Ong Ai Moi and Another v. Chan Chi Shing

cacv 172/2008

in the high court of the

hong kong special administrative region

court of appeal

civil appeal no. 172 of 2008

(on appeal from HCA NO. 1120 of 2004)

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BETWEEN

Before: Hon Rogers VP in Chambers

Date of Hearing: 1 September 2008

Date of Decision: 1 September 2008

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D E C I S I O N

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1.This is an application for security for costs in respect of an appeal brought by the defendant who is now acting in person.  There was a default judgment in front of the Master; there was an appeal to the judge.  The judge refused to set the judgment aside because he was satisfied there was no merit.

2.On this application, Mr Chan, as I have said, is acting in person.  He has applied for release of certain documents so that forensic evidence can be obtained.  That is not an application which is before me.  If documents of the nature which are involved in this case are to be released from the court file, then the court needs to be satisfied as to exactly what is going to happen and has to be satisfied that there will be proper security over those documents - that they will not be tampered with; that they will not be destroyed - and the court will need some indication that there is some relevance in there being any forensic evidence in respect of them.  Hence, the defendant, who no doubt has copies of the documents, will need to file a preliminary affidavit from a forensic expert showing exactly what is proposed to be done.

3.If the defendant wishes to proceed with such an application, then so be it but, at the moment, it is not before me but for his benefit, I have given an indication of the minimum that would be required if such an application were to be made.

4.Turning to the present application, the defendant admits that he is impecunious and the question is, are there substantial merits in the appeal.  In my view, having considered the papers, I do not see at the moment that there are such substantial merits or any merits that would merit security not being given.

5.The order that I propose to make, therefore, is in the standard form - that the defendant do, on or before 2 October 2008, give security to answer costs in case any shall be awarded to be paid by the defendant to the plaintiffs by making lodgement in court of the sum of $53,800 by cash or banker’s draft or by provision of a bank guarantee of like amount which guarantee shall have been approved by the Registrar and, until such lodgement be made and notice thereof given to the Registrar and to the solicitors for the plaintiffs, such notice to be given on the same day as the lodgement is made, all proceedings in the said appeal are to be stayed.

6.In default of the defendant making such lodgement as aforesaid within the time specified above or within such further time as the court may, for special reasons, allow, the said appeal do, upon the solicitors for the plaintiffs certifying such default to the Registrar, stand dismissed out of this court without further order. 

7.In the event that the appeal is dismissed in the circumstances provided for above, the defendant do pay to the plaintiffs their costs occasioned by the said appeal, such costs to be taxed and for the costs of this application be costs in the appeal.

Ms Joyce Leung, instructed by Messrs Haldanes, for the Plaintiffs/Respondent

The Defendant/Appellant in person