Suen Wah Ling t/a Kong Luen Construction Engineering Co v. China Harbour Engineering Co (Group)

HCMP 1952/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 1952 OF 2005

(On an intended appeal from HCCT No. 8 of 2005)

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BETWEEN

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Before: Hon Tang JA in Chambers

Date of Hearing:    7 October 2005

Date of Decision:  18 October 2005

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D E C I S I O N

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1.On 18 January 2005, the plaintiff, Suen Wah-ling, then represented by Messrs. Herbert Smith, applied by notice of originating motion, for leave to appeal against the award made by the arbitrator on 28 December 2004.  The application was based on section 23 and section 25 of the Arbitration Ordinance, Cap.341 (“the Ordinance”).  Under section 23(2), an appeal on a question of law may lie with leave of the court.  Under section 25, the court may set aside an award where an arbitrator has misconducted himself.

2.The application was fixed to be heard by Reyes J on 2 June 2005.

3.On 19 May 2005,  Herbert Smith applied by Summons returnable before Reyes J on 23 May 2005 seeking leave to wholly discontinue the action, namely, HCCT No.8 of 2005, against the defendant, with costs to the defendant.  On 23 May 2005, the Judge made an order to that effect after hearing the solicitors for the parties.

4.On 31 May 2005,  Herbert Smith filed a Notice of Intention to act  in  person  in  place of Solicitors, on behalf of the plaintiff in HCCT No. 27 of 2005.  That was an action by the defendant against the plaintiff for the enforcement of the Arbitral Award under section 2GG of the Ordinance.

5.In the meantime, the plaintiff applied for legal aid which has been refused and his appeal dismissed.

6.On 14 September 2005, the plaintiff took out the present application which was heard by me on 7 October 2005.  In this application, the plaintiff sought leave to appeal against the order of Reyes J of 23 May 2005 out of time.  The plaintiff also sought the setting aside of that order.  It is the plaintiff’s allegation that  Herbert Smith in seeking leave to discontinue HCCT No.8 of 2005 had acted without instruction.  I only have the plaintiff’s word for it and am not in a position to resolve this matter.  Nor am I required to do so for the purpose of this application. 

7.The application is misconceived.

8.If there are proper grounds for the setting aside of the order, the plaintiff should apply to the Court of First Instance and not to the Court of appeal.

9.Secondly, under Order  21 rule 4 of Rules of the High Court the discontinuance of the action with leave would not by itself preclude the plaintiff from starting an identical proceeding.  Under Order 73 rule 5(2), an application under section 23(2) of the Ordinance must be made, within 21 days after the award has been made and published to the parties.  However, in a suitable case an extension of time may be granted under Order 3.  The plaintiff must not think that I am of the view that he should start new proceedings or to apply for an extension of time to commence new proceedings.  I am simply trying to explain why an appeal is not the appropriate procedure.  I am not suggesting that the alternative route is one which the applicant should adopt.

10.For the above reasons, the application for extension of time to appeal is dismissed with costs to the Defendant (Respondent), to be taxed, if not agreed.

Mr Danny Choi, instructed by Messrs Leung, Chan & Pang, for the Defendant/Respondent.

The Plaintiff/Applicant, in person, present.