HCSA 36/2012
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
SMALL CLAIMS TRIBUNAL APPEAL NO. 36 OF 2012
(ON APPEAL FROM SCTC No 11255 OF 2011)
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BETWEEN
| | 王東福 | Claimant |
| | | (Respondent) |
and |
| | 鄧穎詩 | Defendant |
| | | (Appellant) |
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| Before: Deputy High Court Judge Marlene Ng in Court |
| Date of Hearing: 5 February 2013 |
| Date of Handing Down Judgment: 25 February 2013 |
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J U D G M E N T
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I. INTRODUCTION
1. On 13 November 2012, Au-Yeung J granted leave for the defendant to appeal against two orders of the learned deputy adjudicator Mr Timon Shum (as he then was) (“Adjudicator”) at the Small Claims Tribunal (“Tribunal”) dated 8 May and 27 June 2012 (“Orders”) respectively. By the first order dated 8 May 2012, the Adjudicator granted judgment in favour of the claimant for the sum of HK$18,622.00 with costs in the sum of HK$7,721.00, and interest on such sums from the date of judgment until the date of payment (“Judgment”). By the second order dated 27 June 2012, the Adjudicator upon review (“Review”) pursuant to section 27A of the Small Claims Tribunal Ordinance, Cap 338 (“Ordinance”) confirmed the Judgment. This is the judgment on appeal.
II. BACKGROUND FACTS
2. The dispute between the parties arose from a tenancy in respect of Room B, 24th Floor, Tai On Building (“Building”), No.57-87 Shau Kei Wan Road (“Premises”). The claimant was the tenant of the defendant’s son, but he all along liaised with the defendant in respect of the tenancy. There were ongoing disputes between the claimant and the defendant over tenancy matters between March and August 2010.
3. On 13 August 2010, the claimant left the Premises, and did not return until 19 August 2010. In the meantime on 16 August 2010, the tenant of Room C on the 24th Floor of the Building complained there was no air-conditioning, so on the following day the defendant went there to arrange for repairs to be done. But on that occasion she discovered there were burnt smells at the Premises and the carpet outside was wet. The defendant could not reach the claimant by telephone, so she engaged a locksmith to break into the Premises. The water tap and showerhead were left running, and she immediately turned them off. She also instructed the locksmith to change the locks of the metal gate and the letterbox of the Premises.
4. The defendant feared the claimant would cause damage to the Premises, so without his consent or the court’s permission she decided to remove his belongings (“Goods”) from the Premises and keep them in mini-storage (迷你倉). She engaged a Mr Choi (蔡錫梗) as moving agent (搬運師傅) for such purpose. But the staff of the mini-storage was already off-duty by the time the Goods were brought to the 1st floor carpark (“Carpark”), so she left the Goods at the Carpark for the Building’s management office to watch over them.
5. The claimant did not know about (or agree to) the removal of the Goods from the Premises. When he returned to the Premises that evening, he could not open the metal gate. Upon being informed by the security guard that the Goods had been moved to the Carpark, he made a report to the police. The police also invited the defendant to return to the Carpark, and they went with the claimant to check the Goods kept at a corner of the Carpark. It was discovered that some of the claimant’s belongings were damaged or missing.
6. The defendant was charged with theft of the claimant’s belongings, but was subsequently acquitted. The claimant commenced proceedings at the Tribunal to claim damages for loss/damage to his personal belongings. The defendant was held liable after trial, and the Judgment was awarded in favour of the claimant.
III. DISPUTE
7. The crux of the case turns on what happened on 19 August 2010 when the Goods were moved from the Premises and kept at the Carpark.
8. According to the defendant, she arranged to meet Mr Choi outside the Premises at 5:30 pm on 19 August 2010. She packed the Goods and instructed Mr Choi to move them to the Carpark. Mr Choi went into the Premises three times to bring the first batch of the Goods to the lift lobby where she waited. She locked the door/gate of the Premises, and together with Mr Choi moved that batch of the Goods to the Carpark. They did this three times. After the third time, the door of the Premises was left unlocked as most of the Goods had been brought to the Carpark. Mr Choi alone went back to the Premises to dismantle the bed. He took one to two trips to bring the bed and mattress to the Carpark.
9. The defendant claimed that when she went to the Carpark with Mr Choi, she asked a Mr Wong (黃總管) of the Building management office to keep the Goods safe. She was told there was no need to worry because there were (a) CCTV surveillance at the Carpark and (b) security guards on duty round the clock. The defendant left the Building at 8:30 pm.
10. According to Mr Choi, he went to the Premises at about 5:30 pm on that day, and the defendant turned up about 10-20 minutes later. He took three trips by the lift to help move the Goods to the Carpark. He then left the scene without paying attention to the details of the Goods.
IV. REASONS FOR JUDGMENT DATED 16 AUGUST 2012
11. There is no dispute that the claimant was still the tenant of the Premises when the Goods were moved from the Premises to the Carpark without his prior consent or the court’s permission.
12. In his Reasons for Judgment dated 16 August 2012, the Adjudicator decided that the defendant was liable to pay damages to the claimant for loss and damage to the Goods:
“28. 本席留意到被告人在庭上作供時就着細節有時前後不一致。她稱她與蔡錫梗利用電梯搬運了3次，另外蔡錫梗自己亦搬運了1至2次。蔡錫梗則說自己與被告人利用電梯搬運了3次便把所有物件搬到大廈1樓停車場。蔡錫梗於D43-44頁的筆錄證人供詞，亦與D139頁的筆錄證人供詞在細節上有出入。因此，本席對於被告人及蔡錫梗的證供的準確性有保留。
……
31. 本席第2個要處理的議題是被告人是否需要為遺失或損壞的物件負上法律責任。本席留意到，根據被告人的證供，她在2010年8月19日請蔡錫梗把2454B房內的物件搬到電梯口時，被告人是站在電梯口位置。當蔡錫梗進出2454B房把物件搬到電梯口時，房門是打開的，而房內的物件是沒有人看管。本席認為被告人在這方面有疏忽。同時，物件被搬到大廈1樓停車場後，被告人倚賴管理處黃總管，但他們是否真的有看管及他們是否誠實可靠實在不得而知。本席認為被告人把物件放置在停車場屬高風險做法。本席認為遺失物件(a)至(j)項是在被告人疏忽監管下，在2454B房或在停車場被盜取。
32. 本席裁定遭損壞的物件是被告人或蔡錫梗在搬運或存放不當而做成。”
V. REVIEW
13. At the Review, the defendant applied for leave to adduce fresh witness evidence from a Mr Yan (甄健榮), the security officer (保安主任) of the Building management office. A witness statement from Mr Yan dated 12 June 2012 was submitted to the Adjudicator for his consideration for the purpose of such application.
14. In his Reasons for Decision dated 17 August 2012, the Adjudicator stated that the usual practice was to decline receiving further witness evidence after judgment, and further held that he had to follow the Ladd v Marshall principles for adducing fresh evidence. He decided that the defendant’s proposed new evidence failed to satisfy such criteria, and therefore declined to admit the fresh evidence. The Adjudicator went on to say such fresh evidence would not have altered the result of the Review even if it could have been adduced. He confirmed the Judgment with no order as to costs of the Review.
VI. APPEAL
15. A number of grounds were advanced in the defendant’s application for leave to appeal against the Orders. But leave was granted in respect of only three grounds, namely:
“(1) 原審審裁官錯誤裁定被告人為疏忽: 被告人「需要為遺失或損失或損壞[申索人]的物件負上法律責任」，因申索人「遭損壞的物件是被告人或蔡錫梗[被告人的證人]在搬運或存放不當而做成」(見裁決理由書第31及32段)。原審審裁官的裁決沒有考慮被告人是聘用獨立承辦商 (independent contractor)蔡錫梗和太安樓管理處搬運及安排儲存申索人的物件;
(2) 原審審裁官於裁決理由書第31段裁定被告人疏忽,他並沒有說明任何理由，因而犯上法律錯誤;
(3) 原審審裁官在被告人覆核申請聆訊中錯誤使用Ladd v Marshall的法律原則, 並拒絕被告人提出使用新証據而犯上法律錯誤。”
VI. 1st GROUND: INDEPENDENT CONTRACTOR
16. Ms Leung, counsel for the defendant, complains that the Adjudicator has failed to consider whether Mr Choi and the Building management office were independent contractors of the defendant. Ms Leung submits that even though the defendant owed a duty of care to the claimant, she would have discharged such duty if she had exercised care in engaging independent contractors to remove the Goods from the Premises and store them at the Carpark. Ms Leung refers to Clerk & Lindsell on Torts (12th ed) para.6-56 at p.386 in support of such proposition:
“…… If the employer has employed an independent contractor to do work on his behalf the general rule is that the employer is not responsible for any tort committed by the contractor in the course of the execution of the work …… Of course, even though the damage complained of may have been caused by the wrongful act or omission of an independent contractor ……, it may also be attributable to the negligence or personal fault of the employer. If, for example, he has negligently selected an incompetent contractor, or has employed an insufficient number of men, or has himself so interfered with the manner of carrying out the work that damage results, he will himself have committed a tort to which he can be held liable. Again if the employer has authorised or ratified the independent contractor’s tort then, on normal principles, he will be jointly liable for that tort.” [my emphasis]
17. Ms Leung submits that the relevant considerations as to whether an employer has discharged his duty of care are (a) whether he has acted reasonably in entrusting the work to an independent contractor, (b) whether he has exercised reasonable care in selecting the independent contractor, and (c) whether he has used reasonable care to check, if possible, that the work has been properly done. Ms Leung refers to the transcript of the trial proceedings at the Tribunal, and says there is ample evidence from the defendant and Mr Choi to show that the defendant satisfied (a)‑(c) above. Ms Leung argues that the Adjudicator has erred in law in concluding that “遭損壞的物件是被告人或蔡錫梗在搬運或存放不當而做成”without considering such evidence in the context of the aforesaid legal principles to see whether Mr Choi and/or the Building management office were independent contractors and if so, whether the defendant had acted reasonably in entrusting the removal and storage of the Goods to them and whether she had checked to see if their work had been done properly.
18. Ms Leung further complains that the Adjudicator has failed to help the defendant elicit evidence and raise questions in respect of the above matters, which she says reflect the Adjudicator’s failure to consider those matters or address on the relevant legal principles in the Reasons for Judgment.
19. Mr Yip, counsel for the claimant, submits that this ground of appeal is without merit because the removal of the Goods from the Premises and their storage at the Carpark by the defendant, Mr Choi and/or the security guards were unlawful. Whilst I have much sympathy for this argument since those acts complained of were done without the consent of the claimant or the permission by the court, which may arguably give rise to causes of action against the defendant based on trespass to and/or conversion of the Goods, the Adjudicator did not rest his conclusions as to liability on the lawfulness or otherwise of the above acts by the defendant, Mr Choi and/or the security guards. I am unable to accept this argument.
20. But, as Ms Leung concedes, there is no doubt that a bailment of goods has arisen from the defendant’s act in removing or arranging the removal of the Goods from the Premises and in storing or arranging the storage of the Goods at the Carpark. I have referred counsel to Palmer on Bailment (3rd ed) para.4-053 at p.294 which states as follows:
“Sometimes there will be a direct expropriation of goods without the consent of the person who, until that time, enjoyed possession. The “bailee” in such a case may be acting in the owner’s interests (as where A seizes B’s goods to save them from a fire) or he may be acting for more selfish reasons: to enforce a security, to steal the goods, or even because he thinks they are his own. In several cases a person acquiring possession in this way has been held to owe the former possessor a duty to take reasonable case of the goods and to abstain from converting them, and to discharge, where necessary, the customary burden of proof. ……”
21. In the present case, the defendant was plainly a “bailee” of the Goods without the consent of the claimant and for her own reasons, i.e. to prevent the claimant from causing damage to the Premises. The next questions are (a) what duty of care did the defendant owe to the claimant and (b) what is the customary burden of proof. On these questions, there is no dispute between Ms Leung and Mr Yip on the relevant legal principles.
22. A cause of action by a bailor against the bailee for breach of the bailee’s duty of care to take proper care of the goods differs from an ordinary action on negligence such that findings under the former cause of action as to breach of duty of care or even negligence on the part of the bailee are not the same as similar findings under the latter cause of action. In Palmer on Bailment (3rd ed) para.1-051 at pp.50-51, it is said that certain liabilities would not arise if there were not a bailment between the parties even though the defendant’s conduct could reasonably have been expected to cause the plaintiff’s loss. “Perhaps the best example is the duty to protect goods from theft. As a general rule of tort there is no such duty; …… it is unusual to find decisions that impose such liability other than by way of contract or bailment. But the liability of a bailee for the theft of goods that he has accepted into his custody does not depend on contract. The bailment may be gratuitous ……”
23. I have referred counsel to Samsung Electronics Ltd v J & C Cargo Services Co Ltd [2008] 2 HKLRD 243. In that case, the plaintiff bailor claimed for loss of goods against the 1st defendant being a bailee for reward and the 2nd defendant being an independent contractor and sub‑bailee for reward. Neither the 1st nor the 2nd defendant had discharged the burden of proving it had taken all reasonable care of the goods. The 2nd defendant was causatively careless as its staff failed to take the most basic precautions against theft. The 1st defendant was liable for the 2nd defendant’s acts and was also liable for failing to take reasonable care and steps to ensure that the 2nd defendant was a competent subcontractor.
24. In my view, the degree of the defendant’s duty of care to the plaintiff in this case cannot be any less than that owed by a bailee for reward to the bailor. In the latter case, the bailor is a knowing party who consented to the bailment, but the plaintiff in the present case had no idea (and had never agreed to) the defendant removing the Goods from the Premises. It will be strange indeed if an unwilling bailor is less protected than a willing one.
25. In Samsung Electronics Ltd, it was held at p.252 that:
(a) a bailee for reward owes a duty of care to the bailor to return the bailed goods safely at the conclusion of the bailment relationship and if the bailee fails to do so, he is liable for the loss of the goods unless he is able to prove that he has exercised all due care for the goods (see also Dense Billion Limited v Hui Ting-sung & ors and Lam Siu-hung [1996] 2 HKLR 107, 110 and 114);
(b) a bailee for reward is obliged by himself and through his servants or agents to take proper and reasonable care of the bailed goods, and he is answerable for the acts or omissions, including causatively careless and dishonest acts, of its servant or agent (see also Dense Billion Limited at p.110).
26. In Samsung Electronics Ltd, it was further held at pp.253-255 that the mere fact of sub-bailment does not extinguish the duty of a bailee for reward to take reasonable care of the goods; he is liable for the negligent acts and omissions of an independent contractor to whom responsibility of the goods has been entrusted. In the same vein, Palmer on Bailment (3rd ed) para.1-051 at p.51 states as follows:
“ Another illustration, … concerns liability for independent contractors. In tort, there is no general vicarious liability for the acts of independent contractors unless certain narrow conditions are fulfilled. Under the law of bailment, where the bailee deputes his task of safekeeping to an independent contractor, such liability may be imposed regardless of whether these conditions apply or not. Admittedly, the principal decision rationalised this liability as arising under an implied term of the contract of bailment, but we submit that a comparable liability would be imposed, for instance, between a sub-bailee for reward and a principal bailor. Again, there is a liability that arises independently of the general law of tort.”
27. Further, in an action for negligence the general rule is that the plaintiff must prove breach of the duty of care. But when goods are injured or lost while in the possession of a bailee, this rule is displaced and the burden falls on the bailee to prove that he took all reasonable care of the goods or that his failure to do so did not contribute to the loss (see Palmer on Bailment (3rd ed) para.1-053 at p.52 and also Dense Billion Limited at p.114).
28. In my view, given the above legal principles, there is no merit to this ground of appeal. Once it is accepted that the defendant as bailee had a non‑delegable duty to take keep the Goods safe, and that she would be liable for any negligent acts and/or omissions of an independent contractor to whom responsibility of the Goods had been entrusted, it is not necessary to ascertain whether the defendant has exercised reasonable care in deputing the tasks of removing the Goods and storing them at the Carpark to Mr Choi and/or the security guards, in selecting Mr Choi and/or the security guards to undertake those tasks, and/or in checking their work. After all, if Mr Choi and/or the security guards had been careless or negligent, the defendant cannot escape from liability.
29. Here, the Adjudicator found on the defendant’s own case that she was negligent (a) when she waited at the lift lobby whilst Mr Choi moved the Goods from the Premises to the lift lobby and the door to the Premises were left open with no one guarding the remaining Goods inside the Premises, and (b) when she relied on Mr Wong of the Building management office to look after the Goods at the Carpark but it was unknown whether the security guards actually watched over the Goods or whether they were trustworthy and reliable. Hence, the Adjudicator concluded that (i) the loss of the claimant’s personal belongings was due to theft of such items at the Premises or the Carpark as a result of the defendant’s negligent supervision, and (ii) the damage to the claimant’s personal belongings was caused by the defendant’s or Mr Choi’s negligence in the course of moving or storing the Goods.
30. As rightly pointed out by Mr Yip, the Adjudicator’s findings turned partly on the defendant’s own personal involvement in removing the Goods from the Premises and in her own personal supervision of the process for removing and storing the Goods, so the conclusion that she was negligent does not simply rest on the issue of whether Mr Choi and/or the security guards were her independent contractors (see paragraph 16 above). But even if they were independent contractors, the Adjudicator found that Mr Choi (as sub-bailee of the defendant) had been negligent in leaving the Goods inside the Premises unattended (for which the defendant as bailee was held liable), and that the defendant had not discharged her burden of proof in establishing that (a) the security guards (as her sub-bailees) took reasonable care in watching over the Goods at the Carpark, and (b) Mr Choi (as her sub‑bailee) took reasonable care in the course of moving and storing the Goods to prevent damage. I am unable to see how in arriving at such conclusions the Adjudicator has erred in law.
VII. 2ND GROUND: FAILURE TO GIVE REASONS
31. Ms Leung complains that apart from stating the matters in (a)‑(b) of paragraph 29 above the Adjudicator has failed to give reasons for his decision on the issue of liability, and despite his reservations over the defendant’s and Mr Choi’s evidence he has not considered or given reasons as to why he has rejected the defendant’s evidence apart from the mere assertion that “被告人在庭上作供時就着細節有時前後不一致” or why he has come to the conclusion that Mr Wong and/or the security guards on duty “是否真的有看管及他們是否誠實可靠實在不得而知”. Ms Leung submits that without any analysis of the evidence there is insufficient basis for the Adjudicator’s rejection of the defendant’s evidence, especially when the plaintiff never put forward the possibility of theft at the trial. It is argued that the Adjudicator’s failure to give proper reasons for the Judgment is unfair and unjust.
32. The relevant principles for giving reasons for decision are not in dispute. In Lee Tai Property Development Limited v The Incorporated Owners of Leapont Industrial Building CACV 137/1995 (unreported, 14 September 1995), Godfrey JA referred to Capital Properties v Swycher [1976] Ch 319, 325 and Lai Sau Lin v World Speed Co Ltd [1990] 2 HKLR 317, 321-322, and held that the right course for a judge of first instance “is to give his reasons (they need to be stated only briefly)” for his decision (my emphasis). Godfrey JA cited a passage from the judgment of Fuad JA in Lai Sau Lin at p.322 which stated that the judge’s duty to give reasons did not “mean a lengthy speech on each and every occasion. That would be quite unnecessary in most interlocutory matters, where all that is needed is more indication of the ‘why’ as well as of the ‘what’” (see also Brian Alfred Hall v Secretary for Justice HCSA24/2006, DHCJ L Chan (as he then was) (unreported, 19 February 2008)).
33. Ms Leung also refers to the observations by Chan CJHC (as he then was) in Zhuo Cui Hao v Ting Fung Yee [1999] 3 HKC 634, 639 as follows:
“ Generally speaking, a professional judge is under a duty to analyse in his judgment the material points in the evidence of the case and give reasons as to why he has reached a particular conclusion or decision. This is the only way to make people understand why their evidence is not accepted by the court and why they lose in a case. Only by this can justice be seen to be done. Furthermore, the losing party needs to be clear on whether there is any error in the reasons for the decision given by the court before he can decide whether to appeal or not, and, at a later stage, submit to the Court of Appeal his grounds of appeal in order to seek to set aside the original decision. A professional judge is under a duty to give adequate reasons for any decision which he has made. This is a principle of paramount importance in the common law system. …”
34. At p.635 in Zhuo Cui Hao, Chan CJHC (as he then was) said it was worth to take note of the guidelines reiterated in Flannery & Anor v Halifax Estate Agencies Ltd (The Independent, 26 February 1999, The Times, 4 March 1999, unreported). In that case, Henry LJ made the following observations:
(a) The extent of the duty, or rather the reach of what is required to fulfil it, depends on the subject matter. Where there is a straightforward factual dispute whose resolution depends simply on which witness is telling the truth about events which he claims to recall, it is likely to be enough for the judge (having, no doubt, summarised the evidence) to indicate simply that he believes X rather than Y; indeed there may be nothing else to say. But where the dispute involves something in the nature of an intellectual exchange, with reasons and analysis advanced on either side, the judge must enter into the issues canvassed before him and explain why he prefers one case over the other. This is likely to apply particularly in litigation where there is disputed evidence; but it will not be necessarily limited to such cases.
(b) This is not to suggest that there is one rule for cases concerning the witnesses’ truthfulness or recall of events, and another for cases where the issue depends on reasoning or analysis (with experts or otherwise). The rule is the same: the judge must explain why he has reached his decision. The question is always what is required of the judge to do so; and that will differ from case to case. Transparency should be the watchword.
35. In Oriental Daily Publisher Ltd v Commissioner for Television and Entertainment Licensing Authority (1997-1998) 1 HKCFAR 279, 290-291, the Court of Final Appeal held that a duty to give reasons has to be discharged by giving adequate reasons. What is adequate depends on the context in which the decision maker was operating and the circumstances of the case in question. The observations relevant to the adequacy of reasons given by the tribunal in that case were inter alia:
(a) The reasons should show that the tribunal had addressed the substantial issues before it and why the tribunal had come to its decision.
(b) The reasons might not require great elaboration and they might be brief. It was only when they were defective in substance that they should be considered inadequate. Ultimately, what were adequate reasons in the circumstances of a particular case had to be approached sensibly.
36. So the question is whether the reasons given by the Adjudicator for the Judgment are adequate or not, no matter how brief they are. This must be approached sensibly taking into account the context of the present case. In my view, the Adjudicator has given adequate reasons and has made sufficient findings of fact as to the defendant’s breach of her duty of care that was causative of the loss/damage to the claimant’s personal belongings to support the Judgment, and there is no error of law to sustain this ground of appeal.
37. With respect, Ms Leung’s submissions misunderstand the Adjudicator’s reasons for the Judgment. Whilst the Adjudicator has reservations about the defendant’s and Mr Choi’s evidence, his findings as set out in paragraph 29(a) above were premised on the defendant’s own case (see paragraph 31 of the Reasons for the Judgment which refers to “根據被告人的證供”). As regards the Adjudicator’s findings as set out in paragraph 29(b) above, Ms Leung acknowledges that no evidence was placed before the Tribunal as to what happened on 19 August 2010 for the period from the time when the defendant left the Building until the claimant returned to the Premises, e.g. what happened at the Carpark or what the security guards did or did not do during such period. In the circumstances, there is ample basis for the Adjudicator to come to his findings that leaving the Goods at the Carpark was a risky act since whether the security guards on duty “是否真的有看管及他們是否誠實可靠實在不得而知”. This is especially so when the defendant carries the burden in establishing that she has discharged her duty to take reasonable care.
38. In respect of the findings set out in paragraph 31 of the Reasons for Judgment, I also rely on the discussions in paragraphs 29-30 above. I also add that I am not with Ms Leung in her criticism that the claimant has not raised any suggestion of theft. The learned Adjudicator found as a fact that the missing personal belongings of the claimant were originally kept at the Premises. It is plainly obvious that the claimant was unaware of the removal of the Goods from the Premises to the Carpark. The defendant and Mr Choi also denied any expropriation of the claimant’s personal belongings. In the circumstances, the only logical inference is one of theft or expropriation by unknown person(s). The burden is on the defendant as bailee to establish that she had exercised reasonable care to protect the Goods from theft, and not for the claimant as bailor to offer a reason for the loss of the bailed goods.
39. Although the aforesaid findings and conclusions do not materially turn on the Adjudicator’s rejection of the defendant’s evidence, there is no doubt he had reservations over Mr Choi’s and her evidence. In my view, the Adjudicator has also given adequate reasons for his view of such evidence. As an initial observation, it is plainly obvious that how the Goods were moved from the Premises to the Carpark is materially relevant to the issue of liability. Since the claimant had no knowledge about this, the reliability of the defendant’s and Mr Choi’s evidence takes on importance.
40. Here, the Adjudicator has explained that the defendant’s description of the process of the removal of the Goods from the Premises to the Carpark was significantly different from the description by Mr Choi. In my view, this is adequate basis for having reservations over their evidence.
41. But the Adjudicator has gone further to say he also had reservations because Mr Choi’s own evidence as shown in his statement to the police dated 6 October 2010 and in his witness statement dated 1 November 2011 which are inherently different. In my view, even a cursory reading of the two statements show that they are materially different. In his statement to the police, Mr Choi stated that by the time he arrived at the Premises at about 9 pm on 19 August 2012, the defendant had already arrived and she herself had already packed the Goods into three to four red-white-blue bags. The defendant showed him an inventory but he did not look at it. At the defendant’s instructions, Mr Choi by himself took two trips to transport all of the Goods (including the bed and mattress inside the Premises) to the Carpark. On the other hand, in his witness statement, Mr Choi stated he arrived at the Premises at about 5:30 pm that day. After the defendant arrived about 10 minutes later, she opened the door to the Premises. Whilst the Goods were being packed into the red-white-blue bags, the defendant made an inventory which she showed to Mr Choi. Mr Choi paid particular attention to the Goods that he packed and moved to the Carpark. In my view, the differences in the two statements are so patently obvious that they require no further elaboration in the Reasons for Judgment, and they give adequate support for the Adjudicator’s reservations over Mr Choi’s evidence. But that said, the Adjudicator’s findings on the issue of liability does not turn on his reservations over the defence evidence.
VIII. 3RD GROUND: LADD v MARSHALL PRINCIPLES
42. The starting point is section 27A(1) of the Ordinance which provides that:
“Except where a party has filed an application for leave to appeal and does not agree to withdraw the application, an adjudicator may, within 14 days from the date of an award or order given or made by him, review the award or order and on such review may re-open and re-hear the claim wholly or in part and may call or hear fresh evidence and may confirm, vary or reverse his previous award or order.” [my emphasis]
43. The well-established Ladd v Marshall requirements for adducing new evidence are: (a) it must be shown that the evidence could not have been obtained at the trial with reasonable diligence; (b) the evidence must be such that it would or might, if believed, have an important effect on the mind of the tribunal though it need not be decisive; and (c) the evidence must be of a sort which is not improbable though it need not be incontrovertible. According to Hong Kong Civil Procedure 2013 Vol.1 para.59/10/8 at p.1064, “[the] Court adopts a strict approach in applying Ladd v Marshall: “When a litigant has obtained a judgment in a court of justice … he is by law entitled not to be deprived of that judgment without very solid grounds” … If it is sought to deprive him of his judgment by further evidence, three conditions must be satisfied before it can be received …”.
44. Mr Yip submits that the Adjudicator by adopting the Ladd v Marsahll principles has applied the correct test for the defendant’s application for leave to adduce fresh evidence for the Review, hence there is no error of law to sustain this ground of appeal.
45. In support of the applicability of the Ladd v Marshall principles to reviews (in contra-distinction to appeals) under section 27A of the Ordinance, Mr Yip relies on the decision of To J in Leung Wing Keung Nene v Hong Kong Housing Authority HCSA11/2011 (unreported, 2 September 2011). The learned judge refused to grant leave to the claimant to appeal against the decision of the deputy adjudicator and said inter alia as follows:
“11. Another breach related to the Deputy Adjudicator’s refusal to hear the Claimant’s fresh evidence. Presumably that was directed at the Deputy Adjudicator’s refusal at the review hearing to hear new evidence. The Deputy Adjudicator relied on the principle in Ladd v. Marshall [1954] 1 WLR 1489. That is a well established authority. The Deputy Adjudicator could not be said to have erred in law or failed to observe procedural rules.”
46. With respect of the learned judge, I am of the view that the Ladd v Marshall principles in which all three criteria referred to in paragraph 43 above must be satisfied is not the relevant test for determining whether leave should be granted for adducing fresh evidence for reviews under section 27A of the Ordinance. I note that in coming to his view in Leung Wing Keung Nene which concerns an application by a self-represented party for leave to appeal, the learned judge did not have the benefit of counsel’s research and submissions.
47. To start, section 27A(1) of the Ordinance provides that the Tribunal on a review “may” call or hear fresh evidence, and there is no statutory restriction that circumscribes the exercise of such discretion on whether or not to receive new evidence to the Ladd v Marshall test.
48. Secondly, a more liberal approach is justified by the distinction between the process of review before the Tribunal and the process of appeal before the Court of First Instance under the Ordinance. It is noted that appeals from the Tribunal to the Court of First Instance are limited to points of law. Further, where the Tribunal admits evidence at a review there will be no new trial for the new evidence merely supplements the evidence already adduced. In fact, at the conclusion of the review, the Tribunal will consider the evidence adduced both at the trial and at the review.
49. Thirdly, section 29(2) of the Ordinance provides that “[on] an appeal for which it has granted leave under section 28, the Court of First Instance may – … (a) draw any inference of fact; … but may not (i) reverse or vary any determination made by the tribunal on questions of fact; or (ii) receive further evidence”. Since further evidence cannot be received on appeal, there is every reason for a more liberal approach to be adopted upon a review under section 27A of the Ordinance.
50. Ms Leung draws assistance from China Light & Power Co. Ltd v Commissioner of Rating and Valuation (No 2) [1997] 4 HKC 500. In that case, the appellant disputed the assessments of rateable value and appealed to the Lands Tribunal. The Lands Tribunal reduced the rateable value, and the respondent appealed. The appellant then filed an application for review and later cross-appealed. In the application for review, the appellant sought to adduce new evidence which the respondent opposed. At a preliminary hearing, the Lands Tribunal dismissed the appellant’s application for leave to adduce new evidence for the review.
51. Section 11 of the Lands Tribunal Ordinance Cap 17 provides as follows:
“(1) The Tribunal may, within 1 month from the date of any decision by it, decide to review that decision and, on such grounds as it may think sufficient, may set aside, reverse, vary or confirm it.
……
(4) The Tribunal may, in any review, hear and receive any evidence it thinks fit for the purpose of determining the issue between the parties.
……”
52. In China Light & Power Co Ltd, it was held that although the principles in Ladd v Marshall formed a useful basis to approach applications to adduce new evidence, the Lands Tribunal would exercise its discretion more liberally in admitting new evidence. The more liberal approach was justified by the reasons set out in paragraph 48 above (see also Boulton v Loon King Development Company Limited LDLA 62/1982 (unreported, 27 July 1983) at paras.3 and 9). Whereas the Lands Tribunal’s more liberal approach had on occasion admitted new evidence which could have been adduced at trial, less flexibility would be accorded in relation to the second Ladd v Marshall condition, i.e. that the new evidence would probably have an important but not necessarily decisive influence on the result. It was said at p.510 of the report that rarely would it be just to receive new evidence, which would not affect the outcome of the trial.
53. As pointed out in paragraphs 42, 47 and 51 above, the wording of section 27A(1) of the Ordinance is even more explicit than that of section 11A(4) of the Lands Tribunal Ordinance Cap 17 in permitting “fresh” evidence to be adduced at reviews. In my view, there is no reason why the approach for admitting new evidence at reviews as adopted in China Light & Power Co Ltd should not be applicable to reviews under section 27A(1) of the Ordinance.
54. I have referred counsel to Fairview Park Property Management Ltd v Lee Yuen-yau HCSA 13/86, Hooper J (unreported, 1 December 1986). In that case, the adjudicator dismissed the claimant’s claim after trial. Subsequently, he took it upon himself to exercise the power under section 27A of the Ordinance to initiate a review by setting aside the judgment previously made and making a number of orders against which the appellant sought leave to appeal. The grounds of appeal were inter alia that (a) the orders were erroneous on points of law in that the adjudicator allowed the claimant liberty to amend the claim form after setting aside the judgment, and (b) he erred in his reasons for review because there was no evidence to support or he had not made any finding that supported those reasons.
55. The learned judge held there were no merits to these grounds of appeal. He reminded that in respect of ground (a), on the exercise of the power of review the proceedings might be reopened and reheard in whole or in part and then there would obviously be power to allow a claimant to amend his claim. In respect of ground (b), the absence of any specific finding of fact was not a valid ground because “a rehearing will enable the Tribunal to resolve these matters” and “[all] relevant matters may be pursued by further enquiry at a rehearing”.
56. In my view, it is implicit from such decision that the correct approach to determining whether new evidence should be received upon a review by the Tribunal is not the strict Ladd v Marshall test. The decision in Fairview Park Property Management Ltd envisaged that the claimant’s claim would be amended and new evidence might be allowed to support the new plea. Plainly, this falls without the Ladd v Marshall principles.
57. I therefore conclude that in the present case the Adjudicator has erred in law in adopting the strict Ladd v Marshall test in considering whether to permit the defendant to adduce fresh witness evidence from Mr Yan at the Review.
58. In his Reasons for Decision for the Review, the Adjudicator has gone further to say that even if he could consider such fresh evidence which did not meet all the Ladd v Marshall requirements it would not have altered the result of the Review, but he failed to condescend to the reasons for coming to such view. Whilst I accept that the Tribunal must also give adequate reasons for a decision on review (see Brian Alfred Hall), the Adjudicator might have omitted to do so since this was not his primary finding and conclusion.
59. It therefore falls upon this court to consider in light of the conclusions on the 1st and 2nd grounds of appeal whether the witness evidence of Mr Yan may have some bearing on the outcome of the case otherwise (as both counsel accept) there is little point in considering any possible retrial of this case (see paragraph 52 above).
60. Mr Yan’s written statement dated 15 June 2012 gave an account of how he and Mr Wong dealt with the defendant during the period between 17 and 19 August 2012. On 18 August 2012, the defendant wanted to rent storage space immediately in order to store the Goods, and Mr Yan and Mr Wong promised to follow up. On the following day, the defendant could not wait any longer, and decided to urgently remove the Goods from the Premises because she feared the claimant might cause more problem. When she enquired as to whether there was any place to safely keep the Goods, Mr Yan told her he would arrange everything. At about 6:45 pm that day, the defendant and a moving agent brought the Goods to be placed at the Carpark outside the management office at Mr Yan’s direction. Upon the defendant’s enquiry as to whether it would be safe, Mr Yan said (a) there was round the clock CCTV surveillance, (b) the Goods would be kept within the field of vision of the security guards at the security post nearby, and (c) the side door only permitted access to the upper floors and not to the shopping mall and/or street. Mr Yan saw that the Goods were cling-wrapped and tidily stored. He went off-duty and left the Building at 7:15 pm.
61. In my view, Mr Yan’s evidence had no material impact on the Adjudicator’s findings of fact that supported his conclusions on the issue of liability. Mr Yan has no knowledge about the removal of the Goods from the Premises to the Carpark, so his evidence is irrelevant to the findings set out in paragraph 29(a) above. Since he left the Building at 7:15 pm on 19 August 2012, Mr Yan cannot give useful evidence as to what happened from 7:15 pm until the claimant’s return to the Premises that evening. This means that even if such fresh evidence is received, the defendant still cannot discharge her burden of proof to refute the findings set out in paragraph 29(b) above. In the circumstances, Mr Yan’s evidence is immaterial and cannot overturn the Adjudicator’s findings. There is, again, no merit to this ground of appeal.
IX. CONCLUSION
62. In the circumstances, the defendant’s appeal is dismissed. There is no reason why costs should not follow event, and I grant a costs order nisi in favour of the claimant against the defendant for the costs of the appeal (including all costs reserved if any) to be summarily assessed. For the purpose of the summary assessment of costs, I grant the following directions:
(a) if no application is made to vary the costs order nisi within 14 days from the date hereof, the claimant do within 21 days from the date hereof lodge and serve statement of costs not exceeding one page pursuant to Practice Direction 14.3, and the defendant do within 7 days thereafter lodge and serve succinct summary of objections in bullet-point format of not more than one page in respect of the claimant’s statement of costs (“Objection Summary”), and unless otherwise directed the summary assessment of costs will be by paper disposal;
(b) if application is made to vary the costs order nisi within 14 days from the date hereof, the claimant and the defendant do within 21 days from the date hereof lodge and serve their respective statement of costs pursuant to Practice Direction 14.3, and within 7 days thereafter lodge and serve their respective Objection Summary to the other party’s statement of costs, and the party seeking variation of the costs order nisi do within 14 days from the date hereof fix a date with the Listing Clerk for the hearing of the application for variation of the costs order nisi and summary assessment of costs before me on a date not before 42 days from the date hereof with half hour reserved.
| (Marlene Ng)
|
| Deputy High Court Judge |
Ms Pauline Leung, instructed by Bernard Wong & Co, for the Appellant/Defendant
Mr Samuel Yip, instructed by Chung & Kwan, for the Respondent/claimant