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Small Claims Tribunal

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Before you start a claim

What work does the Tribunal do

The Tribunal deals with claims not exceeding $50,000. Although the Tribunal is a court, the rules and procedures are less strict than in most other courts, and no legal representation is allowed.

 

What is a “small claim”

A “small claim” is a claim for money involving $50,000 or less. The main types of claims handled by the Tribunal are:

  • debts
  • service charges
  • damage to property
  • goods sold
  • consumer claims

The Tribunal does not handle:

  • wages
  • possession of land
  • alimony
  • libel and slander

If your claim exceeds $50,000, you are not allowed to subdivide it to bring it within the Tribunal’s jurisdiction; however, you can abandon that part of your claim above $50,000 in order to bring a claim in the Tribunal.

What to consider before you start a claim

You should ask yourself the following questions before taking action in the Tribunal:

(1) Can I settle the disputes without going to court?

Court action should be your last resort. Before you start a claim in the Tribunal, you should consider if you may settle the matter with the intended defendant by other means. For example, you may negotiate an instalment payment with the intended defendant.

(2) Will I get my money?

Even if you win your case and obtain judgment in your favour, there is no guarantee that you will get your money automatically.

If the defendant is financially sound but refuses to comply with the judgment, you will have to take further action and incur further costs to enforce judgment.

If the defendant is financially unsound, e.g. unemployed, bankrupt or in liquidation, you may not get your money.

(3) What are the expenses?

You will have to pay various fees to the Tribunal at various stages of the case. Please approach the Tribunal Registry or browse into the Judiciary's website for details.

You may have to incur costs for travelling, wages in days-off and hiring experts, e.g. doctor, surveyor or mechanic, to prepare expert reports and testify in court.

The party who wins the case may be able to recover the above expenses.

(4) Can I afford the time?

The span of a case depends on a number of factors, including the complexity of the case and whether the parties comply with the Tribunal's directions punctually. Even if you win the case, you may have to spend more time to enforce judgment.

Things you should pay attention to if you decide to file a claim with the Tribunal

Tribunal staff can provide assistance on procedural matters only. They will not give you legal advice, e.g. they cannot tell you if you have a good claim or whom you should sue. If you wish to have legal advice, you should consult your own lawyer; however, legal costs incurred in small claim cases will not be recoverable even if you win the case.

You may be able to get free legal advice through Free Legal Advice Scheme of the Duty Lawyer Service at some District Offices. For details, you can call the Central Telephone Enquiry Centre of the Home Affairs Department. You can also refer to the website of the Duty Lawyer Service. The Free Legal Service Scheme of the Bar Association may also give you some help.

You should get full preparation for the proceedings. You have to note that civil litigation in the Tribunal may be a long-drawn battle, which will take months before the case is set down for trial and the Tribunal passes judgment. The pressure on the preparation of evidence will be tremendous.

The trial process in the Tribunal is, like other courts in Hong Kong, adversarial. In addition to presenting your own case to the Tribunal, you are expected to discredit the opponent's case through cross-examination. You should therefore make thorough preparation to accomplish these tasks. Please refer to paragraphs 4 and 5 in Pamphlet 5 “How to prepare for and conduct a hearing or trial” for details.

The business hours of the Tribunal (except public holidays) are:

Monday to Friday 9:00 a.m. to 1:00 p.m.
  2:00 p.m. to 5:00 p.m.
Saturday 9:00 a.m. to 12:00 noon

Arrangements of the Tribunal in case of bad weather

(i) Please refer to Typhoon and Rainstorm Warning Arrangements in the Judiciary website or radio/television announcements of the same.

(ii) You may also call the Small Claims Tribunal Registry at Tel. No. 2877 4068 during office hours to enquire about the arrangements.

Assistance you can get from this series of pamphlets

Its purpose is to introduce to the litigants the broad outlines of the civil proceedings in the Tribunal. It is designed to give information about the proper procedures of the proceedings, the manner the parties should present their case, evidence and other materials to the Tribunal.

It does not intend to be a summary of the civil practice at the Tribunal. It gives guidelines on the procedures generally. For details on the practice and procedure adopted in the Tribunal, you may refer to the Small Claims Tribunal Ordinance (Chapter 338, Laws of Hong Kong). The English and Chinese versions can be found on the website:
www.legislation.gov.hk/index.htm

This series of pamphlets includes the following:

Pamphlet 1 Before you start a claim
Pamphlet 2 How to start a claim
Pamphlet 3 What a defendant may do after receipt of the claim
Pamphlet 4 General points to note about small claims proceedings
Pamphlet 5 How to prepare for and conduct a hearing or trial
Pamphlet 6 Documents required in a small claim case
Pamphlet 7 Application to set aside, review and appeal
Pamphlet 8 How to enforce a judgment

The following is the contact details of various organizations which the parties may find useful to approach when handling a case in the Tribunal:

Judiciary
Website : www.judiciary.gov.hk
   
Small Claims Tribunal
Address : 4/F, Wanchai Tower, 12 Harbour Road, Hong Kong
Hotline : 2877 4068
Fax : 2587 9139 / 2877 0412
   
Interactive Voice Recording System of the Small Claims Tribunal
Tel : 2877 4068
   
Business Registration Office, Inland Revenue Department
Address : 4/F, Revenue Tower, 5 Gloucester Road, Hong Kong
Tel : 1878 088
Fax : 2824 1482
Website : www.ird.gov.hk
   
Companies Registry
Address : 13/F, Queensway Government Offices, High Block, 66 Queensway, Hong Kong
Tel : 2867 2571
Fax : 2596 0585
Website : www.cr.gov.hk
   
Duty Lawyer Service
Administration Office address : Room 2707-8, Gloucester Tower, The Landmark, 11 Pedder Street, Central, Hong Kong
Tel : 2526 5969
Fax : 2868 1754
Website : www.dutylawyer.org.hk
   
Central Telephone Enquiry Centre, Home Affairs Department
Tel : 2835 2500
   
Bar Association
Address : LG2, High Court Building, 38 Queensway, Hong Kong
Tel : 2869 0210
Fax : 2869 0189
Website : www.hkba.org
   
Official Receiver's Office
Address : 10/F, Queensway Government Offices, High Block, 66 Queensway, Hong Kong
Tel : 2867 2448
Fax : 3105 1814
Website : www.oro.gov.hk

The above is not an exhaustive list. There may be other organizations that may offer information or advice for the parties. Contact details are accurate only up to the date of printing.

 

How to start a claim

Search into the defendant's particulars

Before issuing a claim, the claimant should ascertain the full name of the defendant and his last known address.

If the defendant is a corporation (e.g. ABC Company Limited), the claimant should make a company search to obtain updated information about its name and its registered office. The claimant can obtain this at the Companies Registry.

If the defendant is a sole proprietorship (e.g. Chan Tai Man trading as XYZ Company) or a partnership (e.g. Chan Tai Man and Chan Siu Man trading as XYZ Company), the claimant should obtain ‘Business Registration Application’ of the defendant to ascertain its trade name and the principal place of business and/or the residential address of the proprietor or partners. The claimant can obtain this at the Business Registration Office of the Inland Revenue Department.

If the defendant is a corporation trading in a 'trade name' (e.g. ABC Company Limited trading as XYZ Company), the claimant should obtain both ‘Notice of Situation of Registered Office’ at the Companies Registry to fill in its registered office AND 'Business Registration Application' at Business Registration Office to verify its trade name.

The claimant should bring along such search results of the defendant to court at call-over for verification.

Filing of Forms 1 & 2

After collecting the above information of the defendant, the claimant should fill in Forms 1 and 2. The forms can be obtained at the Tribunal Registry. They can also be downloaded from the Judiciary's website or obtained by fax via the Interactive Voice Recording System of the Tribunal.

In Form 1 (Title to Claim: General Form), the claimant should fill in:

  • the full name(s) and address(es) of the person(s), corporation, sole proprietorship or partnership making the claim. Please note that the address should be a Hong Kong address. P.O. Box address and care of address are not acceptable.
  • the full name(s) and address(es) of the person(s), corporation, sole proprietorship or partnership of the defendant. Please note that the address should be a Hong Kong address. P.O. Box address and care of address are not acceptable.

In Form 2 (Form of Claim), the claimant should:

  • state the amount of the claim in Hong Kong Dollars
  • the reason of the claim
  • how the amount is calculated with breakdown
  • use a separate sheet of paper if necessary

If the claimant is an individual, the claimant should sign Form 2 personally. A partner should sign if the claim is made by a partnership. A director, company secretary or other authorised officer should sign if the claim is made by a corporation.

Forms 1 and 2 have to be filed at the Tribunal Registry in person. They cannot be filed by any other means such as post, fax or email. The claimant may appoint a representative to file the claim on his behalf.

Please note that if the claimant wishes to amend his claim particulars after filing Forms 1 and 2, he needs to apply in writing for permission to amend from the Adjudicator. After the Adjudicator has approved the application, the claimant needs to attend the Tribunal Registry again to make the amendment and pay the prescribed fee. To save time and costs, the claimant should make sure the information provided is correct at the time of filing.

Sample completed Forms 1 and 2 are displayed at the Tribunal Registry. They can also be downloaded from the Judiciary's website or obtained by fax via the Interactive Voice Recording System of the Tribunal. But please note that these sample forms are for reference only and are not meant to be exhaustive. They are not meant to be the samples that suit your case. You should make adjustments or variations to them to suit your own case. If you have any doubt, you should consult your own lawyer. The Judiciary cannot be held responsible for the content of these sample forms.

 

Filing fee

When the claim is filed, the claimant is required to pay prescribed filing fee.

The claimant may approach the Tribunal Registry or browse into the Judiciary’s website for details of prescribed filing fee.

Service of claim

After the claimant has filed his claim and paid the prescribed filing fee, the Tribunal Registry staff will give the claimant a Form 3 (Notice of Place and Day fixed for Hearing) showing:

  • the place, time and date of call-over
  • the court room number and address

The court bailiff will send copies of Forms 1, 2 and 3 to each defendant by ordinary post.

If the claim cannot be served on the defendant, the claimant will be asked at call-over to provide the defendant’s correct address, and if necessary, to verify it. If the claim still cannot be served, the Tribunal may allow other means of serving it. If, in the end, the claim still cannot be served, then the Tribunal cannot deal with the claim. So, it is very important for the claimant to make sure that the particulars of the defendant (such as name and address) is correct and updated at the time of filing the claim.

 

What a defendant may do after receipt of the claim

When a defendant agrees to pay whole/part of the amount claimed

Before call-over and before a statement of defence is filed

  • The defendant may, without permission of the Adjudicator, pay into court a sum equal to the claimed amount together with the claimant’s filing fee as costs. (i.e. where the claim does not exceed $3,000 at $20.00; where the claim exceeds $3,000 but does not exceed $17,000 at $40.00; where the claim exceeds $17,000 but does not exceed $33,000 at $70.00; where the claim exceeds $33,000 but does not exceed $50,000 at $120.00 AND Bailiff costs at $10.00 per each Defendant’s address.).
  • The said payment into court can either be made by cheque payments sent by post to the Tribunal, or in person or by a designated third party at the Accounts Office of the Tribunal at least 5 working days before the call-over date. Cheques should be crossed and made payable to "HKSAR GOVT". Please write down the claim number, the name of the defendant and the contact phone number at the back of the cheque. Please do not issue post-dated cheque. For enquiries, please contact our Accounts Office at 2582 5309.
  • Upon payment into court by the defendant, the Registrar of the Small Claims Tribunal (“the Registrar”) may remove the case from the call-over list or court list (as the case may be) and inform the parties by telephone, fax or mail. The Registrar shall arrange payment out of the sum paid into court to the receiving party by cheque.
  • The Registrar may elect not to remove the case concerned from the call-over/court list if doing so may result in possible unfairness to the other party. If so, parties are required to attend court as scheduled and monies will be withheld in the Tribunal pending further order of the court.

After call-over or after a statement of defence is filed

  • Before a defendant can make payment into court, he must apply in writing by filling out an application form obtainable at the Tribunal Registry, specifying the amount of the proposed payment in and whether it is in full or partial satisfaction of the claim.
  • The defendant must also state whether costs, if any, is included in the proposed payment.
  • A hearing date will be arranged and a copy of the defendant’s application will be forwarded to the claimant with the notice of hearing. A consent form will also be delivered to the claimant. If the claimant wishes to accept the defendant’s payment into court as full and final settlement of his claim, the claimant can sign the form and return it to the Tribunal. Parties will not have to attend the scheduled hearing when so informed by the Tribunal.
  • At any time, the Adjudicator may make such order as he deems fit.

 

When a defendant agrees to pay but asks for time to pay or payment by instalments

The defendant will have to apply to the Tribunal at call-over for time to pay or for payment by instalments.

To support his application, the defendant must provide a table showing his income and expenditure per month. The defendant must also provide all documentary evidence to support his application, e.g. bank statements, tax returns, audited report, etc.

When a defendant disagrees with whole/part of the claim but does not have a counterclaim

The defendant should file a defence with the Tribunal Registry (please mark 'defence' on the envelope) and send the claimant a copy of the same well in advance of the call-over date.

A defence is a document setting out whether the defendant disputes liability and/or the amount of claimant’s claim; and if so, why. The defendant has to reply to each and every allegation of the claimant as stated in the claim form paragraph by paragraph.

When a defendant disagrees with the claim and has a counterclaim

  • The defendant should not only file with this Tribunal Registry and serve on the claimant his defence as mentioned in paragraph 3 above, but should also file his counterclaim with the Tribunal Registry.
  • A counterclaim is a counter-document filed by a defendant who, in addition to seeking to defend against a claim, wishes to make his own separate and independent claim against the claimant for some causes of action related with the claim, or flowing from the facts contained in the claim. A counterclaim will be heard at the same time as the trial on the claim.
  • If a defendant wishes to file his counterclaim, he must fill in and file Form of Counterclaim with the Tribunal Registry in person or by his representative. Filing of the counterclaim by any other means such as post, fax or email is not acceptable.
  • Prescribed filing fee is required to be paid. The defendant may approach the Tribunal Registry or browse into the Judiciary’s website for details.
  • After filing the counterclaim, the defendant is required to serve a copy of the same on the claimant himself by post.

When a defendant ignores the claim

If the defendant does not appear at call-over, the claimant may apply for judgment against the defendant provided he can satisfy the Tribunal of the claim and that the notice of hearing has been served on the defendant.

 

General points to note about small claims proceedings

What kind of hearings will there be from the beginning to the end of a case

In general, from the beginning to the end of a case, the proceedings can be divided into three stages, namely, call-over, mention hearing(s) and trial.

In addition, there are other subsidiary hearings, e.g. hearing for application to set aside or review an award or order of the Tribunal.

For detailed explanations on those proceedings, please refer to the Pamphlets 5 and 7, namely "How to prepare for and conduct a hearing or trial" and "Application to set aside, review and appeal".

 

Who should attend the hearings

Both claimant and defendant should attend all hearings.

If the party is a corporation, an officer of the corporation properly authorised by a letter signed by the director or company secretary and affixed with company chop may attend. If the party is a sole proprietorship or a partnership, the sole proprietor or a partner properly authorised by a letter should attend.

If the party is an individual and wishes his representative (other than counsel or solicitor) to attend the hearing, the party should apply for permission from the Tribunal. Unless the application is supported by good justified reasons and evidence, the Tribunal may not allow such application. Unless the party has the Tribunal’s permission, the party should attend the hearing in person; otherwise the Tribunal may, in the absence of the party, dismiss the party's claim (if the party is the claimant ) or enter default judgment against the party (if the party is the defendant).

A representative of the party (but not counsel or a solicitor) may attend provided that:

  • the representative can produce a letter of authorization signed by the party;
  • permission is obtained from the Tribunal; and
  • the representative is fully familiar with the case.

At trial, in addition to the parties and/or their representatives allowed by the Tribunal, all witnesses from whom the parties wish to adduce evidence should attend.

If neither the claimant nor his representative appears in person at the time fixed for the hearing, the claimant's claim may be dismissed.

If neither the defendant nor his representative appears in person at the time fixed for the hearing, the claimant may apply to enter judgment against the defendant. In such event, if it appears that the claim forms and notice of hearing have been properly served on the defendant and the claimant can provide sufficient evidence to prove his claim, the Adjudicator may enter default judgment against the defendant.

 

Application for adjournment

Any application for adjournment should be made as soon as the necessity arises so as to enable the Tribunal to consider the application and attend to any follow-ups, including notifying the outcome of the application to the parties.

Unless with good justified reasons (business reasons or holidays are usually not accepted as good reasons) and evidence, the Tribunal may refuse the application. Please bear in mind that arising out of the application for adjournment, it is possible for the Adjudicator to award costs to the other party.

There is no standard format for making an application to adjourn the case. Applicant may send in a letter, specifying the claim number, the court number, the hearing date, the contact phone number as well as the reasons in support of the application. It is desirable that the application is supported by documentary proof such as the consent letter of the other party. Application would be submitted for the Adjudicator’s direction. Applicant would be notified of the outcome as soon as possible. If the application is granted, the other party will also be notified of the adjournment by the Tribunal.

 

Application for amendment to claim or counterclaim

A claimant may amend his claim or a defendant may amend his counterclaim at any stage before judgment is given. But permission from the Adjudicator to amend is required before amendment can be made.

A party should first write out his proposed amended claim or amended counterclaim and then send a copy each to the Tribunal and to the other party. The Adjudicator will then decide whether the proposed amendment will be allowed with or without holding a hearing.

If permission to amend is granted, the party must attend the Tribunal Registry to amend his claim or counterclaim in person and pay the prescribed fee each time he amends his claim or counterclaim. Amendment to the claim or counterclaim cannot be made by any other means such as post, fax or email.

If further mention hearings are required as a result of any amendment to the claim or counterclaim, the party proposing the amendment may have to bear the costs of that hearing to the other party. To avoid unnecessary costs, a party should make sure his claim or counterclaim particulars are correct at an early stage.

 

Discontinuance of claim or counterclaim

At any stage before the Adjudicator gives his judgment, a claimant may discontinue his claim or a defendant his counterclaim by filing a Notice of Discontinuance of Claim or Notice of Discontinuance of Counterclaim. Parties may approach the Tribunal Registry for the relevant forms. They can be downloaded from the Judiciary’s website or obtained by fax via the Interactive Voice Recording System of the Tribunal.

If the claimant chooses to discontinue his claim before call-over, permission from the Adjudicator to discontinue the claim is not required. The claimant is only required to fill in the relevant form, send it to the Tribunal and serve a copy to the defendant.

If the claimant chooses to discontinue his claim or the defendant his counterclaim after call-over, permission from the Adjudicator is required. Unless permission is granted and the hearing date is vacated by the Tribunal, parties must attend the hearing as originally directed or scheduled.

 

Execution of Judgment

It is important to note that if a party is awarded a judgment in his favour but the party who loses the case refuses to comply with the judgment, the winning party may have to commence enforcement proceedings against the losing party. The Tribunal will not take initiative to enforce the judgment for the winning party, i.e. the Tribunal will not chase the losing party to pay the judgment sum to the winning party.

For details on how to enforce a judgment, please refer to Pamphlet 8 "How to enforce a judgment".

 

Emails

Filing of documents, including claim or counterclaim, defence, reply, witness statement and/or all other relevant documents by email is not acceptable.

Enquiry and/or application of any kind in relation to any specific case by email is not acceptable, either. Such enquiry or application must be made in writing and duly signed and dated by the party to the proceedings. Such enquiry and/or application must be sent to the Tribunal well in advance so as to allow the Adjudicator sufficient time to consider and reply to the same.

 

The evidence and burden of proof

Each party to the proceedings must collect evidence to support his case. Generally speaking, the burden of proof is on the party who makes the allegation. But this is always subject to the directions of the Tribunal, which may order the other party to adduce the evidence. Evidence can be in various forms, including oral evidence from witnesses, documents, photographs, audio or video tapes or discs or electronic data contained in any tapes or discs etc.

It is advisable for the claimant to obtain all evidence, in particular, written statements from the witnesses at an early stage. The defendant should likewise prepare witness statements after receiving the claimant’s claim.

 

How to prepare for and conduct a hearing or trial

How to prepare for the call-over

You should make arrangements to set aside at least half a day or more for attending the call-over.

If you appoint a representative, ensure he is familiar with the facts of the case.

As a claimant or a defendant, you or your representative should bring along at least the following documents (as applicable) at the call-over:

  • All documents you have filed with the Tribunal and received from the other party.
  • All original documents which support your claim or defence (as the case may be) but have not been filed or served, and 2 sets of photocopies for filing with the Tribunal and service on the other party.
  • If you appoint a representative, a proper letter of authorization. For details about appointing a representative, please refer to paragraph 2 of Pamphlet 4 "General points to note about small claims procedings".
  • If you are a corporation, a copy of the updated Annual Return (obtainable from the Companies Registry).
  • If you are a firm, a copy of the Business Registration Application (obtainable from the Business Registration Office).

In addition, the claimant should also bring along the following documents (as applicable) at the call-over:

  • If the defendant is a corporation, a copy of the defendant’s Notice of Situation of Registered Office (obtainable from the Companies Registry).
  • If the defendant is a firm, a copy of the defendant’s Business Registration Application.
  • If the defendant is a corporation trading in a ‘trading name’, a copy of both Notice of Situation of Registered Office and Business Registration Application.

What happens at the call-over

Please report to the Tribunal Officer inside the courtroom specified in the Notice of Place and Day fixed for Hearing. The Tribunal Officer will interview you to deal with preliminaries, which may include:

  • classifying a case as defended or undefended;
  • helping to bring about a settlement (on a voluntary basis); and
  • identifying the main issues in dispute if a settlement is not reached.

Remember that the Tribunal Officer cannot give you legal advice.

It is the duty of both the Adjudicator and the Tribunal Officer to attempt to mediate the dispute. If the parties agree to settle, the Tribunal Officer will submit the settlement to the Adjudicator for a consent order. The consent order will be sent to the parties by mail.

When the dispute cannot be settled, directions will be given for the future conduct of the case, e.g. for the filing and service of:

  • defence and counterclaim (if any) by the defendant;
  • reply and defence to counterclaim (if any) by the claimant;
  • witness statements; and
  • other supporting documents such as surveyor's reports or photographs.

The case will be adjourned to another date for mention. All parties should comply punctually with such directions. If the directions are not complied with, the claim may be dismissed or a judgment entered against the defendant without trial. Costs may also be ordered against the party in default.

Claims inappropriately commenced in the Tribunal may be transferred to other courts or tribunals either at the call-over or at any subsequent stage of the proceedings.

If, during the call-over or at any subsequent stage of the proceedings, the defendant lodges a counterclaim which exceeds or which does not fall within the jurisdiction of the Tribunal, the whole case, i.e. claim and counterclaim, will be transferred to the appropriate court or tribunal.

 

What happens at a mention hearing

Mention hearings are hearings after the call-over but before trial. Depending on the complexity of the case and on many other factors, including the readiness of the parties in complying with directions given by the Tribunal in preparing the case for trial, there may be more than one mention hearing before trial.

At the mention hearing, the Adjudicator may:

  • inquire into the dispute of the case;
  • explain the law relating to the case to the parties;
  • inform parties whom they might consider calling to give evidence; and
  • direct parties on how to prepare for the trial, including directing the parties to exchange witness statements and other supporting documents before a specified date (if you do not comply with the Adjudicator's direction, you may lose your case and/or lose costs to the other party).

In order to ensure the mention hearing is constructive, all parties should get themselves familiar with the latest development of the case. They are also required to bring along all documents they have filed with the Tribunal and received from the other party as the Adjudicator may refer to those documents during the hearing.

At each mention hearing, the Adjudicator will review with the parties as to whether they have collected sufficient evidence in support of their respective cases. The Adjudicator may fix a date for trial only if all parties confirm that they have no further evidence to produce.

The Adjudicator may ask the parties whether they are willing to settle. It is proper for the Adjudicator to actively help and encourage the parties to settle. If the parties are willing to settle, the Adjudicator will make an order.

 

How to prepare for a trial

When the Adjudicator fixes a date for trial, the parties should have had an idea of what witnesses to call and what witness statements and other documents they wish to rely on at trial. The parties should make careful notes of all evidence they wish to adduce at trial so that nothing important will be left out. The parties should also make sure their respective witnesses will attend trial on the trial date. Before trial, the witnesses should refresh their memories of what they have stated in their witness statements.

If any witness is unwilling to attend trial, the party may apply to the Adjudicator for leave to take out a witness summons to secure such witness’ attendance. Such application should be made at least 3 weeks before the trial date. A form for such application (Form 409-S) can be obtained from the Tribunal Registry. Prescribed witness expenses will have to be paid by the applicant.

Each party should peruse all the witness statements and documents served on by the other party in order to fully understand what the other party’s case is and what evidence his witnesses will give. After perusal of those documents, each party should formulate his line of cross-examination on each of the other party’s witnesses.

 

What happens at a trial

All parties and their witnesses must attend the trial. If the claimant is absent, the Tribunal may strike out the claim. If the defendant is absent, the Tribunal may enter judgment in his absence provided that the claimant can prove the case.

Witnesses will give oral evidence on oath or affirmation. A witness who is found not to have told the truth in court may be liable to criminal prosecution and imprisonment.

The claimant and/or his witnesses will give evidence first. Thereafter the defendant and/or his witnesses will give evidence. The giving of evidence by a witness is broadly a three-stage process:

  • Examination-in-chief
    This is the stage where the witness gives the Tribunal an account of facts which he thinks relevant
  • Cross-examination
    At this stage, the witness will answer questions put by the other party.
  • Re-examination
    After cross-examination, the party who calls the witness may put questions to the witness to clarify the matters raised in the cross-examination only.

As all parties will have a chance to question their own witnesses and those of the other party, taking notes on the evidence given by witnesses will help you prepare your questions.

After all witnesses have given evidence, the parties may make final submissions. Making of final submissions is optional. It is not evidence giving but to highlight the strength or weaknesses of the evidence given by the witnesses for the Adjudicator’s consideration.

The Adjudicator may deliver judgment at the end of the trial or on a later date if the issues involved are complicated. If the Adjudicator thinks it is necessary for the parties to provide further evidence, the trial will be adjourned to a later date.

 

Behaviour at hearings

At any hearing in the Tribunal, if a person behaves in an insulting or threatening manner, or wilfully interrupts the hearing, the Adjudicator may summarily sentence that person to a fine of $10,000 and imprisonment for 6 months.

 

Documents required in a small claim case

Witness statement

Witness statement is the usual form of evidence in civil proceedings. It should contain an account of the facts the witness will give as evidence in court. The facts contained in the witness statement should be within the personal knowledge of the witness; otherwise, the Adjudicator may refuse to admit them as evidence or give little or no importance to them even if they are admitted as evidence. (For example, you want to prove how a traffic accident took place. However, you were not there when the accident occurred. At trial, you relate to the Adjudicator what others had told you about how it happened. Such evidence does not come from your personal knowledge and therefore is unlikely to be admitted by the Adjudicator as evidence.)

The party may wish to present to the Tribunal events happened on different occasions encountered by different witnesses. In that case, it is necessary to prepare a number of witness statements, each of which should contain an account of facts the statement maker, i.e. the witness, has personal knowledge.

Since a witness is an individual who has personal knowledge of the relevant facts, a witness statement should be a statement of an individual witness. A corporation or a firm is not an individual and thus not capable to make any witness statement.

If a party is a corporation or a firm, its witness statement(s) should be given by its officer(s), employee(s) or any other individual(s) who has/have personal knowledge of the relevant facts.

Usually the claimant and the defendant may wish to give evidence in court themselves. In that case they should prepare their own witness statements. Where there are other witnesses who will give evidence in court at trial, statements of those witnesses should also be prepared.

Witness statement should be concise in style but comprehensive in contents, covering all the facts relevant to the claim/ counterclaim and the disputes. Blank witness statement form can be obtained at the Tribunal Registry. It can also be downloaded from the Judiciary's website or obtained by fax via the Interactive Voice Recording System of the Tribunal.

It is advisable that in the witness statement, the facts should be set out in a chronological order with separate numbered paragraphs.

The witness should sign at the end of his statement with his name on it.

 

Expert witness

There are occasions where a claim or counterclaim involves technical issues outside the Adjudicator’s knowledge, e.g. the reasonable cost of repairing a damaged vehicle or what the accepted quality standards are for particular goods or services. In such event, appointing an expert to prepare a witness statement or an expert report may be necessary. However, it can be expensive. You may see fit to ask the Adjudicator for advice if you are not sure whether the help of an expert is needed.

The basic requirements set out in paragraph 1 above are applicable to the statement of an expert witness.

 

Photographs

In some cases, parties may wish to produce photographs or sketches. Strictly speaking, the makers of those photographs or sketches are required to give evidence that those photographs or sketches were taken or prepared by them. However, if the other party does not insist on production of those photographs or sketches by their makers, calling of the makers can be dispensed with.

Please refer to paragraph 5.2 below for requirements for filing and serving coloured copy of photographs.

 

Other documents

If a party wishes to rely on other documents, e.g. invoices, receipts, letters, etc., he has to consider calling the witness who has personal knowledge of the contents contained in those documents to give evidence. In this connection, please refer to paragraph 1.1 above. Preferably such witness will give a witness statement explaining the contents and significance of those documents.

 

Copy documents to be filed with the Tribunal and served on the other party

Copy of all witness statements and other documents the parties wish to rely on should be filed with the Tribunal in accordance with the directions/orders given by the Tribunal. In addition, an identical copy of those documents filed with the Tribunal should also be served on the other party at the same time. Original of those documents should be kept by the filing party but they should be ready for inspection by the Tribunal or the other party at any hearings or trial.

Where a document is coloured and the coloured part carries significance, you should file with the Tribunal and serve on the other party coloured copy of that document. For example, if you wish to rely on photographs (normally coloured, not black and white), copy of those photographs should be given to the Tribunal and the other party. Photographs should be affixed on A4 size paper and numbered.

 

Pagination

As the case goes along, more and more witness statements and documents will be filed and served by the parties. It is a good practice to paginate them as a whole so that when you refer to the pagination of a particular document, the Adjudicator and the other party can easily identify the same document.

For the claimant’s documents, the pagination should start with "C" so that the first page is"C1", the second page is "C2", etc. For the defendant’s documents, it should start with "D" so that the first page is “D1”, the second page is “D2”, etc.

 

Application to set aside, review and appeal

Application to set aside

If a claimant is absent from any hearings or at trial, his claim may be struck out for want of prosecution.

If a defendant is absent from any hearings or at trial, default judgment may be entered for the claimant.

In either of the above situations, the absent party may apply immediately to set aside the order of striking out or the order of default judgment with the Tribunal. He can do so by completing and filing Form 8D "Application to Set Aside an Award / Order" and set out the reasons for absence with supporting proof.

A hearing will then be fixed by the Tribunal to deal with this application. In the said hearing, the Tribunal may:

  • allow the application unconditionally or with condition, e.g. payment of the claimed sum or counterclaimed sum (where applicable) into court; or
  • dismiss the application.

It should be noted that whether the Tribunal allows the application to set aside or not, the defaulting party will usually be ordered to pay costs of that hearing to the non-defaulting party.

Form 8D can be obtained from the Tribunal Registry. It can also be downloaded from the Judiciary’s website or obtained by fax via the Interactive Voice Recording System of the Tribunal.

If a claimant's claim was struck out solely due to his absence, the claimant may file a new claim instead of applying to set aside the order.

 

Procedures on Review & Appeal

If any party is not satisfied with the order or judgment of the Adjudicator, he may:

  • apply to the Tribunal for review; or
  • apply to the Court of First Instance of the High Court for leave to appeal.

Applying to the Tribunal for review

If a party opts for a review, he should complete and file Form 8C "Application for Review of an Award / Order by a Party" ("8C Application") and set out his full and complete reasons. He must do this within 7 days after the date of the court order or award has been made. The time limit must be observed strictly. Form 8C can be obtained from the Tribunal Registry. A prescribed fee is required to be paid.

After the party has filed the 8C application, an Adjudicator, normally the same Adjudicator who presided over the trial, will hear the application.

If the party is not satisfied with the result of the review, he may apply to the Court of First Instance of the High Court for leave to appeal.

Applying to the Court of First Instance of the High Court for leave to appeal

If a party opts to appeal, he must first apply for leave to appeal within time limit by filing Form 9 with the Registrar of the High Court. The time limit is either (i) within 7 days after the date the written award or order is served on him; or (ii) if, within the same 7 days, he applies to the Tribunal for written reasons for the award or order, 7 days from the date the reasons are served on him. The Registrar of the High Court may extend this time limit on good cause.

Form 9 can be obtained from the Clerk of Court’s Office of High Court.

Parties may engage lawyers to conduct the appeal.

It should be noted that leave to appeal will not be granted unless the appeal involves a question of law, or the claim/ counterclaim is outside the jurisdiction of the Tribunal. The Court of First Instance has no power to reverse or vary what the Tribunal has determined on questions of fact. Refusal by the Court of First Instance to grant leave to appeal is final.

 

Review or Appeal

The following table may help you decide whether to apply for a review or for leave to appeal.

Review Appeal
  • The forum is the Tribunal.
  • The forum is the Court of First Instance.
  • Review will normally be heard by the same Adjudicator who presided over the trial.
  • The appeal will be heard by a Judge of the Court of First Instance.
  • No legal representation is permitted.
  • Parties may engage lawyers to conduct the appeal.
  • Costs are generally insignificant.
  • Legal costs can be substantial.
  • The Adjudicator is not bound by his previous finding of facts.
  • The Judge has no power to reverse or vary the Tribunal's finding of facts.
  • Appeal is to the Court of First Instance.
  • Further appeal is to the Court of Appeal.

 

How to enforce a judgment

How can a judgment be enforced

After a winning party has obtained a judgment for payment of money from the Tribunal, he may apply to the Bailiff's Office of the Judiciary through the Tribunal for enforcement by way of a Writ of Fieri Facias ("FiFa"), if the judgment is not complied with.

It is very important to note that no one can guarantee that an attempt for enforcement will be successful and an applicant for enforcement has to pay a deposit and expenses in advance when an application is filed. Therefore, an applicant should carefully consider his own position before submitting an application for a Writ of FiFa.

 

Application procedure

To enforce a judgment, the winning party may apply at the Tribunal Registry for a Writ of FiFa. A bailiff is directed to levy execution on the goods and possessions of the judgment debtor (i.e. the losing party) to a sum equal to the judgment plus the incidental expenses of execution. The bailiff will seize and sell the judgment debtor's goods by public auction if payment is not made into court. The proceeds will then be used to pay the money due to the winning party after defraying the necessary court charges.

The Registry staff will give the winning party an application form (called "a praecipe") and a writ. The winning party has to fill in the particulars of the judgment debtor and the amount of money the winning party wishes to recover. After completing these papers, the winning party is required to pay a deposit and bailiff’s expenses. After the writ has been signed by the court, which usually takes 3 working days, it will be passed to the Bailiff's Office for execution.

The winning party is encouraged to accompany the bailiff when he goes to execute the Writ of FiFa. The winning party has to make an appointment with the bailiff in advance for this purpose.

The first attempt for execution is normally made about 10 working days after receipt of the Writ of FiFa by the Bailiff's Office.

 

The execution process

On the date of execution, a bailiff, together with watchmen, will visit the premises of the judgment debtor. If there are sufficient goods and possessions to justify a seizure, the bailiff will do so up to the amount endorsed on the writ, plus the estimated fees for execution. After making out an inventory of all the items seized, he will give one copy to the watchmen who are responsible for keeping watch over the items to ensure that they will not be tampered with or removed unlawfully.

The existing practice is for the judgment debtor to be given a grace period of 5 working days to settle the debt. If the judgment debtor does not pay within the grace period, the bailiff will conduct a sale by public auction of the goods seized. The proceeds of the sale will be paid to the winning party by cheque after deducting watchmen’s fees and incidental expenses.

If the bailiff attends the premises of the judgment debtor and finds no or insufficient goods to justify a seizure, the bailiff will not proceed with the execution. The winning party should write back to the Bailiff’s Office with further instructions within 14 days from the date of execution. If the winning party accompanies the bailiff on the visit, he will be able to give instruction on the spot.

Points to note:

  • Costs are incurred each time the bailiff and watchmen attempt to execute the writ.
  • If execution is successful, the costs will be defrayed from the proceeds of sale and the deposit returned to the winning party.
  • If execution is unsuccessful, the costs of the attempt or attempts will be deducted from the deposit and the balance returned to the winning party. The more attempts are made, the more costs will be incurred.
  • If the winning party asks the bailiff to make several attempts, the winning party may have to pay a further deposit.
  • The costs of trying to enforce a judgment can be substantial. The winning party should think carefully before proceeding. If the winning party is aware that the judgment debtor has no goods or assets to be seized, there is little point in pursuing the matter.
  • It is not possible to obtain money from a penniless judgment debtor. Some judgments cannot be enforced.
  • In execution of the Writ of FiFa, the bailiff has no power to break into domestic premises. Therefore when attempting execution, if there is no one to answer the door or if the occupier refuses to let the bailiff enter the premises in question or if there is difficulty in confirming whether the goods and possessions in the premises belong to the judgment debtor, the attempted execution would fail and there is nothing that this Tribunal could help in this regard. Under such circumstances, the winning party should seek legal advice and consider other alternatives to enforce the award or order.

 

Enquiries on execution matters

To ensure successful execution of the Writ of FiFa, it is essential that the winning party gives the Bailiff's Office the correct address of the judgment debtor. If the winning party wants to find out what progress has been made in the execution of the Writ of FiFa, he can contact the Bailiff's Office at 2802 7510.

 

Small Claims Tribunal - Level of Fees

Filing of Claim/Counterclaim and Summons $
   
- where the claim does not exceed $3,000 20.00
- where the claim exceeds $3,000 but does not exceed $17,000 40.00
- where the claim exceeds $17,000 but does not exceed $33,000 70.00
- where the claim exceeds $33,000 but does not exceed $50,000 120.00
   
Summons and copy, including service, each witness 33.00
   
Application for review 61.00
   
Application for leave to appeal 61.00
   
Copies, Certification and Search  
   
Copy of any document (including written award or order) made in the Tribunal Registry and certifying the same (per page) 5.50
   
Copy of any document (including written award or order) made in the Tribunal Registry (per page) 4.00
   
Photostatic copy of document made in the Tribunal Registry and certification -  
- for each page or portion of a page 5.50
- for each page or portion of a page exceeding in size 210 mm x 297 mm Such additional fee as the Registrar may fix
   
Translation of any document made in the Tribunal Registry and certificate (per page) At the discretion of the Registrar
   
Certifying translation made elsewhere 20.00
   
Every search in the Tribunal Registry for each register, file or document 18.00
   
Bailiff Expenses  
   
Transportation or conveyance expenses and overtime, according to distance and time (to be paid in cash) Actual expenditure plus 20% being administrative charges
   
Taking Evidence  
   
Attendance of any Government official to produce or prove in the Tribunal any record or document called for by any party other than the HKSAR Government 61.00
   
Attendance of any Government official to give any other evidence in the Tribunal -  
(a) when called as an expert At the discretion of the Registrar
(b) when not called as an expert (per hour) or portion of an hour of attendance 61.00
   
Filing any affidavit or declaration (other than affidavit or declaration of a bailiff of Court) (including administering any oath or taking any declaration in the Registry) (L.N. 315 of 1992) 121.00
   
Miscellaneous  
   
Filing any notice or document in the Tribunal not hereinbefore referred to (other than a notice or document expressing an intention not to proceed with a claim or defence) 55.00
   
Sealing any document in connection with proceedings in the Tribunal not hereinbefore referred to 55.00
   
Any other matter or proceeding not hereinbefore referred to and for which no fee has been specified herein Such fee as the Registrar may fix
   
Amendment of claim forms (per amendment application) 20.00
   
Bailiff to deliver claim documents (per address) 10.00
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