LAI SAI HONG v. MADAM LEUNG WAI CHING

bjbj HCSA000008/1977 IN THE COURT OF APPEAL No. 8 of 1977 on appeal from Small Claims Tribunal Between: LAI Sai Hong Appellant (Claimant) Madam Leung Wai Ching Respondent (Defendant) Coram: Briggs, C.J. Huggins, J.A. and Leonard, J. Date of Judgment: 29th June, 1977. ----------------- JUDGMENT ----------------- I would dismiss this appeal. The defendant at the relevant period of time was the tenant of Flat C on the 12th floor of 395 Portland Street, Kowloon. The claimant was her landlord and sought to recover the sum of $165 in respect of maintenance charges. This sum represents three months' payment at the rate of $55 per month. The defendant admitted that she was liable to pay maintenance charges but apparently had withheld payment because she thought the standard of maintenance was below a proper level. The 12th floor of 395 Portland Street as approved by the Building Authority consisted of four flats. But the claimant has divided one of those four flats into two separate flats. The defendant is the tenant of one of those sub-divided flats. The defendant has been the tenant of her flat for some years and the sum of money charged for maintenance has risen from time to time. The claimant, in evidence, said that the current rate of payment for each flat as approved by the Building Authority was $55 per month. The defendant was the tenant of a flat which was half of one of the flats so approved. Accordingly, the adjudicator decided that the proper sum payable for maintenance by her was half the amount payable by a tenant of a flat approved by the Building Authority and he awarded the claimant $82.50. I can see nothing wrong with this decision based as it was upon the evidence of the claimant himself. (Geoffrey Briggs) President Representation: H.L. Wong (W.L. Yuen & Co.) for appellant. Y.C. Mok (Peter C. Wong & Co.) for respondent. IN THE COURT OF APPEAL Small Claims 1977 No. 8 ----------------- BETWEEN LAI Sai-hong Appellant LEUNG Wai-ching (F) Respondent ----------------- Coram: Briggs, C.J., Huggins, J.A. and Leonard, J. Date of Judgment: 29th June 1977. ----------------- JUDGMENT ----------------- Huggins, J.A.: The Small Claims Tribunal was created to enable speedy justice to be done in cases where the amount of a civil claim of the specified kinds did not exceed $3,000. In the present case the claim was for $165 but in the court below there were three hearings spread over exactly two months and the general impression I get from a careful study of the papers is that there was a travesty of justice. The claim was for "service charges" calculated at the rate of $55 p.m. for three specified months in respect of "Flat C, 395 Portland Street, 12th floor, Kowloon". The adjudicator reasonably interpreted that as a claim by the Claimant as landlord and against the Defendant as tenant and the first entry in his notes is " Defendant is the tenant" I take that to mean that the existence of a tenancy was an agreed fact, although the judgment says nothing about a tenancy between the parties. It is recorded that the Claimant said there was no written tenancy agreement and, again, we are left to assume that the Defendant agreed. Then follows: " Defendant admits that she is liable for the maintenance charges. Defendant says the maintenance is bad." If there was a liability it must have been by virtue of a contract - presumably an oral tenancy agreement. It will have been noticed that the liability admitted was to "the maintenance charges" and not merely to "maintenance charges", which indicates that at that stage the Defendant was not disputing that under the terms of the agreement between the parties she ought to pay $55 p.m. but she was complaining that the Claimant was not carrying out his implied obligation to maintain the premises (and possibly the common parts of the building) in a reasonable condition. Whether that complaint constituted a possible defence to the claim or was more properly to be treated as a counterclaim is perhaps open to question. Be that as it may, the case was then adjourned for fourteen days. At the second hearing the adjudicator proceeded to hear the Defendant. That tends to support the view that the relevant terms of the contract of tenancy had been agreed at the previous hearing and that the Defendant was assuming the burden of establishing her defence or counterclaim. She is recorded as saying that "she paid $35 maintenance before" but that there "is" no maintenance - although she admitted that a watchman was present. The relevance of the payment of $35 (presumably a monthly payment although it is not so stated) is not immediately apparent in view of the only issue raised at the first hearing. The Defendant went on to give a brief description of the building and its amenities and thereafter said that she occupied only "half the premises". Now "the premises" (the premises in suit) were Flat C and it is common ground before us that the statement that she occupied only half the premises was untrue: what she appears to have meant was that the floor as approved by the Building Authority originally contained only four flats but that prior to the letting of Flat C the Claimant had subdivided one of the original flats, the suit premises being one of the subdivisions. The Claimant admitted this and further admitted that the alteration was made without planning approval, but the latter admission is entirely irrelevant to any issue the Tribunal had to decide. The case was again adjourned. At the next hearing, some six weeks later, the adjudicator records: " Plaintiff says each unit pays $55.00 per month for maintenance, Unit means as approved by the Building Authorities". That statement cannot have been true unless the occupier of the other subdivision (Flat B) was paying the charges for both Flat B and Flat C. Nor, of course, did it really matter what each unit paid: the only issue (if, indeed, it had now become an issue despite what had transpired at the first hearing) was what the Defendant had agreed to pay for Flat C. Neither party appears to have been asked to testify as to the terms of the agreement at either of the two later hearings and it is doubtful whether the Claimant ever appreciated that the terms had been put in issue. Moreover, this was a matter to which the learned adjudicator never expressly addressed his mind. What the Defendant had in fact paid for Flat C (as distinct from what had been paid for each unit) might have been relevant as contemporanea exposition if there had been some ambiguity as to the terms of the agreement, and there seems to be no dispute but that the Defendant paid $35 p.m. from 1971 to 1973, $45 p.m. from 1973 to 1974 and $55 p.m. from 1974 until she stopped paying altogether. The Claimant apparently tendered in evidence (although none of the documents annexed to the record was ever marked as an exhibit or referred to either in the adjudicator's notes or in his judgment) a statement of account showing contributions by the occupiers and expenses incurred. If any explanation was given of this statement (e.g. whether it was a budget or an actual account in respect of some particular month), it has not been recorded. However, as the document was undoubtedly self-serving evidence as regards the Claimant and as there is no indication that the Defendant was asked to comment upon it, I think the safest course is to ignore it for the purposes of this appeal. When one turns to the judgment one finds that it opens with a correct statement of the nature of the claim. The adjudicator then says: " The defendant says maintenance was poor and that she only occupied half that flat ......". In the context "that flat" must mean Flat C and, with respect, the Defendant clearly did not occupy only half Flat C. Again, the adjudicator says: " From the evidence I found at the end of the hearing of the claim that the said flat was divided into two portions and that there was no planning approval for such subdivision". There was no evidence whatsoever to support such a finding. The only subdivision mentioned in the "evidence" was the subdivision of one of the original flats which resulted in the creation of "the said flat". The adjudicator says: " This was admitted by the plaintiff on 13th February 1977". If it was, then there is no record of a hearing on that date. Probably he meant "15th February" and was referring to a purported statement by the Claimant which, as I have already pointed out, is agreed before us to have been untrue. As a rule such an error of date might well be disregarded as a slip, but here it merely tends to support the conclusion that the case was not dealt with with the care which is to be expected in judicial proceedings. The allusion to the absence of planning approval - which the adjudicator says is "confirmed by the Building Authority in their letter dated 15th March 1977 (as per copy attached hereto)" although no such letter appears in the record - was not merely irrelevant but was likely to give to the Claimant an impression of bias on the part of the adjudicator. In the result the adjudicator entered judgment for the Claimant for half the amount of the claim. He made no reference to the allegation by the Defendant that the charges were not payable because the services had not been supplied and seems to have based his decision not upon what had been agreed between the parties but upon what had actually been paid by the owners or occupiers of other flats. Whether or not the conclusion was right, the reasoning does not support it, the material issues having not been properly considered and in my view no one could fairly say that justice has been seen to be done. Since I would order a new trial I will leave it at that but for some general comments. I sympathise with adjudicators in the Small Claims Tribunal, who are by law deprived of the assistance of trained advocates. Such lack of assistance makes it even more important that they should settle the issues with meticulous care and explain to the parties what those issues are so that everyone can address his mind to them. I sympathise even more with counsel and solicitors who have had to advise as to an appeal and present it in this court. No one questions the intention of the Legislature that proceedings before the tribunal should be attended with the minimum of formality but a minimum there must be and the difficulty must always be to decide at what point the minimum has been reached. Mr. Mok has argued with considerable skill and force that in the last analysis the Claimant failed to prove his case. I would have liked to think that that was a just conclusion for us to reach, but I do not. To my mind one thing stands out above all others, namely that neither the Claimant nor the Defendant has had a fair trial. 29th June 1977. Representation: IN THE COURT OF APPEAL Small Claims 1977 No. 8 ----------------- BETWEEN LAI Sai-hong Appellant LEUNG Wai-ching (F) Respondent ----------------- Coram: Briggs, C.J., Huggins, J.A. and Leonard, J. Date of Judgment: ----------------- JUDGMENT ----------------- Leonard, J.: I agree with Huggins, J.A. that there should be a re-trial. To my mind the adjudicator was clearly in error in failing to isolate and define in his own mind the issues between the parties. This error is one with which one can have some sympathy on examination of the legislation under which he was working. The Small Claims Tribunal Ordinance does not contemplate anything in the nature of pleadings and a claimant is obliged to give no more particulars than such "as are reasonably sufficient to inform the defendant (not be it noted, the adjudicator) of the ground for the claim and the manner in which the amount claimed has been claculated". A defendant is not obliged nor indeed permitted to file any defence so that it is for the adjudicator as a preliminary to every case to define the issues. That done he must determine them in accordance with law. He must do so at a hearing which he is obliged to conduct in an informal manner. He is expected to have at his finger tips all the minutiae of our increasingly bureaucratic legislation for he is denied the assistance of either barristers or solicitors who might be expected to help him by drawing relevant provisions to his attention. As a further consequence of this denial he must frequently be compelled himself to descend (informally I have no doubt) into the arena in order to determine the truth by means of cross-examination. To add to all this he is even forbidden the luxury of prolonged consideration of any case for he is enjoined to make his award as soon as possible after the conclusion of the hearing of the claim. His, then, is no enviable position. The record here discloses failure to define the issues for clearly any liability of the defendant to pay the maintenances charges for which the claimant sought to make him liable or any maintenance charges could only arise from agreement so that the existence of any agreement between the parties and the terms express or implied of that agreement were in issue unless admitted. An agreement to pay "the maintenance charges" was admitted impliedly but its terms were not admitted nor was the amount payable. The adjudicator did not concern himself with the questions (i) what the terms were or (ii) whether the claimant had been in breach of them so as to provide an answer to the claim or a counterclaim. The result of this failure to define the issues was that the adjudicator addressed himself to something that was never put in issue namely what the occupiers of other "units" paid. This might be some evidence of what the defendant had agreed to pay but his consideration of it led him into a fatal error. He awarded not what the defendant agreed to pay but rather what he thought the defendant ought to have agreed to pay and failed completely to find if there had been any breach by the claimant of his obligations. I would finally remark that the failure of the adjudicator to appreciate the issues he had to try was infectious for the grounds of appeal as framed by the claimant personally read : " The President was wrong in law for failure to consider the conduct of the Parties (i.e. the Defendant, Madam Leung Wai Ching, had been paying the maintenance at the rate of $55.00 per month since 1st October 1974)." That is true insofar as it goes, the adjudicator did fail to consider a vital piece of evidence and that failure was an error in law. But it misses the point for that error springs from the more fundamental error - failure to isolate and define the issues. The necessary result a retrial seems to me to be lamentable. If the claimant eventually prove that the defendant agreed to pay $55 per month (and that was the sum she did pay in October, November and December 1974 for all of 1975 and for 10 months in 1976) and if the defendant has no good set-off or counterclaim the claimant will get judgment for $165. It will have been hard-earned. He will have been to the Small Claims Tribunal four times and have employed counsel in this court. The converse will apply if the defendant is eventually successful. What makes it sad is that all this might have been avoided if only the legislation had prescribed or even enabled the adjudicator to prescribe pleadings (no matter how "informal") so that the issues between the parties would have been clear as soon as they came before the adjudicator. Speaking entirely for myself I regret that I cannot regard the Small Claims Tribunal Ordinance as it stands as a vehicle in which justice can ride smoothly - no matter how firmly her blindfold is tied. Representation: PAGE - PAGE \* MERGEFORMAT - &`#$ HCSA000008/1977 LAI SAI HONG v. MADAM LEUNG WAI CHING Normal.dot Judiciary Hong Kong SAR Microsoft Word 9.0 Judiciary Hong Kong SAR Judiciary Hong Kong SAR HCSA000008/1977 LAI SAI HONG v. MADAM LEUNG WAI CHING Title Microsoft Word Document MSWordDoc Word.Document.8 HCSA000008/1977 LAI SAI HONG v. MADAM LEUNG WAI CHING Normal.dot Judiciary Hong Kong SAR Microsoft Word 9.0 Judiciary Hong Kong SAR Judiciary Hong Kong SAR HCSA000008/1977 LAI SAI HONG v. MADAM LEUNG WAI CHING Title