Kwong Hei Mei v. Fraser Yuichi Tajima

HCSA000029/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

SMALL CLAIMS APPEAL NO. 29 OF 2001

(ON APPEAL FROM SMALL CLAIM TRIBUNAL CLAIM NO. SCTC 30470 OF 2000)

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Coram: Deputy High Court Judge Lam in Court

Date of Hearing: 17 October 2001

Date of Handing Down Reasons for Decision: 24 October 2001

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REASONS FOR DECISION

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1.This is an application for leave to appeal against the decision of the adjudicator of the Small Claims Tribunal in SCTC 30470 OF 2000. By an award dated 25.4.2001, the Defendant was adjudged to pay to the Claimant the sum of $28,500.00 and costs in the sum of $1,000.00.

2.Section 28(1) of the Small Claims Tribunal only provides for appeal against a decision of the tribunal on question of law or on the ground of jurisdiction. In the present case, the Defendant sought leave on the basis that the award is erroneous in point of law.

3.In the application, the Defendant sets out 23 grounds. I have considered each and every one of them carefully and read the transcript of the proceedings in the Tribunal and the Reason for Decision given by the adjudicator in the light of those grounds. I have also considered what the Defendant said by way submissions, both written and oral.

4.In my judgment, what the Defendant is trying to do is to attack the findings of facts made by the learned adjudicator. In several paragraphs in the application, it is alleged by the Defendant that the finding of the adjudicator was against the weight of the evidence. Further, there were attacks by the Defendant as to the fact finding process of the adjudicator, e.g. alleging that the evidence on certain aspects of the case was unchallenged and yet finding was made against the same.

5.I do not propose to go into each and every ground separately. Having read everything and given careful consideration to the points made by the Defendant, I have to say that although he called his grounds points of law, they are in substance an appeal against the finding of facts which is not open to him under s. 28(1) of the Ordinance.

6.The learned adjudicator made the following finding of facts which I am satisfied that he is entitled to make on the evidence and the material before him.

7.These are all finding of facts and despite the arguments of the Defendant, I do not think this court should entertain any appeal against those findings. They are solely within the province of the adjudicator as he tribunal of fact and it is against the policy of the Small Claims Tribunal Ordinance to allow any challenge to the same. The attempts by the Defendant to find faults in respect of the fact finding process are without merits. The Claimant did challenge the case of the Defendant although she might not have cross-examined the witnesses on each aspect of the case. This cannot be a ground for setting aside the findings of the adjudicator. Even if there is only one 'expert' witness (assuming one can so characterise Mr Sin), the adjudicator is entitled to assess the weight of his evidence and conclude that it was not sufficient to prove leakage. I am also satisfied that the learned adjudicator did not take into account of any irrelevant matters nor did he fail to take account of any relevant matter in coming to his conclusions. Although there are cases where faults in the fact finding process could be error of law, I am satisfied that the present case does not come within that category.

8.Based on those finding of facts, I am of the view that the learned adjudicator was correct in law in holding that the Defendant was not entitled to rescind the tenancy agreement or to terminate the same by pre-mature surrender. The award therefore cannot be challenged by way of appeal.

9.I therefore dismiss the application.

Representation:

Applicant, Fraser Yuichi Tajima, in person