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Three Aspects of Inquiry into a Judgment: Comments on the High Court Decision, 1993 No. A8176, in the Supreme Court of Hong Kong

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Abstract

This article has been deemed an academic inquiry as well as critical comments on the specific High Court Decision on (Judgment) 1993 in the Supreme Court of Hong Kong, under UK governance. The following academic analysis and comments were strictly “taking facts as the basis, and taking laws as the criterion” (以事实为根据,以法律为准绳). They scientifically reached to the conclusion as follows: The judgment, which was made by the judge (namely, Mr. Kaplan) who heeded only one side, only according to the presumptuously fabricated rules (made by Mr. Dicks), as so-called legal principles applicable in China to bills of exchange and other payment instruments, will definitely lose all its legal binding effect when the whole truth comes out.

This article was first published in the Journal of International Arbitration (Geneva), Vol. 13, No. 4, 1996. The citation of and commentary on legal provisions in this article were based upon the related laws and regulations effective during that time. It is hereby suggested to check and compare them with the further development of these legal provisions since 1996, so as to better understand their historical, gradual maturity and obtain the most recent information.

Thanks are due to Professor Wei-Xian Wu, Dr Zhong Lin, and Ms Carol Chen for their kind help in preparing the English version of this article.

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Notes

  1. 1.

    This case was filed by the Court as 1993 No. A8176.

  2. 2.

    China Central Television (CCTV) in Beijing and Xing Yuan Industrial Ltd. in Shenzhen, China.

  3. 3.

    No. A158/4/92-01.

  4. 4.

    See “In the Supreme Court of Hong Kong, High Court, 1993, No. A8176, Appellant’s Hearing Bundle” (hereinafter “AHB”), pp. 108–119. The carbon copies of AHB are kept in the libraries of the Law Department, Xiamen University (hereinafter “XULAL”), and City University of Hong Kong (hereinafter “CULAL”). For the original, see the file on the case of the Supreme Court of Hong Kong, infra note 22.

  5. 5.

    See AHB, pp. 111–115.

  6. 6.

    Descriptions of these facts are scattered in the AHB. The parties did not dispute these facts during the proceeding in Hong Kong and the arbitration in Shenzhen.

  7. 7.

    “Writ of Summons/Statement of Claim,” 11 September 1993, AHB, pp. 2–3.

  8. 8.

    “Affirmation of Lam Kwai Hung [Lin Gui Hong],” 23 September 1993; “2nd Affirmation of Lam Kwai Hung”, 24 November 1993, AHB, pp. 5–6, 16–18 and 21–26.

  9. 9.

    There are similarities but also major distinctions between the procedure of “summary judgment” adopted by Hong Kong courts and the “summary procedure” or “hastening procedure” provided by the Civil Procedure Law of the PRC. See “Order 14 and 14A of the Rules of the Supreme Court (Hong Kong)” Articles 142–146 and 189–192 of the Civil Procedure Law of the PRC.

  10. 10.

    See “Summons” issued by the Registrar of the High Court of Hong Kong, 27 September 1993, AHB, pp. 8–10.

  11. 11.

    See “Order Before Master Woolley of Supreme Court in Chambers,” 7 December 1993, AHB, p. 271.

  12. 12.

    See North Sea Co.’s “Notice of Appeal to Judge in Chambers,” 8 December 1993, AHB, pp. 273–274.

  13. 13.

    See An CHEN, “Expert Opinions on the Disputes between York Co. and North Sea Co.,” 10 March 1994, AHB. A copy of it is kept in XULAL and CULAL.

  14. 14.

    See An CHEN, “An Important Supplement to Expert’s Opinion on the Disputes between York Co. and North Sea Co.,” 7 April 1994, AHB, XULAL and CULAL.

  15. 15.

    See “Affidavit of Zhuang Yao,” 4 April 1994, AHB, XULAL and CULAL.

  16. 16.

    See “Affidavit of Anthony Richard Dicks,” 5 August 1994. at p. 6, para. 12. and p. 15. para. 33, AHB, XULAL and CULAL.

  17. 17.

    Ibid., p. 5, para. 11.

  18. 18.

    Ibid., p. 15, para. 33.

  19. 19.

    Ibid., pp. 4–5 and 13–15. Mr. Dicks expressed these conclusions in an indirect way. However, his real opinions are quite explicit and unambiguous.

  20. 20.

    Filed in AHB, XULAL, and CULAL.

  21. 21.

    “Application for Arbitration, Hong Kong North Sea Co. v. U.S. York Co.,” 23 August 1994, compiled in CIETAC Shenzhen Commission File (hereinafter the “Arbitration File”), on Case [94] No. 84 XULAL and CULAL.

  22. 22.

    See “The High Court Judgment, 1993, No. A8176 in the Supreme Court of Hong Kong” (hereinafter “Judgment”), 16 December 1994, AHB, XULAL and CULAL.

  23. 23.

    See “Notice of Appeal,” 4 January 1995, submitted to the Hong Kong Court of Appeal by R.J. Faulkner, Barrister, on behalf of North Sea Co. compiled in AHB, XULAL, and CULAL.

  24. 24.

    See CIETAC Award [95] No. 84 Shen Guo Zhong Jie Zhi 16, 16 March 1995, Arbitration File, supra note 21.

  25. 25.

    See Judgment, supra note 22, pp. 27–29.

  26. 26.

    See AHB, p. 167.

  27. 27.

    Subject to the US embargo on exports of high-tech products to China, the four sets of watercooling systems supplied by York Co., which comprise microcomputer controlling centers, should not be sold to China. Therefore, the Bill of Lading specifically states: “These commodities licensed by the United States for ultimate destination Hong Kong. Diversion contrary to U.S. Law prohibited”: see AHB, pp. 108 and 164.

  28. 28.

    It was actually managed by Xing Yuan Industrial, Ltd.

  29. 29.

    See AHB, pp. 62–68, 85–91 and 112–117.

  30. 30.

    Ibid., p. 108.

  31. 31.

    The end of the contract states that “The Appendices to the Contract are indivisible parts of the Contract.” Ibid., p. 111.

  32. 32.

    The requirement that the supervising, inspecting, and operating personnel should come from and be sent back to Beijing, although not expressly stated in the contract, is clear at a glance in view of Article 13 of the sales contract between CCTV and Xing Yuan Industrial and in view of the fact that it was actually performed: ibid., pp. 39 and 42.

  33. 33.

    Ibid., pp. 111–115.

  34. 34.

    See Han Depei [1], p. 149.

  35. 35.

    Bill of Exchange No. YIHK 10732C, 3 June 1993, AHB, XULAL and CULAL.

  36. 36.

    Invoice HKB 10732C, 22 May 1993, AHB, XULAL and CULAL.

  37. 37.

    See AHB, p. 108.

  38. 38.

    See Judgment, supra note 22, p. 28.

  39. 39.

    UNCITRAL Model Law on International Commercial Arbitration, compiled in Laws of Hong Kong, CAp.341, Fifth Schedule.

  40. 40.

    Convention on the Recognition and Enforcement of Foreign Arbitral Awards, ibid., Third Schedule.

  41. 41.

    See A.V. Dicey and J.H.C. Morris [2], and 11th edition, Stevens & Sons Ltd., London, 1987, pp. 1161, 1182–1183, 1192; see also Compagnie Tunisienne de Navigation SA v. Compagnie D’Armement Maritime SA (1971), Opinions of Lords Wiberforce and Diplock, The Law Reports, 1971, Appeal Cases before the House of Lords, para. B, p. 596, and paras. D-E, p. 609, respectively.

  42. 42.

    See M.J. Mustill and S.C. Boyd [3], pp. 71–72.

  43. 43.

    See E.I. Sykes and M.C. Pryles [4].

  44. 44.

    See Judgment, supra note 22, p. 16. In the High Court Judgment, Judge Kaplan indicates: “I have carefully considered all of the issues raised by Ms. Eu Q.C. as to what is the proper law of this contract. However, I am not satisfied that those issues, taken together, amount to an ‘overwhelming combination of factors’ such as to displace the strong inference that the proper law of the contract should be determined by the place of arbitration. On that basis, I am therefore unwilling to find that any law other than Chinese law is the proper law of the contract.”

  45. 45.

    Ibid., pp. 27–29.

  46. 46.

    Article 178, The Interpretations of the Supreme People’s Court on Certain Problems Regarding the Implementation of the General Principles of Civil Law of the People’s Republic of China, Interim, 2 April 1988.

  47. 47.

    Part One, Articles 1 and 2, The Interpretations of the Supreme People’s Court on Certain Problems Regarding the Application of the Law on Economic Contracts Involving Foreign Interests, 19 October 1987, in Selections of the Gazette, Cases and Judicial Interpretations of the Supreme People’s Court, China’s Industry & Commerce United Press, Beijing, 1993, pp. 871–872.

  48. 48.

    See Han Depei, supra note 34, pp. 147–149.

  49. 49.

    See supra note 47, Part Two, Article 1, p. 872.

  50. 50.

    Id.

  51. 51.

    See Judgment, supra note 22, p. 20.

  52. 52.

    Ibid., p. 24.

  53. 53.

    Ibid., p. 25.

  54. 54.

    See “Affidavit of Anthony Richard Dicks”, supra note 16, p. 5, para. 11; and pp. 7–8, paras. 15–16.

  55. 55.

    Ibid., p. 8. paras. 17–18.

  56. 56.

    See Guo Feng, Certain Noticeable Problems on Trying Disputes over Payment Instruments by the Courts, Fazhi Ribao (Legal System Daily), 5 May 1992.

  57. 57.

    Ibid., Part 3, 19 May 1992.

  58. 58.

    See The Letter to Professor An CHEN from Mr Guo Feng, 24 August 1994, AHB, p. 356.

  59. 59.

    See The Compilation of and Comments on Bills Law, China Prosecution Press, 1994, p. 31.

  60. 60.

    For the Chinese version see ibid., Part III: International Conventions on Bills, pp. 1745–1746.

  61. 61.

    Law of Bills of the People’s Republic of China, Articles 10 and 11(1).

  62. 62.

    Ibid., Article 13(2)–(3).

  63. 63.

    Bao Gong was an upright and sagacious judge in the Song Dynasty. In a Beijing opera, it was said that a ghost once pretended to be Bao Gong and caused great confusion. But eventually the truth was clarified and the fake Bao Gong was punished by the real Bao Gong.

  64. 64.

    “Affidavit of Richard Anthony Dicks”, supra note 16, p. 12, para. 26.

  65. 65.

    Ibid., p. 12, para. 28.

  66. 66.

    Ibid., p. 13, para. 28.

  67. 67.

    See Judgment, supra note 22, pp. 2–3.

  68. 68.

    Kaplan to Quit the Bench, The New Gazette, Hong Kong, August 1994, p. 13.

  69. 69.

    See Board of Education v. Rice, The Law Reports (1911), Appeal Cases before the House of Lords, pp. 179, 182. See also Case and comments, Cambridge Law Journal, Vo1. 28, Part 2, November 1970, p. 177.

  70. 70.

    Civil Procedure Law of the People’s Republic of China, Articles 7 and 8.

  71. 71.

    Ibid., Article 64, paras. 1 and 3; Article 66; Article 125; Article 179, para. 1(4); Article 185, para. 1(3).

  72. 72.

    Article 2(1) (b), see supra note 40.

  73. 73.

    Article 34 (2) (a) (ii), see supra note 39.

References

  1. Han Depei (Ed.). (1985). Private international law (in Chinese). Wuhan: Wuhan University Press

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  2. Dicey, A. V., & Morris, J. H. C. (1993). The conflict of laws (12th ed., Vol. 2, pp. 1225–1226). London: Sweet & Maxwell.

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  3. Mustill, M. J., & Boyd, S. C. (1989). The law and practice of commercial arbitration in England (2nd ed.). London: Butterworths.

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  4. Sykes, E. I., & Pryles, M. C. (1991). Australian private international Law (3rd ed., p. 143). Sydney: The Law Book Co Ltd.

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  1. International Law, Xiamen University Law School, Xiamen, Fujian, 361005, China

    An CHEN (National Eminent & Senior Jurist Professor)

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CHEN, A. (2013). Three Aspects of Inquiry into a Judgment: Comments on the High Court Decision, 1993 No. A8176, in the Supreme Court of Hong Kong. In: The Voice from China. Understanding China. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-642-40817-5_24

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