Keen Lloyd Energy Ltd v. Bank of China (Hong Kong) Ltd

HCA1299/2004 & HCA1092/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NOS. 1299 OF 2004 AND 1092 OF 2006

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(HEARD TOGETHER)

Before : Hon Poon J in Chambers

Date of Hearing : 4 January 2008

Date of Decision : 4 January 2008

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D E C I S I O N

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1.These are the applications by Keen Lloyd to adduce further evidence for the purpose of the striking-out application.  The evidence consists of two letters exchanged between Sin Hua Bank and HKMA in May and July 1998.

2.I would like to dispose of two technical points raised by Mr Chow, SC for the Bank, first.  That is, delay and non-compliance of my directions regarding the timing for taking out these applications.

3.I accept that there is no delay on the part of Keen Lloyd in taking out this application because they only came to know of the letters when they were served with an affirmation made on behalf of HKMA on 23 October 2007 in another action; that is, HCA1949/2007.  They then took steps with a view to adducing the two letters for the purpose of the striking-out application.

4.As to the complaint of non-compliance of my direction, I note that the applications were made within time.  In any event, if there is any non-compliance, such non-compliance would be mere technical breach, which is not significant at all.

5.Turning to the substance of the applications, there is a difference in counsel’s approach to these applications.  Mr Chow, for the Bank, relies on the English decision in Secretary of State for Trade and Industry v. Pauling [2005] 2 PCLC 667, where the English Court of Appeal said that :

“The principle applicable to an application to admit fresh evidence after hearing but before judgment is handed down is no more instructive than would be applied by the Court of Appeal on appeal from a judge.”

6.Mr Yuen, SC for Keen Lloyd, contends that the proper test is whether or not the interests of justice are better served by allowing or rejecting the application.  In that connection, he relies on a number of authorities in Australia.

7.For the purpose of today’s hearing, I do not think I need to decide or come to a definite view as to which approach is correct, because both counsel agree that the main factor in considering these applications is whether the letters are relevant to the striking-out application and whether they would have an impact on the outcome of the striking-out application.

8.This brings me to examine the relevance of the two letters and the possible impact that they may have on the result of the striking-out application.  I am grateful to counsel for their written and oral submissions regarding the reasons why the two letters are relevant or not.  I shall not repeat what they have said here.  Suffice to say that I have fully considered their submissions, both written and oral.

9.The crux of Mr Yuen’s contention is that the two letters tend to contradict the Bank’s case and that Mr Chin had knowledge of the bank’s difficulties in granting or increasing the interbanking facilities at the material times.

10.However, I agree with Mr Chow that on the proper reading of the two letters, they are not inconsistent with the Bank’s case.  The two letters are of minimal relevance only, and, more importantly, even if they were to be admitted, they would not have any significant bearing on the outcome of the striking-out application at all.

11.For these reasons, the applications are refused.

[Discussion re costs]

12.Costs of the applications be to the Bank in any event, with certificate for two counsel, to be taxed if not agreed.

Mr Rimsky Yuen, SC leading Ms Mona Chhoa, instructed by Messrs Waller Ma Huang & Yeung, for the Plaintiff

Mr Anderson Chow, SC leading Ms Eva Sit, instructed by Messrs Deacons, for the Defendant