Ew v. Hc

HCCT 104/2022

[2023] HKCFI 3157

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTRUCTION AND ARBITRATION PROCEEDINGS

NO 104 OF 2022

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BETWEEN

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D E C I S I O N

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1.This is an application made for leave to appeal against this Court’s decision of 19 September 2023, with reasons handed down on 12 October 2023 (“Reasons”), whereby the Applicant’s Originating Summons for leave to set aside an arbitral award was dismissed.

2.The nomenclature used in the Reasons are adopted.

3.The principles for granting leave to appeal against the exercise of the Court’s discretion are not disputed and need not be repeated here. EW as applicant must show that the Court had taken into account irrelevant matters, or failed to consider relevant matters, or had made an error of law, and was plainly wrong. It is trite, that in an appeal against the court’s exercise of discretion, the fact that the appellate court might have exercised its discretion differently is not a ground to interfere. It has to be shown that the decision was outside the generous ambit within which reasonable disagreement is possible.

4.In its intended appeal, EW seeks to argue that the Court had erred in its construction of the Award and its finding that the tribunal had dealt with the issues of whether Form AK was a necessary document in the Contract and whether the parties had by conduct agreed that HC had the duty to provide the Form AK.

5.On behalf of EW, it was contended that the Court had failed to appreciate that what the tribunal had considered and found in the Award was only the issue of whether the provision of Form AK formed part of the “Import Customs Responsibilities”, as opposed to a separate and distinct contractual duty to provide the Form AK, and that the tribunal had in fact failed to deal with the latter issue. In support of such argument, it was argued that the analysis of the tribunal made at paragraph 108 of the Award, and referred to at paragraph 20 of the Reasons, was made under the reference to “Import Customs Responsibilities” as defined at paragraph 86 of the Award.

6.Properly read as a whole and in context, although the tribunal had used a general reference to “Import Customs Responsibilities”, what was actually considered, analyzed and determined by the tribunal was the duty of HC to provide the Form AK, whether as an express term, or as an implied term, or as a result of the conduct of the parties. This can be seen from the tribunal’s recitation of the respective position and arguments of EW and HC in the Arbitration, and the tribunal’s consideration of the legal position, from paragraphs 86 to 108 of the Award, before the tribunal reached the conclusion that Form AK was not a necessary document (in whatever format and howsoever the duty may be described) under the Contract.

7.I agree with Counsel for HC, that even at the hearing before this Court on 19 September 2023, EW had not made the alleged distinction between the so-called Import Customs Responsibilities and the contractual duties of HC with regard to the provision of the Form AK. There is in fact no real distinction. In substance and in fact, the arbitrator had dealt with the core issue of whether HC had the duty, and whether it was in breach of such duty, to provide the Form AK as a document required under the Contract and the dealings between the parties thereto, and it found against EW on such issue.

8.As to the second ground of appeal, I accept the submissions made on behalf of HC, that the question raised is entirely moot and does not arise from the findings made by the Court. As clearly pointed out at paragraph 10 of the Reasons, this Court decided the Originating Summons on the assumption in favor of EW, that it can amend the Originating Summons and can rely on the ground of public policy. The Originating Summons was dismissed on the basis that there was no merit even on the assumption made.

9.Accordingly, I consider that there are no reasonable prospects of success in the intended appeal, and refuse to grant leave.  The application is dismissed with costs, on indemnity basis, with certificate for Counsel, to be summarily assessed. EW is at liberty to file and serve a statement of its objections to the Statement of Costs filed by HC, within 14 days from the handing down of this Decision.

Mr Brian Lo, instructed by Humphrey & Associates, for the applicant

Mr Victor TS Lui, instructed by Kim & Company, for the respondent