HCSA12/2023 LAM LAI KIU KELVIN AND NG TSZ KIN BRIAN t/a YU & ASSOCIATES, SOLICITOR v. CHEUNG SAU CHU ROSANNA - LawHero
HCSA12/2023
高等法院（證券上訴）Au-Yeung J18/9/2023[2023] HKCFI 2375
HCSA12/2023
A A
HCSA 12/2023
B [2023] HKCFI 2375 B
C IN THE HIGH COURT OF THE C
HONG KONG SPECIAL ADMINISTRATIVE REGION
D D
COURT OF FIRST INSTANCE
E SMALL CLAIMS TRIBUNAL APPEAL NO. 12 OF 2023 E
(ON APPEAL FROM SMALL CLAIMS TRIBUNAL CLAIM NO. 36282
F F
of 2021)
G G
H H
BETWEEN
I I
LAM LAI KIU KELVIN AND NG Claimant
TSZ KIN BRIAN TRADING AS YU & (Respondent)
J J
ASSOCIATES, SOLICITOR
K and K
L CHEUNG SAU CHU ROSANNA Defendant L
(Applicant)
M M
N N
O
Before: Hon Au-Yeung J in Chambers O
Date of Hearing: 28 July 2023
P P
Closing Date for Written Submission: 18 August 2023
Q Date of Decision: 19 September 2023 Q
R R
S DECISION S
T T
U U
V V
-2-
A A
A. Introduction
B B
1. The Claimant solicitors claimed against the Defendant, their
C former client, outstanding legal fees at the Small Claims Tribunal C
(“Tribunal”).
D D
E 2. After trial, the Tribunal gave judgment in favour of the E
Claimant on 13 February 2022 (“Decision”).
F F
3. The Adjudicator dismissed the Defendant’s application for
G G
review on 2 May 2023 (“Review Decision”).
H H
4. This is the Defendant’s application for leave to appeal lodged
I I
on 30 May 2023 (by Form 9) against the Review Decision only.
J J
K
B. Facts as found by the Tribunal K
L
5. The Claimant’s case arose from an unpaid bill of costs in the L
sum of HK$41,264.16, which was sent to the Defendant on 22 April 2020
M M
(“Bill”). The Bill concerned legal fees incurred as a result of the Defendant
N
retaining the Claimant to pursue her personal injuries claim during her N
attendance at the Claimant’s office on 7 January 2020. This was followed
O O
by the Defendant signing a written retainer on 9 January 2020 (“Written
P
Retainer”), and the Claimant issuing a Writ of Summons under case number P
DCPI 187/2020 (“DCPI Action”) for the Defendant on 20 January 2020.
Q Q
6. As the Bill remained unpaid despite repeated demands from the
R R
Claimant, the Claimant took out the subject claim at the Tribunal on
S 7 October 2021. S
T T
U U
V V
-3-
A A
7. As of today, there is no application by the Defendant for an
B order to tax the Bill pursuant to section 67 of the Legal Practitioners B
Ordinance (Cap 159).
C C
D 8. On 13 December 2021, the Claimant was given leave to amend D
its name from “Yu & Associates, Solicitors (A Firm)” to “Lam Lai Kiu
E E
Kelvin and Ng Tsz Kin Brian trading as Yu & Associates, Solicitors”.
F F
9. The Defendant’s defence was three-fold:
G G
(1) As the Claimant “Yu & Associates, Solicitors” was not a law
H H
firm registered with the Law Society of Hong Kong, the
I Defendant only dealt with “Yu & Associates”. Hence, the I
Defendant did not engage the Claimant’s services (“Standing
J J
Issue”).
K K
(2) There existed an oral agreement for an agreed fee of HK$5,000
L
for preparing the writ of summons and indorsement of claim L
(“Oral Agreement”), and the Written Retainer was signed to
M M
cover the costs to be incurred thereafter (“Oral Agreement
N
Issue”). N
(3) During cross-examination of Mr Ng of the Claimant, the
O O
Defendant also took issue with whether it was necessary to
P spend 2.5 hours (as charged in the Bill) in their first meeting to P
discuss her case (“Billing Issue”).
Q Q
R 10. Having heard the evidence, the Tribunal rejected the R
Defendant’s case, and found that:
S S
(1) “Yu & Associates”, with or without “, Solicitors” meant the
T T
Claimant. The Defendant did engage the Claimant.
U U
V V
-4-
A A
(2) The Oral Agreement did not exist.
B B
(3) The Claimant had delivered the Bill in compliance with the
C requirements under section 66 of the Legal Practitioners C
Ordinance (Cap 159), which the Defendant had not paid and
D D
had not raised triable issues thereon.
E E
11. The Tribunal thus ordered the Defendant to pay the Claimant a
F sum of $38,264.16 (after giving credit to HK$3,000 costs on account) and F
costs of HK$80.
G G
H 12. During the Review Application, the Defendant mostly H
reiterated the same 3 Issues. In addition, she complained about the
I I
Tribunal’s refusal of her third application to extend the time to file and serve
J her perfected grounds of review and documents. The reason relied on by the J
Defendant was that she needed to search the court files of the DCPI Action
K K
(“File Search Issue”).
L L
13. In the Review Decision, the Tribunal dismissed the Review
M M
Application on the grounds that the overall evidence of the case was
N
sufficient to show that the Defendant’s defence ought not to be believed, and N
the materials in the DCPI Action would not have any material bearing on the
O O
Adjudicator’s findings.
P P
14. In the present application, the Defendant’s intended grounds of
Q appeal again mostly reiterated the points that have been dealt with in the Q
Review Application.
R R
S 15. In addition, the Defendant also invited this Court to consider S
various documents she obtained upon conducting a file search of the DCPI
T T
Action.
U U
V V
-5-
A A
C. Legal Principles
B B
16. The burden is on the Defendant to show arguable grounds of
C appeal involving a question of law or that the claim was outside the C
jurisdiction of the tribunal. Section 28(1) of the Small Claims Tribunal
D D
Ordinance (Cap 338) (“Ordinance”).
E E
17. A party cannot challenge any finding of facts made by the
F F
Tribunal because it does not involve any question of law, unless such finding
G is perverse or irrational; or there was no evidence to support it; or it was G
made by reference to irrelevant factors or without regard to relevant factors:
H H
Chow Mee Yee Millie v Hong Kong Mediation Services Ltd, HCSA 17/2011,
I 16 February 2012, Au J (as he then was) at §§32 and 37. I
J J
D. Application of the Legal Principles
K K
18. Form 9 contains no ground of appeal. Similarly, the written
L L
submissions subsequently lodged by the Defendant do not identify any error
M
of law or show that the claim exceeds the jurisdiction of the Tribunal. M
N 19. All such written submissions can fairly be described as N
rambling and unfocused documents with a lot of enclosures. The Defendant
O O
effectively repeated the grounds of review. They have been dealt with by
P the Tribunal in the Review Decision, which this Court entirely agrees with. P
Q Q
20. In my view, the Adjudicator had carefully considered the parties’
R
case on the Standing Issue, the Oral Agreement Issue, and the Billing Issue R
in both the Decision and the Review Decision. He was therefore entitled to
S S
come to his factual findings.
T T
U U
V V
-6-
A A
21. The Defendant reiterated in her written submissions that there
B was no legal basis on the part of the Tribunal in granting leave to amend the B
Claimant’s name. Without disrespect, this submission is entirely without
C C
merit. Ultimately, the gravamen of the Defendant’s complaint on the
D Standing Issue was whether the Claimant was whom the Defendant engaged. D
This was a finding of facts that the Tribunal was entitled to make, to which
E E
this Court detects no error whatsoever.
F F
22. The Tribunal’s decision on the File Search Issue and his refusal
G G
of the Defendant’s application for time extension for the third time were
H matters in exercise of his discretion in case management. It has not been H
shown to be arguable that the relevant decision exceeded the generous ambit
I I
within which reasonable disagreement is possible and is in fact plainly wrong.
J J
23. For completeness, the Defendant cannot demonstrate from
K K
adducing the materials in the DCPI Action any error of law on the part of the
L
Tribunal. L
M M
E. Disposition
N N
24. For the reasons stated above, none of the matters raised by the
O Defendant disclose any arguable grounds of appeal. The application for O
leave to appeal is therefore dismissed.
P P
Q Q
R R
(Queeny Au-Yeung)
Judge of the Court of First Instance
S High Court S
T T
The Applicant appeared in person
U U
V V
LAM LAI KIU KELVIN AND NG TSZ KIN BRIAN t/a YU & ASSOCIATES, SOLICITOR v. CHEUNG SAU CHU ROSANNA
A A
HCSA 12/2023
B [2023] HKCFI 2375 B
C IN THE HIGH COURT OF THE C
HONG KONG SPECIAL ADMINISTRATIVE REGION
D D
COURT OF FIRST INSTANCE
E SMALL CLAIMS TRIBUNAL APPEAL NO. 12 OF 2023 E
(ON APPEAL FROM SMALL CLAIMS TRIBUNAL CLAIM NO. 36282
F F
of 2021)
G G
H H
BETWEEN
I I
LAM LAI KIU KELVIN AND NG Claimant
TSZ KIN BRIAN TRADING AS YU & (Respondent)
J J
ASSOCIATES, SOLICITOR
K and K
L CHEUNG SAU CHU ROSANNA Defendant L
(Applicant)
M M
N N
O
Before: Hon Au-Yeung J in Chambers O
Date of Hearing: 28 July 2023
P P
Closing Date for Written Submission: 18 August 2023
Q Date of Decision: 19 September 2023 Q
R R
S DECISION S
T T
U U
V V
-2-
A A
A. Introduction
B B
1. The Claimant solicitors claimed against the Defendant, their
C former client, outstanding legal fees at the Small Claims Tribunal C
(“Tribunal”).
D D
E 2. After trial, the Tribunal gave judgment in favour of the E
Claimant on 13 February 2022 (“Decision”).
F F
3. The Adjudicator dismissed the Defendant’s application for
G G
review on 2 May 2023 (“Review Decision”).
H H
4. This is the Defendant’s application for leave to appeal lodged
I I
on 30 May 2023 (by Form 9) against the Review Decision only.
J J
K
B. Facts as found by the Tribunal K
L
5. The Claimant’s case arose from an unpaid bill of costs in the L
sum of HK$41,264.16, which was sent to the Defendant on 22 April 2020
M M
(“Bill”). The Bill concerned legal fees incurred as a result of the Defendant
N
retaining the Claimant to pursue her personal injuries claim during her N
attendance at the Claimant’s office on 7 January 2020. This was followed
O O
by the Defendant signing a written retainer on 9 January 2020 (“Written
P
Retainer”), and the Claimant issuing a Writ of Summons under case number P
DCPI 187/2020 (“DCPI Action”) for the Defendant on 20 January 2020.
Q Q
6. As the Bill remained unpaid despite repeated demands from the
R R
Claimant, the Claimant took out the subject claim at the Tribunal on
S 7 October 2021. S
T T
U U
V V
-3-
A A
7. As of today, there is no application by the Defendant for an
B order to tax the Bill pursuant to section 67 of the Legal Practitioners B
Ordinance (Cap 159).
C C
D 8. On 13 December 2021, the Claimant was given leave to amend D
its name from “Yu & Associates, Solicitors (A Firm)” to “Lam Lai Kiu
E E
Kelvin and Ng Tsz Kin Brian trading as Yu & Associates, Solicitors”.
F F
9. The Defendant’s defence was three-fold:
G G
(1) As the Claimant “Yu & Associates, Solicitors” was not a law
H H
firm registered with the Law Society of Hong Kong, the
I Defendant only dealt with “Yu & Associates”. Hence, the I
Defendant did not engage the Claimant’s services (“Standing
J J
Issue”).
K K
(2) There existed an oral agreement for an agreed fee of HK$5,000
L
for preparing the writ of summons and indorsement of claim L
(“Oral Agreement”), and the Written Retainer was signed to
M M
cover the costs to be incurred thereafter (“Oral Agreement
N
Issue”). N
(3) During cross-examination of Mr Ng of the Claimant, the
O O
Defendant also took issue with whether it was necessary to
P spend 2.5 hours (as charged in the Bill) in their first meeting to P
discuss her case (“Billing Issue”).
Q Q
R 10. Having heard the evidence, the Tribunal rejected the R
Defendant’s case, and found that:
S S
(1) “Yu & Associates”, with or without “, Solicitors” meant the
T T
Claimant. The Defendant did engage the Claimant.
U U
V V
-4-
A A
(2) The Oral Agreement did not exist.
B B
(3) The Claimant had delivered the Bill in compliance with the
C requirements under section 66 of the Legal Practitioners C
Ordinance (Cap 159), which the Defendant had not paid and
D D
had not raised triable issues thereon.
E E
11. The Tribunal thus ordered the Defendant to pay the Claimant a
F sum of $38,264.16 (after giving credit to HK$3,000 costs on account) and F
costs of HK$80.
G G
H 12. During the Review Application, the Defendant mostly H
reiterated the same 3 Issues. In addition, she complained about the
I I
Tribunal’s refusal of her third application to extend the time to file and serve
J her perfected grounds of review and documents. The reason relied on by the J
Defendant was that she needed to search the court files of the DCPI Action
K K
(“File Search Issue”).
L L
13. In the Review Decision, the Tribunal dismissed the Review
M M
Application on the grounds that the overall evidence of the case was
N
sufficient to show that the Defendant’s defence ought not to be believed, and N
the materials in the DCPI Action would not have any material bearing on the
O O
Adjudicator’s findings.
P P
14. In the present application, the Defendant’s intended grounds of
Q appeal again mostly reiterated the points that have been dealt with in the Q
Review Application.
R R
S 15. In addition, the Defendant also invited this Court to consider S
various documents she obtained upon conducting a file search of the DCPI
T T
Action.
U U
V V
-5-
A A
C. Legal Principles
B B
16. The burden is on the Defendant to show arguable grounds of
C appeal involving a question of law or that the claim was outside the C
jurisdiction of the tribunal. Section 28(1) of the Small Claims Tribunal
D D
Ordinance (Cap 338) (“Ordinance”).
E E
17. A party cannot challenge any finding of facts made by the
F F
Tribunal because it does not involve any question of law, unless such finding
G is perverse or irrational; or there was no evidence to support it; or it was G
made by reference to irrelevant factors or without regard to relevant factors:
H H
Chow Mee Yee Millie v Hong Kong Mediation Services Ltd, HCSA 17/2011,
I 16 February 2012, Au J (as he then was) at §§32 and 37. I
J J
D. Application of the Legal Principles
K K
18. Form 9 contains no ground of appeal. Similarly, the written
L L
submissions subsequently lodged by the Defendant do not identify any error
M
of law or show that the claim exceeds the jurisdiction of the Tribunal. M
N 19. All such written submissions can fairly be described as N
rambling and unfocused documents with a lot of enclosures. The Defendant
O O
effectively repeated the grounds of review. They have been dealt with by
P the Tribunal in the Review Decision, which this Court entirely agrees with. P
Q Q
20. In my view, the Adjudicator had carefully considered the parties’
R
case on the Standing Issue, the Oral Agreement Issue, and the Billing Issue R
in both the Decision and the Review Decision. He was therefore entitled to
S S
come to his factual findings.
T T
U U
V V
-6-
A A
21. The Defendant reiterated in her written submissions that there
B was no legal basis on the part of the Tribunal in granting leave to amend the B
Claimant’s name. Without disrespect, this submission is entirely without
C C
merit. Ultimately, the gravamen of the Defendant’s complaint on the
D Standing Issue was whether the Claimant was whom the Defendant engaged. D
This was a finding of facts that the Tribunal was entitled to make, to which
E E
this Court detects no error whatsoever.
F F
22. The Tribunal’s decision on the File Search Issue and his refusal
G G
of the Defendant’s application for time extension for the third time were
H matters in exercise of his discretion in case management. It has not been H
shown to be arguable that the relevant decision exceeded the generous ambit
I I
within which reasonable disagreement is possible and is in fact plainly wrong.
J J
23. For completeness, the Defendant cannot demonstrate from
K K
adducing the materials in the DCPI Action any error of law on the part of the
L
Tribunal. L
M M
E. Disposition
N N
24. For the reasons stated above, none of the matters raised by the
O Defendant disclose any arguable grounds of appeal. The application for O
leave to appeal is therefore dismissed.
P P
Q Q
R R
(Queeny Au-Yeung)
Judge of the Court of First Instance
S High Court S
T T
The Applicant appeared in person
U U
V V