Hongkong should hear Bumiputra case, says judge

Chris Chapel

A US$3 billion suit against Bank Bumiputra Malaysia has been dismissed in the United States after it argued the case would be more appropriately heard in Hongkong.

The bank successfully moved to dismiss the case on the grounds of forum non conveniens, by arguing that the US was not an appropriate venue and holding up the territory as an alternative.

Judge Stanley Weigel told the US district court for Northern California that Hongkong was ''an adequate alternative forum'', although it was ''questionable whether the Hongkong court will assert jurisdiction to provide relief in respect to real property outside the forum''.

Property deals done in the US in 1983 are at the centre of the dispute.

Judge Weigel said Hongkong had a much greater local interest in resolving the suit.

Judge Weigel said Hongkong was an adequate alternative because the bank and its officers had consented to the case being held there and Hongkong law provided sufficient remedies to redress the plaintiff's alleged injuries.

He said Hongkong law recognised claims based on deceit or misrepresentation and the tort of conspiracy to injure by unlawful means and provided for damages remedies.

''The possible unavailability of a RICO claim in Hongkong does not prevent the court from granting this motion,'' Judge Weigel said.

Noting that ''the cost of transporting witnesses will be enormous for either side'', Judge Weigel said private interests did not favour either party but the balance of private and public interests favoured a trial in Hongkong.

''In view of the local interest considerations of the Hongkong forum, the limited interest of the US, and the recurrence of Hongkong law, the public interest favours dismissal,'' he said.

Following the judgement, Capri Trading Corp could launch an action in Hongkong, but a local litigation specialist said there were advantages in having it heard in the US: Hongkong law had no equivalent of RICO and there was a general time limit of six years beyond which litigation was difficult.

The land deals at issue in the Bumiputra case took place in 1983.

''Six years is the normal limit but there are ways around it,'' the lawyer said. ''If you could say there was fraud you might be able to get the limit extended, particularly if the fraud was such that you didn't know you had cause for action until after the event.'' Another way of extending the limit would be to claim the defendant was acting as trustee for an amount of money at issue.

The lack of RICO damages and the lack of a contingency fee (payment for success) system for lawyers in Hongkong made the US the obvious choice for the plaintiffs in the Bumiputra case, he said.