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Bright Shipping Ltd v Changhong Group (Hk) Ltd

Judgment Cited authorities 4 Cited in 20 Precedent Map Related
Vincent
Judgment Date26 February 2019
Neutral Citation[2019] HKCA 246
Judgement NumberCACV576/2018
Citation[2019] 2 HKLRD 220
Year2019
Subject MatterCivil Appeal
CourtCourt of Appeal (Hong Kong)
CACV576/2018 BRIGHT SHIPPING LTD v. CHANGHONG GROUP (HK) LTD

CACV 576/2018

[2019] HKCA 246

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 576 OF 2018

(ON APPEAL FROM HCAJ 3/2018)

____________________

BETWEEN
BRIGHT SHIPPING LIMITED Plaintiff
and
CHANGHONG GROUP (HK) LIMITED Defendant

____________________

Before: Hon Lam VP, Yuen and Au JJA in Court
Date of Hearing: 20 February 2019
Date of Judgment: 20 February 2019
Date of Reasons for Judgment: 26 February 2019

__________________________________

REASONS FOR JUDGMENT

__________________________________

Hon Lam VP (giving the Reasons for Judgment of the Court):

1. On 15 November 2018, A Chan J [“the Judge”] dismissed the Defendant’s application by a summons of 7 May 2018 seeking a stay of the proceedings in HCAJ 3/2018 on the ground of forum non conveniens.

2. On 12 December 2018, the Defendant served a notice of appeal in respect of that decision without first seeking leave to appeal under Section 14AA of the High Court Ordinance.

3. On 18 December 2018, the Plaintiff issued a summons to strike out the appeal on the ground that the Defendant had not obtained leave to appeal.

4. The summons was heard by us on 20 February 2019.

5. It is not disputed that leave is required for the bringing of an appeal against an interlocutory decision of the Court of First Instance by reason of Section 14AA of the High Court Ordinance. It is also not disputed that the applicable test in Hong Kong for determining if a decision is interlocutory is the application approach, see Shell Hong Kong Ltd v Yeung Wai Man Kiu Yip Co Ltd (2003) 6 HKCFAR 222 though Mr Alder said the application approach in Hong Kong is a modified one. Mr Alder also accepted that the present case does not come within the provisions in Order 59 Rule 21 which excludes the leave requirement of Section 14AA from specified cases.

6. Mr Alder submitted on behalf of the Defendant that adopting the application approach, the decision of the Judge should be classified as a final decision because:

(a) It has been decided by a Deputy District Judge in Fang Guo Quan v Choi Ming Sang DCPI 1468/2008, 27 August 2009 that a refusal to stay an action on the ground of forum non conveniens was a final decision;

(b) The decision involves an evaluative process which is reasoned with evidence-based findings. Those are the hallmarks of a final process;

(c) A decision on anti-suit injunction is regarded as final. There should be alignment in the law regarding appeals against decisions on injunction, service out of jurisdiction and decision on stay on the ground of forum non conveniens;

(d) A decision on stay is as profound as a decision on whether substantive relief is to be granted;

(e) Shell Hong Kong does not mandate a strict “outcome” approach. Instead a common sense approach should prevail and a decision on a critical issue on the way to, or forming part of, the trial of the entitlement to final relief should be regarded as final.

7. With respect, we cannot accept the submissions of Mr Alder. We start by addressing the last point. In our judgment, Mr Alder’s submissions were based on a misunderstanding that the application approach had been modified in Hong Kong. The application approach was held by the Appeal Committee to be the applicable one in Hong Kong in B + B Construction Ltd v Sun Alliance & London Insurance (2000) 3 HKCFAR 503. The approach was discussed by Chan PJ (as he then was) at p.506H to I:

“ This involves an examination of the nature of the application to see whether the order made upon such application would, whether it fails or succeeds, determine the whole action. In considering the nature of the application, it is necessary to look not only at its form, e.g., under which order or rule of court it is made, but also the purpose and substance of the application and the issues to be determined by the court.”

8. On the facts, the Appeal Committee found that the decision below reached upon an application under Order 14A was a final judgment since the application would only be entertained on the basis that the determination of the question raised would have the effect of finally disposing of the cause or matter before the court. In other words, as Chan PJ highlighted at p.508B:

“ Whatever the outcome of the application, the order made will finally determine the action. After all, it is the intention of the parties and the court that such a decision would put an end to the dispute instead of requiring the parties to go through the trouble and expense of a full trial.”

9. In Shell Hong Kong, supra, the Court of Final Appeal had to consider the application of this approach in a case where a determination under Order 14A did not finally determine the entire cause or matter, but only an issue in the cause or matter. In such context, the Court of Final Appeal held that the application approach involved the consideration of the purpose and substance of the application, the issue determined by the court and the effect of such determination on the rights of the parties, the...

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20 cases
  • China Medical Technologies, Inc. (In Liquidation) v Bank Of China (Hong Kong) Ltd
    • Hong Kong
    • Court of Appeal (Hong Kong)
    • 2 April 2019
    ...if leave is required has recently been discussed by another division of this Court in Bright Shipping Ltd v Changhong Group (HK) Ltd [2019] HKCA 246. In that case, it was held that the proper approach to determine if an appeal is final or interlocutory is the application approach explained ......
  • Securities And Futures Commission v Lu Ruifeng And Others
    • Hong Kong
    • Court of Appeal (Hong Kong)
    • 24 February 2022
    ...which the Judge seems to have accepted.[14] 36. The Judge, however, relying on Bright Shipping Ltd v Changhong Group (HK) Ltd [2019] 2 HKLRD 220, considered that the essential question is whether the issue decided is an issue on the merits as opposed to merely a decision on a procedural ste......
  • Securities And Futures Commission v Lu Ruifeng And Others
    • Hong Kong
    • Court of Appeal (Hong Kong)
    • 24 February 2022
    ...which the Judge seems to have accepted.[14] 36. The Judge, however, relying on Bright Shipping Ltd v Changhong Group (HK) Ltd [2019] 2 HKLRD 220, considered that the essential question is whether the issue decided is an issue on the merits as opposed to merely a decision on a procedural ste......
  • Lo Ka Lee Kelly T/a Leader Packing (H.k.) Co. v Spiriant Asia Pacific Ltd
    • Hong Kong
    • District Court (Hong Kong)
    • 22 October 2021
    ...judgment.”[4] 30. Paragraph 31 in Shell Hong Kong Limited was also quoted in Bright Shipping Limited v Changhong Group (HK) Limited [2019] 2 HKLRD 220 by Lam VP (as his Lordship then “Chan PJ discussed the procedure under Order 14A at length and then considered how the application approach ......
    • Request a trial to view additional results

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