Wang Hsuan Han v. Cathay Pacific Airways Ltd
Read the full judgment text of HCA 1019/2022 on BabelCite. This High Court CFI judgment was delivered on 12 March 2024.
1. By summons filed on 21 March 2023, the defendant applied for security for costs.
Cited by 3 cases · Cites 3 cases
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HCA 1019/2022 [2024] HKCFI 754 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE ACTION NO 1019 OF 2022 _______________________
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_______________ DECISION _______________ INTRODUCTION 1.By summons filed on 21 March 2023, the defendant applied for security for costs. 2.On 20 July 2023, a Master ordered the plaintiff to pay security for costs in the sum of $300,000. 3.The plaintiff then appealed to this Court. The appeal hearing was held on 30 January 2024 (“the Appeal Hearing”). Her appeal was dismissed by a Decision dated the same date (“the Decision”), under which it was ordered that:
4.By summons filed on 2 February 2024 (“the Summons”), the plaintiff applied for leave to appeal. She intended to ask the Court of Appeal to set aside the Decision altogether, without requiring her to pay any security for costs. She also asked for leave to adduce further evidence on appeal. LEGAL PRINCIPLES 5.The requirement for granting leave to appeal is set out in section 14AA(4) of the High Court Ordinance (Cap 4, Laws of Hong Kong). It is trite that leave to appeal shall not be granted unless the court is satisfied that the intended appeal has a reasonable prospect of success or there is some other reason in the interest of justice why the appeal should be heard. 6.It is also well established that a reasonable prospect of success means an appeal with prospects that are more than fanciful without having to be probable (SMSE v KL [2009] 4 HKLRD 129 at [17]). 7.In respect of an appeal from an order for security for costs, Yuen JA held in So Yee Mui & Ors v Lam Pui Chi (CACV 283/2010, unreported, 28 June 2011) that:
8.In relation to the plaintiff’s application to adduce new evidence on appeal, Lam VP (as he then was) has given the following guidance in Man Lin Heung The Administratrix of the Estate of Man Kwai Yin also known as Man Kwai Yin v. 梁根林& Another [2019] HKCA 846:
9.It was therefore held in Man Lin Heung (supra) that the applications for leave to adduce new evidence for the purpose of the appeal were misconceived. 10.It is also trite that pursuant to the conditions laid down in Ladd v Marshall [1954] 1 WLR 1489, further evidence is admissible on appeal only when such evidence:
THE NEW EVIDENCE 11.As explained above, it is pre-mature for the plaintiff to apply for leave to adduce new evidence at this stage. At the moment, this Court should consider whether she can demonstrate that it is reasonably arguable that the Court of Appeal would grant leave by reference to the criteria in Ladd v Marshall. If she fails to do that, the new evidence should be disregarded for the purpose of this application for leave to appeal. 12.In the plaintiff’s affirmation in support of her application to adduce new evidence on appeal filed on 2 February 2024, she has referred to 10 exhibits which she seeks to adduce as new evidence. However, in fact some of them have already been placed before this Court at the Appeal Hearing properly and have been considered. The only items which have not been considered by this Court or which were not adduced at the substantive hearing are set out in the following table[2]:
13.I accept Mr Chan’s argument that the Ladd v Marshall first condition is apparently not satisfied in respect of all the items (except item 2 which is dated 2 February 2024 and the last document under item 10 which is dated 23 January 2024 (“the Excepted Items”). The plaintiff explained that she did not know that it was necessary to apply for leave to adduce new evidence before this Court when the appeal from the Master was heard. However, that is not an acceptable reason. 14.I also take the view that the Ladd v Marshall second condition is not satisfied. The purpose of the plaintiff in adducing the new evidence (including the Excepted Items) is to argue that it can be clearly demonstrated that she has a high degree of probability of success. However, I cannot see how the new evidence can show that the conclusion that “It is at least arguable that her claim that her employment relationship with the defendant has not been validly terminated is contradicted by the Release Agreement which the parties entered into on 20 September 2021”[4] is wrong. It should be borne in mind that threshold of demonstrating probability of success in the context of a security for costs application is very high. 15.Since the new evidence cannot arguably satisfy the Ladd v Marshall conditions, such evidence should be disregarded for the purpose of the application for leave to appeal herein. LEAVE TO APPEAL – DISCUSSION 16.As pointed out by counsel for the defendant, the plaintiff has not put forward any draft ground of appeal at all. The plaintiff mainly seeks to re-argue her points on merits of her claim which have already been made at the Appeal Hearing. 17.In any event, the plaintiff has failed to persuade this Court that this is a case in which the Court should not order her to pay security for costs by reason of the strong merits of her claim, and she has not explained why this Court has been “plainly wrong” in the exercise of its discretion. 18.The present application for leave to appeal is therefore a non-starter. 19.The plaintiff now also says that she is willing to reside in Hong Kong for the purpose of this case. However, that is totally beside the point. This will not alter the fact that she was ordinarily resident out of the jurisdiction at the time of the application, and of the Appeal Hearing. 20.The plaintiff further alleged that it is unfair to require her to own landed property here in Hong Kong before she has the right to continue with this litigation. I regret to say that she has totally misunderstood the law. It is not a prerequisite that she has to own landed property in Hong Kong before she is allowed to proceed with the action herein. However, this Court has to take into account the fact that she has no assets within the jurisdiction when deciding whether she has to pay security for costs. 21.For reasons of the aforesaid, I am not satisfied that the intended appeal has any reasonable prospect of success or there is some other reason in the interest of justice why the appeal should be heard. ORDER 22.The plaintiff’s application for leave to appeal should therefore be dismissed. COSTS 23.Costs should follow the event. I therefore order the plaintiff to bear the defendant’s costs of the Summons. Such costs shall be assessed summarily pursuant to Order 62 rule 9A(1)(a) of the Rules of the High Court (Cap.4A). 24.The defendant asked this Court to order that its costs be assessed on indemnity basis, on the grounds that this application is not only procedurally improper (in that no grounds of appeal have been identified), but also totally devoid of merit on its substance, and therefore should not have been brought. 25.It is trite that the Court’s discretion to order indemnity costs should not be fettered or circumscribed beyond the requirement that taxation on an indemnity basis must be appropriate[5]. While I agree that the application for leave to appeal herein has the features as described by the defendant’s counsel in the preceding paragraph, I am of the view that the Court should bear in mind that the plaintiff is acting in person and does not have the benefit of legal advice. There is nothing herein which may lead to the conclusion that the plaintiff is knowingly abusing the process of the court. In these circumstances, I do not think the plaintiff should be visited with an indemnity costs order. 26.For the purpose of summary assessment of costs, the defendant has lodged and served its Statement of Costs dated 5 March 2024. The plaintiff shall lodge and serve her Statement of Objection within 7 days. The summary assessment will then be conducted on paper thereafter, no matter whether any Statement of Objection is lodged by the plaintiff within time. The costs assessed shall be payable by the plaintiff within 14 days after assessment.
The plaintiff appeared in person Mr Keith Chan, instructed by Mayer Brown, for the defendant [1] Footnote 1 thereof [2] This is largely adopted from the table prepared by Mr Keith Chan for the defendant with some amendments [3] For the purpose of the Appeal Hearing, the plaintiff had lodged her own set of bundles, which contained documents not disclosed before the Master. [4] Decision, [13] [5] Town Planning Board v Society for Protection of Harbour Ltd (No 2) (2004) 7 HKCFAR 114, at [17] | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
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