Mak Kit Ching Kitty and Another v. Tsang Yiu Wing and Others

cacv 377/2006

in the high court of the

hong kong special administrative region

court of appeal

civil appeal no. 377 of 2006

(on appeal from HCPI NO. 811 of 1999)

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BETWEEN

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Before : Hon Rogers VP in Chambers

Date of Hearing : 5 July 2007

Date of Decision : 5 July 2007

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D E C I S I O N

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1.This I find a very difficult case, not so much because of the legal matters involved but because it involves a tragic accident in which the father of a family was killed and I can only express my greatest sympathy for those he left behind.  But nevertheless, I have to look at this case in the way it is presented.

2.There was a trial in the court below which had unusual features in that there were no oral witnesses.  That is partly due to the fact that the accident took place many years ago; it is partly due to the fact that, of course, there was nobody there to give evidence on behalf of the plaintiff.  All that was left were the statements which were made by the two other persons involved, namely, those from the defendants.

3.The judge came to the conclusion that the cause of the accident was entirely the driving of the deceased.  I have approached this application for security for costs rather from the back end, as it were.  I have done that because it is clear that, unfortunately, the plaintiffs are impecunious, and there is no doubt about that - impecunious from the point of view of affording costs of the case.  Since they are in person, I would not grant any order for security for costs if I thought that that would stifle an appeal which had some merit in it.

4.The plaintiffs, on their part, are not suggesting that the defendants are 100 per cent liable.  They are saying that they are 50 per cent liable.  I have considered the matter before I came into court and I have had assistance from both counsel in this matter but, unfortunately, I regret that I cannot see that there is merit in this appeal or, to put it another way, that this appeal is likely to succeed or that it has a reasonable chance of success.

5.So I come to the conclusion, with some regret, I have to order security for costs.  I am going to do it in a very much reduced amount to the amount requested.

6.I propose to order a sum of a quarter of a million dollars which may not go anywhere near covering the costs but I feel that that is a heavy sum, in any event, for litigants in person and if they do so wish to put that money up - and I cannot encourage them to do so, but I cannot dissuade them from doing so - and have their case heard in court on appeal, then so be it.  So I propose to order $250,000 costs.

Mr Andy Cheng, instructed by Messrs Raymond Chu & Co., for the Plaintiffs/Appellants

Mr Michael Ozorio SC, instructed by Messrs Tsang, Chan & Wong, for the 1st to 3rd Defendants/Respondents