Dah Sing Bank Ltd v. Shuen Mi Ho

HCSA36/2007
& HCSA37/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

SMALL CLAIMS TRIBUNAL APPEAL NO. 36 OF 2007

(ON APPEAL FROM SCTC 44038 OF 2006)

---------------------

BETWEEN

----------------------

SMALL CLAIMS TRIBUNAL APPEAL NO. 37 OF 2007

(ON APPEAL FROM SCTC 54441 OF 2006)

----------------------

BETWEEN

----------------------

Before : Hon Yam J in Chambers (Open to Public)

Date of Hearing : 5 September 2007

Date of Judgment : 5 September 2007

-------------------------

J U D G M E N T

-------------------------

1.This is an application by the defendant for leave to appeal against a decision of the Adjudicator Mr Cheang Kei Hong in the Small Claims Tribunal.  There are two cases involving the same defendant and they are HCSA36/2007 in respect of a claim by Dah Sing Bank, and HCSA37/2007 in respect of AIG Credit Card Company (Hong Kong) Limited. 

2.The defendant was late in the call-over in the court below.  In fact, she did not attend on the day of call-over.  Judgment was given against her in respect of the respective sums of $23,000 odd and $19,000 odd.  It concerned credit card expenses.  The defendant explained that she did not attend the call-over date because she was sick and produced a doctor’s certificate in support. 

3.However, the learned Adjudicator imposed a condition of payment into court of these two summonses as a condition for setting aside the two judgments entered.  The reasons given by the Adjudicator are as follows :

(1)	Admittedly, the defendant had voluntarily given these two credit cards — in fact, there are three — to her friend, one Mr Fan, and that was in breach of the terms and conditions of the credit card issuing companies.
(2)	Further, in respect of the AIG case, the expenses were incurred on 24 December 2005 and, therefore, she should have received the monthly statements issued by AIG on or about 3 January 2006, by post on 5 or 6 January as found by the Adjudicator.
(3)	In respect of the second sum, it was a transaction made on 21 January 2006 and therefore, again by 5 or 6 February, she would have received the monthly statement.
(4)	But she did not report anything to the credit card company until 11 February 2006.
(5)	Thus, the Adjudicator came to the conclusion that the defendant had no reasonably arguable defence and she had no sufficient merits, nor a real prospect of success in her defence.

I do not find any error of law in this decision. 

4.Further, it was argued forcefully by Mr Ling, counsel for the defendant, that the Adjudicator should not impose the full payment of the two sums, which would cause financial difficulty on the part of the defendant to fulfil such a condition. 

5.The learned Adjudicator’s decision was based on the fact that the defendant, in the past, shortly before this incident, lent various sums of money to this Mr Fan up to the amount of $240,000, together with a Rolex watch given to Mr Fan at a price of $61,000 odd.  Accordingly, the Adjudicator required the defendant to pay these two sums claimed by these two different credit card companies into court.

6.Again, I do not find any error of law in the exercise of the discretion of the Adjudicator.  It is trite law and well-known to all practitioners that an application for leave to appeal can only be based on an error of law, and I do not find any issues of law arguable on the appeal.

7.For the aforesaid reasons, the application is refused.  Since it is an ex parte application there should be no order as to costs.

8.However the applicant’s own costs shall be taxed according to Legal Aid Regulations.

Mr Timothy Ling, instructed by Messrs Lo, Chan & Leung, for the Defendant (Applicant)