Fu Chak Ming v. 康泰旅行社有限公司

HCSA 45/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

SMALL CLAIMS TRIBUNAL APPEAL NO. 45 OF 2004

(ON APPEAL FROM SMALL CLAIMS TRIBUNAL CLAIM

NO. SCTC 10599/2004)

____________

BETWEEN

____________

Before: Recorder Edward Chan, SC in Chmabers

Date of Hearing: 6 January 2005

Date of Decision: 6 January 2005

_____________

D E C I S I O N

_____________

1.This matter arose out of a holiday contract between the appellant and the respondent.  The appellant claimed that the respondent had failed to organize a program called the Honey Bee Show, which the respondent had undoubtedly agreed to do.  The claimant succeeded against the respondent.  The Adjudicator awarded him and one other claimant damages in the sum of $720.30.

2.The appellant now sought leave to appeal against the decision of the officer.  The intended appeal plainly would be just on quantum.

3.Originally the appellant and another claimant claimed that they should receive full refund of the cost of the whole tour in the sum of $8806.

4.The approach of the Adjudicator was that having found that the respondent was in breach of the contract, he assessed the value of the Show in the context of the cost for the whole tour.  He did so with reference to the time, which the Show would occupy in the course of the whole tour.  He treated the Show as if it would occupy about one afternoon of the touring time and awarded damages on the basis that the appellants would have wasted one afternoon during the course of the tour, which would be about 10% of the touring time.  He then estimated the cost attributed to the touring time by treating half of the total cost as being for food and air fare and the fees for other programmes.  By this reasoning process, the Adjudicator arrived at a figure of $720.30 as the damages for both claimants.

5.I am prepared to grant leave to appeal as I consider that there are the following arguable points in the appeal:

(a)    Whether the contract for the tour is an entire contract in the sense that the respondent had undertaken to supply all the programmes in consideration for the fees paid, such that the failure of to supply any programme would constitute such a fundamental breach of the contract that the claimant should be entitled to a full refund.  Alternatively, whether on true construction of the contract, the respondent is entitled to charge the fees only if they have supplied all the programmes they undertook to do.

(b)    Even if (a) in answered in favour of the respondent, whether the Adjudicator was right in his method of assessing damages and in particular whether any general damages ought to be awarded in favour of the claimant to compensate him for disappointment and frustration for not being able to watch the show.

6.For the avoidance of doubt, I will not give leave to appeal on the alleged grounds that the tribunal officer was bias, or that he had made a wrong finding of fact on the cost of the admission ticket to the show.

7.It is also noted that only one of the claimants’ name appeared as the appellant in the application for leave to appeal, although in the court below the claim was made by the named appellant and his wife.  The Adjudicator treated and dealt with the claims together as if it was only one claim, and the appellant had always been acting both for himself as well as his wife, the other claimant.  I was told and am satisfied that the omission to include the name of the 2^nd claimant in the application for leave to appeal was purely accidental as the appellant thought that it would be sufficient simply for him to lodge the application for leave to appeal, and I am prepared to grant leave to the appellant to amend the application for leave to appeal by including the name of the 2^nd claimant, Yiu Lai Kuen under Order 20 rule 8.

8.In conclusion, leave is granted to amend the application for leave to appeal by addition of the Yiu Lai Kuen as a co- appellant and leave be granted to both Fu Chak Ming and Yiu Lai Kuen to appeal on the grounds aforementioned.

Fu Chak Ming, 1^st Claimant, appeared in person