PAT BOBBY YING HO AND ANOTHER v. HONG KONG SOLICITORS INDEMNITY FUND LTD

HCCT 40/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTRUCTION AND ARBITRATION PROCEEDINGS

NO. 40 OF 2004

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J U D G M E N T

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1. By an Originating Summons dated 1 June 2004, placed before me on 2 June 2004, the Respondent applied ex parte for an order under Arbitration Ordinance (Cap. 341) s. 2GC(3) that a subpoena be issued to compel Joseph Chan Kwok Yim to appear as a witness at an arbitration between the Claimants and the Respondent scheduled to start on 15 June 2004 before Mr Roger ter Haar QC as Arbitrator.

2. Mr Chan, a former solicitor, had been sent to prison in 2000 following conviction for fraud. The Respondent's solicitors Messrs Herbert Smith ("Herbert Smith") had tried to contact him there, but received no response. In February 2004 Herbert Smith learned that Mr Chan had been released from Tung Tau Correctional Institution. Herbert Smith subsequently learned that Mr Chan was staying at a "Pelican House" in Chai Wan as part of a conditional release scheme. He was due for unconditional release on 6 June 2004 and it was feared that thereafter Herbert Smith would not be able to find him.

3. In preparing for the Originating Summons application Herbert Smith wrote to the Arbitrator on 31 May 2004 for an indication whether he agreed that "it would assist [him] to have Mr Chan available to give evidence at the hearing, so that we may exhibit your response to our application". By e-mail dated 31 May 2004 the Arbitrator stated that he would normally be reluctant to respond to a letter from one party's solicitors before hearing from the other party's solicitors. But, given the urgency of the matter, the Arbitrator had decided to respond immediately, although he wanted to "make it clear that what is set out herein is only a provisional view". The Arbitrator continued:-

"My immediate reaction is that it would be more desirable to have Mr Chan's evidence from him in person than indirectly through your witness statement. To that extent I believe that his evidence would be of assistance.

However I would need considerable persuasion that he should be called as a witness without a proof of his evidence having been provided in advance of the hearing, although I can see possible practical difficulties in this being arranged."

As he was at home at the time of sending the e-mail and did not have the Claimants' contact details, the Arbitrator requested Herbert Smith to pass a copy of his message to the Claimants. Herbert Smith did this.

4. Herbert Smith replied to the Arbitrator by letter dated 31 May 2003. Herbert Smith pointed out that a previous statement from Mr Chan had been annexed to the Respondent's Points of Defence in the arbitration. Herbert Smith intended to furnish a further statement prior to the hearing, but was unsure whether Mr Chan would cooperate. Herbert Smith would not be able to pursue this point unless and until Mr Chan had been ordered to attend the hearing. Herbert Smith concluded the letter:-

"Could you please let us know whether you agree to us proceeding on this basis. We shall, of course, produce copies of this correspondence to the Court, so that your views are made known to the Court."

To this letter the Arbitrator replied:-

"On the basis that the evidence to be given will be substantially in accordance with the witness statement to which you refer, it seems to me more desirable for Mr Chan to come to the hearing to give his evidence and be cross-examined than for his statement to stand unchallenged and incapable of exploration.

Accordingly you may take it that I am broadly supportive of your application to the court, in so far as it is appropriate for me to have any view on the matter. However because of the urgency with which this has arisen I have not heard the Claimant's views and those which I express remain provisional."

Again the Arbitrator requested that his e-mail be copied by Herbert Smith to the Claimants. This was done.

5. I granted the ex parte order sought on 3 June 2004.

6. The Claimants now apply ex parte on notice for interim relief in connection with a motion to set aside my order, to have the Arbitrator removed for misconduct and to enjoin the Respondent from proceeding with the arbitration until further order.

7. Mr Brian Wong for the Claimants has argued that by the subpoena the Court was "in effect granting an open order to the Respondent to fish because the Respondent was not entitled to call for the oral evidence of Chan Kwok Yim Joseph". There is no merit to this argument. The subpoena order simply compels Mr Chan's appearance at the arbitration. Whether or not the Arbitrator allows the Respondent to adduce any evidence oral or written from Mr Chan has not been determined. It remains open for the Claimants to argue in the arbitration that no or limited evidence should be called from Mr Chan.

8. Mr Wong argues that by his correspondence with Herbert Smith the Arbitrator has shown bias or the appearance of bias. Again there is no merit in this point. The Arbitrator made it clear that his views were purely provisional. He responded as he did simply in the light of the urgency of the matter. Whether or not he would actually hear any evidence from Mr Chan was left open (as the Arbitrator has himself subsequently confirmed in correspondence with the parties). In my judgment, the Claimants have failed to show a serious or arguable case as to bias or its appearance. There is no case for misconduct (technical or otherwise) on the part of the Arbitrator.

9. In light of my conclusions on the foregoing points, the Claimants have failed to show a serious or arguable case, warranting the grant of any interim injunctive or other relief.

10. I add that to my mind there was no reason for the application to have been made ex parte. The application was made yesterday (Tuesday). If one allows 2 clear days' notice from yesterday, it would have been possible to hear the application inter partes on 11 June 2004 (Friday) or even 14 June 2004 (Monday), both dates prior to the scheduled hearing of the arbitration on 15 June 2004.

11. Accordingly, the Claimants' ex parte application for interim relief is refused.