Law and Justice in Hong Kong (PDF, 4th Edition)

26 OCT 2022 Law and Justice in Hong Kong: Principles of the Legal System, Fourth Edition Sweet & Maxwell HK This PDF...

26 OCT 2022 Law and Justice in Hong Kong: Principles of the Legal System, Fourth Edition Sweet & Maxwell HK This PDF Contains CHAPTER 9 CIVIL JUSTICE, p.397 1. Introduction, p.399 26 OCT 2022 PAGE 397 Law and Justice in Hong Kong: Principles of the Legal System, Fourth Edition CHAPTER 9 CIVIL JUSTICE CHAPTER 9 CIVIL JUSTICE PARA. 1. Introduction 9.001 2. Civil Litigation 9.006 (a) Fundamentals of civil litigation 9.006 (i) Civil wrongs 9.006 (ii) Burden and quantum of proof in civil proceedings 9.008 (iii) The civil courts and the sources of civil procedure 9.012 (iv) Civil Justice Reform 9.016 (v) Case-management summons and conference 9.032 (vi) Other interim remedies 9.034 (vii) Settlement 9.035 (viii) Trial 9.036 (ix) Remedies 9.040 (x) Civil appeals 9.041 (xi) Costs 9.042 (xii) Enforcement of judgments 9.043 (b) Class actions 9.046 (c) Evaluating civil litigation 9.050 3. Arbitration 9.053 (a) Overview 9.053 (b) The development of arbitration in Hong Kong 9.057 (c) The new Arbitration Ordinance 9.060 (d) Arbitration institutions 9.069 (e) Evaluating arbitration 9.072  (f) Mutual enforcement of arbitral awards between Hong Kong and 9.075 Mainland China 4. Mediation 9.077 (a) Overview 9.077 (b) Judicial promotion of mediation since the Handover 9.079 (c) Financial mediation 9.084 (d) Other mediation services 9.088 (e) The Mediation Ordinance 9.089 (f) Accreditation of mediators 9.094 (g) Evaluating mediation 9.097 5. Summary 9.099 26 OCT 2022 PAGE 399 Law and Justice in Hong Kong: Principles of the Legal System, Fourth Edition CHAPTER 9 CIVIL JUSTICE 1. Introduction 1. INTRODUCTION 9.001 The civil justice system exists to resolve disputes between legal persons in accordance with the law. In the common law world, this system provides citizens with institutionalised processes by which their disputes may be resolved, grievances redressed, and rights and obligations upheld.1 These processes can broadly be classified into two categories: (1) Traditional dispute resolution: litigation in the civil courts, where disputes are resolved through public proceedings, normally resulting in a binding determination on legal and equitable rights, whose purpose is to do justice between legal persons.2 (2) Alternative dispute resolution: all resolution forums other than litigation, where the parties to a dispute may by agreement appoint a neutral third party to help settle it in a private, confidential setting.3 9.002 The role of the common law courts in civil litigation is not merely to resolve disputes, but also to put citizens’ lawful rights into effect through the doctrine of precedent. In R (on the Application of UNISON) (Appellant) v Lord Chancellor,4 the Supreme Court of the United Kingdom (Lord Reed JSC) stated: Access to the courts is not … of value only to the particular individuals involved. That is most obviously true of cases which establish principles of general importance. When, for example, Mrs Donoghue won her appeal to the House of Lords (Donoghue v Stevenson AC 562), the decision established that producers of consumer goods are under a duty to take care for the health and safety of the consumers of those goods: one of the most important developments in the law of this country in the 20th century. To say that it was of no value to anyone other than Mrs Donoghue and the lawyers and judges involved in the case would be absurd. 9.003 Traditional dispute resolution therefore provides the community with a public service critical to the maintenance of the rule of law.5 Arbitral tribunals or panels of mediators do not play the same role as the courts in setting general standards and norms for the protection of rights under civil law.6 Lord Thomas of Cwmgiedd, Lord Chief Justice  of England and Wales between 2013 and 2017, denounced as ‘fallacious’ the notion that ‘the justice system does no more than provide a dispute resolution service’.7 He wrote in no uncertain terms: The civil justice system ensures that [the institutions of government], just as much as the state’s citizens, act within the law. A consumer service merely resolving disputes cannot play such a role. Mediation, for all its rightly recognized virtues, cannot do so. Nor can arbitration, nor any ombudsman.8 9.004 The courts have nonetheless played an active role in promoting the use of alternative dispute resolution. The Department of Justice’s Task Force on Vision 2030 noted: Hong Kong courts have encouraged the use of alternative dispute resolution, including mediation, to facilitate the resolution of disputes rather than litigation so as to shorten the resolution process. They also demonstrate that over the past few years, court-directed mediations in Hong Kong have resulted in amicable settlement in approximately 60% of the mediations, amounting to a reduction of around 600 court cases annually. Whilst the data would show the extent to which mediation has effectively alleviated the burden on the courts’ operation.9 9.005 This chapter examines the various facets of the civil justice system. By the end of this chapter, the readers should be able to: (1) understand the basic concepts of civil litigation and the changes to the traditional adversarial model introduced by the Civil Justice Reform; (2) make sense of how a civil case normally progresses through the Court of First Instance; (3) appreciate the choice of language in civil trials, plus the debate about the introduction of class action; (4) understand the concept of alternative dispute resolution;10 and (5) appreciate Hong Kong’s internationalised arbitration regime, as well as the state of mediation of financial disputes in light of the Special Administrative Region’s status as an international financial centre. FOOTNOTES 1 A Gillespie and S Weare, The English Legal System (Oxford University Press, 8th ed 2021) 627: an application for judicial review, technically a form of civil litigation, will not be examined in this chapter; it suffices to point out that ‘[i]nstead of two sides arguing over money or some other form of dispute, judicial review is about holding the state to account’. 2 L Macgregor, C Peacey and G Ridsdale, Civil Litigation (Oxford University Press, 14th ed 2021) 9. 3 W Gu, ‘Civil Justice Reform in Hong Kong: Challenges and Opportunities for Development of Alternative Dispute Resolution’ (2010) 40 HKLJ 43, 50. 4 AC 869, 897. 5 A Zuckerman, ‘The Challenge of Civil Justice Reform: Effective Court Management of Litigation’ (2009) 1 City University of Hong Kong Law Review 49, 53. 6 SF Ali and AD Roza, ‘Alternative Dispute Resolution Design in Financial Markets — Some More Equal than Others: Hong Kong’s Proposed Financial Dispute Resolution Center in the Context of the Experience in the United Kingdom, United States, Australia, and Singapore’ (2012) 21 Pacific Rim Law & Policy Journal 485, 487. Alternative dispute resolution may not be suitable for every civil dispute. The use of alternative dispute resolution in constitutional or administrative conflicts between public authorities and citizens entails the diversion of such disputes towards a private mechanism invisible to the public eye, if not also immune from public scrutiny. This may be problematic, insofar as ‘there are some matters that are so important that public knowledge of the case, judicial oversight of the actions of government, and a judgment requiring the executive or other public body to act within the law are integral to the rule of law’; ‘[t]hese cases need to be judged in the ordinary courts by the judiciary, rather than be the subject of a deal brokered behind closed doors’. L Webley and H Samuels, Complete Public Law (Oxford University Press, 5th ed 2021) 111. 7 J Thomas, ‘The Centrality of Justice: Its Contribution to Society and Its Delivery’ in J Cooper (ed), Being a Judge in the Modern World: A Collection of Lectures from Some of the Most Eminent Judges and Legal Commentators in the UK and Beyond (Oxford University Press, 2017) 149, 151. 8 Ibid., 152. 9 Task Force on Vision 2030 for Rule of Law, Report (Department of Justice, 2022) 55. 10 ‘Alternative dispute resolution’ is an umbrella term which encompasses a wide variety of dispute resolution methods including arbitration, med-arb, rent-a-judge, conciliation, mediation, dispute resolution boards, early neutral evaluation, and expert determination; see, C To, ‘Alternative Dispute Resolution’ in DK Srivastava (ed), Business Law in Hong Kong (Sweet & Maxwell, 6th ed 2020) 777, 778. It is beyond the scope of this book to cover each of these, though it is interesting to point out that ‘med-arb is an integral part of the arbitration process and is still widely used [in Mainland China]’, wherein ‘[t]he arbitral tribunal may attempt mediation before proceeding to arbitration, and med-arb has the strength of transforming a settlement agreement into a binding arbitral award’: Y Zhao, Mediation and Alternative Dispute Resolution in Modern China (Springer, 2022) 20. © 2022 Thomson Reuters Hong Kong Limited 26 OCT 2022 Law and Justice in Hong Kong: Principles of the Legal System, Fourth Edition Sweet & Maxwell HK This PDF Contains (i) Civil wrongs, p.401 (ii) Burden and quantum of proof in civil proceedings, p.402 (iii) The civil courts and the sources of civil procedure, p.403 (iv) Civil Justice Reform, p.405 (v) Case-management summons and conference, p.411 26 OCT 2022 PAGE 401 Law and Justice in Hong Kong: Principles of the Legal System, Fourth Edition CHAPTER 9 CIVIL JUSTICE 2. Civil Litigation (a) Fundamentals of civil litigation (i) Civil wrongs (i) Civil wrongs 9.006 A civil lawsuit is brought when a plaintiff alleges an injury suffered owing to a wrongdoing of a defendant. Examples of civil wrongs include:11 (1) Breach of contract: when a party fails to perform a contractual obligation, performs it defectively or refuses to fulfil the obligation.12 (2) Tort: failure to live up to a reasonable standard expected of a member of the community by way of infringing interests such as ‘a person’s physical safety; personal freedom; business interests; property interests, including possession and enjoyment of property; reputation; and intellectual and industrial property’.13 Examples of torts include negligence, defamation, nuisance and sexual harassment.14 In contrast to criminal law, ‘[t]law is more concerned with compensating the victim rather than punishing the wrongdoer’.15 (3) Breach of trust: failure of a trustee to fulfil his duties to the trust; this may be caused by acting beyond the scope of powers conferred by the trust instrument on the trustee, the common law, or legislation, not adhering to the instructions contained in the trust instrument or not discharging his duty of care properly.16 9.007 An alleged civil wrong may form the basis of a ‘cause of action’. A cause of action refers to a good claim in law. Whether the claim is good depends on the sufficiency of evidence to support such a claim, and on whether the claim squares with existing legal rules defining the lawful relationship between the plaintiff and the defendant.17 For example, to prove a cause of action in breach of contract, one must identify each ingredient of that cause of action: ‘the existence of the contract, the existence of the relevant terms of the contract, and the breach of those terms’.18 An allegation of breach of contract cannot give rise to a cause of action between parties who never intended to enter into a ‘contract’ with each other in the first place (eg a family arrangement between mother and son).19 To prove a cause of action in tort, one must identify each of the following two ingredients: ‘(a) the risk of injury/harm be foreseeable by the defendant and (b) a causal connection between the negligence of the defendant and the injury/harm to the plaintiff’.20  Furthermore, the doctrine of res judicata (‘a matter adjudicated already’) bars a prospective plaintiff from bringing a legal claim that has already been determined conclusively in a previous court proceeding.21 Overall, in order to succeed, a party should strive to demonstrate to the Court ‘how well it can prove, with the evidence that it has, the truth of each and every fact that shows that each and every required ingredient of the cause of action is fulfilled’.22 FOOTNOTES 11 A restitutionary obligation is a civil obligation which may give rise to lawsuits even though it does not require the existence of a wrongful act, but only a situation involving unjust enrichment or agency without authority; see, P Stone, ‘The Rome II Proposal on the Law Applicable to Non-contractual Obligations’ (2004) 4 The European Legal Forum 213, 214. Under the law of restitution, a plaintiff can generally recover money mistakenly paid to a defendant (on the mistaken belief that it was owed to the defendant), even though the latter is not liable to the former in contract; see, ATH Smith, Glanville Williams: Learning the Law (Sweet & Maxwell, 17th ed 2020) 7. 12 L Mason, Contract Law in Hong Kong (Sweet & Maxwell, 2011) 327. 13 DK Srivastava, ‘Tort Law’ in DK Srivastava (ed) Business Law in Hong Kong (Sweet & Maxwell, 6th ed 2020) 543, 547–548. 14 S Wilson, H Rutherford, T Storey, N Wortley, B Kotecha, English Legal System (Oxford University Press, 4th ed 2020) 567. 15 Ibid. 16 S Gallagher, Equity and Trusts in Hong Kong: Doctrines, Remedies and Institutions (Sweet & Maxwell, 2nd ed 2020) 605. 17 D Clark, Civil Litigation in Hong Kong (Sweet & Maxwell, 6th ed 2022) 35. 18 D Lau, Civil Procedure in Hong Kong: A Guide to the Main Principles (Sweet & Maxwell, 4th ed 2017) 27. 19 DK Srivastava, ‘Contract Law’ in DK Srivastava (ed) Business Law in Hong Kong (Sweet & Maxwell, 6th ed 2020) 47, 97. 20 Liu Shih Teng v HKCC Dotcod Ltd 2 HKLRD 349, 421 (Marlene Ng J). 21 Commissioner of Registration v Registration of Persons Tribunal (re: Wang Min) 4  HKLRD 810, 818 (Thomas Au J). 22 D Lau, Civil Procedure in Hong Kong: A Guide to the Main Principles (Sweet & Maxwell, 4th ed 2017) 27. 26 OCT 2022 PAGE 402 Law and Justice in Hong Kong: Principles of the Legal System, Fourth Edition CHAPTER 9 CIVIL JUSTICE 2. Civil Litigation (a) Fundamentals of civil litigation (ii) Burden and quantum of proof in civil proceedings (ii) Burden and quantum of proof in civil proceedings 9.008 ‘Burden of proof’ addresses the question of which party is obligated in law to prove a given fact in issue. The general rule in civil procedure is that the party alleging the fact has the ‘legal burden’ to prove it by leading sufficient evidence of it to meet the ‘evidential burden’ of showing that it is properly an issue in the proceedings.23 The ‘quantum of proof’ or ‘standard of proof’ means the degree of persuasion required for the proponent to establish a particular fact in issue.24 9.009 The criminal and civil quantum or standards of proof are the only two standards of proof in Hong Kong law. In Solicitor (24/07) v Law Society of Hong Kong,25 Bokhary PJ briefly compared and contrasted these two standards: Only two standards of proof are known to our law. One is proof beyond reasonable doubt and the other proof on a preponderance of probability. The strength of the evidence needed to establish such a preponderance depends on the seriousness and therefore inherent improbability of the allegation to be proved. A criminal charge must be proved beyond reasonable doubt. A civil claim, on the other hand, is to be proved on a preponderance of probability. 9.010 The quantum of proof in civil proceedings, including disciplinary proceedings, consists of a ‘preponderance of probability’, also known as ‘balance of probabilities’. In Taching Petroleum Co Ltd v Meyer Aluminium Ltd,26 the Competition Tribunal (Queeny Au-Yeung J) held: The civil standard of proof on the balance of probabilities applies [to an allegation of price fixing, ‘considered serious anti-competitive conduct under section 2 of the Competition Ordinance’]. This standard will not be heightened because of the gravity of the allegations. The party bearing the burden of proving a serious allegation must discharge the burden with evidence of commensurate cogency. The more serious the allegation, the stronger should be the evidence before the court would conclude that the allegation is established on the balance of probabilities. See Re H AC 563, Lord Nicholls; Nina Kung v Wang Din Shin (2005) 8 HKCFAR 387 at §§182 & 184, Television Broadcasts Ltd v Communications Authority (‘TVB v CA’) 2 HKLRD 41 at §296, G Lam J (as he then was). 9.011 In Re H (Minors) (Sexual Abuse: Standard of Proof),27 Lord Nicholls of Birkenhead explained the principle of ‘the more serious the allegation, the stronger should be the evidence’ in the following words: The balance of probability standard means that a court is satisfied an event occurred if the court considers that, on the evidence, the occurrence of the event was more likely than not. When assessing the probabilities the court will have in mind as a factor, to whatever extent is appropriate in the particular case, that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability. Fraud is usually less likely than negligence. Deliberate physical injury is usually less likely than accidental physical injury. A stepfather is usually less likely to have repeatedly raped and had nonconsensual oral sex with his underage stepdaughter than on some occasion to have lost his temper and slapped her. Built into the preponderance of probability standard is a generous degree of flexibility in respect of the seriousness of the allegation. FOOTNOTES 23 J Gans and A Palmer, Uniform Evidence (Oxford University Press, 2010) 354. 24 See, T Anderson, D Schum and W Twinning, Analysis of Evidence (Cambridge University Press, 2nd ed 2005) 385. 25 (2008) 11 HKCFAR 117, 145. 26 HKCT 2,. 27 AC 563, 586. 26 OCT 2022 PAGE 403 Law and Justice in Hong Kong: Principles of the Legal System, Fourth Edition CHAPTER 9 CIVIL JUSTICE 2. Civil Litigation (a) Fundamentals of civil litigation (iii) The civil courts and the sources of civil procedure (iii) The civil courts and the sources of civil procedure 9.012 Consider judicial institutions having varying roles to play in traditional dispute resolution. The courts having civil jurisdiction in Hong Kong are the Court of Final Appeal, the Court of Appeal, the Court of First Instance, the Competition Tribunal, the District Court and the Lands, Labour and Small Claims Tribunals. Civil courts resolve disputes between legal persons and award appropriate remedies, usually in the form of monetary damages, to successful parties.28 The Market Misconduct Tribunal is an administrative tribunal, not a court, competent to impose civil penalties.29 The Magistrates’ Courts, whose jurisdiction is predominantly criminal by nature, are empowered nonetheless to enforce civil debts.30 9.013 The functions of the Judiciary are not confined to deciding substantive outcomes. In Chong Yu On v Kwan SH Susan,31 the Court of Appeal (Lam V-P) reiterated its observation nearly two decades ago in Ma Kwai Chun v Queeny KY Au-Yeung 32 as follows: Judicial functions are not limited to deciding cases. In view of society’s demands and expectations of the judicial system, most of the time, judges and other judicial officers have to conduct hearings on case management and to make decisions on related arrangements, so as to ensure the fair disposal of cases quickly and effectively. The hearings and decisions made on procedural matters by members of the judiciary are actually part of the process of the court in the enforcement of judgments which are inseparable. 9.014 Some civil cases can be dealt with by either the High Court or the District Court. A plaintiff pursuing a claim of less than HK$3 million (US$382,689.7) may choose to pursue it in the District Court (an inferior court) or in the Court of First Instance (a superior court). Pursuing a claim in the Court of First Instance has advantages and drawbacks.33 On the one hand, the conspicuousness of a claim for debt collection in this Court may alert the defendant’s creditors of the defendant’s financial creditability and pressure him to settle out of court. On the other hand, civil trials in the Court of First Instance tend to entail excessive expenditures of time and money that risk outweighing the benefits of winning. In Re Estate of Chow Nai Chee,34 the Court of First Instance (Lam J) commented on the choice between  starting a civil case in the High Court or the District Court in the light of the goals of the Civil Justice Reform: After the implementation of Civil Justice Reform, the court and the parties together with their lawyers should be more proactive in case management and more sensitive to cost effectiveness. It is necessary to have regard to the underlying objectives under O.1A in choosing the forum. In my experience, there are civil cases in the High Court that can be justly and efficiently dealt with in the District Court. In many cases, a transfer to the District Court would bring about more expeditious and more cost-effective disposal of the case. To invoke s.44, the parties have to consent. That means a case cannot be transferred to the District Court if one or more parties object. However, a refusal to consent may be taken into account when the court considers the question of costs, particularly when the court has indicated that the case can properly be tried in the District Court and one party has agreed to such a course. 9.015 The rules of civil procedure are scattered in the various sources of law examined in Chapter 3. They may be found in primary legislation — the High Court Ordinance (Cap.4) or the District Court Ordinance (Cap.336); subsidiary legislation — the Rules of the High Court (Cap.4A, Sub.Leg.) or the Rules of the District Court (Cap.336H, Sub.Leg.) — Practice Directions; case law; even in practice books such as Hong Kong Civil Procedure (commonly known as the ‘White Book’).35 Practice Directions are the official statements of interpretive guidance of the Chief Justice or a specialist judge for his specialist list,36 which tell parties and lawyers what the court expects of them in legal proceedings. FOOTNOTES 28 E Finch and S Fafinski, Legal Skills (Oxford University Press, 8th ed 2021) 103. 29 Securities and Futures Commission v Tiger Asia Management LLC (2013) 16 HKCFAR 324, 330 (Lord Hoffmann NPJ). 30 Magistrates Ordinance (Cap.227) s.67. 31 2 HKLRD 407, 412–413. 32 HCA 771/2002, CHKEC 4914, 12 July 2002. 33 A McInnis and S Chan, ‘Legal System of Hong Kong’ in DK Srivastava (ed) Business Law in Hong Kong (Sweet & Maxwell, 6th ed 2020) 1, 37. 34 5 HKLRD 640, 651. 35 D Lau, Civil Procedure in Hong Kong: A Guide to the Main Principles (Sweet & Maxwell, 4th ed 2017) 3–4. 36 Rules of the High Court (Cap.4A, Sub.Leg.), O.1 r.4. 26 OCT 2022 PAGE 405 Law and Justice in Hong Kong: Principles of the Legal System, Fourth Edition CHAPTER 9 CIVIL JUSTICE 2. Civil Litigation (a) Fundamentals of civil litigation (iv) Civil Justice Reform (iv) Civil Justice Reform 9.016 In Hong Kong, the traditional model of both civil and criminal litigation is that of the adversarial trial. The essentials of adversarialism in civil proceedings are summarised in the following words of two non-permanent judges of the Court of Final Appeal sitting earlier as Justices of the High Court of Australia (that jurisdiction’s final appellate court). In Whitehorn v The Queen,37 Dawson J remarked on the nature of an adversarial trial: The adversary system is the means adopted and the judge’s role in that system is to hold the balance between the contending parties without himself taking part in their disputations. It is not an inquisitorial role in which he seeks himself to remedy the deficiencies in the case on either side. When a party’s case is deficient, the ordinary consequence is that it does not succeed. 9.017 Adversarialism prides itself on its emphasis on visible judicial neutrality in court proceedings. In Crampton v The Queen,38 Gleeson CJ underscored the advantages of the adversarial system: One of the objects of a system which leaves it to the parties to define the issues, and to select the evidence and arguments upon which they will rely, is to preserve the neutrality of the decision-making tribunal. Courts are hesitant to compromise features of the adversarial system which have implications fundamental to the administration of justice. 9.018 The function of the civil court is to weigh up the relative strength of the parties’ arguments and evidence against the law. The adversarial trial, as traditionally understood, is a competitive process to encourage lawyers seeking to discover evidence to seek thoroughly, and to identify the flaws in the other side’s evidence more aggressively than would be at all likely in a system where the judge is the principal discoverer.39 In Choi Yuk Ying v Ng Ngok Chuen,40 the Court of Appeal (Yuen JA) warned against judges from ‘wholesale copying of one side’s submissions was bound to raise doubts in the mind of the other side’ and insisted that judges should bring an independent mind to their judicial functions and adequately consider the points made by the other side. 9.019 Adversarialism, in its purest form, is not without disadvantages. It promotes a  ‘zero-sum’ mentality: ‘One party’s gain is the only party’s loss’.41 It incentivises the opposing lawyers to act as zealous partisans, presenting their cases in a way that has engendered a tradition of tactical manipulation and a proprietorship of witnesses.42 Cases are often won or lost depending on the quality of legal representation.43 The non-interventionism of judges allows the system to be abused by lawyers with excessive, unnecessary interlocutory applications and appeals, causing undue delay and high legal costs.44 This in turn effectively denies access to justice to poorer litigants, stultifies the principle of the equality of the wealthy with everyone else45 and wastes disproportionate sums of cash and man- hours that could have been spent on more social, productive activity.46 9.020 The Judiciary was already aware of these disadvantages during the earliest years of the resumption of the exercise of Chinese sovereignty. In his address to the Ceremonial Opening of the Legal Year 2000, Chief Justice Li declared the need to reform Hong Kong’s rules of civil procedure in light of the following fact: In a society governed by the rule of law, the legal system must ensure that the citizen has access to justice at reasonable cost and speed. To meet community expectations, the court system must be able to resolve disputes whether between citizen and citizen or between citizen and State, not only fairly but also economically and expeditiously. Justice which is not affordable or delayed will amount to a denial of justice.47 9.021 The Civil Justice Reform was launched to address these shortcomings without abolishing the adversarial system as a whole. In February 2000, the Chief Justice appointed a Working Party on Civil Justice Reform chaired by Mr Justice Patrick Chan, then permanent judge of the Court of Final Appeal and former Chief Judge of the High Court,48 tasked to examine and propose ways to reform the current civil justice system. Following nine years of consultation, discussion and drafting, many of the existing provisions of the Rules of the High Court and the District Court were modified or rewritten. The Reform entered into effect on 2 April 2009. It differed from the Woolf Reforms in England and Wales in that it did not result in a completely new code of civil procedure replacing the old rules;49 rather it cherry- picked those Woolf reform strategies which proved effective and abandoned those perceived ineffective.50 9.022 The Civil Justice Reform sought to strike the appropriate balance between justice and efficiency. It expects judges to play a more active role, legal practitioners to sharpen their professional skills and disputing parties to develop a stronger understanding of alternative dispute resolution mechanisms.51 In Wing Fai Construction Co Ltd v Yip Kwong Robert,52 Ma CJ discussed the purpose of the Civil Justice Reform from a judicial perspective: [T]he main purpose of the [Civil Justice Reform] was the intention to bring about a change in litigation culture. Broadly speaking … the principal themes of the [Civil Justice Reform] are:  To ensure that parties to litigation are brought as expeditiously as possible to a resolution of their disputes, whether by way of adjudication or by settlement. To ensure that parties to litigation are brought as expeditiously as possible to a resolution of their disputes, whether by way of adjudication or by settlement. To increase the cost effectiveness of the system of the civil procedure and to try to eliminate delays in litigation. To promote active case management by the courts and in doing so, not only facilitating the expeditious resolution of disputes, but also bearing in mind the position of other litigants and the courts’ own resources. To inculcate a culture among litigants and their legal representatives that there exists a duty to assist the court in furthering the principal themes of the [Civil Justice Reform]. To reduce, if not eliminate, those steps in proceedings, particularly interlocutory applications, which serve little purpose other than to prolong or render more costly civil proceedings. 9.023 The goals of the Civil Justice Reform have been codified into subsidiary legislation in no uncertain terms. Order 1A r.1 of the Rules of the High Court provides for the underlying objectives of the new post-civil justice rules as follows: (1) To increase the cost-effectiveness of any practice and procedure to be followed in relation to proceedings before the Court. (2) To ensure that a case is dealt with as expeditiously as is reasonably practicable. (3) To promote a sense of reasonable proportion and procedural economy in the conduct of proceedings. (4) To ensure fairness between the parties. (5) To facilitate the settlement of disputes. (6) To ensure that the resources of the Court are distributed fairly. 9.024 In LLC v LMWA,53 the Court of Appeal (Lam ACJHC and Chu J) explained: Since the Civil Justice Reform, all parties to litigation are under a duty to assist the court in the promotion of the underlying objective in Order 1A Rule 1, including a duty to co-operate in a process facilitating settlement. Thus, even in the context of general civil litigation, the courts expect litigants to explore settlement (with or without undergoing alternative dispute resolution process like mediation) in good faith. A failure to participate in mediation is a ground for costs sanction, see Practice Direction 31 paras 4 and 5, Golden Eagle International (Group) Ltd v GR Investment Holdings Ltd 3 HKLRD 273; Ansar Mohammad v Global Legend Transportation Ltd  3 HKLRD 273; Ansar Mohammad v Global Legend Transportation Ltd HCPI 1507/2007, 23 November 2010; Kwan Wing Leung v Fung Chi Leung DCPI 2489/2013, 13 September 2014; Wu Yim Kwong v Manhood Development Ltd 4 HKC 598. The Court has repeatedly deplored the nonsensical disproportionate litigation when other modes of dispute resolution were not explored: iRiver Hong Kong Ltd v Thakral Corporation (HK) Ltd CACV 252/2007, 8 August 2008; Incorporated Owners of Shatin New Town v Yeung Kui CACV 45/2009, 10 December 2009; Chiang Ki Chun Ian v Li Yin Sze CACV 26/2011, 21 October 2011; Lam Chi Tat Anthony v Kam Yee Wai Andrew CACV 139/2012, 28 January 2013; Chan Shun Kei v Hong Kong Construction (HK) Ltd CACV 192/2014, 7 March 2016. 9.025 The Civil Justice Reform assigned to civil judges a more interventionist role by way of active case management. Order 1A r.4 of the Rules of the High Court imposes a duty on the court to actively manage cases to achieve the above objectives by: (1) encouraging the parties to co-operate with each other in the conduct of the proceedings; (2) identifying the issues at an early stage; (3) deciding promptly which issues need full investigation and trial and accordingly disposing summarily of the others; (4) deciding the order in which the issues are to be resolved; (5) encouraging the parties to use an alternative dispute resolution procedure if the Court considers that appropriate and facilitating the use of such a procedure; (6) helping the parties to settle the whole or part of the case; (7) fixing timetables or otherwise controlling the progress of the case; (8) considering whether the likely benefits of taking a particular step justify the cost of taking it; (9) dealing with as many aspects of the case as practicable on the same occasion; (10) dealing with the case without the parties needing to attend at court; (10) making use of technology; and (11) giving directions to ensure that the trial of a case proceeds quickly and efficiently. 9.026 Civil proceedings are the last resort for disputing parties. O.1B r.1(2)(e) of the Rules of the High Court specifically provides as follows: The court has the power to stay the whole or part of any proceedings either generally or until a specified date or event it thinks appropriate in facilitating the parties to attempt alternative dispute resolution and procure settlement of the disputes between them. 9.027 The Civil Justice Reform introduced a requirement for all documents to be verified by a statement of truth if they are essential to civil litigation. The requirement can be found in O.41A r.2 of the Rules of the High Court, such that one is guilty of contempt of court if one makes a false statement presented as verified by a statement of truth.54 These documents include: (1) pleading; (2) witness statement; (3) expert report; and (4) any other document required by the rules of civil procedure. 9.028 One important aspect of the Civil Justice Reform is to have empowered courts to adopt interventionist stances to eliminate delays in civil proceedings. The Reform confined adversarialism to the trial stage, resigning the traditional passive non- interventionism of judges in favour of a more proactive, hands-on role in the pre- trial stages that seek to expose litigants to early assessment of the strengths and weaknesses of their own cases and to opportunities to settle.55 In Yang Yee Man v Leung Hing Hung (No 2),56 the Court of First Instance (Bharwaney J) illustrated the potential of the Reform to curtail the excesses of traditional adversarialism: Since the enactment of Civil Justice Reform, the courts have taken a far more proactive role in the conduct and management of cases, particularly personal injury cases. The essential purpose of taking a proactive role is to facilitate the parties to bring their case to court for the expeditious and proportionate resolution of the real issues raised, and not to permit them to obtain a perceived tactical advantage by maintaining positions which are unsustainable. 9.029 A committee exists to monitor the success of the Civil Justice Reform. A Civil Justice Reform Monitoring Committee, chaired by the Chief Judge of the High Court, was established in 2009 to monitor the implementation of the Reform in six broad areas: delay, settlement, mediation, costs, litigants in person and how specific changes work out in practice. As at 2018, members of the Committee included a Justice of Appeal, two High Court judges, the Registrars of the High Court and of the District Court, the Chief District Judge, a Master of the High Court and representatives from the Department of Justice, the Legal Aid Department, the Hong Kong Bar Association, the Law Society of Hong Kong and the Hong Kong Mediation Accreditation Association Limited and the Judiciary Administrator.57 9.030 The Civil Justice Reform has so far achieved moderate success. In March 2018, the Judiciary Administration reported that, since the Civil Justice Reform, judges have ‘taken up their case management roles more seriously to prevent abuses and excesses’; parties and their legal representatives have adopted ‘a more cost- conscious, efficiency-conscious and sensible approach in litigation, as compared with the Pre-[Civil Justice Reform] Period’58 and ‘are also more attuned to the  needs and expectations of the court, such as taking early preparatory actions before trials, and putting forward more realistic and practicable case management timetable/actions, as well as submitting few applications for changes in milestone dates and adjournment of trials’ and ‘trimming down the volume of case bundles and reducing the number of interlocutory applications’.59 In 2018–2019, the Civil Justice Reform-related caseload of the Court of First Instance stood at 5,230, compared to 5,431 cases in 2008–2009, right before the implementation of the Reform.60 In 2018–2019, there were 6,104 interlocutory applications in the Court of First Instance; as with the previous decade, the number of interlocutory applications per year exceeded 2,786 applications filed in 2008–2009.61 And there was no significant change to the number of case-management conferences in Civil Justice Reform-related cases, whether before or after the implementation of the Reform; the number in 2018–2019 stood at 755, compared to 799 in 2008– 2009.62 There was some improvement in relation to the reduction of delays though: ‘[d]espite a general increase in civil caseload since 2010 (from 16,483 in 2010 to 18,506 in 2018), the average court waiting time improved to 193 days in 2014 and remained below the target of 180 days since 2015’; ‘[i]t was 168 days in 2018’.63 9.031 Without in-depth empirical research by civil justice experts into the realities behind these statistics, it is unwise to conclusively declare the Reform to be either an unqualified success or an unqualified failure on the basis of such crude figures. This was why, in October 2020, Chief Justice Ma ‘qualified [his] applause for the success of the [Civil Justice Reform] in Hong Kong by saying that we still have some way to go’: One of the reasons for this is that it remains the case even now that the pace of court proceedings is still to a not insignificant extent in the hands of the lawyers, even though admittedly there have been substantial improvements compared with the position prior to the reforms. That this is so is an inevitable by-product of the legal system in which most of us practice, namely an adversarial system in which it is left mainly to the parties to place relevant matters and materials before the court to enable it to adjudicate on the relevant dispute…. [T]he number of interlocutory applications has not decreased compared with the pre-[Civil Justice Reform] period. It will be recalled that one of the driving forces for a change in civil justice was the proliferation of interlocutory applications, this being among the more serious causes of the delay and expense of litigation. Yet the experience in Hong Kong has been, if anything, an increase in interlocutory activity, although this has been somewhat mollified by there being fewer interlocutory appeals.64 FOOTNOTES 37 (1983) 152 CLR 657, 682. 38 (2000) 206 CLR 161, 173. 39 RA Posner, Economic Analysis of Law (Wolters Kluwer, 9th ed 2014) 841. 40 2 HKLRD F2. 41 S Slorach, J Embley, P Goodchild and C Shephard, Legal Systems and Skills (Oxford University Press, 4th ed 2020) 370. 42 EA Farnsworth, An Introduction to the Legal System of the United States (Oxford University Press, 4th ed 2010) 109. 43 P Darbyshire, Darbyshire on the English Legal System (Sweet & Maxwell, 13th ed 2020) 157. 44 W Gu, ‘Civil Justice Reform in Hong Kong: Challenges and Opportunities for Development of Alternative Dispute Resolution’ (2010) 40 HKLJ 43, 54. 45 A Zuckerman, ‘The Challenge of Civil Justice Reform: Effective Court Management of Litigation’ (2009) 1 City University of Hong Kong Law Review 49, 50. 46 M Partington, Introduction to the English Legal System 2018–2019 (Oxford University Press, 2018) 210. 47 AKN Li, ‘Speech by the Chief Justice at the Opening of the Legal Year’ (17 January 2000). 48 Mr Justice Chan is now a non-permanent judge of the Court of Final Appeal. 49 D Lau, Civil Procedure in Hong Kong: A Guide to the Main Principles (Sweet & Maxwell, 4th ed 2017) 11. 50 PCH Chan, ‘Three Years of Civil Justice Reform: Constructing a Cost-Effective and Efficient Civil Procedure in Hong Kong’ (2011) 2011 Acta Universitatis Lucian Blaga 181, 183. 51 Y Zhao, Mediation and Alternative Dispute Resolution in Modern China (Springer, 2022) 155. 52 (2011) 14 HKCFAR 935, 956–957. 53 2 HKLRD 529, 547. 54 Kinform Ltd v Tsui Loi (No 1) 5 HKLRD 57. 55 PCH Chan, ‘Three Years of Civil Justice Reform: Constructing a Cost-Effective and Efficient  Civil Procedure in Hong Kong’ (2011) 2 Acta Universitatis Lucian Blaga 181, 198. 56 1 HKLRD 843, 844–845. 57 The Judiciary, ‘Membership List of the Civil Justice Reform Monitoring Committee’, Hong Kong Judiciary Annual Report 2020, available at: https://www.judiciary.hk/en/publications/annu_rept_2020r/eng/monitoring_committee.html (accessed on 30 June 2022). 58 Judiciary Administration, ‘Statistics on Ten Years’ Implementation of the Civil Justice Reform from 2 April 2009 to 31 March 2019’ (March 2019), available at: https://www.civiljustice.hk/eng/implement/CJR_Ten_Year_Implementation.pdf (accessed on 30 June 2022) 6. 59 Ibid., 6–7. 60 Ibid., 32. 61 Ibid., 8. 62 Ibid., 10. 63 Ibid., 15–16. 64 GT Ma, ‘Hong Kong Review of the Civil Justice Reforms and the Future Landscape of Dispute Resolution: Speech at the International Academy of Mediators — The Hong Kong Mediation Council Symposium’ (27 October 2020). 26 OCT 2022 PAGE 411 Law and Justice in Hong Kong: Principles of the Legal System, Fourth Edition CHAPTER 9 CIVIL JUSTICE 2. Civil Litigation (a) Fundamentals of civil litigation (v) Case-management summons and conference (v) Case-management summons and conference 9.032 Consider the civil procedures on case-management summons and conference. Within 28 days from the closing of pleadings, each party must serve and file a Timetabling Questionnaire demanding detailed answers about his case.65 Afterwards, if the parties have reached an agreement on the case-management directions they wish the Court to make, or a timetable, they must have a consent summons issued for an order to implement it;66 or if agreement is not possible, the plaintiff must issue a case-management summons within 14 days to let the Court know that it may give its own directions as to case management.67 Having received and considered the Questionnaires, the Court issues directions on the management of the case and fixes a timetable for each step in the process. A case-management conference may be timetabled if desirable (in the Court’s opinion).68 Failure of the plaintiff or the defendant to attend a case- management conference may lead to his claim or counterclaim being provisionally struck out by the Court.69 9.033 Consider the case-management conference and milestone dates. The case- management conference is used to fix a timetable for each step in the process, from the conference date to the trial date.70 The date fixed for the case- management conference, pre-trial review or trial, or a period fixed by the Court for the trial to take place in, is known as a ‘milestone date’.71 In this regard, in Arko Ship Leasing Ltd v Winsmart International Shipping Ltd,72 the Court of First Instance (Godfrey Lam J) said: Under O.25 r.1B(3) of the Rules of the High Court, the court should not grant an application by a party to vary a ‘milestone date’ unless there are exceptional circumstances justifying the variation. The trial dates are of course milestone dates. Practice Direction 5.2 (Case Management) at para.42 emphasises that milestone dates are immovable save in the most exceptional circumstances. FOOTNOTES 65 Rules of the High Court, O.25 r.1(1). 66 Ibid., O.25 r.1(1A). 67 Ibid., O.25 r.1(1B). 68 Ibid., O.25 r.1A(1). 69 Ibid., O.25 r.1C. 70 Ibid., O.25 r.1A(2)(b). 71 Ibid., O.25 r.1A(8). 72 2 HKLRD 121, 125. © 2022 Thomson Reuters Hong Kong Limited 26 OCT 2022 Law and Justice in Hong Kong: Principles of the Legal System, Fourth Edition Sweet & Maxwell HK This PDF Contains (vi) Other interim remedies, p.412 (vii) Settlement, p.413 (viii) Trial, p.413 (ix) Remedies, p.414 (x) Civil appeals, p.414 26 OCT 2022 PAGE 412 Law and Justice in Hong Kong: Principles of the Legal System, Fourth Edition CHAPTER 9 CIVIL JUSTICE 2. Civil Litigation (a) Fundamentals of civil litigation (vi) Other interim remedies (vi) Other interim remedies 9.034 Before trial, the plaintiff may apply for interlocutory injunctions restraining the defendant from committing a wrong or conserving the status quo until the final determination of the parties’ rights by the Court. An interlocutory injunction, like a summary judgment or a strikeout application, is an interim remedy to facilitate the final judgment.73 Other interim remedies may include, but are not limited to, security for costs,74 interim payments75 and strikeouts for delay (technically called ‘striking out for want of prosecution’).76 Regarding the current state of striking out for delay, Ma CJ remarked in Wing Fai Construction Co Ltd v Yip Kwong Robert:77 Under the Civil Justice Reform regime, the combination of greater case management by the courts and the obligation on all parties to proceedings to assist the court in achieving the underlying objectives, should ensure that delays are kept to a minimum. While certain delays may be unavoidable, certainly the type of delays that have in the past led to applications to strike out for want of prosecution, should now be consigned to history. As seen above, the Court now has in its arsenal a number of different powers to ensure that an action is proceeded with expeditiously and that its orders are complied with. Some of these powers have always been available to the Court, while others have been introduced under the Civil Justice Reform. FOOTNOTES 73 P Loughlin and S Gerlis, Civil Procedure (Cavendish Publishing, 2004) 297. 74 When a plaintiff has initiated an action, a defendant is compelled to defend himself; an order for security for costs seeks to protect the defendant in case the plaintiff loses the action but has no money to pay the defendant’s costs: see, D Lau, Civil Procedure in Hong Kong: A Guide to the Main Principles (Sweet & Maxwell, 4th ed 2017) 364; Rules of the High Court, O.23. 75 Rules of the High Court, O.29 r.9 defines ‘interim payment’, in relation to a defendant, as ‘a  payment on account of any damages, debt or other sum (excluding costs) which he may be held liable to pay to or for the benefit of the plaintiff; and any reference to the plaintiff or defendant includes a reference to any person who, for the purpose of the proceedings, acts as next friend of the plaintiff or guardian of the defendant’. 76 In Wing Fai Construction Co Ltd v Yip Kwong Robert (2011) 14 HKCFAR 935, 975, Ma CJ explained: ‘[T]he power to strike out for delay is of course discretionary and derives from the inherent jurisdiction of the court. The inherent jurisdiction of the court exists to avoid injustice, prevent abuse, preserve the dignity of the court or to facilitate the administration of justice: see, Credit Lyonnais v SK Global Hong Kong Ltd 4 HKC 104, 107B-C. In exercising its discretion under the inherent jurisdiction, a court must, in applying those principles I have earlier set out, ultimately ask itself the question whether or not in the circumstances, it is just to strike out. A mechanistic approach in which the bigger picture is lost sight of (or to adopt a more colourful phrase commonly used in our courts, to “lose the wood for the trees”), is to be eschewed’. 77 (2011) 14 HKCFAR 935, 968. 26 OCT 2022 PAGE 413 Law and Justice in Hong Kong: Principles of the Legal System, Fourth Edition CHAPTER 9 CIVIL JUSTICE 2. Civil Litigation (a) Fundamentals of civil litigation (vii) Settlement (vii) Settlement 9.035 Most civil disputes that have proceeded to litigation are settled before trial. Civil disputes arise in every business domain, though only a small portion of these ever reach the litigation stage, and civil cases are not infrequently settled prior to the final court hearing.78 This was the case before and after the Civil Justice Reform. The Rules of the High Court obligate the Court to help the parties ‘to settle the whole or part of the case’.79 The Hong Kong Solicitors’ Guide to Professional Conduct cautions: ‘A … solicitor needs to keep in mind that a settlement may be in his client’s interests and to advise and act accordingly’.80 It is obvious why litigation is becoming increasingly ‘unwieldy, inefficient and expensive’, whilst settlement mitigates the risk of failure, the delay in resolving the dispute, the man- hours consumed and the disruption to the client’s businesses.81 The Civil Justice Reform introduced into Hong Kong a system of ‘sanctioned offers and sanctioned payments’82 designed to encourage the parties to settle the case before trial. One party may make a sanctioned offer or sanctioned payment which, if accepted by the other party, will satisfy the claims in the action. If the other party refuses to accept, then fails to do better at trial than the sanctioned offer or sanctioned payment, he is likely to face serious cost consequences.83 FOOTNOTES 78 L Jones, Introduction to Business Law (Oxford University Press, 5th ed 2019) 30. 79 Rules of the High Court, O.1A r.4(2)(f). 80 The Hong Kong Solicitors’ Guide to Professional Conduct (Law Society of Hong Kong, 3rd ed 2013) Volume 1, para.10.17. 81 D Clark, Civil Litigation in Hong Kong (Sweet & Maxwell, 6th ed 2022) 441. 82 Rules of the High Court, O.22. 83 D Lau, Civil Procedure in Hong Kong: A Guide to the Main Principles (Sweet & Maxwell, 4th ed 2017) 289–314. 26 OCT 2022 PAGE 413 Law and Justice in Hong Kong: Principles of the Legal System, Fourth Edition CHAPTER 9 CIVIL JUSTICE 2. Civil Litigation (a) Fundamentals of civil litigation (viii) Trial (viii) Trial 9.036 Civil trials in Hong Kong still stress the principle of orality. Under this principle, witnesses are examined by the plaintiff’s lawyer publicly and cross-examined by the opposition; evidence, like documentation and exhibits, is brought out in open court and acknowledged orally — notwithstanding the implementation of the Civil Justice Reform. However, the judge now has power, for the sake of procedural efficiency,84 to impose limits on the time taken in examining, cross-examining or re-examining a witness, the number of witnesses a party may call, the time taken in oral submissions and even the time taken by the trial itself.85 9.037 On the date of the trial, the parties arrive at the Court punctually, their original documents, photocopies and witnesses in tow. The trial takes place in an ‘open court’ in the sense that the hearing is open to the public. The order of speeches in a trial is generally as follows: the plaintiff’s counsel opens with submissions outlining to the Court the roadmap of the case — facts of the case, the matters of fact and law in issue, the strong points of the plaintiff’s and weak points of the defendant’s cases and evidence to be called.86 He then calls his evidence from his factual witnesses and his experts; the witnesses’ statements are usually ordered by the Court to stand as his evidence-in-chief. Witnesses will be cross-examined by counsel for the defendant. The plaintiff’s counsel may re-examine the witness to clarify what he said during the cross-examination. 9.038 If the defendant chooses to adduce evidence, his counsel will make his opening submissions, call evidence and make closing submissions. Opposing counsel may make a speech in reply.87 After all of the parties’ cases are closed, the final submissions are made. Amidst all these proceedings, the Court enjoys discretion to adjourn the trial. 9.039 Consider the delivery of a civil judgment. The judge may deliver his judgment orally at the end of the trial or, more often, in a reserved written judgment thereafter.88 Sometimes the judge may deliver an immediate oral judgment followed by written details of his findings. Afterwards, counsel for both parties will be invited by the judge to make submissions about how the costs of the litigation should be distributed. FOOTNOTES 84 UU Rehman, ‘Civil Court Structure in Hong Kong’ in PCH Chan and CH van Rhee (eds), Civil Case Management in the Twenty-First Century: Court Structures Still Matter (Springer, 2021) 79, 83. 85 Rules of the High Court, O. 35, r.3A(1). 86 Ibid., O.35 r.7(2); D Lau, Civil Procedure in Hong Kong: A Guide to the Main Principles (Sweet & Maxwell, 4th ed 2017) 338–340. 87 Rules of the High Court, O.35 r.7(4). 88 D Clark, Civil Litigation in Hong Kong (Sweet & Maxwell, 6th ed 2022) 505. 26 OCT 2022 PAGE 414 Law and Justice in Hong Kong: Principles of the Legal System, Fourth Edition CHAPTER 9 CIVIL JUSTICE 2. Civil Litigation (a) Fundamentals of civil litigation (ix) Remedies (ix) Remedies 9.040 Consider civil remedies. In civil proceedings, if the plaintiff sued the defendant and won, the former will obtain a ‘judgment for the plaintiff’, which usually award remedies, the benefits of which only the plaintiff is entitled to. The legal and equitable remedies available for Court of First Instance cases include: (1) Damages (2) Declaration (3) Injunction (4) Specific performance (5) Orders for an account of profits (6) Orders for the restitution of property (7) Orders for the tracing and recovery of property from a trustee 26 OCT 2022 PAGE 414 Law and Justice in Hong Kong: Principles of the Legal System, Fourth Edition CHAPTER 9 CIVIL JUSTICE 2. Civil Litigation (a) Fundamentals of civil litigation (x) Civil appeals (x) Civil appeals 9.041 An appeal brings about a higher court’s review of a lower court’s decision. Appeals exist to correct errors made by lower courts or tribunals and enable a senior court to explain and clarify complex questions of law.89 In its civil jurisdiction, the Court of First Instance hears appeals from certain special courts and administrative bodies; the Court of Appeal hears appeals from the Court of First Instance, the District Court and the Lands Tribunal, as well as certain administrative tribunals; and the Court of Final Appeal mainly hears appeals from the Court of Appeal.90 A civil appellate court may consider materials that were before the trial court but will not hear oral evidence again.91 In Tin Kwong International Enterprise Co Ltd v San Tung,92 the Court of Appeal (Woo V-P) summed up its approach towards civil appeals on questions of fact: If the Court of Appeal is to reverse the trial judge’s decision on the facts, it ‘must not merely entertain doubt whether the decision below is right, but be convinced it is wrong’. The Court of Appeal will certainly not disturb the judge’s findings of primary fact where they are based on the credibility of the witnesses or the preference of the evidence of one witness for that of another because he enjoyed the advantages of receiving the evidence in a living state at first-hand. In order to disturb a finding of primary fact, the Court of Appeal has to be satisfied that the judge’s conclusion is plainly wrong in the sense that either: (1) that there is no evidence to support it; or (2) that it is contrary to documentary or other incontrovertible evidence that the judge overlooked. It is not enough to show there is little evidence to support the judge’s finding, or that it was ‘contrary to the weight of the evidence’. The weight of the evidence is a matter for the trial judge. It does not matter how many witnesses say one thing, and how few say the contrary. The judge is perfectly entitled to prefer the evidence of the few to that of the many. FOOTNOTES 89 D Lau, Civil Procedure in Hong Kong: A Guide to the Main Principles (Sweet & Maxwell, 4th ed 2017) 385. 90 D Clark, Civil Litigation in Hong Kong (Sweet & Maxwell, 6th ed 2022) 627. 91 D Lau, Civil Procedure in Hong Kong: A Guide to the Main Principles (Sweet & Maxwell, 4th ed 2017) 410. 92 2 HKLRD 185, 190. © 2022 Thomson Reuters Hong Kong Limited 26 OCT 2022 Law and Justice in Hong Kong: Principles of the Legal System, Fourth Edition Sweet & Maxwell HK This PDF Contains (xi) Costs, p.415 (xii) Enforcement of judgments, p.416 26 OCT 2022 PAGE 415 Law and Justice in Hong Kong: Principles of the Legal System, Fourth Edition CHAPTER 9 CIVIL JUSTICE 2. Civil Litigation (a) Fundamentals of civil litigation (xi) Costs (xi) Costs 9.042 Consider the ‘indemnity principle’ in relation to costs. ‘The purpose of indemnity costs’, said the High Court of New Zealand (Gordon J) in Arriesgado v Gallagher Family Investments Ltd,93 ‘is to provide the successful party with full recovery of actual costs reasonably incurred in a proceeding’. The indemnity principle seeks to prevent a worthy plaintiff being deterred from pursuing his legal remedies by the cost of litigation, knowing that his litigation expenses will be recouped if he wins.94 The principle was defined and elaborated by the Court of Appeal (Cheung JA) in Ling Yuk Sing v Secretary for Civil Service:95 An order for costs between parties allows the receiving party to claim from the paying party only an indemnity in respect of costs recovered by the order. Receiving parties cannot therefore recover a sum in excess of their liability to their own solicitors. Further, such costs are not imposed as a punishment to the party who pays them nor given as a bonus to the party receiving them: Hong Kong Civil Procedure 2010, p.1148 para.62/App/2. FOOTNOTES 93 NZHC 567,. 94 RA Posner, Economic Analysis of Law (Wolters Kluwer, 9th ed 2014) 787. 95 3 HKLRD 722, 726–727. 26 OCT 2022 PAGE 416 Law and Justice in Hong Kong: Principles of the Legal System, Fourth Edition CHAPTER 9 CIVIL JUSTICE 2. Civil Litigation (a) Fundamentals of civil litigation (xii) Enforcement of judgments (xii) Enforcement of judgments 9.043 Judgments require due enforcement. It is for the winning party (the judgment creditor) to determine when and how the judgment is to be enforced on the losing party (the judgment debtor). The judgment creditor has at his disposal various measures to enforce the judgment. Here are a few examples: (1) Garnishee order: demands a third party who owes money to the judgment debtor to pay it to the judgment creditor instead.96 (2) Prohibition order: prohibits the judgment debtor to leave Hong Kong to escape the judgment.97 (3) Writ of fieri facias: instructs the bailiff of the Court to seize and sell the judgment debtor’s properties to satisfy the judgment debt.98 (4) Writ of possession: instructs the bailiff of the Court to obtain the property that is to be returned to the judgment creditor.99 9.044 The first civil case conducted in Chinese, Sun Er Jo v Lo Ching,100 was heard by Mr Justice Yeung of the High Court of Justice in December 1995.101 So far, few judgments written in Chinese are of precedential value, and those of any jurisprudential importance have been translated into English, the language still predominantly used in cases involving difficult questions of law. It is the general impression that judgments in Chinese mainly concern questions of fact, and thorough discussions of the law are rarely found in them.102 9.045 The huge body of precedents from Hong Kong, England and the rest of the common law world is available only in English. Indeed, amongst other common law jurisdictions in the rest of Asia, such as Malaysia and Singapore, ‘Hong Kong remains the jurisdiction that stays closest to the decisions of English courts’.103 Given the presence of overseas non-permanent judges, Court of Final Appeal proceedings, which tend to feature the most important legal issues in Hong Kong, remain completely in English. Furthermore, a lot of terms of art in the common law are hard to express concisely in Chinese or any other foreign language.104 FOOTNOTES 96 Rules of the High Court, O.49. 97 High Court Ordinance, s.21B. 98 Ibid., s.21D. 99 Ibid., s.21F(9)(b). 100 [1995–2000] HKCLRT 1. 101 S Kwan, ‘The Dilemma of Conducting Civil Litigation in Chinese — Conversant Either in Chinese or the Law but Not in Both’ (2011) 41 HKLJ 323, 324. 102 Ibid., 328. 103 KH Ng and B Jacobson, ‘How Global Is the Common Law? A Comparative Study of Asian Common Law Systems — Hong Kong, Malaysia, and Singapore’ (2017) 12 Asian Journal of Comparative Law 209, 228. 104 Ibid., 332. © 2022 Thomson Reuters Hong Kong Limited 26 OCT 2022 Law and Justice in Hong Kong: Principles of the Legal System, Fourth Edition Sweet & Maxwell HK This PDF Contains (b) Class actions, p.417 (c) Evaluating civil litigation, p.418 26 OCT 2022 PAGE 417 Law and Justice in Hong Kong: Principles of the Legal System, Fourth Edition CHAPTER 9 CIVIL JUSTICE 2. Civil Litigation (b) Class actions (b) Class actions 9.046 A class action enables a few or even just one plaintiff to file claims on behalf of a whole class of people who might, if they could, claim to have suffered some injury in common. Multi-party proceedings are currently governed by O.15 r.12 of the Rules of the High Court, which provides: Where numerous persons have the same interest in any proceedings, the proceedings may be begun, and unless the Court otherwise orders, continued, by or against any one or more of them as representing all or as representing all except one or more of them. 9.047 The courts have put high hurdles in the way of such proceedings. The High Court of Justice (Jones J) insisted in CBS/Sony Hong Kong Ltd v Television Broadcasts Ltd105 that plaintiffs intending to initiate a ‘representative action’ must ‘comply with the threefold test of establishing that there is a common interest, a common grievance and a remedy which is beneficial to all the plaintiffs’. 9.048 The Law Reform Commission consultation on class action was opposed by accountants, banks and business people in general. In November 2009, the Law Reform Commission issued a consultation paper on the merits of introducing class actions to Hong Kong. By the time it released a final report in May 2012, the Bar Association, the Law Society, the Federation of Insurers and the Federation of Trade Unions had voiced support for such a move, whereas the Institute of Certified Public Accountants, the Association of Banks and the General Chamber of Commerce raised objections. In November 2012, the Department of Justice set up a cross-sector working group chaired by the Solicitor-General.106 As at 17 April 2019, the group had met 25 times and focused its work on incrementally developing a class action regime starting with consumer cases, in the absence of any timetable.107 In August 2021, the working group awarded a consultancy contract to PricewaterhouseCoopers Advisory Services Ltd to explore the ‘potential and likely’ economic and other impacts on the Region if a class action regime, initially restricted to consumer class actions, was established.108 There already exists a Consumer Legal Action Fund, of which the Consumer Council is trustee, that was established in 1994 to enhance consumers’ access to legal remedies by way of supplying legal assistance in cases concerning important consumer interests. 9.049 Consider the advantages and disadvantages of class actions. On the upside, class actions enable the legal system to deal more efficiently with mass defaults in consumer, environmental and securities cases in a world that is more globalised and interconnected than ever.109 Imagine that certain manufacturers of toothpaste had cornered the market and conspired to charge monopoly prices, harming millions of consumers.110 Whilst the aggregate cost may be substantial, the injury to each consumer and potential litigant might be negligible; but if all these claims could be aggregated in one class action, the stakes will have been made large enough to justify the costs of a lawsuit. On the downside, as argued by the Hong Kong General Chamber of Commerce, there is a grave risk that the drastic expansion of private litigation opportunities resulting from the introduction of the class action ‘will open a Pandora’s box of litigation abuse and move to a legal system that is less fair, less accessible, and which makes it harder for meritorious claims to be heard … [for] the courts are clogged with claims motivated by class action lawyers seeking to make a quick buck’.111 Hong Kong does not appear to have the right ‘hardware’ to support class actions adequately, given the restrictions on damages, a general indemnity principle that the loser pays all litigation costs, the unavailability of conditional fees, and the continuing effect of the offences of maintenance and champerty in its legal system.112 FOOTNOTES 105 HKLR 306, 311. 106 G Meggitt, ‘Class Actions in Hong Kong: Yes, No, Maybe’ (2013) 34 HKLJ 217, 218. 107 The Government of the Hong Kong Special Administrative Region Press Releases, ‘LCQ14: Introduction of a Mechanism for Class Actions’ (17 April 2019), available at: https://www.info.gov.hk/gia/general/201904/17/P2019041700786.htm (accessed on 30 June 2022). 108 Secretariat of the Working Group, Award of Consultancy Contract (August 2021), https://www.doj.gov.hk/en/community_engagement/announcements/20210826_an1.html 109 EA Farnsworth, An Introduction to the Legal System of the United States (Oxford University Press, 4th ed 2010) 186. 110 RA Posner, Economic Analysis of Law (Wolters Kluwer, 9th ed 2014) 785. 111 S Yuen, ‘Class Action Lawsuits Not Suited to Hong Kong’ South China Morning Post (16 October 2013).  OG Chase and V Varano, ‘Comparative Civil Justice’ in M Bussani and U Mattei (eds), The 112 See, Cambridge Companion to Comparative Law (Cambridge University Press, 2012) 210, 233. 26 OCT 2022 PAGE 418 Law and Justice in Hong Kong: Principles of the Legal System, Fourth Edition CHAPTER 9 CIVIL JUSTICE 2. Civil Litigation (c) Evaluating civil litigation (c) Evaluating civil litigation 9.050 Adversarialism remains an entrenched feature of civil litigation in spite of the Civil Justice Reform. Although the Reform has been hailed for unleashing ‘a change of culture’ in litigation,113 most of the essential features of the adversarial justice system remain in place. Litigation in such a system has been likened to ‘trench warfare’, where the dominant strategy of lawyers appears to be ‘wearing down the opponent’.114 Adversarial litigation is ‘extremely expensive’, because the preparation of court documents and gathering of evidence ‘all take time’, and ‘for lawyers, time is money’; moreover, under the indemnity principle, a losing litigant is obligated to pay the other side’s lawyer’s bill, in addition to his own.115 9.051 The advent of active case management has taken away from the parties a lot of their former control of the proceedings, to say nothing of the outcome, which is determined by the court and only the court. Litigation leads to the breakdown of business and personal relations, prejudicial publicity, interminable proceedings, high legal costs and, above all, a stressful and unpleasant time. When a dispute involves a highly technical matter, the judge may lack the requisite knowledge and experience to deal with it, resulting in a decision unsatisfactory to all.116 9.052 Civil litigation is not without distinct advantages as a mode of dispute resolution. It is available for virtually every kind of dispute, even the most contentious ones, like those where human rights issues are raised or little realistic hope exists of resolution by consensus. An independent and impartial judiciary administering the civil courts is a dispute resolution forum in which a less sophisticated party is empowered to vindicate its lawful rights against a more powerful party. With the rising number of cases resolved outside of traditional dispute resolution, prospective litigants would be deprived of up-to-date guidance from highly relevant judicial decisions to which to conform.117 Civil litigation in the common law courts is especially advantageous when binding precedents are needed on particular issues relevant not just to the parties but also to the wider business community or the public. Binding precedents benefit society as individuals and corporations act with the ‘background knowledge that rights can be enforced in court and that they may be held to account for any wrongdoing’; precedents ‘smooth day-to-day interactions’.118 All in all, litigation ‘helps to enforce the law’, ‘fosters transparency by revealing information crucial to individual and public decision-making’, ‘promotes participation in self-government’  and ‘offers a form of social equality by giving litigants equal opportunities to speak and be heard’; these advantages are so critical that achieving them is worth the costs imposed by litigation: ‘time, money, and effort spent suing and defending suits’.119 FOOTNOTES 113 Yeung Yeuk Sut v Tse Chun Yip 2 HKLRD 54, 61 (Registrar Queeny Au-Yeung). 114 JW Gould, ‘Litigation as War’ (1991) 17 Litigation 31, 32. 115 J Herring, Legal Ethics (Oxford University Press, 2nd ed 2017) 287. 116 C To, ‘Alternative Dispute Resolution’ in DK Srivastava (ed), Business Law in Hong Kong (Sweet & Maxwell, 6th ed 2020) 777, 810. 117 C To and S So, ADR in Hong Kong (Sweet & Maxwell, 2018) 89. 118 A Lahav, In Praise of Litigation (Oxford University Press, 2017) 87. 119 Ibid., 1–2. © 2022 Thomson Reuters Hong Kong Limited 26 OCT 2022 Law and Justice in Hong Kong: Principles of the Legal System, Fourth Edition Sweet & Maxwell HK This PDF Contains 3. Arbitration, p.419 (a) Overview, p.419 (b) The development of arbitration in Hong Kong, p.420 (c) The new Arbitration Ordinance, p.421 (d) Arbitration institutions, p.424 26 OCT 2022 PAGE 419 Law and Justice in Hong Kong: Principles of the Legal System, Fourth Edition CHAPTER 9 CIVIL JUSTICE 3. Arbitration 3. ARBITRATION 26 OCT 2022 PAGE 419 Law and Justice in Hong Kong: Principles of the Legal System, Fourth Edition CHAPTER 9 CIVIL JUSTICE 3. Arbitration (a) Overview (a) Overview 9.053 Hong Kong is the leading arbitration venue for disputes relating to Mainland China. Many Hong Kong-based arbitrators have the requisite professional and linguistic expertise to handle such disputes. Hong Kong’s very extensive international connections also attract a significant number of arbitration proceedings from the rest of Asia and beyond. 9.054 Arbitration purports to be an inexpensive mode of alternative dispute resolution. Nowadays, many trades and industries in Hong Kong adopt template contracts featuring standard arbitration clauses. Parties who have omitted such clauses may still refer their disputes to arbitration through separate submission agreements. This is done through creating, by the use of arbitral tribunals deriving their jurisdiction wholly out of the parties’ consent, streamlined, confidential, fair and final solutions to disputes without having to resort to the civil courts.120 However, arbitration can in fact be as formal as litigation, entailing the full range of pleadings, further particulars and other essential characteristics of civil court procedures.121 Arbitrators can command expensive fees too.122 9.055 Arbitral proceedings commence with a claimant sending a notice of arbitration to a respondent. A tribunal is chosen according to a procedure agreed before by the parties. The parties or the tribunal will then choose a detailed timetable and a set ofDirections setting forth the fundamental rules of the arbitral proceeding. After the venue has been booked, a hearing will be held. Arbitral tribunals often follow the principles of adversarialism in conducting hearings. The judgment of the arbitral tribunal is known as an award, which is prepared and executed by the arbitrator(s) and encompasses recitals, findings of liabilities, relief granted, interest accrued and findings as to costs and reasons. Usually, the parties may not publish, disclose or communicate any information about arbitration proceedings or the awards reached through them.123 9.056 In ‘documents-only’ arbitration, an oral hearing is not held. This is premised on the contingency that the critical facts of the dispute can already be established adequately by documents alone. The tribunal then makes its award on the basis of statements of fact and an agreed bundle of documents provided by the parties. FOOTNOTES 120 Typically, an arbitral tribunal is constituted on the basis of consent of all parties. The number of arbitrators on an arbitral tribunal varies between one and three. It is not uncommon for the claiming and defending parties to appoint one arbitrator each, and for the two arbitrators so appointed to appoint a third. See, UNCITRAL Model Law, art.11; Arbitration Ordinance (Cap.609), s.24. 121 D Clark, Civil Litigation in Hong Kong (Sweet & Maxwell, 6th ed 2022) 685. 122 L Jones, Introduction to Business Law (Oxford University Press, 5th ed 2019) 35. 123 Arbitration Ordinance, s.18. 26 OCT 2022 PAGE 420 Law and Justice in Hong Kong: Principles of the Legal System, Fourth Edition CHAPTER 9 CIVIL JUSTICE 3. Arbitration (b) The development of arbitration in Hong Kong (b) The development of arbitration in Hong Kong 9.057 Arbitration has a long history in Hong Kong. Its Chinese inhabitants disliked and distrusted the nascent Supreme Court as a forum for resolving civil disputes in the nineteenth century. This is hardly surprising, for plaintiffs were inured to the practice of imperial Chinese magistracies which often punished them along with defendant wrongdoers for breaking Confucian social harmony.124 And this should be understood in the historical context that Hong Kong Island was little more than a collection of self-administering fishing villages before British rule, disregarded by imperial mandarins across the harbour. Most disputes in such a society were resolved by overlapping structures of informal power, from clans and village elders to guilds and secret societies. 9.058 In the Crown Colony’s early decades, Chinese-style arbitration prevailed in the Chinese community as the leading dispute resolution mechanism. The Man Mo Miu, built on Hollywood Road in 1847 by two Chinese residents from the lower class who had made their fortunes by working with the British, instantly became the ‘de facto governing body for the Chinese community’. The elders of the temple acted as commercial arbitrators, applying Chinese custom to the resolution of civil disputes.125 9.059 ‘Western-style’ arbitration took root early in Hong Kong as well. In 1844, only one year after the legal system was established, the Civil Actions Arbitration Ordinance (No. 6 of 1844) was enacted to provide a substitute for civil courts at a time when none existed to resolve disputes amongst the non-Chinese inhabitants. The Ordinance was short-lived, in the sense that it was quickly replaced by the Supreme Court Ordinance (No. 15 of 1844), which established the Crown Colony’s first civil court; yet arbitration continued to be recognised by subsequent legislation, such as the Civil Administration of Justice (Amendment) Ordinance (No. 6 of 1855), the Code of Civil Procedure Ordinance (No. 5 of 1901) and the Arbitration Ordinance (Cap.341), as a lawful means of alternative dispute resolution. Hong Kong became party to the New York Convention, as the Convention on the Recognition and Enforcement of Arbitral Awards 1958 is commonly known, when it was ratified by the United Kingdom on 24 December 1975. It is a multilateral international treaty that allows arbitral awards made in Hong Kong to be recognised and enforced in over 160 jurisdictions and vice versa.126 FOOTNOTES 124 C Munn, Anglo-China: Chinese People and British Rule in Hong Kong, 1841–1880 (Hong Kong University Press, 2009) 171–172. 125 DC Donald, A Financial Centre for Two Empires: Hong Kong’s Corporate, Securities and Tax Laws in Its Transition from Britain to China (Cambridge University Press, 2014) 15–16. 126 Arbitration Ordinance, s.87; see, C To, ‘Alternative Dispute Resolution’ in DK Srivastava (ed), Business Law in Hong Kong (Sweet & Maxwell, 6th ed 2020) 777, 805. 26 OCT 2022 PAGE 421 Law and Justice in Hong Kong: Principles of the Legal System, Fourth Edition CHAPTER 9 CIVIL JUSTICE 3. Arbitration (c) The new Arbitration Ordinance (c) The new Arbitration Ordinance 9.060 The new Arbitration Ordinance internationalised the local arbitration regime. In June 2002, the Hong Kong Institute of Arbitrators held a consultation which led to the recommendation that a unitary arbitral regime should be established in law by adopting for domestic and international arbitration the Model Law on International Commercial Arbitration (UNCITRAL Model Law) of the United Nations Commission on International Trade Law. The UNCITRAL Model Law was promulgated by the Commission in June 1985 as a template of effective and comprehensive modern arbitration practices for states to consider; over 100 jurisdictions have thus far adopted legislation on the basis of the Model Law.127 It was supposed that a unitary arbitral regime would end uncertainty over which norms, global or local, should apply in a given arbitration, and that the UNCITRAL Model Law would benefit Hong Kong’s many cross-border arbitrations due to its widespread international acceptance.128 The Model Law does not offer an exhaustive code of conduct for arbitrators, but only a framework within which international arbitrations may be carried out according to international standards.129 9.061 Adopting the UNCITRAL Model Law for Hong Kong entailed the complete overhauling of the Arbitration Ordinance. Following a consultation in 2007, the Department of Justice drafted a new Arbitration Ordinance (Cap.609), which was enacted to come into force on 1 June 2011. It sets the objective ‘to facilitate the fair and speedy resolution of disputes by arbitration without unnecessary expense’,130 to be accomplished on the basis of following twin principles: (1) Subject to the observance of the safeguards that are necessary in the public interest, the parties to a dispute should be free to agree on how the dispute should be resolved.131 (2) The court should interfere in the arbitration of a dispute only as expressly provided for in this Ordinance.132 9.062 The new Arbitration Ordinance imposes statutory duties on arbitral tribunals to act as a neutral arbiter of disputes. These include: (1) To be independent.133  To act fairly and impartially as between the parties, giving them a (2) reasonable opportunity to present their cases and to deal with the cases of their opponents.134 (3) To use procedures that are appropriate to the particular case, avoiding unnecessary delay or expense, so as to provide a fair means for resolving the dispute to which the arbitral proceedings relate.135 9.063 Awards of arbitral tribunals enjoy a measure of finality. In T v B (Arbitration),136 the Court of First Instance (Coleman J) underscored the great autonomy enjoyed by an arbitral tribunal: [I]f the Court is the master of its own procedural rules, so should be the arbitral tribunal. It is logically sound that a tribunal’s decision on parties’ compliance or non-compliance with pre-arbitration procedures or conditions should be final and non-reviewable by the Court. 9.064 An arbitrator cannot be challenged except insofar as there are ‘justifiable doubts as to his or her impartiality or independence, or if he or she does not possess qualifications agreed to by the parties’.137 No express legal provision mandates anything as to the other qualifications supposed to be possessed by an arbitrator. The parties in practice normally agree on no more than to appoint as arbitrator a person with knowledge or experience on the subject matter of the dispute. The pool of top arbitrators typically consists of ‘the profession’s elder statesmen’ — experienced legal practitioners and retired judges.138 9.065 Arbitral awards are legally binding, and successful appeals against arbitral awards ought to be rare. An award ‘is enforceable in the same manner as a judgment of the Court that has the same effect, but only with the leave of the Court’.139 Legitimate grounds for not enforcing arbitral awards are limited.140 The Court of First Instance exercises a limited supervisory jurisdiction over arbitral proceedings.141 A party may apply to the Court of First Instance to challenge an award on grounds of ‘serious irregularities’.142 The Court’s appellate jurisdiction may be invoked only in cases where the parties have unanimously consented to it, or where permission to appeal has been granted by the Court of First Instance, provided there is no valid agreement to exclude the Court’s jurisdiction.143 Leave will not be granted unless the Court is satisfied that the arbitral award ‘will substantially affect the rights of one or more of the parties144 … [and that] the question is one which the arbitral tribunal was asked to decide145 … [and that] the decision of the arbitral tribunal on the question is obviously wrong or the question is one of general importance and the decision of the arbitral tribunal is at least open to serious doubt’.146 Appeals of arbitral awards are heard by the High Court judge who is in charge of the Construction and Arbitration List; he may confirm, vary, set aside or remit the award for the arbitral tribunal’s reconsideration. 9.066 The courts have thus far taken a ‘pro-arbitration’ approach. They have actively  cemented the use of arbitration to resolve domestic and international disputes in Hong Kong.147 The Judiciary’s ‘philosophy’ in this regard was that ‘in agreeing to have their disputes decided by an arbitral tribunal, the parties must accept the risk that the arbitrator may make an incorrect decision both as to the law and as to the fact of the case’.148 In October 2021, Chief Justice Cheung was able to say, extra- judicially: As a matter of general principle, the courts adopt a pro-arbitration policy. The general policy of the courts is to uphold arbitration agreements, to facilitate arbitration, and not to intervene in an arbitration, which is the parties’ free choice as to the method of dispute resolution. The role of the Hong Kong courts in respect of arbitrations can be divided into four broad categories: (1) enforcing arbitration agreements; (2) supporting the conduct of arbitration proceedings; (3) ruling on applications to set aside arbitral awards; (4) enforcing arbitral awards.149 9.067 The new Arbitration Ordinance vests a number of civil procedural powers into arbitral tribunals. Subject to any other agreement between the parties, the Ordinance empowers an arbitral tribunal to: (1) require a claimant to give security for the costs of the arbitration;150 (2) direct the discovery of documents or the delivery of interrogatories;151 (3) direct evidence to be given by affidavit;152 (4) direct the inspection, photographing, preservation, custody, detention or sale of the relevant property by the arbitral tribunal, a party to the arbitral proceedings or an expert;153 (5) direct samples to be taken from, observations to be made of, or experiments to be conducted on the relevant property;154 (6) administer oaths to, or take the affirmations of, witnesses and parties;155 (7) examine witnesses and parties on oath or affirmation; and156 (8) direct the attendance before the arbitral tribunal of witnesses in order to give evidence or to produce documents or other evidence.157 9.068 An arbitral tribunal must determine the dispute according to the rules of domestic law selected by the parties. If the parties have consented for Hong Kong law to be applicable to the arbitration, the tribunal, like a civil court, will be bound by the precedents of the superior courts of Hong Kong and obligated to adhere as well to relevant legislation in its adjudication of the dispute. FOOTNOTES 127 Y Chai, ‘Regional Dispute Resolution: An International Civil Dispute Resolution Model for East Asia’ in Y Zhao (ed), International Governance and the Rule of Law in China under the Belt and Road Initiative (Cambridge University Press, 2018) 261, 262. 128 C To, ‘Alternative Dispute Resolution’ in DK Srivastava (ed), Business Law in Hong Kong (Sweet & Maxwell, 6th ed 2020) 777, 785. 129 B Zeller, G Mohanty and SR Garimella, Enforcement of Foreign Arbitral Awards and the Public Policy Exception: Including an Analysis of South Asian State Practice (Springer, 2021) 36. 130 Arbitration Ordinance, s.3(1). 131 Ibid., s.3(2)(a). 132 Ibid., s.3(2)(b). 133 Ibid., s.46(3)(a). 134 Ibid., s.46(3)(b). 135 Ibid., s.46(3)(c). 136 1 HKLRD 279, 287–288. 137 UNCITRAL Model Law, art.12(2); Arbitration Ordinance, s.25. 1