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香港法院审理案件中的法律论证过程 ——以United Phosphorus LTD v. China Merchants Shipping & Enterprises Co Ltd 上诉审为例/陈汉瑛(15)
(ii) The judge introduced his conclusion with the words "in the exercise of my discretion". I shall address in a moment whether the analysis at stage I involves the exercise of a discretion. But even if it does not, I think that the judge used the expression because he thought that the analysis at stage I involved the exercise of a discretion, rather than because he was at stage III of the analysis which undoubtedly would have involved the exercise of a discretion.
The attack on the judge's conclusion
Exercise of discretion. Mr Sussex contended that the analysis at stage I did not involve the exercise of a discretion. It was a question of mixed fact and law on which there could only be one correct answer. If the Court of Appeal concludes that the answer which the judge arrived at was not the correct answer, it has to substitute what it considers the correct answer to be for the answer given by the judge.
I cannot go along with this argument in its entirety. Even if stage I of the analysis does not involve the exercise of a discretion, it involves the making of a value judgment based on its assessment of all the factors which connected the action to one forum and those factors which connected it to another. The process by which that value judgment is formed is akin to the exercise of a discretion. It follows that, if the Court of Appeal is to interfere with the judge's conclusion, it would not be sufficient if the court would have reached a different view from that of the judge. It would be necessary for the court to conclude that the judge's conclusion was outside the generous ambit within which reasonable disagreement is possible.


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