The decision in Fang Guo Quan & Another v. Choi Ming
Sang & Another (DCPI 1468/2008) considers whether Hong
Kong is the appropriate forum to hear a traffic accident case
involving Hong Kong residents that occurred in the PRC.
The plaintiffs were Hong Kong residents travelling on a coach
from Guangzhou, PRC to Hong Kong. The tickets were purchased at the
2nd defendant's office in Hong Kong. The 1st defendant was the
driver of the coach and a Hong Kong resident. A traffic accident
occurred in the PRC and a total of 17 passengers were injured,
including the plaintiffs. The plaintiffs commenced a personal
injuries action in Hong Kong. The 2nd defendant took out a summons
to stay the proceedings on the ground of forum non
conveniens, stating the proper forum should be the Court of
Dongguan City, PRC, where the accident occurred.
The Court dismissed the summons and decided the most appropriate
law was the laws of Hong Kong. The Court of Appeal affirmed the
decision and dismissed the 2nd defendant's application for
leave to appeal.
The Court applied the 3-stage test summarised in The Lanka
Muditha  1 HKLR 741 and later applied in the Court of
Appeal in Esquel Enterprises Ltd. & Another v. TAL Apparel
Ltd & Another  2 HKLRD 363 when reaching its
"(I) Is it shown that Hong Kong is not only not the
natural and appropriate forum for the trial, but that there is
another available forum which is clearly or distinctly more
appropriate than Hong Kong ...
(II) If the answer to (I) is yes, will a trial at the other
forum deprive the plaintiff of any legitimate personal or juridical
advantages. The evidential burden here lies on the
(III) If the answer to (II) is yes, a court has to balance
the advantages of (I) against the disadvantages of (II) ...
Deprivation of one or more personal or juridical advantages will
not necessarily be fatal to the applicant provided that the court
is satisfied that notwithstanding such loss substantial justice
will be done in the available appropriate forum ... Proof of this
... rests upon the applicant for the stay."
In coming to its conclusion, the Court considered (amongst other
All the parties were Hong Kong residents or companies
incorporated in Hong Kong. The parties and their agents were in the
PRC only temporarily and there was no agreement that PRC law was
the applicable law.
If PRC law was the applicable law, the Hong Kong courts can
apply foreign law and so this consideration is less important.
The fact that many witnesses were situated in the PRC was
irrelevant, since there was no suggestion it would be difficult for
the witnesses to come to Hong Kong.
Even if the PRC court was more appropriate, the damages to be
assessed would be substantially less than that assessed in the
Courts of Hong Kong, in effect depriving the plaintiffs of the
opportunity of receiving higher damages (relevant to Stage
The take away here is that an accident occurring outside of Hong
Kong does not preclude the action from being commenced in Hong
The number of operators and frequency of travel between the PRC
and Hong Kong are likely to increase, given the growth of
Having said that, insurers should be cautious when drafting
clauses on "Geographical Limits" and
"Jurisdiction" of motor liability policies, especially if
there is no intention to cover accidents occurring or actions
commenced outside of Hong Kong. Likewise, if wider coverage is
offered, when calculating premiums, insurers should not rely solely
on the potential location of accident as determining the forum of
the litigation (which inevitably will have bearing on the potential
claims payment of a policy).
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are separate entities ("Mayer Brown Practices"). The
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This article provides information and comments on legal
issues and developments of interest. The foregoing is not a
comprehensive treatment of the subject matter covered and is not
intended to provide legal advice. Readers should seek specific
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