Dah Chong Hong Ltd v. Ho Kang-chuen and Another

HCSA000004/1980

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Coram: Cons, J.A., Yang and Bewley, JJ.

Date of Judgment: 9 June 1980

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JUDGMENT

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Cons, J.A.:

1. These are applications for leave to appeal from two decisions of the Small Claims Tribunal whereby the adjudicator dismissed for lack of evidence two claims brought by the applicant. The grounds of appeal were framed in several ways, but principally it is said that the learned adjudicator failed to give the applicant a chance properly to prove his claim by the production of documentary evidence.

2. That is in substance an allegation of fact. Despite the able and persuasive argument of Mr. Philip Lee, we are not persuaded that there is sufficient evidence to support it. Rather the indications are, to our mind, more inclined the other way, that the person representing the applicant before the tribunal was in reality not prepared with sufficient evidence to maintain the claims.

3. The second complaint, related to the first, is that the adjudicator did not, as it were, take over the conduct of the claim from the applicant's representative and prove it for him. This complaint is immediately answered by the same reason as the first.

4. Apart from that, although we appreciate that by section 16 of the Ordinance the adjudicator is bound to adopt an informal approach and to "inquire into any matter which it may consider relevant to a claim, whether or not it has been raised by a party", how much is required from the adjudicator will depend upon the circumstances of each individual case. He will in any event need first to have reason to think that relevant matter is available. The reason may come from the case itself or it may come from the experience of the adjudicator having previously dealt with many similar claims. He may for example be aware that a particular type of claim is usually proved by documentary evidence. If in such a case no sufficient evidence is led, the adjudicator ought to enquire after the documents. However if the person appearing before the tribunal is a person who has proved many similar claims before and yet still produces no documents, we think the adjudicator is justified in assuming without question that such evidence is not available.

5. For these reasons, we refused leave to appeal. However, certain comments of the learned adjudication in the Reasons for Decision have caused us some concern. They appear to indicate a view that large organizations which make frequent use of the tribunal, particularly those hongs which are accustomed to finance hire purchase transactions, should be accorded less favourable treatment before the tribunal than individual litigants.

6. Such an approach would seriously impugn the impartiality of the Small Claims Tribunal and we cannot think the words of the adjudicator were so intended. Where the claim is in fact a small claim, that is for not more than $3,000, large hongs and small men alike are bound to bring their claim before the tribunal. The law gives them no option and their comparative wealth is irrelevent: Monis Beraha v. Peter Shui and another⁽¹⁾. The tribunal ought to give them equal treatment.

Representation:

Philip Lee (C.Y. Kwan & Co.) for the applicant.

(1) Small Claims Tribunal Review 1978 No. 2