Chan Hong Joo and Another v. Sino Concept Development Ltd. and Another

CACV000639/2000

CACV 639/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 639 OF 2000

(ON APPEAL FROM MP No. 1067 of 2000)

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Coram: Hon Cheung JA in Chambers

Date of Hearing: 16 April 2002

Date of Judgment: 16 April 2002

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J U D G M E N T

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Application for security

1.This is an application by the plaintiffs for security of costs of the appeal lodged by the 1st defendant.

2.The plaintiffs obtained a judgment in Singapore against the defendants in February 1998. They registered the judgment in Hong Kong in March 2000. The 1st defendant applied to the master to set aside the registration of the judgment. This was refused. Appeal by the 1st defendant to the Court of First Instance was also dismissed. The 1st defendant lodged an appeal to the Court of Appeal.

3.Under O.59 r.10(5) the Court of Appeal may in special circumstances order security for the costs of the appeal. Impecuniousity of the appellant to pay the costs of the appeal, if unsuccessful, is clearly a ground for ordering security.

The 1st defendant

4.The 1st defendant is a limited company. Leave was granted to Mr. Wilson Ng, one of the directors to represent the 1st defendant in the court below and in the appeal. The reasons that were given by Mr. Ng to act for the 1st defendant were that the 1st defendant had not been trading since 1996 and it was in financial difficulties. Enquiries by the plaintiffs' solicitors at the 1st defendant's registered address revealed that the 1st defendant and Mr. Ng were not known to the persons working there. Outside the registered address the name of another company was posted at the signboard. The 1st defendant has not disclosed any information about its current financial position.

Merits of the appeal

5.Mr. Ng, who had filed an affidavit to oppose the application, relied solely on the chances of success of the appeal. Although he referred to many grounds in his affidavit, only four matters are relied upon by him today. In fact, many of these arguments had been raised and rejected by the court below. This is clearly not the place to deal with these arguments in detail. But since the matters have been raised, I will briefly deal with them.

6.First, Mr. Ng denied that the 1st defendant had voluntarily submitted to the jurisdiction of Singapore. This is a far fetched argument. The 1st defendant had actually lodged an application to challenge the jurisdiction of the Singapore High Court and had applied to strike out the plaintiffs' claim in Singapore without success. If it chose later on not to defend the plaintiffs' claim despite notice of the proceedings it cannot now complain that it had not submitted to jurisdiction.

7.Second, Mr. Ng said that the case is about a property in China. The plaintiffs' claim in fact was based on a contract made in Singapore between the plaintiffs and defendants.

8.Third, Mr. Ng complained that the plaintiffs had started a similar action in Hong Kong prior to the Singapore proceedings. This is a matter that was considered by the Singapore Court as well. The existence of a Hong Kong action which has not been proceeded upon can have no effect on the validity of the registration of the Singapore judgment.

9.Fourth, Mr. Ng complained that the plaintiffs filed an affidavit one day before the hearing in court below. This affidavit set out the history of the matter. Even now Mr. Ng had not disclosed how he was prejudiced by this late filing of the affidavit.

Conclusion

10.It is clear that that the 1st defendant has not shown that it has such meritorious appeal that the discretion should be exercised in refusing to order security. The plaintiff asked for $200,000 as security. In my view the appropriate order for security is $150,000 which shall be paid into court within 21 days. Until payment in the appeal is stayed. In default of payment in as aforesaid, the appeal is dismissed with costs to the plaintiffs. The plaintiffs are also entitled to have costs of this application.

Representation:

Mr. Patrick L.W. Woo instructed by M/S Arthur Au & Co. for the Plaintiffs

The 1st Defendant, in person, represented by Wilson Ng Ching Hung