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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(16)
As of right. However, the Court of Appeal would be entitled to interfere with the judge's conclusion, and to decide the issue for itself, if the judge had reached his conclusion in disregard of principle. Mr Sussex was contending, I think, that in one respect the judge disregarded principle, namely by attaching too much weight to the fact that the Plaintiff had a right to bring the proceedings in Hong Kong. No, or at any rate little, weight should be attached to that factor, argued Mr Sussex, because that factor has already been built into the test to be applied: see the passage in Lord Goff's speech in which the basic principle was modified to reflect the plaintiff's right to sue in a particular jurisdiction (pp. 476F-477F).
Although I see the force of that argument, it must not be taken too far. Lord Goff himself recognised that distinctions can be drawn even between plaintiffs who have the right to sue in a particular jurisdiction. Lord Goff gave the example at p. 477F of the case where "the connection of the defendant with the English forum is a fragile one (for example, if he is served with proceedings during a short visit to this country)." That is to be contrasted with corporate defendants, such as the defendant in the present case, who are incorporated in Hong Kong and who hold themselves out as doing business in Hong Kong. In such cases, it is not inconsistent with Lord Goff's statement of principle for the court to give modest weighting to the plaintiff's right to sue in Hong Kong. To apply what Lord Goff said to the Hong Kong context, the more fragile the defendant's connection with Hong Kong, the easier it should be for the defendant to prove that there is another clearly more appropriate forum for the trial than Hong Kong. Thus, when Stone J said


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