Smeloan Hong Kong Ltd v. Wong Wing Cheung t/a Hung Wan Trading Co

CACV 431/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 431 OF 2006

(ON APPEAL FROM HCA 882 OF 2003)

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BETWEEN

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Before : Hon Tang VP and Yuen JA in Court

Date of Hearing : 22 March 2007

Date of Judgment : 27 March 2007

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J U D G M E N T

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Hon Tang VP (giving the judgment of the Court):

1.On 29 January 2007, Cheung JA ordered security in respect of the costs of the defendant’s appeal in the sum of $150,000 which was to be paid into court within 28 days.

2.This is the defendant’s appeal from that decision.

3.As this is an appeal against the exercise of discretion by Cheung JA, this court is not entitled to intervene unless the single justice of appeal has erred in principle.  See Hong Kong Civil Procedure 2007 para. 59/14/26 at page 918.

4.We are not satisfied that there has been any error on the part of Cheung JA.

5.Indeed, we are of the view that the order was rightly made.

6.The defendant accepted that he is impecunious.  His appeal is against the judgment of Mr Recorder J Fok, SC, which was handed down on 13 November 2006.  In a carefully prepared judgment which runs to 29 pages the judge concluded that the defendant was liable to the plaintiff under the provisions of the Transfer of Businesses (Protection of Creditors) Ordinance, Cap.49 (“the Ordinance”).

7.The judgment turned on findings of fact made by the learned recorder after a three-day trial, where the defendant was represented by Mr Mumford, SC.

8.We see no merit in the defendant’s appeal.  Certainly, this is not a case where the appeal is so meritorious such that even though the defendant is impecunious, he should be allowed to pursue this appeal without providing any security.

9.For the above reasons, we dismiss the appeal with costs in favour of the plaintiff, such costs to be taxed if not agreed.

Mr. Simon K M Lui, instructed by Messrs Fairbairn Catley Low & Kong, for the Plaintiff

The Defendant, in person, present.