Read the full judgment text of CACV 000047/1999 on BabelCite. This Court of Appeal judgment was delivered on 8 September 1999 before Leong, J.A..
Civil procedure – security for costs of appeal – appellant admittedly impecunious – monk and abbot of Tsing Wan Kun – appellant previously legally represented but now acting in person – legal aid refused – application for release of funds paid into court (proceeds of sale of land) to finance legal representation refused – settled practice to require security for costs from impecunious appellant unless special circumstances – court has discretion and merits of appeal an important factor – if appellant contends that requiring security would deprive him of right of appeal, burden on him to show he cannot raise security elsewhere – whether security should be ordered – held: security ordered because grounds arguable but not good and substantial – whether money tied up in court (proceeds of sale) could have been released to fund legal representation – held: ownership of proceeds depends on ownership of two properties, which was the subject of trial, and Judge was right not to release the funds – whether counter notices challenging admissibility of documents would have assisted – held: makers of documents long since dead; documents would in any event have been admitted – construction of instrument of Sung Tip – whether it operated to transfer property to Chan Chun Ting giving him a life interest – held: on the evidence, did not operate to effect any transfer of land – no registration of any such purchase – Ross Ruling – whether genuine – held: no record whatsoever in the Land Office, and no proof it was a genuine instrument – claim of ownership through Tat On, Mung Sang and Chan Chun Ting – held: appellant unable to show he is entitled to succeed to properties – s.15 of the New Territories Ordinance – whether appellant entitled to be registered as manager of Tsing Shan Monastery and Tsing Wan Kun – held: no, as he was not the beneficial owner or manager – amount of security – respondents' solicitors estimated $1.8 million – court to fix amount not too onerous – having regard to the $400,000 figure for appeals to the Court of Final Appeal, $300,000 fixed – security to be provided by way of cash or bank guarantee on or before 7 October 1999 – appeal stayed pending security – failing compliance, appeal to stand dismissed – costs of application to be costs in the appeal.
Legal issues: Whether security for costs of the appeal should be ordered against the impecunious appellant · Amount of security for costs to be fixed
Outcome: Security for costs of the appeal ordered against the appellant in the sum of $300,000; the appeal is stayed until security is provided, failing which the appeal shall stand dismissed; costs of the application are costs in the appeal.