Woo Tak Yan v. Secretary for Justice / Department of Justice
Read the full judgment text of HCSA 39/2022 on BabelCite. This High Court CFI judgment was delivered on 29 September 2023.
1. On 30 August 2022, in the Small Claims Tribunal proceedings in SCTC 20747/2021, Mr Vincent Kee, deputy adjudicator, dismissed the following:
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HCSA 39/2022 [2023] HKCFI 2452 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE SMALL CLAIMS TRIBUNAL APPEAL NO 39 OF 2022 (ON APPEAL FROM SMALL CLAIMS TRIBUNAL CLAIM NO 20747 OF 2021) _________________
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_______________ DECISION _______________ Introduction 1.On 30 August 2022, in the Small Claims Tribunal proceedings in SCTC 20747/2021, Mr Vincent Kee, deputy adjudicator, dismissed the following:
2.On the following day, the claimant applied for a review of the above decision. 3.On 1 November 2022, the deputy adjudicator confirmed the decision and dismissed the review application. 4.The deputy adjudicator set out his reasons for the substantive decision and the review decision in two written decisions both dated 15 December 2022. I shall refer to them below as the “first written decision” and “the second decision”, respectively. 5.The claimant now seeks leave to appeal against the review decision. The claim and the counterclaim 6.The claimant was a civil servant working at the Environmental Protection Department. He was interdicted from duty with effect from 12 April 2021. 7.Subsequently, the personal belongings which he had placed at his office were removed by the department to mini-storage units rented by the latter. Those personal belongings remained there since then. 8.The claimant claims against the defendant in tort for infringement of his rights, including his legal and beneficial ownership, access and custody, use and enjoyment, in relation to his belongings. 9.On the other hand, the defendant counterclaims as follows. 10.Upon his interdiction, the department requested the claimant to remove his personal belongings from the office. Despite repeated reminders, the claimant failed to do so. The department made an offer to send the belongings to his home on 23 April 2021 but the claimant refused. Then the department informed him that the belongings would be temporarily stored in mini-storage units rented by it and requested him to take them back within one month. The department also warned him that if he failed to do so, it would recover the storage costs from him. Since then, the department issued a number of reminder letters. But the claimant did not collect his belongings. 11.The department was paying a monthly sum of about $7,000 for the mini-storage units. The defendant now counterclaims against the claimant for the rentals, both incurred and accruing. The decision on striking out 12.Section 25 of the Ordinance provides:
13.In the first written decision, the deputy adjudicator set out in paras 10 to 12 his reasons for dismissing the claimant’s application to strike out the counterclaim under section 25. 14.He was of the view that the claim and the counterclaim were closely linked. (In that decision, he also dismissed the defendant’s application to strike out the claimant’s claim.) 15.He was of the view that it was arguable that the defendant was an involuntary bailee and that its claim for storage fees was hence arguable. It was therefore not a plain and obvious case that the counterclaim should be struck out. 16.He said:
17.In the second written decision, he reiterated this view and set out his reasoning in paras 33 to 42. He specifically dealt with the claimant’s argument that the counterclaim had no valid legal basis, by re-citing the same passage from Chitty: see para 38. He maintained the view that there was room for the defendant to mount the involuntary bailee contention as a cause of action, both on the law and on the evidence. 18.In the review hearing, the claimant submitted that there was no legal basis for the defendant to take away his property in the first place and such act was similar to theft and, further, after it did so illegally, it was unreasonable for it to then demand him to pay the storage fees. 19.At para 40, the deputy adjudicator held that whether there was justification for the defendant to remove the claimant’s belongings was a matter for trial. He said:
The decision on entering judgment upon failure to comply with an order 20.Section 26A of the Ordinance provides:
21.In his application under this section, the claimant relied on the following two orders. 22.First, the order made on 5 July 2021 (“the July order”):
23.The deadline of 13 September 2021 was later extended to 20 September 2021. 24.Second, the order made on 29 November 2021 (“the November order”):
25.In the substantive hearing, the claimant contended that (1) the defendant had failed to comply with the July order because it had failed to submit a “defence” within the deadline, and (2) the defendant had failed to comply with the November order. Upon such non-compliance, he invited the tribunal to exercise its discretion to enter judgment against the defendant. 26.In the first written decision, the deputy adjudicator set out his reasons in paras 18 to 20 for dismissing the application to enter judgment under section 26A. 27.He found that the defendant had filed with the tribunal documents numbered “D1-64” within time under the July order and documents numbered “D65-230” within time under the November order. 28.Moreover, he highlighted that the July order required the defendant to submit defence statements (答辯供詞) and statements of other factual witnesses (其他事實證人的供詞) and that the documents numbered “D1-64” contained defence statements. 29.At the substantive hearing, the claimant claimed that he had not received the two batches of documents from the defendant. The deputy adjudicator had some queries over this assertion. Nevertheless, he held that in any event, the contents of the documents were relevant to the disputes between the parties and the tribunal had a duty to inquire into any matter which it might consider relevant to a claim under section 16(3). Hence he would not exercise his discretion to enter judgment against the defendant. He distinguished the authority relied on by the claimant on the facts. 30.In the review hearing, the claimant repeated some of his original arguments. In the second written decision, the deputy adjudicator maintained his ruling and set out his reasoning in paras 16 to 30. 31.As regards the claimant’s contention that the defendant had failed to file a “defence”, the deputy adjudicator repeated that the July order did not direct the defendant to file a “defence”. He said, at para 16:
32.The deputy adjudicator also re-confirmed, at para 20, that the documents numbered “D1-64” were defence statements (答辯供詞) and hence the defendant had not violated the July order. 33.On the issue of whether the defendant had in fact served the two batches of documents on the claimant, the deputy adjudicator was inclined to believe that it had: para 24. In any event, however, even if it had not, the claimant subsequently had opportunities to review those documents and reply to them. In the circumstances, it would not be fair to enter judgment based on the non-compliance: paras 28 to 29. The proposed grounds of appeal 34.In his Form 9, the claimant put forward the following grounds to say that the review decision is erroneous in point of law:
Discussion 35.Section 28(1) of the Ordinance provides as follows:
36.As is plain from the extract above, the proposed grounds of appeal are not particularised. They fail to spell out precisely how the deputy adjudicator has made the alleged errors in law. They are simply blanket assertions of the errors. For the hearing before me, the claimant had submitted a five-page written submissions. He sought to explain where and how the deputy adjudicator had gone wrong. However, he did not do so by express reference to the five grounds of appeal set out in his Form 9. Some of the submissions are not entirely comprehensible. It also appears that he was repeating the arguments which he ran before the deputy adjudicator. Striking out 37.The submissions made by the claimant in relation to the striking out decision are not comprehensible. 38.I reproduce the main paragraphs below:
39.The submissions appear to relate to the first, third and fifth proposed grounds of appeal. 40.In my view, the reasoning adopted by the deputy adjudicator in refusing the striking out application is plainly sound and valid as a matter of legal analysis. 41.Furthermore, as commented by the deputy adjudicator in the second written decision (para 36), the defendant expressly referred the tribunal to three notions in its written submissions – conversion, involuntary bailee and trespass to land. In light of that, it is not understood why the claimant now says that “bailment had been rejected by Defendant”. 42.As regards the claimant’s argument that the deputy adjudicator had wrongly assisted the defendant in providing a legal basis for his counterclaim, there is, in my view, nothing in the two written decisions showing that to be the case. 43.In his reasoning, the deputy adjudicator quoted a passage from Chitty (see paras 16 and 17 above). Insofar as the claimant is now saying that the deputy adjudicator ought not to have done so when the defendant did not rely on it in its submissions, there is no merit in this contention. 44.As remarked by the deputy adjudicator, the tribunal had a duty to inquire into any matter which was relevant to the claim, even when it had not been raised by a party: see para 37 of the second written decision. In my view, the deputy adjudicator committed no error when he referred to the passage in Chitty as part of his reasoning in concluding that that cause of action was arguable. 45.The intended appeal against the striking out decision is unarguable. Entering judgment upon failure to comply with an order 46.As regards the claimant’s application to enter judgment pursuant to section 26A, his present complaint, as revealed by his written submissions, appears to be that the deputy adjudicator’s decision was made out of apparent bias. First, the claimant points out that in his reasoning, the deputy adjudicator did not refer at all to the claimant’s repeated assertions made in writing throughout the small claims proceedings that the defendant had put forward no defence to resist his claim. Secondly, what the defendant had submitted were only “witness statements” and that was in violation of the July order. 47.In my view, there is no merit in this argument. In the two written decisions, the deputy adjudicator explained in plain and clear terms what was required to be submitted by the defendant under the July order and soundly concluded that what the defendant submitted came within the order: see paras 28, 31 to 32 above. I have also taken a look at the documents numbered “D1-64”. I agree with the conclusion. The fact that the claimant had repeatedly made written assertions in the proceedings that there was no defence is beside the point. 48.In any event, even if the defendant had failed to comply with the July order and/or the November order because it had failed to serve them on the claimant, I agree with the deputy adjudicator’s view that the tribunal should not enter judgment solely for that reason. His reasons, as set out in paras 29 and 33 above, are plainly correct. 49.There is no prospect of success in the intended appeal against the decision under section 26A. Conclusion 50.For the above reasons, I dismiss the claimant’s application for leave to appeal.
The claimant appeared in person | ||||||||||||||||||||