LU GUO XIANG v. HONG KONG MING WAH SHIPPING CO LTD

CACV 14/2009 AND CACV 280/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NOS. 14 OF 2009 AND 280 OF 2009

(ON APPEAL FROM HCPI NO. 254 OF 2006)

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BETWEEN

LU GUO XIANG (陸國祥) Plaintiff
and
HONG KONG MING WAH SHIPPING
COMPANY LIMITED
(香港明華船務有限公司)
Defendant

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Before: Hon Rogers Acting CJHC in Chambers

Date of Hearing: 22 February 2010

Date of Decision: 22 February 2010

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D E C I S I O N

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1. On this occasion, it has been the court which has called for a directions hearing. The reason the court has called for that is thatthese are now two appeals which will be heard together. The first appeal is from a decision early last year and the appeal was fixedin July. It is quite clear that there are appeals not only as to whether time limits should have been extended for bringing the casebut also on liability.

2. There is a transcript which is in Chinese and there are, apparently, many Chinese documents. It was quite clear that the Defendant/Appellant’spreference would be that those should not need to be translated, which is a reasonable course, but no application was made for abilingual Bench when the matter was set down. The Appellant then appears to have been vacillating as to what course it would takeand, as late as 18 February, they wrote a letter to the court which makes clear that there are a number of documents which will needtranslating if the appeal is to be heard by a monolingual Bench. They say:

“Subsequent to our receipt of your said letter, we have corresponded further with the Plaintiff’s solicitors, Messrs Siao, Wen& Leung, to seek their consent to have the two appeals consolidated and re-fixed before a bilingual Bench.”

Then, in the penultimate paragraph of the letter, they say:

“Given the Plaintiff’s stance, however, the Defendant will not pursue an application to have the hearing of the appeals, fixedfor 27 to 29 April, re-fixed. If, however, a bilingual Bench should subsequently become available to hear the appeals on those dates,we would respectfully ask the court to consider allowing the appeals to be heard before a bilingual Bench. In the circumstances,we believe it is not necessary to trouble his Lordship, Rogers VP, on 22 February 2010 for a ruling on the re-fixing of the hearingof the dates of the appeal.”

3. In my view, that letter simply does not understand the way the system works. Benches cannot be rustled up at the last minute. Appealsare fixed anything up to six months or more ahead and it is simply not possible, at the last minute, to find a bilingual Bench andthat has been made clear to the Appellants by the court for a very long time. That approach to the preparation of an appeal whichis to take place in two months’ time is simply not acceptable.

4. It was for that reason that the Respondents to the appeal, the Plaintiff’s solicitors, set forth a very sensible time-scale ifthis case is going to be heard before a monolingual Bench, which it is going to be if the dates in April are to be kept, and thereis good reason why they should be kept, if for no other reason, the events relating to this appeal took place 10 years ago.

5. So in my view, the necessity for this directions hearing has been entirely because the Appellant’s solicitors have been very dilatoryin their preparation, have not concentrated their minds, have not prepared the case as they should have done and I am going to orderthat the Appellant should pay the costs in any event. I am seriously minded as to whether or not it should be the solicitors whoshould bear the costs, but, on this occasion, if the Appellant’s solicitors can draw this matter to their client’s attention,and they must do so, and if the clients want the solicitors to pay, that seems to me to be the correct course but it is going tobe up to the clients to decide.

6. I am going to order that the costs be to the Respondent in any event.

(Anthony Rogers)
Acting Chief Judge,
High Court

Mr Tim Kwok, instructed by Messrs Siao Wen and Leung, for the Plaintiff/Respondent

Ms Selina Lau, instructed by Messrs Ince & Co., for the Defendant/Appellant