had to face the consequences of her decision, ie Ms Ho drew adverse inference against her for failing to call Lai as witness to give relevant evidence or for failing to credibly explain why Lai was not so called, and went on to find the issue of liability in C’s favour and to deprive D of the entirety her costs even though in the end she was the real winner or the successful party in relation to the Jacket and also defeated C’s claim in relation to the Necktie. In any event, neither C as opposing party nor Ms Ho as presiding tribunal should compel D to call or not call Lai as her witness (and/or consequently to file or not file Lai’s witness statement). 125.Ground (e) For this intended ground of appeal, C claimed Ms Ho in granting the Cost Order failed to take into account the award of $100 under the 26/2/21 Order had beaten D’s settlement offer made at the PTR on 20 February 2021, ie D’s offer to pay C $1 on condition that C and D would pay each other’s costs, bearing in mind D’s claimed costs ($14,983) exceeded C’s claimed costs ($2,110.50). But, again, I do not find this to be an arguable point of law for appeal. 126.Ms Ho stated in the Review Reasons she understood C did not accept D’s settlement offer of $1, and did not indicate willingness to accept such offer as final settlement of C’s claim including claim for costs (see paragraph 63 above), so I proceed on the basis that D did make such settlement offer. But Ms Ho must be correct that C did not accept the offer, otherwise there would not have been any trial and/or any grant of the 26/2/21 Order. 127.I have explained that the real winner or the successful party in the SCT Case was D and not C. As explained in Alltrans Express Ltd (and adopted by Bohkary JA (as he then was) in Elpe International (Far East) Limited), the court looks at the realities to ask itself who really won, and would not put weight on any ritualistic payment into court (or, in the present context, “ritualistic” settlement offer) by the defendant (see paragraphs 101-104 and 106 above). As Stephenson LJ said, “[to] have paid £2, or possibly £5 or £10, into court in this case would have been very near to a “ritual” act. It would not have been taken out; the plaintiffs would have gone on with their mouth opened wider for a much larger sum; they did go on …… in the hope of getting a large sum of damages ……” (pages 402-403 and see paragraph 104 above). In my view, such observations had resonance in respect of D’s “ritual” offer of $1 in the SCT case, and little weight should be attached to D (ultimately the real winner or the successful party) having made such offer when (as Ms Ho noted) it would not have been accepted by C who would have gone on to seek a much larger sum, and C did go on in the hope of getting substantial damages. The fact C ultimately got token or nominal (and not quantified or assessed) damages ($100) when he aimed for substantial damages ($1,425 or, at least, $1,200 for the Jacket) would not have made him a successful claimant. 128.Further, consistent with the 2nd and 3rd Elgindata principles (see paragraph 98(b)-(c) above), Ms Ho plainly took note that C only enjoyed nominal damages (which meant D was the real winner or the successful party) and that she must also have taken into account D’s overall conduct in the SCT Case that increased the length and cost of the proceedings in depriving D the entirety and not just part of her costs. In my view, there was no arguable basis to suggest Ms Ho had erred in law (ie wrong in principle or plainly wrong) in granting the Cost Order, and I find there is no merit to Ground (e). 129.Ground (f) For this intended ground of appeal, C claimed Ms Ho did not in the Review Reasons deny the parties were not given opportunity to address her on the issue of costs after her delivery of the Oral Reasons on 26 February 2021. Actually, in paragraph 20 of the Review Reasons, Ms Ho refuted such allegation and stated that “[C]在向[Ms Ho]作訟費申請時其實已有機會作出其認為有關的陳述, [Ms Ho]亦已考慮[C]的各項訟費申請” (see paragraph 63 above). Further, C did not provide the transcript of the proceedings at the hearing in 26 February 2021 to this court to demonstrate the arguability of his contention. In my view, Ground (f) had no arguable merits. 130.Summary on Cost Order For all of the above reasons, I am unable to detect any arguable error of law in Ms Ho granting the Cost Order. Nor could it be said that Ms Ho’s findings were irrational or her exercise of discretion on costs either wrong in principle or plainly wrong. I see no arguable basis to suggest any palpable error for granting leave to appeal against the Cost Order. 131.Having come to such conclusion, it is unnecessary for me to go on to consider C’s intended grounds of appeal against the 13/4/21 Order / Review Reasons. As explained in paragraph 77 above, even if C were able to successfully challenge the 13/4/21 / Review Reasons, it would not have availed him as there was no arguably viable basis to challenge or disturb the primary Cost Order. This was in line with C’s stance in the Application that essentially he sought leave to appeal against the Cost Order. But for the sake of completeness, I shall briefly consider C’s intended grounds of appeal against the 13/4/21 Order / Review Reasons. 132.C contended Ms Ho erred in law in granting the 13/4/21 Order in that:
133.Grounds (g) and (h)(i)-(ii) essentially contended Ms Ho had no jurisdiction to grant the 13/4/21 Order to “dismiss” the Review Application and to order the 26/2/21 Order “do stand”. In my view, such contentions would not have aided C because if the 13/4/21 Order were a nullity for want of jurisdiction, the Cost Order would still stand, and (as seen in paragraphs 78-130 above) leave to appeal would not have been granted as the Cost Order did not suffer from any arguable error of law. Thus, I will deal with Grounds (g), (h)(i) and (i) briefly below. There is no need for me to deal with Ground (h)(ii) as the Review Application was made under section 27A of the SCTO (see Forms 8B/8C and paragraph 27-28 above), and Ms Ho did not rely on rule 6A of the SCTGR. 134.Ground (g) C’s Review Application (Form 8C) was filed and the SCT’s Notice of Review of an Adjudicator on the Application by a Party (Form 8B) was issued both on 5 March 2021, ie well within the prescribed period under section 27A(1) of the SCTO. In my view, the 14-day time limit under section 27A(1) of the SCTO was the applicable period for C to invoke the SCT’s review jurisdiction by filing Form 8C, and the SCT exercised the power conferred by section 27A(1) of the SCTO by issuing Form 8B. The aforesaid 14-day time limit was not the applicable period for hearing/determining the application for review. This is borne out by section 27A(1) of the SCTO itself which provides that the adjudicator may, on a review of an award or order, “re-open and re-hear the claim wholly or in part and may call or hear fresh evidence”, ie the adjudicator will have the same powers at the review as he/she has at the trial. Re-opening and re-hearing the whole or part of the claim as well as calling or hearing fresh evidence can hardly happen within 14 days of the award or order under review, especially if the applicant chooses to file his application for review at the tail-end of the 14-day period from the date of the award or order. Under C’s interpretation (ie the review must be determined within the 14-day period), the adjudicator’s powers expressly conferred under section 27A(1) would become circumscribed by time constraints, which in turn would mean that the adjudicator’s other procedural powers (eg adjourning the case to allow further evidence to be adduced, directing that further witness statements to be prepared or further discovery to be made, issuing summons to existing/fresh witnesses) will also be restricted as a result of such time constraints. Further, on C’s contention, all decisions as to (a) payment into the tribunal, (b) giving of security or otherwise and/or (c) transfer of the hearing/consideration of the review to another adjudicator under section 27A(3)-(4) of the SCTO (which decisions should logically be made before determining the review) and the review proper itself (which may entail the adjudicator exercising the powers conferred under section 27A(1) of the SCTO and/or other procedural powers as aforesaid) would have to happen within 14 days from the date of the award or order. In my view, C’s interpretation of section 27A(1) of the SCTO could not be supported as it reflected incorrect understanding of its ordinary meaning, and it would also render such statutory provision practically unworkable and the legislative intent futile. Whilst I do not disagree with C’s suggestion that one of the legislative intents of the SCTO is for “the daily life disputes of small claim nature must be disposed of quickly”, the legislation would not have intended such haste as to make its provisions practically unworkable. 135.The aforesaid proper understanding of section 27A(1) of the SCTO was borne out in a case C cited, ie Fairview Park Property Management Ltd v Lee Yuen-yau.[52] In that case, the claimant was the manager of the Fairview Park Estate, and the defendant was the owner of a property on that estate. The manager complained that the defendant committed breaches of covenants, and consulted solicitors for advice followed by correspondence with the defendant and his solicitors. A writ was issued in the District Court. Later, all the alleged breaches were rectified, and the proceedings were not pursued. The claimant incurred legal fees in the sum of $2,610, and sought to recover such legal fees against the defendant in the SCT. The adjudicator found in favour of the claimant on 16 May 1986. After his decision, the adjudicator had second thoughts, and on 23 May 1986 he gave notice of his intention to review his decision.[53] On 10 June 1986, the adjudicator set aside his decision on 16 May 1986 and proceeded to implement his intention to review by giving directions (see footnote 53 above), which included (a) granting an order that the claim made on 16 May 1986 be set aside, (b) giving leave for the claimant to amend his claim form, (c) waiving service of the amended claim form, and (d) adjourning the claim to a date to be fixed by the SCT officer for hearing or otherwise. But before the adjudicator sat in review, the defendant took the claimant to a judge (ie Hooper J) on appeal (see footnote 53 above). Liu J in Lee Yuen-yau v Fairview Park Property Management Limited summarised the procedural history as follows:[54]
This was echoed on appeal by Hunter JA who said as follows:[55]
Although the power of review on the adjudicator’s own motion was exercised on 23 May 1986, which was well within the 14-day period from the date of his decision on 16 May 1986, the review was not completed and the review decision was not made until half a year later on 21 January 1987 because the review was adjourned to enable the claimant to amend his claim form, to await the outcome of the appeal to Hooper J and to conduct the full review. The adjudicator’s review decision was allowed on appeal by Liu J but was restored by the Court of Appeal with no criticism that the adjudicator had no jurisdiction to conduct the review outside the 14-day period. 136.C then drew attention to section 11A of the Lands Tribunal Ordinance Cap 17 (“LandsTO”) as follows:
C claimed that, unlike the Lands Tribunal (“LandsT”) which was expressly empowered by the LandsTO to exercise its power of review beyond the period of 1 month, the SCT enjoyed no such jurisdiction after expiry of 14 days from the date of the award or order. C further argued that jurisdiction could not be conferred on Ms Ho by the issuance of the Form 8B on 5 March 2021. 137.I disagree. C filed the Review Application (ie Form 8C or “the application of a party for a review under this section” as referred to in section 27A(4) of the SCTO) on 5 March 2021 well within 14 days from the date of 26/2/21 Order (see paragraph 27 above). The power to review was exercised by issuance of the notice in prescribed form to all other parties under section 27(2)(b) of the SCTO, ie Form 8C issued on the same day on 5 March 2021 (see paragraph 28 above). But the regime under the LandsTO was quite different for the LandsT has to first decide whether or not to review within 1 month from the date of decision (see section 11A(1) of the LandsTO), and it is only if the LandsT decides within that 1 month to exercise the power to review that such power may thereafter be exercised. There is no such requirement under section 27A of the SCTO for the adjudicator to decide within a specified period whether or not to review, and instead the power of review is exercised by the issuance of Form 8B. So there is no need for any statutory provision (as in section 11A(3) of the LandsTO) as to the exercise of the power to review after the tribunal decides “ within 1 month from the date of any decision, to exercise its power of review”. There is no merit to this argument. 138.Ground (i) In my view, Ground (i) is also unarguable. Plainly, the SCT (including Mr Yip and Ms Ho) had case management powers to decide whether to deal with the Review Application by oral hearing or paper disposal. Section 37 of the SCTO provides that “[where] no provision is made by [the SCTO] or rules made under section 36, the practice and procedure in the [SCT] shall be such as the [SCT] may determine, either generally or in any particular proceeding”. In Chow Kwong Wah Oliver v Pasche Hans-Joachim, A Chung J held as follows:[56]
Here, given that C raised 5 grounds for review in respect of the Cost Order (see paragraph 27 above) and that the SCT had invited D to respond thereto (see paragraph 29 above), it was unsurprising that Mr Yip on 9 March 2021 declined C’s request on 8 March 2021 for “paper disposal” of the Review Application (see paragraphs 30-31 above). By 15 March 2021 D responded to indicate she would oppose the Review Application (see paragraph 33 above), so it was again unsurprising that the SCT wrote to inform D that on 19 March 2021 Mr Yip had directed C’s application for “paper disposal” of the Review Application be refused (see paragraph 34 above). On 26 March 2021, the SCT again wrote to the parties to remind them the Review Hearing would be heard at the SCT on 13 April 2021 and to ask them to note the venue and time of hearing (see paragraph 35 above). When D wrote to the SCT on 29 March 2021 to ask to be excused from attending the Review Hearing (see paragraph 36 above), Ms Chu by written directions to D warned that the SCT might make such order as it thought fit if D failed to attend the Review Hearing (see paragraph 36 above). I cannot say there was any arguable error of law in requiring oral hearing of the Review Application in the first place, in declining C’s request for “paper disposal”, and in reiterating the scheduled oral hearing. To seek leave to challenge such case management decisions, there must be arguable basis for demonstrating the “very high hurdle” that such case management decisions were clearly wrong (see paragraph 75 above), and I am not satisfied C had demonstrated such basis. 139.More importantly, the parties were already notified as early as on 5 March 2021 by Form 8B that there would be an oral hearing of the Review Application at the SCT on 13 April 2014. Thus, C and D were required to appear at the Review Hearing on 13 April 2021 to prosecute or to oppose the Review Application unless the SCT expressly granted any subsequent order to vacate the oral Review Hearing on 13 April 2021 in favour of paper disposal of the Review Application. This explained why on 31 March 2021 Ms Chu by written directions warned D that the SCT might make such order it thought fit if D failed to attend the Review Hearing (see paragraphs 36 and 138 above). Thus, quite irrespective of the developments during 8-31 March 2021 referred to in paragraphs 29-37 and 138 above, the SCT never granted any directions to vacate the oral Review Hearing on 13 April 2021, and all its written directions were consistent with maintaining the oral Review Hearing on 13 April 2021 as already directed. 140.C claimed that after he wrote to the SCT on 31 March 2021 to submit his 5-page Review Submissions to support the Review Application and to ask the SCT to excuse him for not attending the Review Hearing (see paragraph 37 above), he did not receive Ms Ho’s written directions of 9 April 2021 that refused his “[application] for being absent” at the Review Hearing until 2 days after the review hearing on 13 April 2021 (see paragraph 38 above). But in my view, whether C received such written directions before or after the Review Hearing was neither here nor there. As explained in the above paragraph, in the absence of any express order/directions by the SCT for revoking and/or vacating the oral Review Hearing, the directions and requirement by the SCT for oral hearing in Form 8B as affirmed in the SCT’s written notice dated 26 March 2021 were still valid and effective (see paragraphs 28 and 35 above). In my view, Ground (i) had no merits. 141.Ground (h)(i) As regards the suggestion that Ms Ho had no jurisdiction to “dismiss” the Review Application and to order the Cost Order “do stand” due to C’s absence and that she was required under section 27A of the SCTO to determine the same by confirming, varying or reversing the Cost Order, I again see no merit in this argument. 142.C referred to Hooper J’s judgment in Fairview Park Property Management Ltd in support of Ground (h)(i). As explained in paragraph 135 above, on 23 May 1986 the adjudicator in that case gave notice of his intention to review his decision on 16 May 1986 in favour of the defendant, and on 10 June 1986 he set aside the decision made on 16 May 1986 and granted directions to implement his intention to conduct a full review. It was in such particular context that the defendant argued that the adjudicator’s directions made on 10 June 1986 were outside the jurisdiction of the SCT in that (a) section 27A of the SCTO “empowered no jurisdiction for an adjudicator to order that the Claim Form II be amended” and the adjudicator’s powers on review were confined to those granted by virtue of section 27A of the SCTO, and (b) the adjudicator had no power to waive service of the amended claim. But Hooper J did not think there was anything in such jurisdiction point because once the adjudicator decided to re-open the matter he would have power to amend the claim and to waive service of the amended claim. However, Hooper J accepted that strictly speaking the adjudicator should first conduct the review after re-opening and re-hearing the claim (which review the adjudicator adjourned by his directions made on 10 June 1986 pending amendment of the claim form) before he would decide whether or not to reverse his previous order of 16 May 2016 and in effect to set it aside, even though it was apparent to Hooper J from “the other orders that [the adjudicator] made [on 10 June 1986] that the real intention was to exercise his power of review and reopen the matter and to determine the claim after further consideration”. But in the SCT Case, Ms Ho never adjourned the Review Hearing scheduled on 13 April 2012 (whether for amendment of the claim form or for any other reason). The parties knew the Review Hearing on 13 April 2012 was scheduled for the review proper, but C as applicant did not attend such Review Hearing to prosecute his Review Application which was the very application before Ms Ho that day. There was no putting the cart before the horse as in Fairview Park Property Management Ltd in the sense of prematurely unholding the 26/2/21 Order before the review proper itself. I am not persuaded Fairview Park Property Management Ltd took C’s contentions about lack of jurisdiction any further. 143.Further, section 27A(1) of the SCTO provides that the adjudicator “may” re-open and re-hear the claim wholly or in part, “may” call or hear fresh evidence, and “may” confirm, vary or reverse his previous award or order. Thus, the adjudicator has the discretion on how to review, and in my view he can dismiss the review application, which naturally and obviously means the previous award or order continues to stand and is thereby confirmed. 144.On this, I draw analogy with section 31(1)-(2) of the Labour Tribunal Ordinance Cap 25 (“LTO”) which is in similar terms as section 27A(1)-(2) of the SCTO:
145.In Yung Mei Chun Jessi v Merrill Lynch (Asia Pacific) Limited,[57] the applicant sought to review (a) the decision of the presiding officer on 25 July 2011 that dismissed her application to disqualify him and (b) the refusal by the presiding officer to restore an application for review due to her sickness. The presiding officer considered her application an abuse of process (as she had sought to review every decision by the presiding officer and to put forth repetitive grounds), and dismissed the applicant’s application without hearing her. At issue was whether the Labour Tribunal (“LT”) has jurisdiction to dismiss the applicant’s application for review. DHCJ Au-Yeung (as she then was) said as follows:
Whilst the factual context and the reasons for dismissal of a review may be different in different cases and may not necessarily be borrowed in other cases, the above clearly shows that on the matter of fundamental jurisdiction the LT (and by analogy the SCT) has jurisdiction to dismiss a review where appropriate. Even though the applicant in that case claimed that review was the parties’ fundamental statutory right, especially when the reviews were all on different subjects, DHCJ Au-Yeung (as she then was) found the presiding officer had correctly directed himself on the law, and rightly dismissed the applicant’s application. 146.I therefore disagree with C’s contention under Ground (h)(i) that Ms Ho was confined by section 27A of the SCTO to determine the Review Application only by confirming, varying or reversing the Cost Order. In my view, section 27A of the SCTO did not prescribe how Ms Ho should deal with the Review Application, and I do not agree she had no jurisdiction or discretion to dismiss the Review Application and/or to order the Cost Order “do stand”. In any event, even if I were wrong, the court will consider the substance and not the semantics of the 13/4/21 Order. Plainly, by dismissing the Review Application and ordering the Cost Order “do stand”, Ms Ho was in effect confirming the Cost Order, and the 13/4/21 Order did not travel outside the ambit of section 27A of the SCTO. There is no merit to Ground (h)(i). 147.Further, section 26A of the SCTO provides as follows:
Once the power of review is exercised, the adjudicator will be able to exercise the power under section 26A of the SCTO. Here, even if one would put aside for the moment Ms Ho’s written directions of 9 April 2021 (see paragraph 38 above), the SCT by the Form 8B (see paragraph 28 above), Mr Yip’s written directions dated 9 March 2021 (see paragraph 31 above) and the SCT’s written notice dated 26 March 2021 (see paragraph 35 above) firmly directed C and D to attend the oral Review Hearing at the SCT on 13 April 2021 (which directions had never been revoked and which Review Hearing had never been vacated), but C failed to attend the Review Hearing on 13 April 2021 to prosecute his Review Application (see paragraphs 138-140 above). There was clearly jurisdiction to enter judgment against C on the Review Application, ie to dismiss such application, for his absence at the Review Hearing, in which event the Cost Order would inevitably “do stand”. Ms Ho plainly relied on the jurisdiction in section 26A of the SCTO because she noted in paragraph 14 of the Review Reasons that C did not apply under section 32A of the SCTO to set aside the 13/4/21 Order which was made in his absence (see paragraph 63 above). 148.But apart from disputing jurisdiction for granting the 13/4/21 Order, C’s Leave Submissions raised other contentions to say Ms Ho erred in law in granting the 13/4/21 Order and giving the Review Reasons:
149.Ground (j) I have dealt with Ground (j) in paragraphs 138-140 above, and see no basis for C to say there was any shifting of blame to C by Ms Ho. As explained above, the SCT required an oral hearing Review Hearing and refused C’s application for paper disposal, which directions were never revoked and which meant C was required to personally attend the Review Hearing to prosecute his Review Application. 150.C’s letter dated 31 March 2021 stated inter alia as follows:
In my view, in saying that his presence at the Review Hearing was unnecessary, in asking to be excused for attending the Review Hearing, and in requesting for the eventual written decision, C was essentially seeking leave from the adjudicator not to attend the Review Hearing and re-newing his already refused application for paper disposal notwithstanding the SCT’s directions all along that maintained an oral Review Hearing which, unlike the ex-parte Application, was an inter partes hearing for the inter partes Review Application. In my view, Ms Ho was correct to describe C’s letter dated 31 March 2021 in the following terms in the Review Reasons:
In my view, Ms Ho also properly understood the practical effect of C’s letter dated 31 March 2021 and replied accordingly by her directions dated 9 April 2021 as follow:
she also correctly described her above directions in the Review Reasons as follows:
151.On such analysis, there was no shifting of blame to C. In any event, even if C merely sought understanding for his absence at the Review Hearing, it would not have availed him because unless otherwise expressly directed by the court, he would have to attend the oral Review Hearing to prosecute the inter partes Review Application, failing which he would have to bear the consequences of his non-attendance. I find ground (j) had no arguable merits. 152.Ground (k) For this intended ground of appeal, I am also persuaded there were no arguable merits. Section 27A(1) of the SCTO expressly provides it is the adjudicator of “an award or an order given or made by him” who may review such award or order. This is echoed in section 27A(5) of the SCTO which provides that “[an] adjudicator may transfer the hearing and consideration of a review to another adjudicator who shall have all the powers and functions he would have if he had originally heard the claim and had prepared the record of proceedings”. Thus, section 27A of the SCTO statutorily provided for Ms Ho to hear the review pursuant to the Review Application without need for any express assignment and no directions were ever granted for transfer of the review proper to another adjudicator. All that was needed was the issuance of Form 8B to notify the parties the Review Hearing would be heard at the SCT on 13 April 2021. In any event, as explained in paragraphs 138 above, the SCT (including Mr Yip) had power under section 37 of the SCTO to deal with its own practice and procedure, so Mr Yip had power to grant his written directions dated 9 March 2021 to refuse C’s application for “paper disposal” of the Review Application (see paragraph 31 above). 153.Ground (l) In my view, Ms Ho did dismiss the Review Application by reason of C’s failure to attend the Review Hearing on 13 April 2021. This was apparent from the 13/4/21 Order and the Review Reasons (see also paragraph below). For reasons explained in paragraphs 141-147 above, there was no straightjacket requirement under section 27A of the SCTO, as C suggested, that Ms Ho must determine the merits of the Review Application before she could “dismiss” the same. I am not persuaded Ground (l) amounted to any arguable ground of appeal. 154.Ground (m) In my view, Ground (m) reflected a misunderstanding of the Review Reasons, and was not an arguable ground of appeal. First, C did not provide the transcript of the proceedings at the Review Hearing on 13 April 2021 to demonstrate that upon granting the 13/4/21 Order she became functus officio vis-à-vis the Review Reasons. Secondly, I do not accept C’s suggestion that dismissal of the Review Application was unlawful (see paragraphs 141-147 and 153 above). Thirdly, paragraph 13 of the Review Reasons set out the terms of the 13/4/21 Order, and paragraph 21 of the Review Reasons firmly echoed the 13/4/21 Order that the Review Application was dismissed due to C’s absence at the Review Hearing on 13/4/21. Fourthly, paragraphs 1-13 of the Review Reasons set out the procedural background that led to the Review Hearing on 13 April 2021, and paragraphs 15-19 of the Review Reasons (see paragraph 63 above) set out the concerns that exercised Ms Ho notwithstanding C’s grounds for review (as supported by the Review Submissions) and that Ms Ho considered would require C to allay by way of oral submissions at the Review Hearing in order to overcome or reverse the Cost Order, but as C was absent at the Review Hearing (and therefore unavailable to assist Ms Ho by addressing such concerns) Ms Ho dismissed the Review Application (see paragraph 21 of the Review Reasons and paragraph 63 above). In my view, Ms Ho did not stray into any functus officio territory. Fifthly, I have particularly dealt with Ms Ho’s concerns in paragraphs 18-19 of the Review Reasons for which she required oral addresses from C (see paragraph 63 above) when I discussed Grounds (a)(i)-(iii) and (e) above, and find no arguable merits as to C’s contentions in relation to these intended grounds of appeal. For all such reasons, Ground (m) is not arguable. 155.Last but not least, I note Grounds (j)-(m) sought to attack the 13/4/21 Order / Review Reasons. But as explained in paragraphs 77 and 131 above, these intended grounds of appeal (even if they were arguable which I disagree) would not have aided C as the Cost Order was unassailable. Any successful effort to set aside the 13/4/21 Order / Review Reasons would still leave the Cost Order standing as I have found there was no arguable basis to reverse or challenge the Cost Order. VI. CONCLUSION 156.The intended appeal against the Cost Order has no prospect of success. Even if the intended appeal also attacks the 13/4/21 Order (given the various grounds/submissions that C raised in relation to the 13/4/21 Order / Review Reasons), still there was no arguable basis for this court to grant leave to appeal. In all the circumstances, the Application is dismissed, and there be no order as to costs.
The claimant/applicant, acting in person [1] C and Ip gave oral evidence at the trial on 22 February 2021 [2] footnote 1 of the Review Reasons referred to in para 46 below stated the SCT only received C’s letter dated 31 March 2021 on 8 April 2021 due to the intervening Easter and Ching Ming public holidays, but para 7 of the Leave Submissions referred to in para 48 below claimed such letter reached the SCT by fax on 1 April 2021 [3] this was C’s recollection, but he did not file the transcript of such conversation because when Lai telephoned again to tell him this, he was in the street and it was too noisy for making clear record of such conversation [4] HCSA76/2015 (unreported, 15 June 2015) paras 10-16 [5] HCSA46/2017 (unreported, 12 February 2018) paras 29-43 [6] see Chow Mee Yee Millie v Hong Kong Mediation Services Limited HCSA17/2011, Au J (unreported, 16 February 2012) para 26 and Supremacy Trading Company Limited v Asian Property Investments Ltd & anor HCSA56&57/2914, Au-Yeung J (unreported, 3 December 2014) para 5 [7] see Chow Mee Yee Millie at para 25 and Potential Optical Media Ltd v Upplan Holdings Ltd & anor [2008] 2 HKCLRT 184, 188-189 [8] [2004] 3 HKLRD 168, 179-181 (see also Potential Optical Media Ltd at p 189) [9] [2002] 1 HKLRD 858, 865 and 880 [10] see also Chow Sau Hei v Ho Keung Yuen, Smart Creator International Limited CACV112-114/2013 (unreported, 7 July 2014) paras 7.1 - 7.6 [11] HCSA13/2011, DHCJ Au-Yeung (as she then was) (unreported, 31 October 2011) para 12 [12] CAMP61/2020 (unreported, 5 May 2021) (see also Lee Carol v Tong Hung Wai Tommy & anor CAMP297/2019 (unreported, 21 May 2020) paras 10 and 12, and Greater China Capital Inc v Gbtimes Ltd [2018] 1 HKLRD 210, 212-213) [13] [2012] 1 HKLRD 887, 897 (see also First Laser Ltd v Fujian Enterprises (Holdings) Co Ltd [2016] 4 HKLRD 360, 363, Bank of China Limited Shantou Chaoyang Sub-branch v John Howard Batchelor and Roderick John Sutton, Joint and Several Liquidators of Moulin Eyecare Holdings Limited (in liquidation) HCMP161/2014 (unreported, 6 September 2017) paras 25-26, Bruce James Stinson v Gu Ming Gao CACV61/2017 (unreported, 12 January 2018) para 28, and Redland Precast Concrete Products (China) Limited v AES Steel Mould (Hong Kong) Limited CAMP229/2021 (unreported, 19 August 2021) paras 10-11) [14] see Wallbanck Brothers Securities (Hong Kong) Limited v Cheng Wai Kong & ors HCSA1/2015, DHCJ B Chu (as she then was) (unreported 14 April 2015) para 19 [15] DCMP1905/2013, DDJ Simon Ho (unreported, 2 June 2017) [16] see McGregor on Damages 21st ed paras 12-001 – 12-007 at pp 408-411 [17] see McGregor on Damages para 12-001 at p 408 [18] see McGregor on Damages para 12-002 at pp 408-409 (see also Yeung Ping Heung trading as Alfred Yeung & Co v Ha Chiu Ping & ors HCA4370/2003, DHCJ To (unreported, 21 July 2006) para 6, and Tai Yip Dyeing Factory Limited (in Liquidation) v Kong Hoi Sang HCA2917/2004, Saunders J (unreported, 4 April 2007) para 16) [19] [1900] AC 113, 116 [20] see McGregor on Damages para 12-004 at p 410 (see also Yeung Ping Heung trading as Alfred Yeung & Co at para 6 where DHCJ To said “[if] an injured party is unable to prove the quantum of loss suffered, a nominal award on an arbitrary basis is given to mark the infringement of the injured party’s right”) [21] see also Chan Yin v Chan Yee Mei DCCJ8506/2001 (unreported, 14 April 2002) para 72 [22] see McGregor on Damages para 12-009 at p 412 [23] at p 116 (see also Yeung Ping Heung trading as Alfred Yeung & Co at para 6 where DHCJ To said “[even] a small sum does not cease to be a sum of substance and becomes a nominal sum by reason only of its being small in absolute term or insignificant in relative term”) [24] CACV58/1993 (unreported, 30 July 1993) [25] DCCJ680/2010, DDJ R Lai (as he then was) (unreported, 20 November 2013) [26] HCA4370/2003, DHCJ To (unreported, 21 July 2006) [27] [2015] 5 HKLRD 368 [28] DCCJ1980/2012, DDJ Elaine Liu (unreported, 26 November 2015) [29] para.12-009 at p 412 [30] see para 20 of C’s Leave Submissions and para 27(a) above for C’s Review Application [31] HCPI62/2011 (unreported, 30 April 2018) [32] Vol 1 para 62/3/3 at p 1213 [33] see Yu Wing Kei at paras 7-8 and Philip Gerald Bundy v Victor Base Limited HCSA10/2016, L Chan J (unreported, 1 April 2016) para 26 [34] [1992] 1 WLR 1207, 1214 (applied to Hong Kong in Wang Din Shun v Nina Kung alias Nina TH Kung CACV460/2002 and CACV67/2003 (unreported, 19 April 2005) para 39) [35] Order 62 rule 7(1) of the RHC refers to “improperly or unnecessarily” rather than “improperly or unreasonably” [36] (2007) 10 HKCFAR 246, 251 [37] see Donald Campbell v Pollak [1927] AC 732, 811-812 [38] see McGregor on Damages para 12-1013 at p 414 [39] Vol 1 para 62/3/4 at p 1311 [40] [1951] 1 All ER 873, 874 [41] see McGregor on Damages para 12-013 at p 414 [42] [1984] 1 WLR 394 [43] see Elpe International Far East Limited at page 11, Tai Yip Dyeing Factory Limited (in Liquidation) paras 6-10, and Union Knopf (HK) Limited v Marcel Sossnowki & anor DCCJ680/2010, DHCJ R Lai (as he then was) (unreported, 31 March 2014) paras 46-49 [44] DCCJ680/2010, DHCJ R Lai (as he then was) (unreported, 31 March 2014) [45] see also McGregor on Damages para 12-013 at pp 414-415 [46] see also Hong Kong Civil Procedure 2022 Vol 1 para 62/3/4 at p 1311 citing Lipkin Gorman v Karpnale Ltd [1989] 1 WLR 1340, 1390 [47] by successfully resisting substantial damages for the loss of the Jacket ($1,200) and alteration fee ($125), and by successfully resisting the claim for the Necktie ($100) altogether [48] HCA2917/2004, Saunders J (unreported, 4 April 2007) [49] section 27A(1) of the SCTO provides that “an adjudicator may …… review the award or order and on such review may re-open and re-hear the claim wholly or in part and may call or hear fresh evidence and may confirm, vary or reverse his previous award or order” [50] rule 6A of the SCTGR provides that “[if], upon the hearing of a claim, the claimant does not appear, the adjudicator may strike out the claim upon such terms as he thinks just” [51] C relied on Fairview Park Property Management Ltd v Lee Yuen-yau HCSA13/1986, Hooper J (unreported, 1 December 1986) in support of Ground (h)(i) [52] HCSA13/1986, Hooper J (unreported, 1 December 1986) [53] see Lee Yuen-yau v Fairview Park Property Management Limited HCSA4/1987, Liu J (unreported, 3 April 1987) para 2 (Liu J’s decision was allowed on appeal in HCMP703/1987 and CACV75/1987 (unreported, 14 October 1987), but his description of the procedural history of the case was upheld) [54] HCSA4/1987, Liu J (unreported, 3 April 1987) para 2 [55] see Fairview Park Property Management Ltd, a company registered in Hong Kong v Lee Yuen-yau HCMP703/1987 and CACV75/1987 (unreported, 14 October 1987) [56] HCSA2/2010, A Chung J (unreported, 15 April 2010) [57] HCLA22/2011, DHCJ Au-Yeung (as she then was) (unreported, 11 January 2012) [58] in that case, A Cheung J (as he then was) in paras 24 and 26 stated as follows: “《勞資審裁處條例》第31條授權審裁官就其之前作出之裁斷或命令，進行覆核，亦授權審裁官就整宗申索或其部份重新處理、重新聆訊，亦可傳召或聆聽新的證據。然而，條例並沒有硬性規定審裁官怎樣處理覆核之聆訊…… 換句話說，除非審裁官在行使其酌情權時犯上嚴重之錯誤，將需要考慮的事情遺漏、沒有考慮，又或將不應考慮的事情包括在考慮之列，以致其決定是很明顯及完全地錯誤的話，否則其決定不能藉上訴予以推翻” (my emphasis) | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Cases cited in this judgment