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

FAMV No. 42 of 2007

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 42 OF 2007 (CIVIL)

(ON APPLICATION FOR LEAVE TO APPEAL FROM CACV NO. 336 OF 2006)

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D E T E R M I N A T I O N

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Chief Justice Li :

1.On 18 January 2006, the applicant applied to set aside an arbitration award on the ground of apparent bias of the arbitrator.

2.This ground was based on the fact that the arbitrator, who is a barrister, had advised the applicant in conference on the subject matter of the arbitration.  After the conference which was held in June 1999, the arbitrator did not act further for the applicant.  In October 1999, the applicant commenced an action which was then stayed in favour of arbitration.  Both the applicant and the arbitrator stated that, in the course of the arbitration, they had no recollection that the arbitrator had advised the applicant.  At some stage, the arbitrator had raised the question as to whether the applicant looked familiar to him but was told there had been no previous connection.

3.As the amended award had been made on 17 January 2005, by January 2006, the 21 days time limit under Order 73 rule 5 of the Rules of the High Court, Cap. 4, for applying to set it aside had long expired.  On 29 August 2006, the Judge, Reyes J, in effect refused to extend time and on that basis dismissed the applicant’s application.  On 25 April 2007, the Court of Appeal dismissed his appeal.

4.The long and involved procedural history of this matter is set out in the judgments in the courts below.  On 18 January 2005, the day after the amended award, the applicant had applied to set it aside on a number of grounds, including apparent bias.  But on 23 May 2005, pursuant to the summons issued by solicitors then acting for him, Reyes J made an order for leave to discontinue the application ("the May 2005 order").  The applicant, who soon thereafter acted in person, alleges that he was not aware of this order until 2 June 2005.  In the meanwhile, Reyes J had granted the respondent leave to enforce the amended award.  Between May and August 2005, the applicant tried to obtain legal aid but was unsuccessful.

5.Between September 2005 and January 2006, the applicant tried to set aside the May 2005 order.  He first applied to the Court of Appeal in a new set of proceedings.  This was dismissed.  He then applied in the proceedings in which the May 2005 order was made.  On 12 January 2006, the applicant, who was then represented by solicitors, withdrew this application.

6.On 18 January 2006, the applicant commenced the present proceedings to set aside the award on the sole ground of apparent bias.

7.The Judge had a discretion to extend time for the application to set aside the award.  He assumed that the applicant "has a case on apparent bias" and stated that he might otherwise have been sympathetic to his case.  But having regard to the long period involved, he refused to extend time.  He stated that by any yardstick, "the procedural history of this matter has not been propelled by any sense of urgency" and that "there must be finality to arbitrations".   The Court of Appeal found no error in the exercise of the Judge’s discretion.

8.Leave to appeal is sought under section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484.  Mr Harris SC has said everything that could be said in support of the application.  In essence, one is here concerned with whether the Judge had acted within the scope of his discretion in refusing to extend time.  In relation to this matter, we can find no question involved which, by reason of its great general or public importance or otherwise, ought to be submitted to the Court for decision.  Accordingly, the application for leave is dismissed with costs.

9.The test of apparent bias is that stated by the Appeal Committee in Deacons v. White & Case Ltd Liability Partnership & Others (2003) 6 HKCFAR 322 at 330D-E.  See Ng Yat Chi v. Max Share Ltd (2005) 8 HKCFAR 1 at para. 122.  The Court of Appeal expressed views on the application of the test to the circumstances of this case and concluded there was no merit in the argument on apparent bias.  However, as pointed out above, the Judge had assumed that the applicant had a case on apparent bias, stating that he might otherwise have been sympathetic to it.  The Judge’s refusal to extend time on this assumption was within the scope of his discretion.  In the circumstances, the views of the Court of Appeal on apparent bias should not be treated as authoritative or providing any guidance. 

Mr Paul Harris SC and Miss Queenie Ng (instructed by Messrs Clarence Wong, Cheung & Liu) for the applicant

Mr Ronny K.W. Tong SC and Mr Danny Choi (instructed by Messrs Leung, Chan  & Pang) for the respondent