AMERICAN INTERNATIONAL GROUP, INC AND ANOTHER v. HUAXIA LIFE INSURANCE CO LTD

HCMP 3417/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 3417 OF 2016

(ON AN INTENDED APPEAL FROM HCCT NO 60 of 2015)

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JUDGMENT

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

1.  On 19 January 2017, this Court (Lam VP and Kwan JA) dismissed an application for leave to appeal in a summons of 7 December 2016 by the Plaintiffs in respect of a decision by M Chan J of 30 August 2016. By that decision, the judge dismissed an application by the Plaintiffs to set aside an arbitral award of 23 September 2015. The judge also refused leave to appeal on 6 December 2016.

2.  As we stated in the judgment of 19 January 2017, the refusal of leave by the judge is final by reason of Section 81(4) of the Arbitration Ordinance. The constitutionality of that statutory provision had been upheld by the Court of Appeal in China International Fund Ltd v Dennis Lau & Ng Chun Man Architects & Engineers (HK) Ltd [2015] 4 HKLRD 609.  In the written submission placed before us, the Plaintiffs advanced boldly that China International Fund had been wrongly decided without explaining why it was so.  Unless plainly wrong, China International Fund is binding on this court.  There was no effective argument that it was plainly wrong.  We therefore refused leave on paper.

3.  By a notice of motion of 27 January 2017, the Plaintiffs sought leave to appeal against our refusal of leave to the Court of Final Appeal. 

4.  In addition to Section 81(4) of the Arbitration Ordinance and China International Fund, the Plaintiffs faced the additional hurdle that by reason of Section 14AB of the High Court Ordinance, the refusal of leave by us on 19 January 2017 is final and there is no substantive decision by the Court of Appeal from which an appeal could be brought to the Court of Final Appeal. That analysis was confirmed by the Court of Final Appeal in Incorporated Owners of Po Hang Building v Sam Woo Marine Works Ltd FACV 20 of 2016, 29 May 2017.

5.  Mr Coleman SC (leading Mr Chow) submitted on behalf of the Plaintiffs that section 14AB could not be intended to frustrate the power of the final adjudication of the Court of Final Appeal in determining the constitutionality of a finality provision like Section 81(4) of the Arbitration Ordinance.

6.  Even assuming there is merit in such contention, it cannot be applied in the present case since the Plaintiffs had not advanced any effective submissions before us at the leave application to contest the constitutionality of Section 81(4).  In all the written materials lodged before us up to this hearing, no explanation had been offered as to why the Plaintiffs deemed fit to take such cavalier approach in the summons of 7 December 2016.  The consequence was that when this Court refused leave on 19 January 2017 the was no opportunity for us to address the substantive arguments of the Plaintiffs on the constitutionality of Section 81(4) other than by reference to China International Fund.  

7.  Belatedly, substantive arguments on constitutionality of Section 81(4) were now put forward in the skeleton submissions of the Plaintiffs in support of the motion.  We must say immediately that, as far as we are concerned, a motion for leave to appeal to the Court of Final Appeal is not the appropriate occasion for running arguments which should have been canvassed at the original application in this Court.  The public interest on finality of litigation is important.  A party should put forward his submissions in the original application as opposed to leaving it to be argued at Court of Final Appeal, or for that matter, at the stage of application for leave to appeal to the Court of Final Appeal.  This Court cannot determine the matter afresh in an application for leave to appeal to the Court of Final Appeal.  It is for that reason this Court adopts the practice of not granting leave on points not argued before us at the appeal stage: Ageas Insurance Co Ltd v Lam Hau Wah Inneo CACV 65 of 2014, 19 May 2015; The Law Society of Hong Kong v A Solicitor CACV 78 of 2014, 10 July 2015.

8.  Thus, we are not minded to entertain at length Mr Coleman’s submissions on constitutionality of Section 81(4) in the context of this Motion.  Suffice for us to say we do not find the submissions to be so compelling to merit China International Fund being revisited.  We do not think the fourth element of the proportionality test adopted in Hysan Development v Town Planning Board (2016) 19 HKCFAR 372 would make any difference.  In that regard, bearing in mind the legitimate aim for Section 81(4), [54] of the judgment of Ribeiro PJ in Incorporated Owners of Po Hang Building v Sam Woo Marine Works Ltd FACV 20 of 2016 is equally apposite in the present context.

9.  For these reasons, we dismiss the motion of 27 January 2017.