潘碧玉 v. Nippon Yan (HK) Ltd

HCSA 14/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

SMALL CLAIMS TRIBUNAL APPEAL NO 14 OF 2014

(ON APPEAL FROM SCTC NO 36752 OF 2013)

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D E C I S I O N

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I. INTRODUCTION

1.The defendant operated a website http://www.jpy.com.hk (“Website”) that offered services to inter alia bid for products sold at Japanese online platforms for customers, and to ship the purchased products to them in Hong Kong (“Service”).

2.The Website provided that (“Clauses”):

「請注意！本站僅負責 “代替”會員在日本綱站競標或購買，確定得標後將中標物替您運回來，並不承担賣方不寄貨的風險，也不負責標的物的品質問題！標的物的售後服務或維修問題本站不負責處理，這些請您在下標前一定要考慮清楚！謝謝。

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3. 本公司絕不接受競投或購買任何非法及不能入境的違禁品。

4.   本公司只負責競投服務/訂購貨品服務，客戶需承擔當中風險……。若競投物品貨不對辦，或有破損、寄失，亦不能向本公司追討。 ……」

3.The Website also provided that “如果是因賣家產生的原因，被告人會在下列情況安排退貨:- (i)貨不對辦 (ii)非二手產品 (iii)產品抵達後3天內以電郵聯絡被告人正式要求將產品退還” (“Return Policy”).

4.On 9 January 2013, the defendant on behalf of the claimant bid for and purchased two handbags at http://auctions.yahoo.co.jp/ (日本雅虎), which the claimant knew were advertised as second-hand items, for the price of $4,201 and $7,091 respectively (“Bags 1 and 2”).  On 18 January 2013, the defendant on behalf of the claimant bid for and purchased another handbag at http://www.rakuten.co.jp (樂天市場), which was understood to be brand new, for $15,038 (“Bag 3”).  Bags 1, 2 and 3 are collectively referred to as the “Bags”.  The price for each Bag was inclusive of all shipping charges and the defendant’s administrative charges.

5.Between 21 January and 6 February 2013, the claimant paid the defendant the price for the Bags and the charges as set out in items 3, 4 and 6 of the defendant’s invoice dated 5 February 2013 (“Invoice”).  There was a signature under “收貨人簽署” on the Invoice.

6.When the claimant attended the defendant’s offices on 6 February 2014 to collect the Bags, she suspected they were counterfeit goods.  She returned home to bring back a similar handbag (being a handbag she previously purchased from original brand shop in Europe, “Claimant’s Bag”) to the defendant’s offices for comparison.  She took some photographs and orally “申請退貨” (request to return goods) (“Return Request”).  On that day, the claimant did not take away the Bags, but left them with the defendant.

7.On 7 March 2013, the claimant’s solicitors Ching & Co (“CC”) wrote to the defendant (“7/3/13 Letter”).  CC claimed that (a) the claimant had “reasons to believe that all 3 [Bags] are fake”, (b) the defendant had agreed that Bags 1 and 2 did not look authentic and that they would arrange to refund the price to the claimant, and (c) the defendant would not refund the price for Bag 3 even though they agreed there was reason to suspect some features of such bag were different from those of the Claimant’s Bag.  By the 7/3/13 Letter, the claimant proposed as follows:

“If you insist that the handbag is genuine, then our client will take delivery of the same from your shop and will immediately take it to an office of the Custom and Excise and make a complaint to the office that she has reasons to believe that the handbag purchased from you/through you is fake. The Custom and Excise will be investigating the matter and you may end up facing a criminal prosecution if the handbag is proved to be fake. Our client’s right to seek a full refund and claim damages from you will be expressly reserved at the same time.

Alternatively, in order to minimize your own risk, you may decide to arrange for a refund and the refund shall be made within the next 14 days.”

8.On 14 March 2013, without prior notice to the claimant, the defendant returned the Bags to “日本中介人” (Japanese intermediary) (“Intermediary”) at their request, and since then the Bags remained with the Intermediary.

9.On the following day (ie 15 March 2013), the defendant replied to deny liability and to state inter alia “[CC]要求[the defendant]一是退款，一是報官究治，實有恫嚇威迫之嫌，[the defendant]別無他法，已將[the Bags]送回[the Intermediary]代為跟進 …” The defendant claimed they acted as the claimant’s agent to bid for the purchase of the Bags, but they would not have professional knowledge to judge the authenticity or otherwise of the Bags.  The Website explained that whilst the defendant provided the Service, the customer (ie the claimant) bore the risks associated with the purchase of the bid products.  The defendant claimed they were not obliged to follow up on the matter of the Bags for the claimant, but if she wanted the defendant to do so on her behalf, she would have to notify them within seven days  (“7-Day Deadline”), failing which she could follow up directly with the Intermediary and the vendor(s).

10.CC replied on 18 March 2013 (“18/3/13 Letter”).  They noted the defendant had on their own decided to return the Bags presumably to the vendor(s).  CC took “the view [the defendant has], admitted, by [their] conduct, that the [Bags] are not likely to be genuine”, so they demanded full refund of the total price of the Bags in the sum of $26,330.  The claimant did not admit the defendant was only her agent, but claimed that even if they were, they “would be under a legal duty to exercise due care and skill in the performance of [their] duties, and the degree of care expected of [them] would be higher as [they] were a professional agent”.  CC asserted that the defendant had failed in their duties.

11.The defendant did not reply, and on 5 April 2013 CC wrote to the defendant to urge for a reply by 12 April 2013 (“5/4/13 Letter”).

12.On 16 April 2013, the defendant’s solicitors Katherine YW Or & Co (“KO”) replied as follows (“16/4/13 Letter”):

(a)   The defendant claimed they were the claimant’s agent for the purchase of the Bags, and their principal/agent relationship was subject to inter alia the disclaimer and exclusion of liability Clauses on the Website.

(b)   The claimant failed to state clearly whether the Bags were purchased from or through the defendant, which was relevant for determining the exact commercial relationship between the parties and also the defendant’s liability (which was denied) for the incident.

(c)   If it was the claimant’s case that the defendant was her agent, CC failed to particularise how and why the defendant was in breach of their duty to exercise due care and skill in the performance of their duties.  CC’s reference to “professional agent” was not understood.

(d)   The defendant never agreed to any refund of the price, and any alleged agreement to such effect would be inconsistent with their status as the claimant’s agent.  There was no legal basis for full refund of price as claimed by the claimant.

(e)   In response to the claimant’s request for refund by the vendor(s), the defendant returned the Bags to the Intermediary for follow up on the claimant’s claim.  It was an attempt to resolve the dispute, and not an admission that the Bags were fake.  The defendant called upon the claimant to state clearly whether or not the Bags were fake with evidence and proof in support of her claim.

(f)    The defendant was happy (but not obliged) to further assist the claimant to follow up if she would take up their offer in writing within the 7-Day Deadline, but she failed to do so and instead pressed for refund of the price.  The defendant would not entertain such demand any further.

KO stated the defendant would defend any legal claim made against them, and reserved the right to claim for incurred legal costs in a sum of not less than $5,000 (up till then).

13.On 13 May 2013, CC replied “on the assumed basis that [the defendant] is only an agent of [the claimant] (which is not admitted)”, and asked for details as to whom, why and for what purpose the Bags were returned to Japan.

14.On 22 May 2013, KO wrote to CC to state they would not entertain any further requests by correspondence since the claimant failed to set out the basis/status of her alleged claim, asked repeated questions which had already been answered, and failed to clarify various queries raised in the 16/4/13 Letter.  KO also demanded the claimant to pay the defendant’s then legal costs ($6,500).

II.  CLAIM

15.The claimant chased the defendant on the Return Request, and claimed they made up excuses and failed to reply or notify her about any progress (退貨進度), so the claimant claimed against the defendant for loss of the total price of the Bags ($26,330) and incurred legal costs ($4,500).

III.  DEFENCE AND COUNTERCLAIM

16.The defendant claimed they provided the Service as agent to their customers for the purchase of products they specified, and upon such purchase to arrange shipment of the products to Hong Kong.  They were not concerned with the quality or authenticity of the products, and therefore would not be liable for any mistaken purchase of counterfeit products by the claimant.

17.Because (a) the defendant was not professionally qualified to determine whether or not the Bags were counterfeit products, (b) the claimant continually pressed for refund of the price, and (c) the defendant wanted to avoid accusations and further threats by the claimant, they had no alternative but to return the Bags to the Intermediary (which they did on 14 March 2013) “以祈可安排退款或交涉”.

18.Although the defendant arranged for the return of the Bags to the Intermediary, they had no duty and was not obliged to follow up (跟進退貨) on behalf of the claimant because (a) Bags 1 and 2 were second‑hand products, (b) the claimant did not “產品抵達後3 天內以電郵聯絡被告人正式要求將產品退還”, and (c) the claimant was unable to prove the Bags were “貨不對辦”.

19.Upon the expiry of the 7-Day Deadline, the claimant (whether by herself or CC) still did not ask the defendant to continue with their follow up with the Intermediary for refund of the price on her behalf, so she must have abandoned any intention to request them to do so.  Further, the claimant by the 18/3/13 and 5/4/13 Letters did not demand refund of the price or question the defendant’s return of the Bags to the Intermediary.

20.The defendant counterclaimed for the cost of returning the Bags to the Intermediary ($400), incurred legal costs up to 22 May 2013 ($6,500) and legal costs after that day ($7,000).

IV.  PROCEEDINGS

21.On 27 September 2013, the claimant commenced her claim (SCTC36752/2013) at the Small Claims Tribunal (“Tribunal”).  On 8 November 2013, the defendant filed their Defence and Counterclaim.  The claimant filed her witness statement dated 9 January 2014, and the defendant filed the witness statement of 朱惠武 (“Mr Chu”) dated 7 January 2014.

22.After trial on 17 February 2014, the learned adjudicator Mr David Chan (“Adjudicator”) granted judgment in favour of the claimant for the sum of $29,330 with interest thereon at judgment rate from the date of judgment to payment, and dismissed the counterclaim with no order as to costs (“Judgment”).

23.On 25 February 2014, the defendant applied for leave to appeal against the Judgment on point of law (“Leave Application”). The Leave Application came before me for hearing on 23 April 2014 (“Hearing”).

24.For the purpose of the Leave Application, Ms Au, counsel for the defendant, prepared written submissions dated 17 April 2014, which were replaced by revised written submissions dated 22 April 2014.  Ms Au accepted there should be no order as to costs in respect of the written submissions dated 17 April 2014 which she did not rely on at the Hearing.

V.  REASONS FOR THE JUDGMENT

25.In the Reasons for Judgment dated 8 April 2014 (“Reasons”), the Adjudicator held the core issue was whether the defendant was in breach of the Service in “進行退貨的安排” for the claimant customer, and not about the quality or authenticity of the Bags.  The Adjudicator noted both parties did not deny there was a need to follow up due to query over whether or not the Bags were counterfeit products, hence the case turned on “退貨責任” and the steps taken for such follow up, and not whether or not the Bags were counterfeit products.

26.The Adjudicator held that the claimant’s suspicion that the Bags were counterfeit products was reasonable:

「4. …… 正如案中申索人曾向法庭展示證物裡的相片，向法庭解釋過若干幅相片，包括相片C8到C27相片裡面一些不同的地方。

5.   雖然法庭未能作一個定論究竟這些不同的地方是否代表其為假貨，但從其不同的地方包括皮料、線口、線步的不同模樣、牌子名稱大細，或拉鏈釦欠缺一些記號，又或者招牌裡面所刻落去的牌子深淺程度等等作一些比較，法庭都留意到這些不同的地方。法庭亦都相信當時申請人的而且確發現所購的三個手袋有出現過這些問題，並且產生有關貨物是否真假之合理懷疑。」

27.Further, the defendant admitted they subsequently brought the Bags for cross-check by “一間名為米蘭站之二手店”, which second‑hand shop rejected Bags 1 and 2, and the Adjudicator concluded that the claimant’s query over the authenticity of these two handbags and her Return Request for such handbags were reasonable.  As for Bag 3 which was understood to be brand new, by reason of the matters set out in paragraph 26 above, the Adjudicator found the Return Request for such handbag was also reasonable.  In the circumstances, the claimant by not taking away the Bags on the very day she was to collect them, “法庭亦相信以及被告人也不爭議當時已同意取回貨品並保留以作出退貨跟進”, so the Adjudicator rejected “因申索人沒有証據証明[the Bags]為貨不對辦及其中兩個手袋為二手產品因而沒有責任安排退貨之說”.

28.The Adjudicator held it was part of the Service for the defendant to follow up on the return of the purchased products if the requirements for the Return Policy on the Website were satisfied.  The Adjudicator found the claimant had made an oral Return Request, and the defendant “已早於2月6日時接受申索人退貨要求，其實退貨安排已經產生”[1], so there was no need to satisfy the requirement that “產品抵達後3天內以電郵聯絡被告人正式要求將產品退還” (since the purpose of such provision was to provide an avenue for the customer to notify the defendant which had been achieved).

29.The Adjudicator found the Return Policy on the Website did not clearly define the meaning of “貨不對辦” or the evidence required to prove the same.  It was held that “對貨品品質有真偽的合理懷疑又怎會不能視作為貨不對辦的情況。排除這些貨品的退貨安排或選擇性作出跟進或提供服務並不合理亦未能保障客戶的權利，這拒絕跟進也代表被告人未能合理地履行退貨安排的責任”[2].

30.The 7/3/13 Letter proposed two alternatives, ie the defendant could return the Bags to the claimant (in which case the claimant would pass them to the Hong Kong Customs and Excise Department for follow up) or they could arrange to refund the price.  The Adjudicator found that on 7 March 2013 the claimant did make a request for return of the Bags to her, and he disagreed with “申索人沒有要求取回三個手袋，如要求取回，它會退回之說法” by the defendant.  Mr Chu of the defendant admitted the Bags had been sent to Japan at the Intermediary’s request, and they had remained with the Intermediary since.  He also admitted he only disclosed the whereabouts of the Bags to the claimant at the hearing by the Tribunal in November 2013 when he proposed to resolve the dispute by returning the Bags to the claimant in Hong Kong.

31.The Adjudicator rejected Mr Chu’s evidence to the effect that the defendant could not have returned the Bags because they were not in a position to determine whether the Bags were authentic or not, which conflicted with his evidence that he could demonstrate the Bags were authentic and even had receipts to support this (but which he did not produce).  The Adjudicator considered that if the defendant had evidence to prove the Bags were genuine, they should have no fear in returning the Bags to the claimant as requested in the 7/3/13 Letter.

32.The Adjudicator considered that the defendant’s “提出給予3 月15 日之後七日的設限並不合理也是多此一舉”[3]:

(a)   On 6 February 2013 when the claimant made the Return Request, the defendant had already accepted such request and claimant was waiting for follow up on the return of the Bags.

(b)   On 6 February 2013 the defendant had accepted the return of the Bags, and on 14 March 2013 they sent the Bags to the Agent, ie the defendant had taken back possession of the Bags.

(c)   “於正在同意跟進的事宜裡，被告人無須或不能再設定一個七日的限制，即如果沒有收到回覆，就不會繼續跟進或履行，本席認為這是不必要的，因為從被告人的行徑早於2 月6 日接受退貨並其後將貨品寄回日本此舉，已經證明到被告人已經有所動作接納履行退貨的安排，那又為何要再設定七天限制，去否認自己跟進的責任呢?似乎這一點，被告人作出這七日內回覆設限的決定，明顯是一個錯誤的決定。被告人又表示是按日本代理之要求退回貨品而未知會申索人，但無論她是否被知會，不能否定的是被告人說明在他的日本代理要求下讓他退回貨品。這點足以證明亦顯示退貨的程序亦都已展開。”[4]

(d)   The defendant’s stance (as expressed by Mr Chu at trial) that “被告人不需要跟進及處理交代貨品之事情” was unreasonable.[5]

(e)   The Return Policy had already specified the requirement of notifying the defendant within three days, but it did not specify any further requirement for the customer to reply and confirm within the 7-Day Deadline.

The Adjudicator found that in setting the 7-Day Deadline the defendant “沒有盡力或盡責處理退貨的事宜，亦沒有給申索人作為一個消費者一個合理的交代”, which demonstrated that the defendant did not intend to “繼續履行退貨的安排，因而違反其代理的責任”.[6]

33.The Adjudicator found that the claimant had paid the price but did not have possession of the Bags, and also “未能夠得到關於退款、退貨或者取回貨品的正確或合理交代”, and it was unreasonable and unfair for the claimant as a customer because the defendant had accepted the return of the Bags and “已經作出退貨的動作按其日本代理的要求退貨給其日本代理，但該貨品仍存放於其日本代理的貨倉，而沒有任何其後之跟進舉動或交代”, “加上被告人還說明自己其實沒有責任再繼續跟進”. [7]

34.The Adjudicator found that the defendant failed to comply with sections 5 and 6 of the Supply of Services (Implied Terms) Ordinance Cap 457, and concluded that “被告人於處理退貨上有失責的地方，被告人需要負上這方面的責任。在退貨過程中，被告人沒有正確地或盡力地去為申索人處理退貨，因而違反其代理責任”. [8]

VI.  LEGAL PRINCIPLES

35.Section 28(1) of the Small Claims Tribunal Ordinance Cap 338 provides that leave to appeal may be granted where the proposed ground of appeal involves a question of law alone or is on the ground that the claim was outside the jurisdiction of the Tribunal.  The threshold onus of an applicant is to show that the intended appeal has arguable grounds of appeal.

36.Further, it is trite that findings of fact by the Tribunal are generally immune from challenge as they involve no error of law unless such is perverse or irrational or where there is no evidence to support the decision or where the decision was made by reference to irrelevant factor or without regard to relevant factors.[9]

37.The defendant in seeking leave had to demonstrate that their grounds of appeal were arguable.  In the Leave Application, the defendant raised the following grounds of appeal:

(a)   there was insufficient evidence to warrant the Judgment in favour of the claimant;

(b)   the Adjudicator failed to consider all the facts of the defendant’s case;

(c)   no proper account was taken of the Clauses on the Website;

(d)   it was unfair to grant the Judgment on the evidence.

VII.  LEAVE APPLICATION

(a)  6 February 2013

38.Ms Au submitted even though the Adjudicator held that the contested issue was not about the authenticity of the Bags, he made references to and placed reliance on the non-authenticity of the Bags and considered it to be a “reasonable basis” for the claimant to return the Bags.  However, “the evidential basis upon which the Adjudicator considered the authenticity of the [Bags] is flimsy”:

(a)   Unless it is obvious to the naked eye of a reasonable person, eg appalling workmanship, the Adjudicator not being an expert could not have judged the authenticity or otherwise of the Bags.

(b)   The Adjudicator erred in accepting that the Claimant’s Bag was an authentic one (ie “歐洲原廠買的手袋”) when the claimant did not produce any document (eg receipt or photograph) of such bag.

(c)   Even if the Claimant’s Bag (which the claimant alleged to have been bought from an original brand shop in Europe) was authentic, the Adjudicator erred in assuming without basis that the model/version/colour of such bag would be exactly the same as the ones available in Japan.

(d)   The Adjudicator was only provided with photographs and not real exhibits for comparison, and the quality of the evidence was far from satisfactory.

Ms Au argued that for the above reasons there was insufficient evidence for (and the Adjudicator erred in) finding there were correct and reasonable grounds for the claimant to make the Return Request on the basis of “reasonable suspicion with regard to authenticity”.

39.Next, Ms Au submitted that the Adjudicator erred in finding as a fact that on 6 February 2013 the defendant agreed to and/or accepted the claimant’s return of the Bags or that the Return Policy had been triggered (“Finding”) since there was no evidence to support such Finding:

(a)   On 6 February 2013, the claimant had already signed on the Invoice to acknowledge receipt of the Bags and it was only afterwards that she raised queries about the Bags.

(b)   The claimant’s voluntary act of leaving the bags at the defendant’s offices on 6 February 2013 did not mean the defendant accepted return of the same.

(c)   The defendant’s acts and behaviour up till 15 March 2013 explicitly showed they had not accepted the return of the Bags because:

(i) Even according to the claimant’s witness statement, the defendant had not yet accepted the return of the Bags.  The claimant stated in her witness statement that on 8 February 2013 Mr Chu requested her to accompany him to a second-hand handbag shop on the following day to “核實[the Bags]的真偽後本人才可申請退貨” and “其後本人一直多番催促被告人申請退貨，惟被告人多翻推搪，一直沒有回覆或通知本人關於退貨進度 ……”

(ii) Apart from the Adjudicator’s Finding that the defendant accepted the return of the Bags on 6 February 2013 (which the defendant disputed), the Adjudicator apparently found the defendant had no intention to follow up on the return of the Bags.

40.Ms Au further submitted that although the Adjudicator referred to the Clauses in the Reasons, he failed to consider such clauses at all when he concluded there were “reasonable grounds” for the claimant to make the Return Request on 6 February 2013.

41.In my view, the first matter of note is that the defendant in challenging the Adjudicator’s Finding merely relied on the witness statements and documents submitted to the Tribunal, but did not refer this court to any transcript of the witnesses’ viva voce evidence and/or oral submissions by both parties at trial (“Transcript”).  Hence, any challenge on the Finding must be viewed through the prism of such lacuna.

42.In my view, Ms Au’s arguments in paragraph 38 above misunderstood the Adjudicator’s consideration of the issue as to the authenticity or otherwise of the Bags.  Although the Adjudicator reviewed the photographs and heard the claimant’s explanations as to how various features of the Bags were different from those of the Claimant’s Bag, it is plain that he considered such differing features of themselves were insufficient to enable him to definitively conclude that the Bags were not authentic.[10] But upon considering the evidence, the Adjudicator found there were sufficient differences in respect of various features of the Bags to enable him to further find that at the material time on 6 February 2013 the claimant actually discovered such differences which led her to “reasonably suspect” (合理懷疑) the authenticity (or otherwise) of the Bags, which in turn led her to make the Return Request to the defendant on the same day.  This provided context for and explained the Return Request by the claimant, but was not meant to be conclusive proof of non-authenticity.[11] It is significant to note there was no countervailing evidence from the defendant to doubt that the claimant made the Return Request on 6 February 2013 on the basis of her belief that the Bags were not authentic, and her belief was premised on the comparison between various features of the Bags and those of the Claimant’s Bag.

43.But even though on 6 February 2013 the claimant made the Return Request to the defendant by reason of what she considered to be suspicious features of the Bags, the defendant disputed the Adjudicator’s Finding that the defendant agreed/accepted the return of the Bags upon the Return Request.  However, the Finding is not a mere finding of fact for the Adjudicator noted in paragraph 19 of the Reasons that “法庭考慮過雙方證供及證物, …… 法庭亦相信及被告人也不爭議當時已同意取回貨品並保留以作出退貨跟進” (my emphasis).  As explained in paragraph 41 above, no Transcript was placed before this court (and indeed no submissions were made by Ms Au) to challenge the Adjudicator’s record that at trial “被告人也不爭議”.

44.Turning to the various matters raised by Ms Au in paragraph 39 above, I am not persuaded the fact that the claimant had signed on the Invoice on 6 February 2013 is significant.  In fact, the claimant attended the defendant’s offices on 6 February 2013 for the purpose of collecting the Bags, and signed on the Invoice, but on the very same occasion when she inspected the Bags at the first opportunity upon such collection she found suspicious features that led to the Return Request.  It was not as if the Return Request was made on any subsequent day or occasion.  Even the defendant accepted that on 6 February 2013 the claimant did complain of suspicious features of the Bags that caused her to doubt their authenticity.  I cannot see how the claimant’s signature on the Invoice could (and Ms Au did not suggest that it would) have amounted to a waiver of the claimant’s right to raise complaint or a bar to prevent the claimant from making the Return Request.

45.In any event, it was the defendant’s case that they acted as the claimant’s agent to bid for the purchase of the Bags, and that quite irrespective of whether the claimant signed any acknowledgment of receipt of the Bags it was the claimant who made the purchases from the vendor(s) upon successful bids via the defendant.  And yet, the Return Policy was part of the Service offered by the defendant as agent to their customers (including the claimant) to arrange for the return of products already purchased by the customers and indeed after their arrival for collection.

46.I am also not persuaded by Ms Au’s argument in paragraph 39(b) above.  It is necessary to view the claimant’s act of leaving the Bags at the defendant’s offices in its proper context.  Plainly, it was made consequent upon the claimant’s complaint of suspicious features of the Bags and her concern over their authenticity, and more importantly, it was made pursuant to the Return Request which was made directly to the defendant.  There was no evidence of the defendant having objected to the claimant leaving the Bags with them.  Significantly, the defendant admitted that after 6 February 2013 and without notifying the claimant they took the Bags to a second-hand handbag shop for cross-check, and as a result such shop refused Bags 1 and 2.  If, as the defendant claimed, they had never agreed to and/or accepted the Return Request to follow up on the return of the Bags or the Return Policy had not been triggered at all, they should have insisted that the claimant collect and take away the Bags on 6 February 2013 or alternatively they should have followed up with the claimant subsequently to demand her to collect the Bags she left behind on 6 February 2013.  In my view, there is sufficient evidence and basis for the Adjudicator to conclude that in the relevant factual context, the defendant in allowing the claimant to leave the Bags with them pursuant to the Return Request and thereafter in taking their own initiative to cross-check the Bags with a third party was conduct that was consistent with and that evidenced the defendant’s acceptance of the Return Request.  There was evidence and indeed sufficient evidence (and the matter of the weight of the evidence was for the Adjudicator) for the Adjudicator to reach the Finding and to conclude that the return procedure started on 6 February 2013.  The Finding was neither perverse nor irrational, and the Adjudicator had not considered irrelevant matters or failed to consider relevant matters.

47.In dealing with Ms Au’s arguments in paragraph 40 above, I agree with the Adjudicator that upon his Finding that the defendant accepted the claimant’s oral Return Request on 6 February 2013, there was no need for the claimant to satisfy the requirement of notification by email within three days.  There was no dispute that the claimant’s oral Return Request on 6 February 2013 was brought home to the defendant who was aware of such request.  Consequently, the purpose of the notification requirement under the Return Policy had been achieved by the oral Return Request, and there was no evidence that on 6 February 2013 the defendant objected to non-compliance with the requirements of the Return Policy or they demanded the claimant to take away the Bags.  Instead, they allowed the bags to be left with them pursuant to the Return Request.  In light of this and the discussion in the above paragraph, the notification requirement in the Return Policy was either unnecessary or had been waived.  There is no merit to this argument.

48.As regards Ms Au’s arguments in paragraph 39(c)(i) above, it is perhaps useful to set out paragraphs 10-13 of the claimant’s witness statement in full:

「10. 大約於2013年2月8日晚上左右, 被告人之朱先生致電本人,告知本人他們(即被告人)曾將上述有關的三個手袋送到二手名牌手袋店核實,因二手名牌手袋店拒收其中兩個手袋,故他們(即被告人)會作出安排。但朱先生要求本人於翌日(即2013 年2 月9 日)與他一同前往其他二手手袋店核實上述有關的三個手袋的真偽後本人才可申請退貨。

11. 於2013年2月8日再晚一點時候，本人再以手提電話流動應用程式聯絡朱先生，催促朱先生落實翌日時間，但朱先生說再安排。

12. 於2013年2月9日，本人致電朱先生，查詢有關到其他二手手袋店核實安排，但朱先生卻反口，拒絕當天前往其他二手手袋店，同時，朱先生亦拒絕前往其他二手手袋店，並表示只可去他們（即被告人）之前前往的二手名牌手袋店再核實，而且，只可在過年後（即2013年2月14日）才再作安排。

13. 其後本人一直多番催促被告人申請退貨，惟被告人多番推搪，一直沒有回覆或通知本人關於退貨進度。而朱先生亦再沒有聯絡本人。」(my emphasis)

Read in its proper context, the claimant’s case on her witness statement was that on 6 February 2013 she made the oral Return Request and left the Bags with the defendant for their follow up action on such request, and pursuant thereto the defendant took the initiative to cross-check the Bags at the second-hand handbag shop, and thereafter the defendant even confirmed they would make arrangements accordingly for Bags 1 and 2 because the shop refused to accept such handbags.[12] In my view, this provided evidential basis to support the Adjudicator’s Finding that the defendant had already committed their acceptance of the Return Request and had taken steps to follow up on such request, and it was only in the process of such follow up that they attempted to put up various hurdles or to resile from the earlier arrangement, eg requiring further verification and then “反口”, “多番推搪” and “沒有回覆或通知[the claimant]關於退貨進度”.  I do not see this as establishing any arguable basis for challenging the Adjudicator’s Finding.

49.As regards Ms Au’s arguments in paragraph 39(c)(ii) above, she referred to paragraph 29 of the Reasons as follows:

「被告人作出這決定時,似乎沒有盡力或盡責處理退貨的事宜,亦沒有給申索人作為一個消費者一個合理的交代。此一點也証明被告人公司作出這決定時,顯示其沒有意圖繼續履行退貨的安排,因而違反其代理的責任。」(my emphasis)

The decision by the defendant in the above passage from the Reasons in fact referred to the defendant’s offer in the 15/3/13 Letter to follow up on the Return Request if the claimant would confirm her request for such assistance on or before the 7-Day Deadline,[13] and for the reasons set out in paragraph 28 of the Reasons the Adjudicator held it was unreasonable and “多此一舉”,[14] which led him to conclude that the defendant’s imposition of the 7‑Day Deadline for their aforesaid offer reflected breach of their duty as agent in failing to continue to properly follow up on the Return Request.  I cannot see how the Adjudicator’s conclusion in paragraph 29 of the Reasons that on 15 March 2013 the defendant attempted to shy away from their earlier commitment to follow up on the Return Request would support any suggestion that the defendant did not accept or agree to the Return Request on 6 February 2013.  Indeed, the Adjudicator’s conclusion in paragraph 29 of the Reasons was partly premised on his Finding that the defendant did accept and/or agree to the Return Request on 6 February 2013,[15] and I am unable to find any arguable basis to fault the Adjudicator’s rejection of the defendant’s offer upon the 7-Day Deadline.

50.In all the circumstances, I find there is no arguable basis to challenge the Adjudicator’s Finding.

(b)  Other grounds

51.Ms Au argued that even though the Adjudicator accepted the defendant had the Return Policy, he rejected the requirement/need for notice in writing by email within three days on the basis that the return procedure had already started on 6 February 2013 and a request by email was “unreasonable and unnecessary”.  Since there was arguable basis to challenge the Finding, the Return Policy would apply and it was arguable that the claimant failed to satisfy the requirements thereunder.[16]

52.Ms Au submitted that if there was arguable basis to challenge the Finding, the Adjudicator failed to take into account the issue of duress raised by the illegitimate threat of criminal prosecution in the 7/3/13 Letter which issue had already been raised in the 15/3/13 Letter in which the defendant claimed they had no practical choice but to return the Bags to the Intermediary which they would not have done but for the duress.[17] Ms Au argued there was no ground for the Return Request or for triggering the Return Policy, and the defendant would not have returned the Bags to the Intermediary and/or offered to follow up on the refund of the price upon return of the Bags in the 15/3/13 Letter but for the threat of criminal prosecution, hence such acts were invalid and could not be relied on by the claimant.[18] 

53.Ms Au submitted that the defendant by the 15/3/13 Letter offered to follow up on behalf of the claimant if she so requested within the 7-Day Deadline. But the claimant did not do so by the 18/3/13 Letter, and instead pressed for full refund of the price and alleged the defendant had failed in their duties.  Ms Au argued that even if by that time there was still any subsisting agency relationship between the claimant and the defendant, the effect of the 18/3/13 Letter was to terminate any authority given for the defendant to follow up on the return of the Bags for the claimant.[19]

54.Since Ms Au accepted that the arguments in paragraphs 51‑53 above depended on the defendant being successful in establishing arguable basis to challenge the Finding, there is no need for me to consider these arguments in light of my conclusion in paragraph 50 above.[20]

55.Ms Au submitted that in the context of sale of goods the Adjudicator erred in confusing the duty of an agent with the duty of the vendor/seller.  I disagree.  The Adjudicator was well aware of the defendant’s role and responsibility upon agreeing to and/or accepting the Return Request.  He found that “被告人公司 …… 沒有意圖繼續履行退貨的安排,因而違反其代理的責任” (my emphasis).  Although Ms Au referred to the first sentence of paragraph 30 of the Reasons, it must be read in its proper context:

「總而言之,申索人已經支付全數的金錢,但得不到貨品的擁有或管有,這對申索人明顯是不合情理的情況。另一方面,申索人亦未能夠得到關於退款、退貨或者取回貨品的正確或合理交代。對此,被告人取回貨品亦將貨品寄回日本代理,期後又無繼續去跟進,加上被告人還說明自己其實沒有責任再繼續跟進,這個情況亦是一個不合理的做法或決定,對申索人而言,作為一個客戶,似乎有欠公平。如此情況,被告人已經作出退貨的動作按其日本代理的要求退貨給其日本代理，但該貨品仍存放於其日本代理的貨倉，而沒有任何其後之跟進舉動或交代,這點同樣對申索人有欠公平也不合理。再者,從整體時間上看,從2013 年2 月6 日開始計起直到今天已經超越一年的時間,申索人只得到被告人的答覆,即他們沒有責任再繼續跟進該退貨,這對申索人不公平也不合理。」 (my emphasis)

Looking at the above passage as a whole, the first sentence of above passage only set out the overall unfairness to the claimant due to the present unsatisfactory state of affairs.  The default of the defendant that contributed to this unsatisfactory state of affairs had been set out in the rest of the passage, which, in my view, clearly demonstrated that the Adjudicator was alive to the distinction between sale of goods and supply of services and he found that it was the defendant’s failure to properly perform their service relating to the Return Request that grounded his conclusion that the defendant was in breach of their duty as agent.[21] There is no merit to this argument.

VIII.  CONCLUSION

56.I have carefully considered the other grounds set out in the Leave Application and in Ms Au’s written and oral submissions.  I am not persuaded that they satisfy the threshold test for granting leave to appeal and, more importantly, they are unable to overcome the above analysis of the case.

57.For the reasons indicated above, the Leave Application is refused.

Ms Helen Au, instructed by Katherine Y W Or & Co, for the defendant/applicant