Fang Guo Quan and Another v. Choi Ming Sang and Another
Read the full judgment text of DCPI 1468/2008 on BabelCite. This District Court judgment.
1. There was a traffic accident on 24 th July 2005 in China involving a coach driven by the 1 st Defendant. The Plaintiffs were among the passengers on board and sustained injuries. The Plaintiffs purchased the tickets for the coach from the 2 nd Defendant at a sales outlet in Hong Kong. There is no dispute that all the parties to this action are Hong Kong residents and company incorporated in Hong Kong.
Cites 3 cases
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DCPI 1468/2008 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION PERSONAL INJURIES ACTION NO. 1468 OF 2008 ------------------------ BETWEEN
------------------------ Coram: Deputy District Judge Raymond Tsui in chambers (open to the public) Date of Hearing: 17th August 2009 Date of Handing Down Decision: 27th August 2009 ------------------------ DECISION ------------------------ Background 1.There was a traffic accident on 24th July 2005 in China involving a coach driven by the 1st Defendant. The Plaintiffs were among the passengers on board and sustained injuries. The Plaintiffs purchased the tickets for the coach from the 2nd Defendant at a sales outlet in Hong Kong. There is no dispute that all the parties to this action are Hong Kong residents and company incorporated in Hong Kong. 2.The Plaintiff commenced the present action for damages for injuries sustained in the said traffic accident against both Defendants. The causes of action relied on by the Plaintiffs are both contractual, being based on the coach tickets purchased from the 2nd Defendant and tortious, being based on the duty of care owed by the 1st Defendant to the Plaintiffs. 3.The 2nd Defendant took out a summons dated 17th December 2008 for stay of proceedings on the ground of forum non conveniens. At a hearing on 22nd December 2008 before Registrar Poon, an application was made by the 2nd Defendant for filing an affirmation to exhibit expert evidence on the PRC law. The application was refused. 4.The substantive hearing took place before me on 24th April 2009. At the hearing, the 2nd Defendant asked for an adjournment for the purpose of filing evidence on PRC law. The application for adjournment was refused. In a judgement handed down on 4th June 2009, the summons was also dismissed. I would not recite the facts of this case which have been sufficiently set out in the said judgement. 5.The 2nd Defendant took out the present summons on 2nd July 2009 (the “Appeal Summons”) for leave to appeal against my decision and hence today’s hearing. 6.The 2nd Defendant filed a second affirmation of Mr Chen Weiping (the “Affirmation”) on 14th of August 2009. Before today’s hearing, the 2nd Defendant produced to the court a copy of a Legal Opinion of a PRC lawyer (the “Opinion”). 7.The Affirmation seeks to clarify the relationship of the various parties involved in the provision of the coach service purchased by the Plaintiffs which was wrongly presented to the court at the hearing on 24th April 2009. Exhibited to the Affirmation are the coach tickets purchased by the Plaintiffs with the conditions printed on the overleaf. Also exhibited to the Affirmation is an agreement between the 2nd Defendant and a joint venture company in China whereby the 2nd Defendant agreed to sell coach tickets for the joint venture company. There is also an insurance policy exhibited to the Affirmation which in fact has been produced in the 1st Affirmation of Mr Chen Weiping. As to the Opinion, which is not exhibited to any affirmation, it sets out the law relating to the issues of liability and insurance in the PRC in respect of traffic accident. Mr Lam, counsel for the Plaintiffs, objected to the admission of the Affirmation and the Opinion. 8.Instead of spending time to argue whether the Affirmation and the Opinion should be admitted, I decided to consider them de bene esse. The Law 9.The applicable principles in respect of application for leave to appeal are well settled. (SeeMa Bik Yung v Ko Chuen HCMP No. 4303/1999; Bowardley Enterprises Limited v Millennium Group Limited DCCJ No. 3039/2004; Wu Yi Development Company Limited v Big Island Construction (HK) Limited DCCJ No. 5174/2005) Put simply, the court will only refuse leave if there is no realistic prospect of success. Preliminary issue --- Final or Interlocutory 10.The Appeal Summons was filed on 2nd July 2009 which was the 28th day from the date of my order dismissing the application of the 2nd Defendant. According to Order 58 rule 2(4), if my order is a final order, the time limit for appeal would be 28 days. If it is an interlocutory order, the time limit for appeal would be 14 days and the filing of the Appeal Summons was out of time. There was thus the preliminary issue as to whether my order was final or an interlocutory. 11.Chan PJ observed in Shell Hong Kong Ltd v Yeung Wai Man Kiu Yip Co Ltd (2003) 6 HKCFAR 222, 232F-I as follows:
12.Applying Shell Hong Kong Ltd to the present case which is an application for stay of the whole action on the ground of forum non conveniens and adopting a broad commonsense approach, I agree that the application relates to a very crucial issue in the case. A successful application by the 2nd Defendant would effectively put an end to the present action. I also draw support from the comment of Fuad VP in First Pacific Bank Ltd v Robert HP Fung [1990] 1 HKLR 527, 532A-B. As such, I am of the view that my order is a final order. Thus the filing of the Appeal Summons was within time. 13.In the present case, the 2nd Defendant has not drafted any Notice of Appeal for the court’s consideration. Mr Cheung, counsel for the 2nd Defendant, relied on his Skeleton Submission which was only filed on the 14th August 2009. He argued that the court should have admitted the Opinion pursuant to Order 32 rule 16A(4) which would help the court to grapple with the issues involved, particularly the issue of choice of law. He also submitted that the Opinion would shed more light on the latest development of the law relating to quantum in the PRC. 14.The main thrust of Mr Cheung’s submission is that the court should have all relevant materials before it before a decision is made. At the end, the court may, after a weighing exercise, decline to accept the Opinion. But the court should not exclude itself from considering it. Heavy reliance was placed by Mr Cheung on Vernon v Bosley (The Times 8 April 1994). Vernon is a case on whether a certain line of cross-examination should be allowed at a trial. Hoffman LJ was of the view that “although a judge has no discretion to exclude admissible evidence, his ruling on admissibility may involve a balancing of the degree of relevance of the evidence against other considerations which is in practice indistinguishable from the exercise of a discretion. It is in my view essential, if judges are to be able to keep the length of trials within bounds and conduct the proceedings with due sensitivity to the interests of third parties and the wider public interest, that they should have the same latitude in deciding how the balance should be struck as this court would accord to the exercise of a discretion.” 15.I do not think Vernon could help the case of the 2nd Defendant. We are dealing with a situation quite different from that of Vernon. In Vernon, the court had to deal with the exercise of a discretion to determine whether certain evidence should be admitted. In our case, before the issue of discretion of allowing the Opinion to be admitted is considered, the 2nd Defendant first faces a procedural hurdle, namely, it should have lodged an appeal against the decision of Registrar Poon. There was no argument mounted by Mr Cheung against the application of the case Jindal Exports Ltd v Waco Trading Co Ltd [2000] 2 HKC 46, save that it was pointed that there was no mention in Jindal Exports Ltd as to the evidence sought to be adduced and that in the present case Chinese law was so important that the Opinion should be allowed. I do not think because of the importance of the evidence sought to be adduced, the procedural rules could be disregarded. 16.As to the issue of the discretion of allowing certain evidence, as observed by Hoffman LJ in Vernon, the “cardinal principle of admissibility is relevance”. Applying the same principle to our case, if the applicable law is Hong Kong law, I do not see the relevance of the PRC law. To that extent, the Opinion is irrelevant. 17.As to choice of law, Mr Cheung submitted that Boys v Chaplin [1971] AC 356 was different from the present case as there was no issue of choice of jurisdiction in that case. Be that as it may, I do not see how that would affect the issue of choice of law. 18.As to choice of jurisdiction, he urged me consider that there was the joint venture company involved, that there was the insurance policy covering accidents in the PRC and that the accident happened in the PRC. Coupling these factors with the fact that quantum recoverable was on the same par with that awarded by the Hong Kong Court, the proper forum should be the PRC court. 19.It seems that Mr Cheung was trying to rely on the new evidence in the Affirmation to argue that it was the joint venture company, which is a PRC company, who owned the coach, provided the service and took out the insurance but not the 2nd Defendant who was only an agent for the sale of the coach tickets. I think this does not help the 2nd Defendant’s case as the joint venture company is not a party to the present action. 20.As to quantum, Mr Cheung submitted that even though the maximum amount recoverable under the insurance policy was RMB 100,000, this was not the maximum amount recoverable under the PRC law. 21.As to the application of Order 32 rule 16A(4), Mr Cheung emphasized again that the Opinion was essential and relevant. No exceptional circumstances had been pointed out to me. 22.Mr Lam commented that the Opinion made no reference to the contractual claim of the Plaintiffs or the choice of law of that claim. Since the coach tickets were sold in Hong Kong, the choice of law must be Hong Kong law. Since it is pleaded by the 2nd Defendant in its Defence, which was filed without prejudice to its right to prosecute the present appeal, that the joint venture company was an undisclosed principal of the 2nd Defendant when the coach tickets were sold to the Plaintiffs, the 2nd Defendant would be liable according to the general agency principles in Hong Kong. The Opinion had failed to explain whether the same principles applied in the PRC. If the said general agency principles did not apply in the PRC, there was no point for the parties to litigate the contractual claim in the PRC. 23.Mr Lam pointed out that the Opinion identified three classes of persons who would be held liable in a traffic accident, namely, “the owner of the vehicle, the person who had control over the vehicle (車輛實際支配人) and the driver of the vehicle”. The meaning of車輛實際支配人 is not defined or explained in the Opinion. It is not known whether under the PRC law, the 2nd Defendant is regarded as a車輛實際支配人. 24.Mr Lam submitted that according to the Opinion, determination of liability would be based on the Traffic Incident Confirmation (交通事故認定書). But the Traffic Incident Confirmation had never identified the 2nd Defendant as a liable party or as a 車輛實際支配人. Thus applying the Opinion to the present case, the 2nd Defendant would not be liable. 25.In fact, the Opinion had never stated in the conclusion that the Plaintiffs could sue the 2nd Defendant in the PRC. 26.Mr Lam also drew my attention to the PRC insurance policy which was taken out by the joint venture company in China. He pointed out that as far as the passenger liability was concerned, the party who could claim under the said insurance was the joint venture company but not the 2nd Defendant. Thus any action against the 2nd Defendant in the PRC would not have the benefit of receiving any compensation under the PRC insurance policy. 27.No doubt the fact that the Plaintiffs may not have a valid claim against the 2nd Defendant in the PRC is a juridical disadvantage to them that may weigh against the PRC court as a more suitable forum in the balancing exercise. 28.Mr Lam further pointed out that even though the Opinion had stated that there were cases where the awards for injuries were over RMB 1 million, there was a lack of particulars as to for what injuries those awards were granted. The Opinion was silent as to how much the Plaintiffs could be awarded in the PRC court. I agree. The least the Opinion should have done is set out the items of compensation that could be obtained by the Plaintiffs in the PRC court by reference to the available documents, including the Statement of Claim, the Statement of Damages and the medical reports of the Plaintiffs. 29.Mr Cheung argued that what was important was that there was in fact no limit to the quantum of the award. That is beside the point. The point, I believe, is even if the Opinion were admitted into evidence, there would still be no evidence as to how much the Plaintiffs would be awarded as damages by the PRC court. Why should the Plaintiffs make their claims in the PRC when they have no idea how much they would possibly obtain from the PRC court? Those cases where the victims had been awarded substantial amounts of damages mean nothing to the Plaintiffs unless the Plaintiffs know where they stand when compared with those victims. Admission of the Opinion and the Affirmation 30.It could be seen from the above that, far from advancing the case of the 2nd Defendant, the Opinion seems to have confirmed that there would not be any valid claim against the 2nd Defendant by the Plaintiffs in the PRC. I would not allow the filing of the Opinion first on the ground that there was no appeal against the ruling of Registrar Poon; secondly that it was not relevant; thirdly that, as it now stands, the probative value of the Opinion does not justify its admission; fourthly that there were no exceptional circumstances upon which I could rely to exercise my discretion under Order 32 rule 16A(4). 31.As regards the Affirmation, the main function it serves is clarify that the party which took out the insurance policy in the PRC was the joint venture company but not Gd Bonwell Champion Tours Co Ltd as presented to the court on 24th April 2009 and so recorded in paragraph 4 of my judgement. As long as the party which took out the insurance in the PRC was not the 2nd Defendant, this aspect has no bearing on the judgement. There was no suggestion from Mr Cheung that the new evidence in the Affirmation would in any other way affect my judgement. To that extent, I do not think the Affirmation is relevant. On this ground alone, I would thus not allow the filing of the Affirmation. 32.Furthermore, I should bear in mind Order 32 rule 16A(4) when considering whether I should allow the filing of the Affirmation at the stage of application for leave to appeal. Otherwise, the parties who had omitted to adduce certain evidence could avoid the application of Order 32 rule 16A(4) by making an application to adduce the omitted evidence at the stage of application for leave to appeal. If Order 32 rule 16A(4) were to apply, I would have reached the same conclusion of refusing the filing of the Affirmation on the ground that there were no exceptional circumstances. 33.Having regard to all the above, I am not satisfied that the 2nd Defendant has demonstrated any real prospect of success in the appeal. I would thus dismiss the Appeal Summons with costs to the Plaintiffs to be taxed if not agreed with certificate for counsel. The costs order shall become absolute in 14 days.
Representation: Mr. Allen Lam instructed by Messrs S. H. Chan & Co. for the Plaintiffs. Mr. Jeremy Cheung instructed by Messrs Reimer & Partners for the 2ndDefendant. Application for leave to appeal by the 2nd defendant to Court of Appeal dismissed. Please see HCMP1759/2009 dated 11 November 2009 |
Cases cited in this judgment
Further hearings and rulings under DCPI 1468/2008