Cai Dening and Another v. Chang Chew Yung and Another

CACV001649A/2001

CACV 1649/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 1649 OF 2001

(ON APPEAL FROM HCA 416 OF 1995)

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Coram: Hon Mayo VP and Yeung J in Court

Date of Hearing: 6 December 2001

Date of Judgment: 6 December 2001

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J U D G M E N T

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

1.This is an appeal from the decision of Cheung JA to order that the sum of $180,000 be paid into court as security for costs in a forthcoming appeal. The Judge sitting as a single judge made the order on 15 November and ordered that the said sum be paid within 28 days failing which the appeal would stand dismissed.

2.The defendants accept that they are without the jurisdiction. This being the case an order for security for costs is normally appropriate to protect the interests of the respondent of the appeal.

3.It appears that the only ground being advanced in support of this appeal is a complaint that the appeal which the defendants are prosecuting against the determination made by the Director of Legal Aid to refuse to grant legal aid to them has not yet been determined. There is evidence that the defendants have made successive applications for legal aid in the past without success.

4.The defendants also assert that if this appeal is not allowed they will not have sufficient funds to proceed with their appeal. This is notwithstanding the fact that Kwan J ordered that $500,000 be paid out from the $1.7 million which the defendants paid into court so as to obtain a stay of the judgment which had been entered against them.

5.No affidavit has been forthcoming explaining what happened to the $500,000. As has been pointed out by Yeung J there would appear to be nothing for any discretion we may be disposed to exercise to bite upon.

6.This appeal is unmeritorious and is dismissed. Cheung JA's order must be complied with.

7.There will be no order so far as the application for the further $20,000 is concerned. That is not proceeded with.

8.Costs of appeal is to the plaintiff, to be taxed if not agreed.

Representation:

Mr William Thomson, of Messrs Peter C. Wong, Chow & Chow, for the plaintiffs.

Mr Nigel Bedford, instructed by Messrs Chan, Wong & Lam, for the defendants.