Kaur Rajwant v. Mirzaei, Behzad

HCSA 39/2025

[2026] HKCFI 278

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

SMALL CLAIMS TRIBUNAL APPEAL NO 39 OF 2025

(ON APPEAL FROM SMALL CLAIMS TRIBUNAL

CLAIM NO 36231 OF 2024)

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D E C I S I O N

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Introduction and Background

1.I have before me an application for leave to appeal against a decision of the Small Claims Tribunal (“the Tribunal”). The Applicant was the Claimant, and Mirzaei Behzad and Kaur Pramjit were the 1^st Defendant (“D1”) and 2^nd Defendant (“D2”) respectively, in the proceedings before the Tribunal.

2.On 31 October 2025, following a trial which took place on 22 August 2025 and 3 October 2025 before Mr Ambrose Ng (“the Adjudicator”), the Claimant’s claim was dismissed and judgment was entered for D1 against the Claimant in part on D1’s counterclaim in the sum of HK$12,140 with post-judgment interests. D2’s counterclaim was dismissed.

3.The reasons for the Adjudicator’s decision was given orally on 31 October 2025 and was reduced into writing by a Reasons for Decision dated 18 December 2025 (“the Reasons”).

4.In the Reasons, §6, the Claimant’s case was summarised as follows:

(1)  The Claimant has granted a licence to D1 and D2 (collectively, “Ds”) to park their car at the parking space of the Claimant’s rented premises in Sai Kung upon payment of a monthly licence fee and a deposit;

(2)  The Claimant was entitled to revoke the licence at will. In any event, the Claimant has given reasonable notice to Ds of a revised payment terms which Ds did not accept;

(3)  The Claimant has terminated the licence on 12 July 2024. Ds’ car was subsequently removed on 20 August 2024. The keys were sent to Ds’ last known address by registered post the next day; and

(4)  As the licence was terminated on 12 July 2024, the Claimant was entitled to claim for damages for trespass from 12 July 2024 to 19 August 2024. The basis for calculation of her claim is that she was entitled to such damages calculated at HK$300 per day as per the Form of Claim.

5.As for Ds’ case, this was summarized in the Reasons, §7, as follows:

(1)  The Claimant and D2 are sisters, and D1 and D2 are husband and wife;

(2)  This parking arrangement was a family arrangement made orally where an extra parking space (i.e. a total of two parking spaces) was rented when the Claimant took up the tenancy in Sai Kung. There was an understanding that one of the parking space was for D1’s car and the term of such parking arrangement was to run concurrently with the Claimant’s own tenancy of a 2-year term;

(3)  In any event, D1 has duly paid the fee (calculated at HK$600 per month) every 6 months as well as having made a deposit of HK$1,200. It was the sudden demand by the Claimant for 1 year payment in advance that prompted D1 to propose negotiating for formal written terms;

(4)  However, the Claimant unilaterally terminated the parking arrangement when D1 was out of town and could not arrange for the removal of his car from the Claimant’s premises;

(5)  The Claimant did not inform Ds the whereabouts of the car after removing it from her premises and the keys were posted to D1’s former address;

(6)  D1 was unable to locate the car until late September 2024 after reporting to the Police. The car was found being parked at a public parking space with parking meter without payment for a lengthy period of time. This resulted in D1 having to settle 14 penalty tickets, towing charges and parking expenses as set out in the Form of Counterclaim;

(7)  As for D2, she has no contractual or otherwise legal relationship with the Claimant in relation to the parking space which was used to park D1’s car. The Claimant should not be claiming against her in the first place.

6.Essentially, the Adjudicator found in favour of the Claimant on her claim for trespass but only for the period from 1 August 2024 to 19 August 2024 and damages should only be HK$20/day, i.e. HK$380. Taking into account the deposit of HK$1,200 paid by D1, the Claimant should return HK$820 to D1. Furthermore, the Adjudicator held that even if D1 is trespassing, there is no justification for disposal of the car in the way the Claimant did and therefore the Claimant should be liable to D1 for conversion. Since the Claimant had not informed D1 of the whereabouts of the car after removing it from the Claimant’s premises and it took “some time” for D1 to recover the car, in that period, D1 was issued 14 fixed penalty parking tickets at HK$320 each (“the Fixed Penalty”) and because the fixed penalty tickets were posted to D1’s former address, he did not receive them in time to settle them so apart from HK$320, D1 incurred additional penalty at HK$320 and costs of HK$440 under various Notices of Order to Pay Penalty (“the Additional Penalty and Costs”) which should be recovered from the Claimant. See Reasons, §§11-12.

7.The grounds for appeal as set out in the Applicant’s Affidavit are in gist as follows:

(1)  The Adjudicator erred in law to find the Claimant liable for all penalties (including those incurred after D1 was put on notice of the car’s location) solely because she did not initially inform D1 of the location of the car. This finding ignores the conclusive evidence that D1 was informed through multiple channels from the police (i.e. Notice Demanding Payment of Fixed Penalty) and court (i.e. Notice of Order to Pay Penalty under Section 16(2)), produced by Ds, the first being issued on 5 September 2024 at his old address which should have specified the location of the car. From 20 September 2024 onwards, D1 began receiving all subsequent violation notices and court demands at his new address. The Adjudicator erred to hold the Claimant liable for the Additional Penalty and Costs (HK$6,080) which were incurred as a result of D1’s own inaction to mitigate loss and only removing the car on 22 September 2024;

(2)  The finding that D1 was unaware of the location of the car was a perverse finding of fact given that it is contradicted by the police and court notices;

(3)  The Adjudicator erred in law to find the Claimant liable to D1 for the fines totaling HK$1,920 for failing to display a valid licence which was a direct result of D1’s own failure to renew his vehicle road licence; and

(4)  The Adjudicator erred in law to include both the initial fixed penalty fine (HK$320) and subsequent larger court fine (HK$1,080) for the same violation.

Discussion

8.Section 28 of the Small Claims Tribunal Ordinance, Cap.338 provides:

(1)  Any party who is aggrieved by a decision of the tribunal-

(a)  on any ground involving a question of law alone; or

(b)  on the ground that the claim was outside the jurisdiction of the tribunal,

may apply to the Court of First Instance for leave to appeal and the Court of First Instance may grant such leave if it thinks fit.

9.Since the scope of appeal from the Tribunal to this court is limited to questions of law, the Applicant cannot seek leave to appeal against the Tribunal’s findings of fact or decision on the credibility of witnesses merely by contending that the Tribunal was wrong, for that would be to allege no more than an error of fact. He has to make out a ground that raises a question of law or alleges an error of law. Thus a decision of fact can be quashed for error of law if it is perverse or irrational, or if there was no evidence to support it. See: Liu Chung Man v Midland Realty International Ltd. (Unrep) HCSA 42/2015, 9 September 2015, per G Lam J (as he then was) at §§12-13.

10.Moreover, the party who seeks leave to appeal must show that his or her intended appeal is arguable: see Tsui Koon Wah v Ip Mei Ho [2021] HKCFI 3437 at §65 per Marlene Ng J.

11.Having heard the submissions of the Applicant and confirming with her the grounds of appeal are as summarised by me above, I am of the view that it may be arguable that the Adjudicator had erred in holding D1 was entitled to recover from the Claimant the Fixed Penalty, Additional Penalty and Costs in the sum of HK$11,320 without considering whether such loss or damages claimed are the natural and direct result of the Claimant’s conversion of the car and/or was caused by the conversion: see Clerk & Linsdell on Torts, 24^th Edn, §§16-110 & 16-112. Moreover, a claimant in conversion, as for any tort, must take reasonable steps to mitigate any consequential loss suffered: see ibid, §16-112. It is not apparent from the Reasons that this issue was considered.

12.Since the matter is to proceed to an appeal proper, it is inappropriate for me to dwell on the merits at this stage save I should remind the Applicant, who is acting in person, that the granting of leave to appeal does not necessarily mean success at the appeal proper since the court has not had the opportunity to hear from Ds on the merits of the alleged errors of law which appear just “arguable”.

13.I will grant the Applicant leave to appeal.

14.Costs of this application be in the cause of the appeal.

The Claimant (Applicant) appeared in person