Chan Wan Yee v. Chan To Fun

CACV 21/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 21 OF 2014

(ON APPEAL FROM HCAP NO. 2 OF 2012)

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JUDGMENT

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Hon Lam VP (giving the Judgment of the Court):

1.On 21 November 2014, we dismissed an appeal by the defendant against the order of Kwan JA made on 3 October 2014. That order was an order for payment into court by the defendant as security for costs of the main appeal. As we said in the last paragraph of our judgment, the defendant’s main appeal would be dismissed if he did not pay the security by 28 November 2014.

2.The defendant did not make the payment. Instead, he issued another summons on 28 November 2014 seeking a stay of our judgment of 21 November 2014. No ground was set out in the summons.  The affidavit filed by the defendant on 28 November 2014 only commented on the judgment of the trial judge below and referred to what the defendant called “vital discrepancies”.

3.On 2 December 2014, this court gave directions for the disposal of the summons on paper.  Pursuant to such directions, the defendant lodged written submissions on 9 December 2014.  In those submissions, apart from canvassing his complaints as to the judgment below, the defendant sought a stay on the following grounds:

(a) It is just that his substantive appeal should be considered;

(b) His substantive appeal would be stifled by the security for costs order by reason of his impecunious condition;

(c) He should have time to seek leave to put in new evidence for the substantive appeal; and

(d) He needs time to obtain police report based on which he might be able to adduce further evidence.

4.None of these grounds has any merits.  The court had considered what is just in deciding that he should pay security for costs.  As observed by Kwan JA and reiterated by this court, his substantive appeal is not reasonably arguable.  The lack of means on his part is not a good reason for not ordering security for costs of the appeal.  This is precisely the reason why the other party needs the protection of security for costs.  As discussed in our judgment of 21 November, he already had ample time and opportunity to put in whatever evidence he wished before the trial.  There is no reason why he should be given further opportunity to do so.  In any event, it has nothing to do with the order for payment of security for costs.

5.Bearing in mind that his appeal against the order of Kwan JA had been dismissed, these grounds are plainly untenable and his summons is clearly an abuse of process in that he is trying to re-litigate on the question of security for costs.  In the meantime, by reason of the non-compliance with the order of Kwan JA, his substantive appeal had been dismissed with costs.

6.We therefore make an order striking out his summons of 28 November 2014 as an abuse of process..

Written submissions by the defendant