Sino Database Ltd and Another v. Aberdeen Boat Club Ltd

DCCJ 3404/2021

[2025] HKDC 812

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 3404 OF 2021

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DECISION

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Introduction

1.On 3 March 2025, I handed down judgment after trial and I dismissed the Plaintiffs’ claim against ABC, the Defendant, in their entirety (see [2025] HKDC 353). By a summons dated 26 March 2025, the Plaintiffs seek leave to appeal against my judgment.

2.This is my decision on the Plaintiff’s leave application. I shall continue to adopt the abbreviations used in the trial judgment.

Applicable Principles

3.Section 63A(2) of the District Court Ordinance (Cap 336) stipulates as follows:

“(2) Leave to appeal shall not be granted unless the judge, the master or the Court of Appeal hearing the application for leave is satisfied that —

(a) the appeal has a reasonable prospect of success; or

(b) there is some other reason in the interests of justice why the appeal should be heard.”

4.It is well established that in respect of findings of fact, the Court of Appeal would only intervene when it is satisfied that the findings by the primary judge are plainly wrong: Ting Kwok Keung v Tam Dick Yuen (2002) 5 HKCFAR 336 at §42; China Gold Finance Limited v CIL Holdings Limited CACV 11/2015 (unrep, 27 November 2015) at §11.

Intended Grounds of Appeal

5.To recapitulate, Mr Chan, the 2^nd Plaintiff, is the beneficial owner of the 1^st Plaintiff, which owned the Yacht. They moored the Yacht in a mooring buoy provided by ABC, and the Yacht drifted away from the buoy during super typhoon Hato because the swivel connecting the Yacht and the buoy broke.

6.In my judgment, I have essentially made the following findings:

(1)  The swivel in question was not provided by ABC. I took into account (a) the fact that the Mooring Agreement did not define “mooring” to include any swivel (see §§37-41); (b) the testimony of ABC’s witnesses who clearly stated that ABC would not provide swivels to members or hirers (see §§42-43); (c) the logical inference that the previous hirer of the subject buoy should have taken any swivels with him to his new mooring buoy (see §44); (d) the fact that Mr Chan’s captain was not called upon to give evidence (see §45); and (e) the Plaintiffs’ reliance on the Shipping and Port Control Regulations, which I considered to be irrelevant (see §46);

(2)  ABC was not responsible for the breaking of the swivel. The Plaintiffs submitted that the swivel broke because the mooring shackle was rusted, the design of the subject mooring was defective, or ABC failed to provide a two-buoy mooring (see §49). I rejected them as they were not pleaded (see §§50-51) and they were not substantiated by expert evidence (see §§52-58). In any event, I found that ABC did not replace the mooring buoys because it found them to be defective, and ABC was not contractually obligated to provide two-buoy mooring to the Plaintiffs (see §§56-57). Further, I held that ABC had taken sufficient precautionary measures (see §§60-64);

(3)  Irrespective of whether ABC was under a duty to timely inform the Plaintiffs that the Yacht broke free, I was not satisfied that a rescue operation could have been mounted if the Plaintiffs had known about the accident earlier given the extreme weather condition (see §§65-69);

(4)  The Plaintiffs did not adduce sufficient evidence to prove the quantum of damages (see §71).

7.On 20 March 2025, the Plaintiffs lodged a bilingual document titled “Application for Leave to Appeal”, which was referred to in their summons dated 26 March 2025. I take that the Plaintiffs have set out their intended grounds of appeal in the said document, and Mr. Simon Westbrook SC for ABC also prepared his written submissions on that basis.

8.First, the Plaintiffs contended that if correctly interpreted, the Mooring Agreement did not require the hirers to provide their own swivels. The Mooring Agreement was in any event unenforceable, as it was onerous in imposing significant obligations on the hirers. The New Mooring Agreement, which was not executed, should not be considered. (See section A1 of the Application for Leave to Appeal.)

9.These arguments have no merits. The Mooring Agreement was clear in stating that insofar as the mooring buoy was concerned, ABC would only provide the anchor block, the floating buoy and the chain that connected the anchor block and the floating buoy. The agreement was not lengthy or complicated and ABC’s staff explained to Mr Chan its key terms prior to execution, so it was enforceable. Putting aside their binding effect, the agreements (both the Mooring Agreement and the New Mooring Agreement) shed light on the actual practice of ABC of not providing swivels to members.

10.Second, the Plaintiffs argued that I erred in holding that ABC was not obligated under the Mooring Agreement to provide a two-buoy mooring to them (see section A2 of the Application for Leave to Appeal). As held in the judgment, this was not even a pleaded complaint. There was no evidence that swing moorings were inherently unsafe. The facts of the case were clear that the Plaintiffs rented a swing mooring from ABC.

11.Third, the Plaintiffs submitted that I erred in finding that ABC did not owe a duty of care to them (see section B of the Application for Leave to Appeal). This submission was totally misconceived. As I stated in §33 of the judgment, Mr Westbrook SC accepted that ABC owed a duty of care under both contract and tort, and I proceeded on that basis. If the Plaintiffs’ submission was really that ABC breached the duty of care by not replacing the rusty shackle or by having a defective mooring design, then I already held that these were not pleaded complaints and there was no expert evidence to substantiate the complaints that the swivel broke because of the rust or the mooring design.

12.Fourth, the Plaintiffs said I erred in weighing the evidence (see section C of the Application for Leave to Appeal), in that I gave excessive weight to the hearsay evidence of ABC’s coxswain (who passed away before trial and who, according to another witness of ABC, inspected the mooring before it was handed over to the Plaintiffs) and that I drew an adverse inference against the Plaintiffs for not calling their captain as a witness when he actually passed away before the trial too. There is no force with these arguments:

(1)  For the first point, the Plaintiffs misunderstood §44 of my judgment; there I only considered Ms. Jennifer Li’s evidence that she instructed the coxswain to inspect the subject mooring and I did not take into account anything the coxswain might have said;

(2)  As to the second point, the Plaintiffs acknowledged that they did not inform me that their captain had passed away, even though the role of the captain was investigated during cross examination and I expressly enquired with Mr. Westbrook SC as to what inferences I was invited to draw from the fact that the captain was not called. The Plaintiffs could offer no satisfactory reason why they did not simply clarify that the captain was deceased, and even for the purpose of this hearing, there was still no application before me for the Plaintiffs to adduce evidence relating to the death of the captain;

(3)  In any event, it is clear from §§37-48 of the judgment that I considered various matters before concluding that ABC did not provide the swivel, and I gave particular weight to the Mooring Agreement which was contemporaneous documentation. I also made it clear in §48 of the judgment that I came to my conclusion having taken into account those various matters “both individually and cumulatively”. The adverse inference was just one minor matter; with or without it my conclusion would have been the same.

13.Fifth, the Plaintiffs argued that I erred in interpreting section 48(6) of the Shipping and Port Control Regulations (see section D of the Application for Leave to Appeal). I disagree. The statue did not expressly say the owner of a mooring had to maintain a swivel like the one in this case in good condition. And as held in my judgment, ABC’s obligations vis-à-vis the government and its obligations vis-à-vis the Plaintiffs are not the same.

14.Sixth, the Plaintiffs said I erred in not giving weight to the industry practice and thus erred in my conclusion that ABC did not supply the swivel in question and that ABC was not in breach for providing a swing mooring. Relatedly, the Plaintiffs contended that I should not have excluded the evidence relating to the practice of another boat club (i.e. the Hebe Haven Yacht Club) (see sections E1 and E2 of the Application for Leave to Appeal). These arguments must be rejected. There was no evidence on “industry practice” as to whether swing moorings were provided by other clubs. Whether the Hebe Haven Yacht Club provided swivels to its hirers does not amount to “industry practice”, and one club’s practice has no bearing on another club’s practice. There is also absolutely no justification for the Plaintiffs to try to adduce further evidence at the eleventh hour.

15.Seventh, the Plaintiffs said I erred in finding that ABC carried out sufficient inspections to the moorings when the fact was that the relevant shackle was heavily rusted and that the industry practice required more thorough inspections (see section E3 of the Application for Leave to Appeal). As held in the judgment, the rusting of the shackle had nothing to do with the incident, and there was no evidence to support the Plaintiffs’ suggested inspection method, let alone it being the “industry practice”.

16.Eighth, the Plaintiffs argued that I erred in saying that they failed in proving why the Yacht broke free, when the Defendant admitted that the broken swivel was the cause (see section E4 of the Application for Leave to Appeal). This is a mischaracterisation of the Defendant’s case. There was no dispute that the Yacht broke free because the swivel broke; what ABC contended was that it did not supply the subject swivel to the Plaintiffs, which I found to be the case as a matter of fact.

17.Ninth, the Plaintiffs said I should have held that ABC breached its duty in monitoring the Yacht (see section F of the Application for Leave to Appeal). I found that irrespective of whether ABC was obligated to monitor the Yacht during extreme weather conditions and to inform the Plaintiffs if the Yacht broke free, no operation could have been deployed to rescue the Yacht.

18.Finally, the Plaintiffs complained that I should not have conducted the trial in English (see section G of the Application for Leave to Appeal). I have explained in §28 of the judgment why I chose English as the trial language, and the Plaintiffs could not pinpoint any errors with my decision. It is noteworthy that for the present application, the Plaintiffs managed to compile the Application for Leave to Appeal in English, which was a 28-page document comprising 72 paragraphs.

19.For the aforesaid reasons, I do not consider that the Plaintiffs’ intended appeal has any prospect of success, not to mention reasonable prospect. There is also no reason in the interests of justice why the intended appeal should be heard.

Conclusion

20.I hereby dismiss the Plaintiffs’ summons dated 26 March 2025. I make an order nisi that the Plaintiffs do pay ABC the costs of the summons, to be taxed if not agreed with certificate for counsel.

The 1^st and 2^nd Plaintiffs appeared in person

Mr. Simon Westbrook SC, instructed by Messrs. Fairbairn Catley Low & Kong, for the Defendant