Loong Hock Ltd v. Law Hung
Read the full judgment text of HCSA 31/1983 on BabelCite. This High Court CFI judgment was delivered on 14 March 1984.
1. This is an appeal from the Small Claims Tribunal. The claim was for $2,990. The learned adjudicator gave judgment for the appellant (the claimant in the court below) against the respondent, apparently on the latter's admission, for $1,495. There is no quarrel with that so far as it goes, but the appellant seeks a re-trial de novo of the balance of the claim.
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HCSA000031/1983 Small Claims Appeal No. 31/83 Cases cited by counsel and referred to in the judgment: Wing On Life Assurance Co. Ltd. v. Liu Fook-yau (1977) Small Claims Appeal No. 2 (C.A.) (unreported) Cases cited by counsel but not referred to in the judgment: Chan Man-fai trading as Mandarin Palace Night Club v. Wong Siu-ying (1981) Small Claims Appeal No. 4 (C.A.) (unreported) Lam Hon-kay v. East Southasia Investigations Bureau (1981) Small Claims Appeal No. 13 (Sup. Ct) (unreported) Cases not cited counsel but referred to in the judgment: National Assistance Board v. Wilkinson (1952) 2 Q.B. 648, at 661 Arthur v. Bokenham (1708) 11 Mod. 150 IN THE SUPREME COURT OF HONG KONG HIGH COURT SMALL CLAIMS APPEAL NO. 31 OF 1983 (Claim No. K2044 of 1983) _______ BETWEEN
____ Coram: His Honour Judge Leathlean, sitting as a deputy judge of the High Court Date of Hearing: 14 March 1984 Date: 14 March 1984 ______________ JUDGMENT ___________ 1. This is an appeal from the Small Claims Tribunal. The claim was for $2,990. The learned adjudicator gave judgment for the appellant (the claimant in the court below) against the respondent, apparently on the latter's admission, for $1,495. There is no quarrel with that so far as it goes, but the appellant seeks a re-trial de novo of the balance of the claim. 2. The first ground of appeal is taht the Small Claims Tribunal has no power to receive evidence otherwise than upon oath or affirmation. No sworn evidence was given in the instant case save for an affidavit by the appellant in support of her application for review of the award. This question was the subject of comment by the Court of Appeal in Wing On Life Assurance Co. Ltd. v. Liu Fook-yau.(1) Huggins, J.A., (as he then was), said:
3. Section 23 of the Small Claims Tribunal Ordinance provides as follows:
Counsel for the appellant submits that the effect of those provisions is not that evidence otherwise than upon oath or affirmation is permissible, but merely that the rules of the common law relating to, e.g., hearsay, shall not apply in proceedings in the tribunal. The Evidence Ordinance makes provision for the reception of unsworn evidence in the cases of children of tender years in criminal cases in certain circumstances and hearsay in civil cases subject to certain rules. 4. Section 27 of the Labour Tribunal Ordinance provides as follows:
Nothing could be clearer, therefore, than that the Labour Tribunal may receive evidence otherwise than upon oath or affirmation. Sub-section (2), it will be seen, is similar to sub-section (1) of section 23 of the Small Claims Tribunal Ordinance, the only difference being the interpolation of the words “the common lain relating to the admissibility of" between the words "rules of" and "evidence" and the substitution of the word "material" for the word "evidence" in the latter. 5. The Labour Tribunal Ordinance was first enacted in 1972, and, as I say, the draftsman made it perfectly clear that unsworn evidence might be given before the Labour Tribunal. The explanatory memorandum to the Labour Tribunal Bill states (in paragraph 9) that clause 27 provides for the manner in which evidence may be taken and dispenses with the general rules of evidence. According to the com-parative table annexed to the Bill, sub-section(1) of section 27 of the Labour Tribunal Ordinance is culled from sub-section (4) of section 124 of the New Zealand Industrial Conciliation and Arbitration Act, 1954, which reads as follows:
I merely observe that evidence which would not be legally admissible in a court of law is not, perhaps, the same thing as the reception of unsworn evidence. 6. One wonders why, when the Small Claims Tribunal Ordinance was first enacted only three years after the Labour Tribunal Ordinance, if it was the intention of the legislature that the Small Claims Tribunal might receive unsworn evidence, it did not say so in language as plain as that of sub-section (1) of section 27 of the Labour Tribunal Ordinance. The explanatory memorandum which accompanies the Small Claims Tribunal Bill simply states (in paragraph 5) that clause 23 dispenses with the common law rules of evidence but provides that the Evidence Ordinance shall apply to proceedings in the tribunal. According to the comparative table attached to the Bill (the whole of) clause 23 has its genesis in sub section (2) of section 27 of the Labour Tribunal Ordinance. That, obviously, is not strictly correct. What the explanatory memorandum does not say, as does paragraph 9 of the explanatory memorandum which accompanies the Labour Tribunal Bill, is that it provides for the manner in which evidence May be taken, which sub-section (1) of section 27 of the Labour Tribunal Ordinance clearly does. It apparently occurred to the draftsman of the Labour Tribunal Ordinance that in order to ensure that unsworn evidence might be receivable by the tribunal it was not enough simply to provide that the rules of evidence should not apply to proceedings before it. Possibly he had in mind that "It is a well-established principle of construction that a statute is not to be taken as effecting a fundamental alteration in the general law unless it uses words that point unmistakably to that conclusion" - per Devlin, J. (as he then was), in National Assistance Board v. Wilkinson, (2) hence the inclusion of sub-section(1). It cannot, of course, be argued that sub-section(2) is declaratory of the common law and that sub-section (1) was added ex abundanti cautela. It is only if it is clear that it is the intention of the legislature in passing a new statute to abrogate the previous common law on the subject that the common law must give way and the statute must prevail- cf. Craies on Statute Law, 7th (1971) edition, page 339. There is no presumption that a statute is intended to override the common law. In fact the presumption, if any, is the other way (Craies, op. cit.). And, as the court said in Arthur v. Bokenham(3):
7. To summarize: At common law evidence must be given upon oath or affirmation. If there is any presumption in the matter it is that the Small Claims Tribunal Ordinance (or any other statute) is not intended to override that. Sub-section (1) of section 23 of the Small Claims Tribunal Ordinance is couched, in my view, in general terms, and, that being so, it must be construed in favour of the common law. In my judgment, the sub-section does not empower the Small Claims Tribunal to receive evidence otherwise than upon oath or affirmation, has nothing whatever to do with the manner in which the tribunal may take evidence (which sub-section (1) of section 27 of the Labour Tribunal Ordinance quite clearly has), and in effect provides merely that the common law rules relating to, e.g., hearsay, shall not apply in proceedings in it. Some support for that view is, perhaps, to be derived from the fact that the Evidence Ordinance, under which, as I have said, hearsay is admissible in certain circumstances, does apply to proceedings in it, and, possibly, from the fact that provision is made by section 17 of the Small Claims Tribunal Ordinance as amended by section 3 of the Small Claims Tribunal (Amendment) Ordinance, 1979, for the entry of judgment in default of appearance upon application supported by affidavit. The original section 17, according to the relevant comparative table attached to the Bill, derives from section 21 of the Labour Tribunal Ordinance, but that section did not, and still does not, provide for the entry of judgment in default of appearance upon application supported by affidavit. It is, I think, arguable that the Labour Tribunal has power to receive unsworn evidence, but the Small Claims Tribunal has not, hence the provision for judgment in default of appearance upon application supported by affidavit in the Small Claims Tribunal Ordinance. The relevant passage in the Hong Kong Hansard for 1978/1979 (at page 956) reads as follows:
If the Small Claims Tribunal has power to receive unsworn evidence legislation providing for avidence by affidavit would not have been necessary. 8. In my judgment, therefore, the first ground of appeal succeeds. 9. That suffices to dispose of the matter. However, there are six other grounds of appeal. They were not argued before me in any great detail, and I do not propose to deal with them in any great detail either. The parties first appeared before the adjudicator on May 23rd, 1983, when both of them made brief oral unsworn statements. It was on the basis of the respondent's statement that the adjudicator entered judgment on admission for $1,495 in the appellant's favour. It transpired that the parties were not ad idem whether there was a written tenancy agreement. The respondent said that there was, and the matter was adjourned to the following day, when the respondent stated that he had lost it. The parties were then referred to the Tribunal Officer, and the matter was adjourned to September 6th for hearing. There is no record of any hearing on that date (indeed, there was none), simply a somewhat cryptic minute which reads:
10. Pausing there, the "tribunal officers" in the Small Claims Tribunal, unlike their opposite numbers in the Labour Tribunal, are not creatures of statute, and, consequently, have no formally prescribed powers or duties. In the Labour Tribunal the tribunal officers have a duty cast upon them by section 14 of the Labour Tribunal Ordinance to prepare summaries of facts relating to claims. The same section empowers them to interview parties to that end. But it also provides that any statement to a tribunal officer may (only) be admitted in evidence if it is produced before the tribunal by the officer who recorded it and contains a statement by him that he had informed the person who made it that he was entitled to read it or have it interpreted to him and to correct any errors in it. Nowhere in the Labour Tribunal Ordinance is it provided that a summary of facts maybe admitted in evidence. Clearly, from the minute of September 8th, the adjudicator placed some reliance upon the tribunal officer's report, which is headed "Summary of facts". I think, since reference is made in a "rider" to the judgment to sub-section (1) of section 23 of the Small Claims Tribunal Ordinance (set out, supra), that that may have been done upon the basis that it was material which the adjudicator considered relevant. As it was, it contained no more than the tribunal officer's summary of what the appellant had to say in support of her case, and a statement that the respondent had declined to make any statement. I can only say that in my view the adjudicator exercised any discretion which there may have been in the matter of resorting to the tribunal officer's report for the purpose of making a decision without giving the parties an opportunity of being further heard and calling witnesses if they wished wrongly. Reference is also made in the "rider" to the judgment to section 37 of the Small Claims Tribunal Ordinance, which provides as follows:
The adjudicator sought to pray that in aid of the decision to dispense with the appellant's appearance on September 6th, "consideration being given to the spirit of flexibility and informality" of the Samall Claims Tribunal Ordinance - presumably a reference to sub-section (1) of section 16 of that Ordinance, which provides:
Obviously, the adjudicator did not consider that there had been a hearing on May 23rd or 24th, for the case was adjourned to September 6th "for heairng". Moreover, the adjudicator refers to the proceedings on Lay 23rd as "call-over". And, as I have said, there was no hearing on that date, on which judgment was given for the appellant for part of the claim only. With respect, how section 16 can possibly be prayed in aid of that escapes me. Scant wonder that the appellant complains, in her second ground of appeal, that judgment was given on September 6th without a hearing. In my judgment, this ground of appeal succeeds also. 11. On September 27th the appellant applied in writing for a review of the award. The original is minuted to the adjudicator "Submitted for direction please. (signed) (T.C. Ho) 27.9.83" and minuted back "Judgment set aside, s.17 procedure". That minute is struck out, and the words "Please set down" substituted. They are signed by the adjudicator and dated “27/9/83". A formal order setting aside judgment dated the same day was nevertheless drawn up, and the adjudicator's facsimile signature impressed upon it. A line is drawn through the order, which is endorsed "Application to be set down for hearing. Set down for 26.10.83." Suffice it to say that "section 17 procedure" was inapplicable in the circumstances of the case. It may have been a slip, but unfortunately neither the adjudicator's endorsements on the form of application for review or the endorsement, on the formal order setting aside judgment (which appears to be in the adjudicator's handwriting) appear on the photocopies of those documents which were furnished to counsel for the appellant, who was consequently unaware of the cancellation, so to speak, of the order setting aside judgment. 12. On October 26th Vie parties duly appeared before the adjudicator again. Meanwhile, the appellant had filed an affidavit in support of her application for review. Both parties made further brief oral unsworn statements. There is a note at the end of the record "(Evasive about the time she (the appellant) learned about it she said she moved into the same building in 1971). Tribunal: Application dismissed.' 13. None of the parties' unsworn statements was tested in any way except by examination of the respondent by the adjudicator, the result of which was that the former denied that he had ever agreed to pay at any rate in excess of that upon the basis of which judgment on admission was entered against him. The record of that examination runs to all of two and a half lines of typescript. 14. In Wing On Life Assurance Go. Ltd. v. Liu Fook-yau (1) Briggs C.J., said :
In the instant case the appellant's case was that the respondent had agreed to pay at a higher rate, and the respondent's case was that he had not. In my view, there was nothing on the face of the more or less bald statements of either to prove where the true probability lay, and if ever there was a case in which that exhortation should have been heeded this was it. But it was not, and at the end of the day I cannot feel that the matter of the balance of the claim was adequately investigated. This court has no power to interfere with findings of fact unless they are unwarranted by the evidence, which, of course, is a question of law. Quite apart from the question whether the Small Claims Tribunal has power to receive unsworn evidence other than hearsay under the Evidence Ordinance I cannot say that the adjudicator's finding that the appellant was entitled to only half of the amount of her claim was, or could have been, warranted by the evidence, such as it was. 15. The matter is remitted to the Small Claims Tribunal with the direction that there be a re-trial de novo of the balance of the claim by another adjudicator. 16. Costs of the appeal to the appellant.
(1) (1977) Small Claims Appeal No. 2 (C.A.) (unreported). (2) (1952) 2 Q.B. 648, at 661 (3) (1708) 11 Mod. 150 Representation: Mr. Warren Chan instructed by Peter Mark & Co. for Appellant/Claimant Respondent/Defendant in person |