Gurung Rudra Bahadur v. Will Plan Construction Co Ltd and Another

CACV 163/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 163 OF 2016

(ON APPEAL FROM HCPI NO. 239 OF 2014

________________________

________________________

________________________

D E C I S I O N

________________________

Hon Cheung JA (giving the Decision of the Court) :

1.The plaintiff claimed damages for personal injury arising from an accident which caused him to fall down a slope at work. Lok J. dismissed his claim. The plaintiff appeals.

2.The 1^st and 2^nd defendants apply for an order that the plaintiff do pay HK$500,000 into Court as security for their costs of the appeal.

3.We direct the application to be dealt with on paper.  While the defendants filed their written submissions, the plaintiff did not.  The plaintiff had filed an affirmation opposing the defendants’ application.

4.The Court of Appeal may, in special circumstances, order an appellant to provide security for the costs of an appeal.

5.One example of ‘special circumstances’, which was relied upon by the defendants in the application, is that, the appellant is impecunious and will be unable to pay the defendants’ costs of appeal in the event that his appeal is dismissed. Nevertheless, even if such ‘special circumstances’ exist, the Court still has a discretion not to grant security if the appellant has a meritorious appeal so that he or she will not be deprived of the chance of an appeal.

6.The defendants were unable to give details of the plaintiff’s financial condition but referred to the fact that the plaintiff received legal aid for the conduct of his case in the Court below.  This suggested that he is not a man of means.  Legal aid has been discharged and the plaintiff now acts in person, although the plaintiff states that he is appealing against the decision of not granting him legal aid. 

7.The plaintiff has admitted in his affirmation filed on 31 October 2016 that he only has meager financial means and is not able to meet the security for costs sought by the defendants.  The tax records of the Inland Revenue Department disclosed that the plaintiff has been earning moderate wages in the past five years.  We are satisfied that the plaintiff is impecunious and it is highly unlikely that he would be able to pay the defendants’ costs of the appeal should he failed in the appeal.

8.As to the merits of the appeal, in essence the Judge made the finding that the plaintiff did not have the accident in the way described by him.  Specifically the Judge found that he did not fall due to defects of the safety equipment provided by the 1^st defendant to him. 

9.This is a finding of fact and the plaintiff is seeking to challenge this finding. The principle is that the Court of Appeal will not interfere with finding of fact by a trial judge unless it is shown that such a finding is plainly wrong. At this stage, we are unable to see that the plaintiff is able to overcome this extremely high hurdle so as to cause us to exercise the discretion in his favour.

10.In our view, security should be ordered.  As to the amount of the security, this is a simple case.  Counsel’s fee for the appeal is estimated at $150,000.  We will order security in the sum of $230,000.

11.Accordingly, we make the following orders :

1)   The plaintiff is to pay the sum of HK$230,000 into Court within 42 days from the date of this Order as security for the 1^st and 2^nd defendants’ costs of the appeal;

2)   Until the said security is provided, the appeal be stayed;

3)   In default of the security being provided the appeal shall stand dismissed without further order, with the costs of the appeal to be paid by the plaintiff to the defendants, to be taxed if not agreed; and

4)   The plaintiff is to pay the costs of this application for security for costs to the defendants, to be taxed if not agreed.

The plaintiff was not represented

William Lee & Associates, for the 1^st and 2^nd defendants