SUEN WAH LING t/a KONG LUEN CONSTRUCTION ENGINEERING CO v. CHINA HARBOUR ENGINEERING CO (GROUP)

cacv 336/2006

in the high court of the

hong kong special administrative region

court of appeal

civil appeal no. 336 of 2006

(on appeal from HCCT NO. 2 of 2006)

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JUDGMENT

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Hon Rogers VP:

1.  This is an application for leave to appeal to the Court of Final Appeal from a judgment of this court given on 20 April with the reasons handed down on 25 April this year.

2.  The history of the matter is set out in the judgment of this court and in the judgment of Reyes J in the court below from whom that appeal was brought.  The Applicant clearly has a strong sense of grievance, which stems from the underlying dispute between himself and the Respondent.  The difficulty, however, is that the Applicant’s dispute was resolved by an arbitration and the final award of that was given on 17 January 2005.  Although the Applicant did initially seek to challenge the award on a number of grounds, that challenge was abandoned by the Applicant when he was represented by his first firm of solicitors.  Since then the Applicant has made various attempts to resurrect the matter and this attempt is made on the basis of an attack against the arbitrator on the basis of apparent bias.

3.  In order to indicate that this court was not proceeding on a mere technicality, that allegation was considered in the course of this court’s judgment.  Nevertheless, this court felt constrained to agree with the judge below that this matter was raised far too late.

4.  The ground put forward in the notice of motion is that this application comes within section 22(1)(a) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484.  In my view it clearly does not, because this was an interlocutory application and, if necessary, I so decide that now.  But this was an interlocutory application, it was heard by two judges and, clearly, right at the beginning this court considered that matter before proceeding with it.  In those circumstances, the matter cannot come within section 22(1)(a) of the Hong Kong Court of Final Appeal Ordinance and leave cannot be given on that ground.

5.  In order to alleviate any concern that might be held by the Applicant, I can also say that I do not see that there were any grounds under section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance that the matter is of great or general public importance.  I do not see any question of that arises because this court applied the law as to bias and apparent bias by judges and adjudicators and I cannot see any grounds for challenging the basis upon which this court decided that.  If there were any challenge, it would be in relation to a matter of fact and that could not be a matter of great or general public importance.

6.  In my view, therefore, this application has to be dismissed.

Hon A Cheung J:

7.  I agree.

(Submissions re costs)

Hon Rogers VP:

8.  We will dismiss this application with costs.