Pak Siu Hin Simon v. J.V. Fitness Ltdt

CACV 131/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 131 OF 2017

(ON APPEAL FROM HCPI NO. 574 OF 2014)

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D E C I S I O N

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Hon Cheung JA (giving Decision of the Court) :

1.The plaintiff was injured at work as a fitness trainer in the employ of the defendant on 2 June 2013.

2.Interlocutory judgment on liability was entered against the defendant by default on 13 July 2015.

3.Au Yeung J assessed the damages that the plaintiff was entitled to receive at $89,594.04.  This sum is arrived at after deducting $795,766.96 already received by the plaintiff as employees’ compensation.  Apart from the sum of $795,766.96 a further sum of $304,233.04 was paid to the plaintiff as interim payment. 

4.The plaintiff lodged an appeal against the damages awarded by the Judge.  The defendant now seeks security for costs of the appeal against the plaintiff in the sum of $854,000.  This sum includes counsel fee of $600,000 for senior counsel and $50,000 for junior counsel.

5.The plaintiff has not responded to this application.  We will deal with the matter on paper.

6.The Court may, in special circumstances, such as the impecuniosity of the appellant, order him to furnish security for costs of his appeal so as to ensure that the respondent in the appeal would not be out of pocket in the event that the appeal is not successful.

7.We are satisfied that the defendant has shown that the plaintiff is impecunious by reference to his bank account which showed that the plaintiff had less than $20; his claimed current earning as a driver at $8,000 per month and the fact that he will, in fact, not receive any sum from the judgment since the interim payment paid to him had exceeded this sum.  The defendant is also applying to vary the costs order nisi made in the plaintiff’s favour.

8.The plaintiff has not disclosed that he still has the money previously paid to him in his case.

9.As to the merits of the appeal, the grounds as disclosed in the Notice of Appeal are against the finding of facts by the Judge.  There is no indication that the appeal has a strong chance of success.

10.In the circumstances, the plaintiff must be ordered to pay security for the costs of the appeal.  The appeal is a simple one and does not merit senior counsel’s attendance.  The appropriate sum for security is $100,000 which has to be paid into Court within 28 days.  Pending payment in, the appeal is stayed.  In default of payment in, the appeal will be dismissed without further order and with costs to the defendant.  The defendant is to have the costs of this application.

Written Submissions by Mr Leon Ho, instructed by Au & Associates, for the defendant

No written submissions from B. Mak & Co., for the plaintiff