XIE CHENGSI v. 陸婉儀 TRADING AS PRIME SERVICES & TRADING CO

bjbj HCSA 49/2025 [2026] HKCFI 2624 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE SMALL CLAIMS TRIBUNAL APPEAL NO 49 OF 2025 (ON APPEAL FROM SMALL CLAIMS TRIBUNAL CLAIM NO 47544 OF 2023) _____________ BETWEEN XIE CHENGSI Claimant (Appellant) and 2 September 2025, the Adjudicator of the Small Claims Tribunal ( Adjudicator ) dismissed the claim made by the Claimant against the Defendant ( Decision ), for breach of and damages sustained under a contract for the Claimant s employment of a domestic helper in Hong Kong ( Contract ). The Contract is an agency contract dated 18 September 2023 made between the Claimant as prospective employer, and the Defendant as the service provider. The Claimant applied for review of the Decision, and on 4 December 2025, the Adjudicator by her order dismissed such application. On 11 December 2025, the Claimant applied for leave to appeal against the Decision, on the grounds that the Adjudicator erroneously treated the Employment Agencies Code of Practice (the Code ) as irrelevant, failed to consider the composite impression created by the Defendant s assurances, incorrectly characterised the Defendant s statements as opinions rather than of facts, required proof of intent for misrepresentation to be actionable, and excluded post-contractual conduct when assessing the Defendant s credibility. The Claimant s case is that she had been induced by the Defendant s misrepresentations to employ a domestic helper who was not suitable ( Helper ), and that the Defendant was in breach of the Contract. The misrepresentations alleged to have been made and claimed to have been relied upon are set out in the Decision. The Claimant claimed a full refund of the agency fee paid to the Defendant under the Contract, and damages including the expenses incurred in employing the unsuitable Helper, who was dismissed by the Claimant within 12 days of the Helper s arrival in Hong Kong. In the Reasons for her decision to dismiss the application for review, which was handed down on 4 December 2025 ( Review Decision ), the Adjudicator pointed out (in paragraph 1) that the Claimant had not identified any errors of law or omissions of fact in the Decision, but had merely expressed dissatisfaction with the Adjudicator s findings of fact and legal analysis. Under section 28 of the Small Claims Tribunal Ordinance, any party who is aggrieved by a decision of the Tribunal on any ground involving a question of law alone, or on the ground that the claim was outside the jurisdiction of the Tribunal, may apply to the Court of First Instance for leave to appeal, and the Court of First Instance may grant such leave if it thinks fit. An application for leave to appeal must have a reasonable prospect of success. This means that, in the Court s view, the prospects are more than fanciful but without having to be probable: paragraph T1/28/5 of the Hong Kong Civil Procedure 2026. Leave will only be granted if the applicant can show an arguable case that (as the case may be) the Tribunal made an error on a question of law (such as the proper construction of a contract) or exceeded its jurisdiction: paragraph T1/28/2 of the Hong Kong Civil Procedure 2026. The present application for leave to appeal relies on the ground that the Decision is erroneous on points of law. Having considered the Decision, the Review Decision, and the Claimant s arguments in her present application, I am unable to find any point of law on which the Adjudicator can be said to have erred. Hence, for the reasons set out below, I find that there is no basis to grant leave to appeal. In her application for leave to appeal, the Claimant set out 6 grounds to contend that the Adjudicator s Decision is erroneous in law. These are that the test for finding misrepresentation was misapplied; the burden of proof had been reversed resulting in perverse findings; there were inconsistent characterizations of the Contract and that the principles of inducement had been wrongly applied; the Adjudicator had incorrectly required intentional falsity of the misrepresentations to be established; that the Adjudicator had failed to apply the correct legal framework and had ignored the Code; and that relevant post-contract conduct had been excluded in the Adjudicator s assessment of the evidence. In her written submissions presented at the hearing of the application for leave to appeal on 25 February 2026, the Claimant made additional submissions under different heads of argument. I have done my best in this decision to summarize, under the headings below, the points made in the application for leave to appeal and in the course of the hearing. Relevance of the Code and Assumption of Responsibility The first ground put forward by the Claimant is that the Adjudicator treated the Code as irrelevant and wrongly treated the relationship or dealing between the Claimant and the Defendant as an arm s length transaction. As explained in the Review Decision, the Adjudicator already considered the relevance of the Code to the parties obligations under both contract and tort. In paragraphs 2 to 3 of the Review Decision, the Adjudicator held that the Code an administrative guideline is not a source of law and creates no cause of action in respect of private contracts. Nor is it possible to convert its guidelines into terms of the Contract, or statutory obligations. This is obviously correct. At paragraphs 4 to 7 of the Review Decision, the Adjudicator did go on to explain that the Code could serve as background reference, when the Court decides on a party s general common law duty of care in tort. This includes the assessment of whether the Defendant exercised reasonable care in recommending domestic helpers, such as by avoiding unfair business practices or making false statements. Nevertheless, the Adjudicator held aw duty of care. In the Decision and as highlighted in the Review Decision, the Adjudicator found that the Defendant was acting in good faith, and that there was no evidence of any unconscionable conduct on the Defendant s part in recommending the Helper to the Claimant (para 23 of the Review Decision). The Adjudicator further found that the Defendant had taken reasonable steps to ascertain the basis of her recommendation and had provided the Claimant with all relevant information concerning the Helper s ability to work in Hong Kong. In these circumstances, the Adjudicator found on the facts and applying the law that the Defendant s conduct in recommending suitable candidates to the Claimant did not fall below the standard of reasonable care. Further, the Adjudicator found (in paragraphs 40 to 49 of the Decision) that the Contract does not give rise to a relationship of trust and confidence to impose either fiduciary duties or a duty of disclosure on the Defendant. In particular, the Adjudicator found that there was no obligation on the Defendant to disclose the death of the Helper s father or the mental illness of the Helper s brother (matters about which the Claimant complains she was not informed), as these matters have no bearing on the Helper s ability to perform her duties for the Claimant in Hong Kong (paragraph 50 of the Decision and paragraph 16 of the Review Decision). The Claimant contends that, even in the absence of a fiduciary duty, the Defendant operating a domestic helper agency had voluntarily a Claimant, the UK Supreme Court in NRAM Ltd v Steel [2018] UKSC 13 held that an assumption of responsibility can only arise if the representee reasonably relied on the representation and the representor reasonably foresaw that he would do so (paragraph 19, (cited in paragraph 3-083 of Chitty on Contracts (35th Ed.)). After examining and analyzing the cases from Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465 to Dean v Allin and Watts [2001] EWCA Civ 758, the UK Supreme Court concluded in NRAM that the reasonableness of a claimant s reliance and the reasonable foreseeability of reliance are both central to the concept of any assumption of responsibility. It is also pertinent that in the judgment of NRAM Ltd v Steel, the Court highlighted the fact (at paragraph 37) that a conclusion made by a judge (or tribunal) after trial, that it was not reasonable for a party to act as it did, is not strictly a conclusion of fact, or a judgment on what the law is, and not even a conclusion of mixed fact and law. In his judgment, Lord Wilson explained that such a conclusion of reasonableness is an evaluation , and referring to In re B (A Child) (Care Proceedings: Threshold Criteria) [2013] UKSC 33, pointed out that all members of the Court in the case agreed that an appellate court needed to be satisfied that an evaluation conclusion of a trial judge was wrong before it could be set aside . On such approach, I am not satisfied that the Adjudicator s conclusion and evaluation, on the evidence before her, was one which was wrong and with which the Court on appeal has any basis in law or on facts to interfere. As the Adjudicator found (at paragraphs 46 to 50 of the Decision), the WhatsApp conversations produced at trial demonstrate that the Claimant and the Defendant were of at least equal bargaining status, with the Claimant in some instances holding the stronger position for example, by rejecting without hesitation domestic helpers who failed to meet her requirements. Whilst the Claimant may have taken the Defendant s advice into account when selecting a domestic helper, this falls well short of establishing that she was wholly reliant on the Defendant. It is also clear from the Decision and the Review Decision that the Adjudicator found that it was unreasonable for the Claimant to rely on any statement or representation by the Defendant as a guarantee of the Helper s suitability or capability to work for the Claimant, or of the personal background of the Helper or her family members (see for example paragraphs 11 and 16 of the Review Decision). Finally, as noted in paragraph 21 of the Decision, the Contract contains statements such as The following information is for reference only , and statements that the information on the Helper were only comments from the Defendant. Specifically, the Contract provides for interviews to be undertaken between the prospective employer and the domestic helper to enable employers to gain a thorough understanding of the domestic helper s background . The Claimant did conduct such an interview with the Helper, and the Defendant could reasonably believe that the Claimant would exercise her own judgment and make her own evaluation of the Helper s capability and suitability for her own purposes, instead of relying on the Defendant s comments. In all the circumstances, I am not satisfied that it was reasonable for the Claimant to rely on the Defendant s representations without making any independent inquiry or assessment of her own, nor that the Defendant could reasonably have foreseen that Claimant would rely on her representations. It follows that it cannot be reasonably argued that any voluntary assumption of responsibility arose on the Defendant's part to give rise to any claim or liability. Alleged Misapplication of the Misrepresentation Analysis The Claimant s second ground for appeal is that the Adjudicator took an unduly narrow approach in the analysis of whether the Defendant s statements amounted to misrepresentations. First, the Claimant challenges the Adjudicator s finding that the Defendant had not made any representation at all concerning its 30+ years spotless track record (at paragraphs 29 to 30 of the Review Decision). This is a finding of fact made by the Adjudicator after hearing the witnesses and examining the documents provided at trial. Findings of fact are not appealable as they do not in themselves involve questions of law. This Court s decision on whether to grant leave to appeal can only be made on the basis of the evidence adduced at trial and the Adjudicator s reasons for her decision: paragraph T1/28/5 of the Hong Kong Civil Procedure 2026. It is therefore not possible for the Claimant to now challenge the Adjudicator s findings on whether particular representations were in fact made. The Defendant denied at trial that she had made any such statement, and the Adjudicator pointed out that there was no evidence adduced by the Claimant which could substantiate her claim and assertion. There is no basis for the Court to interfere with such a finding. In any event, the Adjudicator found that even if the Defendant had made the representations concerning its track record, those representations were unobjectionable because: (i) the Defendant had demonstrated that it held a valid business registration; and (ii) the Defendant s statement, that there was no problem with the Helper working 2 years and that it was a sound choice (to employ the Helper), was a statement of opinion, and not of fact. The Claimant has not been able to show how and why the Adjudicator s conclusion can be said to be wrong, or to constitute an error of law. In substance, the Adjudicator s finding (that the statement was one of opinion) was made on the face of the statement alleged to have been made: namely, that it was based on the Defendant s understanding and the Defendant s 30 years experience , and that in the Defendant s opinion, the Helper could work 2 years, and it was a sound choice to employ the Helper. It was the Adjudicator s conclusion that even if the alleged representations were made, there was no evidential basis for the Claimant s allegation that the Defendant had fabricated information about the history of the domestic helper agency (see paragraphs 31 to 32 of the Review Decision). Additionally, the Claimant complains that the Adjudicator failed to have regard to the composite impression created by all the representations made by the Defendant, as a whole. Reading the Decision and the Review Decision, it is clear that the Adjudicator did in fact take a holistic view of all the evidence, and on that basis, conducted an assessment of which of the representations were properly to be characterized as statements of fact, and which as matters of opinion (see paragraph 39 of the Decision, and paragraphs 13 and 24 of the Review Decision). In my judgment, this ground of challenge is simply not made out. Treating Statements as Opinion rather than Fact The Claimant contends that the Adjudicator wrongly treated certain representations (concerning the Helper s upbringing, family mental history, her father s background and her previous employment) as opinion rather than fact. In particular, the Claimant alleges that the Adjudicator wrongly substituted her own view as to the relevance of certain representations to the Helper s ability to work. However, as appears from paragraph 15 of the Decision, whilst acknowledging the Claimant s concerns about engaging a domestic helper suitable for her young children, the Adjudicator stated that relevance of the statements, the understanding of the meaning of the statements and the reasonableness of reliance on the statements are all to be assessed objectively, from the standpoint of a reasonable person. On that footing, it is not inconceivable that a reasonable employer would not regard the cause of death of the Helper s father and the mental illness of the Helper s brother as relevant family background information that had to be disclosed, or as having any bearing on the Helper s ability to care for young children and to fulfil her duties as a domestic helper. This was the conclusion reached by the Adjudicator and it cannot be faulted. The Claimant further contends that the Adjudicator erroneously treated the Defendant s representations as opinion rather than fact. The Adjudicator s finding was that the Defendant s stated opinions were honestly held and expressed in good faith (see, for example, paragraph 20 of the Decision and paragraph 12 of the Review Decision). However, in respect of statements that could be characterised as either fact or opinion, the Adjudicator held that even if they should be viewed as statements of fact, they were neither false nor erroneous (see, for example, paragraph 14 of the Decision and paragraph 20 of the Review Decision). I am satisfied that the Adjudicator approached the representations by reference to the correct objective standard of the reasonable person, and I can discern no error of law in her finding that the Defendant s opinions were honestly held. There is therefore no proper basis for this Court to interfere with her conclusions, and this ground of appeal is rejected. Alleged Requirement of Proof of Intent The Claimant s next ground of appeal is that the Adjudicator erred in requiring proof of intent as a necessary element of negligent misrepresentation. A negligent misrepresentation is one which is made carelessly, or without reasonable grounds for believing it to be true: paragraph 10-085 of Chitty on Contracts (35th Ed.). As noted in the preceding paragraphs, the Adjudicator found that the Defendant had reasonable grounds for believing that the representations were true. The Adjudicator did not impose a general requirement of intent, but found that the ingredients of negligent misrepresentation were not made out on the facts. The Adjudicator did consider innocent misrepresentation. In paragraph 13 of the Review Decision, the Adjudicator made it clear that this could apply to statements of fact. For statements capable of being characterised as either fact or opinion, the Adjudicator analysed them in the Claimant s favour by treating them as statements of fact. Nonetheless, as noted above, the Adjudicator took the view that on the evidence presented, those statements of facts were neither false nor erroneous. In light of the above, it is plain that the Adjudicator applied the correct legal tests to both negligent and innocent misrepresentation and, having found that the relevant statements were reasonably believed to be true and in any event were neither false nor erroneous, she was entitled to conclude that the claim of misrepresentation was not made out. Characterisation of the Contract as administrative only The Claimant contends that the Adjudicator ought not to have characterised the Contract as administrative only and correspondingly, should not have used that characterisation to negate the possibility that the Claimant had relied on the Defendant s representations. However, it is clear that the Adjudicator had also considered the alternative case, namely, that the Contract was not merely administrative only . As explained in paragraphs 22 to 24 of the Review Decision, even if the Contract were construed as imposing on the agency an obligation to search for and recommend suitable domestic helper candidates to prospective employers, rather than being limited to arranging for the domestic helper selected by the employer to come to Hong Kong and handling the relevant administrative matters after the signing of the Contract and upon the Helper s arrival in Hong Kong, the Adjudicator considered that on the available evidence, the Defendant had exercised reasonable care and skill in introducing the Helper to the Claimant in good faith, and had not committed any breach of any express or implied term of the Contract. Accordingly, even on the alternative construction advanced by the Claimant, the Adjudicator s conclusion discloses no error. Claimant s Failure to Ask Questions The Claimant argues that, in the context of determining reliance on the Defendant s representations, she should not be criticised for failing to ask the questions she had wished to ask during the interview with the Helper. As the Adjudicator pointed out (in paragraph 10 and 11 of the Review Decision), there was nothing to prevent the Claimant from raising questions or making complaints before signing the employment contract with the Helper. In fact, the Adjudicator found that the Claimant did have the opportunity to interview the Helper and had availed herself of the opportunity. The Claimant spoke freely throughout the interview, set out her requirements to the Defendant one by one, and rejected without hesitation domestic helpers proposed by the Defendant who did not meet those requirements. The Claimant s complaint on this ground is not made out. The evidence as a whole supports the Adjudicator s conclusion that the Claimant did not in fact rely on the Defendant s representations, and in any event did not reasonably rely on them. Exclusion of Post-Contractual Conduct The Claimant complains that the Adjudicator declined to take into account post-contractual conduct in evaluating the Defendant s honest belief in the pre-contractual representations made. It was contended that inferences could be drawn from post-contract conduct, as to the scope of the representations made, construction of the Contract and the honesty of belief. I am unable to find that the Adjudicator erred in her approach. The honest belief inquiry is directed at the state of mind of the representor at the time the representations were made. Any inference to be drawn from post-contract conduct would lack any sound or unequivocal basis and the Adjudicator was entitled to exclude such evidence. Moreover, as noted above, when assessing whether the Defendant held a genuine belief in the representations when they were made, the Adjudicator had taken a holistic approach, taking into account the Defendant overall conduct and the impact of her conduct on the Claimant (see paragraph 39 of the Decision, and paragraphs 13 and 24 of the Review Decision). gdWu{ gdWu{ gdWu{ h~j* h~j* gdS~y gdS~y hb&d hqdS h iI h iI h iI h iI h iI h iI h iI gd -) gdEY gdS~y gdS~y gdS~y gd iI h/HY h/HY h/HY h iI h iI h+4w h5+S h5+S hD! h -) h+4w gdS~y gdS~y gdS~y h3ib h5G' h3ib h5G' h5G' gdS~y gdS~y gdS~y I am unable to find any point of law on which the Adjudicator can be said to have erred, to raise any arguable appeal. Disposition For all the above reasons, I am not satisfied that the Claimant has established any reasonable ground of appeal which has any reasonable prospects of success, and I accordingly refuse to grant leave. 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