Cheung Cho Kam Sindy and Another v. Cheung Yuet Ying Rose

CACV 178/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 178 OF 2008

(ON APPEAL FROM HCA NO. 885 OF 2005)

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BETWEEN

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Before: Hon Rogers VP in Chambers

Date of Hearing: 27 July 2009

Date of Decision: 27 July 2009

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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 on the appeal. The unusual feature of this case is that this appeal was due to be heard about two weeks ago. At the very last minute counsel for the Appellant fell ill, and so this appeal was adjourned. But it has this effect, that the court has read all the papers in the appeal and has read the skeleton arguments and, therefore, I am more familiar with the facts in issue of this case than would normally be the case on any security for costs application.

2.On this application, it is put on the footing that the Appellant is impecunious and has no money and could not afford the costs, should costs be awarded against her. There is very little dispute about that. The Appellant has been very frank and has said that if I do order costs she cannot afford to pay them.

3.That leads me to the second aspect that needs to be considered, and that is whether costs should be awarded on the basis that the Appellant is in person. In my view, in this case it is right to order security for costs because I do not consider that the appeal has sufficient merits that would warrant the allowing the appeal to go ahead without security simply on the basis that the appeal might be stifled. There comes a point when this court still has to order security even though the Appellant is in person and cannot afford the costs.

4.In those circumstances, although something over $400,000 has been asked for as security, I consider an appropriate amount would be $250,000 for the security for costs on this appeal, and I propose to order that:

the Defendant do, on or before 27 August 2009, give security to answer costs in case any shall be awarded to be paid by the Defendant to the Plaintiffs by making lodgment in Court of the sum of $250,000 by cash or bankers draft, or by the provision of a bank guarantee of the like amount, which guarantee shall have been approved by the Registrar, and until such lodgment 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 lodgment is made) all proceedings in the said appeal are to be stayed;

in default of the Defendant making such lodgment 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;

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

the costs of this application be costs in the appeal.

Mr Simon Wong, instructed by Messrs Christopher K Y Wong, for the 1st and 2nd Plaintiffs/Respondents

The Defendant/Appellant, in person