STANLEY HO AND ANOTHER v. WINNIE HO

FAMV 52/2008

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 52 OF 2008 (CIVIL)

(ON APPLICATION FOR LEAVE TO APPEAL FROM CACV NO. 329 OF 2007)

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D E T E R M I N A T I O N

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Mr Justice Bokhary PJ :

1.  Proceedings having been brought against them in Hong Kong by the plaintiff, the defendants applied for a stay of those proceedings in favour of the courts of Macau on the ground of forum non conveniens.  A stay having been refused by Hartmann J (as he then was) and such refusal having been affirmed by the Court of Appeal, the defendants now apply for leave to appeal to the Court of Final Appeal. 

2.  There has never been any dispute that Macau is the natural forum for the disposal of the plaintiff’s claim.  Mr Justice Hartmann refused the stay for these reasons.  He found that the plaintiff and her legal advisers had been subjected to a campaign of intimidation and that she had an understandable fear for her personal safety in Macau such that she would not go there even if she could not sue here.  We pause to observe that just because the plaintiff’s legal advisers are willing to go to Macau even at personal risk does not negative the disadvantage.  Mr Justice Hartmann concluded that the plaintiff would, in the circumstances as he found them, be deprived of a legitimate juridical advantage in any proceedings in Macau.

3.  In their appeal to the Court of Appeal, the defendants did not challenge the finding that the plaintiff had an understandable fear for her personal safety in Macau such that she would not go there even if she could not sue here.  But they challenged the conclusion that she would therefore be deprived of a legitimate juridical advantage in any proceedings in Macau.

4.  The expert evidence which has been adduced as to the law of Macau is broadly to this effect.  A party cannot testify in support of his or her own case but can be called upon by the court or a counterparty to attend for the purposes of clarifying or admitting matters adverse to his or her own case.  And any unjustified failure to attend for such purposes can lead to the court treating certain adverse facts as proved against him or her.

5.  Although Mr Michael Thomas SC for the defendants has raised other reasons why it is contended that an appeal to the Court of Final Appeal in this matter would be warranted and worthwhile, the defendants’ principal complaint is that the Court of Appeal decided against them by reversing the burden so as to require them to prove that a failure on the plaintiff’s part to attend would be treated as justified.  Unless left with nothing on which to do so, courts naturally tend to decide cases on something more satisfying than the burden of proof.  They do not tend to decide cases on the burden of proof, let alone a reversal of it.  Their natural tendency is to look at the evidence as a whole, and decide on the basis of what emerges from all the evidence properly assessed.  Upon a full and fair reading of their judgment, we do not consider it reasonably arguable that the Court of Appeal’s decision was reached in the way asserted by the defendants in their complaint.  Nor do we consider it reasonably arguable that the Court of Appeal have proceeded in the absence of evidence or have misapprehended the evidence or that their discretion has in any way miscarried.  Leave to appeal is accordingly refused.