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BRIAN ALFRED HALL v. SECRETARY FOR JUSTICE AND ANOTHER

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63495-EN-2008-04-23

BRIAN ALFRED HALL v. SECRETARY FOR JUSTICE AND ANOTHER

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HCSA 26/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

SMALL CLAIMS TRIBUNAL APPEAL NO. 26 OF 2007

(ON APPEAL FROM SMALL CLAIMS TRIBUNAL CLAIM
NO. 43467 OF 2006)

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

BETWEEN
	BRIAN ALFRED HALL	Claimant
	and
	SECRETARY FOR JUSTICE	1^st Defendant
	LAU CHUN KWOK	2^nd Defendant

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

Before: Hon Chung J in Court

Date of Hearing: 23 April 2008

Date of Judgment: 23 April 2008

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

J U D G M E N T

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

1. This is an appeal brought pursuant to s. 28(1)(a), Small Claims Tribunal Ordinance (Cap. 338). Leave to appeal was given on 30 July 2007 in respect of one of the five grounds of appeal.

2. That ground was stated in para. (7)(i) of the Application for Leave to Appeal (“Form 9”). It reads:-

“The adjudicator have failed to demonstrate a cogent and objective rationale for the award of $300 for my 4 missing items of clothing he find [sic] were missing … -

Wrangler jeans costs up to US$100 and more … ”.

3. The background leading to, and the reasons for, the application and the giving of leave to appeal were set out in my decision handed down on 30 July 2007. The relevant parts are para. 4 to 6, 14 to 15 and 29 to 30 thereof. They are quoted below for ease of reference:-

“4. The applicant is a prisoner serving an 18-year prison sentence imposed against him in June 1998 for trafficking in dangerous drugs. He was arrested at the airport in Hong Kong in September 1997 for the said offence by the Customs & Excise Department.

5. He alleged in the tribunal that compensation in the sum of $50,000 should be paid by the two defendants. The first defendant (“D1”) was the law enforcement department which arrested him and seized some of his clothing while the second defendant (“D2”) was the exhibit officer.

6. The seized items were returned to the applicant in July 2006. Of the six or seven items returned, he refused to accept 3 items on the ground those were not his. In the Form 2 lodged with the tribunal, he listed 11 lost items of clothing, including shirts, pants, jeans, polo shirts, a tie and shorts.

…

14. The tribunal however accepted the following items were lost, based again on the second photograph: a pair of jeans, three shirts and a tie.

15. The tribunal also rejected the applicant’s claimed value of the lost items. Three of the shirts were assessed to be worth $50 each while the remaining one was valued by the tribunal at $100. The tie was assessed to worth $50.

…

29. [Para. (7)(i) of Form 9] complains in essence that the tribunal failed to demonstrate a proper reason for awarding $300 when (according to the applicant) the pair of jeans was worth ‘up to US$100 and more’.

30. The tribunal considered the pair of jeans to be one of the lost items. But it failed totally to consider its value in the written reasons for decision. The award of $300 could not have included any value for the lost jeans.”

4. The respondents sensibly and correctly concede this appeal. It is pointed out in the skeleton submissions:-

“… discrepancies may be found in the [Tribunal’s] Decision in two respects. First, the Tribunal failed to make any assessment of the value of the pair of jeans (item 2) after holding that the same was one of the 5 lost items. Secondly, it appears that item 8 [a wool chequered, long-sleeve shirt] had been counted twice and assessed at $100 and $50 respectively” (para. 7 thereof).

5. The above submission was based on the findings made in para. 16, 18 and 19 of the Tribunal’s written decision. The gist of those paragraphs is:-

(a) 5 items were lost; namely, a pair of Wrangler jeans, a short-sleeve shirt, the above-mentioned long-sleeve shirt, a long-sleeve khaki shirt and a tie;

(b) a “Hip Hop” shirt was valued at $100, “three missing shirts” were valued at $50 each and the tie was also valued at $50.

As stated in the above quote, the total amount awarded was $300.

6. Despite the earlier observation in para. 15 of my decision of 30 July 2007 (quoted above), I agree with the respondents’ above submission regarding the ambiguity in the value of the shirts.

7. S. 29, Cap. 338 sets out my powers on appeal. S. 29(1) provides that I may allow the appeal and:-

“…remit the matter to the tribunal with such directions as it thinks fit, which may include a direction to the tribunal for a new hearing”: s. 29(1)(c).

However, I cannot reverse or vary the Tribunal’s determination on questions of fact: s. 29(2)(b)(i), Cap. 338.

8. The appellant argues during today’s hearing that:

(1) the whole matter should be remitted to the Tribunal and re-considered by another adjudicator afresh;

(2) alternatively, I should determine the value of the lost items, especially the Wrangler jeans.

9. The reason given in support of para. 8(1) above is that the appellant has recently discovered that the tortfeasor had failed to act in accordance with internal regulations when handling the appellant’s properties. He contends that this shifts the burden of proof to the tortfeasor.

10. The appellant’s claim is based on bailment (as the Tribunal correctly found). Whether there has been a breach of the internal regulations, the burden of proof rests with him to prove which of his properties have been placed in the tortfeasor’s custody by way of bailment.

11. Hence, not only is it not open to the appellant to raise the new argument in view of the limited scope of the leave to appeal given earlier (see para. 2 above), it in fact has no merit.

12. The argument set out in para. 8(b) above involves a determination which goes beyond my power: see para. 7 above and s. 29(2), Cap. 338 generally.

13. To conclude, I agree with the respondents that the appeal should be allowed and the matter should be remitted to the Tribunal for the purpose of reconsidering only:-

(a) the value of the shirts;

(b) the value of the Wrangler jeans.

[After hearing the parties’ arguments on costs]

14. As to costs, having heard the parties, I think this is one of those exceptional cases where there should be no order as to the costs of the appeal because:-

(1) the Tribunal’s error clearly was not caused by the respondents;

(2) the respondents have conceded the appeal as early as reasonably practicable ; and

(3) the appellant’s arguments raised at today’s hearing have been found to be unmeritorious.

	(Andrew Chung)
	Judge of the Court of First Instance
	High Court

Claimant (Appellant), acts in person and present

Mr Matthew Leung, SGC of Secretary for Justice, for the Defendants (Respondents)

HCSA 26/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

SMALL CLAIMS TRIBUNAL APPEAL NO. 26 OF 2007

(ON APPEAL FROM SMALL CLAIMS TRIBUNAL CLAIM

NO. 43467 OF 2006)

______________________

BETWEEN

	BRIAN ALFRED HALL	Claimant
	and
	SECRETARY FOR JUSTICE	1^st Defendant
	LAU CHUN KWOK	2^nd Defendant

______________________

Before : Hon Chung J in Chambers

Date of Hearing : 25 July 2007

Date of Handing Down Decision : 30 July 2007

______________________

D E C I S I O N

______________________

Introduction

1. The applicant is aggrieved by the decision of the Small Claims Tribunal (“the tribunal”) made on 2 May 2007 whereby the tribunal awarded to him $300 by way of compensation for the applicant’s loss of his clothing and $140 by way of costs.

2. The applicant claims that the grievance arose out of grounds involving points of law and hence took out this application on 9 May 2007 pursuant to s. 28(1)(a), Small Claims Tribunal Ordinance (Cap. 338).

Background

3. The background leading to this application can be summarized as follows.

4. The applicant is a prisoner serving an 18-year prison sentence imposed against him in June 1998 for trafficking in dangerous drugs. He was arrested at the airport in Hong Kong in September 1997 for the said offence by the Customs & Excise Department.

5. He alleged in the tribunal that compensation in the sum of $50,000 should be paid by the two defendants. The first defendant (“D1”) was the law enforcement department which arrested him and seized some of his clothing while the second defendant (“D2”) was the exhibit officer.

6. The seized items were returned to the applicant in July 2006. Of the six or seven items returned, he refused to accept 3 items on the ground those were not his. In the Form 2 lodged with the tribunal, he listed 11 lost items of clothing, including shirts, pants, jeans, polo shirts, a tie and shorts.

Grounds of Application

7. The applicant puts forth 5 grounds. They can be stated shortly as follows:

(a) having correctly set out the burden and standard of proof, the tribunal erred when applying the same to the facts of the case. Particularly, the tribunal ought to have accepted his account regarding the quantity and value of the lost items;
(b) the tribunal failed to place the burden of proof on the defendants to disprove trespass against his clothing, the doctrine of res ipsa loquitur being applicable to the facts;
(c) the tribunal should have found there was non-compliance by the defendants with regard to the proper procedure for handling seized properties; accordingly the protection afforded by the Basic Law was infringed;
(d) the tribunal failed to give cogent reasons for awarding $300 for the lost items. Further, the tribunal erred in awarding costs of $140 and ought to have awarded $156;
(e) the tribunal failed to give cogent reasons for dismissing the claim against D2.

The Tribunal’s Reasons for Decision

8. The tribunal has given brief reasons for its decision.

9. The tribunal recorded the background facts and noted that the defendants completely denied the loss of any seized items.

10. The claim against D2 was dismissed principally on the ground that he was merely the exhibit officer. The seized items were handed to him by another officer. It can be inferred that the tribunal was not satisfied any loss could be attributed to D2’s fault.

11. As regards the case against D1, the tribunal found it to be in the position of a bailee, whereby there was a duty to exercise reasonable care in the safekeeping of the seized items.

12. Relying mainly on two photographs (produced as exhibits), the tribunal concluded that clothing other than those shown in the second photograph had been seized by D1.

13. The tribunal then noted the burden of proving the quantity of clothing seized (which the applicant alleged to be 21 items) still remained with the applicant. After assessing the applicant’s testimony, the tribunal concluded that he was not trustworthy and found his claim of 21 items having been lost to be unbelievable.

14. The tribunal however accepted the following items were lost, based again on the second photograph: a pair of jeans, three shirts and a tie.

15. The tribunal also rejected the applicant’s claimed value of the lost items. Three of the shirts were assessed to be worth $50 each while the remaining one was valued by the tribunal at $100. The tie was assessed to worth $50.

16. As regards costs, the tribunal was only satisfied the applicant had incurred $140 costs.

Merits of this Application

17. In addition to what has been stated in the Form 9, the applicant complains that the tribunal’s written reasons for decision failed to recognise the proper cause of action, namely, trespass and/or negligence. He says that the tribunal’s written reasons for decision wrongly categorised his claim as one of misplaced pieces of clothing (para. 1, reasons for decision).

18. There is no merit in this complaint. As stated above, the tribunal correctly found the relationship between the applicant and D1 to be one of bailment. The tribunal was also correct to hold that D1 was under a duty to exercise reasonable care and safekeeping with regard to the seized items.

19. The complaints set out in para. 7(a) to (c) above are unmeritorious. This is not a case where the tribunal has wholly rejected the claim. On the contrary, the tribunal concluded that D1 had failed to fully discharge its duty of care. Such being the case, the tribunal cannot be faulted for placing the burden on the applicant to prove the quantity of lost items. The law is not that, once liability has been established, the claimant is necessarily entitled to his claim without further proof of loss.

20. The tribunal’s reasons for concluding the applicant was not credible have been fully set out in its written reasons for decision (for example, at para. 15 to 16).

21. The tribunal’s reasons for assessing the value of the lost items were also fully set out (see, for example, para. 17 to 19).

22. Lastly, the tribunal’s reasons for dismissing the claim against D2 have been set out as well (see para. 6 (and para. 10 above)). During the hearing of this application, the applicant contended that the tribunal’s reasoning was wrong because the second photograph shows that D2 must have had custody of the lost items after their seizure. However, there is no evidence regarding the whereabouts of the seized items during the period after the photographs were taken until their return to the applicant. Accordingly, there is no evidence if it was D2’s fault which resulted in the loss.

23. It is unnecessary to repeat the reasons given by the tribunal save to observe that they are not perverse. The approach adopted was not wrong in principle. Finally, there was adequate and rational basis for the tribunal to reach such conclusion. The tribunal’s reasons were therefore essentially reasons given for its findings of fact.

24. Such being the case, no question of law is involved. There is therefore no substance in the complaints set out in para. 7(d) or (e) above either (the question of costs in the tribunal will be dealt with below).

25. As regards the tribunal’s costs order, the applicant alleges that a further $16 should be awarded to him because:

(1) $4 was incurred for photocopying;
(2) he lost $4 per day (for 3 days) by virtue of the need to attend the tribunal hearings.

26. The tribunal’s award of $140 must have been intended to cover this type of quantifiable loss (in addition to other losses). This complaint is thus rejected as unmeritorious.

Other Matters

27. It is unclear how many shirts have been found by the tribunal to have been lost (see para. 16 to 19, reasons for decision). But the award of $250 ($100 + ($50 x 3)) for the loss of 4 shirts can at most be an error in the applicant’s favour. Any such error is not a valid reason for granting leave to appeal.

Conclusion

28. Accordingly, save as to one matter below, this application is refused.

29. Para. (7)(1) of the Form 9 complains in essence that the tribunal failed to demonstrate a proper reason for awarding $300 when (according to the applicant) the pair of jeans was worth “up to US$100 and more”.

30. The tribunal considered the pair of jeans to be one of the lost items. But it failed totally to consider its value in the written reasons for decision. The award of $300 could not have included any value for the lost jeans.

31. For this reason, I will give leave to appeal only in relation to para. (7)(1) of the Form 9.

(Andrew Chung)
Judge of the Court of First Instance
High Court

Claimant (Applicant) acts in person and present

(a)	having correctly set out the burden and standard of proof, the tribunal erred when applying the same to the facts of the case. Particularly, the tribunal ought to have accepted his account regarding the quantity and value of the lost items;
(b)	the tribunal failed to place the burden of proof on the defendants to disprove trespass against his clothing, the doctrine of res ipsa loquitur being applicable to the facts;
(c)	the tribunal should have found there was non-compliance by the defendants with regard to the proper procedure for handling seized properties; accordingly the protection afforded by the Basic Law was infringed;
(d)	the tribunal failed to give cogent reasons for awarding $300 for the lost items. Further, the tribunal erred in awarding costs of $140 and ought to have awarded $156;
(e)	the tribunal failed to give cogent reasons for dismissing the claim against D2.

(1)	$4 was incurred for photocopying;
(2)	he lost $4 per day (for 3 days) by virtue of the need to attend the tribunal hearings.