Fang Guo Quan and Another v. Choi Ming Sang and Another

HCMP 1759/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 1759 OF 2009

(ON AN INTENDED APPEAL FROM DCPI NO. 1468 OF 2008)

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BETWEEN

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Before: Hon Tang VP and Yeung JA in Court

Date of Judgment: 11 November 2009

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J U D G M E N T

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Hon Tang VP (giving the judgment of the Court):

1.The plaintiffs were passengers on a coach travelling from Hong Kong to Guangzhou on tickets which were bought at the 2^nd defendant’s office in Hong Kong. The plaintiffs are residents of Hong Kong. The driver of the coach was the 1^st defendant, who is also a resident of Hong Kong. The coach was travelling on the Guangzhou – Shenzhen Highway whilst being driven by the 1^st defendant, when it was involved in an accident as a result of which the plaintiffs have sustained personal injuries. The plaintiffs had received their medical treatment in Hong Kong.

2.In this action, the plaintiffs claimed against the 1^st defendant for negligence, the 2^nd defendant, a company incorporated in Hong Kong and resident here, for breach of contract, as well as being vicariously liable for the negligence of 1^st defendant who was allegedly an:

“…employee and/or agent of the 2nd Defendant …”.

3.The accident occurred on 24 July 2005. The action was commenced on 7 July 2008. By a summon filed on 17 December 2008, the 2^nd defendant applied for a stay of proceedings on the ground of forum non conveniens in that the proper forum is the Court of Dongguan City of China.

4.In an affirmation filed on 17 December 2008, Mr Chen Weiping, a director of the 2nd Defendant, stated that he had been advised and believe that:

“8.  … Hong Kong is not the natural or appropriate forum for the resolution of issues and that the PRC Court is clearly or distinctly more appropriate than Hong Kong …”

5.In opposition to the summons, Mr Chan Cheuk Wah, the handling solicitor for the plaintiffs, deposed that:

“6.  Since all parties hereto, Plaintiffs, Defendants and all other witnesses, have their base in Hong Kong, it would be convenient for the case to be heard and determined in Hong Kong rather than all parties going back to the PRC.”

6.The summons was heard on 24 April 2009. On 4 June 2009, Deputy District Judge Raymond Tsui dismissed the summons. On 27 August 2009, he refused leave to appeal. By summons dated 9 September 2009, the 2^nd defendant applies for leave to appeal. One of the grounds of appeal is that the learned judge had erred in refusing the 2^nd defendant’s application for adjournment and leave to file expert evidence on the relevant PRC law.

7.The learned judge dealt with the application for an adjournment so that the 2^nd defendant could file an affirmation to exhibit expert’s opinion on the PRC law in his 4 June 2009 judgment. As is clear from the judgment, at an earlier hearing on 22 December 2008, an application had been made to Registrar Poon by the 2^nd defendant for leave to file an affirmation to exhibit an expert evidence on PRC law. That application was refused. There was no appeal from that order. Moreover, as the learned judge has pointed out, even if it was open to the 2^nd defendant to apply for leave to file such an opinion to the learned judge rather than appealing:

“21.  … it was far too late for the 2^nd Defendant to apply for leave to file the affirmation today. The Order was made on 22^nd December 2008. The 2^nd Defendant could have applied for leave to file the affirmation before the hearing today. Nothing was done by the 2^nd Defendant during the interim. No explanation (as opposed to unsatisfactory explanation) was given as to why nothing was done during the interim. This is one of the factors that I should take into account in exercising my discretion. Although it is not determinative, it adversely affects the application.”

8.This is so plainly right that we are astonished that this has been made a ground of appeal.

9.In the learned Deputy District Judge’s judgment, he dealt fully with the principles governing forum conveniens and answered each of the three-stage test against the 2^nd defendant. We are in complete agreement with the learned District Judge. There is no substance in any of the other grounds of appeal. The proposed appeal has no reasonable prospect of success.

10.We dismiss the application. The plaintiffs are not on legal aid and have not responded to this application. However, it is possible that they might have incurred some costs in connection with this application. So we will make an order nisi that the plaintiffs are to have the costs of this application.

11.We also make an order under O. 59 r. 2A(8) that the 2^nd defendant may not request this determination to be reconsidered at an oral hearing inter partes.