Former Dealing Director of Foreground Securities Co Ltd and Another v. Securities and Futures Commission

CACV 252/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 252 OF 2005

(ON APPEAL FROM HCA NO. 2966 OF 2004)

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BETWEEN

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Before:  Hon Tang JA in Chambers

Date of Hearing: 21 March 2006

Date of Decision: 21 March 2006

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D E C I S I O N

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1.The plaintiff is a Hong Kong resident, and there is no evidence about his means.

2.His claim against the Securities and Futures Commission (“SFC”) was struck out by Deputy Judge To on the basis that it is hopeless.

3.The SFC seeks security for the costs of the appeal.

4.At an earlier hearing of this application, Yeung JA adjourned the hearing to enable the SFC to consider whether it would apply to strike out the Notice of Appeal.

5.The SFC has decided not to do so.

6.3 special circumstances are relied on in this application.  First, the appeal (prima facie) appears to be totally hopeless and vexatious.  Now in the circumstances of the case, although I have to say that the appeal appears to be extremely weak and may well be hopeless and vexatious, this is not a ground on which I am prepared to order security.

7.Another special circumstance relied on, is the likelihood of undue delay and expense in enforcing costs order in respect of the appeal.

8.The plaintiff has so far paid $3,000 which were gross sum costs ordered to be paid by him.

9.But apart from that, he has not yet paid the costs at first instance which have already been taxed.

10.But as I understand the position, those costs are not yet legally payable by him.  He has failed to confirm despite requests on behalf of the SFC that he would pay those tax costs in due course.  The most one can get out of this is that the plaintiff is unlikely to be cooperative with the SFC, about his liability to pay costs.

11.But on the limited evidence available, I do not believe this is a reason to order security in respect of the costs of the appeal.

12.The third special circumstance relied on, which Mr Rogers informed me, is only relied on cumulatively and not as a point which stands alone.  And it is that the SFC is a public body acting in the public interest and funded by the public.

13.I can understand the concern on the part of the SFC to safeguard the public interest.

14.But I do not believe that this point on its own is sufficient to justify the order sought.

15.Since I am not prepared to act on the other two grounds, it follows that I would not order security on the basis of this last special circumstance.

16.So in the circumstances, the application is dismissed with costs.

The Plaintiff (Respondent), in person, present.

Mr Martin Rogers of Messrs Clifford Chance, for the Defendant (Applicant).