Lisa Poncet v. Kho Sin Tek Henry

cacv 98/2007

in the high court of the

hong kong special administrative region

court of appeal

civil appeal no. 98 of 2007

(on appeal from HCAP NO. 19 of 2003)

______________________

BETWEEN

______________________

Before : Hon Rogers VP and Suffiad J in Court

Date of Hearing : 25 July 2007

Date of Judgment: 25 July 2007

______________________

J U D G M E N T

______________________

Hon Rogers VP:

1.This is an appeal from a decision of Le Pichon JA in which she ordered that there should be security for costs on this appeal of $400,000.  The appeal is on an Order 14 matter.

2.The first thing that I would say is that it is apparent, and this case has been argued on that basis, that the Defendant is impecunious and would probably not be able to afford the security for costs if it is ordered.  In those circumstances, because the Defendant is an individual and not a company, security for costs should not be ordered if it would stifle an appeal which has some merit and should be heard.

3.In my view, the circumstances are such in this case - and I wish to say no more - that I do not think that that consideration can apply in this case and that there still should be security for costs ordered.

4.The next question is the amount.  This is an Order 14 application.  It should be, therefore, a relatively simple matter, a straightforward matter, otherwise it should not be Order 14.  In this Court, it is unlikely to go beyond the coffee break if it is Order 14.  It certainly is not going to go longer than a day.  The amount asked for on security was $1.13 million.

5.Doing a rough, back-of-the-envelope calculation, I approached the matter on the basis of what would be the taxed costs for a reasonably competent counsel to conduct the case in this Court on behalf of the Plaintiff.  Of course, a case like this probably does not even merit a leading counsel but, even if it does, it seems to me that a reasonable calculation for taxed costs, not the counsel that have been instructed - and I do not know who they were - but on competent counsel who could do the case, if one were to allow about $150,000 for the counsel and $100,000 for the solicitors, the amount would come to $250,000 which, in my view, should be adequate as security in this case to be ordered.

6.For those reasons, I would reduce the amount of security to $250,000.

Hon Suffiad J:

7.I agree with everything said by the Vice-President.  I have nothing to add.

Mr Sanjay A Sakhrani, instructed by Messrs Stephenson Harwood & Lo, for the Plaintiff/Respondent

The Defendant/Appellant in person