Mg Charter Ltd v. Beijing Caissa International Travel Service Co Ltd

HCA 1635/2012 and HCCL 7/2014
(Consolidated)

[2020] HKCFI 2493

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1635 OF 2012 AND

COMMERCIAL ACTION NO 7 OF 2014

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BETWEEN

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(Consolidated by the Order of the Honourable Madam Justice Mimmie Chan dated 2 March 2015)

Before:  Deputy High Court Judge William Wong SC in Chambers

Date of Hearing and Decision:  21 September 2020

Date of Reasons for Decision:  25 September 2020

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REASONS FOR DECISION

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1.This Court made a set of directions in relation to expert evidence in these proceedings on 27 December 2019 and gave its detailed reasons on 6 January 2020 (the “Reasons for Decision”).

2.In paragraph 19 of the Reasons for Decision, this Court stated that:

“Proposed question 3 is agreeable to both parties after it is clarified that the CAAC approval refers to slot approval.”

3.Parties have since filed their expert reports and a joint statement dated 16 June 2020 (the “Joint Statement”). 

4.In the Joint Statement, Mr Zhao Peng, expert for the Defendant opined that in relation to SITATEX message [PLOD-(19)]:

“15. MEGA would have needed a similar approval from CAAC if they want to operate other flights in the Third Rotation.”

5.Mr Gary Wong, expert for the Plaintiff, does not express any views on this paragraph. The Plaintiff’s case is that the question is irrelevant and unnecessary as far as the pleadings and evidence in these proceedings are concerned.

6.This prompted the Defendant to take out a summons dated 11 August 2020 (the “Summons”) seeking an order that an additional question on aviation industry matters be answered by expert witnesses and that the Plaintiff’s expert be at liberty to opine on such additional question by way of supplementary report to be served and filed within 14 days. The additional question is in relation to SITATEX message [PLOD-(19)]:

“Did MEGA need to get a CAAC approval similar to this message in order to be able to perform the Third Rotation in July 2012?”

7.First, it is immediately apparent to this Court that the Defendant’s expert, Mr Zhao, has already expressed a view on that very question though he has not further elaborated on why that was the case and his basis of saying so. For example, according to which rules and/or regulations etc..

8.One of the terms of the application is to give a liberty to the Plaintiff to file a supplementary expert report to address that very issue. However, from the parties’ correspondence, it is clear to the Court that the Plaintiff does not consider that issue or question to be relevant and/or necessary and decides not to seek leave to file any supplementary expert report. In the circumstance, it is rather academic for the Court to grant a liberty to which the Plaintiff expressly stated to be unnecessary. The Court cannot force a liberty upon the Plaintiff.

9.Secondly, it is not entirely clear to this Court at this stage as to what does Mr Zhao means by approval similar to SITATEX message [PLOD-(19)]. I sought clarification from Ms Pang acting for the Defendant and she kindly told this Court that it means general CAAC approval for the Third Rotation in July 2012 and not just a slot approval.

10.Ms Chan for the Plaintiff submitted that a general CAAC approval, rather than slots approval, is not pleaded and not covered in the filed evidence. She further submitted that a general CAAC approval was proposed as an expert question in the last hearing on 27 December 2019 and the parties then clarified that by CAAC approval, it meant slot approval as recorded in paragraph 19 of the Reasons for Decision and hence the Defendant cannot re-litigate this issue.

11.Ms Pang for the Defendant submitted that the issue of a general CAAC approval was raised in relation to the SITATEX message [PLOD-(115)] rather than SITATEX message [PLOD-(19)]. However, this is a rather restrictive way of understanding the issues that were determined at the hearing on 27 December 2019. At the hearing, in relation to SITATEX message [PLOD-(115)], the question of “is this message a CAAC approval of MEGA to perform the Third Rotation in July 2012?” was raised and then clarified to mean slot approval because CAAC has many different types of approval.

12.If the Defendant would also like to raise the same issue in relation to SITATEX message [PLOD-(19)], it would have met with the same objection and qualification. This is not to mention that the Defendant chose not to mention the same at the hearing on 27 December 2019.

13.Hence, I am of the view that there are merits in the Plaintiff’s submissions that this matter has been determined by this Court and should not be re-litigated.

14.Having said that, the Court is primarily interested in resolving the real disputes between the parties. If this new issue or question is really important, the Court in the interest of justice and fairness, should have allowed this question to be raised and answered by the experts. In §22 of my Reasons for Decision, I said:

“…In any event, if the Defendant sees fit to have supplemental questions to be addressed by the experts after all the pleadings and witness statements have been finalized, the Defendant could have taken out a proper application at that stage.”

15.The key question is thus, whether the proposed new question is a relevant issue to be determined at the trial. In §13(1) of the Reasons for Decision, this Court stated:

“For “approvals”, the Defendant’s case is that the 8 March 2012 SITATEX message only evidences discussions between MEGA and CAAC, and does not evidence a slot approval by CAAC to fly the Third Rotation in July 2012 (see Re-Re-Amended Defence §23(f)(i)(3).”  (Emphasis added.)

16.I am of the view that Ms Chan for the Plaintiff is right that the disputed issue is slot approval rather than some general approvals.

17.Paragraph 23(f)(i)(3) of the Re-Re-Amended Defence pleads, inter alia, that:

“An approval from the CAAC would expressly state that the airline’s application was “approved” (see, for example, item C7/12 in the Plaintiff’s List of Documents concerning subsequent flights.”

18.Item C7/12 is a SITATEX message dated 28 January 2013.

19.In George Weinmann’s witness statement at §§22-26, he states that CAAC grants a host of approvals including the operating permit, operations specifications, seasonal operation approval, and slot approval. There is no evidence from the Defendant disputing the same.

20.What is not clear to this Court, at the present stage, is first, if the SITATEX messages, or any one of them, amount to slot approval and presumably MEGA could not have obtained approval to fly the Third Rotation unless it has obtained slot approvals to fly during July 2012, then what does the new or additional question add to the analysis. Conversely, if none of the SITATEX messages amounts to slot approval for the Third Rotation, then it appears to this Court that the additional question would not be necessary.

21.Paragraph 24 of Mr Gary Wong’s Export Report states that the SITATEX message dated 8 March 2012 confirmed the slots granted to MEGA to operate flights between Male in the Maldives and Beijing, China during the summer 2012 season (running from 25 March 2012 to 27 October 2012). He also opined at paragraph 25 of his report that based on the SITATEX message of 8 March 2012, MEGA was granted slots to operate flights no. 5M 188 and 5M 189 from 25 March 2012 to 27 October 2012. No doubt his expert evidence will be explored at the trial.

22.Finally and fundamentally, this Court is not precluding Mr Zhao to give evidence on any of matters as set out in his expert report and the Joint Statement. I have made it clear to the parties that the Plaintiff is entitled to challenge Mr Zhao’s evidence (§12 of his Expert Report and §§5 and 15 of the Joint Statement) if it considers the same to be necessary and/or relevant. It can also ignore them if it considers to the same to be unnecessary and/or irrelevant. Similarly, the Defendant can also cross-examine Mr Gary Wong on §12 of Mr Zhao’s Expert Report and §§5 and 15 of the Joint Statement. Mr Gary Wong could either explain to the trial judge why the same are irrelevant and/or unnecessary or to his knowledge whether Mr Zhao’s statements are accurate or not.

23.The Plaintiff is at liberty to decide how to conduct its case. It could out of abundance of caution file a supplementary report to deal with Mr Zhao’s evidence on the new issue or it could take the view that the same are irrelevant and/or necessary.

24.I would like to stress that it is up to the trial judge to decide, in view of the evidence then before him or her, what are the relevant issues to be determined at the trial. The trial judge might well come to the view that the new issue raised is relevant and then the Plaintiff would have to deal with it according to the evidence, expert and otherwise, that it decides to adduce before the trial judge. It is a professional judgment call on the part of the Plaintiff and its legal team. This Court is not going to impose an obligation on the part of the Plaintiff to adduce evidence which it considers to be irrelevant and/or unnecessary.

25.Mr Zhao’s evidence on this new issue is covered in his expert report and the Joint Statement. I do not see it is proportional and/or right to direct the Plaintiff to spend more legal resources on matters which it considers to be irrelevant and/or unnecessary. It has the carriage of its own proceedings.

26.For all the reasons stated above, I dismiss the Summons and grossly assessed the costs to be paid forthwith by the Defendant to the Plaintiff in the sum of HK$75,000.

27.Finally, I thank Ms Chan for the Plaintiff and Ms Pang for the Defendant for their kind assistance.

Ms. Tiffany Chan, instructed by Holman Fenwick Willan, for the Plaintiff

Ms. Pang Oi Man, of Mayer Brown, for the Defendant