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CACV 320/2005
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO. 320 OF 2005
(ON APPEAL FROM HCA NO. 146 OF 2004)
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BETWEEN
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GLOBAL PRESTIGE LIMITED |
Plaintiff |
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and |
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SEAPHONE
TEXTILE LIMITED |
Defendant |
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Before: Hon Tang JA and Chu J in Court
Date of Hearing: 14 October 2005
Date of Decision: 14 October 2005
Date of Reasons for Decision: 21 October 2005
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REASONS FOR DECISION
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Hon Tang JA (giving the reasons for decision of the Court):
1. The plaintiff’s claim against the defendant is for goods sold and delivered. The goods being corduroy fabric made to the following specifications: 98% cotton and 2% spandex, construction: 44x134 / 16sx20s+20s(70D). The corduroy fabric were delivered in batches. The defence is that the fabric delivered did not conform to the contractual specifications. The defence is supported by 20 reports produced by MTL-ACTS Testing Laboratory, which is a laboratory of international repute.
2. Both parties intend to call expert evidence. The defendant’s expert, whose report has been supplied, is Dr Au Kin-fan of the Hong Kong Polytechnic University. Dr Au’s evidence is that on the basis of the reports produced by MTL-ACTS the corduroy fabric could be regarded to be of inferior quality.
3. The trial has been fixed for hearing on 2 November 2005 with 3 November 2005 also reserved.
4. Those dates were fixed on 16 August 2005, during the summer vacation, after the defendant received a fax from the court on 10 August. At that time, the defendant was unable to contact Dr Au. So the dates were fixed when the defendant did not know Dr Au’s availability. The defendant was eventually informed by Dr Au by e-mail on 29 August that he would be unavailable because he would be away on duty, but that he would be available after 7 November.
5. On 3 September, the defendant’s solicitors wrote to the plaintiff’s solicitors informing them of the same and asked that the dates be refixed. There is some dispute about the plaintiff’s reaction to this which it is unnecessary for us to resolved.
6. There was a pre-trial review before Waung J on 13 September and it was on that occasion that the defendant asked for the dates to be refixed. Waung J refused. Hence the defendant appealed to us.
7. The judge did not give any reason. However, the transcript of the hearing is available and we have been asked by Mr Chum, counsel for the plaintiff, to note the following from the transcript. He said the judge had asked the defendant to try to persuade Dr Au to make himself available and to try to find another expert. By an affirmation of Wong Sing Nang dated 7 October 2005, we have been informed that Dr Au has remained unavailable and that the defendant has not been able to find an alternative expert.
8. Another reason which could be discerned from the transcript is that the judge thought the defendant “has a very weak case” and he did not seem to be impressed with Dr Au’s qualification. Miss Chow, who appeared for the defendant has submitted that these were part of the reasons for the judge’s refusal. Since the reasons of the Judge could only be gathered from the transcript, we do not believe we should pick and choose. It is only fair for us to proceed on the basis that these were part of the reasons for his decision.
9. We have to say that insofar as the Reports prepared by MTL-ACTS show that the composition of the fabric were e.g. “93.5% Cotton 4.6% Rayon 1.9% Spandex”, that did not conform to the contract (see Laboratory Report Number (5503) 213-0845). In another report (5503) 195-1371 A-B, it is shown that the yarn size was greater than the contractual requirement by the desirable margin. So we cannot agree that on the evidence available the defence could be described as weak. Moreover, we can see no reason why the Judge regarded Dr. Au’s qualification unfavourably.
10. Furthermore, as we have said Dr Au has remained unavailable and no alternative expert could be found.
11. For these reasons, we are of the view that we can exercise our own discretion in the matter.
12. Mr Chum argued that it is a rare case that this court would interfere with such an exercise of discretion. We agree.
13. He referred to Cheung Yee-mong v So Kwok-yan and Another [1996] 2 HKLR 48. In that case, this court interfered with an exercise of a similar discretion because the decision would cause serious prejudice and was unjust. We believe the order here would cause serious prejudice to the defendant and lead to an unfair trial.
14. Mr Chum further argued that the defendant could rely on the reports of MTL-ACTS only. But there is no reason why the defendant should be deprived of the evidence of Dr Au which Mr Chum has correctly accepted as relevant. This is not a case where one can say that the defendant is trying to delay the trial. Nor can one say the defendant was so seriously at fault that it could be said to the author of its own misfortune.
15. For the above reasons, we allowed the appeal.
16. Miss Chow has further submitted that having regard to the views so clearly expressed by the judge on the strength of the defence, such that he had ordered the defence to begin at the trial, we should direct that the trial should take place before another judge. That was not opposed. In all the circumstances, we made a direction accordingly.
17. We also order that the costs of the appeal should be the defendant’s costs in the cause.
(Robert Tang)
Justice of Appeal |
(Carlye Chu)
Judge of the Court |
Mr David Y F Chum, instructed by Messrs B Mak & Co., for the Plaintiff/Respondent.
Ms Monica Chow, instructed by Messrs S T Cheng & Co., for the Defendant/Appellant.
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